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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kathryn A. Stebner, State Bar No. 121088 Sarah Colby Case3:13-cv-03962-SC Document103 Filed07/20/15 Page1 of 31 1 Kathryn A. Stebner, State Bar No. 121088 Guy B. Wallace, State Bar No. 176151 Sarah Colby, State Bar No. 194475 Mark T. Johnson, State Bar No. 76904 2 George Kawamoto, State Bar No. 280358 Jennifer Uhrowczik, State Bar No. 302212 STEBNER AND ASSOCIATES SCHNEIDER WALLACE COTTRELL 3 870 Market Street, Suite 1212 KONECKY WOTKYNS, LLP San Francisco, CA 94102 2000 Powell Street, Suite 1400 4 Tel: (415) 362-9800 Emeryville, California 94608 Fax: (415) 362-9801 Tel: (415) 421-7100 5 Fax: (415) 421-7105 6 Michael D. Thamer, State Bar No. 101440 W. Timothy Needham, State Bar No. 96542 LAW OFFICES OF MICHAEL D. THAMER JANSSEN MALLOY LLP 7 Old Callahan School House 730 Fifth Street 12444 South Highway 3 Eureka, CA 95501 8 Post Office Box 1568 Tel: (707) 445-2071 Callahan, California 96014-1568 Fax: (707) 445-8305 9 Tel: (530) 467-5307 Fax: (530) 467-5437 10 Robert S. Arns, State Bar No. 65071 Christopher J. Healey, State Bar. No. 105798 11 THE ARNS LAW FIRM DENTONS US LLP 515 Folsom Street, 3rd Floor 600 West Broadway, Suite 2600 12 San Francisco, CA 94105 San Diego, CA 92101-3372 Tel: (415) 495-7800 Tel: (619) 235-3491 13 Fax: (415) 495-7888 Fax: (619) 645-5328 14 Attorneys for Plaintiffs and the proposed Class 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 SAN FRANCISCO DIVISION 18 Arville Winans, by and through his CASE NO. 3:13-cv-03962-SC Guardian ad litem, Renee Moulton, on his 19 own behalf and on behalf of others NOTICE OF MOTION AND MOTION FOR similarly situated, ATTORNEYS’ FEES, COSTS, AND 20 SERVICE AWARDS; MEMORANDUM OF Plaintiff, POINTS AND AUTHORITIES IN SUPPORT 21 OF PLAINTIFFS’ MOTION FOR vs. ATTORNEYS’ FEES, COSTS, AND 22 SERVICE AWARDS Emeritus Corp. and Does 1 Through 100, 23 Date: September 25, 2015 Defendants. Time: 10:00 a.m. 24 Dept.: Courtroom 1 Judge: Hon. Samuel Conti 25 All court appearances shall be in person. This 26 Court does not permit appearances by telephone. 27 28 NOTICE OF MOTION AND MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS; MEMO OF P&A ISO PLTFFS’ MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS Winans, et al, vs. Emeritus Corp., et al, Case No. 3:13-cv-03962-SC Case3:13-cv-03962-SC Document103 Filed07/20/15 Page2 of 31 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 Please take notice that Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Service Awards 3 will be heard on September 25, 2015, at 10:00 a.m., or as soon thereafter as the matter may be 4 heard in Courtroom 1, 17th Floor, in the United States District Court for the Northern District of 5 California, located at 450 Golden Gate Avenue, San Francisco, California 94102, the Honorable 6 Judge Samuel Conti presiding. 7 Plaintiffs, on behalf of themselves and the Settlement Class, will and hereby do move for 8 an order awarding (a) Class Counsel attorneys’ fees in the amount of $4,168,756.91 and litigation 9 costs of $121,243.09; and (b) service awards in the amount of $7,500 to Named Plaintiff Arville 10 Winans, by and through his Guardian ad litem, Renee Moulton, and $3,500 to Named Plaintiff 11 Ruby Richardson as Trustee of the Wilma F. Fritz Trust (for a total of $11,000). This motion is 12 based on the attached Memorandum of Points and Authorities; the Notice of Lodgment in Support 13 of the Motion for Final Approval of Class Settlement and the Motion for Attorneys’ Fees, Costs, 14 and Service Awards and declarations and exhibits attached thereto; Proposed Order Granting 15 Motion for Attorneys’ Fees, Costs, and Service Awards; all other records, pleadings, and papers 16 on file in this action; and such other evidence or argument as may be presented to the Court at the 17 hearing on the motion. Plaintiffs’ Motion for Attorneys’ Fees, Costs, and Service Awards is filed 18 concurrently with Plaintiffs’ Motion for Final Approval of Class Settlement. 19 DATED: July 20, 2015 /s/ Kathryn Stebner 20 Kathryn A. Stebner, State Bar No. 121088 STEBNER AND ASSOCIATES 21 870 Market Street, Suite 1212 San Francisco, CA 94102 22 Attorneys for Plaintiffs and the Proposed Class 23 [Additional Counsel for Plaintiffs on Service List] 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS; MEMO OF P&A ISO PLTFFS’ MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS Winans, et al, vs. Emeritus Corp., et al, Case No. 3:13-cv-03962-SC Case3:13-cv-03962-SC Document103 Filed07/20/15 Page3 of 31 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION..................................................................................................................1 4 II. BACKGROUND....................................................................................................................1 5 A. Class Counsel Expended Considerable Time and Resources to Investigate, Litigate, and Settle These Class Claims.....................................................................2 6 1. Factual Investigation and Discovery. .............................................................2 7 2. Class Counsel’s Coordination of Efforts........................................................2 8 3. Class Counsel Overcame Formidable Challenges in the Lawsuit..................3 9 B. Class Counsel Achieved Substantial Benefits for the Class. .....................................5 10 1. The Settlement Fund ......................................................................................5 11 2. Substantial Settlement Payments to Class Members......................................5 12 3. Substantial Non-Monetary Relief...................................................................7 13 4. Class Notice and Settlement Administration Costs........................................8 14 5. Payment of Service Awards, Attorneys’ Fees and Litigation Costs. .............8 15 III. THE AGREED-UPON FEE REQUEST IS FAIR, REASONABLE, AND 16 JUSTIFIED.............................................................................................................................8 17 A. Class Counsel’s Fee Request is Reasonable Under the Lodestar Analysis................9 18 1. Class Counsels’ Lodestar Amounts Are Reasonable .....................................9 19 2. Class Counsels’ Hourly Rates Are Well Within the Prevailing Rates for Similar Complex Civil Litigation in the Bay Area.................................11 20 B. A Multiplier is Justified Under Applicable Law......................................................13 21 1. Risks Presented by the Contingent Nature of Recovery ..............................14 22 2. Difficulty of the Questions Involved and the Skill Required.......................16 23 3. Vigorous Opposition by Defendants ............................................................16 24 4. The Extent to Which the Litigation Precluded Other Employment 25 Justifies an Enhancement .............................................................................17 26 5. The Result Obtained and the Importance of the Lawsuit to the Public Justifies an Enhancement .............................................................................17 27 C. The Percentage Cross-Check Supports the Reasonableness of the Fee 28 Request .....................................................................................................................18 i NOTICE OF MOTION AND MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS; MEMO OF P&A ISO PLTFFS’ MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS Winans, et al, vs. Emeritus Corp., et al, Case No. 3:13-cv-03962-SC Case3:13-cv-03962-SC Document103 Filed07/20/15 Page4 of 31 1 D. The Requested Fee Is Presumptively Reasonable Because It Resulted from Arms’ Length Negotiations Between Experienced Counsel....................................19 2 IV. REIMBURSEMENT OF LITIGATION EXPENSES IS WARRANTED..........................19 3 V. THE SERVICE AWARDS FOR THE NAMED PLAINTIFFS ARE FAIR.......................20 4 VI. CONCLUSION ....................................................................................................................22 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ii NOTICE OF MOTION AND MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS; MEMO OF P&A ISO PLTFFS’ MOTION FOR ATTYS’ FEES, COSTS, AND SERVICE AWARDS Winans, et al, vs. Emeritus Corp., et al, Case No. 3:13-cv-03962-SC Case3:13-cv-03962-SC Document103 Filed07/20/15 Page5 of 31 1 TABLE OF AUTHORITIES 2 Page(s) 3 CASES 4 Been v. O.K. Industries, Inc., No. CIV-02-285-RAW, 2011 U.S. Dist. LEXIS 115151 (E.D. Okla., Aug. 16, 2011).......... 14 5 Blanchard v. Bergeron, 6 489 U.S. 87 (1989) .................................................................................................................. 11 7 Blum v. Stenson, 465 U.S. 886 (1984) ................................................................................................................ 11 8 Bowens v. Atl. Maint. Corp., 9 546 F.Supp.2d 55 (E.D.N.Y. 2008)......................................................................................... 21 10 Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991)................................................................................................. 11 11 Cal. Hous. Fin. Agency v. E. R. Fairway Assocs. I, 12 37 Cal.App.4th 1508 (1995).................................................................................................... 20 13 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973 (9th Cir. 2008)................................................................................................... 11 14 Campbell v.
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