1 CARLSON LYNCH, LLP 2 6 7 8 9 10...Case 3:18-cv-00692-JM-BGS Document 81-2 Filed 08/25/20 PageID.1395 Page 17 of 22 BRITTANY CASOLA Brittany Casola attended the University of Central

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1 NOTICE OF MOTION AND UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND

REIMBURSEMENT OF COSTS AND SERVICE AWARD 18cv692 JM(BGS)

CARLSON LYNCH, LLP Todd D. Carpenter (SBN 234464) [email protected] (Eddie) Jae K. Kim (SBN 236805) [email protected] Scott G. Braden (SBN 305051) [email protected] 1350 Columbia Street, Ste. 603 San Diego, California 92101 Telephone: (619) 762-1900 Facsimile: (619) 756-6991 KALIEL PLLC Jeffrey Kaliel (SBN 238293) [email protected] Sophia Goren Gold (SBN 307971) [email protected] 1875 Connecticut Ave. NW, 10th Floor Washington, DC 20009 Telephone: (202) 350-4783 Counsel for Plaintiffs and the settlement class

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA JACOB FIGUEROA AND MARY JACKSON, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.

CAPITAL ONE, N.A.,

Defendant.

CASE NO. 18-cv-692-JM(BGS)

NOTICE OF MOTION AND UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND SERVICE AWARDS

Judge: Hon. Jeffrey T. Miller Place: Courtroom 5D (5th Fl. – Schwartz) Date: January 11, 2021 Time: 10:00 a.m.

PLEASE TAKE NOTICE that on January 11, 2021, at 10:00 a.m., or as soon

thereafter as the matter may be heard, in Courtroom 5D, before the Honorable Jeffrey T.

Miller, Plaintiffs and Class Counsel will, and hereby do, respectfully request that the Court

grant Plaintiffs’ Application for Attorneys’ Fees and Reimbursement of Costs and Service

Awards.

This Motion is based upon this Notice of Motion and Unopposed Motion; the

accompanying Memorandum of Points and Authorities; the Settlement Agreement; the

Declaration of Jeffrey Kaliel and Todd Carpenter; other pleadings and papers on file in this

Case 3:18-cv-00692-JM-BGS Document 81 Filed 08/25/20 PageID.1348 Page 1 of 2

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2 NOTICE OF MOTION AND UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND


Action; and other such evidence or argument as may be presented to the Court at the

hearing on this Motion.

Defendant, Capital One, N.A., does not oppose this Motion.

Dated: August 25, 2020

By:

CARLSON LYNCH LLP

/s/Todd D. Carpenter Todd D. Carpenter (SBN 234464)

[email protected] (Eddie) Jae K. Kim (SBN 236805) [email protected] Scott G. Braden (SBN 305051) [email protected] 1350 Columbia St., Ste. 603 San Diego, CA 92101 Tel.: (619) 762-1900 Fax: (619) 756-6991

KALIEL PLLC Jeffrey Kaliel (SBN 238293) [email protected] Sophia Goren Gold (SBN 307971) [email protected] 1875 Connecticut Ave. NW, 10th Floor Washington, DC 20009 Tel.: (202) 350-4783

Counsel for Plaintiffs and the settlement class

Case 3:18-cv-00692-JM-BGS Document 81 Filed 08/25/20 PageID.1349 Page 2 of 2

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR

ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND SERVICE AWARD 18cv692 JM(BGS)



SOUTHERN DISTRICT OF CALIFORNIA JACOB FIGUEROA AND MARY JACKSON, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.

CAPITAL ONE, N.A.,

Defendant.

CASE NO. 18-cv-692-JM(BGS)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND SERVICE AWARDS

Judge: Hon. Jeffrey T. Miller Place: Courtroom 5D (5th Fl. – Schwartz) Date: January 11, 2021 Time: 10:00 a.m.

Case 3:18-cv-00692-JM-BGS Document 81-1 Filed 08/25/20 PageID.1350 Page 1 of 29

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i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR


TABLE OF CONTENTS

Page

1. INTRODUCTION .......................................................................................................... 1

1. HISTORY OF CLASS COUNSEL’S WORK IN THIS LITIGATION ........... 3

2. LEGAL ARGUMENT .............................................................................................. 8

A. CLASS COUNSEL’S FEE REQUEST IS REASONABLE UNDER CALIFORNIA LAW AND NINTH CIRCUIT PRECEDENT ............. 8

1. California Law ....................................................................................... 8

2. Ninth Circuit Precedent ....................................................................... 9

a. The Percentage ........................................................................... 9

b. The Relevant Factors Favor an Upward Departure from the Ninth Circuit Benchmark. ................................................ 11

The Results Achieved by Class Counsel .................... 12

The Risks Assumed by Class Counsel and the Complexity of the Case Favor the Fee Award Sought. ........................................................................... 14

The Case Settled Only After Class Counsel Had Attained Maximum Leverage and Sufficient Information to Value the Possible Relief. ................. 15

The Non-Monetary Benefits Obtained by Class Counsel. ......................................................................... 16

The Percentages in Standard Contingency-Fee Agreements in Similar Individual Cases. ................... 17

The Requested Fee Is Justified by Awards in Similar Cases. ................................................................ 18

c. A Lodestar Cross-Check Supports a 30% Award. ............... 18

B. CLASS COUNSEL SHOULD BE REIMBURSED FOR COSTS AND EXPENSES REASONABLY SPENT DURING THE LITIGATION ................................................................................................ 21

C. THE CLASS REPRESENTATIVES SHOULD RECEIVE THE REQUESTED SERVICE AWARDS FOR THEIR EFFORTS ........... 22

3. CONCLUSION ........................................................................................................ 23


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i MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR


TABLE OF AUTHORITIES

Page(s)

Cases

Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551 (9th Cir. 2002) .................................................................................................. 13

Beaver v. Tarsadia Hotels, No. 11-CV-01842-GPC-KSC, 2017 WL 4310707 (S.D. Cal. Sept. 28, 2017) ....... 8, 12, 21

In re Bluetooth Headset Prod. Liab. Litig., 654 F.3d 935 (9th Cir. 2011) .................................................................................................. 19

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ................................................................................................................... 9

Campbell v. Best Buy Stores, L.P., Case No. LACV127794 JAK(JEMx), 2016 WL 6662719 (C.D. Cal. Apr. 5, 2016) ........ 12

Chalmers v. Los Angeles, 796 F.2d 1205 (9th Cir. 1986) ................................................................................................ 19

Chavez v. Netflix, Inc., 162 Cal.App.4th 43 (2008) ........................................................................................................ 8

Dennis v. Kellogg Co., Case No. 09-cv-1786-L, 2013 WL 6055326 (S.D. Cal. Nov. 14, 2013) ............................ 22

Derum v. Saks & Company, 2015 WL 12434323 (S.D. Cal. Dec. 3, 2015) ....................................................................... 23

Grant v. Cap. Mgmt. Servs., L.P., Case No. 10-CV-2471-WQH (BGS), 2014 WL 888665 (S.D. Cal. Mar. 5, 2014) ........... 20

Greene v. Gino Morena Enterprises, LLC, 2014 WL 5606442 (S.D. Cal. Nov. 4, 2014) ......................................................................... 23

Harris v. Marhoefer, 24 F.3d 16 (9th Cir. 1994) ....................................................................................................... 21

Hazlin v. Botanical Laboratories, Inc., 2015 WL 11237634 (S.D. Cal. May 20, 2015) ...................................................................... 21

In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir. 2017) .................................................................................................. 18

In re HP Inkjet Printer Litig., 716 F.3d 1173 (9th Cir. 2013) ................................................................................................ 10

In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454 (9th Cir. 2000) .................................................................................................. 12

In re Neustar, Inc. Sec. Litig., Case No. 1:14cv885 (JCC/TRJ), 2015 WL 8484438 (E.D. Va. Dec. 8, 2015) ................. 19


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ii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR


TABLE OF AUTHORITIES (cont.)

Page(s)

Cases (cont.)

In re Omnivision Tech., Inc., 559 F. Supp. 2d 1036 (N.D. Cal. 2008) ................................................................................. 12

In re Pacific Enterprises Sec. Litig., 47 F.3d 373 (9th Cir. 1995) ........................................................................................ 10, 12, 16

In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291 (9th Cir. 1994) .................................................................................................. 17

Kelly v. Wengler, 822 F.3d 1085 (9th Cir. 2016) ................................................................................................ 19

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) ..................................................................................................... 19

Laffitte v. Robert Half Int’l, 1 Cal.5th 480 (2016) ........................................................................................................ passim

Lloyd v. Navy Fed. Credit Union, Case No. 17-CV-1280-BAS-RBB, 2019 WL 2269958 (S.D. Cal. May 28, 2019) ............. 20

Lopez v. Mgmt. & Training Corp., Case No. 17CV1624 JM(RBM), 2020 WL 1911571 (S.D. Cal. Apr. 20, 2020) ......... 20, 23

Makaeff v. Trump Univ., L.L.C., Case No. 10CV0940 GPC(WVG), 2015 WL 1579000 (S.D. Cal. Apr. 9, 2015) ............. 20

Mangold v. Cal. Pub. Utilities Comm’n, 67 F.3d 1470 (9th Cir. 1995) .................................................................................................... 8

Mauss v. NuVasive, Inc., 2018 WL 6421623 (S.D. Cal. Dec. 6, 2018) ................................................................... 12, 18

McGrath v. Wyndham Resort Development Corporation, Case No. 15CV1631 JM(KSC), 2018 WL 637858 (S.D. Cal. Jan. 30, 2018) ............ passim

Pan v. Qualcomm Incorporated, 2017 WL 3252212 (S.D. Cal. July 31, 2017) ......................................................................... 21

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989) ........................................................................................... 10, 11

Reed v. 1-800 Contacts, Inc., 2014 WL 29011 (S.D. Cal. Jan. 2, 2014) .................................................................. 21, 22, 23

Rodriguez v. Disner, 688 F.3d 645 (9th Cir. 2012) .................................................................................................... 8

Rodriguez v. W. Publ’g Corp., 563 F.3d 948 (9th Cir. 2009) .................................................................................................. 22


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iii MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR



Page(s)

Cases (cont.)

Ruiz v. XPO Last Mile, Inc., No. 5-CV-2125 JLS (KSC), 2017 WL 6513962 (S.D. Cal. Dec. 20, 2017) ....................... 10

Russell v. EF Int’l Language Schools, Inc., 2016 WL 6304628 (Cal. App. 2016) ........................................................................................ 8

Salazar ex rel. Salazar v. D.C., 809 F.3d 58 (D.C. Cir. 2015) .................................................................................................. 19

Singer v. Becton Dickinson & Co., Case No. 08-CV-821-IEG (BLM), 2010 WL 2196104 (S.D. Cal. June 1, 2010) ............. 12

Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301 (9th Cir. 1990) ......................................................................................... 10, 11

Smith v. CRST Van Expedited, Inc., 2013 WL 163293 (S.D. Cal. 2013) ........................................................................................... 8

Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003) ....................................................................................... 9, 16, 22

Steiner v. American Broadcasting Co., 248 Fed. App’x. 780 (9th Cir. 2007) ...................................................................................... 21

Taylor v. Shippers Transp. Express, Inc., Case No. CV1302092 BRO(PLAx), 2015 WL 12658458 (S.D. Cal. Jan. 30, 2018) ........ 12

Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002) ........................................................................................ passim

Williams v. Costco Wholesale Corp., 2010 WL 2721452 (S.D. Cal. 2010) ....................................................................................... 12

Yamada v. Nobel Biocare Holding AG, 825 F.3d 536 (9th Cir. 2016) .................................................................................................. 19

Rules

Fed. R. Civ. P. 12(b)(6) .................................................................................................................. 4

Other Authorities

An Empirical Study of Class Action Settlements and Their Fee Award, 7 J. Empirical Legal Stud. 811 (2010) ................................................................................ 9, 10

Due Process and the Lodestar Method: You Can't Get There from Here, 74 Tul. L. Rev. 1809 (2000) .................................................................................................... 10


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iv MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR



Page(s)

Other Authorities (cont.)

Fitzpatrick, 7 J. Empirical Legal Stud. ....................................................................................................... 17

Manual for Complex Litigation § 14.121 ........................................................................... 10, 11


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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF UNOPPOSED MOTION FOR


1. INTRODUCTION

Plaintiffs, Jacob Figueroa and Mary Jackson (“Plaintiffs” or “Class Representatives”),

through Class Counsel1, respectfully submit this Memorandum of Points and Authorities

in Support of their Unopposed Motion for Attorneys’ Fees and Reimbursement of Costs

and Service Awards.

As detailed in Plaintiffs’ Motion for Preliminary Approval (Dkt. No. 79), after

conducting discovery, and after Plaintiffs prevailed against a motion to dismiss and a motion

for partial summary judgment filed by Capital One, the Parties reached a first-of-its-kind

settlement of these novel claims regarding the assessment of small ATM fees on consumer

checking accounts. The Parties agreed to settle the Action for a $13,000,000 cash common

fund, which represents approximately 33% of best-day damages had the Court certified a

nationwide class and had Plaintiffs prevailed at trial. The Settlement fund will automatically

be distributed to Settlement Class Members without the requirement for a claims process

or reversion to Capital One. Capital One also agreed to introduce industry-leading

disclosures that, for the first time, clearly disclose the circumstances in which out of network

(“OON”) ATM Balance Inquiry Fees will be assessed. As another important Settlement

benefit, Capital One agreed to significantly reduce notice and administration costs

associated with the Settlement by conducting a laborious review of its banking data in order

to identify Settlement Class Members and relevant fees—difficult data analysis work that is

commonly performed by experts for plaintiffs, at great expense to the settlement class.

Class Counsel obtained these benefits for the Settlement Class with hard work and

creativity, investing hundreds and hundreds of hours of time in this matter. Before this

Action was filed, no enforcement agency, no consumer protection group, and no other

court had addressed the assessment of multiple OON Fees during a single ATM use, a

practice that Plaintiffs alleged slowly and almost imperceptibly skims from consumers’

accounts. With no precedent to rely on, Class Counsel faced significant risk in filing this

1 Unless otherwise defined herein, all capitalized terms have the same meaning as those found in the Settlement Agreement and Release (Dkt. No. 75).


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Action. Without their hard work, and that of the Class Representatives, Capital One’s

alleged practices would have remained in the dark, without comment or notice. In the

litigation and in the Settlement, Plaintiffs sought key improvements to Capital One’s

disclosures—relief that Class Counsel obtained here. As result of the Settlement, Capital

One’s OON Fee practices are no longer shrouded in darkness; now consumers, armed with

full information about Capital One’s practice, can choose with whom to bank in a more fair

marketplace for banking services.

Consistent with standard class action practice and procedure, and as stated in the

Notices to the Settlement Class, Class Counsel respectfully requests a fee award of 30% of

the common fund created for the benefit of the Settlement Class Members, for a total

amount of $3,900,000.00, in addition to the reasonable costs of litigating this matter. Capital

One does not oppose Plaintiffs’ request.

Class Counsel’s requested fee is reasonable under both California and Ninth Circuit

standards. The California Supreme Court recently confirmed that a trial court may apply

the “percentage-of-the-fund” method in awarding fees in common fund cases such as this

one, and that 33.33% of a fund is reasonable. Laffitte v. Robert Half Int’l, 1 Cal.5th 480, 503

(2016). The Ninth Circuit similarly approves of the percentage-of-the-fund method, and

while it uses a 25% benchmark as a starting point, it recognizes that district courts may

adjust this percentage upward or downward based on the unique circumstances of any

case—including the result achieved, the risks of litigation, and the skill and experience of

counsel. These factors have often led district courts in this Circuit—including this Court—

to award fees of 30% of the fund or higher.

Here, Class Counsel has litigated this case since April 2018, surviving a motion to

dismiss and a partial motion for summary judgment; defending against another motion to

dismiss; and performing much of the discovery needed to prevail at class certification and

at trial. Class Counsel took this case on a pure contingency basis and paid all the costs, with

no guarantee that they would ever be reimbursed or paid for their time. Nor did this class

action have a clear path to success. This case was based on a completely novel theory of


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liability. Indeed, this Settlement is the first of its kind in a case challenging OON Fees.

Given the novel and complex nature of this case, the Settlement benefits described above

are an outstanding result for the Settlement Class.

Though not required under either California law or Ninth Circuit precedent, a

lodestar cross-check confirms the reasonableness of Class Counsel’s fee request. Class

Counsel spent 1,864.2 hours in this case. When multiplied by their reasonable hourly rates,

the lodestar is $1,164,254.50. The requested fee, then, yields a multiplier of 3.35 on this

lodestar, which is well within the acceptable range of multipliers in California and the Ninth

Circuit. In addition, Class Counsel request reimbursement for costs and fees reasonably

expended during the litigation, as reflected in their declarations. Class Counsel also request

a Service Award for the Class Representatives for the efforts.

1. HISTORY OF CLASS COUNSEL’S WORK IN THIS LITIGATION

Before this Action was filed, Class Counsel researched and investigated the practice

at issue in this case: the assessment of multiple, small bank fees on a single ATM use. See

Declaration of Jeffrey Kaliel in support of the instant motion, filed concurrently herewith

(“Kaliel Decl.”) at ¶ 2. With virtually no literature on the topic, much less prior cases on it,

the research effort required intensive legal research, discussions with the Class

Representatives, and expert consultation to understand the operation of ATM networks

and bank fee practices. Id. After review of hundreds of pages of documents, including

bank statements provided by the Class Representatives, and after further research into

publicly available information regarding Capital One’s practices, disclosures, and

statements, Class Counsel began drafting the Complaint in this matter. Id.

In April 2018, Plaintiffs filed this Action, alleging that Capital One breaches its

agreement with consumers, as well as violates the duty of good faith and fair dealing by

assessing two OON Fees on balance inquiries undertaken with a cash withdrawal at out-of-

network ATMs. Id. at ¶3. Plaintiffs also alleged that Capital One had improperly assessed

OON Fees on in-network ATM transactions. Class Counsel then performed informal

discovery with Defendant, learning non-public facts regarding the allegations. Id.. Plaintiffs


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then filed an Amended Complaint on May 30, 2018 (Dkt. No. 6), which removed the

allegations regarding fees at in-network ATMs.

On July 13, 2018, Capital One moved to dismiss the Amended Complaint under Fed.

R. Civ. P. 12(b)(6). Class Counsel opposed that motion, which sought dismissal of the

Action in its entirety. Because briefing on that motion indicated that the Parties had

different views as to the operative contract documents, the Court denied the motion and

ordered the Parties to engage in limited discovery to determine which documents actually

formed the contract. Kaliel Decl. at ¶ 4; Dkt. No. 17.

Class Counsel then met and conferred with Defendant regarding discovery and

promulgated targeted discovery requests. Kaliel Decl. at ¶5. The Parties had significant

disagreements regarding the proper scope of discovery, but ultimately worked through the

issues without Court intervention. Id. Capital One produced hundreds of pages of

documents regarding not just the disclosures at issue, but the bank-wide procedures and

processes used to disseminate such disclosures, including how such disclosures are

distributed during the account-opening process. Id. Class Counsel then noticed and took a

Rule 30(b)(6) deposition of Capital One’s corporate representative in McLean, Virginia. Id.

As part of this process, Class Counsel also responded to discovery requests

promulgated by Capital One on the Plaintiffs. Id. at ¶ 6. Class Counsel also defended the

depositions of both Plaintiffs in Los Angeles, California. Id.

Additionally, the Parties negotiated and agreed to a stipulated protective order, which

the Court entered on February 11, 2019. Dkt. No. 25.

The Parties also participated in an Early Neutral Evaluation (“ENE”) and Case

Management Conference with Magistrate Judge Skomal on June 5, 2019. Dkt. No. 41. Prior

to the ENE, Plaintiffs prepared and submitted a comprehensive ENE Brief to Judge

Skomal on March 20, 2019. Kaliel Decl. at ¶ 8. In preparing the ENE, Class Counsel

expended significant effort researching numerous issues relating to an appropriate

settlement proposal for this unique case. Id. Class Counsel also submitted a supplemental

ENE brief on May 24, 2019, to apprise Judge Skomal of recent relevant authority that


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affected the settlement value of the case. Id. The ENE, though unsuccessful, helped both

Parties understand the strengths and weaknesses of their case. Id.

Based upon the record that was built during the discovery period ordered by the

Court, Capital One then moved for partial summary judgment on Plaintiffs’ breach of

contract claim. Dkt. No. 38. Class Counsel opposed the motion, drawing on the extensive

on the record it had created during discovery. The Court issued an order denying the partial

motion for summary judgment on October 7, 2019. Dkt. No. 56.

The Court then allowed Capital One to re-file its motion to dismiss (Dkt. No. 57)

with respect to Plaintiffs’ breach of good faith and fair dealing, conversion, unjust

enrichment, violation of California’s UCL, violation of the California’s CLRA, and violation

of the New York Consumer Protection Act claims—which had not been subject to the

summary judgment motion. Plaintiffs opposed (Dkt. No. 59), and that motion remained

pending at the time of Settlement.

After the summary judgment ruling, the Parties engaged in discovery designed to

provide Plaintiffs the necessary information to move for class certification and to prevail at

trial. Kaliel Decl. at ¶11. Plaintiffs promulgated discovery requests targeted at understanding

Capital One’s fee practices throughout the Class Period; the motivations behind those fee

practices; Capital One’s understanding of key contractual terms; customers’ understanding

of key contractual terms; and classwide damages. Id. As part of their discovery efforts,

Plaintiffs also drafted and negotiated a protocol for the production of Electronically Stored

Information (“ESI”), which the Court entered on February 21, 2020. Dkt. No. 70. Plaintiffs

also drafted proposed ESI search terms, and the Parties met and conferred regarding the

appropriate custodians. Id..

The Parties met and conferred numerous times regarding Plaintiffs’ discovery

requests, the ESI Protocol, and the ESI search terms. Despite significant disagreements,

the Parties again worked together to avoid judicial intervention. Id. at ¶ 12.

Class Counsel also spent significant time seeking the data necessary to evaluate

classwide damages and class membership in this Action. Id. at ¶ 13. Because of the novelty


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of the case, there was no model to work from. Class Counsel spent significant time

evaluating what information would be critical in determining class membership and what

data would be necessary to calculate each Settlement Class Member’s respective damages.

Class Counsel informally consulted with an expert regarding which data fields would be

necessary for the analysis. Id. Over the course of many weeks, Class Counsel worked with

Capital One to ensure the correct data fields were evaluated. Id.

Plaintiffs also each responded to Capital One’s Second Set of Requests for

Production and Second Set of Interrogatories directed to Plaintiffs. Kaliel Decl. at ¶ 14.

Plaintiffs also each agreed to sit for an additional deposition, and Class Counsel began

working with Plaintiffs to prepare for that additional deposition. Id.

Simultaneously, the Parties set a mediation for March 4, 2020, and engaged in

discovery to allow that mediation to be productive. Class Counsel drafted a mediation

statement which carefully outlined the legal issues and the strengths and weaknesses of the

various claims. Id. at ¶ 15. On March 4, 2020, the Parties mediated the Action in Los

Angeles, California with Bruce Friedman, Esq., a well-respected neutral. Id. With

Mr. Friedman’s assistance, the case settled at the conclusion of a full-day mediation when

the Parties signed a Term Sheet agreeing to the material terms of the Settlement. Id. Class

Counsel entered the mediation fully informed of the merits of Settlement Class Members’

claims and negotiated the proposed Settlement while zealously advancing the position of

Plaintiffs and Settlement Class Members and being fully prepared to continue to litigate

rather than accept a settlement that was not in the best interest of Plaintiffs and the

Settlement Class. Id.

On March 6, 2020, the Parties filed a Notice of Settlement. Dkt. No. 72.

On April 17, 2020, Plaintiffs took the deposition of a Capital One corporate

representative to confirm the validity of the Parties’ damages analysis, the precise contours

of the transactional and fee data maintained by Defendant, and data maintenance issues that

would impact Class Member identification and notice. Kaliel Decl. at ¶ 17.


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Thereafter, the Parties negotiated a formal settlement agreement. Class Counsel

spent considerable effort communicating with Counsel for Capital One. Id. at ¶ 18. The

negotiations were adversarial and required numerous telephone calls and emails. Id. After

several weeks of negotiations, the Parties were able to reach agreement on the Settlement

terms. Id. On May 8, 2020, the Parties signed the Settlement Agreement. Id.

Class Counsel also oversaw the process for designing a cost-effective notice and

administration plan. Notice in this Action was especially complicated because the

Settlement Class consists of hundreds of thousands of class members, who incurred OON

Fees over a ten-year period. Class Counsel then worked with the notice administrator to

develop an efficient and effective notice plan, leveraging the significant benefits already

provided by Capital One in the Settlement Agreement, including the laborious data analysis

discussed above. Id. at ¶ 19. Class Counsel also devised detailed notices. Id.

Thereafter, Class Counsel drafted and filed an Unopposed Motion for Preliminary

Approval of the class action Settlement on May 8, 2020 (Dkt. No. 74). Class Counsel

attended the telephonic hearing on the Motion for Preliminary Approval on June 8, 2020.

Dkt. No. 78. Class Counsel then worked to address the concerns raised by the Court at the

hearing, including by engaging in a further detailed and intensive review of each aspect of

the notice plan to identify cost savings opportunities. As part of this process, Class Counsel

oversaw a bidding process, to make doubly sure that it was achieving the most cost-effective

plan. Class Counsel filed an Amended Motion for Preliminary Approval two days later, on

June 10, 2020. The Court granted preliminary approval on June 16, 2020. Dkt. No. 80.

Since that time, Class Counsel has worked with the notice administrator to ensure

notice was effectuated properly. Kaliel Decl. at ¶ 21.

To accomplish the work described above, Class Counsel drafted other court filings

such as proposed orders, notices of motion, and declarations in support of various

memoranda. Id. at ¶ 22. Throughout the litigation, Class Counsel coordinated internally to

formulate case strategy and divide work. Id. at ¶ 23.


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2. LEGAL ARGUMENT

A. CLASS COUNSEL’S FEE REQUEST IS REASONABLE UNDER CALIFORNIA LAW AND NINTH CIRCUIT PRECEDENT

1. California Law

“California law governs this fee application because where state law claims

predominate, state law applies to determine the right to fees and the method of calculating

them.” Beaver v. Tarsadia Hotels, No. 11-CV-01842-GPC-KSC, 2017 WL 4310707, at *9

(S.D. Cal. Sept. 28, 2017) (citing Mangold v. Cal. Pub. Utilities Comm’n, 67 F.3d 1470, 1478

(9th Cir. 1995)); c.f. Rodriguez v. Disner, 688 F.3d 645, 653 n.6 (9th Cir. 2012) (“If … we were

exercising our diversity jurisdiction, state law would control whether an attorney is entitled

to fees and the method of calculating such fees”).

The California Supreme Court recently confirmed that in common fund cases, a trial

court may award class counsel a fee out of that fund by choosing an appropriate percentage

of the fund. Laffitte, 1 Cal.5th at 503. While recognizing that some courts have employed a

benchmark percentage, the Court chose not to adopt one. Id. at 495.

Here, Class Counsel’s fee request of 30% of the common fund is below the range of

percentages that California courts award in class actions. Indeed, California courts routinely

award attorneys’ fees of one-third of the common fund. See, e.g., Laffitte, 1 Cal.5th at 506

(affirming a fee award of one-third of the gross settlement amount because the $19 million

settlement achieved in the face of the numerous risks—both those overcome and those still

looming at the time of settlement—supported the fee); Chavez v. Netflix, Inc., 162

Cal.App.4th 43, 66 n.11 (2008) (“Empirical studies show that, regardless whether the

percentage method or the lodestar method is used, fee awards in class actions average

around one-third of the recovery”); Russell v. EF Int’l Language Schools, Inc., 2016 WL

6304628, at *9 (Cal. App. 2016) (affirming a fee award of one-third of the settlement fund).

Indeed, “[u]nder the percentage method, California has recognized that most fee awards

based on either a lodestar or percentage calculation are 33 percent …” Smith v. CRST Van

Expedited, Inc., 2013 WL 163293, at *5 (S.D. Cal. 2013).


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The factors supporting the fee in Laffitte apply with equal force here. This case, like

Laffitte, involved great risk given the novel legal issues involved. The Settlement is the first

of its kind in a case involving OON Balance Inquiry Fees. Class Counsel researched and

developed the legal theory with no direct legal precedent upon which to base their claims.

Class Counsel took this case entirely on contingency, investing hundreds of hours of their

time and paying out-of-pocket expenses with no guarantee of recovery. It was highly

uncertain whether Class Counsel’s efforts would been successful, both on the merits and in

seeking to certify a nationwide class. Achieving a $13 million cash settlement on behalf of

a nationwide class in the face of these risks justifies the requested 30% fee.

A fee award of 30% of the common fund is also below the range of fees award in class

action settlements in California. See, e.g., Hall v. Cinema 7, Inc., Case No. CGC-02-409105

(San Francisco Sup. Ct. July 16, 2008) (53% fee awarded in action where class action settled

after plaintiffs prevailed in liability phase of trial); Rundberg v. Intrawest Napa Development

Company, Case No. 26-56986 (Napa County Sup. Ct. Jan. 15, 2014) (Hon. Bonnie Sabraw,

Ret. presiding as Judicial Referee) (40% fee approved); Int’l Brotherhood of Elec. Workers Local

234 v. The Ryan Co., Inc., Case No. M87384 (Monterey Sup. Ct. Apr. 8, 2011) (40% fee

approved). These cases demonstrate that the requested fee of 30% is below the market for

contingency fees in California.

2. Ninth Circuit Precedent

a. The Percentage-of-the-Fund Method is Appropriate.

Class Counsel’s requested fee is also reasonable under Ninth Circuit law. The

Supreme Court and the Ninth Circuit have recognized that “a litigant or a lawyer who

recovers a common fund for the benefit of persons other than himself or his client is

entitled to a reasonable attorney’s fee from the fund as whole.” Staton v. Boeing, 327 F.3d

938, 967 (9th Cir. 2003) (quoting Boeing Co., 444 U.S. at 478).

There are two approaches for determining attorney’s fees from a common fund in

class action settlements: the percentage-of-the-settlement approach or the lodestar

approach. Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee


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Award, 7 J. Empirical Legal Stud. 811, 832 (2010). When employing the percentage-of-the-

settlement approach, the district court picks a percentage of the settlement it thinks is

reasonable based on a number of factors. Conversely, in the lodestar approach, the court

calculates the fee based on the number of hours class counsel worked multiplied by their

hourly rate and a discretionary multiplier. Id.

“[T]he percentage-of-the-fund calculation is preferable to the lodestar calculation.”

E.g., Ruiz v. XPO Last Mile, Inc., No. 5-CV-2125 JLS (KSC), 2017 WL 6513962, at *6 (S.D.

Cal. Dec. 20, 2017). Indeed, an attorneys’ fees award as a percentage of a common fund

established by a class action settlement is well-established in Ninth Circuit jurisprudence

and is eminently appropriate here. See Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th

Cir. 2002); Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.

1990); Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989); In re Pacific

Enterprises Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995). Class Counsel respectfully requests

that the Court employ the percentage method, with the understanding that a lodestar cross-

check would likewise support the reasonableness of the requested fee.

The percentage-of-the-fund method is the superior method for awarding attorneys’

fees to Class Counsel because, besides being onerous and difficult to perform, the lodestar

method does not align the interests of Class Counsel with those of the Settlement Class.

Rewarding results is the primary function of the percentage of the fund approach. Results-

based pay helps “ensure faithful representation” of the class by “tether[ing] the value of an

attorneys’ fees award to the value of the class recovery.” In re HP Inkjet Printer Litig., 716

F.3d 1173, 1178–79 (9th Cir. 2013). “Result-based compensation provides a strong

foundation for trust” by “giving the lawyer an interest in making the right call.” Charles

Silver, Due Process and the Lodestar Method: You Can't Get There from Here, 74 Tul. L. Rev. 1809,

1817–18 (2000). “A lawyer who stands to receive a share of every additional dollar paid to

a client always has some incentive to prefer more to less.” Id. Recognizing that, “the vast

majority of courts of appeals now permit or direct district courts to use the percentage-fee

method in common-fund cases.” Manual for Complex Litigation § 14.121, at 187. Under


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the lodestar method, Class Counsel’s recovery would not depend on how much the Class

recovers via the Settlement, but, rather, on how many hours Class Counsel spent. Vizcaino,

290 F.3d at 1050 & n.5; see also Manual for Complex Litigation § 14.121, at 188 (“[T]he

lodestar creates inherent incentive to prolong the litigation until sufficient hours have been

expended.”). In contrast, applying the percentage-of-the-fund method better aligns Class

Counsel’s interests with the Settlement Class’s interests.

When selecting the percentage of the common fund to award to Class Counsel,

courts in the Ninth Circuit use 25% as the “‘benchmark’ percentage for the fee award,”

which may be adjusted upward or downward to account for the circumstances of the case.

Paul, Johnson, Alston & Hunt, 886 F.2d at 272; Six Mexican Workers, 904 F.2d at 1311. In

evaluating whether an adjustment is appropriate, courts consider certain factors, including:

The results achieved by class counsel;

The length the case has transpired;

The complexity of the case;

The risks the involved in the case;

The percentages awarded in other class action cases;

Any non-monetary benefits obtained by class counsel;

The percentages in standard contingency-fee agreements in similar individual

cases; and

Class counsel’s lodestar.

See Six (6) Mexican Workers, 904 F.2d at 1311. Each factor supports the 30% requested by

Class Counsel.

b. The Relevant Factors Favor an Upward Departure from the Ninth Circuit Benchmark.

Class Counsel requests a fee equal to 30% of the amount provided in the common

fund—the latter which fails to capture the nonmonetary benefits provided in the Settlement

by Capital One, including the adoption of industry-leading disclosures on OON Fees and

the performance of significant data analysis work that significantly reduced notice and


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administration costs. If those benefits could be calculated precisely, Class Counsel’s fee

request would certainly be far less than 30%.

As this Court has recognized, “[I]n most common fund cases, the award exceeds [the

25%] benchmark.” Beaver, 2017 WL 4310707, at *10 (quoting In re Omnivision Tech., Inc., 559

F. Supp. 2d 1036, 1047 (N.D. Cal. 2008)). Indeed, courts in this circuit routinely award

attorneys’ fees that exceed the 25% benchmark. See id. (awarding 33% fee of $51 million

common fund); see also McGrath v. Wyndham Resort Development Corporation, 2018 WL 637858

(S.D. Cal. Jan. 30, 2018 (J. Miller) (awarding 33% of common fund); Mauss v. NuVasive, Inc.,

2018 WL 6421623 (S.D. Cal. Dec. 6, 2018) (J. Miller) (awarding 30% of $7.9 million

common fund); Singer v. Becton Dickinson & Co., Case No. 08-CV-821-IEG (BLM), 2010 WL

2196104, at *8 (S.D. Cal. June 1, 2010) (awarding 33% of the common fund); Taylor, 2015

WL 12658458, at *17 (holding that 33% was reasonable given the result, the risk, and

counsel’s time investment); Campbell, 2016 WL 6662719, at *10 (approving a fee of one-

third of the common fund).

The Ninth Circuit has also upheld awards of one-third of a common fund. See, e.g.,

In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 460 (9th Cir. 2000) (affirming an award of one-

third of total recovery); In re Pacific Enterprises Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995)

(affirming an award of one-third of a $12 million common fund); Williams v. Costco Wholesale

Corp., 2010 WL 2721452, at *6 (S.D. Cal. 2010) (noting the typical range of attorneys’ fees

requests are between 20 percent and 50 percent and citing Birch v. Office Depot, Inc., Case

No. 06 CV 1690 DMS (S.D. Cal. Sept. 28, 2007) (Dkt. No. 48) (awarding a 40% fee) and

Rippee v. Boston Mkt. Corp., Case No. 05 CV 1359 BTM (S.D. Cal. Oct. 10, 2006) (Dkt.

No. 69) (awarding a 40% fee)).

The Results Achieved by Class Counsel

When determining the reasonableness of the fee request, the results achieved by

Class Counsel should be of paramount concern to the Court. See Vizcaino, 290 F.3d at 1048

(considering the “exceptional results for the class”). The benefits achieved in this common

fund Settlement are significant. Capital One has agreed to a Settlement that has a value of


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$13,000,000.00 to Settlement Class Members, which represents approximately 33% of best-

day damages had the Court certified a nationwide class and had Plaintiffs succeeded at trial.

Class Counsel obtained these benefits for the Settlement Class with hard work and

creativity. Before this Action was filed, no other cases, no government agencies, and no

consumer rights groups had addressed the assessment of multiple OON Fees during a

single ATM use. Without the hard work of Class Counsel, that $13,000,000.00 would have

remained lost forever.

Further, the fact that Capital One has agreed to change its disclosures will result in

additional savings for the Settlement Class and other customers who will now participate in

a more free and more fair marketplace for banking services. Even if Plaintiffs prevailed at

trial, as private litigants Plaintiffs would have been unable to demand that Capital One stop

charging multiple OON Fees.2 By agreeing to modify its disclosures, Capital One has agreed

to the only injunctive relief Plaintiffs would have been able to obtain had they prevailed at

trial. In addition, as another important Settlement benefit, Capital One agreed to

significantly reduce notice and Administrative Costs associated with the Settlement by

conducting a laborious review of its banking data in order to identify Settlement Class

Members and relevant fees—difficult data analysis work that is commonly performed by

experts for plaintiffs, at a cost of hundreds of thousands of dollars.

The benefits—which together far exceed a value of $13 million—are excellent,

especially considering the legal hurdles Plaintiffs faced. Settlement Class Members will

receive their monetary distributions without the need to submit a claim. The amount each

Settlement Class Member will recover will be paid by check or by direct deposit Settlement

Class Members’ bank accounts. In short, the Settlement provides substantial benefits to

Settlement Class Members.

2 Such relief likely would have been preempted by the National Bank Act. See generally Bank of Am. v. City & Cty. of San Francisco, 309 F.3d 551, 564 (9th Cir. 2002), as amended on denial of reh’g and reh’g en banc (Dec. 20, 2002) (National Bank Act preempts conflicting state regulations on the ability of banks to collect ATM fees).


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The risks and uncertainty attendant in this litigation were significant. Though the

Court had previously denied a Motion to Dismiss and Partial Motion for Summary

Judgment, a Partial Motion to Dismiss remained pending and Plaintiffs faced the risk that

this Court may have ultimately granted summary judgment to Capital One or deny the

eventual motion for class certification. As discussed above, this Action was the first of its

kind and there was no road map for taking it to trial. Thus, recovery was far from certain,

and there was a real risk that there would be no recovery had Plaintiffs continued to litigate

the Action.

The Risks Assumed by Class Counsel and the Complexity of the Case Favor the Fee Award Sought.

Class Counsel assumed a real risk in taking on this complex case. These two factors

are conveniently addressed in tandem, and hew closely with the results achieved by Class

Counsel discussed above. Indeed, just determining what the alleged misconduct was took

a great deal of sleuthing and investigation—even before the legal theories of the case could

be developed. Class Counsel took the case on a contingency basis, and invested substantial

time, effort and money with no guarantee of any recovery. The case involved novel,

complicated issues and unsettled law and no case directly on point to serve as a guidepost.

With no precedent to rely on, Class Counsel faced significant risk in filing this Action and

faced an even larger risk at class certification and trial.

At the time of Settlement, significant questions remained in the litigation. The Court

had yet to resolve the pending motion to dismiss and Plaintiffs had yet to file a motion for

class certification. There was a significant risk the Court would deny a motion for class

certification of the nationwide class sought. Had Settlement not been reached by the Parties,

there is a very real possibility that the entire case could have been wiped out by an adverse

ruling on a renewed motion for summary judgment, class certification, or from the Ninth

Circuit even if this Court ruled in Plaintiffs’ favor. Class Counsel’s success in the face of all

this uncertainty should be a significant and primary factor when evaluating the

reasonableness of the fee requested. Indeed, Vizcaino recognized that “[r]isk is a relevant


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circumstance” in considering an attorneys’ fee award. Vizcaino, 290 F.3d at 1048. The same

should hold true here.

The Case Settled Only After Class Counsel Had Attained Maximum Leverage and Sufficient Information to Value the Possible Relief.

This Action has been pending for approximately two years and the Parties had

completed sufficient work and legal and factual analysis occurred to allow Class Counsel to

determine the benefits of resolving the case to give the Settlement Class immediate relief.

Class Counsel had briefed two Motions to Dismiss, succeeded on a Motion for Partial

Summary Judgment, had completed Phase I discovery and were in the midst of conducting

Phase II discovery when the case settled.

Discovery in this Action was conducted in two phases. In Phase I, the Parties

explored which contract documents governed Plaintiffs’ claims. In Phase I, Capital One

produced hundreds of pages of documents regarding not just the disclosures at issue, but

the bank-wide procedures and processes used to disseminate such disclosures, including

how such disclosures are distributed during the account-opening process. Capital One’s

corporate representative also sat for a deposition on these topics. Additionally, both

Plaintiffs were deposed and also responded to written discovery requests. Phase I had been

completed at the time of Settlement.

The Parties were in the midst of Phase II discovery at the time of Settlement. In

Phase II, Plaintiffs promulgated discovery requests targeted at understanding Capital One’s

fee practices throughout the class period; the motivations behind those fee practices; Capital

One’s understanding of key contractual terms; customers’ understanding of key contractual

terms; and classwide damages. Prior to Settlement, Class Counsel spent a significant amount

of time analyzing classwide data produced by Capital One, in consultation with an expert,

in order to ascertain class membership and class damages.

The length of this litigation therefore further supports the requested fee award. Class

Counsel litigated this Action for two years and conducted significant motion practice and


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discovery. No further litigation was needed here to uncover information sufficient to

understand the value of the case and weigh the risk of continued litigation.

Armed with extensive experience litigating similar bank fee and other class action

cases (see generally Kaliel Decl. and Declaration of Jeffrey Kaliel in support of the instant

motion, filed concurrently herewith (“Carpenter Decl.”)), Class Counsel’s collective

wisdom was to make every reasonable effort to achieve a settlement taking into account the

risks that they faced ahead, while extracting as much value out of the settlement. Prior to

and during the litigation, Class Counsel engaged in an extensive factual investigation of the

class claims, actively and diligently analyzing the strengths and weaknesses of the case. With

the risks of a renewed motion for summary judgment, denial of class certification, or Ninth

Circuit reversal from a favorable ruling, Class Counsel took the opportunity to settle the

Action and extract the maximum settlement value. Class Counsel should be rewarded for

this effort and result.

The Non-Monetary Benefits Obtained by Class Counsel.

The above-benchmark award sought here is supported by the Ninth Circuit’s long-

standing recognition that non-monetary benefits for a class obtained by Class Counsel is a

laudable consideration in determining the percentage of the fund. See Pacific Enters. Securities

Litig., 47 F.3d at 379; Vizcaino, 290 F.3d at 1049; Staton, 327 F.3d at 946. While 89% of class

action settlement included cash relief, only 23% conferred injunctive or declaratory relief.

Fitzpatrick, 7 J. Empirical Legal Stud. At 824. If courts do not depart upward when class

counsel secures such [non-monetary] relief, then class action lawyers will have no incentive

to fight to obtain these benefits—even though these benefits can be arguably as valuable to

the class as the cash. That is in addition to the significant work Capital One agreed to

undertake internally in order to reduce notice and administration costs of the Settlement—

costs that would otherwise have been borne by the Settlement Class.

As discussed above, preemption under the National Banking Act, under which

Capital One is regulated, prevents private litigants like Plaintiffs from forcing a bank to


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change its fee practices, even if they had succeeded at trial. See supra at n. 1. Private litigants

can, however, demand and win orders requiring the truthful disclosure of a bank’s fee

practices. That is what Class Counsel achieved here and that relief is important in its own

right in that it ensures a truthful and transparent marketplace.

Despite the fact that it may be difficult to precisely pinpoint the exact dollar amount

associated with these benefits, Class Counsel requests a mere 5% upward departure from

the benchmark partially to account for that benefit. See Vizcaino, 290 F.3d at 1049.

The Percentages in Standard Contingency-Fee Agreements in Similar Individual Cases.

The attorneys’ fee requested is lower than what would be requested in individual

contingent fee litigation, which generally start at one-third of any recovery and frequently

go up to 40% or more. Fitzpatrick, 7 J. Empirical Legal Stud. at 830 (the fees generally

awarded to class action lawyers are lower than what “contingency-fee lawyers receive in

individual litigation, which are usually at least 33 percent.”) (emphasis added);

The retention agreements with the Plaintiffs in this case are contingent fee

agreements. Kaliel Decl. at ¶ 35. No payment of attorneys’ fees would occur in this case but

for a fee award in an individual or class settlement. Id. Consistent with standard-contingent

fee agreements in individual cases, were the case to settle on an individual basis, Class

Counsel agreed to set its fees at 33.33% of any recovery. Id. Public interest is served by

rewarding attorneys who assume representation on a contingent basis with an enhanced fee

to compensate them for the risk that might be paid nothing at all for their work. This

practice encourages attorneys to assume this risk and allows plaintiffs who would otherwise

not be able to hire an attorney to obtain competent counsel. In re Washington Pub. Power

Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). Class Counsel’s contingent

representation of Plaintiffs and the Settlement Class supports the 30% award requested.


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The Requested Fee Is Justified by Awards in Similar Cases.

The most common fee percentages awarded in common fund class actions are 25%,

30%, and 33%. Fitzpatrick, 7 J. Empirical Legal Stud. At 833 (Figure 6). Here, the requested

fee, 30% of the Settlement Value, is clearly within the range of acceptable attorneys’ fees in

similar cases. Indeed, in other bank fee litigation the benchmark has been routinely

exceeded. See Ex. B to Kaliel Decl. (providing a chart of awards in similar bank fee cases).

This comparison supports Class Counsel’s request for an award of 30% of the class fund.

Further, the fee request is well in line with attorneys’ fee awards granted by this Court

in the past in common fund cases. For example, in Mauss, 2018 WL 6421623, at *6

(Miller, J.), the Court awarded 30% of a $7,900,000 common fund in a securities case based

on the fact that (1) class counsel in that case obtained 23 to 34 percent of the maximum

possible damages for the class, which amounted to significant relief for the class; (2) class

counsel took the case on contingency, which was a significant risk; and (3) the amount

requested was “in line with awards in similar cases.” All three factors support an award of

30% of the fund in this case, too. See id. Here, Class Counsel obtained approximately 33% of

best-day damages for the Class—an excellent result considering the Settlement was the first

of its kind. Class Counsel took this novel case entirely on contingency and risked received

nothing had they lost. The requested fee is also in line with awards in similar bank fee cases,

as discussed above. Thus, for the same reasons a 30% fee was warranted in Mauss, it is

warranted here, too. See also McGrath, 2018 WL 637858 (J. Miller) (awarding 33% of

common fund).

Considering the aforementioned case law, an award of 30% of the $13,000,000.00 is

reasonable.

c. A Lodestar Cross-Check Supports a 30% Award.

Although the Court is not required to perform a lodestar cross-check in evaluating

the percentage of the fund to be awarded, here, the cross-check fully supports Class

Counsel’s fee request. In re Google Referrer Header Privacy Litig., 869 F.3d 737 (9th Cir. 2017)


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(district court did but was not required to do a lodestar cross-check); Yamada v. Nobel Biocare

Holding AG, 825 F.3d 536, 547 (9th Cir. 2016) (“a cross-check is entirely discretionary”).

Recognizing that this Court may choose to conduct a lodestar cross-check, Class

Counsel has provided the Court with the information needed to do so. The first step is to

determine the lodestar amount, multiplying the Class Counsel’s total number of hours

expended by their reasonable hourly rates. E.g., Bluetooth, 654 F.3d at 941-42. The second

step requires the Court to consider a multiplier to add or subtract from the lodestar. See id.;

Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). Class Counsel’s declarations

evidence that they reasonably expended a total of 1,864.2 hours, which does include the

hours that they will spend to work to complete the Final Approval process or the time that

will be spent post-Final Approval, along with the requested hourly rates. See Kaliel Decl.

and Carpenter Decl. The declarations summarize the categories of tasks performed,

explaining the hours spent by the different billers at each of the Class Counsel’s law firms

and their respective hourly rates.

“[T]he district court must determine a reasonable hourly rate considering the

experience, skill, and reputation of the attorney requesting fees.” Chalmers v. Los Angeles,

796 F.2d 1205, 1210 (9th Cir. 1986). A “reasonable hourly rate is ordinarily the prevailing

market rate in the relevant community.” Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016).

Here, Kaliel PLLC’s customary billing rates are based on rates in the Laffey Index,

which are set by the D.C. Circuit Court, and which measure prevailing market rates based

on seniority in the D.C. area. Courts have acknowledged that the “[t]he Laffey Matrix is

used as a guideline for reasonable attorneys’ fees in the Washington/Baltimore area.” In re

Neustar, Inc. Sec. Litig., Case No. 1:14cv885 (JCC/TRJ), 2015 WL 8484438, at *10 n.6 (E.D.

Va. Dec. 8, 2015) (internal quotation and citation omitted); see also Salazar ex rel. Salazar v.

D.C., 809 F.3d 58, 64 (D.C. Cir. 2015) (confirming that the use of the Adjusted Laffey

Matrix for attorneys in D.C. is appropriate).

Carlson Lynch’s customary billing rates have been approved in Rael v. RTW

Retailwinds, Inc., et al, Case No. 37-2019-00003850-CU-MC-CTL (Super. Ct. San Diego


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Cnty.), Dennis v. Ralph Lauren Corporation, et al., Case No. 37-2018-00058462-CU-MC-CTL

(Super. Ct. San Diego Cnty.), and Mocek, Varoz, et al v. AllSaints USA Limited, Case

No. 2016-CH-10056 (Cir. Ct. Cook Cnty. Ch. Div.).

The rates requested here are well within the range of “reasonable” as approved by

this Court. See, e.g., Lopez v. Mgmt. & Training Corp., Case No. 17CV1624 JM(RBM), 2020

WL 1911571, at *9 (S.D. Cal. Apr. 20, 2020) (J. Miller) (approving attorneys’ fee request

with rates ranging from $500 to $900 per hour); McGrath v. Wyndham Resort Dev. Corp., Case

No.: 15cv1631 JM (KSC), 2018 WL 637858, at *7-10 (S.D. Cal. Jan 30, 2018) (J. Miller)

(approving attorneys’ fee request with rates ranging from $450 to $850); Makaeff v. Trump

Univ., L.L.C., Case No. 10CV0940 GPC(WVG), 2015 WL 1579000, at *4-5 (S.D. Cal.

Apr. 9, 2015) (approving rates ranging from $250 to $825); Grant v. Cap. Mgmt. Servs., L.P.,

Case No. 10-CV-2471-WQH (BGS), 2014 WL 888665, at *6 (S.D. Cal. Mar. 5, 2014)

(approving as “reasonable” rates $245 and $875 for attorneys).

Class Counsel submits that its hourly rates ranging from $450 to $800 for attorneys,

and $125 to $203 for paralegals, are reasonable and in line with, or below, prevailing rates

in the Southern District for similar services rendered by comparably skilled and experienced

attorneys. Applying the requested rates to the total hours expended results in a

$1,164,254.50 lodestar. An award of $3,900,000.00 would result in a multiplier of 3.35.

This multiplier is well within the range of reasonable as held by other courts in this

Circuit. In different consumer financial services litigation in this Court, for example, the

lodestar multiplier far exceeded the one requested here. In Lloyd v. Navy Fed. Credit Union,

Case No. 17-CV-1280-BAS-RBB, 2019 WL 2269958, at *13 (S.D. Cal. May 28, 2019),

reconsideration denied in part, Case No. 17-CV-1280-BAS-RBB, 2019 WL 2602516 (S.D. Cal.

June 25, 2019), for example, Judge Bashant approved an award of $6,125,000 in attorneys’

fees, which represented 25% of the common fund, despite the fact that a lodestar cross-

check would result in a multiplier of 10.96. The Court nevertheless decided to use the

percentage-of-the-fund approach, reasoning that, “Faced with the prospect of potentially

no recovery for the class, Class Counsel have obtained a meaningful recovery for the class


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as a whole.” Id. Identical reasoning applies here. See also Vizcaino, 290 F.3d at 1051 n.6

(noting multipliers of up to 19.6); see also Steiner v. American Broadcasting Co., 248 Fed. App’x.

780, 783 (9th Cir. 2007) (affirming fee award where the lodestar multiplier was 6.85); Reed v.

1-800 Contacts, Inc., 2014 WL 29011 (S.D. Cal. Jan. 2, 2014) (J. Miller) (awarding attorneys’

fee with 2.9 multiplier); McGrath, 2018 WL 637858 (J. Miller) (awarding attorneys’ fees with

4.8 multiplier); Pan v. Qualcomm Incorporated, 2017 WL 3252212 (S.D. Cal. July 31, 2017)

(multiplier of 3.5 was reasonable); Hazlin v. Botanical Laboratories, Inc., 2015 WL 11237634

(S.D. Cal. May 20, 2015) (awarding multiplier of 2.88 in consumer class case); Beaver, 2017

WL 4310707, at *12 (approving multiplier of 2.89). The lodestar multiplier here is

reasonable in light of these other cases.

B. CLASS COUNSEL SHOULD BE REIMBURSED FOR COSTS AND EXPENSES REASONABLY SPENT DURING THE LITIGATION

An attorney is entitled to “recover as part of the award of attorneys’ fees those out-

of-pocket expenses that would normally be charged to a fee paying client.” Harris v.

Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (citation omitted). Class Counsel’s declarations

detail each of the claimed and recoverable costs and expenses, separating each by category.

The expenses were incurred to initiate the action; to retain the services of a preeminent

mediator that assisted the parties in successfully settling the case; for travel expenses; legal

research costs; and the costs of depositions. Kaliel Decl. and Carpenter Decl. Class Counsel

has waived reimbursement of expenses related to internal overhead expenses that ordinarily

reimburse to Class Counsel in class actions and Consulting Expert Invoices. Because the

costs and expenses are small relative to the common fund amount, and are facially

reasonable and necessary, the Court should award the requested $15,686.18 in expenses.

Class Counsel anticipates incurring future expenses in connection with seeking Final

Approval of the Settlement, but will not seek reimbursement for those expenses.


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C. THE CLASS REPRESENTATIVES SHOULD RECEIVE THE REQUESTED SERVICE AWARDS FOR THEIR EFFORTS

Class Counsel also seeks a Service Award of $10,000.00 for each Plaintiff. As this

Court observed in Dennis, 2013 U.S. Dist. LEXIS 163118, at *25: “Incentive awards are

fairly typical in class action cases” (citing Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958-59

(9th Cir. 2009)). Staton, 327 F.3d at 977, addresses the relevant factors, similarly referring

to the actions the plaintiff has taken to protect the interests of the class; the degree to which

the class has benefitted from those actions; the amount of time and effort the plaintiff

expended in pursuing the litigation.

The Class Representatives each took risks by offering their services when the viability

of their claims was uncertain. Their claims, which publicly disclosed their personal financial

difficulties, created notoriety regardless of their success on the claims. Had they failed, they

created risk to their reputations. They should be commended for taking action to protect

the interests of over a million Capital One customers who were affected by Capital One’s

policy, on top of their own individual claims. It cannot be disputed that the Plaintiffs’ efforts

have created extraordinary financial benefits for the Class, compensating them for past

harm and protecting them from future harm. Plaintiffs expended hours in advancing this

litigation against a large and powerful adversary. Each conferred with Class Counsel on a

number of occasions. Kaliel Decl. at ¶ 51. Specifically, Plaintiffs provided assistance that

enabled Class Counsel to successfully prosecute the Action and reach the Settlement,

including: (1) submitting to interviews with Class Counsel; (2) locating and forwarding

responsive documents and information; (3) providing discovery documents; (4) sitting for

deposition; and (5) participating in conferences with Class Counsel. Id.

The Service Award requested for the Class Representatives in recognition of their

service on behalf of the Settlement Class is reasonable and appropriate. Similar amounts

have been approved by this Court. For example, in Reed, 2014 WL 29011 (J. Miller)

(approving $10,000 service award), Judge Miller previously approved a $10,000 service

award to a class representative who responded to discovery requests, reviewed documents,


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and sat for a deposition. The Court held that a $10,000 service award was reasonable under

the circumstances. Id. at *10. Similarly, the Class Representatives here each responded to

two sets of discovery requests, sat for a half-day deposition, and were preparing to sit for

an additional full-day deposition. Given their “level of involvement in the case, the

undertaking of the risk in bringing this action, and the fact the amount of the request is

consistent with those typically awarded as incentive payments” a $10,000 service award is

reasonable. See Lopez, 2020 WL 1911571, at *10 (J. Miller) (awarding $10,000 service

award); see also McGrath, 2018 WL 637858 (J. Miller) (same); Derum v. Saks & Company, 2015

WL 12434323 (S.D. Cal. Dec. 3, 2015) (J. Miller) (same); Greene v. Gino Morena

Enterprises, LLC, 2014 WL 5606442 (S.D. Cal. Nov. 4, 2014) (J. Miller) (same).

3. CONCLUSION

Based on the foregoing, Plaintiffs respectfully request that the Court award attorneys’

fees of $3,900,000.00, costs of $15,686.18, and Service Awards of $10,000.00 for Plaintiffs

Jacob Figueroa and Mary Jackson for a total of $20,000.00.

Dated: August 25, 2020

By:

CARLSON LYNCH LLP

/s/Todd D. Carpenter Todd D. Carpenter (SBN 234464)

[email protected] (Eddie) Jae K. Kim (SBN 236805) [email protected] Scott G. Braden (SBN 305051) [email protected] 1350 Columbia St., Ste. 603 San Diego, CA 92101 Tel.: (619) 762-1900 Fax: (619) 756-6991

KALIEL PLLC Jeffrey Kaliel (SBN 238293) [email protected] Sophia Goren Gold (SBN 307971) [email protected] 1875 Connecticut Ave. NW, 10th Floor Washington, DC 20009 Tel.: (202) 350-4783

Counsel for Plaintiffs and the settlement class


1 KALIEL DECLARATION IN SUPPORT OF UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND


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SOUTHERN DISTRICT OF CALIFORNIA

JACOB FIGUEROA AND MARY JACKSON, on behalf of themselves and all others similarly situated,

Plaintiffs, vs.

CAPITAL ONE, N.A.,

Defendant.

CASE NO. 18-cv-692-JM(BGS) DECLARATION OF JEFFREY KALIEL IN SUPPORT OF UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND SERVICE AWARDS Judge: Hon. Jeffrey T. Miller Place: Courtroom 5D (5th Fl. – Schwartz) Date: January 11, 2021 Time: 10:00 a.m.

I, Jeffrey Kaliel, hereby declare as follows:

1. I am a founding partner of Kaliel PLLC, a firm based in Washington, D.C. I

submit this declaration in support of Plaintiffs’ Unopposed Motion for Attorneys’ Fees and

Reimbursement of Costs and Service Awards. I have personal knowledge of the facts set forth

in this declaration and could testify competently as to them if called upon to do so.

THE HISTORY OF THE LITIGATION

2. Before this case was filed, Class Counsel1 researched and investigated the practice

at issue in this case: the assessment of multiple, small bank fees on a single ATM use. With





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virtually no literature on the topic, much less prior cases on it, the research effort required

intensive legal research, discussions with the Class Representatives, and expert consultation to

understand the operation of ATM networks and bank fee practices. After review of hundreds

of pages of documents, including bank statements provided by the Class Representatives, and

after further research into publicly available information regarding Capital One’s practices,

disclosures, and statements, Class Counsel began drafting the Complaint in this matter.

3. In April 2018, Plaintiffs filed this Action, alleging that Capital One breaches its

agreement with consumers, as well as violates the duty of good faith and fair dealing by

assessing two OON Fees on balance inquiries undertaken with a cash withdrawal at out-of-

network ATMs. Plaintiffs also alleged that Capital One had improperly assessed OON Fees

on in-network ATM transactions. Class Counsel then performed informal discovery with

Defendant, learning non-public facts regarding the allegations. Plaintiffs then filed an

Amended Complaint on May 30, 2018 (Dkt. No. 6), which removed the allegations regarding

fees at in-network ATMs.

4. On July 13, 2018, Capital One moved to dismiss the Amended Complaint under

Fed. R. Civ. P. 12(b)(6). Class Counsel opposed that motion, which sought dismissal of the

Action in its entirety. Because briefing on that motion indicated that the Parties had different

views as to the operative contract documents, the Court denied the motion and ordered the

Parties to engage in limited discovery to determine which documents actually formed the

contract. Dkt. No. 17.

5. Class Counsel then met and conferred with Defendant regarding discovery and

promulgated targeted discovery requests. The Parties had significant disagreements regarding

the proper scope of discovery, but ultimately worked through the issues without Court

intervention. Capital One produced hundreds of pages of documents regarding not just the

disclosures at issue, but the bank-wide procedures and processes used to disseminate such

disclosures, including how such disclosures are distributed during the account-opening

process. Class Counsel then noticed and took a Rule 30(b)(6) deposition of Capital One’s

corporate representative in McLean, Virginia.




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6. As part of this process, Class Counsel also responded to discovery requests

promulgated by Capital One on the Plaintiffs. Class Counsel also defended the depositions of

both Plaintiffs in Los Angeles, California.

7. Additionally, the Parties negotiated and agreed to a stipulated protective order,

which the Court entered on February 11, 2019. Dkt. No. 25.

8. The Parties also participated in an Early Neutral Evaluation (“ENE”) and Case

Management Conference with Magistrate Judge Skomal on June 5, 2019. Dkt. No. 41. Prior

to the ENE, Plaintiffs prepared and submitted a comprehensive ENE Brief to Judge Skomal

on March 20, 2019. In preparing the ENE, Class Counsel expended significant effort

researching numerous issues relating to an appropriate settlement proposal for this unique

case. Class Counsel also submitted a supplemental ENE brief on May 24, 2019, to apprise

Judge Skomal of recent relevant authority that affected the settlement value of the case. The

ENE, though unsuccessful, helped both Parties understand the strengths and weaknesses of

their case.

9. Based upon the record that was built during the discovery period ordered by the

Court, Capital One then moved for partial summary judgment on Plaintiffs’ breach of contract

claim. Dkt. No. 38. Class Counsel opposed the motion, drawing on the extensive on the

record it had created during discovery. The Court issued an order denying the partial motion

for summary judgment on October 7, 2019. Dkt. No. 56.

10. The Court then allowed Capital One to re-file its motion to dismiss (Dkt. No. 57)

with respect to Plaintiffs’ breach of good faith and fair dealing, conversion, unjust enrichment,

violation of California’s UCL, violation of the California’s CLRA, and violation of the New

York Consumer Protection Act claims—which had not been subject to the summary judgment

motion. Plaintiffs opposed (Dkt. No. 59), and that motion remained pending at the time of

Settlement.

11. After the summary judgment ruling, the Parties engaged in discovery designed to

provide Plaintiffs the necessary information to move for class certification and to prevail at

trial. Plaintiffs promulgated discovery requests targeted at understanding Capital One’s fee




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practices throughout the Class Period; the motivations behind those fee practices; Capital

One’s understanding of key contractual terms; customers’ understanding of key contractual

terms; and classwide damages. As part of their discovery efforts, Plaintiffs also drafted and

negotiated a protocol for the production of Electronically Stored Information (“ESI”), which

the Court entered on February 21, 2020. Dkt. No. 70. Plaintiffs also drafted proposed ESI

search terms, and the Parties met and conferred regarding the appropriate custodians.

12. The Parties met and conferred numerous times regarding Plaintiffs’ discovery

requests, the ESI Protocol, and the ESI search terms. Despite significant disagreements, the

Parties again worked together to avoid judicial intervention.

13. Class Counsel also spent significant time seeking the data necessary to evaluate

classwide damages and class membership in this Action. Because of the novelty of the case,

there was no model to work from. Class Counsel spent significant time evaluating what

information would be critical in determining class membership and what data would be

necessary to calculate each Settlement Class Member’s respective damages. Class Counsel

informally consulted with an expert regarding which data fields would be necessary for the

analysis. Over the course of many weeks, Class Counsel worked with Capital One to ensure

the correct data fields were evaluated.

14. Plaintiffs also each responded to Capital One’s Second Set of Requests for

Production and Second Set of Interrogatories directed to Plaintiffs. Plaintiffs also each agreed

to sit for an additional deposition, and Class Counsel began working with Plaintiffs to prepare

for that additional deposition.

15. Simultaneously, the Parties set a mediation for March 4, 2020, and engaged in

discovery to allow that mediation to be productive. Class Counsel drafted a mediation

statement which carefully outlined the legal issues and the strengths and weaknesses of the

various claims. On March 4, 2020, the Parties mediated the Action in Los Angeles, California

with Bruce Friedman, Esq., a well-respected neutral. With Mr. Friedman’s assistance, the case

settled at the conclusion of a full-day mediation when the Parties signed a Term Sheet agreeing

to the material terms of the Settlement. Class Counsel entered the mediation fully informed




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of the merits of Settlement Class Members’ claims and negotiated the proposed Settlement

while zealously advancing the position of Plaintiffs and Settlement Class Members and being

fully prepared to continue to litigate rather than accept a settlement that was not in the best

interest of Plaintiffs and the Settlement Class.

16. On March 6, 2020, the Parties filed a Notice of Settlement.

17. On April 17, 2020, Plaintiffs took the deposition of a Capital One corporate

representative to confirm the validity of the Parties’ damages analysis, the precise contours of

the transactional and fee data maintained by Defendant, and data maintenance issues that

would impact Class Member identification and notice.

18. Thereafter, the Parties negotiated a formal settlement agreement. Class Counsel

spent considerable effort communicating with Counsel for Capital One. The negotiations were

adversarial and required numerous telephone calls and emails. After several weeks of

negotiations, the Parties were able to reach agreement on the Settlement terms. On May 8,

2020, the Parties signed the Settlement Agreement.

19. Class Counsel also oversaw the process for designing a cost-effective notice and

administration plan. Notice in this Action was especially complicated because the Settlement

Class consists of hundreds of thousands of class members, who incurred OON Fees over a

ten-year period. Class Counsel then worked with the notice administrator to develop an

efficient and effective notice plan, leveraging the significant benefits already provided by

Capital One in the Settlement Agreement, including the laborious data analysis discussed

above. Class Counsel also devised detailed notices.

20. Thereafter, Class Counsel drafted and filed an Unopposed Motion for

Preliminary Approval of the class action Settlement on May 8, 2020 (Dkt. No. 74). Class

Counsel attended the telephonic hearing on the Motion for Preliminary Approval on June 8,

2020. Dkt. No. 78. Class Counsel then worked to address the concerns raised by the Court at

the hearing, including by engaging in a further detailed and intensive review of each aspect of

the notice plan to identify cost savings opportunities. As part of this process, Class Counsel

oversaw a bidding process, to make doubly sure that it was achieving the most cost-effective




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plan. Class Counsel filed an Amended Motion for Preliminary Approval two days later, on

June 10, 2020. The Court granted preliminary approval on June 16, 2020. Dkt. No. 80.

21. Since that time, Class Counsel has worked with the notice administrator to

ensure notice was effectuated properly.

22. To accomplish the work described above, Class Counsel drafted other court

filings such as proposed orders, notices of motion, and declarations in support of various

memoranda.

23. Throughout the litigation, Class Counsel coordinated internally to formulate case

strategy and divide work.

THE SETTLEMENT

24. The Settlement Value consists of the monetary Settlement Amount of

$13 million. The entire $13 million is for the direct benefit of the Settlement Class Members—

there will be no reversion back to Capital One. The Settlement provides for automatic

delivery, without a claims process, to Settlement Class Members of the Settlement benefits.

Settlement Class Members do not have to submit claims or take any other affirmative step to

receive relief under the Settlement or to receive a Settlement Class Member Payment.

25. As part of the Settlement, Capital One also agreed to introduce industry-leading

disclosures that, for the first time, clearly disclose the circumstances in which out of network

(“OON”) ATM Balance Inquiry Fees will be assessed.

26. As another important Settlement benefit, Capital One agreed to significantly

reduce notice and Administrative Costs associated with the Settlement by conducting a

laborious review of its banking data in order to identify Settlement Class Members and relevant

fees—difficult data analysis work that is commonly performed by experts for plaintiffs, at

great expense to the settlement class.

27. In total, Plaintiffs and the Settlement Class are recovering approximately 33% of

their most probable damages, without further risks attendant to litigation.




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28. To the best of my knowledge, this Settlement is the first of its kind. I am not

aware of any other class action settlement involving the assessment of multiple OON Fees

during a single ATM use.

29. Pursuant to the Settlement, Class Counsel is entitled to request, and Capital One

will not oppose, attorneys’ fees of up to 30% of the $13 million Settlement Amount, as well

as reimbursement of litigation costs and expenses incurred in connection with the Action.

The Parties negotiated and reached agreement regarding fees and costs only after agreeing on

all material terms of the Settlement.

THE REQUESTED FEE IS REASONABLE

30. Class Counsel has not been paid for their extensive efforts or reimbursed for

litigation costs and expenses incurred.

31. The attorneys’ fee requested is lower than what would be requested in individual

contingent fee litigation, which generally start at 33.33% of any recovery and frequently go up

to 40% or more.

32. The total lodestar of all of the law firms that worked on this case is $1,164,254.50,

broken down by firm as follows:

a. Kaliel PLLC – $704,937.00

b. Carlson Lynch – $423,317.50

c. The Kick Law Firm – $36,000.00

33. An attorneys’ fee request of 30% results in a lodestar multiplier of 3.35.

34. The total costs and expenses incurred by all four law firms in this Action are

$15,686.18, broken down by firm as follows:

a. Kaliel PLLC – $3,519.04

b. Carlson Lynch – $12,167.14

35. The retention agreements with the Plaintiffs in this case are contingent fee

agreements. No payment of attorneys’ fees would occur in this case but for a fee award in an

individual or class settlement. Consistent with standard-contingent fee agreements in

individual cases, were the case to settle on an individual basis, Class Counsel agreed to set its




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fees at 33.33% of any recovery. Class Counsel took on this case with no guarantee they would

receive any compensation for their work, which occupied significant resources at Class

Counsel firms even before this case was filed two years ago. Public interest is served by

rewarding attorneys who assume representation on a contingent basis with an enhanced fee to

compensate them for the risk that might be paid nothing at all for their work. This practice

encourages attorneys to assume this risk and allows plaintiffs who would otherwise not be able

to hire an attorney to obtain competent counsel.

KALIEL PLLC’S LODESTAR

36. KPLLC has devoted the time and resources of its attorneys and staff to ensure

the vigorous prosecution of the claims brought on behalf of the putative class in this litigation,

as detailed in the Fee and Expense Application. Our firm resume is attached as Exhibit A.

37. I am a member in good standing of the District of Columbia Bar and the State

Bar of California. I was admitted to practice in 2005.

38. I am a graduate of Yale Law School and an Army veteran of the second Iraq war.

I founded Kaliel PLLC in 2017.

39. I received “Washington D.C. Rising Stars Super Lawyers 2015” recognition.

40. I have substantial experience with consumer class actions in general, and

specifically with cases in the consumer financial services sector—cases in which and I have

recovered hundreds of millions of dollars for my clients. I have been appointed Lead Class

Counsel or Class Counsel in numerous nationwide and state-specific class actions. In those

cases, I have won contested class certification motions, defended dispositive motions, engaged

in data-intensive discovery and worked extensively with economics and information

technology experts to build damages models. I have also successfully resolved numerous class

actions by settlement, resulting in hundreds of millions of dollars in relief for millions of class

members.

41. I am well positioned to understand the risks of this Action and why settlement

at this stage of the litigation was the best option for the putative class. Based upon my

experience, I am confident that the settlement obtained here is a good result.




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42. My colleague, Sophia Goren Gold, is a member in good standing of the District

of Columbia and California bars. She is a graduate of the University of California, Berkeley,

School of Law and was admitted to practice in 2015. She is licensed in several federal courts

around the country and has been appointed Class Counsel in numerous class actions.

43. The current hourly rates for the attorneys and support staff at KPLLC who

worked on this case are as follows:

a. Jeff Kaliel (Partner) - $747.00

b. Sophia Gold (Partner) - $458.00

c. Julia Barry (Paralegal) - $203.00

44. These rates are based on the Adjusted Laffey Matrix, which are set by the D.C.

Circuit Court, and which measure prevailing market rates based on seniority in the D.C. area.

Courts have acknowledged that the “[t]he Laffey Matrix is used as a guideline for reasonable

attorneys’ fees in the Washington/Baltimore area.” In re Neustar, Inc. Sec. Litig., Case

No. 1:14cv885 (JCC/TRJ), 2015 WL 8484438, at *10 n.6 (E.D. Va. Dec. 8, 2015) (internal

quotation and citation omitted); see also Salazar ex rel. Salazar v. D.C., 809 F.3d 58, 64 (D.C. Cir.

2015) (confirming that the use of the Adjusted Laffey Matrix for attorneys in D.C. is

appropriate).

45. I have organized the time spent by myself, Sophia Gold, and Julia Barry into

categories which describe the services which we rendered in this case.

Task Jeff Kaliel Sophia Gold Julia Barry

Presuit investigation, Factual Development, Client Meetings and Correspondence Researched potential causes of actions; researched the existence of other similar cases; researched potentially applicable federal laws and regulations; researched Capital One’s disclosures and compared to other Bank’s disclosures; interviewed clients; prepared preservation letter

35.7 8.2

Strategy, Case Analysis, Class Counsel Conferences Strategy meetings internally at the firm and with co-counsel throughout the case

33.9 38.4




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Pleadings Researched, drafted, and edited complaint and amended complaint; researched the viability of a CLRA cause of action; researched choice of law issues; reviewed answer and researched viability of affirmative defenses

34.9 8.5

Motion Practice Researched and drafted opposition to original motion to dismiss; second motion to dismiss; opposition to motion for partial summary judgment

140.3 84 3.9

Discovery Conducted initial discovery related to which contractual documents govern; prepared for and took 30(b)(6) deposition; defended depositions of Class Representatives; responded to discovery requests; promulgated discovery requests; negotiated protective order; negotiated ESI Protocol and ESI search terms; reviewed documents; coordinated with an expert regarding class data; analyzed class data; drafted 30(b)(6) notice; conducted second 30(b)(6) deposition related to damages.

159.5 136.8

Case Management and Other Court Mandated Tasks Conducted 26(f) conference; drafted 26(f) report; Prepared motion to continue hearing on motion to dismiss; prepared joint motion to continue the ENE; prepared motion for briefing schedule on summary judgment; edited joint discovery plan; attended discovery conferences; prepared 501(d) order; prepared miscellaneous filings such as notices of appearances

22.5 15.7 3

Settlement Engaged in settlement discussions with opposing counsel; coordinated settlement strategy with co-counsel; prepared ENE brief and supplemental ENE brief; attended ENE; prepared mediation statement; traveled to and attended mediation; negotiated and finalized settlement agreement and all associated documentation.

145 10.5

Preliminary Approval Drafted motion for preliminary approval of class action settlement and accompanying declarations; prepared for and attended hearing; drafted amended motion for preliminary approval

37 22




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Fee and Expense Application Researched and drafted motion for attorneys’ fees, prepared declarations; updated firm resume; reviewed billing records and expense reports

5.5 32.3

Class Notice Received and reviewed detailed bids from notice administrators; worked with notice administrator to develop notice plan and find cost-efficiencies; drafted notices; oversaw notice process

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Final Approval, Settlement Execution, Distribution of Common Fund (Estimated) Prepare motion for final approval and all supporting declarations, respond to objections, respond to class member inquiries, prepare for and attend final approval hearing, work with settlement administrator to ensure proper distribution of funds to class members, prepare any post-final approval motions.

35

Totals 723.3 356.4 6.9

46. The total hours billed by the attorneys at KPLLC for this case are 1086.6.

Applying the above hourly rates, the total lodestar is $704,937.00.

47. This lodestar includes estimated time that will be spent from the date of this

declaration forward, which I expect will include tasks related to preparing the motion for final

approval and all supporting declarations, responding to objections if any, attending to class

member inquiries, preparing for and attending the final approval hearing, working with the

settlement administrator, ensuring proper distribution of funds to class members, and any

post-final approval motions. I estimate that I will spend approximately 30 hours on these tasks.

48. Class Counsel will submit detailed time records for each attorney should the

Court so require.

49. In addition, I am informed and believe that the Kick Law Firm, APC, including

Taras Kick, has spent approximately 45 hours on this case. Mr. Kick interviewed potential

class representatives; reviewed their bank statements; interviewed and retained the Class

Representatives; reviewed the Complaint; corresponded with the Class Representatives and




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provided them periodic updates; and participated in internal strategy calls with co-counsel.

Mr. Kick is a partner at his law firm with over 20 years of experience. Mr. Kick’s hourly rate

is $800 per hour. I understand Mr. Kick’s hourly rate has been approved in numerous class

action cases.2 Thus, Mr. Kick’s lodestar in this case amounts to $36,000.

2 See, e.g., Ketner v. SECU Maryland, Civil No.:1:15-CV-03594-CCB (D. MD. 2017) (appointed co-lead counsel in federal consumer class action in the District of Maryland regarding alleged improper overdraft fees, final approval granted on January 11, 2018); Towner v. 1st MidAmerica Credit Union, No. 3:15-cv-1162 (S.D. Ill. 2017) (appointed co-lead counsel in federal consumer class action regarding alleged improper overdraft fees, final approval granted in November 2017); Fry v. MidFlorida Credit Union, United States District Court for the Middle District of Florida, Case No. 8:15-CV-2743 (appointed co-lead counsel in federal consumer class action regarding alleged improper overdraft fees, final approval granted); Ramirez v. Baxter Credit Union, United States District Court for the Northern District of California, Case No. 16-cv-03765-SI (appointed co-lead counsel in federal consumer class action regarding alleged improper overdraft fees, final approval granted); Lynch v. San Diego County Credit Union, San Diego County Superior Court, Case No. 37-2015-00008551 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted); Gunter v. United Federal Credit Union, United States District Court for the District of Nevada, Case No. 3:15-cv-00483-MMD-WGC (appointed co-lead counsel in federal consumer class action regarding alleged improper overdraft fees, final approval granted); Sewell v. Wescom Credit Union, Los Angeles County Superior Court No. BC5860 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted); Lane v. Campus Federal Credit Union, Case No. 3:16-cv-00037 (M.D. La. 2017) (appointed co-lead counsel in consumer class action regarding alleged improper overdraft fees, final approval granted in August 2017); Fernandez v. Altura Credit Union, Riverside County Superior Court, Case No. RIC1610873 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted); Hernandez v. Logix Federal Credit Union, Los Angeles County Superior Court, Case No. BC628495 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted); Bowens v. Mazuma Federal Credit Union, United States District Court for the Western District of Missouri, Case No. 15-00758-CV-W-BP (appointed co-lead counsel in federal consumer class action regarding alleged improper overdraft fees, final approval granted); Santiago v. Meriwest Credit Union, Sacramento County Superior Court, Case No. 34-2015-00183730 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted); Gray v. Los Angeles Federal Credit Union, Los Angeles County Superior, Case No. BC625500 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees by a credit union, with issues similar to this case, final approval granted in June 2017); Moralez v. Kern Schools Federal Credit Union, Kern County Superior Court, Case No. BCV-15-100538 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted in June 2017); Manwaring v. Golden 1 Credit Union, Sacramento County Superior Court, Case No. 34-2013-00142667 (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted in December 2015); Casey v. Orange County Credit Union, Orange County Superior Court No. 30-2013-00658493-CJ-BT-CXC (appointed co-lead counsel in California state consumer class action regarding alleged improper overdraft fees, final approval granted by the court in May 2015); Salls v. Digital Federal Credit Union, United States District Court for the District of Massachusetts, Case. No. 18-cv-11262-TSH (appointed co-lead counsel in Massachusetts District Court, final approval granted in January 2020); and, Pingston-Poling v. Advia Credit Union, United States District Court for the Western District of Michigan, Case No. 1:15-CV-1208 (appointed co-lead counsel in the Western District of Michigan, final approval granted in January 2020).




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50. Additionally, I have organized the necessary expenses that Kaliel PLLC has

incurred for the prosecution of this Action. The firm is not seeking reimbursement for internal

overhead expenses that ordinarily reimbursed to Class Counsel in class actions. Cost receipts

will be submitted to the Court should it likewise so require.

Category Expenses

Travel $1,959.81

Depositions $1,559.23

Total $3,519.04

THE SERVICE AWARDS ARE JUSTIFIED

51. The Class Representatives took risks by offering their services when the viability

of their claims was uncertain. Their claims, which publicly disclosed their personal financial

difficulties, created notoriety regardless of their success on the claims. Had they failed, they

created risk to their reputations. They should be commended for taking action to protect the

interests of over a million Capital One accountholders who were affected by Capital One’s fee

policies, on top of their own individual claims. It cannot be disputed that the Plaintiffs’ efforts

have created extraordinary financial benefits for the Class, compensating them for past harm

and protecting them from future harm. Plaintiffs expended hours in advancing this litigation

against a large and powerful adversary. Each conferred with Class Counsel on a number of

occasions. Specifically, Plaintiffs provided assistance that enabled Class Counsel to

successfully prosecute the Action and reach the Settlement, including: (1) submitting to

interviews with Class Counsel; (2) locating and forwarding responsive documents and

information; (3) providing discovery documents; (4) sitting for deposition; and

(5) participating in conferences with Class Counsel.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on August 25, 2020

/s/ Jeffrey Kaliel Jeffrey Kaliel KALIEL PLLC


EXHIBIT A

Ex. A 14


1875 Connecticut Ave., NW | 10th Floor Washington, DC 20009 202.350.4783 www.kalielpllc.com

KALIEL PLLC

Kaliel PLLC was founded in 2017 and is a 100% contingency Plaintiffs’-side law firm. Our

attorneys have decades of combined experience and have secured hundreds of millions of dollars for

their clients. Our firm’s practice focuses on representing consumers in class action litigation and

specifically on cases in the consumer financial services sector. Our firm has been appointed lead

counsel or co-lead counsel in numerous class action and putative class action lawsuits in state and

federal courts nationwide including most recently in Roberts v. Capital One, No. 1:16-cv-04841

(S.D.N.Y.); Walters v. Target Corp., No. 3:16-cv-00492 (S.D. Cal.); Robinson v. First Hawaiian Bank, Civil

No.17-1-0167-01 GWBC (1st Cir. Haw.); Liggio v. Apple Federal Credit Union, No. 18-cv-01059 (E.D.

Va.); Morris et al. v. Bank of America, N.A., No. 3:18-cv-00157-RJC-DSC (W.D.N.C.); Brooks et al. v.

Canvas Credit Union, 2019CV30516 (Dist. Ct. for Denver Cty., Colo.); White v. Members 1st Credit Union,

No. 1:19-cv-00556-JEJ (M.D. Pa.).

As shown in the biographies of our attorneys and the list of class counsel appointments, Kaliel

PLLC is well versed in class action litigation and zealously advocates for its clients. To learn more

about Kaliel PLLC, or any of the firm’s attorneys, please visit www.kalielpllc.com.

Ex. A 15


JEFFREY KALIEL

Jeffrey Kaliel earned his law degree from Yale Law School in 2005. He graduated from Amherst College summa cum laude in 2000 with a degree in Political Science, and spent one year studying Philosophy at Cambridge University, England.

Over the last 10 years, Jeff has built substantial class action experience. He has received “Washington D.C. Rising Stars Super Lawyers 2015″ recognition.

Jeff has been appointed lead Class Counsel in numerous nationwide and state-specific class actions. In those cases, Jeff has won contested class certification motions, defended dispositive motions, engaged in data-intensive discovery and worked extensively with economics and information technology experts to build damages models. Jeff has also successfully resolved numerous class actions by settlement, resulting in hundreds of millions of dollars in relief for millions of class members.

Currently Jeff is actively litigating several national class action cases, including actions against financial services entities and other entities involved in predatory lending and financial services targeting America’s most vulnerable populations.

Jeff's class action successes extend beyond financial services litigation. He seeks to lead cases that serve the public interest. Jeff has worked with nonprofits such as the Humane Society, Compassion Over Killing, and the National Consumers League to fight for truth in the marketplace on food and animal products.

Jeff has over a decade of experience in high-stakes litigation. He was in the Honors Program at the Department of Homeland Security, where he worked on the Department’s appellate litigation. Jeff also helped investigate the DHS response to Hurricane Katrina in preparation for a Congressional inquiry. Jeff also served as a Special Assistant US Attorney in the Southern District of California, prosecuting border-related crimes.

Jeff is a former Staff Sergeant in the Army, with Airborne and Mountain Warfare qualifications. He is a veteran of the second Iraq war, having served in Iraq in 2003.

Jeff is admitted to practice in California and Washington, DC, and in appellate and district courts across the country.

Jeff lives in Washington, D.C. with his wife, Debbie, and their three children.

Ex. A 16


https://www.kalielpllc.com/

SOPHIA GOREN GOLD

Sophia Goren Gold is a third-generation Plaintiffs’ lawyer. A summa cum laude graduate of Wake Forest University and the University of California, Berkeley, School of Law, Sophia has spent her entire career fighting for justice.

A fierce advocate for those in need, Sophia’s practice centers around taking on financial institutions, insurance companies, and other large corporate interests. Sophia has participated in hundreds of individual and class cases in both state and federal courts across the country. Collectively, she has helped secure tens of millions of dollars in relief on behalf of the classes she represents.

In addition to providing monetary relief, Sophia’s extensive litigation experience has resulted in real-world positive change. For example, she brought litigation which resulted in the elimination of the Tampon Tax in the State of Florida, and she was influential in changing the state of Delaware’s Medicaid policy, resulting in greater access to life-saving medication.

Sophia is currently representing consumers in numerous cases involving the assessment of improper fees by banks and credit unions, such as overdraft fees, insufficient funds fees, and out of network ATM fees. She is also currently representing consumers who have been the victims of unfair and deceptive business practices.

Sophia is admitted to practice in California and Washington, D.C. When not working, Sophia enjoys spending time with her husband and their goldendoodle.

Ex. A 17



BRITTANY CASOLA

Brittany Casola attended the University of Central Florida in Orlando and graduated in 2012 with a bachelor’s degree in Political Science and a minor in Spanish. Brittany earned her Juris Doctorate from California Western School of Law in 2015 and graduated magna cum laude in the top 10% of her class.

Throughout the course of her law school career, she served as a judicial extern to the Honorable Anthony J. Battaglia for the United States District Court, Southern District of California and worked multiple semesters as a certified legal intern for the San Diego County District Attorney’s Office. Brittany was awarded Academic Excellence Awards in law school for receiving the highest grade in Trial Practice, Health Law & Policy, and Community Property.

Before joining Kaliel PLLC, Brittany worked as a judicial law clerk for the Honorable Anthony J. Battaglia and as an associate attorney for Carlson Lynch LLP, specializing in consumer complex litigation.

Ex. A 18



CLASS COUNSEL APPOINTMENTS

• Roberts v. Capital One, No. 1:16-cv-04841 (S.D.N.Y.); • White v. Members 1st Credit Union, No. 1:19-cv-00556-JEJ (M.D. Pa.); • Walters v. Target Corp., No. 3:16-cv-00492 (S.D. Cal.); • Robinson v. First Hawaiian Bank, Civil No.17-1-0167-01 GWBC (1st Cir. Haw.); • Brooks et al. v. Canvas Credit Union, 2019CV30516 (Dist. Ct. for Denver Cty., Colo.). • Liggio v. Apple Federal Credit Union, Civil No. 18-cv-01059 (E.D. Va.); • Morris et al. v. Bank of America, N.A., Civil No. 3:18-cv-00157-RJC-DSC (W.D.N.C.); • Bodnar v. Bank of America, N.A., 5:14-cv-03224 (E.D. Pa.); • In re Higher One OneAccount Marketing and Sales Practice Litigation., No. 12-md-02407-VLB (D.

Conn.). • Shannon Schulte, et al. v. Fifth Third Bank., No. 1:09-cv-06655 (N.D. Ill.); • Kelly Mathena v. Webster Bank, No. 3:10-cv-01448 (D. Conn.); • Nick Allen, et al. v. UMB Bank, N.A., et al., No. 1016 Civ. 34791 (Cir. Ct. Jackson County, Mo.); • Thomas Casto, et al. v. City National Bank, N.A., 10 Civ. 01089 (Cir. Ct. Kanawha County, W.

Va.); • Eaton v. Bank of Oklahoma, N.A., and BOK Financial Corporation, d/b/a Bank of Oklahoma, N.A.,

No. CJ-2010-5209 (Dist. Ct. for Tulsa Cty., Okla.); • Lodley and Tehani Taulva, et al., v. Bank of Hawaii and Doe Defendants 1-50, No. 11-1-0337-02 (Cir.

Ct. of 1st Cir., Haw.); • Jessica Duval, et al. v. Citizens Financial Group, Inc., et al, No. 1:10-cv-21080 (S.D. Fla.); • Mascaro, et al. v. TD Bank, Inc., No. 10-cv-21117 (S.D. Fla.); • Theresa Molina, et al., v. Intrust Bank, N.A., No. 10-cv-3686 (18th Judicial Dist., Dist. Ct.

Sedgwick County, Kan.); • Trombley v. National City Bank, 1:10-cv-00232-JDB (D.D.C.); Galdamez v. I.Q. Data Internatonal,

Inc., No. l:15-cv-1605 (E.D. Va.); • Brown et al. v. Transurban USA, Inc. et al., No. 1:15-CV-00494 (E.D. Va.); • Grayson v. General Electric Co., No. 3:13-cv-01799 (D. Conn.); • Galdamez v. I.Q. Data Internatonal, Inc., No. l:15-cv-1605 (E.D. Va.).

Ex. A 19



EXHIBIT B

Ex. B 20


Overdraft Fee Case Name Percentage-of-the-Fund Awarded

Lopez v. JPMorgan Chase Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.)

44% of value of settlement, which includes 30% of $110 million cash fund and 30% of value of practice changes

Nelson v. Rabobank, N.A., No. RIC 1101391 (Cal. Supr.)

35.2% ($750k fee included a reasonable valuation of practice changes)

Jacobs v. Huntington Bancshares Inc. No. 11-cv-000090 (Lake County Ohio)

40% of value of settlement, which includes 40% of $8.975 million and 40% of $7 Million in debt forgiveness

Molina v. Intrust Bank, N.A., No. 10-CV-3686 (Dist. Ct. Ks.) 33% of $2.7 million

Hawkins et al v. First Tenn. Bank, N.A. (Cir. Ct. Tenn.) 35% of $16.75 million

Swift v BancorpSouth, No. 1:10-cv-00090-GRJ (N.D. Fla.) 35% of $24 million

Casto v. City National Bank, N.A., No. 10-C-1089 (Cir. Ct. W.Va.) 33% of $3 million

Schulte v. Fifth Third Bank, No. 09-cv-6655 (N.D. Ill.) 33% of $9.5 million

Johnson v. Community Bank, N.A., No. 12-cv-01405-RDM (M.D. Pa.) 33% of $2.5 million

Bodnar v. Bank of America, No. 5:14-cv-03224-EGS (E.D. Pa.) 33% of $27 million

Harris v. Associated Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $13 million

Duval v. Citizens Bank Fin. Group, Inc., No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $137.5 million

Mosser v. TD Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $62 million

Anderson v. Compass Bank No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $11.5 million

Casayuran v. PNC Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $90 million

Orallo v. Bank of the West, No. 1:09-MD-02036 JLK (S.D. Fla.) 30% of $18 million

Wolfgeher v. Commerce Bank, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.)

30% of value of settlement, which includes 30% of $18.3 million cash and 30% of value of practice changes

McKinley v. Great Western Bank, No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $2.2 million

Eno v. M & I Marshall & Ilsley Bank, No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $4 million

Larsen v. Union Bank, No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $35 million

Tornes v. Bank of America, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $410 million

Ex. B 21


Overdraft Fee Case Name Percentage-of-the-Fund Awarded Case v. Bank of Oklahoma, N.A., No. 1:09-MD-02036-JLK (S.D. Fla.) 30% of $19 million

Allen v. UMB Bank, No. 1016-CV34791 (Cir. Ct. Mo.) 30% of $7.8 million

Jones v. United Bank, (Jackson, WV) 30% of $3.3 million

Higgins v. Pinnacle Bank, (Tenn. St. Ct.) 30% of $1.25 million

Beason v. Liberty Bank, (Ark. St. Ct.) 30% of $325k

Ex. B 22


1 CARPENTER DECLARATION IN SUPPORT OF UNOPPOSED MOTION FOR ATTORNEYS’ FEES

AND REIMBURSEMENT OF COSTS AND SERVICE AWARD 18cv692 JM(BGS)

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SOUTHERN DISTRICT OF CALIFORNIA

JACOB FIGUEROA AND MARY JACKSON, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.

CAPITAL ONE, N.A.,

Defendant.

CASE NO. 18-cv-692-JM(BGS) DECLARATION OF TODD D. CARPENTER IN SUPPORT OF UNOPPOSED MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS AND SERVICE AWARDS Judge: Hon. Jeffrey T. Miller Place: Courtroom 5D (5th Fl. – Schwartz) Date: January 11, 2021 Time: 10:00 a.m.

I, Todd D. Carpenter, declare:

1. I am an attorney duly admitted to practice law before all courts of the State of

California, and I am a shareholder in the law firm of Carlson Lynch, LLP, for Plaintiffs and

the Class Counsel1 herein. I make this declaration in support of Plaintiffs’ Unopposed Motion

for Attorneys’ Fees and Reimbursement of Costs and Service Awards. If called as a witness, I

could and would competently testify to the following:





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CARLSON LYNCH’S LODESTAR

2. Carlson Lynch has devoted the time and resources of its attorneys and staff to

ensure the vigorous prosecution of the claims brought on behalf of the putative class in this

Action, as detailed in the Fee and Expense Application. Our firm resume is attached as

Exhibit A.

3. I have been recognized as a semi-finalist as a “Top Corporate Litigation

Attorney,” by the San Diego Daily Transcript in 2012, and I have been named a San Diego

“Super Lawyer” in 2015, 2016, 2017, 2018 and 2019.

4. I have represented plaintiffs in numerous class action proceedings in California

and throughout the country, in both state and federal courts. I have represented thousands of

purchasers of consumer products, food, food supplements and over-the-counter drugs in state

and federal courts throughout the United States in cases arising out of various false advertising

claims made by manufacturers and retailers, including: Proctor & Gamble, General Mills,

Bayer, Clorox, WD-40, Dean Foods, Botanical Laboratories, Inc., Irwin Naturals, Inc.

General Nutrition Corporation and Pharmavite. As a shareholder, I was also counsel of record

at my prior firm in the MDL proceeding, In re: Hydroxycut Marketing and Sales Practices Litigation,

Case No. 09-02087 (S.D. Cal.), wherein my previous firm was designated as co-lead counsel

for the class. I was also class counsel for the Settlement Class in FACTA cases against Hugo

Boss, U.S.A. Inc.: Travis Benware v. Hugo Boss, U.S.A., Inc., Case No. 3:12-cv-01527-L-MDD

(S.D. Cal.) and Southwest Airlines (Lumos v. Southwest Airlines, Co., Case No. C-13-1429-CRB)

and Mocek, Varoz, et al v. AllSaints USA Limited, Case No. 2016-CH-10056 (Cir. Ct. Cook Cnty.

Ch. Div.).

5. I have represented thousands of consumer credit cardholders against several

major retailers arising from violations of the Song-Beverly Credit Card Action section 1747.08

and have achieved excellent results, including, but not limited to a class benefit of a retail gift

valued between $40 and $120 in a class action settlement with Gucci America, Inc. I have also

represented thousands of consumer debit card holders against major commercial banks,

including assuming a leadership role as prosecuting counsel in In re: Checking Account Overdraft




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Litigation, Larsen v. Union Bank and Dee v. Bank of the West, MDL No. 2036 (S.D. Fl.). I have

filed similar actions against several other banks and credit unions across the country, alleging

that each institution manipulated the processing of customer debit card purchases to maximize

overdraft fees, including actions against Northwest Savings Bank, (Toth v. Northwest Savings

Bank, Case No. GD-12-8014 (Ct. Com. Pl. Allegheny Cnty.), Pinnacle National Bank (John

Higgins v. Pinnacle Bank, Case No. 11-C4858 (Cir. Ct. 12th Jud. Dist.) and Mission Federal

Credit Union (Taylor v. Mission Federal Credit Union, Case No. 37-2012-00092073-CU-BT-CTL

(Super. Ct. San Diego Cnty.).

6. I was also appointed class counsel in Plantier, et al. v. Ramona Municipal Water

District, Case No. 37-2014-00083195-CU-BT-CTL (Super. Ct. San Diego Cnty.), and

Mendoza v. The Gar Wood Restaurant, LLP, Case No. SCV 0034158 (Super. Ct. Placer Cnty.).

7. I have personally been involved in the investigation and prosecution of this class

action from its inception through the present. I oversaw the investigation into several ATM

locations of the Defendant in three different states. My partner Eddie Kim and I were also

actively involved in the management of the Action. We assigned litigation tasks to our

associates, but performed the high-level litigation strategy, expert vetting, negotiation of the

settlement and oversaw the approval process and law & motion work.

8. The law firm of Carlson Lynch, LLP has expended a substantial amount of time

and effort in prosecuting this action and achieving an adequate benefit for the Class. The

requested fee is reasonable and appropriate based on the risks of litigation, Class Counsel’s

refusal of alternative employment opportunities with guaranteed payment, and the benefit

obtained for the Class.

9. The current hourly rates for the attorneys and support staff at Carlson Lynch

who worked on this case are as follows:

a. Partner Rate - $750.00

b. Associate Rate - $450.00

c. Paralegal Rate - $125.00




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10. We have established our rates through an annual, informal survey of similarly

experienced consumer class action attorneys in the Southern California legal market.

11. My hourly rate of $750.00 per hour is in line with comparable hourly rates

charged by other law firms that handle class action litigation in Southern California. Also my

current hourly rate of $750.00 per hour was recently approved on September 27, 2019 by

Judge Joel R. Wohfeil in Rael v. RTW Retailwinds, Inc., et al, Case No. 37-2019-00003850-CU-

MC-CTL (Super. Ct. San Diego Cnty.), and on July 12, 2019 by Judge Ronald F. Frazier in

Dennis v. Ralph Lauren Corporation, et al., Case No. 37-2018-00058462-CU-MC-CTL (Super. Ct.

San Diego Cnty.), both on unopposed fee applications in similar false and deceptive sale

discounting class action cases. My hourly rate was also recently approved on April 5, 2019, in

an $8,000,000 all-cash FACTA Settlement in Mocek, Varoz, et al v. AllSaints USA Limited, Case

No. 2016-CH-10056 (Cir. Ct. Cook Cnty. Ch. Div.). My previous hourly rate of $650.00 per

hour was approved in 2017 by Judge Judith Hayes on an unopposed fee application in a Song-

Beverly Credit Card Act case, Manner v. Summit Pizza West, LLC, Case No. 37-2015-5909-CU-

MC-CTL (Super. Ct. San Diego Cnty.). My rate has increased over the last two years

commensurate with other plaintiff’s class action practitioners in Southern California with my

level of experience and success.

12. My hourly rate is consistent with my level of expertise in consumer class actions.

I have extensive experience in class actions: During the course of my career, I have taken and

defended over 100 depositions in personal injury, complex and class action cases. I have

successfully participated in mediations resulting in more than $100,000,000 in settlements or

awards in class action cases. I have drafted, filed, and argued multiple motions in complex

consumer class actions, including all forms of discovery, dispositive and certification motions.

My practice focuses exclusively on consumer class action and complex litigation, representing

plaintiff classes in major insurance fraud, unfair business practices, false and deceptive

advertising, product liability and anti-trust violations. Additionally, my San Diego office

maintains a robust pro-bono practice serving socio-economically disadvantaged individuals in

consumer finance, consumer lending and insurance matters.




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13. I have organized the time spent by my firm into categories which describe the

services which we rendered in this case:

Task Hours Rate Lodestar

Presuit investigation, Factual Development, Client Meetings and Correspondence (Partner Tasks) Designed the pre-suit investigation, including in-person transactions at 43 separate ATM machines across three states to determine mechanism of fee assessment. Coordinated the strategy and execution for investigation. (Paralegal Tasks): Engaged in investigation of 43 separate ATM transactions in three states; accumulated data on free transactions and statements; gathered relevant account disclosures.

47.5

54

$750

$125

$35,625

$6,750

Strategy, Case Analysis, Class Counsel Conferences (Partner Tasks) Strategy meetings internally at the firm and with co-counsel throughout the case (Associate Tasks) Strategy meetings internally at the firm and with co-counsel throughout the case

35.4

29

$750

$450

$26,550

$13,050

Pleadings (Partner Tasks) Drafted initial complaints for multiple state and circulated for edits; gather and incorporate exhibits; incorporate revisions, revise, finalize, and file; issue for service; draft amended complaint; circulate for review and incorporate edits; finalize. (Associate Tasks) Research potential causes of action for unique, innovative consumer protection suit. Research case law and review case database for filings from similar contracts of adhesion presenting choice of law and preemption issues. Research whether National Bank Act preempts consumer protection claims for out of network fee claims; researched interplay between consumer protection claims and breach of contract theories for New Jersey, New York and California. (Paralegal Tasks) Organizing exhibits; finalizing and filing

67.4

30.5

6.5

$750

$450

$125

$50,550

$13,725

$812.50




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Motion Practice (Associate Tasks) Evaluated and provided revisions to opposition to original motion to dismiss; second motion to dismiss; opposition to motion for partial summary judgment (Partner Tasks) Evaluated and provided revisions to opposition to original motion to dismiss; second motion to dismiss; opposition to motion for partial summary judgment (Paralegal Tasks) Formatted and finalized motions for filings; organized exhibits; prepared redactions

46.3

22

31

$450

$750

$125

$20,835

$16,500

$3,875

Discovery (Associate Tasks) Strategize with team regarding discovery; provide input into 30(b)(6) notices and discovery requests; potential subpoena issues; attend depositions and prep sessions of clients; document review; reviewed deposition transcripts. (Partner Tasks) Strategize with team regarding discovery; reviewed hot documents; strategized regarding deficiencies; prepare deposition outline; attend deposition regarding damages issues. (Paralegal Tasks) Finalizing and serving discovery; finalizing discovery responses and production of documents; deposition notices; fixing formatting issues

53.2

24.5

18.2

$450

$750

$125

$23,940

$18,375

$2,275

Case Management and Other Court Mandated Tasks (Partner Tasks) Conducted 26(f) conference; drafted 26(f) report; Prepared motion to continue hearing on motion to dismiss; prepared joint motion to continue the ENE; prepared motion for briefing schedule on summary judgment; edited joint discovery plan; attended discovery conferences; prepared 501(d) order; prepared miscellaneous filings such as notices of appearances

19.3

$750

$14,475

Consulting with Industry, Consumer Behavior, and Data Experts (Partner Tasks) Screened, vetted and interviewed consumer behavior consultants / human factors experts and DDA

91.2

$750

$68,400




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Task Hours Rate Lodestar (consumer banking account database) account experts. Conference calls and email correspondence with consumer DDA experts regarding availability of data and parsing of data for purposes of determining class-wide damages. Development and proposals for securing archived data and restoration of network transaction data communicated to third party and independent ATM vendors. Screened, vetted and met with ATM network methodology expert to determine the interchange transaction fee flow amongst third party ATM providers. Drafted memorandum regarding substantive liability issues; scope of consumer use and interphase interaction; contract interpretation. Follow up correspondence and discussion regarding the use of consumer survey to prove consumer protection act claims; discussions and research regarding recall bias issues for consumer survey.

Settlement (Partner Tasks) Revised mediation brief; reviewed damages analysis; attended full day mediation (mediation was attended by Todd Carpenter and Eddie Kim); follow up settlement issues; negotiated settlement details through multiple revisions and phone calls with opposing counsel. Post mediation settlement discussions and teleconferences; multiple revisions to Settlement Agreement; Notices. (Associate Tasks) Revised mediation brief; Reviewed Settlement Agreement; Notices.

56.5

14

$750

$450

$42,375

$6,300

Preliminary Approval (Partner Tasks) Revised motion for preliminary approval of class action settlement and accompanying declarations; prepared for and attended hearing; drafted amended motion for preliminary approval (Associate Tasks) Revised motion for preliminary approval of class action settlement and accompanying declarations

15.8

8.7

$750

$450

$11,850

$3,915

Fee and Expense Application (Partner Tasks) Edited motion for attorneys’ fees, prepared declarations; updated firm resume; reviewed billing records and expense reports (Associate Tasks) Finalized motion for attorneys’ fees and exhibits

13.2

10.2

$750

$450

$9,900

$4,590




1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Class Notice (Partner Tasks) Received and reviewed detailed bids from notice administrators; worked with notice administrator to develop notice plan and find cost-efficiencies; drafted notices; oversaw notice process

3.2

$750

$2,400

Final Approval, Settlement Execution, Distribution of Common Fund (Estimated) (Partner Tasks) Prepare motion for final approval and all supporting declarations, respond to objections, respond to class member inquiries, prepare for and attend final approval hearing, work with settlement administrator to ensure proper distribution of funds to class members, prepare any post-final approval motions.

35

$750

$26,250

Total: 732.60 $423,317.50

14. The total hours billed by the attorneys and paralegals at Carlson Lynch for this

case are 732.60. Applying the above hourly rates, the total lodestar is $423,317.50.

15. This lodestar includes estimated time that will be spent from the date of this

declaration forward, which I expect will include tasks related to preparing the motion for final

approval and all supporting declarations, responding to objections if any, attending to class

member inquiries, preparing for and attending the final approval hearing, working with the

settlement administrator, ensuring proper distribution of funds to class members, and any

post-final approval motions. I estimate that I will spend approximately 35 hours on these

tasks.

16. Class Counsel will submit detailed time records for each attorney should the

Court so require.

17. Additionally, my firm has spent approximately $12,167.14 in un-reimbursed

expenses incurred in connection with this Action. The firm is not seeking reimbursement for

internal overhead expenses that ordinarily reimbursed to Class Counsel in class actions. A

breakdown of my firm’s additional costs incurred in this action is set forth below:




1

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3

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9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Category Expenses Mediation $6,000 Court Fees $2,783.14 Electronic Research $3,384.00 Total $12,167.14

18. Cost receipts will be submitted to the Court should it likewise so require.

I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct, and that this declaration was executed on August 25, 2020, in

San Diego, California.

Dated: August 25, 2020 CARLSON LYNCH LLP

/s/Todd D. Carpenter _________ Todd D. Carpenter (SBN 234464) [email protected] 1350 Columbia Street, Suite 603 San Diego, California 92101 Telephone: (619) 762-1900 Facsimile: (619) 756-6991

Attorneys for Plaintiff and the Settlement Class


EXHIBIT A

Ex. A 1


CARLSON LYNCH SWEET KILPELA & CARPENTER LLP

FIRM RESUME

JUNE 2018

Ex. A 2


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NOTABLE CASES PRIVACY/DATA BREACH

In re Equifax, Inc. Customer Data Security Breach Litig., MDL 2800 (N.D. Ga.). Carlson Lynch was appointed co-lead counsel for financial institution plaintiffs in multidistrict litigation related to the notorious 2017 Equifax data breach, which is potentially the largest and most damaging data breach of all time. More than 400 lawsuits filed by consumers and financial institutions are consolidated in the MDL, which is in the early pretrial stages.

In re Home Depot Customer Data Breach Litig., 1:14-md-02583, MDL 2583 (N.D. Ga.). Carlson Lynch represents five different financial institutions in litigation related to the major data breach at the retailer which continued for almost six months in 2014 and resulted in the compromise of approximately 56 million payment card accounts. Gary Lynch was appointed by Judge Thrash to be one of three lead counsel managing the financial institution track of the litigation. Over forty financial institutions and seventeen credit union associations filed a consolidated complaint in May 2015. Judge Thrash denied the majority of Home Depot’s motion to dismiss on May 18, 2016. In September 2017, the Court granted final approval to a comprehensive settlement that provides over $27 million in relief to the class.

In re Target Corporation Customer Data Breach Litig., 0:14-md-02522, MDL 2522 (D.

1 This Firm Resume is intended to be representative and is not comprehensive. Carlson Lynch has prosecuted, and continue to prosecute, many substantial cases that are not identified.

CARLSON LYNCH SWEET KILPELA & CARPENTER LLP

FIRM SUMMARY1

For the last decade, the attorneys of Carlson Lynch Sweet Kilpela & Carpenter LLP (“Carlson Lynch”) have litigated complex class-action matters involving financial fraud (including securities fraud, derivative actions, and mortgage fraud), antitrust, data breach, privacy, consumer fraud, labor and employment, disability access, and wage and hour, in federal and state courts throughout the country. Litigation prosecuted by Carlson Lynch has resulted in substantial monetary recoveries and injunctive benefits on behalf of class members, described in more detail below. In addition, Carlson Lynch cases have generated seminal legal authority in both trial and appellate courts.

Carlson Lynch was founded in 2004 by Bruce Carlson and Gary Lynch, who started the firm to merge and build upon their collective experiences litigating complex class action matters. In 2014, Carlson Lynch expanded its practice and scope through the addition of named partners Benjamin Sweet and Ed Kilpela. In 2015, the firm continued to grow with the addition of named partner Todd Carpenter, who manages Carlson Lynch’s San Diego office.

Carlson Lynch represents plaintiffs in numerous additional consolidated and individual data beach actions, described in more detail below.

Ex. A 3


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Minn.). Carlson Lynch represents nine different financial institutions in consolidated multidistrict litigation related to the massive data breach that occurred in late 2013. Gary Lynch is on the five-member Plaintiffs’ Executive Committee that is managing this litigation on behalf of all Plaintiffs. A settlement agreement which provides $10 million to affected individual customers was granted final approval in November 2015. A separate settlement providing approximately $39 million in relief to plaintiff financial institutions was given final approval in May 2016.

First Choice Federal Credit Union v. The Wendy’s Company et al, 2:16-cv-0506, (W.D. Pa.). Gary Lynch was appointed co-lead counsel in a group of consolidated cases brought by financial institutions against the Wendy’s fast food chain in the aftermath of a late 2015 data breach that exposed customers’ credit card information. Magistrate Judge Maureen P. Kelly recommended the denial of Wendy’s motion to dismiss in February 2017, and that report and recommendation was adopted by District Judge Nora Barry Fischer in March 2017. The case is still in litigation.

In re Anthem, Inc. Customer Data Security Breach Litig., No. 5:15-md-02617, MDL 2617 (N.D. Cal.). Carlson Lynch represents customers of a national health insurer which experienced a data breach involving the personal information, including social security numbers, of up to an estimated 80 million customers. The case was consolidated and transferred to the Northern District of California in June 2015. Carlson Lynch participated in discovery related to Highmark, the Pennsylvania-based member of the Blue Cross Blue Shield Association and a co-defendant in the MDL. The parties reached a proposed settlement valued at $117 million which received preliminary approval in August 2017. If the settlement is given final approval, it would be the largest data breach settlement on record.

Gennock v. Facebook, Inc. and Cambridge Analytica, LLC, 3:18-cv-1891 (N.D. Cal.). Carlson Lynch filed one of the earliest cases against Facebook and Cambridge Analytica in the wake of public disclosures in March 2018 that Cambridge Analytica extensively mined data from Facebook users for purposes of political and psychological manipulation. Carlson Lynch alleged claims under the Stored Communications Act and the common law doctrines of invasion of privacy and intrusion upon seclusion. Cases related to this unprecedented and unusual breach of trust are likely to be consolidated in an MDL following the JPML’s May 2018 hearing in Chicago.

In re Community Health Systems, Inc., Customer Data Security Breach Litigation, 2:15-cv-00222, MDL 2595 (N.D. Ala.). Gary Lynch serves as a member of the plaintiffs’ steering committee in consolidated multidistrict litigation stemming from a 2014 data breach involving one of the nation’s largest hospital chains. The breach affected over 200 hospitals, and the sensitive personal information of approximately 4.5 million patients was compromised.

Greater Chatauqua Federal Credit Union et al v. Kmart Corporation et al, No. 15-cv-02228 (N.D. Ill.). Gary Lynch served as a member of the plaintiffs’ executive committee in a consolidated case in which financial institutions are seeking recovery for losses sustained as a result of a 2014 data breach at one of the nation’s largest discount retail chains. A settlement was reached and approved in June 2017.

Ex. A 4


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In re SuperValu, Inc. Customer Data Security Breach Litig., 0-14-md-02586, MDL 2586 (D. Minn.). In April 2015, Ed Kilpela of Carlson Lynch was appointed as interim co-lead counsel in this consolidated case. The litigation stems from a 2014 data breach that compromised the sensitive personal and financial information of customers of approximately 1,000 grocery stores operating under a variety of brand names in over a dozen states. The case is on appeal to the 8thCircuit.

In re Ashley Madison Customer Data Security Breach Litig., MDL No. 2669 (E.D. Mo.). Carlson Lynch represents individuals whose highly sensitive account information was leaked from a social media company. The case was consolidated and transferred to the Eastern District of Missouri in December 2015. A class settlement was given final approval in November 2017.

In re Vizio, Inc. Consumer Privacy Litig., MDL No. 2693 (C.D. Cal.). Carlson Lynch represents individuals who purchased Vizio “Smart TVs,” which contained software that collected information about the users in a manner that allegedly violates numerous consumer protection statutes. The case was consolidated and transferred to the Central District of California in April 2016, and Gary Lynch was appointed to the plaintiffs’ interim steering committee. In March 2017, District Judge Staton granted in part and denied in part a motion to dismiss, leaving the most significant claims intact and granting plaintiffs leave to re-plead the dismissed counts. After plaintiffs filed a second consolidated amended complaint, a second motion to dismiss was denied in July 2017. Vizio’s attempt to certify an interlocutory appeal was denied in October 2017.

Dittman et al v. UPMC d/b/a The University of Pittsburgh Medical Center and UPMC McKeesport, (Allegheny Cty., Pa. No. GD-14-003285). Carlson Lynch is representing several employees of the health care group UPMC in a class action stemming from a breach of UPMC’s personnel files. Hundreds of employee files were compromised and numerous fraudulent tax returns were filed using the stolen data. The case is on appeal, and the Pennsylvania Supreme Court accepted review of the case to determine whether Pennsylvania law recognizes a duty on the part of employers to protect their employees’ personal information. Oral argument was heard in April 2018.

Storm et al. v. Paytime, Inc., No. 1:14-cv-011380-JEJ (M.D. Pa.). Carlson Lynch is representing individuals whose sensitive personal and financial information was stolen from the systems of a Pennsylvania payroll processing company. The case was appealed to the Third Circuit and the parties are currently in settlement negotiations.

Sullivan v. Wenner Media LLC, No. 1:16-cv-960 (M.D. Mich.). Carlson Lynch is co-lead counsel for plaintiffs who brought claims against the publisher of Rolling Stone magazine. Plaintiffs allege that Rolling Stone sold subscriber information to marketing partners without the subscriber’s consent, in violation of Michigan state privacy laws. The parties reached a proposed settlement including a $1.1 million settlement fund and alternative forms of relief. A final approval fairness hearing is scheduled for May 2018.

Additional Data Breach/Privacy Cases. In addition to the foregoing, Carlson Lynch represents plaintiffs in several other similar pending data breach and privacy-related actions, including:

Ex. A 5


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• Friske v. Bonnier Corp., 2:16-cv-12799 (E.D. Mich.).• In re Arby’s Restaurant Group, 1:17-mi-55555 (N.D. Ga.).• Bellwether Community Credit Union v. Chipotle Mexican Grill, Inc., 1:17-cv-1102 (D.

Colo.).• Gulf Coast Bank & Trust Co. v. Intercontinental Hotels Group, PLC, 1:18-cv-411 (N.D.

Ga.).• Veridian Credit Union v. Eddie Bauer LLC, 2:17-cv-356 (W.D. Wash.).• In re Premara Blue Cross Customer Data Security Breach Litig., No. 3:15-md-2633-SI,

MDL 2633 (D. Or.).

FACTA Litigation. Carlson Lynch has been counsel for Plaintiffs in numerous class actions alleging a violation of the Fair and Accurate Credit Transaction Act. In addition to more than 20 settled FACTA cases, Carlson Lynch recently obtained a significant denial of a motion to dismiss on standing grounds. In Gennock v. Kirkland’s Inc., 2:17-cv-356 (W.D. Pa.), Magistrate Judge Mitchell and District Judge Cercone both agreed with Carlson Lynch that plaintiffs had standing to pursue their claim, distinguishing several recent unfavorable district and circuit court opinions. The case is currently stayed while the Third Circuit decides an appeal in a case raising similar issues.

FINANCIAL FRAUD

Rescap Bankruptcy, (S.D.N.Y. Bkr.). On November 27, 2013, the Bankruptcy Court in the Southern District of New York granted final approval of a class settlement on behalf of in excess of 45,000 residential mortgage borrowers. Carlson Lynch is co-lead counsel for the class. The settlement is for an allowed claim amount of $300 million dollars. There is a guaranteed payout of approximately $36 million dollars. The debtor assigned its insurance rights to the class and insurance will potentially cover the difference between the $36 million dollar guaranteed payout and the allowed claim amount of $300 million. Upon signing the Order granting final confirmation of the bankruptcy plan, the judge stated that this was the most factually and legally complex matter that he had presided over since taking the bench.

CitiMortgage SCRA Litigation, (S.D.N.Y.). Carlson Lynch was tri-lead counsel in this class action against CitiMortgage on behalf of Sergeant Jorge Rodriguez in the Southern District of New York. This case alleges that CitiMortgage improperly foreclosed upon Mr. Rodriguez’s home (and the homes of similarly situated individuals) while he was serving his country in Iraq, in violation of the Servicemembers Civil Relief Act. The case settled on a class basis, securing a total recovery of $38.2 million. Court granted final approval of the settlement in October 2015.

Pitts v. NovaStar Home Loans, Inc. et al., (S.D., Ga.). Carlson Lynch was co-lead counsel for plaintiffs in this national RESPA class action. The Southern District of Georgia was the MDL court for this litigation. After the Court denied defendant’s motion to dismiss, after the court denied defendants’ motion for summary judgment and granted plaintiffs’ motion for class certification in a related Maryland state court action – where Carlson Lynch was also co-lead counsel, and after extensive discovery including the video depositions of several of defendants’ top executives, the parties participated in multiple mediation sessions and ultimately arrived at a

Ex. A 6


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national cash settlement on behalf of class members for $17.3 million.

In re Community Bank of Northern Virginia and Guaranty National Bank of Tallahassee Secondary Mortgage Loan Litigation, (W.D. Pa./3d Cir.). Carlson Lynch was co-lead class counsel in this national litigation on behalf of second mortgage borrowers under the Real Estate Settlement Procedures Act. The class was certified by the district court, and affirmed by the Third Circuit, 795 F.3d 380 (2015). A class settlement was finalized in early 2017 and obtained a total recovery of $24 million.

Kaher v. Ameriquest Mortgage Co., (W.D. Pa./MDL N.D. Ill.). Carlson Lynch was counsel for plaintiff in connection with this consolidated group of class actions alleging the existence a kick-back scheme in violation of RESPA, along with numerous other unfair lending practices. The specific case being handled by Carlson Lynch created new law under RESPA. Specifically, Carlson Lynch filed this action as a test case to challenge what they viewed as a negative trend in the law regarding how federal trial courts were determining whether a consumer has standing to sue under RESPA, as well as the manner in which damages are calculated under RESPA. Every prior federal trial court to consider these issues had sided with defendants. In opposing the Ameriquest motion to dismiss that was filed in this case, Carlson Lynch argued that these other federal trial courts had fundamentally misinterpreted the legislative history of RESPA, to support their decisions to dismiss the prior cases. In a seminal decision, the United States District Court for the Western District of Pennsylvania departed from the holdings issued by these other federal courts, and agreed with the arguments of Carlson Lynch, denying the motion to dismiss. See Kahrer v. Ameriquest Mortgage Co., 418 F.Supp.2d 748 (W.D. Pa. 2006) (Hay, J.). Multiple federal courts of appeal have adopted the Kahrer reasoning, including at least the Sixth and Third Circuits. This case was ultimately settled as part of MDL proceedings against Ameriquest in the Northern District of Illinois, and final approval of the settlement was granted.

Bannon v. First One Lending, Inc., (C.P., Allegheny County, Pennsylvania). Carlson Lynch was co-lead counsel in this class action filed on behalf of Pennsylvania second mortgage loan borrowers alleging that they were charged excessive settlement fees in violation of the Pennsylvania Secondary Mortgage Loan Act. After the court denied defendant’s motion to dismiss, the case ultimately settled and plaintiffs and the class were refunded 100% of the alleged overcharge.

EFTA Litigation. Beginning in late 2010, Carlson Lynch filed putative class actions on behalf of consumers in more than fifteen federal courts under the Electronic Fund Transfer Act. These cases alleged that various automated-teller machine (“ATM”) operators (primarily financial institutions) violated mandatory ATM fee disclosure requirements, and therefore were not permitted to impose transaction fees on ATM users at their machines. Motions to dismiss were granted in two cases based upon EFTA’s statutory safe harbor provision, and Carlson Lynch appealed the dismissals to the Third Circuit. The Third Circuit agreed with Carlson Lynch and reversed the orders granting the motions to dismiss, and both of those cases were remanded for further proceedings, eventually settling on a class basis. Class settlements were negotiated in at least twenty five additional cases to date. Some cases settled on an individual basis.

Ex. A 7


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CONSUMER PROTECTION/PRODUCTS LIABILITY

Morrow v. Ann Inc., 16-cv-3340 (S.D.N.Y.). Carlson Lynch was co-class counsel in a case alleging deceptive pricing practices by a major national retail chain. After plaintiffs overcame a motions to dismiss, the case settled for $6.1 million worth of class benefits. The settlement was approved in April 2018.

Luca v. Wyndham Hotel Group, LLC, 2:16-cv-746 (W.D. Pa.). Carlson Lynch is co-lead counsel in a class action against the Wyndham hotel companies for violations of New Jersey consumer protection statutes. Plaintiffs allege that Wyndham’s websites deceptively mask the resort fees charged at certain hotels and force patrons to agree to illegal terms and conditions. In 2017, plaintiffs defeated a motion to dismiss filed by two of the primary operating subsidiaries, and the case is currently in the discovery phase.

In re Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litig., MDL No. 2672 (N.D. Cal.). Carlson Lynch represents preowned auto dealers who suffered damages as a result of Volkswagen’s false advertising and defective design with respect to vehicles marketed as “clean diesel.” The case was consolidated before the Hon. Charles R. Breyer in December 2015.

In re McCormick & Company, Inc., Pepper Products Marketing and Sales Practices Litig., MDL No. 2665 (D.D.C.). Carlson Lynch represents consumers who allege that they were misled by McCormick & Company’s practice of “slack-filling” its opaque ground pepper containers. The case was consolidated before the Hon. Ellen Segal Huvelle in December 2015.

Robert Brown, et al. v. Electrolux Home Products, Inc., d/b/a Frigidaire, No. 15-11455 (11th Cir.). In July 2015, Carlson Lynch attorneys co-authored a brief on behalf of Public Justice, P.C.; the National Association of Consumer Advocates; U.S. PIRG (United States Public Interest Research Group); Consumer Action; and the Consumer Federation of California, appearing as amici curiae to the Eleventh Circuit and arguing in support of affirmance of a district court’s certification of a class of purchasers of defective washing machines.

Kobylanski v. Motorola Mobility, Inc., et al., No. 2:13-cv-1181 (W.D. Pa.). Carlson Lynch represented purchasers of MOTOACTV wearable fitness devices who alleged that the devices, although marketed as “sweat-proof” and “rain-resistant,” were in fact susceptible to damage from even slight amounts of moisture. A settlement was reached which provided for full refunds for class members who had previously submitted a claim for water damage to Motorola but were denied a repair or replacement, and additional forms of relief for class members who had not previously complained of water damage. The settlement was approved in October 2014.

Quinn et al. v. Walgreen Co., Wal-Mart Stores, Inc., Supervalu, Inc., and Perrigo Company of South Carolina, Inc., No. 7:12-cv-8187 (S.D.N.Y.). Carlson Lynch served as co-lead counsel on behalf of purchasers of glucosamine/chondroitin products manufactured by Perrigo and sold by various retailers. A settlement was reached in 2014 which provided for a total settlement fund of $2.8 million and provided for full or partial refunds to class members who submitted valid claims. Final approval was granted in March 2015.

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In re Nutramax Cosamin Marketing and Sales Practices Litigation – MDL No. 2498, (D. Md.). Carlson Lynch represented several plaintiffs in nationwide litigation regarding Nutramax’s false and misleading marketing of glucosamine/chondroitin supplements, which multiple studies have determined to be without efficacy for the conditions they purport to treat. After the cases were consolidated for pre-trial proceedings, Carlson Lynch partner Ed Kilpela was appointed to the Executive Committee overseeing the litigation.

In re Wireless Phone Equipment Replacement Insurance Litigation, (C.P. Allegheny County, Pennsylvania). Carlson Lynch was lead counsel in this national litigation alleging consumer fraud in connection with wireless phone equipment replacement insurance. Following the fairness hearing in November, 2004, the Court entered Findings of Fact and Conclusions of Law which commented on the adequacy of Carlson Lynch as lead counsel as follows:

“Class counsel have abundant experience as lead counsel in consumer class action litigation. Indeed, class counsel have frequently appeared before this Court. Other courts have routinely recognized class counsels’ adequacy . . . . This Court readily agrees with these other courts, and finds that Bruce Carlson and Gary Lynch are more than adequate counsel, and indeed are capable and diligent class action attorneys.”

The settlement was approved and the settlement proceeds were distributed to the class.

WAGE AND HOUR LITIGATION

Verma v. 3001 Castor Inc., (E.D. Pa.). As co-class counsel, Carlson Lynch won a $4.5 million jury verdict in 2018 for misclassified workers at a Philadelphia nightclub. The claims were brought under the FLSA and Pennsylvania Minimum Wage Act.

Herron v. Investment Professionals Inc. (W.D. Pa.). Carlson Lynch secured a $450,000 settlement for 12 financial advisors who were misclassified by a financial services company and consequently did not receive overtime compensation. The settlement was approved in February 2018.

Herzfeld v. 1416 Chancellor Inc. (E.D. Pa.). Carlson Lynch is class counsel for a litigation-certified Rule 23 class and FLSA collective of more than 100 nightclub entertainers alleging misclassification and violations of the FLSA and Pennsylvania wage and hour laws. A settlement for a total amount of $415,000 was reached and granted preliminary approval in January 2018. A final approval fairness hearing has been set for June 2018.

Correll v. One Three Five, Inc. (W.D. Pa.). Carlson Lynch was class counsel for a class of several hundred nightclub performers who alleged that they were misclassified by the club’s owner as independent contractors, resulting in violations of the Fair Labor Standards Act and Pennsylvania state wage laws. A class settlement was granted final approval in 2016 and provided $815,000 in total relief for the class.

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Gualano v. Abercrombie & Fitch Stores, Inc., (W.D. Pa). Carlson Lynch was co-lead counsel in this wage and hour litigation alleging that defendant retail clothier was violating federal and state minimum wage laws. Following the fairness hearing in early 2005, where a multi-state settlement was presented to the Court for approval, the Court entered Findings of Fact and Conclusions of Law addressing lead counsels’ adequacy as follows:

“The Court finds the plaintiffs’ counsel, Bruce Carlson and Gary Lynch, are experienced class counsel and that they have met all of the requirements of Rule 23(g)(1)(B) and (C). Consistent with the underlying purpose of Fed. R. Civ. P. 23, plaintiffs’ counsel have achieved, with utmost efficiency, a quality result for the entire class and are commended for the diligence and effective advocacy they have displayed on behalf of their clients.”

Pasci v. Express, LLC, (W.D. Pa.). This case was similar to the Abercrombie case discussed above, and proceeded to a fairness hearing in November 2004, where a multi-state settlement was presented to the Court for approval. Regarding the adequacy of Carlson Lynch, the Court issued Findings and Conclusions stating:

“With respect to the adequacy of counsel, the Court finds that class counsel have capably and vigorously represented the class. Bruce Carlson and Gary Lynch have substantial experience in class-based litigation involving consumer fraud and employment claims . . . . Class counsel achieved an efficient and excellent result on behalf of the class.”

Dwight v. American Eagle Outfitters, Inc., (C.P., Allegheny County, Pennsylvania). Carlson Lynch was lead counsel in this class action alleging that American Eagle violated the minimum wage laws. The parties negotiated a multi-state settlement, which was approved by the trial court. The settlement proceeds have been distributed to the class.

Tarlecki v. Bebe Stores, Inc., (N.D. Cal.). Carlson Lynch was co-lead counsel in this wage and hour litigation alleging that defendant retail clothier was violating federal and state minimum wage laws. Final approval of a class settlement was approved following a fairness hearing in 2009.

Dykeman v. Charming Shoppes, Inc., (Sup. Ct., King County, Washington). Carlson Lynch was co-lead counsel in this case alleging violations of the Washington state minimum wage laws. After the Court denied defendants’ motion to dismiss and granted plaintiffs’ class certification motion, the parties reached a mediated settlement which was approved by the trial judge. The settlement proceeds were distributed to the class in early spring of 2007. Carlson Lynch was also co-lead counsel in a related case in state court in California on behalf of a class of California Charming Shoppes Employees. The parties in that case negotiated a proposed settlement, and final approval was granted following a fairness hearing in May 2008.

Battaline v. Advest, (W.D. Pa.). Carlson Lynch was lead counsel for plaintiffs in this wage and hour class action alleging that defendant stock brokerage company violated state overtime laws. After Defendant filed its answer and substantial informal and formal discovery ensued, the

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parties participated in mediation and reached an agreement regarding a proposed national settlement. The settlement was approved in 2008.

Ellis v. Edward Jones, (N.D. Ohio). Carlson Lynch chaired the Plaintiffs’ Leadership Committee in this wage and hour class action alleging that defendant stock brokerage company violated federal and state overtime laws. After Defendant filed an answer and after significant discovery wherein Defendant produced in excess of 500,000 pages of documents and hundreds of videotapes, the parties commenced mediation to pursue a potential global settlement. The first mediation, which occurred in Atlanta in March 2007, was unsuccessful. Ultimately, the parties participated in a second mediation in San Francisco, at which the parties arrived at the basic terms of a proposed settlement pursuant to which class members from multiple states received in excess of $19,000,000.00. After a fairness hearing on January 5, 2009, the Court granted final approval of the settlement.

Byers v. PNC Financial Services Group, Inc., (W.D. Pa.). Carlson Lynch was lead plaintiff’s counsel in this wage and hour class action alleging that defendant stock brokerage company violated federal and state overtime laws. A multi-state settlement was approved following a fairness hearing in June 2008.

Steen v. A.G. Edwards, Inc., (S.D. Cal.). Carlson Lynch was co-class counsel for plaintiff in this wage and hour litigation alleging that defendant stock brokerage company violated federal and state overtime laws. A mediated national class-based settlement has been reached and preliminary approval has been granted. A fairness hearing was held on August 31, 2009 in Los Angeles, after which the Court has entered an Order granting final approval of the settlement.

Meola v. AXA Financial, Inc., (N.D. Cal.). Carlson Lynch was co-class counsel for plaintiff in this wage and hour litigation alleging that defendant financial services company violated federal and state overtime laws. A mediated national class-based settlement was negotiated in this matter and final approval was granted following a fairness hearing in the fall of 2009.

In re St. Francis Health System, (C.P., Allegheny County Pennsylvania). Carlson Lynch was counsel for the class in connection with this wage and hour litigation on behalf of certain former employees of the St. Francis Health System in Pittsburgh. Plaintiff asserted that the class was deprived of severance benefits when St. Francis Health System was acquired by another hospital group in Western Pennsylvania. Prior to the disposition of Plaintiff’s class certification motion, the parties engaged in extensive mediation before reaching a class-based settlement.

Haag v. Janney Montgomery Scott, (E.D. Pa.). Carlson Lynch was a member of the three firm Executive Committee in this wage and hour class action alleging that defendant stock brokerage company violated federal and state overtime laws. After protracted litigation and two separate mediations, the parties reached a multi-state settlement. A fairness hearing was conducted in Philadelphia on June 30, 2009, where Gary Lynch appeared on behalf of the class. Following the hearing, the Court granted final approval of the settlement.

Steinberg v. Morgan Stanley & Co., (S.D. Cal.). Carlson Lynch was co-class counsel for plaintiff in this wage and hour litigation alleging that defendant stock brokerage company

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violated federal and state overtime laws. A mediated national class-based settlement was reached and final approval of the settlement has been granted.

Ramsey v. Ryan Beck, Inc. (S.D.N.Y.). Carlson Lynch was co-class counsel in this wage and hour class action alleging that defendant stock brokerage company violated federal and state overtime laws. After protracted litigation, the parties reached a multi-state settlement and final approval was granted in June 2010.

Kniess v. Heritage Valley Health Systems, Inc., (C.P., Allegheny County, Pennsylvania). Carlson Lynch was lead counsel in this wage and hour class action alleging the defendant hospital system failed to pay overtime compensation to its nurse practitioners and physician’s assistants. The parties reached a mediated class settlement whereby class members received the majority of the back pay alleged by Carlson Lynch.

Leadbitter v. The Washington Hospital, Inc., (W.D. Pa.). Carlson Lynch was lead counsel in this wage and hour class action alleging the defendant hospital system failed to pay overtime compensation to its nurse practitioners and physician’s assistants. The parties reached a mediated class settlement whereby class members will be eligible to receive the majority of the back pay alleged by Carlson Lynch, and the settlement has received final approval from the Court.

Career Education Corporation Misclassification Litigation, (W.D. Pa.). In early 2011, Carlson Lynch filed a putative collective action on behalf of admissions representatives employed by culinary schools operated by Career Education Corporation. Carlson Lynch alleges that these individuals were misclassified and improperly denied overtime benefits. A class settlement was negotiated in this case and final approval of the settlement was granted in December 2011.

Atrium Centers, LLC Automatic Meal Break Deduction Litigation, (N.D. Ohio). Carlson Lynch was lead counsel in this collective action on behalf of hourly health care workers (primarily nurses) alleging improper pay practices in connection with automatic meal break deductions. After the court granted Plaintiffs’ motion for conditional certification of a collective action under the FLSA, extensive discovery ensued. Following the close of discovery, in the fall of 2012 the Parties engaged in mediation with a former United States Magistrate Judge and reached an agreement to settle the case on a collective basis. The settlement was approved by the court in December 2012 and the settlement proceeds have been distributed.

Northwestern Memorial Healthcare Automatic Meal Break Deduction Litigation, (N.D. Ill.), Carlson Lynch was lead counsel in this collective/class action on behalf of hourly health care workers (primarily nurses) alleging improper pay practices in connection with automatic meal break deductions. After extensive discovery and the denial of Defendant’s motion for summary judgment, the Parties reached a mediated class settlement in the fall of 2012. In December, 2013, the Court granted final approval of the settlement and the settlement proceeds have been distributed to the class.

Crozer-Keystone Health System Overtime Litigation, (E.D. Pa.), Carlson Lynch filed a putative collective action against Crozer-Keystone Health System in the Eastern District of Pennsylvania.

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The Complaint challenges pay practices related to nurse practitioners and/or physicians’ assistants. The plaintiffs in these cases allege that they are illegally being denied overtime compensation by their employers. After discovery, the Parties filed cross motions for summary judgment. In a widely reported opinion issued on January 4, 2011, the Court granted Plaintiff’s motion for summary judgment, holding that Defendant had misclassified individuals in Plaintiff’s job position. Defendant’s motion for reconsideration of the federal court’s summary judgment decision was denied in a twenty one page opinion and order issued on August 15, 2011. Following mediation, the settlement of this case was approved in August 2012.

EMPLOYMENT DISCRIMINATION

White v. United Steel Workers of America, (W.D. Pa.), Carlson Lynch was co-lead counsel in this age-discrimination class action against the U.S.W.A. After overcoming a motion to dismiss on a legal issue regarding which there was a substantial split of authority, the defendant requested mediation to explore the possibility of settlement. After extensive mediation over a one month period in June 2004, the case ultimately settled for an amount that defense counsel characterized as the highest ever paid by the U.S.W.A. in connection with civil litigation.

ANTITRUST

In Re Blue Cross Blue Shield Antitrust Litigation, MDL No. 2406, (N.D. Ala.). Carlson Lynch represents healthcare subscriber plaintiffs in four states in this nationwide class action challenging the anti-competitive practices of Blue Cross/Blue Shield’s nationwide network of local insurers who do not compete with each other based on geographic boundaries. In addition to Carlson Lynch’s work on the individual cases, Carlson Lynch partner Ben Sweet has been appointed by Judge Proctor to the Litigation Committee, and Carlson Lynch associates have been significantly involved in the discovery process.

In Re National Football League’s “Sunday Ticket” Antitrust Litigation, MDL No. 2668, (C.D. Cal.). Carlson Lynch represents small businesses who allege that the NFL and DirectTV abused their market power and conspired to charge supra-competitive prices for access to out-of-market NFL game broadcasts. The cases were consolidated before the Hon. Beverly Reid O’Connell in December 2015.

DISABILITY DISCRIMINATION

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ADA (Americans with Disabilities Act) Accessibility Litigation. Carlson Lynch is currently counsel for plaintiffs in a substantial number of putative class actions filed on behalf of disabled individuals to enforce the ADA’s accessibility requirements. Over the last six years, Carlson Lynch has represented the visually disabled in seeking improved access to ATMs, Point of Sale devices, automated retail kiosks, and websites. Carlson Lynch has also represented individuals with limited mobility in seeking elimination of architectural barriers found in parking lots, paths of entry, and interior store design. These cases have been prosecuted in numerous federal courts across the country. Carlson Lynch has overcome motions to dismiss in more than fifteen of these cases. A substantial number of the cases have been settled, and in all of those cases the defendants have agreed to equitable relief calculated to guarantee the accessibility to public accommodations that is required by the ADA.

Moreover, in January 2016, Magistrate Judge Robert C. Mitchell of the United States District Court for the Western District of Pennsylvania recommended certification of a national class of mobility-disabled individuals who were denied full and equal access to Cracker Barrel stores due to the company’s inadequate centralized ADA maintenance policies. Judge Mitchell recommended that Carlson Lynch be appointed as counsel for the Class. Cracker Barrel has over 630 stores across the country. The report and recommendation was adopted by District Judge Mark Hornak in July 2016. The case subsequently settled, securing injunctive relief for the nationwide class.

More recently, Carlson Lynch is representing a disabled individual in Egan v. Live Nation Worldwide, Inc., 2:17-cv-445 (W.D. Pa.). The claims involve wheelchair inaccessibility and ticket unavailability at Pittsburgh-area concert events promoted by Live Nation and ticketed by Ticketmaster. In March 2018, Judge Mark Hornak denied Live Nation’s attempt to force arbitration of the potential class action. Live Nation is appealing to the Third Circuit.

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FIRM ATTORNEYS

PARTNERS:

R. Bruce Carlson

Bruce Carlson is from Wilkinsburg, Pennsylvania, where he attended the public schools. He graduated from the University of Pittsburgh School of Law in 1989. He was the Executive Editor of the Journal of Law and Commerce in law school. He also obtained his undergraduate degree from the University of Pittsburgh, graduating summa cum laude in political philosophy. After law school, he was employed for approximately four years at Eckert Seamans Cherin & Mellott, in Pittsburgh. Subsequently, he was a member at the Pittsburgh plaintiffs-FELA and mass tort firm previously known as Peirce Raimond, Osterhout, Wade, Carlson & Coulter. During his five year tenure at the Peirce firm, Bruce developed and managed one of the largest, if not the largest, pediatric lead poisoning practices in the country. After his practice evolved and began to focus more on consumer class action litigation, he affiliated the practice with a prominent Pittsburgh-based plaintiffs’ class action firm. During the three and one-half years that he was affiliated with that firm, Bruce originated and was lead counsel in more consumer class cases than any lawyer in Western Pennsylvania. These cases were filed not only in Western Pennsylvania, but in state and federal courts throughout the country. In June 2004, Bruce ended his relationship with his former firm and co-founded Carlson Lynch.

Bruce is admitted to practice in the state courts of Pennsylvania and West Virginia, the

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United States District Courts for the Western, Middle and Eastern Districts of Pennsylvania, the Northern and Southern Districts of West Virginia, the Northern District of Ohio, the Northern, Southern, Eastern and Western Districts of Texas, the District of Maryland, the Western District of Tennessee and the United States Courts of Appeal for the Third, Fifth, Ninth and Eleventh Circuits. He is a member of the Million Dollar Advocates Forum. He is a member of the American Association of Justice, and the Pennsylvania, Western Pennsylvania and West Virginia Trial Lawyers Associations.

Gary F. Lynch

Gary Lynch was born and grew up in Western Pennsylvania. Gary earned his Juris Doctor degree in 1989 from the University of Pittsburgh School of Law, where he served as an Editor of the University of Pittsburgh Law Review, and a Bachelor of Science degree in Accounting from the Pennsylvania State University in 1986. He was admitted to the State Bar of the Commonwealth of Pennsylvania in 1989, and is admitted to practice in the United States Supreme Court, the United States Courts of Appeals for the First, Third, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits, and the United States District Courts for the Western, Middle, and Eastern Districts of Pennsylvania, the Northern and Southern Districts of Ohio, the Northern and Central Districts of Illinois, the Western District of New York, the Eastern and Western Districts of Michigan, and the District of Maryland. Gary has also been admitted pro hac vice in numerous jurisdictions nationwide.

Gary has been engaged in the practice of law for the last twenty-five years, beginning his legal career at Reed Smith, LLP (formerly Reed Smith Shaw & McClay). Since leaving Reed Smith in 1991, Gary has served as the Managing Partner of Lynch & Kunkel and Gary F. Lynch, P.C., focusing his practice on the representation of clients in employment-related matters,particularly complex litigation. Since co-founding Carlson Lynch LTD in June of 2004, Garyhas developed a nationally recognized plaintiffs’ class action practice in the areas of consumerprotection litigation and employee rights.

Gary has served in a leadership capacity in several MDL/class action proceedings. For example, in Ellis v. Edward Jones (N.D. Ohio No. 1:08-cv-00540, MDL No. 1779), he chaired the Plaintiffs’ Leadership Committee in a wage and hour class/collective action alleging that returned more than $19 million to the class. Gary also served as Counsel of Record before the United States Supreme Court in the case of Genesis HealthCare Corp. v. Symczyk.

Gary serves on the Local Rules Advisory Committee for the United States District Court for the Western District of Pennsylvania. He has been rated as a “Super Lawyer” and has received Martindale Hubbell’s “AV” rating. Gary is a frequent local and national Continuing Legal Education lecturer.

Gary is active in a number of community non-profit organizations, including past President and current board member of the Human Services Center, Inc. (an outpatient behavioral healthcare provider), board member of the Highland House, Inc. (a halfway home for women recovering from addiction), and board member of the Lawrence County (Pennsylvania)

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Historical Society.

Benjamin J. Sweet

Ben Sweet is a native Pittsburgher who received his juris doctor, cum laude, from The Dickinson School of Law of the Pennsylvania State University, and his BA, cum laude, from University Scholars Program (now the Schreyer Honors College) of The Pennsylvania State University. While in law school, Ben served as Articles Editor of the Dickinson Law Review, and was also awarded Best Oral Advocate and Best Team in the ATLA Mock Trial Competition.

From 2003 through 2012, first as an associate and for the last several years as Partner, Ben practiced at Kessler Topaz Meltzer & Check LLP in Philadelphia, one of the largest and most prestigious plaintiffs' firms in the country, where he concentrated his practice exclusively in class action litigation, with an emphasis on federal securities litigation. He helped to obtain significant recoveries on behalf of class members in several nationwide federal securities class actions, including: In re Tyco, Int'l Sec. Litig., No. 02-1335-B (D.N.H.) ($3.2 billion total recovery for class members, the largest ever recovery from a single corporate defendant in a federal securities action); In re Wachovia Preferred Securities and Bond/Notes Litig., No. 09-Civ. 6351 (RJS), (S.D.N.Y.) ($627 million recovery for class members).

Justice Sotomayor quoted Ben's co-authored amicus curiae brief on behalf of medical researchers in Matrixx Initiatives, Inc. v. Sircusano, 563 U.S._(2011), a landmark securities case in which the United States Supreme Court held that evidence of company's failure to disclose reports of adverse events associated with a product need not achieve statistical significance to plead the materiality element of a federal securities fraud claim.

Ben has been selected by his peers five times - in 2008, 2010, 2011, 2012 and 2013 - as a Pennsylvania SuperLawyers Rising Star, a distinction bestowed annually on no more than 2.5% of Pennsylvania lawyers under the age of 40. In 2014, he was selected by his peers as a Pennsylvania SuperLawyer. Ben began his career in 2001 at Reed Smith LLP in Pittsburgh, focusing on complex civil and employment litigation. When not practicing law, Ben is an active musician and recording artist who performs regularly in and around Pittsburgh with his band Southside American. A Type I diabetic himself, Ben serves on the Board of Directors of the Western Pennsylvania Chapter of the Juvenile Diabetes Research Foundation. He is the proud father of daughter Riley, 11, and son William, 8.

Edwin J. Kilpela, Jr.

Ed Kilpela is a native of Pittsburgh and a graduate of the Pennsylvania State University and the University of Michigan Law School, where he won the prestigious Campbell Moot Court Competition while earning awards for both best brief and as the best oral advocate in the competition. Ed lives in Mt. Lebanon with his twin sons, Devin and Graham and his wife, Gina.. Ed has litigated and tried complex class-action and mass tort matters both at Carlson Lynch on

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behalf of individuals and consumers and, previously, at both Williams & Connolly LLP and Wheeler Trigg O'Donnell LLP, two of the finest complex litigation firms in the country.

Mr. Kilpela’s current practice focuses on consumer-oriented class actions and financial fraud matters. Currently, Ed represents a class of insurance purchasers in Western Pennsylvania, Rhode Island, and Hawaii in an antitrust conspiracy class-action alleging illegal collusion between the members of the nationwide network of Blue Cross/Blue Shield insurers, resulting in increased insurance premiums and lack of competition in the health insurance market. In addition, Ed serves as counsel for purchasers of glucosamine/chondroitin health supplements who were defrauded by multiple companies in their marketing and advertising of those supplements in which unsupported and medically false claims were made regarding joint health benefits the supplements do not provide.

A representative sample of Ed's past litigation experience includes 1) serving as counsel for a large financial institution and its officers and directors in connection with securities class action and ERISA lawsuits stemming from alleged accounting manipulation and corresponding stock losses; 2) serving as national Counsel for large multinational pharmaceutical corporation in multiple cases across the country defending against allegations that company failed to adequately warn consumers and prescribing health providers about potential product risks; 3) representing a large multinational consumer goods manufacturer in multiple products liability class action matters stemming from claims regarding alleged product defects.

Mr. Kilpela was selected by his peers in 2011, 2012, and 2013 as a Rising Star in SuperLawyers, a distinction given to no more than 2.5% of his peers under the age of 40. In 2016 and 2017, Mr. Kilpela was selected as a Pennsylvania SuperLawyer.

Todd Carpenter

Todd Carpenter is a former shareholder at the Phoenix based, Bonnett, Fairbourn, Friedman & Balint, P.C.. His practice focuses on consumer class action, representing plaintiff classes in major insurance fraud, unfair business practices, false and deceptive advertising, product liability cases and anti-trust violations. Mr. Carpenter has represented plaintiffs in numerous class action proceedings in California and throughout the country, in both state and federal courts.

Mr. Carpenter, through his participation in a multi-district litigation action before U.S. District Court Judge James Lawrence King in Miami, Florida, represented consumers in separate actions against Union Bank, N.A. and Bank of the West to recover damages stemming from alleged fraudulent overdraft fee practices. The cases resulted in favorable settlements, resulting in nearly $50 million dollars in recovered fees to customers. Mr. Carpenter has filed similar actions against several other banks and credit unions across the country, alleging that each institution manipulated the processing of customer debit card purchases to maximize overdraft fees.

Mr. Carpenter has successfully represented several plaintiff classes in recovering statutory penalties resulting from violations of California’s Song Beverly Credit Card Act §1747.08.

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Additionally, Mr. Carpenter’s efforts as part of a collaborative team of lawyers have resulted in the recovery of millions of dollars in compensation for California consumers of food and supplement products arising from misleading advertising claims made by producers and manufacturers about the safety and efficacy of the products.

Mr. Carpenter received his B.B.A in 1999 from the University of New Mexico, where he was awarded the University’s Karen Abraham’s Outstanding Service Award in 1997 and again in 1998 for his development and participation in after school recreational leagues for underprivileged youth. Mr. Carpenter received his law degree, from the University of San Diego School of Law in 2002. While in law school he served as Vice President for the Democratic Student Association and garnered recognition for representing indigent litigants through the University of San Diego School of Law’s Legal Clinic. Mr. Carpenter is a member of the California Bar and has also been admitted to practice in all Federal District Courts in the state of California.

Kelly K. Iverson

Kelly Iverson, a partner at Carlson Lynch, was born and raised in Pittsburgh where she received a degree in Business Management from Chatham University and her Juris Doctor from Duquesne University School of Law. Prior to attending law school, Kelly spent four years working as an insurance claims representative at Travelers Insurance Company where she handled automobile liability claims.

After law school, Kelly joined one of Pittsburgh’s largest law firms where she spent nine years. She was fortunate to have the unusual opportunity at such a firm to advocate on behalf of injured consumers and individuals, in personal injury cases and class actions. Kelly has extensive litigation experience in both state and federal courts. She served as lead counsel at trial in federal court in a medical malpractice action, receiving a verdict in her client’s favor for the maximum statutory damage award. Kelly’s trial practice also includes second chair experience in jury trials, commercial arbitration, and underinsured motorist arbitration. Kelly has also argued in front of the Superior Court of Pennsylvania.

In early 2017, Kelly began working as co-counsel with Bruce Carlson in a class action against a multi-level marking company, LuLaRoe, for improper sales tax charges to consumers. Through this work, Kelly gained firsthand knowledge of the dynamic collaboration between the high-caliber attorneys at this firm. Within a year, Kelly decided to join Bruce and his partners at Carlson Lynch to continue her established practice of advocating for consumers, both individually and on a class basis.

Kelly currently serves on the Board of Millvale Athletic Association, a local fastpitch softball organization. From 2010 through 2017, Kelly served as a high school mock trial attorney advisor for Fort Cherry High School and Pittsburgh Science and Technology Academy.

Kelly lives in Lawrenceville with her partner, Nathan, their three children and their Rottweiler/Lab mix, Brewster.

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Eric D. Zard

Eric Zard, a partner at Carlson Lynch, was born and raised in Minnesota where he received his Bachelor of Science from the University of Minnesota and his Juris Doctor from the University of Saint Thomas School of Law. While in law school, Eric served as an editor for the University of Saint Thomas Law Journal, authored a comment that was published in the University of Saint Thomas Law Journal (Patentability of Human Genetic Information: Exploring Ethical Dilemmas Within the Patent Office and Biotechnology’s Clash with the Public Good, 6 U. St. Thomas L.J. 486 (2009)), and received a Dean’s Award for Negotiations.

After graduating law school, Eric moved to Phoenix, Arizona and began his legal career at Bonnett, Fairbourn, Friedman & Balint, P.C., where he practiced consumer class action litigation for over seven years. During his time in Phoenix, Eric also defended architects, engineers, and other design professionals, businesses, and individuals in civil litigation. Eric has represented commercial landlords in purchase and sales agreements and unique landlord-tenant disputes. Eric represents clients that have been discriminated against, sexually abused and harassed in the work place, clients that have suffered severe physical injuries related to motor vehicle accidents, and individuals in premise liability matters.

In 2017, Eric decided to join a friend and former colleague from Bonnett-Fairbourn, Todd Carpenter, at Carlson Lynch in San Diego, California. Eric continues to represent plaintiffs in a wide-range of matters but his primary focus is consumer class action litigation. Eric has represented numerous clients in both state and federal courts throughout the country.

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ASSOCIATES:

Kristin Graham

Kristy Graham is a native of Pittsburgh, Pennsylvania. She attended the University of Virginia in Charlottesville and graduated in 1998 with a bachelor’s degree in environmental sciences. Before returning to Charlottesville for law school, Kristy taught English in Madrid, Spain and, later, worked as an analyst for Booz Allen Hamilton at its headquarters in Northern Virginia. Kristy graduated from the University of Virginia School of Law in 2003. While in law school, she served as an Articles Editor for the Virginia Law Review.

Kristy began her legal career as a commercial litigation associate with Holland & Hart, a Denver-based law firm with over 400 attorneys in 15 offices. While at Holland & Hart, Kristy was involved in all aspects of litigation in federal and state court, from preparing pleadings and conducting discovery through drafting dispositive motions and supporting briefs. Kristy was also part of a multinational energy company’s defense team in a severance pay class action lawsuit stemming from one of the largest mergers in U.S. history. Prior to joining Carlson Lynch in January 2015, Kristy also practiced law with small firms in Pennsylvania and Colorado. Kristy’s broad array of litigation experience includes general commercial, labor, and employment, ERISA, oil and gas, real estate, and personal injury cases. Kristy works in all aspects of Carlson Lynch’s complex litigation practice.

Jamisen Etzel

Jamisen attended Duquesne University where he graduated magna cum laude in 2008 with a Bachelor of Arts in Political Science. He obtained his law degree from New York University School of Law in 2011. While at NYU Law, Jamisen was Managing Editor of the Journal of Legislation and Public Policy. During the summer of 2010, Jamisen served an internship with United States District Judge William H. Walls of the United States District Court for the District of New Jersey. Jamisen works primarily in the firm’s consumer and employment class litigation practices, and has been involved in most of the firm’s recent appellate work, securing several favorable published opinions.

Pam Miller

Pam graduated from Westminster College in 1989 with a degree in history and political science. She graduated from the University of Pittsburgh School of Law in 1993. Pam oversees the firm’s disability practice.

Kevin Abramowicz

Kevin Abramowicz is a native of Allentown, Pennsylvania. In 2011, Kevin received his bachelor’s degree from the University of Pittsburgh School of Arts and Sciences. Four years later, he graduated, cum laude, from the University of Pittsburgh School of Law, where he served as the Articles Editor for the University of Pittsburgh Law Review and completed an

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internship with the Honorable David Stewart Cercone, United States District Court for the Western District of Pennsylvania. Kevin also was recognized by the Center for Computer-Assisted Legal Instruction for his excellence in Disability Discrimination Law.

Kevin began working at Carlson Lynch after his second year of law school. He continued working with the firm during his third year of law school and became a full-time attorney in October 2015. Kevin has worked with all of the firm’s practice groups.

Brittany Casola

Brittany Casola attended the University of Central Florida in Orlando and graduated in 2012 with a bachelor’s degree in Political Science and a minor in Spanish. Brittany earned her Juris Doctorate from California Western School of Law in 2015 and graduated magna cum laude in the top 10% of her class. Throughout the course of her law school career, she served as a judicial extern to the Honorable Anthony J. Battaglia for the United States District Court, Southern District of California and worked multiple semesters as a certified legal intern for the San Diego County District Attorney’s Office. Brittany was awarded Academic Excellence Awards in law school for receiving the highest grade in Trial Practice, Health Law & Policy, and Community Property.

Kevin Tucker

Kevin Tucker is a graduate of the University of Michigan and the University of Pittsburgh Law School, where he presided over the school’s public interest organization while earning a CALI Award for highest grade in Legislation. He was awarded the school’s Leadership Award upon graduation. Kevin has litigated and tried a wide range of cases, from those involving Section 1983 prisoner civil rights to First Amendment claims against large media entities. Kevin joined Carlson Lynch in 2016. His current practice focuses on consumer-oriented class actions, and matters involving physical and digital architectural barriers for individuals with disabilities. Kevin has represented classes and/or individuals in federal courts throughout the United States.

Elizabeth Pollock Avery

Elizabeth was born and raised in Buffalo, New York. After obtaining her bachelor’s degree from the State University of New York at Buffalo, she attended Indiana University- Bloomington Maurer School of Law, graduating in 2012. While in law school, Elizabeth assisted indigent members of society as a law clerk at the Monroe County Public Defenders’ Office and at the Indiana University Disability Law Clinic.

After graduating, Elizabeth moved to Pittsburgh and worked for a family law firm prior to joining a Plaintiff side employment litigation firm in 2013. As a plaintiff’s employment litigator, Elizabeth worked to right the wrongs committed against employees in a variety of areas of employment law, including the Fair Labor Standards Act, the Family and Medical Leave Act, and litigating cases dealing with sexual harassment, gender discrimination, race, age and

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disability discrimination.

Elizabeth joined Carlson Lynch in 2017 and continues to advocate for the interests of individuals, as she has throughout her legal career.

Bryan Fox

Bryan is originally a native of Atlanta, Georgia. He attended The University of Georgia, where he earned degrees in Political Science and Spanish, magna cum laude. Before returning to UGA for law school, Bryan worked in south Brazil teaching English and music. After graduating law school in 2013, he was hired as an associate with a local class action litigation firm where he practiced complex civil litigation, primarily ERISA and consumer-based class actions. Bryan went on to found his own practice in employment and business law, representing clients in a variety of contexts. Bryan has a passion for standing up and fighting for those who are facing difficult legal problems – this is a principal reason why he joined Carlson Lynch. Class action cases afford access to justice for consumers and others who might not otherwise be able to afford an attorney, or for whom pursuing a case individually might be too difficult. To that end, Bryan is excited to use his skills and talents in representing those in need.

Bryan and his wife Lisa reside in the Pittsburgh neighborhood of Brookline with their rescue pit bull, Ace. In his free time, Bryan enjoys playing music, exploring the Pittsburgh culinary scene, and traveling.

Alyshia Lord

Alyshia grew up in a small town in Texas, right outside of San Antonio. In 2012, she graduated from Texas State University, summa cum laude, with a Bachelor’s in Science and a minor in Sociology. After learning about The California Innocence Project housed at California Western School of Law, Alyshia set her sights on law school in San Diego, California. While in law school, Alyshia focused on devoting her time to causes she truly believed in such as the California Innocence Project, a clinical program dedicated to releasing wrongfully convicted inmates, and the Public Defender’s Office where she interned for three semesters. After she graduated from California Western School of Law in 2015, she began her legal career volunteering for the Legal Aid Society where she assisted low-income clients in the pro bono consumer law clinic. Before joining Carlson Lynch Sweet Kilpela & Carpenter in December 2016, she aggressively advocated for injured workers at a small worker’s compensation firm.

Alyshia practices in the San Diego office and devotes her time to the firm’s employment discrimination and sexual harassment practice areas.

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Derek Markle

Derek is a native of Pittsburgh, Pennsylvania. In 2013, Derek graduated magna cum laude from Saint Francis University in Loretto, Pennsylvania. In 2016, Derek graduated from the Dickinson School of Law of the Pennsylvania State University. While in law school, Derek was a member of the Penn State Law Trial Team and competed at the Academy of Trial Lawyers of Allegheny County’s annual Mock Trial Competition (formerly the Gourley Cup) where he lead his team to a second place finish.

During law school, Derek served as a judicial intern for the Honorable Judith Ference Olson of the Pennsylvania Superior Court and also for the United States Court of Appeals for the Third Circuit with President Judge D. Brooks Smith. Before joining Carlson Lynch, Derek was a summer associate and law clerk at the Pittsburgh office of one of Pennsylvania’s largest law firms.

Derek continues to remain active in both the Saint Francis and Penn State alumni communities. Recently, Derek was elected Vice President of the Saint Francis University National Alumni Association, the youngest person ever to be elected to that office. Derek also sits on the board of directors for his national fraternity, Phi Kappa Theta. In his role, Derek works with the fraternity’s collegiate chapters and their members to insure that the chapter, their programs and culture fall in line with the fraternity’s mission. When Derek is not practicing law, he enjoys golfing, skiing, and is an avid Penn State football fan.

OF COUNSEL:

Tom Withers

Tom became of counsel to Carlson Lynch in June 2008, and often provides advice and counsel to the firm regarding trial strategy. Tom graduated from the University of Georgia law school in 1984. He also received his undergraduate degree from the University of Georgia. After graduating from law school, Tom joined Oliver, Maner and Gray, in Savannah, Georgia, where he was a partner from 1988 until 1990. While at Oliver, Maner and Gray, Tom was primarily engaged in the defense of medical malpractice cases for physicians. During his six years with the firm, Tom tried approximately ten medical negligence cases to verdict, all of which resulted in verdicts for the defendants.

Thereafter, Tom joined the United States Attorney’s Office in the Southern District of Georgia, where he remained for eight years. Tom initially served as an Assistant U.S. Attorney in the Criminal Section before becoming Chief of the Criminal Section in 1993. Tom also served as a Professional Responsibility Officer during his time with the United States Attorney’s Office and was given the Department of Justice’s Director’s Award in 1997. In 1998, Tom left the United States Attorney’s Office and became a founding partner of Gillen Parker & Withers (now, Gillen Withers & Lake, LLC). Tom’s practice focuses on federal and state criminal defense, Medicare/Medicaid fraud, and complex civil litigation.

Tom is admitted to practice in the state courts of Georgia, the United States District

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Courts for the Southern and Northern Districts of Georgia, and the United States Court of Appeals for the Eleventh Circuit.

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Documents

1 CARLSON LYNCH, LLP 2 6 7 8 9 10...Case 3:18-cv-00692-JM-BGS Document 81-2 Filed 08/25/20 PageID.1395 Page 17 of 22 BRITTANY CASOLA Brittany Casola attended the University of Central