Class Counsel for Plaintiffs - eclaim.kccllc.net Attorney... · FleetBoston Corp., 229 F.R.D. 105, 110 (E.D. Pa. 2005).....8 Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011

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______________________________________________________________________________________________________ Notice of Motion - 1 of 2 - 3:15-cv-03831-VC

Joshua B. Swigart, Esq. (SBN 225557) [email protected] David J. McGlothlin, Esq. (SBN 253265) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Abbas Kazerounian, Esq. (SBN 249203) [email protected] Ryan L. McBride, Esq. (SBN 297557) [email protected] Kazerouni Law Group 245 Fischer Ave., Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Class Counsel for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III; on behalf of himself and all others similarly situated,

Plaintiff, v.

Bank of America, N.A., Defendant.

Case No.: 3:15-cv-03831-VC CLASS ACTION Notice of Motion and Motion for Award of Attorneys’ Fees, Costs and Incentive Award Hearing: Date: January 11, 2018 Time: 10:00 am Dept.: Courtroom 4 (17th Floor) Judge: Hon. Vince Chhabria

Case 3:15-cv-03831-VC Document 58 Filed 10/12/17 Page 1 of 2

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______________________________________________________________________________________________________ Notice of Motion - 2 of 2 - 3:15-cv-03831-VC

NOTICE IS HEREBY GIVEN that on January 11, 2018 at 10:00 AM, or as

soon thereafter as the matter may be heard of the above captioned court, located at

450 Golden Gate Avenue, Courtroom 4-17th Floor, San Francisco, CA 94102,

Plaintiffs Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William

E. Florence III, (“Plaintiffs”) move this Court for an award of attorneys’ fees, costs,

and incentive awards to the named class representatives.

This motion is based upon the accompanying Memorandum of Points and

Authorities, any exhibits attached thereto, all pleadings and papers on file in this

action and upon such other matters as the Court deems proper.

Date: October 12, 2017 Hyde & Swigart By:/s/ David J. McGlothlin David J. McGlothlin, Esq. Attorneys for Plaintiff

Case 3:15-cv-03831-VC Document 58 Filed 10/12/17 Page 2 of 2

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______________________________________________________________________________________________________ Memorandum of Points and Authorities 3:15-cv-03831-VC

Joshua B. Swigart, Esq. (SBN 225557) [email protected] David J. McGlothlin, Esq. (SBN 253265) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108-3551 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 Abbas Kazerounian, Esq. (SBN 249203) [email protected] Ryan L. McBride, Esq. (SBN 297557) [email protected] Kazerouni Law Group 245 Fischer Ave., Suite D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 Class Counsel for Plaintiffs


Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III; on behalf of himself and all others similarly situated,

Plaintiff, v.

Bank of America, N.A., Defendant.

Case No.: 3:15-cv-03831-VC CLASS ACTION Memorandum of Points and Authorities in Support of Class Counsel’s Motion for Award of Attorneys’ Fees, Costs, and Incentive Award Hearing: Date: January 11, 2018 Time: 10:00 am Dept.: Courtroom 4 (17th Floor) Judge: Hon. Vince Chhabria

Case 3:15-cv-03831-VC Document 58-1 Filed 10/12/17 Page 1 of 24

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TABLE OF CONTENTS

I. Introduction ...................................................................................................... 1

II. Litigation and Factual Background ................................................................ 1

III. LEGAL STANDARD ................................................................................... 3 IV. Argument ...................................................................................................... 4

1. The requested fees resulted from an agreement reached through arm’s

length negotiations ............................................................................................. 4

2. The requested fees are reasonable, fair, and justified under the percentage-

of-the-fund method ............................................................................................ 6

a. Class Counsel have obtained excellent results for the Class in comparison to awards made in similar cases ................................................. 7

b. The risks of litigation support the requested fees .................................... 8

c. The skill required and quality of work performed support the requested

fees ................................................................................................................. 9

d. Class Counsels’ undertaking of this Action on a contingency-fee basis

supports the requested fees .......................................................................... 10 3. The requested fee is reasonable, fair, and justified under the lodestar

method ............................................................................................................. 12

4. The Number Of Hours Expended Are Reasonable ................................... 13

5. Class Counsel’s Hourly Rates are Reasonable. ......................................... 15

6. The Requested Litigation Costs Are Fair And Reasonable ....................... 16

7. The $5,000 Incentive Award Sought For The Named Class Representatives Are Reasonable And Should Be Approved. .......................... 17

V. Conclusion .................................................................................................... 19


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TABLE OF AUTHORITIES

CASES

Barel v. Bank of America, 255 F.R.D. 393, 402 (E.D. Pa. 2009) .......................... 8

Blum v. Stevenson, 465 U.S. 886, (1994) ............................................................. 15 Bryant v. TRW, Inc., 689 F.2d 72, 79 (5th Cir. 1982) ........................................... 3

Davis v. City and County of San Francisco, 976 F.3d 1536 (9th Cir. 1992) ........ 15

Dennis v. Kellogg Co., 2010 WL 4285011, at *4 (S.D. Cal. Oct. 14, 2010) ........ 5

Di Giacomo v. Plains All Am. Pipeline, 2001 U.S. Dist. LEXIS 25532 ............. 14

Duncan v. JPMorgan Chase Bank, N.A. W.D. Tex. Case No. 5:14-cv-00912-FB

........................................................................................................................... 8 Fischel v. Equit. Life Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002) ...... 13

Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187 (W.D.N.Y. 2005) .............. 14

Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 (N.D. Cal. Jan. 26, 2007)

......................................................................................................................... 12

Gross v. Washington Mutual Bank, F.A., 2006 WL 318814, at *6 (S.D.N.Y. Feb.

26, 2006) .......................................................................................................... 18 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998) .......................... 5

Hartless v. Clorox Co., 273 F.R.D. 630, 643-44 (S.D. Cal. 2011), aff’d in part,

473 F. Appx. 716 (9th Cir. 2012) .................................................................... 16

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). ................................................. 4

In re Activision Sec. Litig., 723 F. Supp. 1373, 1378 (N.D. Cal. 1998) ................ 6

In re Assicurazioni Generali S.p.a. Holocaust Insurance, 2007 WL 601846, at *3 (S.D.N.Y. Feb. 27, 2007) ............................................................................ 18

In re Beverly Hills Fire Litigation, 639 F. Supp. 915 ......................................... 14

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

In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166 (S.D. Cal. 2007) ........ 17

In re Linerboard, 2004 U.S. Dist. LEXIS 10532, 2004 WL 1221350 ................ 14


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In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362 (N.D. Cal. 1996) .......... 17

In re Mercury Interactive Corp., 618 F.3d 988 (9th Cir. 2010) .............................. 3

In re Omnivision Techs., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 2007) .............. 6

In re Rite Aid Corp. Securities Litigation, 396 F.3d 294, 307 (3d Cir. 2005) .... 12

In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d at 1299 ................ 10 Keener v Sears, 03-cv-1265 (C.D. Cal) ................................................................ 8

Hensley v. Eckerhart, 461 U.S. 424 (1983) ............................................................ 7

Kerr v, Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) ............................ 13

King v. United SA FCU, SA-09-CV-0937-NN ..................................................... 7

Lundell v. Dell, Inc., 2006 WL 3507938 (N.D. Cal. Dec. 5, 2006) ...................... 4

Milliron v. T-Mobile USA, Inc., 2009 WL 3345762, at *5 (D.N.J. Sept. 14, 2009) .................................................................................................................. 4

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) ........................................... 17

Nienaber v. Citibank, No. Civ. 04-4054 (S.D.) ..................................................... 8

Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San Francisco, 688

F.2d 615, 625 (9th Cir. 1982) ............................................................................ 4

Omnivision, 559 F. Supp. 2d at 1046-47 ................................................................ 8 People United for Children, Inc. v. City of New York, 2007 WL 582720, at *2

(S.D.N.Y. Feb. 26, 2007) ................................................................................. 19

Perry v. FleetBoston Corp., 229 F.R.D. 105, 110 (E.D. Pa. 2005) ....................... 8

Prods. Liab. Litig., 654 F.3d 935, 942 (9th Cir. 2011) ....................................... 12

Rodriguez v. West Publishing Corp., 563 F.3d 948 (9th Cir. 2009) ..................... 18

Rutti v. Lojack Corp., 2012 U.S. Dist. LEXIS 107677, 19 Wage & Hour Cas. 2d (BNA) 938, 2012 WL 3151077 (C.D. Cal. July 31, 2012) ............................. 16

Sandoval v. Tharaldson Emp. Mgmt., Inc., 2010 WL 2486346, at *6 (C.D. Cal.

June 15, 2010) .................................................................................................... 5

Serrano v. Unruh, 32 Cal. 3d 621(1982). ............................................................. 15

Shames v. Hertz Corp., 2012 U.S. Dist. LEXIS 158577, *60 (S.D. Cal. Nov. 5,


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2012) ................................................................................................................ 16

Sheppard v. Consolidated Edison Co. of NY, 2002 WL 2003206, at*6, n.9

(E.D.N.Y. Aug. 1, 2002) .................................................................................. 19

Spokeo Inc. v. Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016) ....................... 9

Steiner v. Am. Broad. Co., Inc., 248 F. App'x 780, 783 (9th Cir. 2007) ............. 14 Vizcaino v. Microsoft Corp., “courts have routinely enhanced the lodestar to

reflect the risk of non-payment in common fund cases.” 290 F.3d 1043, 1051

(9th Cir. 2002) ................................................................................................. 14

Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047, 1048-1050 (9th Cir. 2002) ... 6

Vizcaino, 290 F.3d at 1048 ..................................................................................... 8

STATUTES

15 U.S.C. § 1681n ................................................................................................. 1

15 U.S.C. § 1681o(a)(2) ........................................................................................ 2

Fed. R. Civ. P. 23(h) .............................................................................................. 2

Fed. R. Civ. P. 30(b)(6) .......................................................................................... 9


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I. INTRODUCTION

Plaintiffs Robert A. Pastor, Regina Florence, William Florence, and Scott

Van Horn (collectively referred to as “Plaintiffs”) move the Court for an award

of attorneys’ fees, costs, and incentive payments as part of this preliminary

approved class action settlement (see Dkt. No. 55)

The Settlement (see Dkt. No. 46-5) creates a common fund in the amount of

$1,645,000.00. [Settlement Agreement, ¶ 32]. Each Class member to make a

claim will receive a pro-rata share of the common fund. [Settlement Agreement,

¶ 69]. Pursuant to the terms of the Settlement Agreement, Class Counsel shall

move the Court for an award of attorneys’ fees (“Motion for Fees”) and costs

not to exceed 30% of the amount actually contributed to the common fund.

[Settlement Agreement, ¶ 53]. Any award of fees and costs approved by the

Court shall be paid from the common fund three days after the Effective Date.

Court approval of Class Counsel’s attorney’s fees and costs is not a condition of

the settlement. [Id.]. Additionally, Plaintiffs seek an incentive award of $5,000

for each named class representative as compensation for their investment of

time, effort, and resources on behalf of the Class.

Plaintiffs now seek an order awarding class counsel $411,250 in attorneys’

fees, which represents 25% of the common fund. Plaintiff further requests

$19,023.42 in expenses. This requested fee amount is fair and reasonable when

compared to the settlement value as well as the lodestar incurred by Class

Counsel.

II. LITIGATION AND FACTUAL BACKGROUND

Plaintiff Pastor filed the initial class action complaint on August 21, 2015

asserting violations of the Fair Credit Reporting Act (“FCRA”) 15 U.S.C. §

1681n [See Dkt. No. 1]. Plaintiffs assert that they are former customers of Bank

of America, N.A. (“BANA”), who was included as a creditor in each Plaintiffs’


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bankruptcy in the U.S. Bankruptcy Court, District of Nevada. [Plaintiff’s First

Amended Complaint, Dkt. No. 48 (“FAC”), ¶¶ 23-24, 40-41, & 52-53. Each

Plaintiff learned by reviewing their credit report that BANA had still conducted

soft pulls of their credit file after the bankruptcy discharge date for the alleged

purpose of conducting account reviews. FAC ¶¶ 29, 46 & 59. Plaintiffs allege

that they did not conduct any business nor incur any additional financial

obligations with BANA since the date of the discharge of their bankruptcies.

FAC ¶¶ 31& 58. In the First Amended Complaint, Plaintiffs alleged that BANA

did not have a permissible purpose to pull their credit file information from their

credit reports because they did not give their consent and their debt had been

discharged in Bankruptcy on the dates that BANA accessed their credit files.

FAC ¶¶ 31, 46 & 59.

BANA vigorously denies all claims asserted in the Action and denies all

allegations of wrongdoing and liability. BANA further maintains that even if

the credit pull was impermissible under the FCRA, it was not the result of

willful conduct, and so neither Plaintiffs nor the class members were entitled to

statutory damages.

After completion of some initial discovery, and once the parties were full

apprised of the strengths and weaknesses of their respective cases, on July 26,

2016 the parties participated in a mediation conducted by Honorable Edward A.

Infante (Ret.) that culminated with the filing of the Motion for Preliminary

Approval. This Court approved the Motion for Preliminary Approval on July 7,

2017. The Agreement, as preliminarily approved by the Court, recognizes the

benefit conferred upon the class by Plaintiffs and Class Counsel, and

acknowledges Plaintiffs right to seek recovery for their reasonable attorneys’

fees and expenses. In this regard, the Agreement provides that Plaintiffs may

petition the Court for an award of attorneys’ fees up to 30% of the common fund


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plus reasonable expenses. This requested fee amount is fair and reasonable

when compared to the settlement value as well as the lodestar incurred by Class

Counsel. III. LEGAL STANDARD

Federal Rules of Civil Procedure provide that “[i]n a certified class action, the court may award reasonable attorneys’ fees and nontaxable costs that are

authorized by law or by the parties agreement.” Fed. R. Civ. P. 23(h). Pursuant

to the terms of the Settlement Agreement in this case, Class Counsel shall move

the Court for an award of attorneys’ fees and costs not to exceed 30% of the

amount actually contributed to the common fund. [Settlement Agreement, ¶ 53].

Additionally, Plaintiffs are entitled to attorneys’ fees pursuant to the FCRA. The FCRA provides that in “the case of any successful action to enforce

any liability under this section,” the consumer shall recover “the costs of the

action together with reasonable attorney's fees as determined by the court.” 15

U.S.C. § 1681o(a)(2). The purpose of awarding attorney fees under the FCRA is

to encourage enforcement of the statute by consumers, acting as “private

attorneys general.” See, Bryant v. TRW, Inc., 689 F.2d 72, 79 (5th Cir. 1982) In common fund cases such as this one, courts within the Ninth Circuit

have discretion to use one of two methods to determine whether the fee request is

reasonable: (1) percentage-of-the-fund; or, (2) lodestar plus a risk multiplier.

Staton, 327 F.3d at 967-68; see also In re Mercury Interactive Corp., 618 F.3d

988, 992 (9th Cir. 2010). “Though courts have discretion to choose which

calculation method they use, their discretion must be exercised so as to achieve a reasonable result.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942

(9th Cir. 2011).

Class Counsel maintain the request for attorneys’ fees is reasonable based

solely upon the extensive arm’s length formal negotiations that serve as

independent confirmation of the fairness of the settlement, including attorneys’


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fees. See Hanlon, 150 F.3d at 1029. The requested fees are also fully supported

under the percentage-of-the-fund and lodestar approach, which Class Counsel

offer as an additional and optional means of cross-checking the requested fees.

IV. ARGUMENT

“Once a party has established that he is entitled to attorneys’ fees, ‘[i]t

remains for the [] court to determine what fee is ‘reasonable.’” Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). Here, as established below and in the

attached Declarations of Counsel, payment of the requested attorneys fees is

reasonable under the both the percentage-of-the-fund and lodestar approach.

1. THE REQUESTED FEES RESULTED FROM AN AGREEMENT

REACHED THROUGH ARM’S LENGTH NEGOTIATIONS

While attorneys’ fee provisions included in class action settlements are

subject to the determination of whether the provision is fundamentally fair, adequate and reasonable, the Ninth Circuit has opined that “the court's intrusion

upon what is otherwise a private consensual agreement negotiated between the

parties to a lawsuit must be limited to the extent necessary to reach a reasoned

judgment that the agreement is not the product of fraud or overreaching by, or

collusion between, the negotiating parties, and that the settlement, taken as a

whole, is fair, reasonable and adequate to all concerned.” Hanlon, 150 F.3d at 1027; citing Officers for Justice v. Civil Serv. Comm'n of City & Cnty. of San

Francisco, 688 F.2d 615, 625 (9th Cir. 1982); (emphasis added); see also,

Lundell v. Dell, Inc., 2006 WL 3507938 (N.D. Cal. Dec. 5, 2006).

In Hanlon, the Ninth Circuit went on to state that where settlement terms,

including attorneys’ fees, are reached through formal mediation, the Court may

rely upon the mediation proceedings “as independent confirmation that the fee was not the result of collusion or a sacrifice of the interests of the class.”

Hanlon, 150 F.3d at 1029. See also Milliron v. T-Mobile USA, Inc., 2009 WL

3345762, at *5 (D.N.J. Sept. 14, 2009) (“the participation of an independent


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mediator in settlement negotiation virtually insures that the negotiations were

conducted at arm’s length and without collusion between the parties”); Sandoval

v. Tharaldson Emp. Mgmt., Inc., 2010 WL 2486346, at *6 (C.D. Cal. June 15,

2010) (“the assistance of an experienced mediator in the settlement process

confirms that the settlement is non-collusive”); Dennis v. Kellogg Co., 2010 WL 4285011, at *4 (S.D. Cal. Oct. 14, 2010) (the parties engaged in a “full-day

mediation session,” which helped to establish that the proposed settlement was

noncollusive). See also 2 McLaughlin on Class Actions, § 6:7 (8th ed.) (“A

settlement reached after a supervised mediation receives a presumption of

reasonableness and the absence of collusion”).

Here, and as previously stated in Plaintiffs’ Motion For Preliminary Approval of Class Action Settlement and Certification of Settlement Class (Dkt.

46, the “Preliminary Approval Motion”), which this Court granted on July 7,

2017 (Dkt. No. 55), the settlement resulted from extensive arm’s length

negotiations. Specifically, the Parties attended mediation facilitated by the

Honorable Edward Infante (Ret.). As a result of the mediation sessions, and

with the experienced guidance of Judge Infante, the Parties agreed to settle this Action, subject to further negotiations and Court approval.

Under these circumstances, the Court may give deference to the mediation

proceedings and the judgment of the Parties regarding the reasonableness of

fees. The arm’s length negotiations, especially those before Judge Infante (Ret.),

serve as “independent confirmation” of the reasonableness of the settlement’s

terms on which Plaintiffs based the request for attorneys’ fees, costs, and

incentive award sought by this Motion. See Hanlon v. Chrysler Corp., 150 F.3d

1011, 1029 (9th Cir. 1998). Additionally, the requested fee is wholly supported

by the percentage-of-the-fund and lodestar methods, which the Court may

employ as a means of assessing the reasonableness of the requested fee.


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2. THE REQUESTED FEES ARE REASONABLE, FAIR, AND JUSTIFIED

UNDER THE PERCENTAGE-OF-THE-FUND METHOD

Courts consider a number of factors to determine the appropriate

percentage of the fund to awarding as attorneys’ fees in a common fund case

including: (a) the results achieved; (b) the risk of litigation; (c) the skill required and the quality of work; (d) the contingent nature of the fee; and, (e) awards made

in similar cases. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047, 1048-1050

(9th Cir. 2002).

The “benchmark” percentage for attorney’s fees in the Ninth Circuit is 25%

of the common fund with costs and expenses awarded in addition to this amount.

Vizcaino, 290 F.3d at 1047. “However, in most common fund cases, the award exceeds that [25%] benchmark.”1 In re Omnivision Techs., 559 F. Supp. 2d

1036, 1047 (N.D. Cal. 2007) (citing In re Activision Sec. Litig., 723 F. Supp.

1373, 1378 (N.D. Cal. 1998)). See also Barbosa v. Cargill Meat Solutions

Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013) (“[t]he typical range of acceptable

attorneys’ fees in the Ninth Circuit is 20 percent to 33.3 percent of the total

settlement value”). “[A]bsent extraordinary circumstances that suggest reasons to lower or increase the percentage, the rate should be set at 30%.” Omnivision,

559 F. Supp. 2d at 1048, citing In re Activision Sec. Litig., 723 F.Supp. at 1378.

Attorneys’ fees are often paid from the common fund, thereby reducing

class members’ recovery, as is this case here. Class Counsel’s request for

attorneys’ fees in the amount of $411,250 equates to 25% of the $1,645,000

Settlement Fund, which is reasonable considering the Ninth Circuit’s benchmark and more recent precedent, as well as the risks and results obtained in this

Settlement. This fee request is unopposed by Bank of America. Also, the

1 In “cases under $10 Million, the awards more frequently will exceed the

25% benchmark.” Morales v. Stevco, Inc., 2013 U.S. Dist. LEXIS 41799, *11 (E.D. Cal. Mar. 22, 2013) (citing Lopez v. Youngblood, 2011 U.S. Dist. LEXIS 99289, *36 (E.D. Cal. Sep. 1, 2011)).


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Settlement Class Members were adequately apprised that Class Counsel would be

seeking up to 30% of the Settlement Fund in attorneys’ fees in the class notice.

In addition, the fee request is fully supported by the factors enunciated in

Vizcaino including: (a) the results achieved; (b) the risk of litigation; (c) the skill

required and the quality of work; (d) the contingent nature of the fee; and, (e) awards made in similar cases.

a. CLASS COUNSEL HAVE OBTAINED EXCELLENT RESULTS

FOR THE CLASS IN COMPARISON TO AWARDS MADE IN

SIMILAR CASES

The results obtained for the class are generally considered to be the most

important factor in determining the appropriate fee award in a common fund case.

See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983); Omnivision, 559 F. Supp. 2d

at 1046; see also Federal Judicial Center, Manual for Complex Litigation, §

27.71, p. 336 (4th Ed. 2004) (the “fundamental focus is on the result actually achieved for class members”) (citing Fed. R. Civ. P. 23(h) committee note).

Standing alone, this factor supports Class Counsel’s fee request.

The Settlement secured by Plaintiffs and Class Counsel provides a

superior recovery for Settlement Class Members as compared to similar FCRA

cases, despite the uncertainty of recovery in FCRA impermissible pull class

actions. The Agreement provides for $1,645,000 in recovery for the approximately 580,000 Settlement Class Members. After deducting attorneys’

fees and costs, a service awards to Plaintiff, and costs of notice and claims

administration, every Class Member who makes a timely and valid claim will be

entitled to a pro rata distribution of the Settlement Fund.

Significantly, the Class Members’ anticipated recovery here is greater than the

results obtained in other FCRA class action settlements. Only two other FCRA

impermissible access account review settlements have been reached in the United

States wherein a common fund was created. The first was a smaller case. See King v.


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United SA FCU, SA-09-CV-0937-NN (W.D. Tex. Final Settlement Approved Oct. 8,

2010, Dkt # 31). The second was the Duncan v. JP Morgan Chase Bank, N.A. case

where the court agreed to an $8.75 million settlement amounting to about $1.00 per

class member. Duncan v. JPMorgan Chase Bank, N.A. W.D. Tex. Case No. 5:14-cv-

00912-FB. In this case, the cash payment available to class members in this settlement

is significantly greater per person than the Duncan case and is approximately $3.05 per

class member.

All other known class action account review cases that have settled have

provided non-cash relief, including short term credit monitoring, credit scores, or other

“coupon-type” relief. See, e.g., Barel v. Bank of America, 255 F.R.D. 393, 402 (E.D.

Pa. 2009) (credit report monitoring); Nienaber v. Citibank, No. Civ. 04-4054 (S.D.)

(credit report monitoring); Perry v. FleetBoston Corp., 229 F.R.D. 105, 110 (E.D. Pa.

2005) (two credit reports and scores); Keener v Sears, 03-cv-1265 (C.D. Cal) (Coupon

for Sears store products).

b. THE RISKS OF LITIGATION SUPPORT THE REQUESTED

FEES

“The risk that further litigation might result in Plaintiffs not recovering at

all, particularly a case involving complicated legal issues, is a significant factor in

the award of fees.” Omnivision, 559 F. Supp. 2d at 1046-47; see also Vizcaino, 290 F.3d at 1048 (risk of dismissal or loss on class certification is relevant to

evaluation of a requested fee).

In litigating this matter, Plaintiffs have identified significant burdens that

each Class Member would bear in the event that Plaintiffs and BANA’s

settlement is not approved. These challenges include the difficulties in

determining whether BANA’s actions in obtaining the credit report were negligent and/or willful and what actual damages, if any, were sustained by class

members. These significant risks make the global class settlement obtained by

Plaintiffs all the more beneficial to the Class Members while also providing


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finality for BANA.

It is possible that the issue of whether BANA acted negligently or

willfully will have to be determined on a case-by-case basis. As discussed

above, each class member will have to prove whether BANA acted negligently

or willfully when BANA accessed that class member’s credit report. Each class

member would have to prove what level of involvement BANA had in the class

member’s bankruptcy and what level of knowledge BANA had that the account

in question had been discharged through bankruptcy. This would be extremely

time-consuming for the class member, BANA, and especially for the court

system.

Additionally, all previous settlements reached on FCRA impermissible

access account review were prior to the Supreme Court’s ruling in Spokeo Inc. v.

Robins, 136 S. Ct. 1540, 194 L. Ed. 2d 635 (2016). Therefore, if this case were

to proceed, Plaintiffs would have to prevail over Defendant’s challenges

regarding standing. Consequently, the risks of continued litigation not only

depicts the high degree of results obtained for the Class, but also further support

the reasonableness of the requested fees.

c. THE SKILL REQUIRED AND QUALITY OF WORK

PERFORMED SUPPORT THE REQUESTED FEES

The “prosecution and management of a complex [] class action requires

unique legal skills and abilities” that are to be considered when evaluating fees.

Omnivision, 559 F. Supp. 2d at 1047. Class Counsel are experienced class action

litigators who have been appointed “class counsel” in numerous consumer class actions. Class Counsel have successfully prosecuted numerous complex consumer

class actions, and have secured noteworthy recoveries for those classes. See

Declaration of Joshua B. Swigart (“Swigart Decl.”), ¶¶ 13-19; Kazerounian

Decl. ¶¶ 13-21; see also Declaration of David J. McGlothlin (“McGlothlin


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Decl.”), ¶¶ 13-19. Class Counsel’s proven track record demonstrates not only the

quality of work performed, but also the skill required to successfully prosecute

large complex class actions.

In the present case, Class Counsel performed significant factual

investigation prior to bringing the action, conducted extensive written discovery, and took a Fed. R. Civ. P. 30(b)(6) confirmatory deposition. Class Counsel

participated in protracted negotiations including a mediation before Judge Infante

(Ret.), which ultimately secured a nationwide settlement for the benefit of the

Class. Kazerounian Decl., ¶ 5.

FCRA class action litigation is often complex. In addition to keeping

themselves apprised of pertinent case law and agency rulings, Mr. Kazerounian and Mr. Swigart have lectured on consumer law issues on several occasions. See

Kazerounian Decl., ¶¶ 22-38; Swigart Decl., ¶ 20. Thus, Class Counsels’ skill and

expertise reflected in the relatively prompt and significant Settlement, supports

the requested fees.

d. CLASS COUNSELS’ UNDERTAKING OF THIS ACTION ON A

CONTINGENCY-FEE BASIS SUPPORTS THE REQUESTED

FEES

The Ninth Circuit has long recognized that the public interest is served by

rewarding attorneys who undertake representation on a contingent basis by compensating them for the risk that they might never be paid for their work. In re

Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d at 1299 (“Contingent fees

that may far exceed the market value of the services if rendered on a non-

contingent basis are accepted in the legal profession as a legitimate way of

assuring competent representation for Plaintiffs who could not afford to pay on an

hourly basis regardless of whether they win or lose”); Vizcaino, 290 F.3d at 1051 (courts reward successful class counsel in contingency cases “for taking risk of

nonpayment by paying them a premium over their normal hourly rates”).


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Class Counsel prosecuted this matter on a purely contingent basis while

agreeing to advance all necessary expenses knowing that Class Counsel would

only receive a fee if there were a recovery. See Kazerounian Decl., ¶ 4; Swigart

Decl., ¶ 4; McGlothlin Decl., ¶ 4. In pursuit of this litigation, Class Counsel have

spent considerable outlays of time and money by, among other things, (1) investigating the action; (2) coordinating and consolidating other putative class

actions into this single action; (3) conducting extensive discovery; (4) negotiating

the settlement; (5) overseeing administration of the Settlement; and (6)

responding to Class Member inquiries. Class Counsel expended these resources

despite the risk that Class Counsel may never be compensated.

Plaintiff’s counsel here have incurred $19,023.42 in costs and spent 520.4 hours litigating this action. Kazerounian Decl., ¶¶ 7-9; Swigart Decl¶¶ 7-9;

McGlothlin Decl., ¶¶ 7-9; McBride Decl., ¶¶ 7-9. Thus, Plaintiff’s counsels’

“substantial outlay, when there is a risk that none of it will be recovered, further

supports the award of the requested fees” in this matter. Omnivision, 559 F.

Supp. 2d at 1047.

As articulated above, the percentage-of-the-fund method is the preferred and most widely used method for determining attorneys’ fees in a common fund

case. The requested fees are fully supported by the factors enunciated by Vizcaino

and is commensurate with the excellent results obtained for the Class and is

comparable or in excess of awards in other FCRA cases, namely Duncan v.

JPMorgan Chase Bank, N.A..

While the requested fees are fully supported by the percentage-of-the-fund

method, it should again be noted that the application of the percentage-of-the-fund

method is optional and may be applied at the Court’s discretion. In addition, the

Court may also apply the lodestar method as another optional means of cross-

checking the requested fees.


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3. THE REQUESTED FEE IS REASONABLE, FAIR, AND JUSTIFIED

UNDER THE LODESTAR METHOD

A court applying the percentage-of-the-fund method may use the lodestar

method as a “cross-check on the reasonableness of a percentage figure.”

Vizcaino, 290 F.3d at 1050. A cross-check, however, is optional. See Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476, at *48 (N.D. Cal. Jan. 26, 2007)

(finding that “where the early settlement resulted in a significant benefit to the

class,” there is no need “to conduct a lodestar cross-check”). If the Court chooses

to perform such a cross-check in this matter, it will confirm that an approximately

25% of $1,645,000 common fund, or $411,250 in attorneys fees, is reasonable.

Primary reliance should be placed on the percentage-of-the-fund method in common fund cases such as this one. See In re Rite Aid Corp. Securities

Litigation, 396 F.3d 294, 307 (3d Cir. 2005)) (“the lodestar cross-check does not

trump the primary reliance on the percentage of common fund method”).2

The first step in the lodestar-multiplier approach is to multiply the number

of hours counsel reasonably expended by a reasonable hourly rate. Hanlon, 150

2 See Silber and Goodrich, Common Funds and Common Problems: Fee Objections and Class Counsel's Response, 17 RevLitig 525, 534 (1998) (the percentage approach avoids numerous drawbacks of the lodestar approach and is preferable because “the attorneys will receive the best fee when the attorneys obtain the best recovery for the class. Hence, under the percentage approach, the class members and the class counsel have the same interest — maximizing the recovery of the class.”). See also In Re Activision Securities Litigation, 723 F. Supp. 1373, 1378-1379 (N.D. Cal. 1989) (holding that the percentage method is preferred over the lodestar method and finding it encourages efficiencies and early resolution); In re Omnivision Techs, Inc., 559 F. Supp. 2d 1036, 1046 (N.D. Cal. 2008) (“[U]se of the percentage method in common fund cases appears to be dominant.”); Jones v. GN Netcom, Inc. (In re Bluetooth Headset Prods. Liab. Litig.), 654 F.3d 935, 942 (9th Cir. 2011) (“Because the benefit to the class is easily quantified in common-fund settlements, we have allowed courts to award attorneys a percentage of the common fund in lieu of the often more time-consuming task of calculating the lodestar.”).


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F.3d at 1029. Once this raw lodestar figure is determined, the Court may then

adjust that figure based upon its consideration of many of the same

“enhancement” factors considered in the percentage-of-the-fund analysis, such as:

(1) the results obtained; (2) whether fee is fixed or contingent; (3) the complexity

of the issues involved; (4) the preclusion of the other employment due to acceptance of the case; and, (5) the experience, reputation, and ability of the

attorneys. See Kerr v, Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975).3

4. THE NUMBER OF HOURS EXPENDED ARE REASONABLE

The accompanying declarations of Class Counsel and senior associate

attorney set forth the hours of work and billing rates used to calculate their

lodestar. Plaintiffs’ attorneys’ hours are summarized below:

PERSON: RATE: HOURS: TOTAL:

ABBAS

KAZEROUNIAN

$605 141.1 $85,365.50

JOSHUA SWIGART $605 87.4 $52,877.00

DAVID

MCGLOTHLIN

$450 231.9 $104,355.00

RYAN MCBRIDE $300 60 $18,000.00

TOTAL: 520.4 $260,597.50

As described in the accompanying declarations, Plaintiffs’ attorneys have

devoted a total of 520.4 hours4 to this litigation thus far, and have a total lodestar

3 The risk inherent in contingency representation is a critical factor. The

Ninth Circuit stresses that “[i]t is an abuse of discretion to fail to apply a risk multiplier when...there is evidence that the case was risky.” Fischel v. Equit. Life Assurance Soc’y, 307 F.3d 997, 1008 (9th Cir. 2002); see also Glass v. UBS Fin. Servs., Inc., 2007 WL 221862, at *16 (N.D. Cal. 2007). 4 Plaintiff’s counsel provide in their respective declarations a summary of major


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$260,597.50, which represents a reasonable multiplier of approximately 1.578.

See Kazerounian Decl., ¶¶ 7 and 8; Swigart Decl., ¶¶ 7 and 8; McGlothlin Decl.

¶¶ 7 and 8; McBride Decl. ¶¶ 7 and 8.

A multiplier of between 4 and 5 in complex cases is not uncommon. See

In re Linerboard, 2004 U.S. Dist. LEXIS 10532, 2004 WL 1221350, at *16

(noting that “during 2001-2003, the average multiplier approved in common

fund class actions was 4.35”) (citation omitted); In re Beverly Hills Fire

Litigation, 639 F. Supp. 915 (E.D. Ky. 1986) (awarding multiplier of 5 for lead

counsel); Di Giacomo v. Plains All Am. Pipeline, 2001 U.S. Dist. LEXIS 25532

(S.D. Tex. Dec. 18, 2001) (approving 5.3 multiplier); Steiner v. Am. Broad. Co.,

Inc., 248 F. App'x 780, 783 (9th Cir. 2007) (approving multiplier of 6.85). As

the Ninth Circuit noted in Vizcaino v. Microsoft Corp., “courts have routinely

enhanced the lodestar to reflect the risk of non-payment in common fund cases.”

290 F.3d 1043, 1051 (9th Cir. 2002). In Viczaino, the court analyzed a table of

multipliers that had been used in other cases and approved a multiplier of 3.65

for that case. Id.

The 520.4 attorney hours include additional time that Class Counsel will

likely spend going forward in seeking final approval of, and implementing the

Settlement, including assisting Class Members with claims and overseeing claims

administration, and preparing and filing the motion for final approval of class

action settlement. See Kazerounian Decl., ¶ 8 (30 additional hours estimated);

tasks performed and time expended. See Sablan v. Department of Finance of Com. of Northern Mariana Islands, 856 F.2d 1317 (9th Cir. 1988) (attorney-fee award need not be preceded by an evidentiary hearing when the record and supporting affidavits are sufficiently detailed to provide an adequate basis for calculating the award and the material facts necessary to calculate the award are not genuinely in dispute). Detailed billings are available upon request by the Court.


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Swigart Decl., ¶ 8 (10 additional hours estimated); McGlothlin Decl. ¶ 8 (30

additional hours estimated); McBride Decl. ¶ 8 (10 additional hours estimated).

Class Counsel’s lodestar with a 1.578 multiplier is therefore reasonable.

Class Counsel prosecuted the claims at issue efficiently and effectively, making

every effort to prevent the duplication of work that might have resulted from

having multiple firms working on this case. In this regard, tasks were reasonably

divided among firms to ensure avoiding the replication of work. Further, tasks

were delegated appropriately among partners, associate attorneys, paralegals, and

other staff. Class Counsel did not include hours incurred by paralegals and other

support staff in their fees request. See Kazerounian Decl., ¶ 10 Swigart Decl., ¶

10; McGlothlin Decl., ¶ 10; McBride Decl., ¶ 10.

5. CLASS COUNSEL’S HOURLY RATES ARE REASONABLE.

Similarly, Class Counsels’ hourly rates are reasonable. In assessing

the reasonableness of an attorney’s hourly rate, courts consider whether the

claimed rate is “in line with those prevailing in the community for similar services

by lawyers of reasonably comparable skill, experience and reputation.” Blum v.

Stevenson, 465 U.S. 886, 895, n.11 (1994). See also Davis v. City and County of

San Francisco, 976 F.3d 1536, 1546 (9th Cir. 1992); and, Serrano v. Unruh, 32 Cal. 3d 621, 643 (1982). Class Counsel here are experienced, highly regarded

members of the bar with extensive expertise in the area of class actions and

complex litigation involving consumer claims like those at issue here. See

Kazerounian Decl., ¶¶ 13-39; Swigart Decl., ¶¶ 13-21; McGlothlin Decl., ¶¶ 13-

26.

Mr. Kazerounian is an adjunct professor at California Western School of Law teaching a consumer law course. Both Mr. Kazerounian and Mr. Swigart

have been approved for an hourly rate of $605. Kazerounian Decl., ¶ 15; Swigart

Decl., ¶ 15. Mr. McGlothlin, a partner at Hyde & Swigart, is also very


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experienced in litigating consumer cases, including class actions, and seeks an

hourly rate of $450. McGlothlin Decl., ¶¶ 13-26.

The billing rate for the partners (i.e., Mr. Kazerounian, Mr. Swigart and

Mr. McGlothlin) is well within the normal range of fees charged by firms in

Southern California for partner work. See Hartless v. Clorox Co., 273 F.R.D. 630, 643-44 (S.D. Cal. 2011), aff’d in part, 473 F. Appx. 716 (9th Cir. 2012)

(approving hourly rates in the San Diego area of $675-795 for partners, up to

$410 for associates, and up to $345 for paralegals); see also POM Wonderful,

LLC v. Purely Juice, Inc., 2008 WL 4351842 at *4 (C.D. Cal) (finding partner

rates of $750 to $475 and associate rates of $425 to $275 reasonable).

Additionally, associate Ryan McBride of Kazerouni Law Group, APC, who has contributed much to this litigation, has significant experience in

litigating consumer actions, which justifies his hourly rate of $300. See McBride

Decl., ¶¶ 13-19. According to the Court in Shames v. Hertz Corp., 2012 U.S.

Dist. LEXIS 158577, *60 (S.D. Cal. Nov. 5, 2012) (“[t]he National Law Journal

data reveals that rates at six national defense firms with San Diego offices

averaged between $550 and $747 per hour for partners and $346 and $508 per hour for associates.”); Rutti v. Lojack Corp., 2012 U.S. Dist. LEXIS 107677, 19

Wage & Hour Cas. 2d (BNA) 938, 2012 WL 3151077 (C.D. Cal. July 31, 2012)

(approving hourly rates of $650 and $750 in FLRA class action).

Therefore, Class Counsels’ hourly rates and combined lodestar of

$260,597.50 with a multiplier of 1.578 is a reasonable. 6. THE REQUESTED LITIGATION COSTS ARE FAIR AND

REASONABLE

“Reasonable costs and expenses incurred by an attorney who creates or

preserves a common fund are reimbursed proportionately by those class members

who benefit from the settlement.” In re Media Vision Tech. Sec. Litig., 913 F. Supp. 1362, 1366 (N.D. Cal. 1996) (citing Mills v. Electric Auto-Lite Co., 396


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U.S. 375, 391-392 (1970). The significant litigation expenses Class Counsel

incurred in this case were necessary to secure the resolution of this litigation. See

In re Immune Response Sec. Litig., 497 F. Supp. 2d 1166, 1177-78 (S.D. Cal.

2007) (finding that costs such as filing fees, photocopy costs, travel expenses,

postage, telephone and fax costs, computerized legal research fees, and mediation expenses are relevant and necessary expenses in class action litigation). Based

upon the discussion herein, Class Counsel believe that the costs incurred in this

matter are fair and reasonable.

Throughout the course of this litigation, Class Counsel had to incur costs

totaling $19,023.42 Kazerounian Decl. ¶ 9; Swigart Decl., ¶ 9. These costs were

necessary to secure the resolution of this litigation and Class Counsel put forward said costs without assurance that Class Counsel would ever be repaid. Most of

the costs were incurred for travel to court hearings, the mediation and

depositions.5

In light of the expenses Class Counsel were required to incur to bring this

case to its current settlement posture, the request for (current) costs of $19.023.42

is reasonable. Class Counsel will likely incur additional costs as this case moves to the final approval stage.

7. THE $5,000 INCENTIVE AWARD SOUGHT FOR THE NAMED

CLASS REPRESENTATIVES ARE REASONABLE AND SHOULD BE

APPROVED.

As the Ninth Circuit has recognized, “named Plaintiffs, as opposed to

designated class members who are not named Plaintiffs, are eligible for

reasonable incentive payments.” Staton, 327 F.3d at 977; Rodriguez v. West

Publishing Corp., 563 F.3d 948, 958 (9th Cir. 2009) (service awards “are fairly

typical in class action cases”). Such awards are intended to compensate class

5 Counsel are willing to provide itemized costs records upon the Court’s

request.


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representatives for work done on behalf of the class [and] make up for financial or

reputational risk undertaken in bringing the action.” Id. Small incentive awards,

such as those requested here, promote the public policy of encouraging

individuals to undertake the responsibility of representative lawsuits.

As stated, the Agreement calls for a payment of $5,000.00 to each of the

named class representatives as an incentive award for their expenditure of time,

effort, and resources in undertaking this action on behalf of the class.

On August 21, 2015 (Dkt No. 1), Plaintiff Robert Pastor filed the initial

complaint against Defendant Bank of America in this matter. Plaintiffs Scott

Van Horn, Regina Florence and William Florence III filed separate putative

class claims against Defendant in the U.S. District Court, District of Nevada

(case nos. 2:16-cv-00362 & 2:16-cv-00365, respectively.) The parties then

entered into a class settlement encompassing all three putative class actions The

parties then consolidated all claims into this case by filing this First Amended

Complaint naming all four individuals as plaintiffs and class representatives

(See Dkt. No. 44).

“Incentive awards are not uncommon in class action cases and are within

the discretion of the court.” Frank v. Eastman Kodak Co., 228 F.R.D. 174, 187

(W.D.N.Y. 2005) (internal quotations omitted). “A powerful basis for separate

awards to named plaintiff in class action settlements is the need to reimburse

them for specific expenses they have incurred, including out-of-pocket costs of

asserting the litigation, the use of leave time in order to attend depositions and

other such costs.” Sheppard v. Consolidated Edison Co. of NY, 2002 WL

2003206, at*6, n.9 (E.D.N.Y. Aug. 1, 2002). Here, this entire litigation would

not have been possible without Pastor’s and the other named plaintiffs’

involvement and cooperation with Class Counsel.

The $5,000 incentive award amount is more than reasonable and in line


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with similar incentive awards routinely granted by courts in class action cases.

See, e.g., People United for Children, Inc. v. City of New York, 2007 WL

582720, at *2 (S.D.N.Y. Feb. 26, 2007) (approving class action settlement that

called for incentive awards to class action plaintiffs ranging from $10,000 to

$15,000); In re Assicurazioni Generali S.p.a. Holocaust Insurance, 2007 WL

601846, at *3 (S.D.N.Y. Feb. 27, 2007) (awarding each of the named

representatives incentive award of $5,000 as part of class action settlement

approval); Gross v. Washington Mutual Bank, F.A., 2006 WL 318814, at *6

(S.D.N.Y. Feb. 26, 2006) (awarding class plaintiff $5,000 incentive award as

part of class action settlement approval).

The $5,000 incentive award, being unopposed, fair and reasonable, and in

line with payments awarded in other class actions, should also be approved.

V. CONCLUSION

For the foregoing reasons, Class Counsel respectfully request that the

Court grant Plaintiffs’ motion for an award of attorneys’ fees in the total amount

of $411,250 (25% of the Settlement Fund), litigation costs of $19,023.42, and an

incentive or service award in the amount of $5,000 to each of the four Class

Representatives. Date: October 12, 2017 Hyde & Swigart By: /s/ David J. McGlothlin David J. McGlothlin Class Counsel


DECLARATION OF ABBAS KAZEROUNIAN 15-cv-0381-VC 1

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David J. McGlothlin, Esq. (SBN: 253265) [email protected] Joshua B. Swigart, Esq. (SBN: 225557) [email protected] Hyde & Swigart 2221 Camino Del Rio South, Suite 101 San Diego, CA 92108 Telephone: (619) 233-7770 Facsimile: (619) 297-1022 ABBAS KAZEROUNIAN (SBN 249203) Kazerouni Law Group, APC 245 Fischer Avenue, Unit D1 Costa Mesa, CA 92626 Telephone: (800) 400-6808 Facsimile: (800) 520-5523 E-mail: [email protected] Attorneys for Plaintiffs


I, Abbas Kazerounian, declare as follows:

1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina

Florence, William Florence, and Scott Van Horn (collectively referred to as

“Plaintiffs”). I am over the age of 18 and am fully competent to make this

declaration. I was admitted to the State Bar of California in 2007 and have

been a member in good standing ever since that time. I have litigated cases

Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY ABBAS KAZEROUNIAN IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT

Robert A. Pastor; Scott M. Van Horn; Regina M. Florence; and William E. Florence III, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

Bank of America, N.A. Defendant.


2 DECLARATION OF ABBAS KAZEROUNIAN 15-cv-0381-VC

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in both state and federal courts in California, Washington, Nevada, Arizona,

Arkansas, New York, New Jersey, Colorado, Tennessee, Ohio, Florida,

Illinois and Texas. I am admitted in every federal district in California and

have handled federal litigation in the federal districts of California. I am

also admitted to the state bars of Texas, Illinois, Washington, Michigan,

District of Columbia, the Ninth Circuit Court of Appeals, the Eighth Circuit

Court of Appeals, and the Supreme Court of the United States.

2. If called as a witness, I would competently testify to the matters herein from

personal knowledge. The declaration is based upon my personal knowledge,

except where expressly noted otherwise.

3. I submit this declaration in support of the Plaintiffs’ motion for fees and

costs and final approval of class action settlement.

4. This action, which was originally filed on August 21, 2015, was taken on a

contingency fee basis agreeing to advance all necessary expenses knowing

that I would only receive a fee if there were a recovery.

5. On July 26, 2016 the parties participated in a mediation conducted by

Honorable Edward A. Infante (Ret.) that culminated with the filing of the

Motion for Preliminary Approval.

6. I have been preliminarily approved as Class Counsel in this matter.

7. I have incurred 111.1 hours in connection with this action, which time

records were carefully reviewed. Specifically, I have incurred hours

reviewing documents, motion practice, communicating with opposing

counsel, communicating with co-counsel on related matters, preparing for

hearings, traveling for depositions, and participating in mediation.

8. In my fee request I have included a request for 30 hours of additional time

that I will likely spend going forward in seeking final approval of, and

implementing the Settlement, including assisting Class Members with

claims and overseeing claims administration, and preparing and filing the



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motion for final approval of class action settlement.

9. As of October 2017, my firm, Kazerouni Law Group along with my co-

counsel’s firm, Hyde & Swigart, have incurred $19.023.42 in litigation

costs.

10. I am not seeking recovery of fees for hours incurred by paralegals working

at Kazerouni Law Group on this action.

11. I believe that the Parties are fully apprised of the relative strengths and

weaknesses of each other’s claims and defenses and the potential risks to

each party of pursuing further litigation in this matter, especially following

mediation.

12. I continue to be unaware of any conflict of interest between Plaintiffs and

any settlement class member or between Plaintiffs and Plaintiffs’ attorneys.

CLASS COUNSEL’S EXPERIENCE 13. Since my admission to the State Bar of California in 2007, I have been

engaged exclusively in the area of consumer rights litigation, primarily in

the area of fair credit reporting, fair debt collections, the defense of debt

collection lawsuits, class action litigation under the Telephone Consumer

Protection Act, California’s invasion of privacy statutes pursuant to Penal

Code § 630, et seq., and false advertising actions concerning consumer

products.

14. The hourly rate that I am seeking in this action is $605, which I believe is

reasonable.

15. Recently, I was approved for an hourly rate of $605 in Oxina v. Lands’ End,

Inc., Case No. 3:14-cv-02577-MMA-NLS (United States District Court,

Southern District of California; Dec. 2, 2016) and Abdeljalil v. GE Capital

Retail Bank, No. 3:12-cv-02078-JAH-MDD (S.D. Cal. Dec. 22, 2016).

16. I was previously approved for an hourly rate of $595 in Mount v. Wells

Fargo Bank, N.A., Case No. B260585 (Court of Appeal of the State of



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California, Second Appellate District; Feb. 10, 2016). Before that, I was

approved for an hourly rate of $565 in Sherman v. Kaiser Foundation

Health Plan, Inc. 3:13-cv-00981-JAH-JMA, Dkt. No. 58 (May 12, 2015).

17. My firm, Kazerouni Law Group, APC, in which I am a principal, has

litigated over 2000 cases in the past eight years. My firm has six offices in

Orange County, California, Oakland, California, San Luis Obispo,

California, Phoenix, Arizona, Las Vegas, Nevada, and Dallas, Texas.

Kazerouni Law Group, APC has extensive experience in consumer class

actions and other complex litigation. My firm has a history of aggressive,

successful prosecution of consumer class actions, Approximately 95%

percent of my practice concerns consumer litigation in general.

KAZEROUNI LAW GROUP, APC’S CONSUMER RELATED EXPERIENCE AND RESULTS

18. A brief summary of a non-inclusive list of notable published decisions are as

follows:

a. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-

GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion

for summary judgment was denied holding that a single call or text

message with the use of an ATDS may be actionable under the TCPA);

b. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-

NLS, 2014 U.S. Dist. LEXIS 9146 (S.D. Cal.) (Defendant’s motion to

dismiss or in the alternative to strike the class allegations was denied

finding that debt collection calls were not exempt from coverage under

the TCPA);

c. Iniguez v. The CBE Group, Inc., 2013 U.S. Dist. LEXIS 127066 (E.D.

Cal.); 13-CV-00843-JAM-AC (The court denied Defendant’s motion to

dismiss and to strike class allegations holding that the TCPA applies to

any call made to a cellular telephone with an ATDS);



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d. Stemple v. QC Holdings, Inc., No. 12-cv-01997-BAS (WVG), 2014 U.S.

Dist. LEXIS 125313 (S.D. Cal. Sep. 5, 2014) (order denying defendant’s

motion for reconsideration of class certification under the TCPA);

e. Chen v. Allstate Ins. Co., 819 F.3d 1136 (9th Cir. 2016) (order affirming

decision finding unaccepted offer of judgment under Fed. R. Civ. P. 68

did not moot the plaintiff’s individual TCPA claims).

19. I have filed and litigated numerous consumer class actions over the last

several years, including but not limited to the following, which I am or have

been personally involved in:

a. Lemieux v. EZ Lube, LLC, et al., 12-CV-01791-JLS-WYG (S.D. Cal.)

(Served as co-lead counsel; finally approved on December 8, 2014);

b. Malta, et al. v. Wells Fargo Home Mortgage, et al., 10-CV-1290-IEG

(BLM) (Served as co-lead counsel for a settlement class of borrowers in

connection with residential or automotive loans and violations of the

TCPA in attempts to collect on those accounts; obtained a common

settlement fund in the amount of $17,100,000; final approval granted in

2013);

c. Conner v. JPMorgan Chase Bank, et al., 10-CV-1284 DMS (BGS) (S.D.

Cal.) (finally approved $11,973,558);

d. In Re: Midland Credit Management, Inc., Telephone Consumer

Protection Act Litigation, 11-md-2286-MMA (MDD) (S.D. Cal.)

(Counsel for a Plaintiff in the lead action, prior to the action being

recategorized through the multi-district litigation process; finally

approved for $18,000,000);

e. In Re: Portfolio Recovery Associates, LLC Telephone Consumer

Protection Act Litigation, 11-md-02295-JAH (BGS) (Counsel for a

Plaintiff in the lead action, prior to the action being recategorized through

the multi-district litigation process; preliminarily approved);



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f. Arthur v. SLM Corporation, 10-CV-00198 JLR (W.D. Wash.)

(Nationwide settlement achieving the then-largest monetary settlement in

the history of the TCPA concerning calls to cellular telephone at the time:

$24.15 million; final approval granted in 2012);

g. Lo v. Oxnard European Motors, LLC, et al., 11-CV-1009-JLS-MDD

(S.D. Cal.) (Achieving one of the highest class member payouts in a

TCPA action of $1,331.25 per claimant; final approval granted in 2012);

h. Sarabri v. Weltman, Weinberg & Reis Co., L.P.A., 10-01777-AJB-NLS

(S.D. Cal.) (Approved as co-lead counsel and worked to obtain a national

TCPA class settlement where claiming class members each received

payment in the amount of $70.00 per claimant; final approval granted in

2013);

i. Barani v. Wells Fargo Bank, N.A., 12-CV-02999-GPC (KSC) (S.D. Cal.)

(Co-lead class counsel in a settlement under the TCPA for the sending of

unauthorized text messages to non-account holders in connection to wire

transfers; finally approved on March 6, 2015 for over $1,000,000);

j. Mills v. HSBC Bank Nevada, N.A., Case No. 12-CV-04010-SI (N.D.

Cal.) (Finally approved for $39,975,000);

k. Martin v. Wells Fargo Bank, N.A., 12-CV-06030-SI (N.D. Cal.);

l. Heinrichs v. Wells Fargo Bank, N.A., 13-CV-05434-WHA (N.D. Cal.);

m. Newman v. ER Solutions, Inc., 11-CV-0592H (BGS);

n. In Re Jiffy Lube International, Inc., MDL No. 2261 (Finally approved for

$47,000,000.00);

o. Jaber v. NASCAR, 11-CV-1783 DMS (WVG) (S.D. Cal.);

p. Ridley v. Union Bank, N.A., 11-CV-1773 DMS (NLS) (S.D. Cal.);

q. Ryabyshchuk v. Citibank (South Dakota) N.A., et al, 11-CV-1236-IEG

(WVG);



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r. Sherman v. Kaiser Foundation Health Plan, Inc., 13-CV-0981-JAH

(JMA) (S.D. Cal.) (Settled for $5,350,000 and finally approved on May

12, 2015; served as co-lead counsel);

s. Rivera v. Nuvell Credit Company LLC, 13-CV-00164-TJH-OP (E.D.

Cal.);

t. Karayan v. Gamestop Corp., 3:12-CV-01555-P (N.D. Texas);

u. Foote v. Credit One Bank, N.A. et al., 13-cv-00512-MWF-PLA (C.D.

Cal.);

v. Webb v. Healthcare Revenue Recovery Group, 13-cv-00737–RS (N.D.

Cal.);

w. Knell, et al. v. FIA Card Services, N.A., 13-CV-01653-AJB-WVG (S.D.

Cal.) (California class action settlement under Penal Code 632 et seq., for

claims of invasion of privacy. Settlement resulted in a common fund in

the amount of $2,750,000; finally approved in August 15, 2014);

x. Hoffman v. Bank of America Corporation, 12-CV-00539-JAH-DHB

(S.D. Cal.) (California class action settlement under Penal Code 632 et

seq., for claims of invasion of privacy. Settlement resulted in a common

fund in the amount of $2,600,000; finally approved on November 6, 2014

and served as co-lead counsel);

y. Couser v. Comenity Bank, 12-cv-02484-MMA-BGS (S.D. Cal. Oc. 2,

2014) (Finally approved for $8,475,000 on May 27, 2015 as served as co-

lead counsel);

z. Couser v. Apria Healthcare, Inc. et al., 13-cv-00035-JVS-RNB (C.D.

Cal. Oct. 27, 2014) (Finally approved on March 9, 2015 and served as

co-lead counsel);

aa. Rose v. Bank of America Corporation et al., 12-cv-04009-EJD (N.D.

Cal.) (Finally approved for $32,000,000 in 2014);



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bb. Newman v. AmeriCredit Financial Services, 11-cv-03041-DMS-BLM

(S.D. Cal.) (finally approving TCPA settlement for over $6,500,000 on

March 28, 2016);

cc. Fox v. Asset Acceptance, LLC, 14-cv-00734-GW-FFM (C.D. Cal. July 1,

2016) (finally approved TCPA class action for $1,000,000; $200,000

cash and $800,000 debt relief);

dd. Barrett v. Wesley Financial Group, LLC, 13-cv-00554-LAB-KSC (S.D.

Cal.) (Class certification granted); and,

ee. Gehrich v. Chase Bank, N.A., 12-cv-5510 (N.D. Cal.) (finally approved

for $34,000,000);

ff. Macias v. Water & Power Community Credit Union, BC515936 (Los

Angeles Superior Court) (Class certification granted under the Rosenthal

Fair Debt Collection Practices Act; class action settlement finally

approved on April 21, 2016);

gg. Mount v. Wells Fargo Bank, N.A., BC395959 (Sup. Ct. Los Angeles)

(finally approved for $5,600,000);

hh. Oxina v. Lands’ End, Inc., 3:14-cv-02577-MMA-NLS (S.D. Cal. 2016)

(finally approved settlement under California Made in the USA statute);

ii. LaPuebla v. BirchBox, Inc., 3:15-cv-00498-BEN-BGS (S.D. Cal. 2016)

(finally approved settlement in unlawful auto-renewal action);

jj. Medeiros v. HSBC Bank Nevada, N.A., 3:14-cv-01786-JLS-MDD

(S.D.Cal. 2016) (preliminarily approved action under the California

Invasion of Privacy Act, Penal Code 632, et seq.);

kk. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal. Nov.

7, 2016) (finally approved for $1,500,000);

ll. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.)

(Class Certification granted and finally approved for $7,000,000).



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20. Many of the cases listed above, which have settled, resulted in the creation

of combined common funds and/or distribution to class member in the

hundreds of millions of dollars. The outstanding results mentioned above

are a direct result of the diligence and tenacity shown by Kazerouni Law

Group, APC and myself, in successfully prosecuting complex class actions.

21. I argued before the Ninth Circuit Court of Appeals in the case of Knutson v.

Sirius XM Radio, No. 12-56120 (9th Cir. 2014) as co-lead counsel, which

resulted in an order in favor of my client. Also, on December 6, 2016, I

argued before the Ninth Circuit Court of Appeals in the case of Marks v.

Crunch San Diego, LLC, No. 14-56834.

ADDITIONAL RELEVANT TRAINING, SPEAKING/TEACHING ENGAGEMENTS AND ASSOCIATIONS

22. I am an adjunct professor at California Western School of Law where I teach

a three-credit course in consumer law.

23. I have undergone extensive training in the area of consumer law and the

Telephone Consumer Protection Act. The following is a list of recent

training conferences I attended:

a. Four-day National Consumer Law Center Conference; Nashville, TN –

2008;

b. Three-day National Consumer Law Center Conference; Portland, OR -

2008;

c. Three-day National Consumer Law Center Conference; San Diego, CA -

2009;

d. Three-day National Consumer Law Center Conference; Seattle, WA -

2011;

e. National Consumer Law Center Conference in 2013;

f. National Consumer Law Center Conference in 2014;

g. National Consumer Law Center Conference in 2015;

h. National Consumer Law Center Conference in 2016;



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i. Three-day CAALA Conference; Las Vegas, NV – 2009;

j. Three-day CAALA Conference; Las Vegas, NV – 2013;

k. Three-day CAALA Conference; Las Vegas, NV – 2015;

l. Three-day CAALA Conference; Las Vegas, NV – 2016;

m. Three-day CAOC Conference – 2014 and 2015;

n. Speaker at ABA National Conference, Business Litigation Section;

Trends in Consumer Litigation; San Francisco, CA – 2013;

o. Speaker at the ABA TCPA National Webinar (Consumer Protection,

Privacy & Information Security, Private Advertising Litigation, and

Media & Technology Committees) – September 2013;

p. Spoke at the 2014 ACA Conference in November 2014;

q. Speaker at ACI Conference in Dallas, TX in September of 2016

concerning The Borrower's Perspective: Insight From The Plaintiffs' Bar

and Consumer Advocates;

r. Speaker on TCPA panel in September of 2016 at the Annual Consumer

Financial Services Conference; and,

s. Due to speak at the 2016 CAOC Conference in November of 2016.

24. As one of the main plaintiff litigators of consumer rights cases in the

Central District of California, I have been requested to and have made

regular presentations to community organizations regarding debt collection

laws and consumer rights, including the Telephone Consumer Protection

Act (“TCPA”). These organizations include Whittier Law School, Iranian

American Bar Association, Trinity School of Law and Chapman Law

School, University of California, Irvine, and California Western School of

Law.

25. I was the principle anchor on Time Television Broadcasting every Thursday

night as an expert on consumer law generally, and the TCPA specifically,

between 2012 and 2013.



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26. I was named Rising Star by San Diego Daily Tribune in 2012, and Rising

Star in Super Lawyers Magazine in 2013, 2014 and 2015. I was named a

Super Lawyer by Super Lawyers Magazine in 2016.

27. I lectured in Class Action Trends at the CAOC 2015 Conference in San

Francisco.

28. I was selected for membership into The National Trial Lawyers: Top 40

Under 40 in 2016.

29. I was a panelist in a webinar, ABA Telephonic Brown Bag re: TCPA, on

August 25, 2015.

30. I lectured in Class Action Trends at the CAOC 2015 Conference in San

Francisco, California.

31. In January of 2016, I spoke on the impact of the Federal Communications

Comission’s 2015 Declaratory Ruling on TCPA litigation at the ABA

National Convention in Salt Lake City, Utah.

32. In May of 2016, I spoke on Class Action Trends at the CAOC seminar in

Palm Springs, California.

33. I lectured on the TCPA before the ABA Business Law Section, Consumer

Financial Services Committee in January 2016 at an event in Utah entitled,

“Impact of the FCC’s 2015 Rulings on TCPA Litigation .”

34. In 2016, I wrote an article entitled “Finding a Balance” that was published

in the Nutrition Business Journal, concerning a lawsuit filed under the

Racketeer Influenced and Corrupt Organization Act.

35. I was published in the Daily Journal in September of 2016, with the title,

“The FDCPA: The Forgotten Statute.”

36. I am often called upon to give legal analysis on popular television and radio

shows such as Dr. Drew Midday Live and Fox 5.

37. In March of 2016, I moderated the Judges Panel on Class Action Trends

and Federal Litigation Trends at the NCLC Conference.



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38. I spoke on privacy rights on a panel before the California State Bar

Convention in 2016.

39. I am a member in good standing of the following local and national

associations:

a. Consumer Attorneys Association of Los Angeles;

b. The Orange County Bar Association;

c. Twice served as former President of the Orange County Chapter of

the Iranian American Bar Association;

d. Member of the Orange County Trial Lawyers Association;

e. Member in good standing of National Association of Consumer

Advocates;

f. Member of Consumer Attorneys of California;

g. Member of the Federal Bar Association;

h. Member of the Leading Forum of the American Association of

Justice;

i. Member of the American Bar Association;

j. Member of the Western Trial Lawyers Association.

I declare under penalty of perjury, under the laws of the United States and

the State of California, that the foregoing is true and correct. Executed this

12th day of October 2017, at San Diego, California.

By: /s/ Abbas Kazerounian

Abbas Kazerounian


DECLARATION OF JOSHUA SWIGART 15-cv-0381-VC

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I, Joshua B. Swigart, declare as follows:

1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina

Florence, William Florence, and Scott Van Horn (collectively referred to as


declaration. I am a member in good standing of the bars of the State of

California, Washington, District of Columbia and Michigan. I am also

Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY JOSHUA SWIGART IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT


Plaintiffs,

v.



2 DECLARATION OF JOSHUA SWIGART 15-cv-0381-VC

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admitted in every federal district in California and have handled federal

litigation in Washington, Arizona, Minnesota, Tennessee and Texas.




3. I submit this declaration in support of the Plaintiffs’ motion for fees and

costs and final approval of class action settlement.


contingency fee basis agreeing to advance all necessary expenses knowing

that I would only receive a fee if there were a recovery.





7. I have incurred 77.4 hours in connection with this action, which time

records were carefully reviewed. Specifically, I have incurred hours

reviewing documents, motion practice, communicating with opposing

counsel, communicating with co-counsel on related matters, preparing for

hearings, and a significant amount of time participating in several

mediations.



implementing the Settlement, including assisting Class Members with

claims and overseeing claims administration, and preparing and filing the

motion for final approval of class action settlement.

9. As of October 12, 2017, my firm, Hyde & Swigart along with my co-

counsel’s firm, Kazerouni Law Group, have incurred $19.023.42 in

litigation costs.



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10. I am not seeking recovery of fees for hours incurred by paralegals working

at Hyde & Swigart on this action.


weaknesses of each other’s claims and defenses and the potential risks to

each party of pursuing further litigation in this matter, especially following

mediation.

12. I continue to be unaware of any conflict of interest between Plaintiffs and

any settlement class member or between Plaintiffs and Plaintiffs’ attorneys. CLASS COUNSEL’S EXPERIENCE

13. Since my admission to the California bar in 2003, I have been engaged

exclusively in the area of consumer rights litigation, primarily in the area of

fair credit reporting, fair debt collections, the defense of debt collection

lawsuits, class action litigation under the Telephone Consumer Protection

Act, California’s invasion of privacy statutes pursuant to Penal Code § 630,

et seq., and false advertising actions concerning consumer products.

14. The hourly rate for my work in this action is $605.

15. I was recently approved for an hourly rate of $605 in Oxina v. Lands’ End,

Inc., 3:14-cv-02577-MMA-NLS (S.D. Cal. Dec. 2, 2016) and Abdeljalil v.

GE Capital Retail Bank, 3:12-cv-02078-JAH-MDD (S.D. Cal. Dec. 22,

2016).

16. I was approved for an hourly rate of $595 in Sherman v. Kaiser Foundation

Health Plan, Inc. 3:13-cv-00981-JAH-JMA, Dkt. No. 58 (May 12, 2015)

and Mount v. Wells Fargo Bank, N.A., Case No. B260585 (Court of Appeal

of the State of California, Second Appellate District; Feb. 10, 2016), and

impliedly so in Couser v. Apria Healthcare Inc., et al., 13-cv-00035-JVS-

RNB, Dkt. No. 50 (C.D. Cal. March 9, 2015), and Lemieux v. EZ Lube, Inc.

et al., 12-cv-01791-BAS-JLB, Dkt. No. 83 (S.D. Cal.). Prior to those cases,

I had been approved for $545 in Knutson v. Schwan’s Home Service, Inc.,

3:12-cv-00964-GPC-DHB, Dkt. No. 151 (S.D. Cal. April 1, 2015), Barani v.



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Wells Fargo Bank, N.A., 3:12-cv-02999-GPC-KSC, Dkt. No. 32 (S.D. Cal.),

Hoffman v. Bank of America, N.A., 12-cv-00539-JAH-DHB, Dkt. No. 67

(S.D. Cal.), and Zaw v. Nelnet Business Solutions, Inc., 13-cv-05788-RS,

Dkt. No. 39 (N. D. Cal.). Thus, I believe my requested hourly billing rate of

$620 is justified.

17. My firm, Hyde & Swigart, in which I am a principal, has litigated over 1,200

cases in the past 13 years. My firm has several offices, including in San

Diego, California; Riverside, California; Phoenix, Arizona; Boulder,

Colorado; Minneapolis, Minnesota; Dallas, Texas; and Las Vegas, Nevada.

18. Hyde & Swigart has extensive experience in consumer class actions and

other complex litigation. My firm has a history of aggressive, successful

prosecution of consumer class actions.

HYDE & SWIGART’S CONSUMER RELATED EXPERIENCE AND RESULTS

19. Hyde & Swigart has extensive experience in consumer related issues. A

brief summary of a non-inclusive list of notable decisions are as follows:

a. Knell v. FIA Card Services, N.A., et al., 12-CV-426 AJB(WVG)(S.D.

Cal. 2014) (Co-lead counsel on a California class action involving

privacy rights under Cal. Penal Code § 632 et seq. Class relief provided

for a common fund in the amount of $2,750,000. Counsel obtained final

approval on August 15, 2014);

b. Hoffman v. Bank of America, N.A., 12-CV-539 JAH(DHB) (S.D. Cal.

2014) (Co-lead counsel on a California class action involving privacy

rights under Cal. Penal Code § 632 et seq. Class relief provided for a

common fund in the amount of $2,600,000. Finally approved on

November 6, 2014);

c. Zaw v. Nelnet Business Solutions, Inc., et al., C 13-05788 RS (N.D. Cal.





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common fund in the amount of $1,188,110. Final approval granted on

December 1, 2014);

d. CashCall, Inc. v. Superior Court, 159 Cal. App. 273 (2008) (Allowing

the original plaintiff who lacked standing in a class action to conduct pre-

certification discovery of the identities of potential plaintiffs with

standing);

e. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) (Co-lead counsel

on a class action involving privacy rights under Cal. Penal Code § 632 et

seq. Appeals court reversing the trial courts granting of Defendant’s

motion for summary judgment after case was certified);

f. Engelen v. Erin Capital Management, LLC, et al., No. 12-55039 (9th Cir.

2013, not for publication, D.C. No.: 3:10-cv-01125-BEN-RBB)

(Reversing the lower court’s granting of summary judgment to the

defendant debt collector on the basis of the bona fide error defense and

remanding for further proceedings);

g. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-

GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion

for summary judgment was denied holding that a single call or text

message with the use of an ATDS may be actionable under the TCPA);

h. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-



finding that debt collection calls were not exempt from coverage under

the TCPA);

i. Iniguez v. The CBE Group, Inc., 13-CV-00843-JAM-AC, 2013 U.S. Dist.

LEXIS 127066 (E.D. Cal.) (The court denying Defendant’s motion to

dismiss and to strike class allegations holding that the TCPA applies to

any call made to a cellular telephone with an ATDS);



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j. Catala v. Resurgent Capital Servs., L.P., 08-CV-2401 NLS, 2010 U.S.

Dist. LEXIS 63501 (S.D. Cal.) (Co-lead counsel on a class settlement

involving the Fair Debt Collection Practices Act);

k. Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104 (C.D. Cal. 2005)

(Summary judgment was granted sua sponte in favor of a debtor where

debt collector violated the Fair Debt Collection Practices Act, when its

employees failed to disclose the debt collector’s identity and the nature of

its business in the messages left on the debtor’s answering machine).

This case has now been followed in at least four different districts

throughout the country.

l. Edstrom v. All Servs. & Processing, 2005 U.S. Dist. LEXIS 2773 (N.D.

Cal. 2005) (Numerous omissions from a letter sent by a debt collector to

members of a homeowners association, and a statement requiring any

dispute to be put in writing, violated 15 U.S.C. § 1692g(a) of the FDCPA

and Cal. Civ. Code §1788.17. The FDCPA required strict compliance;

actual confusion on debtors’ part was not required);

m. Forsberg v. Fid. Nat’l Credit Servs., 2004 U.S. Dist. LEXIS 7622 (S.D.

Cal. 2004) (Plaintiff alleged sufficient facts to support his claim that a

collection company, in its initial communication, did not comply with the

statutory requirements for notice of validation of debts under the

FDCPA);

n. Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (N.D. Cal. 2005)

(Court struck Defendant’s counter claim of the underlying debt in a fair

debt action based on lack of subject matter jurisdiction);

o. Geoffroy, et al. v. Washington Mutual Bank, 484 F. Supp. 2d 1115 (S.D.

Cal. 2007) (Court striking down Defendant’s arbitration agreement as

both procedurally and substantively unconscionable);



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p. Yang v. DTS Financial Group, 07-CV-1731 JLS (WMc) (Holding that

for profit debt settlement companies are covered under the FDCPA and

can be construed as “debt collectors” under 15 U.S.C. § 1692a(6));

q. Mason v. Creditanswers, 2008 U.S. Dist. LEXIS 68575 (Holding that a

forum selection clause causing a California consumer to litigate its claims

seems contrary to the polices advanced by certain consumer protection

statutes);

r. Myers v. LHR, Inc., 543 F.Supp.2d 1215 (2008) (Recognizing actual and

statutory damages in the amount of $92,000 in a default judgment based

on violations of the State and Federal collection statutes);

s. Yates v. Allied Intl Credit Corp., 578 F. Supp. 2d 1251 (2008) (Holding a

debtors claim based on the FDCPA stemming from the filing of a false

police report was not subject to the litigation privilege under Cal. Civ.

Code § 47(b));

t. Owings v. Hunt & Henriques, et al., 2010 U.S. Dist. LEXIS 91819 (S.D.

Cal.) (Recognizing that the Service Members Civil Relief Act applies to

California National Guard Members and that the debt collection

attorney’s false declaration the court violates the FDCPA);

u. Heathman v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS

98742 (S.D. Cal. 2013) (Holding that failing to properly list and disclose

the identify of the original creditor in a state collection pleading is a

violation of the Fair Debt Collection Practices Act under 15 U.S.C. §

1692e);

v. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal. Nov.

7, 2016) (TCPA action finally approved for $1,500,000);

w. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.)

(Class Certification granted and finally approved for $7,000,000).



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ADDITIONAL RELEVANT TRAINING,

SPEAKING/TEACHING ENGAGEMENTS AND ASSOCIATIONS 20. I have undergone extensive training in the area of consumer law. The

following is a list of recent training conferences I attended:

a. National Consumer Law Conference; Oakland, CA – 2003;

b. National Consumer Law Conference (FDCPA Mini-Conference);

Kansas City, MO – 2004;

c. National Consumer Law Conference; Boston, MA – 2004;

d. Five-day extensive one-on-one training with The Barry Law Office;

San Diego, CA –2005;

e. Three-day FDCPA Mini-Conference; Minneapolis, MN – 2005;

f. Four-day extensive one-on-one training with The Barry Law Office;

Minneapolis, MN – 2005;

g. Four-day National Association of Consumer Advocates Conference;

Minneapolis, MN – 2005;

h. Four-day National Consumer Law Center Conference; Nashville, TN

–2008;

i. Three-day National Consumer Law Center Conference; Portland, OR

-2008;

j. Speaker at a Three-day National Consumer Law Center Conference;

San Diego, CA - 2009;

k. Speaker ABA/JAG presentation to military service members and

counsel; MCRD, San Diego CA – 2010;

l. Speaker ABA teleconference on defending consumer credit card debt

and related issues; San Diego, CA – 2010;

m. Three-day National Consumer Law Center Conference; Seattle, WA -

2011;

n. Two-day FDCPA Mini-Conference; New Orleans; LA - 2012;



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o. Two-day National Consumer Law Center Conference on the FDCPA;

Seattle, WA - 2012;

p. National Consumer Law Center Conference, National Convention;

Balitmore, MD - 2013;

q. Speaker ABA National Conference, Business Litigation Section;

Trends in Consumer Litigation; San Francisco, CA - 2013;

r. Speaker National Consumer Law Center; Nuts and Bolts of TCPA

Litigation; San Antonio, TX - 2014;

s. Speaker San Diego County Bar Association; Convergence of the

FDCPA and Consumer Bankruptcy; San Diego, CA - 2014;

t. Guest Speaker at California Western School of Law; Consumer Law

class - 2014;

u. 8th Annual Class Action Seminar; San Francisco, CA – 2014;

v. Speaker regarding class actions at the NCLC National Conference

held in Anaheim, CA in 2016.


associations:

a. National Association of Consumer Advocates;

b. Federal Bar Association, Southern District of California Chapter;

c. San Diego County Bar Association;

d. Riverside County Bar Association;

e. San Bernardino County Bar Association;

f. Enright Inns of Court (2011-2014);

g. American Association for Justice.



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I declare under penalty of perjury, under the laws of the United States and

the State of California, that the foregoing is true and correct. Executed this 12th

day of October 2017, at San Diego, California.

By: /s/ Joshua B. Swigart

Joshua B. Swigart


DECLARATION OF DAVID J. MCGLOTHLIN 15-cv-03831-VC

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I, David J. McGlothlin, declare as follows:

1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina Florence,

William Florence, and Scott Van Horn (collectively referred to as



California, Arizona and Oregon. I am also admitted in every federal district in

Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY DAVID MCGLOTHLIN IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT


Plaintiffs,

v.




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those states and have also handled federal litigation in Georgia, Arizona,

Nevada, Utah, Colorado and Ohio.




3. I submit this declaration in support of the Plaintiffs’ motion for fees and costs

and final approval of class action settlement.


contingency fee basis agreeing to advance all necessary expenses knowing that

I would only receive a fee if there were a recovery.





7. I have incurred 202.8 hours in connection with this action, which time records

were carefully reviewed. Specifically, I have incurred hours reviewing

documents, motion practice, communicating with opposing counsel,

communicating with co-counsel on related matters, preparing for hearings,

and a significant amount of time participating in several mediations.



implementing the Settlement, including assisting Class Members with claims

and overseeing claims administration, and preparing and filing the motion for

final approval of class action settlement.

9. As of October 12, 2017, my firm, Hyde & Swigart along with my co-

counsel’s firm, Kazerouni Law Group, have incurred $19.023.42 in litigation

costs.

10. I am not seeking recovery of fees for hours incurred by paralegals working at



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Hyde & Swigart on this action.


weaknesses of each other’s claims and defenses and the potential risks to each

party of pursuing further litigation in this matter, especially following

mediation.

12. I continue to be unaware of any conflict of interest between Plaintiffs and any

settlement class member or between Plaintiffs and Plaintiffs’ attorneys.

CLASS COUNSEL’S EXPERIENCE 13. Since my admission to the California bar in 2007, I have been engaged

exclusively in the area of consumer rights litigation, primarily in the area of

fair debt collections, the defense of debt collection lawsuits, class action

litigation under the Telephone Consumer Protection Act, California’s invasion

of privacy statutes pursuant to Penal Code § 630, et seq., and false advertising

actions concerning consumer products.

14. The hourly rate for my work in this action is $450.

15. I was recently approved for an hourly rate of $395 in Tabitha Roberts v.

Barrett Asset Recovery Services LLC, et al. (D. of Ariz. May 22, 2017.)

16. In April of 2015 my hourly rate of $365 was approved in the United States

District Court, District of Arizona by the Honorable Stephen P. Logan in

Varela v. Enhanced Acquisitions LLC, case no 2:14-cv-02418-SPL (Ariz.

April 2015) and again approved at the same rate in the United States District

Court, District of Arizona by the Honorable John W. Sedwick in Magee v.

National Credit Systems, Inc., case no 2:16-cv-02809-JJT (Ariz. April 2017).

These cases mentioned occurred in Arizona and were simple Fair Debt

Collection Practices Act cases. Thus, I believe my hourly billing rate of $425

in the California market for this complex and lengthy class action is justified.

17. My firm, Hyde & Swigart, in which I am a partner, has litigated over 1,000

cases in the past 10 years I have been employed as an attorney. My firm has



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several offices, including in San Diego, California; Riverside, California;

Phoenix, Arizona; Boulder, Colorado; Minneapolis, Minnesota; Dallas, Texas;

and Las Vegas, Nevada.

18. Hyde & Swigart has extensive experience in consumer class actions and other

complex litigation. My firm has a history of aggressive, successful prosecution

of consumer class actions.

HYDE & SWIGART’S CONSUMER RELATED EXPERIENCE AND RESULTS

19. Hyde & Swigart has extensive experience in consumer related issues. A brief

summary of a non-inclusive list of notable decisions are as follows:

a. Knell v. FIA Card Services, N.A., et al., 12-CV-426 AJB(WVG)(S.D. Cal.



common fund in the amount of $2,750,000. Counsel obtained final

approval on August 15, 2014);

b. Hoffman v. Bank of America, N.A., 12-CV-539 JAH(DHB) (S.D. Cal.



common fund in the amount of $2,600,000. Finally approved on November

6, 2014);

c. Zaw v. Nelnet Business Solutions, Inc., et al., C 13-05788 RS (N.D. Cal.



common fund in the amount of $1,188,110. Final approval granted on

December 1, 2014);

d. CashCall, Inc. v. Superior Court, 159 Cal. App. 273 (2008) (Allowing the

original plaintiff who lacked standing in a class action to conduct pre-



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certification discovery of the identities of potential plaintiffs with

standing);

e. Kight v. CashCall, Inc., 200 Cal. App. 4th 1377 (2011) (Co-lead counsel on

a class action involving privacy rights under Cal. Penal Code § 632 et seq.

Appeals court reversing the trial courts granting of Defendant’s motion for

summary judgment after case was certified);

f. Engelen v. Erin Capital Management, LLC, et al., No. 12-55039 (9th Cir.

2013, not for publication, D.C. No.: 3:10-cv-01125-BEN-RBB) (Reversing

the lower court’s granting of summary judgment to the defendant debt

collector on the basis of the bona fide error defense and remanding for

further proceedings);

g. Sherman v. Yahoo!, Inc., 2014 U.S. Dist. LEXIS 13286; 13-CV-0041-

GPC-WVG (S.D. Cal.) (TCPA class action where Defendant’s motion for

summary judgment was denied holding that a single call or text message

with the use of an ATDS may be actionable under the TCPA);

h. Olney v. Progressive Casualty Insurance Company, 13-CV-2058-GPC-



finding that debt collection calls were not exempt from coverage under the

TCPA);

i. Iniguez v. The CBE Group, Inc., 13-CV-00843-JAM-AC, 2013 U.S. Dist.

LEXIS 127066 (E.D. Cal.) (The court denying Defendant’s motion to

dismiss and to strike class allegations holding that the TCPA applies to any

call made to a cellular telephone with an ATDS);

j. Catala v. Resurgent Capital Servs., L.P., 08-CV-2401 NLS, 2010 U.S.

Dist. LEXIS 63501 (S.D. Cal.) (Co-lead counsel on a class settlement

involving the Fair Debt Collection Practices Act);



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k. Hosseinzadeh v. M.R.S. Assocs., 387 F. Supp. 2d 1104 (C.D. Cal. 2005)

(Summary judgment was granted sua sponte in favor of a debtor where

debt collector violated the Fair Debt Collection Practices Act, when its

employees failed to disclose the debt collector’s identity and the nature of

its business in the messages left on the debtor’s answering machine). This

case has now been followed in at least four different districts throughout

the country.

l. Edstrom v. All Servs. & Processing, 2005 U.S. Dist. LEXIS 2773 (N.D.

Cal. 2005) (Numerous omissions from a letter sent by a debt collector to

members of a homeowners association, and a statement requiring any

dispute to be put in writing, violated 15 U.S.C. § 1692g(a) of the FDCPA

and Cal. Civ. Code §1788.17. The FDCPA required strict compliance;

actual confusion on debtors’ part was not required);

m. Forsberg v. Fid. Nat’l Credit Servs., 2004 U.S. Dist. LEXIS 7622 (S.D.

Cal. 2004) (Plaintiff alleged sufficient facts to support his claim that a

collection company, in its initial communication, did not comply with the

statutory requirements for notice of validation of debts under the FDCPA);

n. Sparrow v. Mazda Am. Credit, 385 F. Supp. 2d 1063 (N.D. Cal. 2005)

(Court struck Defendant’s counter claim of the underlying debt in a fair

debt action based on lack of subject matter jurisdiction);

o. Geoffroy, et al. v. Washington Mutual Bank, 484 F. Supp. 2d 1115 (S.D.

Cal. 2007) (Court striking down Defendant’s arbitration agreement as both

procedurally and substantively unconscionable);

p. Yang v. DTS Financial Group, 07-CV-1731 JLS (WMc) (Holding that for

profit debt settlement companies are covered under the FDCPA and can be

construed as “debt collectors” under 15 U.S.C. § 1692a(6));

q. Mason v. Creditanswers, 2008 U.S. Dist. LEXIS 68575 (Holding that a

forum selection clause causing a California consumer to litigate its claims



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seems contrary to the polices advanced by certain consumer protection

statutes);

r. Myers v. LHR, Inc., 543 F.Supp.2d 1215 (2008) (Recognizing actual and

statutory damages in the amount of $92,000 in a default judgment based on

violations of the State and Federal collection statutes);

s. Yates v. Allied Intl Credit Corp., 578 F. Supp. 2d 1251 (2008) (Holding a

debtors claim based on the FDCPA stemming from the filing of a false

police report was not subject to the litigation privilege under Cal. Civ.

Code § 47(b));

t. Owings v. Hunt & Henriques, et al., 2010 U.S. Dist. LEXIS 91819 (S.D.

Cal.) (Recognizing that the Service Members Civil Relief Act applies to

California National Guard Members and that the debt collection attorney’s

false declaration the court violates the FDCPA);

u. Heathman v. Portfolio Recovery Assocs., LLC, 2013 U.S. Dist. LEXIS

98742 (S.D. Cal. 2013) (Holding that failing to properly list and disclose

the identify of the original creditor in a state collection pleading is a

violation of the Fair Debt Collection Practices Act under 15 U.S.C. §

1692e);

v. Stemple v. QC Holdings, Inc., 12-cv-01997-BAS-WVG (S.D. Cal. Nov. 7,

2016) (TCPA action finally approved for $1,500,000);

w. Abdeljalil v. GE Capital Retail Bank, 12-cv-02078−JAH−MDD (S.D. al.)

(Class Certification granted and finally approved for $7,000,000). ADDITIONAL RELEVANT TRAINING,

SPEAKING/TEACHING ENGAGEMENTS AND ASSOCIATIONS 20. I have been requested to and have made regular appearances on KFNN 1510

Financial News Radio regarding consumer rights and debt collection laws.

21. I have appeared on KPHO’s Channel 5 10:00 p.m. news program to discuss

abusive debt collectors and consumer’s rights.



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22. I have appeared on 3TV’s news program to discuss abusive debt collectors and

the credit industry.

23. I have appeared on the local NBC affiliate’s 12 News to discuss consumer

issues including the recent fraud by Wells Fargo Bank.

24. I have given a presentation regarding consumer rights and the military to the

Judge Advocates Office at the Marine Corp Air Station Base in Yuma,

Arizona.

25. I have undergone extensive training in the area of consumer law. The

following is a list of recent training conferences I attended:

a. Three-day National Consumer Law Center: Fair Debt Collection

Practices Training Conference, in Tucson, AZ - 2007;

b. Four-day National Consumer Law Center Conference; Nashville,

TN – 2008;

c. Three-day National Consumer Law Center Conference; Portland,

OR - 2008;

d. Three-day National Consumer Law Center Conference; San Diego,

CA - 2009.

e. Three-day National Consumer Law Center: Fair Debt Collecting

Training Conference in Seattle, WA in March 2011;

f. Three-day National Consumer Law Center: Fair Debt Collecting

Training Conference in New Orleans, LA in March 2012;

g. Four-day National Consumer Law Center Conference; Seattle, WA

– October, 2012;

h. Three-day National Consumer Law Center: Fair Debt Collection

Practices Training Conference, in Baltimore, MD - March 2013;

i. Three-day National Consumer Law Center: Fair Debt Collection

Practices Training Conference, in San Antonio, Tx - March 2014.

j. Consumer Attorneys Association of Los Angeles, Annual



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Convention; Las Vegas, NV – September 2014;

k. Four-day National Consumer Law Center Conference; Tampa, FL –

November, 2014;

l. Three-day National Consumer Law Center: Fair Credit Reporting

Act Training Conference, in Las Vegas, NV - May 2015;

m. Consumer Attorneys Association of Los Angeles, Annual

Convention; Las Vegas, NV – September 2015;

n. Four-day National Consumer Law Center Conference; San

Antonio, TX – November, 2015;

o. Three-day National Consumer Law Center: Fair Debt Collection

Practices Training Conference, in Miami, FL - March 2016;

p. Four-day National Consumer Law Center Conference; Anaheim,

CA – October 2016.


associations:

a. National Association of Consumer Advocates;

b. Federal Bar Association,;

c. Maricopa County Bar Association;

I declare under penalty of perjury, under the laws of the United States and the

State of California, that the foregoing is true and correct. Executed this 12th day of

October 2017, at Phoenix, Arizona.

By: /s/ David J. McGlothlin

David J. McGlothlin


DECLARATION OF RYAN MCBRIDE 15-cv-03831-VC

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I, Ryan McBride, declare as follows:

1. I am one of the attorneys for the Plaintiffs Robert A. Pastor, Regina Florence,

William Florence, and Scott Van Horn (collectively referred to as



California, Arizona, Washington, and Utah.

Case No.: 15-cv-03831-VC DECLARATION OF ATTORNEY RYAN MCBRIDE IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES, COSTS AND INCENTIVE PAYMENT


Plaintiffs,

v.




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3. I submit this declaration in support of the Plaintiffs’ motion for fees and costs

and final approval of class action settlement.


contingency fee basis agreeing to advance all necessary expenses knowing that

I would only receive a fee if there were a recovery.





7. I have incurred 50 hours in connection with this action, which time records

were carefully reviewed. Specifically, I have incurred hours reviewing

documents, motion practice, communicating with opposing counsel,

communicating with co-counsel on related matters, preparing for hearings,

and a significant amount of time participating in mediation.



implementing the Settlement, including assisting Class Members with claims

and overseeing claims administration, and preparing and filing the motion for

final approval of class action settlement.

9. As of June 2017, my firm, Kazerouni Law Group along with my co-counsel’s

firm, Hyde & Swigart, have incurred $19.023.42 in litigation costs.

10. I am not seeking recovery of fees for hours incurred by paralegals working at

Kazerouni Law Group on this action.


weaknesses of each other’s claims and defenses and the potential risks to each



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party of pursuing further litigation in this matter, especially following

mediation.

12. I continue to be unaware of any conflict of interest between Plaintiffs and any

settlement class member or between Plaintiffs and Plaintiffs’ attorneys.

COUNSEL’S EXPERIENCE

13. I have been licensed to practice law since June 2014. I practice law full time as

a private consumer rights plaintiff’s attorney and am now the Managing

Associate of the Arizona office for Kazerouni Law Group. My primary

responsibilities include managing the Arizona office including and handling

all attorney responsibilities within Arizona.

14. I regularly manage and supervise other associates and staff within our firm,

assigning projects and giving advice.

15. I was primarily responsible for opening our office in Phoenix, Arizona, and

developing this location’s caseload.

16. Kazerouni Law Group Arizona branch’s practice is almost exclusively devoted

to consumer rights and the litigation of Federal Fair Credit Reporting Act

matters.

17. I have undergone broad training in the area of consumer rights. The following

is a list of recent training conferences:

! Three-day National Consumer Law Center: Fair Credit Reporting Act

Training Conference, in Las Vegas, NV - May 2015;

! Four-day National Consumer Law Center Conference; San Antonio, TX –

November, 2015;

18. I have been requested to make an appearance on ABC Channel 15 news

regarding the recent Volkswagen scandal and class action settlement.



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19. Based on the foregoing and the fact that I have been practicing for over three

years, I believe the hourly rate of $300.00 is a fair and reasonable hourly rate.

I declare under penalty of perjury, under the laws of the United States and the

State of California, that the foregoing is true and correct. Executed this 12th day of

October 2017, at Phoenix, Arizona.

By: /s/ Ryan McBride

Ryan McBride


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HY

DE

& S

WIG

AR

T

San

Die

go, C

alifo

rnia

Robert A. Pastor v. Bank Of AmericaUnited States District Court District of ArizonaCase No.: 3:15-cv-03831-VC

PROOF OF SERVICE

I, David McGlothlin, declare as follows:

I am over the age of eighteen years and not a party to the case. I am employed in the County of Maricopa, State of Arizona, where the mailing occurs. My business address is 2633 E. Indian School Road, Suite 460, Phoenix, AZ 85016. I am readily familiar with our business’ practice of collecting, processing, and mailing of correspondence and pleadings for mail with the United States Postal Service.

On October 12, 2017, I served the foregoing document(s) described as:

• Notice of Motion and Motion for Attorneys Fees, Costs and Incentive Award• Memorandum of Points and Authorities in Support thereof• Supporting Declarations of Attorneys Abbas Kazerounian, Joshua Swigart, David

McGlothlin and Ryan McBride

On the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope as follows:

Joseph Duffy Bank of America FCRA Settlement,Morgan, Lewis & Bockius LLP P.O. Box 404023,300 S. Grand Avenue, Louisville, KY 40233-4023Twenty-Second FloorLos Angeles, CA 90071-3132

[X] BY MAIL, by placing a copy thereof in a separate envelope for each addressee named above, addressed to each addressee respectively, and then sealed each envelope and, with the postage fully prepaid, deposited each in the United States mail at Phoenix, Arizona in accordance with our business’ practice.

[ ] BY OVERNIGHT MAIL, by placing a copy thereof in a separate envelope for each addressee named above, addressed to each addressee respectively, and then sealed each envelope and, with the postage fully prepaid, deposited each in the Overnight delivery receptacle mail at San Diego, California in accordance with our business’ practice.

[ ] BY FACSIMILE, this document was transmitted by facsimile transmission from (619) 297-1022 and transmission was reported as complete and without error. A copy of the transmission report is attached to this affidavit.

[ X ] ELECTRONICALLY, this document was transmitted by the Internet from our office.

I declare under penalty under perjury under the laws of the State of California that the foregoing is true and correct. Executed on October 12, 2017, at Phoenix, Arizona.

____/s/ David McGlothlin______David McGlothlin

______________________________________________________________________________________________________ Proof of Service


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