Case 3:15-cv-02159-VC Document 181 Filed 01/19/18 Page 1 of 11 1 Derek W. Loeser, admitted pro hac vice Gretchen Freeman Cappio, admitted pro hac vice 2 KELLER ROHRBACK L.L.P. 3 1201 Third Avenue, Suite 3200 Seattle, WA 98101-3052 4 (206) 623-1900; Fax: (206) 623-3384 [email protected] 5 [email protected] 6 Jeffrey Lewis (Bar No. 66587) 7 KELLER ROHRBACK L.L.P. 300 Lakeside Drive, Suite 1000 8 Oakland, CA 94612 (510) 463-3900; Fax: (510) 463-3901 9 [email protected] 10 Attorneys for Plaintiffs 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 13 SHAHRIAR JABBARI and KAYLEE 14 HEFFELFINGER, on behalf of themselves and all No. 15-cv-02159-VC 15 others similarly situated, 16 Plaintiffs, DECLARATION OF LYNN A. BAKER IN SUPPORT OF PLAINTIFFS’ NOTICE OF 17 v. MOTION, MOTION, AND MEMORANDUM IN SUPPORT OF 18 WELLS FARGO & COMPANY AND WELLS MOTION FOR FINAL APPROVAL OF FARGO BANK, N.A., CLASS ACTION SETTLEMENT 19 Defendants. 20 Date: March 22, 2018 Time: 10:00 a.m. 21 Courtroom: 4, 17th Floor 22 Judge: Hon. Vince Chhabria 23 24 25 26 27 28 No. 15-cv-02159-VC BAKER DECLARATION PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF SETTLEMENT Case 3:15-cv-02159-VC Document 181 Filed 01/19/18 Page 2 of 11 1 I, Lynn A. Baker, declare as follows: 2 I. SUMMARY OF OPINIONS 3 1. Plaintiffs have retained me to provide an expert opinion on whether the allocation of the 4 Settlement Fund between the two Net Settlement Pools complies with Class Counsel’s professional 5 responsibilities. For the reasons set out below, I conclude that it does. 6 II. CREDENTIALS AND QUALIFICATIONS 7 8 2. I hold the Frederick M. Baron Chair in Law at the University of Texas School of Law, 9 where I have taught as a tenured professor since 1997, and where I also serve as Co-Director of the 10 Center on Lawyers, Civil Justice, and the Media. I have also been a professor at the University of 11 Arizona College of Law (1992-1997), and have been a visiting professor at Columbia University Law 12 School (1997) and at Rutgers (Camden) University Law School (1997). I began my academic career 13 teaching at the University of Virginia School of Law from 1986 to 1992. Prior to that, I served as a law 14 clerk to Judge Amalya L. Kearse on the United States Court of Appeals for the Second Circuit in 15 16 Manhattan (1985-86). I am a 1985 graduate of Yale Law School, where I served as Article & Book 17 Review Editor of the YALE LAW JOURNAL. I am a member of the Bars of the States of Texas 18 (active) and Arizona (inactive) and of the United States Supreme Court. I am an elected Member of the 19 American Law Institute. 20 3. As a law professor, one of my principal academic interests has been ethical issues in 21 group litigation and settlement, including issues surrounding the allocation of settlement proceeds. I 22 23 regularly teach a survey course on Professional Responsibility, which includes substantial discussion of 24 these issues. I also often teach a seminar (titled “Mega-settlements”) which focuses on large-dollar, 25 complex settlements, and which involves extended, in-depth discussion of allocation issues in both class 26 action and mass tort settings. I have frequently appeared as an invited speaker on these issues at 27 symposia, conferences, and continuing legal education programs. My scholarly publications on these 28 No. 15-cv-02159-VC 1 BAKER DECLARATION PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF SETTLEMENT Case 3:15-cv-02159-VC Document 181 Filed 01/19/18 Page 3 of 11 1 issues include: I Cut, You Choose: The Role of Plaintiffs’ Counsel in Allocating Settlement Proceeds, 2 84 VA. L. REV. 1465 (1998) (with Charles Silver); Aggregate Settlements and Attorney Liability: The 3 Evolving Landscape, 44 HOFSTRA L. REV. 291 (2016); Mass Lawsuits and the Aggregate Settlement 4 Rule, 32 WAKE FOREST L. REV. 733 (1997) (with Charles Silver); and The Aggregate Settlement 5 Rule and Ideals of Client Service, 41 S. TEX. L. REV. 227 (1999) (with Charles Silver). These 6 7 publications have been cited by numerous commentators and courts, and in leading treatises including 8 the ALI’s PRINCIPLES OF AGGREGATE LITIGATION (2010). 9 4. I have served as an expert or consultant on ethical and/or allocation issues in dozens of 10 large-dollar, large-group settlements, including the BP class action settlement in the U.S. District Court 11 for the Eastern District of Louisiana, the $4.85 billion nationwide Vioxx settlement in 2007, and the 12 $1.27 billion nationwide Fen-Phen class action settlement (Seventh Amendment) in 2006, numerous 13 settlements involving various other pharmaceuticals and medical devices (including trans-vaginal mesh, 14 15 Fosamax, NuvaRing, Risperdal, hip replacement products, Prozac, Yaz/Yasmin, hormone replacement 16 therapy, Paxil, Avandia, Seroquel, Gadolineum, Rezulin, Zyprexa, Ortho Evra, Bextra, Celebrex, 17 Infuse), and many settlements involving asbestos, silica, MTBE, and other toxins. I have also served as 18 an expert in various settlements involving the General Motors ignition switch defect and in various 19 settlements in connection with In re WorldCom, Inc. Securities Litigation. 20 5. I previously testified in the United States District Court for the Middle District of 21 22 Pennsylvania as an expert regarding the fairness and reasonableness of the $17.75 million settlement 23 fund allocation plan in connection with the class settlement, involving more than 3,000 class members, 24 with the Mericle Defendants, approved by that Court on December 14, 2012. See Wallace v. Powell, 25 288 F.R.D. 347, 371 (M.D. Pa. 2012). See also Wallace v. Powell, 301 F.R.D. 144, 163 (M.D. Pa. 2014) 26 (related $2.5 million class settlement with the Provider Defendants, in which I provided an expert report 27 regarding the fairness and reasonableness of the settlement fund allocation plan). 28 No. 15-cv-02159-VC 2 BAKER DECLARATION PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF SETTLEMENT Case 3:15-cv-02159-VC Document 181 Filed 01/19/18 Page 4 of 11 1 6. I was previously appointed by the U.S. District Court for the Southern District of New 2 York to serve as a Mass Tort Settlement Ethics Advisor. See In re: Fosamax Products Liability 3 Litigation (MDL No. 1789) (Order entered April 10, 2014). I was also previously appointed by the U.S. 4 District Court for the Southern District of West Virginia to serve as a settlement allocation Special 5 Master. See In re: Ethicon Inc., Pelvic Repair System Products Liability Litigation (MDL No. 2327) 6 7 (Pretrial Order #263, entered July 13, 2017); In re: C.R. Bard, Inc., Pelvic Repair System Products 8 Liability Litigation (MDL No. 2187) (Pretrial Order #202, entered Nov. 24, 2015). 9 7. My fee is $1,000 per hour spent preparing this Declaration and does not depend on the 10 opinion I render here. 11 8. My full resume is attached as Exhibit 1 to this Declaration. 12 III. DOCUMENTS REVIEWED 13 9. When preparing this Declaration, I reviewed the items listed below which were generated 14 15 in connection with the case in the caption of this Declaration. I also reviewed other items including, 16 without limitation, ABA and California State Bar ethics rules: 17 A. The Consolidated Amended Complaint (Doc. 37; filed July 30, 2015); 18 B. The docket in this action; 19 C. The parties’ Amended Stipulation and Agreement of Class Action Settlement and 20 Release (“ASA”); 21 D. Declaration of Derek W. Loeser in Support of Plaintiffs’ Motion for Preliminary 22 23 Approval of Class Action Settlement and for Certification of a Settlement Class (Doc. 102; filed 24 April 20, 2017); 25 E. Order Granting Motion for Preliminary Approval, Denying Motions to Intervene 26 (Doc. 165; filed July 8, 2017); 27 28 No. 15-cv-02159-VC 3 BAKER DECLARATION PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF SETTLEMENT Case 3:15-cv-02159-VC Document 181 Filed 01/19/18 Page 5 of 11 1 F. Stipulation and Administrative Motion re Settlement Reserve and Schedule; 2 [Proposed Order] (Doc 172; filed Oct. 7, 2017). 3 IV. RELEVANT BACKGROUND 4 10. I take the following facts from the above-listed documents. 5 11. On March 25, 2017, the parties initially reached a $110 million settlement that covered a 6 Class Period running from January 1, 2009 through April 20, 2017 (ASA, ¶¶ 1.20, 2.9; Doc. 102, ¶15). 7 8 12. After this initial settlement was reached and new information became public, Class 9 Counsel negotiated an enlarged $142 million settlement that covered a Class Period running from May 10 1, 2002 through April 20, 2017 (ASA ¶ 1.21; Doc. 102, ¶¶ 17-18). 11 13. The parties’ Settlement creates a total non-reversionary Settlement Fund of $142 million. 12 After certain fees, costs, and expenses are deducted from the Settlement Fund, the resulting Net 13 Settlement Fund is divided, per the Settlement Agreement, into two pools: Net Settlement Pool 1 and 14 15 Net Settlement Pool 2 (ASA ¶¶ 2.37-2.39, 2.55). 16 14. Net Settlement Pool 1 is 77.46% of the Net Settlement Fund and will go to pay damages 17 related to the period running from January 1, 2009 through April 20, 2017 (the “2009-2017 period”) 18 (ASA ¶ 2.38). Net Settlement Pool 2 is 22.54% of the Net Settlement Fund and will primarily go to pay 19 damages related to the period running from May 1, 2002 through December 31, 2008 (the “2002-2008 20 period”) (ASA ¶ 2.39).