Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 1 of 44
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
ROY C. SPEGELE, individually and on behalf of all others similarly situated, Plaintiff, v. USAA LIFE INSURANCE COMPANY, Case No. 5:17-cv-967-OLG Defendant.
UNOPPOSED MOTION PURSUANT TO RULE 23(H) FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES TO CLASS COUNSEL AND NAMED PLAINTIFF SERVICE AWARD AND MEMORANDUM IN SUPPORT THEREOF
Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 2 of 44
TABLE OF CONTENTS I. INTRODUCTION ...... 1 II. HISTORY OF THE LITIGATION ...... 2 III. SUMMARY OF THE RESULTS ACHIEVED THROUGH THE SETTLEMENT ...... 14 A. The Settlement Class...... 14 B. The Settlement Benefits ...... 15 1. Cash Settlement Fund ...... 15 2. Attorneys’ Fees, Costs and Expenses, and Service Award ...... 15 3. Expenses for Settlement Administration ...... 15 4. The Settlement Fund is Non-Reversionary...... 16 IV. CLASS COUNSEL’S ATTORNEYS’ FEE REQUEST SHOULD BE APPROVED...... 16 A. Legal Standard for Awarding Attorneys’ Fees ...... 16 B. Class Counsel’s Request for Thirty Percent of the Settlement Fund Is Reasonable...... 18 1. Class Counsel Obtained Substantial Value to be Conferred to the Class. ... 19 2. Thirty Percent of the Settlement Fund is a Reasonable Benchmark Percentage...... 19 3. Class Counsel’s Fee Request is Reasonable Under a Johnson Factors Cross-Check...... 22 a. The Time and Labor Required Supports Approval of the Requested Fee...... 23 b. The Novelty and Difficulty of the Issues Support Approval of the Requested Fee...... 24 c. The Skill Required to Perform the Legal Services Properly Supports Approval of the Requested Fee...... 25 d. The Preclusion of Other Employment by the Attorney as a Result of Taking the Case Supports Approval of the Requested Fee...... 27 e. The Requested Fee Is Within Range of the Customary Fee in Common Fund Cases, Supporting the Requested Fee...... 28 f. The Contingent Nature of the Requested Fee Supports Its Approval...... 29 g. Time Limitations Imposed by the Client or Other Circumstances Factor Is Inapplicable...... 30 h. The Monetary Amount and the Results Obtained Supports Approval of the Requested Fee...... 30
i Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 3 of 44
i. The Experience, Reputation, and Ability of Class Counsel Supports Approval of the Requested Fee...... 31 j. The Undesirability of this Case Due to the Risk of Non-Recovery Supports Approval of the Requested Fee...... 31 k. The Nature and Duration of the Professional Relationship with the Client Supports the Requested Fee...... 32 l. Awards in Similar Cases Supports the Requested Fee...... 32 V. CLASS COUNSEL’S REQUESTED EXPENSE REIMBURSEMENT SHOULD BE APPROVED...... 33 VI. THE COURT SHOULD APPROVE A $20,000 SERVICE AWARD FOR MR. SPEGELE...... 34 VII. CONCLUSION ...... 35
ii Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 4 of 44
TABLE OF AUTHORITIES
Cases Aichele v. City of Los Angeles, No. CV1210863DMGFFMX, 2015 WL 5286028 (C.D. Cal. Sept. 9, 2015) ...... 21 Al’s Pals Pet Care v. Woodforest Nat'l Bank, NA, No. 4:17-CV-3852 2019 WL 387409 (S.D. Tex. Jan. 30, 2019) ...... 29 Arete Partners, L.P. v. Gunnerman, No. A-05-CA-921-SS, 2010 WL 11614545 (W.D. Tex. June 23, 2010) ...... 22 Barger v. Sutton, No. CIV.ASA01CA0294-XR, 2004 WL 825998 (W.D. Tex. Apr. 13, 2004) ...... 22 Boeing Co. v. Van Gemert, 444 U.S. 472 (1980) ...... 17 Braud v. Transport Serv. Co., 2010 WL 3283398 (E.D. La. Aug. 17, 2010) ...... 31 Bridges v. Ridge Nat. Res., LLC, No. MO:18-CV-00134-DC, 2020 WL 7496843 (W.D. Tex. June 23, 2020) ...... passim Buettgen v. Harless, No. 3:09-CV-00791-K, 2013 WL 12303143 (N.D. Tex. Nov. 13, 2013) ...... 29 Burford v. Cargill, Inc., No. CIV.A. 05-0283, 2012 WL 5471985 (W.D. La. Nov. 8, 2012) ...... 28 Bussie v. Allamerica Fin. Corp., No. Civ. A. 97-40204-NMG, 1999 WL 342042 (D. Mass. May 19, 1999) ...... 18 Campton v. Ignite Restaurant Group, Inc., No. 4:12-2196, 2015 WL 12766537 (S.D. Tex. June 5, 2015) ...... 29 Castro v. Sanofi Pasteur Inc., No. CV117178JMVMAH, 2017 WL 4776626 (D.N.J. Oct. 23, 2017) ...... 21 City of Omaha Police & Fire Ret. Sys. v. LHC Grp., No. CIV. 6:12-1609, 2015 WL 965696 (W.D. La. Mar. 3, 2015) ...... 29 City of Pontiac Gen. Employees' Ret. Sys. v. Dell Inc., No. 1:15-CV-00374-LY, 2020 WL 218518 (W.D. Tex. Jan. 10, 2020) ...... 29 DeHoyos v. Allstate Corp., 240 F.R.D. 269 (W.D. Tex. 2007) ...... 16, 17, 32 DeLoach v. Phillip Morris Co., No. 1:00-cv-01235, 2003 WL 25683496 (M.D.N.C. Dec. 19, 2003) ...... 20 Del Carmen v. R.A. Rogers, Inc., No. SA16CA971FBHJB, 2018 WL 6430835 n.2 (W.D. Tex. Oct. 18, 2018) ...... 34
iii Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 5 of 44
Di Giacomo v. Plains All Am. Pipeline, No. CIV.A.H-99-4137, 2001 WL 34633373 (S.D. Tex. Dec. 19, 2001) ...... 22, 23 Duncan v. JPMorgan Chase Bank, N.A., No. SA-14-CA-00912-FB, 2016 WL 4419472 (W.D. Tex. May 24, 2016) ...... 20 Dyson v. Stuart Petroleum Testers, Inc., No. 1-15-CV-282 RP, 2016 WL 815355 (W.D. Tex. Feb. 29, 2016) ...... 29 Erica P. John Fund, Inc. v. Halliburton Co., No. 3:02-CV-1152-M, 2018 WL 1942227 (N.D. Tex. Apr. 25, 2018) ...... 20, 22, 31 Fairway Med. Ctr., L.L.C. v. McGowan Enterprises, Inc., No. CV 16-3782, 2018 WL 1479222 (E.D. La. Mar. 27, 2018) ...... 20, 29 Frost v. Oil States Energy Servs., No. 4:15-cv-1100, 2015 WL 12780763 (S.D. Tex. Nov. 19, 2015) ...... 29 Gaskill v. Gordon, 160 F.3d 361 (7th Cir. 1998) ...... 21 Gokare v. Fed. Express Corp., No. 2:11-CV-2131-JTF-CGC, 2013 WL 12094887 (W.D. Tenn. Nov. 22, 2013)...... 21 Hill v. Hill Bros. Constr. Co., Inc., No. 3:14-CV-213-SA-RP, 2018 WL 280537 (N.D. Miss. Jan. 3, 2018) ...... 28 In re (Bank of America) Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) ...... 20, 21 In re Actos (Pioglitazone) Prod. Liab. Litig., 274 F. Supp. 3d 485 (W.D. La. 2017)...... 20, 23 In re Catfish Antitrust Litig., 939 F. Supp. 493 (N.D. Miss. 1996) ...... 35 In re Combustion, Inc., 968 F. Supp. 1116 (W.D. La. 1997)...... 19, 20, 32 In re Dell Inc., No. A-06-CA-726-SS, 2010 WL 2371834 (W.D. Tex. June 11, 2010) ...... 22, 29, 30 In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F. Supp. 2d 732 (S.D. Tex. 2008) ...... 23, 30 In re EZCORP, Inc. Sec. Litig., No. 1:15-CV-00608-SS, 2019 WL 6649017 (W.D. Tex. Dec. 6, 2019) ...... 28 In re Forterra Inc. Sec. Litig., No. 3:18-CV-01957-X, 2020 WL 4727070 (N.D. Tex. Aug. 12, 2020) ...... 28 In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. Supp. 2d 1040 (S.D. Tex. 2012) ...... passim In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220 (5th Cir. 2008) ...... 18
iv Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 6 of 44
In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467 (S.D.N.Y. 2009)...... 20 In re Packaged Ice Antitrust Litig., No. 08-MDL-01952, 2012 WL 5493613 (E.D. Mich. Nov. 13, 2012)...... 21 In re Pool Prods. Distribution Mkt. Antitrust Litig., MDL No. 2328, 2015 WL 4528880 (E.D. La. July 27, 2015) ...... 29 In re Remeron Direct Purchaser Antitrust Litig., No. Civ.03-0085FSH, 2005 WL 3008808 (D.N.J. 2005) ...... 21 In re Syngenta AG MIR 162 Corn Litig., 357 F. Supp. 3d 1094 (D. Kan. 2018) ...... 20 In re Vioxx Prod. Liab. Litig., No. 11-1546, 2013 WL 5295707 (E.D. La. Sept. 18, 2013) ...... 28 In re Vitamins Antitrust Litig., No. 99-197, 2001 WL 34312839 (D.D.C. July 16, 2001) ...... 20 Jenkins v. Trustmark Nat. Bank, 300 F.R.D. 291 (S.D. Miss. 2014) ...... 28 Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974) ...... 16, 18, 29 Kemp v. Unum Life Ins. Co. of Am., No. CV 14-0944, 2015 WL 8526689 (E.D. La. Dec. 11, 2015) ...... 28 King v. United SA Fed. Credit Union, 744 F. Supp. 2d 607 (W.D. Tex. 2010)...... 25 Klein v. O’Neal, Inc., 705 F. Supp. 2d 632 (N.D. Tex. 2010) ...... passim Marcus v. J.C. Penney Co., Inc., No. 613CV00736-RWS-KNM, 2018 WL 11275437 (E.D. Tex. Jan. 5, 2018) ...... 29 Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998) ...... 22 Parmelee v. Santander Consumer USA Holdings Inc., No. 3:16-CV-00783-K, 2019 WL 2352837 (N.D. Tex. June 3, 2019) ...... 28 Radosti v. Envision EMI, LLC, 760 F. Supp. 2d 73 (D.D.C. 2011) ...... 33 Rodriguez v. Stage 3 Separation, LLC, No. 5:14-CV-00603-RP, 2015 WL 12866212 (W.D. Tex. Dec. 23, 2015) ...... 29 Schwartz v. TXU Corp., No. 3:02-CV-2243-K, 2005 WL 3148350 (N.D. Tex. Nov. 8, 2005) ...... 29 Shaw v. Interthinx, Inc., No. 13-CV-01229-REB-NYW, 2015 WL 1867861 (D. Colo. Apr. 22, 2015) ...... 21
v Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 7 of 44
Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942 (E.D. Tex. 2000) ...... 23, 34 Sistrunk v. TitleMax, Inc., No. 5:14-CV-628-RP, 2018 WL 1773307 (W.D. Tex. Feb. 22, 2018) ...... 28 Standard Iron Works v. ArcelorMittal, No. 08-cv-05214, 2014 WL 7781572 (N.D. Ill. Oct. 22, 2014) ...... 20 Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998) ...... 18 Torregano v. Sader Power, LLC, No. CV 14-293, 2019 WL 969822 (E.D. La. Feb. 28, 2019) ...... 19, 20 Union Asset Mgmt., 669 F.3d ...... 18, 22 Vela v. City of Houston, 276 F.3d 659 (5th Cir. 2001) ...... 29 Welsh v. Navy Fed. Credit Union, No. 5:16-CV-1062-DAE, 2018 WL 7283639 (W.D. Tex. Aug. 20, 2018) ...... 17, 18, 22 Wolfe v. Anchor Drilling Fluids USA Inc., No. 4:15-CV-1344, 2015 WL 12778393 (S.D. Tex. Dec. 7, 2015) ...... 29
Statutes
28 U.S.C. § 1715(b) ...... 13
Rules
Federal Rule of Civil Procedure 23(h) ...... 16
Other Authorities Newberg on Class Actions § 15:81 (5th ed.) ...... 20 Newberg on Class Actions § 17:4 (5th ed.) ...... 34
vi Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 8 of 44
I. INTRODUCTION
Over the course of nearly three and a half years, Roy C. Spegele (“Plaintiff” or “Spegele”) and Class Counsel vigorously litigated this hotly contested cost of insurance (“COI”) class action against Defendant USAA Life Insurance Company (“USAA Life”). Plaintiff sought relief for what he alleged were USAA Life’s repeated violations of the terms of its universal life insurance policies resulting in excessive and unauthorized deductions from policy owners’ policy accounts.
Class Counsel achieved a Settlement that provides significant relief for the policy owner class members. Under the Parties’ Settlement Agreement, USAA Life will establish a non- reversionary cash Settlement Fund of $90,000,000 that will be used to pay for (1) all settlement relief to the Settlement Class; (2) Settlement Administration Expenses; (3) a Service Award for
Mr. Spegele as approved by this Court; and (4) Class Counsel’s Fees and Expenses as approved by this Court. Importantly, Settlement Class Members are not required to submit a “claim” or otherwise take any steps to receive their relief. Settlement checks will be automatically issued upon final approval of the Settlement.
Without Class Counsel’s willingness to pursue this case on a pure contingency fee basis with no guarantee of compensation for their work or recovery of their expenses, class members would not have realized these substantial cash benefits. As set forth below, Class Counsel’s skill, experience, and national reputation in class action and COI litigation brought about the excellent results achieved here, and support the requested award of attorneys’ fees.
Accordingly, Class Counsel ask the Court to approve their request for attorneys’ fees of thirty (30) percent of the Settlement Fund, which results in a fee award of $27,000,000, and
1
Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 9 of 44
reimbursement for costs and expenses of $176,165.01.1 Class Counsel also request that the Court approve a Service Award for the Named Plaintiff Mr. Spegele in the amount of $20,000 for his contribution to this litigation on behalf of the class.2 In support of the pending motion, Class
Counsel submits, along with this memorandum, the Declarations of Norman E. Siegel (Ex. A),
John J. Schirger (Ex. B), Daniel C. Girard (Ex. C), and Richard W. Simmons of Analytics
Consulting LLC (Ex. D). 34
II. HISTORY OF THE LITIGATION
A. Procedural History and the Parties’ Discovery.
On September 29, 2017, Plaintiff filed his Class Action Complaint and Demand for Jury
Trial, alleging causes of action for breach of contract, conversion, and declaratory and injunctive relief on behalf of himself and similarly situated owners of USAA Life universal life insurance policies (“Policies”) that state that the Policies’ cost-of-insurance rates (“COI Rates”) will be determined by USAA Life “based on its expectations as to future mortality experience.” Doc. 1.
These claims arise primarily from Plaintiff’s allegations that USAA Life used factors beyond its
“expectations as to future mortality experience” to inflate the COI Rates and collect impermissibly
1 The Parties have agreed that “Class Counsel will seek an award of attorneys’ fees in an amount not to exceed thirty percent of the Settlement Fund, and reimbursement of Class Counsel’s Costs and expenses in an amount not to exceed $300,000.” Agreement, ¶ 8.1. 2 The Parties have agreed that “Class counsel may move the Court, and Defendant agrees not to oppose the motion, for a service award payment to Plaintiff in an amount not to exceed $20,000 to compensate Plaintiff for his efforts on behalf of the Settlement Class” and that “[p]ayment of this service award shall be made to Plaintiff in addition to any settlement relief he may be eligible to receive.” Agreement, ¶ 8.2. 3 The same declaration from Mr. Siegel is provided in support of both this motion and the concurrently filed motion for final approval. Likewise, the same declaration from Mr. Simmons supports both this motion and the motion for final approval. 4 Class Counsel submits a form proposed order herewith as Exhibit E. Class Counsel will submit an amended proposed order in advance of the Fairness Hearing, but after the deadline to object or opt-out of the Settlement has passed, so that any feedback from class members may be addressed.
2 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 10 of 44
high COI Charges as a result. Plaintiff alleged that USAA Life (1) breached the terms of its Policies by including unauthorized factors beyond USAA Life’s “expectations as to future mortality experience,” such as expenses and profit, in determining the monthly COI Rates used to calculate
COI Charges, which impermissibly caused those charges to be higher than authorized; (2) breached the terms of its Policies by loading monthly COI Rates with undisclosed maintenance and administrative expense factors above the fixed amount authorize by the Policies; (3) breached the terms of its Policies by failing to incorporate its improving expectations as to future mortality experience into the COI Rates, which would have resulted in lower rates for the Policies; and (4) converted funds held in trust for the benefit of Plaintiff and the putative class. Doc. 1. USAA Life maintains that the COI Charges were appropriate and permissible under the terms of the universal life insurance policies and asserted additional defenses, including that the claims are barred by the statute of limitations. E.g., Doc. 36 (Answer); Doc. 67 (Mot. for Summary Judgment).
Prior to filing his Class Action Complaint, Class Counsel engaged an actuarial expert on behalf of Plaintiff to analyze Plaintiff’s annual statements from USAA Life to determine whether his COI Charges included loads above and beyond expected mortality. Plaintiff’s actuary provided a complex analysis confirming apparent overcharges. Siegel Decl., ¶ 7. Plaintiff separately retained another actuarial expert, Scott J. Witt, who would assist in evaluating Plaintiff’s claims and
USAA’s production of documents and data and would then later provide an expert opinion regarding the same. Id.
On December 19, 2017, USAA Life filed its first of many challenges to Plaintiff’s claims— a motion for more definite statement, that sought to avoid responding to allegations by requesting
Plaintiff provide further evidence without the benefit of discovery. Doc. 27. Plaintiff responded by providing additional details regarding his claims for breach of specific contract provisions—far
3 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 11 of 44
more detail than required—and arguing in opposition to the motion that the specific decisions behind USAA Life’s breach would necessarily be determined through discovery. Doc. 29.
Defendant’s motion was denied on February 28, 2018. Doc. 34.
Concurrently, the Parties began a lengthy and thorough discovery process. On January 23,
2018, Class Counsel prepared and served three sets of discovery requests: Plaintiff’s First
Interrogatories to Defendant (containing 13 interrogatories); Plaintiff’s First Set of Requests for
Production of Documents (requesting several dozen categories of documents and data); and
Plaintiff’s First Set of Requests for Admission (seeking admissions on 18 issues). Class Counsel served Plaintiff’s initial disclosures on the same date. Siegel Decl., ¶ 10.
In February 2018, Class Counsel negotiated a proposed scheduling order (Doc. 32), which was entered by the Court on February 13th (Doc. 33). Similarly, Class Counsel negotiated a proposed Confidentiality and Protective Order, which was filed on March 16th (Doc. 37), and granted on April 11th (Doc. 38). After the agreement on confidentiality, Defendant provided responses to Plaintiff’s initial three sets of discovery requests on March 26, 2018. Siegel Decl., ¶
11.
Soon thereafter Class Counsel engaged counsel for USAA Life in a series of meet-and- confer discussions relating to document requests and interrogatories. USAA Life produced an initial batch of documents on March 26. Id. ¶ 12. On April 9, 2018, in one of the early discussions regarding USAA’s document production, Class Counsel identified several priority productions of documents and materials. Because of their experience with life insurance litigation, Class Counsel was able to both prioritize particularly probative pieces of information and suggest which reports would likely contain such information. For instance, in a follow up email to the April 9, 2018,
4 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 12 of 44
discussion, Class Counsel memorialized the “highly relevant” categories of information to be produced as follows:
the original internal pricing/design materials for the 11-87 that were likely captured in a final pricing or product memorandum that may or may have not been filed with regulators (to be clear, the request is for all original pricing/design materials, even if not included in a final memorandum for the product – this may include drafts or revisionary materials used during the pricing process); USAA’s periodic studies, including its mortality, expense, and persistency studies, from the date 11-87 was first made available for sale through the present; documents reflecting periodic asset adequacy analyses and cash flow testing since the 11-87 was first made available for sale through the present; the original current and guaranteed maximum cost of insurance rate tables for 11-87; the original mortality assumptions used for pricing 11-87, including any referenced industry or internal mortality tables; documents reflecting any changes or contemplated changes to cost of insurance rate scales for 11-87; and documents reflecting any subsequent repricing of 11-87, and the related assumptions used for the repricing.
Id. Similarly, Class Counsel met with counsel for Defendant on April 17, 2018, and agreed that
Defendant would produce by May 1 all policy forms with language fitting the class allegations and an amended response to the requests for production of documents. Thereafter, on May 1 and May
15, Defendant produced dozens of different state-specific policy forms comprising about 2,600 pages of policy forms. Additionally, on July 31, 2018, Class Counsel proposed a set of 57 ESI search terms to help identify additional relevant documents. Class Counsel continued to confer with counsel for Defendant, obtaining two large document productions in August 2018, which provided 20,000 pages of documents relating to key issues in the case, including specific policy forms, illustrations, repricing documentation, cost estimates, pricing assumptions, profit studies, illustration testing materials (which contain mortality assumptions), and asset adequacy documentation (also containing mortality assumptions). Id. ¶ 13.
Class Counsel engaged in further meet-and-confer discussions with counsel for Defendant on August 15, 2018, to gather additional information, including the number of policies issued on each policy form and the full list of unique “policy pull codes” applicable to the form sold in each
5 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 13 of 44
state. Class Counsel quickly synthesized this information with their review of the document productions to determine the policy forms with provisions similar to Plaintiff’s. This task was complicated by largely subtle—but occasionally material—state-specific variations among forms.
Nonetheless, on August 23, Class Counsel prepared and served Plaintiff’s Second Set of
Interrogatories to Defendant, which included 12 interrogatories directed at a tailored group of all the Class Policies (UL 1-4) and a “variable universal life” (VUL) policy with similar policy terms.
Class Counsel discovered as a part of this process that only around a dozen VUL policies remained in force and dropped those policies from the case. Id. ¶ 14.
Class Counsel continued to confer with Defendant’s counsel regarding certain complicated discovery issues, including the production of policyholder data. USAA Life had initially objected to producing specific policyholder data for each Class Policy. Class Counsel discussed the issue with counsel for Defendant in August 2018 where Class Counsel agreed to provide an in-depth explanation of the need and protections for the policy data. Class Counsel drafted a clear explanation of the need for the policyholder data, which led to Defendant’s agreement to provide the policy data with certain identifying information removed. See Doc. 40 at
¶ 9. Class Counsel negotiated the production of sample data to confirm that the data included all fields necessary to identify overcharges and compute damages for the proposed class. On October
10, 2018, Defendant’s counsel provided the first sample of the data fields that could be collected from USAA Life’s systems. USAA Life identified two relevant data sources: the contract database, which includes the basic details regarding the policy and the insured, and the activity database, which includes annualized summaries of policy transactions like payments and charges. Counsel for USAA confirmed that there were 155,000 rows of relevant data in the contract database and
1,960,000 rows of relevant data in the activity database. Siegel Decl., ¶ 15.
6 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 14 of 44
While discussions regarding production of policy owner data continued, Class Counsel also continued to confer with USAA Life’s counsel on their search term proposal. Class Counsel negotiated an iterative process for the search terms by which the terms could be refined based on hit counts. Due to the various ways USAA Life referred to the relevant products (including by product names, form names, and pull codes), Class Counsel’s 57 proposed search terms contained many combinations of relevant terms and relevant products. Additionally, USAA Life’s systems lacked the ability to perform complex searches, which required serial searches to perform all relevant combinations of terms. Thus, USAA Life ran the initial set of search terms as 300 separate search term combinations, the vast majority of which were targeted to documents discussing both relevant issues and the relevant products. Counsel for Defendant provided an initial hit report on
October 15, 2018, which revealed the hits for each of the 300 searches in the initial batch and reflected an aggregate total of around 350,000 unique documents. Class Counsel provided a proposal to narrow the search terms on November 28, 2018. After further meet-and-confer discussions Class Counsel proposed a final set of search terms on January 2, 2019. Id. ¶ 16.
During this period, USAA Life pursued extensive discovery of Plaintiff. On September 10,
2018, USAA Life served on Plaintiff its first 12 interrogatories, and requests for production, which contained 30 unique requests. Class Counsel worked with Mr. Spegele to draft responses to this discovery as well as search for and collect responsive documents. Class Counsel served Plaintiff’s responses to the interrogatories and requests for production on November 6, 2018. Along with
Plaintiff’s responses, Class Counsel produced about 130 pages of responsive materials from
Plaintiff’s files. Id. ¶ 17.
Counsel for USAA Life provided sample policyholder data in November 2018. Class
Counsel conferred with counsel for Defendant regarding various questions regarding interpreting
7 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 15 of 44
the data and the inclusion and omission of various fields, including requesting a data key. On
January 23, 2019, counsel for USAA Life provided the data key for the activity data, which allowed Class Counsel to analyze whether the data would be sufficient to prove class claims without the need for individual presentation of evidence. On February 11, 2019, the Parties held a meet-and-confer discussion regarding additional data questions. On February 14, USAA Life produced the policyholder data for the Class Policies. Due to the many data fields and codes in the data, Class Counsel compiled USAA Life’s data explanation into a comprehensive document identifying the explanations on certain data fields and the open questions for USAA Life to answer.
On March 11, 2019, Class Counsel provided that document to counsel for USAA Life. Thereafter, on April 19, Class Counsel spoke directly with USAA Life’s system administrator, Mike Rothe, to resolve certain outstanding questions regarding the data productions and data availability. Class
Counsel incorporated Mr. Rothe’s answers into the comprehensive data document. After several further meet-and-confer conversations, Class Counsel negotiated to have Mr. Rothe sign a declaration attesting to the accuracy of the data document, which obviated the need for a further time-consuming deposition relating to data issues. The declaration was executed on June 23, 2019.
Id. ¶ 18.
On February 12, 2019, Class Counsel spoke with counsel for Defendant regarding supplementation of Defendant’s responses to certain interrogatories, including interrogatories relating to the cost of insurance rate scales for the Policies and the relevant mortality assumptions used in setting those COI Rates. Over the course of several months, Class Counsel negotiated for
USAA Life to crystalize two key pieces of information for each product in writing for use by the damages experts in this case—the actual COI Rates used and USAA Life’s expected mortality rates. After further conferences, counsel for USAA Life provided an initial response identifying
8 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 16 of 44
the key mortality assumptions and COI Rates for the Class Products. Thereafter, on August 19,
2019, USAA Life formalized these mortality assumptions and COI Rate materials into a formal interrogatory response. Id. ¶ 19.
Throughout discovery, Class Counsel reviewed Defendant’s document productions on a rolling basis. USAA Life produced roughly 20,000 documents in this litigation. Class Counsel utilized internal search terms and prioritization filters to efficiently identify relevant documents, but still collectively reviewed over 10,000 distinct documents comprising around 130,000 pages.
Class Counsel staffed this review process with attorneys who had significant experience in COI litigation and who understood insurance and actuarial terms of art. The review returned hundreds of pages of documents bolstering Plaintiff’s claims, including key documents that were handwritten in the 1980s, which could have only been identified through a painstaking manual review by attorneys familiar with sometimes arcane insurance terminology. Id. ¶ 20.
Class Counsel also took the deposition of six USAA Life witnesses, including three witnesses who testified as corporate representatives as well as individual fact witnesses. On June
5, 2019, Class Counsel deposed Amanda Hamala, individually and as a corporate representative.
On June 19, Class Counsel deposed Phillip Beyer. On June 20, Class Counsel took the deposition of Elizabeth Branaum. On June 21, Class Counsel took the deposition of Rebecca Rosser, individually and as a corporate representative. On June 27, Class Counsel took the deposition of
Nadeem Chowdhury, individually and as a corporate representative. And On October 17, Class
Counsel took the deposition of Jeffrey Nordstrom. Id. ¶ 21.
As part of completing discovery, Class Counsel negotiated three separate stipulations with
Defendant. First, on July 18, 2019, the Parties entered a joint stipulation regarding USAA Life’s data production, in which Defendant agreed not to challenge certain aspects of Plaintiff’s damages
9 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 17 of 44
model on the basis of data that USAA claimed was not reasonably accessible. Second, on
September 9, 2019, the Parties entered into a joint stipulation regarding authenticity and certain business records prerequisites relating to USAA Life’s document productions, which confirmed that Plaintiff’s documentary evidence would be admissible at trial and for dispositive briefing.
Finally, Class Counsel negotiated a stipulation requiring USAA Life to identify all known state- specific variations for the Universal Life 3 (“UL3”) and Universal Life 4 (“UL4”) products, and further confirmed that there were no known state-specific policy variations that would impact the issues in this lawsuit, which USAA Life’s witness executed on September 18, 2019. Id. ¶ 22.
On December 20, 2019, Class Counsel filed Plaintiff’s motion for class certification, seeking certification of a nationwide class of current and former UL3 and UL4 policy owners, with certain limited exceptions. Doc. 54. Class Counsel also spent several days preparing and producing
Plaintiff’s actuarial expert, Mr. Witt, for deposition, which occurred on January 30, 2020. Siegel
Decl., ¶ 25. On February 24, 2020, USAA Life filed its opposition to class certification, arguing that issues relating to adequacy, predominance, USAA Life’s affirmative defenses, choice of law, and Plaintiff’s damages model precluded class certification. Doc. 61. Additionally, on February
24, 2020, USAA Life filed its motion to exclude the expert report of Mr. Witt. Doc. 59. Plaintiff filed his opposition to USAA Life’s motion to exclude Mr. Witt’s report on March 16, 2020, Doc.
71, and his reply in support of class certification on April 13, 2020. Doc. 81; Siegel Decl., ¶ 25.
On March 2, 2020, USAA Life moved for summary judgment, arguing its universal life policies’ COI Rates provision authorizes USAA Life to include factors in addition to its expectations of future mortality experience in its COI Rates and that it had no obligation to lower
COI Rates when its mortality expectations improved. Doc. 67. USAA Life also argued that
Plaintiff’s claims were barred by the statute of limitations and the doctrine of laches. Id. Class
10 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 18 of 44
Counsel responded to each of those arguments in turn, pointing to case law and policy language supporting Plaintiff’s claims, arguing that the cases on which USAA Life relied were distinguishable, that USAA Life’s proffered extrinsic evidence was inadmissible and irrelevant, that USAA Life’s motion for summary judgment fails under several potential interpretations of the COI Rates provision, and that USAA Life is not entitled to summary judgment on the issue of statute of limitations or laches because the claims are continuing in nature and were undiscoverable. Doc. 72; Siegel Decl., ¶ 26.
On September 23, 2020, the Court granted Plaintiff’s motion for class certification and denied USAA Life’s motion to exclude Mr. Witt’s report, thereby certifying the class of UL3 and
UL4 policy owners as to Counts I – IV under Rule 23(b)(3) and Count V under Rule 23(b)(2).
Doc. 89. On October 7, 2020, USAA Life filed in the United States Court of Appeals for the Fifth
Circuit its petition for leave to appeal under Rule 23(f). See Fifth Circuit Case No. 20-90039. On
October 19, 2020, Class Counsel filed Plaintiff’s opposition to USAA Life’s petition for leave to appeal. On October 26, 2020, USAA Life filed its reply. On October 29, 2020, the Fifth Circuit granted USAA Life’s petition for leave to appeal. On January 25, 2021, USAA Life filed its principal brief on appeal. See Fifth Circuit Case No. 20-50909. On February 1, 2021, the
Washington Legal Foundation, the Chamber of Commerce of the United States of America, and the American Council of Life Insurers, filed amicus briefs in the Fifth Circuit supporting USAA
Life’s request that this Court’s order certifying the class be reversed. When the Parties reached a binding agreement, they advised the Fifth Circuit Mediator that the case had settled, and the appeal was taken off the active calendar pending this Court’s decision on settlement approval under Rule
23(e). Siegel Decl., ¶ 27.
11 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 19 of 44
B. The Parties’ Settlement Negotiations and Proposed Settlement.
The Parties engaged in early in-person settlement negotiations that were not fruitful. From
Plaintiff’s perspective, it was apparent from these early efforts that Plaintiff could not maximize settlement leverage without taking significant risks, including pursuing class certification on a nationwide basis. Settlement negotiations began in earnest after the Court concluded this case satisfied the requirements of Rule 23 and certified a nationwide class of UL3 and UL4 policy owners on September 23, 2020. Doc. 89. Following that ruling, on October 30, 2020, at USAA
Life’s request, Plaintiff made a formal settlement demand and provided a general description of
Mr. Witt’s methodology for calculating classwide damages. On November 30, 2020, USAA Life submitted questions about Plaintiff’s damages methodology and requested a phone conference to ask additional questions. On December 3, 2020, the Parties participated in a video conference5 where Class Counsel answered questions about the damages methodology. Following the phone conference, the Parties agreed to mediation before Professor Eric Green. Both Parties submitted extensive mediation statements and participated in phone conferences with Professor Green prior to the mediation. On January 12, 2021, the Parties participated in a full day mediation wherein multiple proposals and counterproposals were exchanged; however, they were unsuccessful in resolving the case that day. The Parties continued to negotiate directly over the course of the next several weeks. On February 2, 2021, following a lengthy face-to-face meeting, the Parties successfully agreed to the material terms of the Settlement Agreement now submitted for final approval (Doc. 103). Siegel Decl., ¶¶ 28–29.
On April 9, 2021, Plaintiff filed his Unopposed Motion Pursuant to Rule 23(e) to Permit
Issuance of Class Notice of Proposed Class Action Settlement and Memorandum in Support
Thereof. Doc. 103. On May 17, 2021, the Court entered its Order granting Plaintiff’s motion,
12 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 20 of 44
finding that the Court would likely be able to (1) approve the Settlement as fair, reasonable, and adequate, and (2) certify the Settlement Class for purposes of judgment on the Settlement. Doc.
105. As part of its Order, the Court pointed to its earlier order granting class certification and appointing Stueve Siegel Hanson LLP, Miller Schirger LLC, and Girard Sharp LLP as Class
Counsel. Id. at ¶ 3. Recognizing Class Counsel’s “extensive experience in litigating cost of insurance and overcharge cases,” the Court appointed Class Counsel “as interim class counsel of the proposed Settlement Class pursuant to Rule 23(g).” Id.
On May 27, 2021, pursuant to the Court’s Order, the Court-appointed Settlement
Administrator, Analytics Consulting LLC, served a notice of the proposed Settlement on appropriate officials in accordance with the requirements under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. § 1715(b). See id. at ¶ 7. Also pursuant to that Order, on July 1, 2021, the
Settlement Administrator mailed the Court-approved Class Notice to members of the Settlement
Class. See Doc. 105, ¶¶ 5, 11; Ex. D (“Simmons Decl.”), ¶ 11. The Class Notice informs members of the Settlement Class that Class Counsel will seek their attorneys’ fees from the Settlement Fund in an amount up to thirty (30) percent of the Settlement Fund, reimbursement for costs and expenses of the litigation from the Settlement Fund of up to $300,000, and a service award payment of up to $20,000 for Plaintiff for his service as representative on behalf of the Settlement Class.
Doc. 103-1 at 40. The deadline for Settlement Class Members to object or exclude themselves from the Settlement is August 5, 2021. See Doc. 105, ¶¶ 6, 9, 11. As of the filing of this Motion for an Award of Attorneys’ Fees, Costs, and Expenses to Class Counsel and Named Plaintiff
5 As much of the negotiations occurred during the worst of the global COVID-19 pandemic, the parties used audio and video conferencing to supplement their in-person efforts to resolve the case.
13 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 21 of 44
Service Award, one objection and six requests for exclusion have been received. Siegel Decl., ¶
31.
III. SUMMARY OF THE RESULTS ACHIEVED THROUGH THE SETTLEMENT
The Agreement6 represents a compromise between Plaintiff and the proposed Settlement
Class and USAA Life regarding the claims pled in the Class Action Complaint wherein USAA
Life will fund a non-reversionary cash Settlement Fund in the amount of $90,000,000. There is no
“claims process.” Each Settlement Class Member will receive their share of the Net Settlement
Fund7 pursuant to a distribution plan developed by Class Counsel and subject to approval by the
Court. Id. ¶¶ 2.3, 2.4. The Agreement permits any Settlement Class Member to file an objection to the Settlement terms or opt-out of the Settlement Class. Id. ¶¶ 5.1, 5.5. Pursuant to the Court’s order permitting issuance of notice, the objection and opt-out deadline is August 5, 2021.
A. The Settlement Class
The Parties’ proposed and preliminarily approved Settlement will provide benefits to all members of the following Settlement Class:
Persons or entities who own or owned one of approximately 39,000 Universal Life 1 or Universal Life 2 life insurance policies issued or administered by USAA Life or its predecessors in interest, and in force on or after March 1, 1999; and persons or entitles who own or owned one of approximately 83,000 Universal Life 3 or Universal Life 4 life insurance policies issued or administered by USAA Life or its predecessors in interest, and in force on or after March 1, 1999.
6 The Agreement was filed as Exhibit 1 to Plaintiff’s Unopposed Motion to Permit Issuance of Proposed Class Action Settlement. See Doc. 103-1. 7 Under the Agreement, the “Net Settlement Fund” means the amount of the Settlement Fund that remains after subtracting Settlement Administration Expenses, any Plaintiff’s Service Award approved by the Court, and any award for Class Counsel’s Fees and Expenses approved by the Court, which remaining amount shall be distributed to the class members pursuant to the agreed distribution formulae, subject to approval by this Court.
14 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 22 of 44
Doc 105, ¶ 1; Agreement, ¶ 1.31. Because some members of the Settlement Class owned multiple
Policies, the number of Settlement Class members is smaller than the number of Policies stated in the Settlement Class definition. According to USAA Life’s Records, the Settlement Class consists of 109,874 members. See Siegel Decl., ¶31.
B. The Settlement Benefits
1. Cash Settlement Fund
USAA Life has agreed to fund a non-reversionary cash Settlement Fund in the amount of
$90,000,000. The Settlement Fund will be used to pay all settlement relief to the Settlement Class
Members. Pursuant to the distribution formulae proposed by Class Counsel in the Agreement, each
Settlement Class Member will receive a check in an amount equal to the sum of the $50 minimum settlement relief payment plus that Settlement Class Member’s proportionate share of the
Remaining Net Settlement Fund, which proportionate share is determined by the COI Charges paid by each Settlement Class Member. Agreement, ¶ 2.3; Agreement Ex. B. Based on the number of class members, the average payment after deducting the fees and expenses sought by this motion will be approximately $570 per class member.
2. Attorneys’ Fees, Costs and Expenses, and Service Award
Pursuant to the Agreement and subject to the approval of this Court, the Settlement Fund will be used to pay an award of attorneys’ fees and expenses and a service award for the Named
Plaintiff, as sought by Class Counsel with this Motion. Agreement, ¶ 1.32.
3. Expenses for Settlement Administration
The Settlement Fund will also pay for expenses for administering the Settlement.
Agreement, ¶ 1.32. These Settlement Administration Expenses are the fees, costs, and expenses incurred by the Settlement Administrator, including Class Notice costs and claims administration.
15 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 23 of 44
The Settlement Administration Expenses are fixed at $200,000. Agreement, ¶ 1.29; see Ex. D
(Simmons Decl.), ¶ 22.
4. The Settlement Fund is Non-Reversionary.
The Agreement provides that no portion of the Settlement Fund may revert to USAA Life.
Agreement, ¶ 1.32. While the Settlement is designed to distribute 100% of the Settlement Fund, where any Settlement Class Members do not cash their checks within 180 days of issuance, the checks will be cancelled, and the proceeds sent to the unclaimed property division of the state in which each such Settlement Class Member was sent Notice. Agreement, ¶ 2.5. The Settlement
Administrator will re-issue checks upon request, provided the request is received before the date when the transfer to the unclaimed property divisions has occurred. Id. This process will ensure that the Settlement Fund directly benefits the Settlement Class and that there is no reversion to
USAA Life.
IV. CLASS COUNSEL’S ATTORNEYS’ FEE REQUEST SHOULD BE APPROVED.
A. Legal Standard for Awarding Attorneys’ Fees
Federal Rule of Civil Procedure 23(h) provides that “[i]n a certified class action, the court may award reasonable attorney’s fees and nontaxable costs that are authorized . . . by the parties’ agreement.” The Fifth Circuit has “‘encourage[d] counsel on both sides to utilize their best efforts to understandingly, sympathetically, and professionally arrive at a settlement as to attorney’s fees.’” Bridges v. Ridge Nat. Res., LLC, No. MO:18-CV-00134-DC, 2020 WL 7496843, at *1
(W.D. Tex. June 23, 2020) (quoting Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 720 (5th
Cir. 1974)). “An agreed upon award of attorneys’ fees and expenses is proper in a class action settlement, so long as the amount of the fee is reasonable under the circumstances . . . In fact, courts have encouraged litigants to resolve fee issues by agreement, if possible.” DeHoyos v.
Allstate Corp., 240 F.R.D. 269, 322 (W.D. Tex. 2007) (citing Fed. R. Civ. P. 23(h) and collecting
16 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 24 of 44
cases). “Accordingly, courts are authorized to award attorney fees and expenses where all parties have agreed to the amount, subject to court approval.” Id. Here, USAA Life has agreed that Class
Counsel will seek a fee of 30% of the Settlement Fund, subject to this Court’s approval, and does not oppose this request. Agreement, ¶ 8.1.
Moreover, where, as here, Class Counsel obtains a common fund for the Settlement Class, the common fund doctrine entitles Class Counsel to a reasonable attorneys’ fee award from the
Settlement Fund. See Welsh v. Navy Fed. Credit Union, No. 5:16-CV-1062-DAE, 2018 WL
7283639, at *15 (W.D. Tex. Aug. 20, 2018) (“[T]he Supreme Court has consistently recognized the common fund doctrine to permit attorneys who obtain a recovery for a class to be compensated from the benefits achieved as a result of their efforts.”) (citing Boeing Co. v. Van Gemert, 444 U.S.
472, 478–79 (1980) (“The doctrine rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant’s expense
. . . Jurisdiction over the fund involved in the litigation allows a court to prevent this inequity by assessing attorney’s fees against the entire fund, thus spreading fees proportionately among those benefited by the suit.”) (citations omitted)).
Thus, although courts may alternatively apply the lodestar method to calculating attorneys’ fees, “Courts have recognized the best approach, in a common fund or variant case, is to use the percentage method with the Johnson factors as a cross-check.” Bridges, 2020 WL 7496843, at *2.
The Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of the legal issues; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment by the attorney as a result of taking the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or other circumstances; (8) the monetary amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) whether the case is undesirable; (11) the nature
17 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 25 of 44
and duration of the professional relationship with the client; and (12) awards in similar cases
Welsh, 2018 WL 7283639, at *16 (citing Johnson, 488 F.2d at 717–19). The Fifth Circuit endorses
“the district courts’ use of the percentage method cross-checked with the Johnson factors,” and
“has never reversed a district court judge’s decision to use the percentage method.” Union Asset
Mgmt., 669 F.3d at 644 (footnotes omitted).8 “Indeed, district courts in this Circuit regularly use the percentage method blended with a Johnson reasonableness check.” Id. at 643.
B. Class Counsel’s Request for Thirty Percent of the Settlement Fund Is Reasonable.
In determining the reasonableness of the fee award sought here, “[t]he first step under the
[percentage] method requires determining the actual monetary value conferred to the class members by the settlement.” In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig.,
851 F. Supp. 2d 1040, 1075 (S.D. Tex. 2012) (alteration in original) (internal quotation marks omitted) (quoting Bussie v. Allamerica Fin. Corp., No. Civ. A. 97-40204-NMG, 1999 WL 342042, at *2 (D. Mass. May 19, 1999)). “The next step is to determine the appropriate percentage benchmark.” Id. at 1080. “The final step in applying the percentage method is to determine
8 The Court’s decision on this Motion is not governed by the Fifth Circuit’s 2008 decision stating that “[t]his circuit requires district courts to use the ‘lodestar method’ to ‘assess attorneys’ fees in class action suits.’” See In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220, 228 (5th Cir. 2008) (quoting Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844, 850 (5th Cir. 1998)). As the Fifth Circuit held in Union Asset Mgmt., the High Sulfur decision does not govern a common fund case like the present one because (1) the High Sulfur decision “overstate[d]” the Strong decision “it quote[d], which said that the Circuit ‘uses’ the lodestar method rather than ‘requires’ it”; (2) High Sulfur “did not involve a traditional common fund, and implied that the percentage method might be proper in other circumstances”; and (3) High Sulfur “only addressed how to allocate a lump-sum attorneys’ fee award among the plaintiffs’ multiple attorneys rather than how to allocate a common fund between class counsel and the class itself.” 669 F.3d at 644 (footnotes and citations omitted). If the Court nonetheless decides that the lodestar method should play a role in its fee analysis including as a cross check to the percentage of the fund approach, Class Counsel will promptly provide the Court with the materials it needs to determine the reasonable hours worked on the case, the reasonable hourly rates, and any applicable multiplier.
18 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 26 of 44
whether the benchmark . . . should be adjusted in light of the Johnson factors.” Id. at 1086. Here, a fee request of 30% of the $90,000,000 Settlement Fund is reasonable, meets the benchmark in the Fifth Circuit, and is further supported by the Johnson factors.
1. Class Counsel Obtained Substantial Value to be Conferred to the Class.
The actual amount of the monetary value conferred to the Settlement Class by the
Settlement is $90,000,000, none of which can revert to USAA. Agreement, ¶ 1.32. Unlike some class action settlements that confer benefits other than cash, this Settlement is easy to value because it provides meaningful and immediate monetary relief in the form of a $90,000,000 cash fund.
2. Thirty Percent of the Settlement Fund is a Reasonable Benchmark Percentage.
“No general rule exists as for what is a reasonable percentage of a common fund,” but
“[f]ifty percent ‘is the upper limit on a reasonable fee award to assure that fees do not consume a disproportionate part of the recovery obtained for the class, though somewhat larger percentages are not unprecedented.’” Torregano v. Sader Power, LLC, No. CV 14-293, 2019 WL 969822, at
*3 (E.D. La. Feb. 28, 2019) (quoting In re Combustion, Inc., 968 F. Supp. 1116, 1133 (W.D. La.
1997)). Several courts in the Fifth Circuit have found 30% to be a reasonable percentage benchmark for similarly sized common funds. See, e.g., Klein v. O’Neal, Inc., 705 F. Supp. 2d
632, 675–76 (N.D. Tex. 2010) (“Attorney fees awarded under the percentage method are often between 25% and 30% of the fund”; granting class counsel’s attorney fee request for 30% of a
$90,000,000 common fund in part because “[a] review of other cases reveals that a fee request of
30% of a common fund, although on the high end, is within the range of reasonableness for
19 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 27 of 44
settlements of this size.”), report and recommendation adopted, No. SA-14-CA-912-FB, 2016 WL
4411551 (W.D. Tex. June 17, 2016) (collecting cases).9
Here, Class Counsel’s request for 30% of the Settlement Fund is a reasonable percentage benchmark. This percentage fits within the range of typical percentages of common funds awarded as reasonable fees. See id. (awarding 30% of $90 million fund); Torregano, 2019 WL 969822, at
*3 (“[A]wards in this circuit in the range of 33% are commonplace.”); Erica P. John Fund, Inc. v.
Halliburton Co., No. 3:02-CV-1152-M, 2018 WL 1942227, at *9 (N.D. Tex. Apr. 25, 2018) (citing cases) (“Numerous courts in this Circuit have awarded fees in the 30% to 36% range.”); Fairway
Med. Ctr., L.L.C. v. McGowan Enterprises, Inc., No. CV 16-3782, 2018 WL 1479222, at *2 (E.D.
La. Mar. 27, 2018) (finding that “the appropriate benchmark in this case is one-third”) (citing cases); Duncan v. JPMorgan Chase Bank, N.A., No. SA-14-CA-00912-FB, 2016 WL 4419472, at
*13 (W.D. Tex. May 24, 2016) (“typical benchmark” in Fifth Circuit is “25-30%”), report and
9 This is not a so-called “megafund” case, in which some courts have found that a reduced percentage is warranted. “Most courts define mega-funds as those in excess of $100 million.” Newberg on Class Actions § 15:81 (5th ed.). While “[g]lobal recoveries of $100 million or less are ubiquitous,” in “the ‘mega-fund’ cases (recoveries exceeding $100 million) or ‘super-mega- fund’ cases (recoveries exceeding $1 billion), . . . there are fewer pure percentage awards to serve as a benchmark; consequently there is variability in the percentages awarded in these cases.” In re Actos (Pioglitazone) Prod. Liab. Litig., 274 F. Supp. 3d 485, 524 (W.D. La. 2017) (collecting cases). Here, the Settlement Fund is a $90,000,000 recovery, and is therefore not a megafund. In any event, many courts award fees of 30% of the fund or higher even in megafund cases. See, e.g., Klein v. O’Neal, Inc., 705 F. Supp. 2d 632 (N.D. Tex. Apr. 9, 2010) (30% of $110 million fund), as modified (June 14, 2010); In re Combustion, Inc., 968 F. Supp. 1116 (36% of $127 million fund); In re Syngenta AG MIR 162 Corn Litig., 357 F. Supp. 3d 1094, 1110 (D. Kan. 2018) (33.33% of $1.51 billion fund); Standard Iron Works v. ArcelorMittal, No. 08-cv-05214, 2014 WL 7781572 (N.D. Ill. Oct. 22, 2014) (33% of $164 million fund); In re (Bank of America) Checking Account Overdraft Litig., 830 F. Supp. 2d 1330 (S.D. Fla. 2011) (30% of $410 million fund); In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467 (S.D.N.Y. 2009) (33.3% of $510 million fund); DeLoach v. Phillip Morris Co., No. 1:00-cv-01235, 2003 WL 25683496 (M.D.N.C. Dec. 19, 2003) (33.33% of $212 million fund); In re Vitamins Antitrust Litig., No. 99-197, 2001 WL 34312839 (D.D.C. July 16, 2001) (34% of $365 million fund).
20 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 28 of 44
recommendation adopted, No. SA-14-CA-912-FB, 2016 WL 4411551 (W.D. Tex. June 17,
2016).10
For comparison, a typical contingent fee arrangement in non-class action cases provides that the attorney representing the plaintiff receives 25 to 50 percent of the plaintiffs’ recovery, exclusive of costs. Siegel Decl., ¶ 44. Moreover, Class Counsel often represents sophisticated businesses in complex commercial litigation on a contingency basis, where these business clients commonly agree to pay fees amounting to 35 to 50 percent of any recovery. Id. This fact is relevant to determining the appropriateness of the award here because the Court’s ultimate task is to approximate the reasonable fee that a competitive market would bear. See Aichele v. City of Los
Angeles, No. CV1210863DMGFFMX, 2015 WL 5286028, at *6 (C.D. Cal. Sept. 9, 2015) (quoting
Gaskill v. Gordon, 160 F.3d 361, 363 (7th Cir. 1998); In re Remeron Direct Purchaser Antitrust
Litig., No. Civ.03-0085FSH, 2005 WL 3008808, *16 (D.N.J. 2005)) (“In defining a ‘reasonable fee’ in representative actions, the law should ‘mimic the market,’” and “[a]ttorneys ‘regularly contract for contingent fees between 30% and 40%.’”); Gaskill, 160 F.3d at 363 (“When a fee is
10 Other Circuits are in accord. See, e.g., Shaw v. Interthinx, Inc., No. 13-CV-01229-REB-NYW, 2015 WL 1867861, at *6 (D. Colo. Apr. 22, 2015) (alterations in original) (citations omitted) (“Other courts have similarly recognized that ‘[t]he percentages awarded in common fund cases typically range from 20 to 50 percent of the common fund created[,]’ . . . and that fees within this range are ‘presumptively reasonable.’”); Castro v. Sanofi Pasteur Inc., No. CV117178JMVMAH, 2017 WL 4776626, at *9 (D.N.J. Oct. 23, 2017) (“fee awards generally range from 19% to 45% of the settlement fund.”); In re Packaged Ice Antitrust Litig., No. 08-MDL-01952, 2012 WL 5493613, at *8 (E.D. Mich. Nov. 13, 2012) (“[T]he requested award of close to 30% appears to be a fairly well-accepted ratio in cases of this type and generally in complex class actions.”); In re: Checking Account Overdraft Litig., 830 F. Supp. 2d 1330, 1355-56 n.35 (S.D. Fla. 2011) (30% award “falls at the low end of the average in the private marketplace” in which attorney and client often agree to 33-40% of recovery); Gokare v. Fed. Express Corp., No. 2:11-CV-2131-JTF-CGC, 2013 WL 12094887, at *3 (W.D. Tenn. Nov. 22, 2013) (citing cases) (“The requested attorneys’ fees award of 30.9% from the common fund is appropriate; the percentage requested is similar to or lower than percentage-of-the-fund awards approved in numerous other common fund cases in this Circuit.”).
21 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 29 of 44
set by a court rather than by contract, the object is to set it at a level that will approximate what the market would set . . . The Judge, in other words, is trying to mimic the market in legal services.”); cf. Arete Partners, L.P. v. Gunnerman, No. A-05-CA-921-SS, 2010 WL 11614545, at *2 (W.D.
Tex. June 23, 2010) (citing Barger v. Sutton, No. CIV.ASA01CA0294-XR, 2004 WL 825998, at
*2 (W.D. Tex. Apr. 13, 2004)) (“[A] one-third contingency fee is customary in both Austin and
San Antonio, Texas.”). Because 30% is at or below the percentage typically awarded in contingency litigation and is at or below rates reflected in the local market for contingency litigation, Class Counsel’s request for 30% of the Settlement Fund is reasonable and should be approved.
3. Class Counsel’s Fee Request is Reasonable Under a Johnson Factors Cross-Check.
The purpose of a cross-check under the Johnson factors is to ensure that a fee is reasonable and thereby ensures “fairness to the class and to the class attorneys.” Welsh, 2018 WL 7283639, at *16 (citing Erica P. John Fund, 2018 WL 1942227, at *8). “While the Johnson factors must be addressed ‘rarely are all the Johnson factors applicable; this is particularly so in a common fund situation.’” In re Dell Inc., No. A-06-CA-726-SS, 2010 WL 2371834, at *15 (W.D. Tex. June 11,
2010) (quoting Di Giacomo v. Plains All Am. Pipeline, No. CIV.A.H-99-4137, 2001 WL
34633373, at *9 (S.D. Tex. Dec. 19, 2001)), aff’d, appeal dismissed sub nom. Union Asset Mgmt.
Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 2012). “In evaluating these factors, the Fifth
Circuit has explained that courts should ‘give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience reputation and ability of counsel.’” Welsh, 2018 WL 7283639, at *16 (quoting Migis v. Pearle Vision, Inc., 135
F.3d 1041, 1047 (5th Cir. 1998)). As explained below, a Johnson factors cross-check demonstrates
22 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 30 of 44
that Class Counsel’s request for 30% of the Settlement Fund is reasonable and will ensure fairness to the Settlement Class and Class Counsel.
a. The Time and Labor Required Supports Approval of the Requested Fee.
Under this factor, courts examine whether “the time and labor expended was reasonably required for the results achieved” in the case. See Bridges, 2020 WL 7496843, at *4.
Class Counsel has invested substantial time and resources into pursing the Class’s claims.
From the inception of the case through July 13, 2021, Class Counsel and the attorneys and staff at their law firms have spent a combined 7,356.2 hours prosecuting this case, all of which were reasonably required to achieve the significant cash relief the Settlement will confer on the
Settlement Class Members.11 As recounted above, Class Counsel undertook a lengthy and
11 Several courts have suggested that the analysis of this factor should not be so detailed that it defeats the purpose of using the percentage method rather than the lodestar method. See Di Giacomo v. Plains All Am. Pipeline, No. CIV.A.H-99-4137, 2001 WL 34633373, at *10 (S.D. Tex. Dec. 19, 2001) (“This court will not conduct a detailed analysis of charged hours and hourly rates. To do so would undermine the utility of the percentage fee method. However, this court does note that the hours spent and the average hourly rates are reasonable in light of the circumstances of this case and the results achieved for plaintiffs.”). This is especially so in common fund contingency cases, in which the size of the fund created/results obtained is the most important factor. See In re Enron Corp. Sec., Derivative & ERISA Litig., 586 F. Supp. 2d 732, 747 (S.D. Tex. 2008) (citations omitted) (“One treatise writer has observed, ‘A lodestar figure cannot fully compensate counsel’ in a contingency common fund case ‘because the resulting amount does not reflect the risk of nonpayment and thus is not equal to the fair market value of the counsel's services . . . Furthermore, risk must be assessed ex ante, from the outset of the case, not in hindsight.”); Shaw v. Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 963 (E.D. Tex. 2000) (alterations and emphasis in original) (internal quotation marks and citations omitted) (“Unlike in a statutory fee analysis, where the lodestar is generally determinative, in a percentage fee award [from a common fund] the amount of time may not be considered at all . . . Even when hours expended receive some weight, the factor given the greatest emphasis is the size of the fund created, because a common fund is itself the measure of success . . . [and] represents the benchmark from which a reasonable fee will be awarded.”). After all, the purpose of this factor is not to calculate the fee amount but to “help[] the Court to evaluate the work done” and “serve[]the injured claimants” by “help[ing to] guard against spurious claims and counsel rushing cases to settlement to obtain a fee that might not reflect the actual work done.” In re Actos (Pioglitazone) Prod. Liab. Litig., 274 F. Supp. 3d 485, 529 (W.D. La. 2017).
23 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 31 of 44
thorough discovery process involving substantial written and deposition discovery, multiple meet and confer efforts to obtain discovery, and the review of thousands of pages of documents USAA
Life produced. In addition, USAA Life vigorously defended the case, requiring Plaintiff to engage in substantial motion practice including responding to its motion for more definite statement definite and its motion for summary judgment, and fending off its motion to strike Plaintiff’s expert and opposition to class certification.
Moreover, Class Counsel’s significant experience and in-depth knowledge of the subject matter gained through years of previous experience litigating claims like those here, allowed Class
Counsel to efficiently achieve this excellent result with no wasted effort. Simply put, Class
Counsel’s unmatched experience in COI litigation brought great value to the Settlement Class and was instrumental in bringing about the favorable result for the Settlement Class Members.
b. The Novelty and Difficulty of the Issues Support Approval of the Requested Fee.
Considerations courts analyze to determine uniqueness and difficulty of the issues involved in a case include, among others, the type of case, whether a case has a significant risk of no recovery, whether class counsel has litigated similar cases in the past, the volume of discovery and pretrial practice in the case, and the duration of the litigation. See Bridges, 2020 WL 7496843, at
*4; In re Heartland, 851 F. Supp. 2d at 1083; Klein, 705 F. Supp. 2d at 677. This case—like many cost of insurance cases—presented novel, complex and difficult issues on several fronts.
As an initial matter, this case involved claims that were by their nature difficult to detect.
Plaintiff claimed USAA Life hid its unlawful COI Charges for nearly thirty years—conduct that persisted without a lawsuit seeking redress and remediation. Only Class Counsel’s understanding of life insurance products, pricing and access to qualified actuarial experts allowed the case to be filed in the first instance.
24 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 32 of 44
Class certification presented another set of novel and complex issues. First, Class Counsel was able to overcome numerous defenses to class certification, including USAA Life’s arguments that state laws presented insurmountable conflicts among class members, and that purported conflicts rendered the class representative inadequate. Second, Class Counsel had to develop a classwide damages model that accounted for various policy variables to calculate the excess COI charges across all class members. This task presented a separate set of challenges related to the collection, extraction, and sorting of millions of lines of data across over 80,000 policies. In addition, coincident to addressing USAA Life’s challenges to Plaintiff’s motion for class certification, Class Counsel had to overcome a motion to strike Plaintiff’s expert that raised difficult and novel questions involving complex mathematical and actuarial issues related to the recalculation of all class members’ cash values over the lives of their policies.
c. The Skill Required to Perform the Legal Services Properly Supports Approval of the Requested Fee.
“This factor is evidenced where ‘counsel performed diligently and skillfully, achieving a speedy and fair settlement, distinguished by the use of informal discovery and cooperative investigation to provide the information necessary to analyze the case and reach a resolution.’” In re Heartland, 851 F. Supp. 2d at 1083 (quoting King v. United SA Fed. Credit Union, 744 F. Supp.
2d 607, 614 (W.D. Tex. 2010)).
From both a qualitative and quantitative perspective, the Settlement confirms that Class
Counsel provided the Settlement Class Members with outstanding legal services in litigating this case and securing the Settlement. USAA Life is a well-funded defendant represented by Sidley
Austin LLP and Maynard Cooper & Gale P.C., both well respected international and national law firms. The class is represented by Stueve Siegel Hanson LLP, Miller Schirger LLC, and Girard
Sharp LLP, highly respected law firms with substantial experience representing consumers in
25 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 33 of 44
complex commercial litigation, including litigation against insurance companies. See Siegel Decl.,
¶¶ 4, 46–48; Schirger Decl., ¶¶ 9–10; Girard Decl., ¶¶ 2–6. These firms have been actively involved in prosecuting this case from its inception.
In addition, Miller Schirger and Stueve Siegel have extensive experience in complex insurance litigation, including several other cost of insurance cases litigated over the last ten years, across the country. They have successfully fought back strong challenges to class certification, as well as prevailed against dispositive motions and motions to strike plaintiff’s experts, all like those here. The firms have successfully taken COI cases to trial and protected large jury verdicts on appeal. Class Counsel leveraged that experience and skill in overcoming USAA Life’s vigorous defenses to deliver this outstanding result.
The Court has recognized that the Class Counsel law firms “have extensive experience litigating cost of insurance overcharge cases,” thus finding them adequate to represent the class and appointing them Class Counsel. See Doc. 105, ¶ 3. Other courts have also recognized the skill and benefits conferred by Class Counsel. See Siegel Decl., ¶ 50 (quoting judges recognizing the skill and professionalism of Class Counsel). For example, the Honorable Nanette K. Laughrey on the United States District Court for the Western District of Missouri stated the following regarding
Stueve Siegel Hanson’s work in a case captioned Nobles v. State Farm Mutual Automobile
Insurance Co.: “I’ve always been impressed with the professionalism and the quality of work that has been done in this case by both the plaintiffs and the defendants. On more than one occasion, it has made it difficult for the Court because the work has been so good.” The Honorable John W.
Lungstrum on the United States District Court for the District of Kansas stated the following about
Stueve Siegel Hanson attorneys in the In Re: Syngenta AG MIR 162 Corn Litigation:
The complex and difficult nature of this litigation, which spanned across multiple jurisdictions and which involved multiple types of plaintiffs and claims, required a
26 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 34 of 44
great deal of skill from plaintiffs’ counsel, including because they were opposed by excellent attorneys retained by Syngenta. That high standard was met in this case, as the Court finds that the most prominent and productive plaintiffs’ counsel in this litigation were very experienced had very good reputations, were excellent attorneys, and performed excellent work. In appointing lead counsel, the various courts made sure that plaintiffs would have the very best representation…
In this Court’s view, the work performed by plaintiffs’ counsel was consistently excellent, as evidenced at least in part by plaintiffs’ significant victories with respect to dispositive motion practice, class certification, and trial.
In addition, the Honorable Andrew J. Guilford in certifying a contested class action in the Central
District of California remarked: “The most compelling evidence of the qualifications and dedication of proposed class counsel is their work in this case. Considering how far this action has come despite a grant of summary judgment in Defendant’s favor and a reversal on appeal, proposed class counsel have made a strong showing of their commitment to helping the class vigorously prosecute this case.”12 This factor supports the requested fee.
d. The Preclusion of Other Employment by the Attorney as a Result of Taking the Case Supports Approval of the Requested Fee.
This factor examines “the extent to which class counsel were precluded from accepting other work due to the responsibilities involved in litigating this case.” See Klein, 705 F. Supp. 2d at 677–78. Considerations can include whether class counsel “turned away cases to permit time to prosecute” the action, the length and frequency of time investments in the case to the exclusion of other employment, and whether the strength of class counsel’s commitment to the action “resulted in the loss of other work.” Id. “The reality of complex cases is that work is not easily shifted to
12 The Hon. W. Royal Furgeson (Ret.) described Class Counsel Daniel Girard’s work in Billitteri v. Securities Am., Inc., No. 3:09-cv-01568-F (N.D. Tex.) as follows: “Class counsel in this case possess great competence and experience, and the result reached in this case perfectly exemplifies their abilities. The Court has been extremely impressed with the conduct, skill, and accomplishment of class counsel throughout this litigation.” 2011 WL 3585983, at *8 (N.D. Tex. Aug. 4, 2011).
27 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 35 of 44
other attorneys in a firm not familiar with the matter, with the result that substantially less time becomes available to . . . Class Counsel to attend to other matters.” In re Heartland, 851 F. Supp.
2d at 1084. As a result, “[t]ime devoted to this litigation and its resolution necessarily limited the time available for other litigation.” Id.
Here, the work of Class Counsel in the management and litigation of this complex proceeding “necessarily infringed upon the time and opportunity they would have had available to accept other employment.” Id. The contentiousness of this case and the many novel and complex issues raised required Class Counsel to expend significant time and financial resources. The time and resources required to resolve this case prevented Class Counsel from pursuing other work. See
Siegel Decl., ¶¶ 39–41; Schirger Decl., ¶ 18; Girard Decl., ¶ 9.
e. The Requested Fee Is Within Range of the Customary Fee in Common Fund Cases, Supporting the Requested Fee.
“This Court has previously approved fee awards consistent with the Fifth Circuit’s benchmark of 30 percent in common-fund cases.” Sistrunk v. TitleMax, Inc., No. 5:14-CV-628-
RP, 2018 WL 1773307, at *3 (W.D. Tex. Feb. 22, 2018). In the Fifth Circuit, fee awards of 30%–
33% are customary in common fund cases. See In re Forterra Inc. Sec. Litig., No. 3:18-CV-01957-
X, 2020 WL 4727070, at *1 (N.D. Tex. Aug. 12, 2020) (33%); Parmelee v. Santander Consumer
USA Holdings Inc., No. 3:16-CV-00783-K, 2019 WL 2352837, at *1 (N.D. Tex. June 3, 2019)
(same); In re EZCORP, Inc. Sec. Litig., No. 1:15-CV-00608-SS, 2019 WL 6649017, at *1 (W.D.
Tex. Dec. 6, 2019) (same); Hill v. Hill Bros. Constr. Co., Inc., No. 3:14-CV-213-SA-RP, 2018
WL 280537, at *3 (N.D. Miss. Jan. 3, 2018) (same); Jenkins v. Trustmark Nat. Bank, 300 F.R.D.
291, 307 (S.D. Miss. 2014) (same); In re Vioxx Prod. Liab. Litig., No. 11-1546, 2013 WL 5295707, at *4 (E.D. La. Sept. 18, 2013) (same); Kemp v. Unum Life Ins. Co. of Am., No. CV 14-0944, 2015
WL 8526689, at *10 (E.D. La. Dec. 11, 2015) (same); Burford v. Cargill, Inc., No. CIV.A. 05-
28 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 36 of 44
0283, 2012 WL 5471985, at *6 (W.D. La. Nov. 8, 2012) (same); Fairway Med. Ctr., 2018 WL
1479222, at *2; City of Omaha Police & Fire Ret. Sys. v. LHC Grp., No. CIV. 6:12-1609, 2015
WL 965696, at *10 (W.D. La. Mar. 3, 2015) (30%); Buettgen v. Harless, No. 3:09-CV-00791-K,
2013 WL 12303143, at *4 (N.D. Tex. Nov. 13, 2013) (30% of $33.75 million settlement); City of
Pontiac Gen. Employees' Ret. Sys. v. Dell Inc., No. 1:15-CV-00374-LY, 2020 WL 218518, at *1
(W.D. Tex. Jan. 10, 2020) (30%); Marcus v. J.C. Penney Co., Inc., No. 613CV00736-RWS-KNM,
2018 WL 11275437, at *1 (E.D. Tex. Jan. 5, 2018) (30%).13
f. The Contingent Nature of the Requested Fee Supports Its Approval.
“Consideration of this factor is designed to ‘demonstrat[e] the attorney’s fee expectations when he accepted the case.’” In re Dell, 2010 WL 2371834, at *17 (quoting Johnson, 488 F.2d at
718). “District courts within this circuit have found upward adjustments appropriate if counsel took the case on a contingency basis . . . But merely taking a case on a contingency basis does not merit an upward adjustment if the benchmark reflects the market rate.” In re Heartland, 851 F.
Supp. 2d at 1084 (citing Klein, 705 F. Supp. 2d at 678; In re Dell, 2010 WL 2371834, at *17).
Here, Class Counsel took this case on a contingency basis. Class Counsel’s customary contingency
13 See also Vela v. City of Houston, 276 F.3d 659, 681 (5th Cir. 2001) (noting district court found thirty percent contingency fee “is a reasonable rate”); Dyson v. Stuart Petroleum Testers, Inc., No. 1-15-CV-282 RP, 2016 WL 815355, at *5 (W.D. Tex. Feb. 29, 2016) (“appl[ying] a benchmark fee of 30%”); Rodriguez v. Stage 3 Separation, LLC, No. 5:14-CV-00603-RP, 2015 WL 12866212, at *5 (W.D. Tex. Dec. 23, 2015) (thirty percent); Wolfe v. Anchor Drilling Fluids USA Inc., No. 4:15-CV-1344, 2015 WL 12778393, at *3 (S.D. Tex. Dec. 7, 2015) (awarding forty percent); Frost v. Oil States Energy Servs., No. 4:15-cv-1100, 2015 WL 12780763, *2 (S.D. Tex. Nov. 19, 2015) (one-third); Campton v. Ignite Restaurant Group, Inc., No. 4:12-2196, 2015 WL 12766537, at *3 (S.D. Tex. June 5, 2015) (one-third); In re Pool Prods. Distribution Mkt. Antitrust Litig., MDL No. 2328, 2015 WL 4528880, at *23 (E.D. La. July 27, 2015) (one-third); Schwartz v. TXU Corp., No. 3:02-CV-2243-K, 2005 WL 3148350, at *27 (N.D. Tex. Nov. 8, 2005) (noting that “courts throughout this Circuit regularly award fees of 25% and more often 30% or more of the total recovery under the percentage-of-the recovery method”); Al’s Pals Pet Care v. Woodforest Nat’l Bank, NA, No. 4:17-CV-3852, 2019 WL 387409, at *4 (S.D. Tex. Jan. 30, 2019) (awarding one- third of $15 million settlement fund).
29 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 37 of 44
fee is 30% or more of the total recovery for cases that resolve before an appeal and 40% or more for cases that are appealed. Class Counsel’s fee request is consistent with these customary percentages.
g. Time Limitations Imposed by the Client or Other Circumstances Factor Is Inapplicable.
This factor is “inapplicable to this case, and [is] therefore neutral.” In re Dell, 2010 WL
2371834, at *18.
h. The Monetary Amount and the Results Obtained Supports Approval of the Requested Fee.
“The United States Supreme Court and the Fifth Circuit have held ‘the most critical factor in determining the reasonableness of a fee award is the degree of success obtained.’” In re Dell,
2010 WL 2371834, at *18 (quoting In re Enron, 586 F. Supp. 2d at 796). Here, as in Klein, “the results obtained for the class are significant” due to the “$90 million dollars in settlement funds.”
705 F. Supp. 2d at 678.
Here, there are 109,874 Settlement Class Members upon whom the Settlement Relief will be conferred. Each Settlement Class Member will receive an average payment of $570, and all
Settlement Class Members will receive at least the minimum payment of $50. As the record reveals, this was a heavily litigated case that would not have been initiated but for Mr. Spegele’s and Class Counsel’s efforts. No other owner of a USAA Life policy included in the class has asserted similar claims at any prior time in any court. Class Counsel was successful in achieving certification of a nationwide class of policyholders, overcoming numerous challenges by USAA
Life in the process, and defeating USAA Life’s motion to strike Plaintiff’s classwide damages expert. Solely through the exceptional work of Class Counsel will Class Members automatically receive settlement checks in substantial amounts to compensate them for a significant portion of
30 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 38 of 44
their losses. Thus, the Settlement provides an excellent recovery under any standard and supports
Class Counsel’s fee request.
i. The Experience, Reputation, and Ability of Class Counsel Supports Approval of the Requested Fee.
As addressed above, Class Counsel are highly experienced in litigating complex class actions and are considered leaders in the field of cost of insurance litigation. In addition to other active cases, Class Counsel have also been appointed and served as class counsel in several other cost of insurance cases against life insurance companies across the country. Siegel Decl., ¶¶ 3–4,
47–49; Schirger Decl., ¶¶ 9–11; Girard Decl., ¶ 6. Recognizing Class Counsel’s outstanding experience, reputation, and ability, this Court likewise appointed these firms as Class Counsel under Rule 23(g).
Class Counsel’s experience litigating class actions, particularly in the cost of insurance field, allowed them to fully understand the issues attendant to such litigation, properly value the risks of continued litigation compared to benefits derived from the Settlement, and efficiently resolve this case in a manner that achieves the goals of the litigation. Siegel Decl., ¶¶ 3–4, 47–49.
Thus, this factor supports approval of the requested 30% of the Settlement Fund.
j. The Undesirability of this Case Due to the Risk of Non-Recovery Supports Approval of the Requested Fee.
This case was undesirable due to the risk involved and the effort required. “[T]he ‘risk of non-recovery’ and ‘undertaking expensive litigation against . . . well-financed corporate defendants on a contingent fee’ has been held to make a case undesirable, warranting a higher fee.”
Erica P. John, 2018 WL 1942227, at *12 (quoting Braud v. Transport Serv. Co., 2010 WL
3283398, at *13 (E.D. La. Aug. 17, 2010)).
First, the risk of non-payment was high in this case. It would not have been economically feasible for Plaintiff to retain lawyers on an hourly basis or to pay the costs of litigation, which
31 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 39 of 44
would quickly surpass the amount in controversy for an individual plaintiff. As a result, Class
Counsel undertook the representation of Plaintiff and the class on a fully contingent basis and would recover nothing for expenses or time incurred unless the case succeeded. See Siegel Decl.,
¶ 46. Thus, in taking the case, Class Counsel accepted a high risk of not being compensated for their efforts, supporting approval of the fee award here. See In re Combustion, 968 F. Supp. at
1132 (“The rationale behind awarding a percentage of the fund to counsel in common fund cases is the same as that which justifies permitting contingency fee arrangements in general . . . The underlying premise is the existence of risk—the contingent risk of nonpayment.”).
Second, in bringing this lawsuit on behalf of Plaintiff and the Settlement Class against
USAA Life, Class Counsel undertook expensive litigation against a well-financed corporate defendant on a contingency fee basis. This “case carried risks that required in-depth investigation and considerable . . . discovery to analyze the merits of” the class’s claims, which further “justifies the benchmark percentage” Class Counsel requests. Bridges, 2020 WL 7496843, at *4.
k. The Nature and Duration of the Professional Relationship with the Client Supports the Requested Fee.
Class Counsel has represented Mr. Spegele for the entirety of this action. From the very beginning, Class Counsel has maintained a strong, positive professional relationship with Mr.
Spegele. Siegel Decl.,¶ 8.
l. Awards in Similar Cases Supports the Requested Fee.
“Courts often look at fees awarded in comparable cases to determine if the fee requested is reasonable.” In re Heartland, 851 F. Supp. 2d at 1086 (internal quotation marks omitted) (quoting
DeHoyos, 240 F.R.D. at 333). Courts may examine “empirical studies” or “[s]pecific cases” under this factor. See id.
32 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 40 of 44
Class Counsel has previously sought and been awarded 30% of the fund as fees in other common fund cost of insurance cases. For instance, the court in Larson v. John Hancock awarded
Class Counsel fees totaling 30% of the common fund obtained through settlement. And, in Vogt v.
State Farm Life Insurance Company, the court awarded Class Counsel fees totaling one-third of the common fund Class Counsel obtained through a judgment following trial and that was affirmed on appeal. Siegel Decl., ¶ 49. Class Counsel’s fee request is consistent with these specific, comparable cases, and is therefore reasonable.
* * *
Accordingly, Rule 23(h), Fifth Circuit case law, and the Johnson factors show that Class
Counsel’s request for 30% of the Settlement Fund is reasonable and should be awarded to Class
Counsel.
V. CLASS COUNSEL’S REQUESTED EXPENSE REIMBURSEMENT SHOULD BE APPROVED.
“In addition to being entitled to reasonable attorneys’ fees, class counsel in common fund cases are also entitled to reasonable litigation expenses from that fund.” In re Heartland, 851 F.
Supp. 2d at 1089 (internal quotation marks omitted) (quoting Radosti v. Envision EMI, LLC, 760
F. Supp. 2d 73, 79 (D.D.C. 2011)).
As detailed in Mr. Siegel’s Declaration, Class Counsel requests reimbursement for
$176,165.01 in costs and expenses expended by Class Counsel. See Siegel Decl., ¶51. This request is reasonable. Class Counsel can, if requested, provide this Court with documents detailing these costs. These costs were reasonably and necessarily incurred in the prosecution of this case and are the types of costs included in a bill for professional services that are not absorbed as part of firm overhead. Id. These costs are typical expenses in complex class action litigation like this case.
USAA Life does not object, as shown by its agreement that Class Counsel would seek
33 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 41 of 44
reimbursement of up to $300,000 in costs and expenses, subject to this Court’s approval.
Agreement, ¶ 8.1. Class Counsel respectfully requests the Court award $176,165.01 for expense reimbursement.
VI. THE COURT SHOULD APPROVE A $20,000 SERVICE AWARD FOR MR. SPEGELE.
“Service awards are used in class action lawsuits to compensate named plaintiffs for the services they provide.” Del Carmen v. R.A. Rogers, Inc., No. SA16CA971FBHJB, 2018 WL
6430835, at *2 n.2 (W.D. Tex. Oct. 18, 2018) (citing DeHoyos, 24 F.R.D. at 339). See also
DeHoyos, 24 F.R.D. at 339–40 (collecting cases) (“Federal courts consistently approve incentive awards in class action lawsuits to compensate named plaintiffs for the services they provide and burdens they shoulder during litigation.”). Service awards are supported by the text of Rule
23(e)(2)(D), which requires a court reviewing a proposed settlement to consider whether “the proposal treats class members equitably relative to each other.” While this “equitable treatment requirement most obviously protects absent class members from being subjected to excessive incentive awards,” the requirement “also protects class representatives from having absent class members free ride on their efforts.” Newberg on Class Actions § 17:4 (5th ed.) (footnote omitted) (“In other words, if the class representatives face particular risks in serving the class and/or undertake valuable work on behalf of the class but cannot recover any of the costs of those efforts through an incentive award, they have a fair argument that the settlement is not treating them equitably relative to the absent class members.”).
Pursuant to the Agreement, Class Counsel request that the Court award Mr. Spegele a
Service Award of $20,000. Such an award is “justified in light of [his] willingness to devote [his] time and energy to this . . . representative action and reasonable in consideration of the overall benefit conferred on the settlement class.” DeHoyos, 24 F.R.D. at 339; see also, e.g., Shaw v.
34 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 42 of 44
Toshiba Am. Info. Sys., Inc., 91 F. Supp. 2d 942, 973 (E.D. Tex. 2000) (“approving incentive awards of $25,000 to each of two named plaintiffs”); In re Catfish Antitrust Litig., 939 F. Supp.
493, 504 (N.D. Miss. 1996) (approving $10,000 incentive awards to each of the four named plaintiffs). First, Mr. Spegele made the difficult decision to put his name on a lawsuit, as the sole plaintiff, against an abundantly resourced corporation, without which this lawsuit could not have been initiated. Siegel Decl., ¶ 8. In addition, Mr. Spegele provided detailed information as to his claims and relationship with USAA Life that was vital to Class Counsel’s investigation and litigation of the class’s claims. Id. Furthermore, Mr. Spegele has remained active in the case, communicating with Class Counsel during subsequent phases of the case, including providing feedback and reviewing and approving the terms of the Settlement as being in the best interests of the Settlement Class. Mr. Spegele’s participation required particular commitment considering his advanced age and the physical toll of preparing for and appearing at a deposition. Id. Thus, Class
Counsel’s request for a Service Award of $20,000 for Mr. Spegele is reasonable, justified, and should be approved.
VII. CONCLUSION
Class Counsel’s request for 30% of the Settlement Fund, or a fee award of $27,000,000, should be approved as a reasonable percentage of the fund created for the Settlement Class, which is further supported by the Johnson factors cross-check. In addition, Class Counsel’s request for expense reimbursement in the amount of $176,165.01 should be approved because expenses in this amount were reasonably incurred. Finally, a Service Award of $20,000 for Mr. Spegele should be approved in recognition of his important contributions to this litigation.
35 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 43 of 44
Dated: July 14, 2021 Respectfully submitted,
By: /s/ Norman E. Siegel Norman E. Siegel (pro hac vice) Ethan M. Lange (State Bar No. 24064150) David A. Hickey (pro hac vice) STUEVE SIEGEL HANSON LLP 460 Nichols Road, Suite 200 Kansas City, Missouri 64112 Telephone: (816) 714-7100 Facsimile: (816) 714-7101 [email protected] [email protected] [email protected]
John J. Schirger (pro hac vice) Matthew W. Lytle (pro hac vice) Joseph M. Feierabend (pro hac vice) MILLER SCHIRGER, LLC 4520 Main Street, Suite 1570 Kansas City, Missouri 64111 Telephone: (816) 561-6500 Facsimile: (816) 561-6501 [email protected] [email protected] [email protected]
Daniel C. Girard (pro hac vice) GIRARD SHARP LLP 601 California Street, Suite 1400 San Francisco, California 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 [email protected]
Larry R. Veselka State Bar No. 20555400 SMYSER KAPLAN & VESELKA, L.L.P. 700 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (731) 221-2325 Facsimile: (713) 221-2320 [email protected]
Counsel for Plaintiff and the Class
36 Case 5:17-cv-00967-OLG Document 108 Filed 07/14/21 Page 44 of 44
CERTIFICATE OF SERVICE
I hereby certify that on July 14, 2021, a copy of the foregoing motion was sent via CM/ECF to all counsel of record.
/s/ Norman E. Siegel
37 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 1 of 43 EXHIBIT A Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 2 of 43
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
ROY C. SPEGELE, individually and on behalf of all others similarly situated,
Plaintiff,
v. Case No. 5:17-cv-967-OLG
USAA LIFE INSURANCE COMPANY,
Defendant.
DECLARATION OF NORMAN E. SIEGEL IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES TO CLASS COUNSEL AND NAMED PLAINTIFF SERVICE AWARD
I, Norman E. Siegel, hereby declare as follows:
1. I am a founder and partner at the law firm of Stueve Siegel Hanson LLP and counsel of record for Plaintiff and the certified class in the above-captioned matter. I am admitted pro hac vice to practice in the State of Texas in this case. I make this declaration based on my personal knowledge, and, if called to testify to the matters discussed herein, I could and would competently do so.
2. I have been a member of the Missouri bar since 1993 when I obtained my J.D. from Washington University School of Law in St. Louis, Missouri, where I served as an Editor of the Journal of Urban Contemporary Law. Prior to starting Stueve Siegel Hanson in 2001, I served as an Assistant Attorney General for the state of Missouri and as a partner of the law firm currently named Dentons.
1 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 3 of 43
3. Stueve Siegel Hanson, along with the other firms representing the class here, have substantial experiencing litigating cases of the type at issue in this case. In 2018, Class Counsel here settled a similar case against John Hancock Life Insurance Company, obtaining $59.75 million for a class of approximately 91,500 owners of about 103,000 life insurance policies. See
Larson v. John Hancock Life Ins. Co., No. RG16813803 (Alameda Cty., Cal.). In 2016, Stueve
Siegel Hanson and Miller Schirger settled another similar case against Lincoln National Life
Insurance Company, obtaining $2.25 billion of guaranteed term life insurance with a market value of approximately $171.8 million for a class of owners of approximately 85,000 universal life policies. See Lincoln Nat’l Life Ins. Co. v. Bezich, No. 02C01-0906-PL-73 (Allen Cty., Ind.).
4. In June 2018, Stueve Siegel Hanson and Miller Schirger successfully tried a class action COI overcharge case like this against State Farm Life Insurance Company, securing a jury verdict of $34,333,495.81 for owners of approximately 24,000 Missouri universal life insurance policies, which was affirmed on appeal by the Eighth Circuit Court of Appeals. See Vogt v. State
Farm Life Ins. Co., No. 2:16-CV-04170-NKL at Docs. 358 & 360 (W.D. Mo. June 6, 2018), aff’d, 963 F.3d 753 (8th Cir. 2020). The United States Supreme Court later denied State Farm’s petition for writ of certiorari seeking to challenge certification of the class. State Farm Life
Insurance Co. v. Vogt, cert. denied sub nom., No. 20-1008, 2021 WL 1521013 (U.S. Apr. 19,
2021). Stueve Siegel Hanson, along with Miller Schirger (and sometimes Girard Sharp), is also simultaneously prosecuting similar cases against State Farm Life Insurance Company, Symetra
Life Insurance Company, Kansas City Life Insurance Company, and Connecticut General Life
Insurance Company. This significant experience litigating class actions involving similar alleged cost of insurance overcharges provided useful benchmarks to evaluate the merits of this case and to allow Class Counsel to evaluate the reasonableness of the Settlement here.
2 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 4 of 43
Procedural History and Discovery
A. Class Counsel engaged in significant preliminary investigation and prevailed over USAA Life’s challenges to the pleadings.
5. Plaintiff filed his Class Action Complaint and Demand for Jury Trial on
September 29, 2017, alleging causes of action for breach of contract, conversion, and declaratory and injunctive relief on behalf of himself and similarly situated owners of USAA Life universal life insurance policies that state that the policies’ cost of insurance rates (“COI Rates”) will be determined by USAA Life “based on its expectations as to future mortality experience.” Doc. 1.
In Count I, Plaintiff alleged that USAA Life breached the terms of the Class Policies by including unauthorized factors beyond its “expectations as to future mortality experience,” such as expenses and profit, in determining the monthly COI Rates used to calculate COI Charges, which impermissibly caused those charges to be higher than authorized. Id. ¶¶ 53–60. In Count II,
Plaintiff alleged that USAA Life breached the Class Policies by loading the monthly COI Rates with undisclosed maintenance and administrative expense factors above the fixed amount authorized by the policies. Id. ¶¶ 61–64. In Count III, Plaintiff alleged that USAA Life breached the terms of the Class Policies by failing to incorporate its improving expectations as to future mortality experience into the COI Rates, which would have resulted in lower rates for the policies. Id. ¶¶ 65–69. In Count IV, Plaintiff alleged that through the conduct alleged in Counts
I–III, USAA Life misappropriated funds held in trust for the benefit of Plaintiff and the putative class, which constituted the tort of conversion. Id. ¶¶ 70–78. In Count V, Plaintiff sought a declaration that the conduct alleged in Counts I–III constitutes a breach of the Class Policies and sought an order enjoining USAA Life from continuing to collect impermissibly inflated charges.
6. USAA Life maintains that the COI Charges were appropriate and permissible under the terms of the universal life insurance policies and has asserted additional defenses,
3 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 5 of 43
including that the claims are barred by the statute of limitations. E.g., Doc. 36 (Answer); Doc.
67 (Mot. for Summary Judgment).
7. Prior to filing Plaintiff’s Class Action Complaint, Class Counsel engaged an actuarial expert on behalf of Plaintiff to analyze Plaintiff’s annual statements from USAA Life to determine whether his COI Charges included loads above and beyond expected mortality.
Plaintiff’s actuary provided a complex analysis confirming apparent overcharges. Soon after filing the Complaint, Class Counsel retained a second actuarial expert, Scott Witt, who assisted in evaluating the claims, documentation, and data received from USAA Life throughout litigation.
8. Class Counsel has represented Mr. Spegele for the entirety of this action. From the very beginning, Class Counsel has maintained a strong, positive professional relationship with Mr. Spegele. Mr. Spegele assisted in providing significant facts and documents for inclusion in the Complaint. And Class Counsel and Mr. Spegele have maintained regular communication throughout the litigation regarding the activity and direction of the lawsuit. Mr.
Spegele’s contributions were essential to the outcome of this litigation. First, Mr. Spegele made the difficult decision to put his name on a lawsuit, as the sole plaintiff, against an abundantly resourced corporation, without which this lawsuit could not have been initiated. In addition, Mr.
Spegele provided detailed information as to his claims and relationship with USAA Life that was vital to Class Counsel’s investigation and litigation of the class’s claims. Mr. Spegele is an owner of a UL2 policy and was an owner of two additional, now-terminated UL2 policies, in addition to his UL3 policy, and was able to provide information regarding each of his policies.
Furthermore, Mr. Spegele has remained active in the case, communicating with Class Counsel
4 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 6 of 43
during subsequent phases of the case, including providing feedback and reviewing and approving the terms of the Settlement as being in the best interests of the Settlement Class.
9. On December 19, 2017, USAA Life filed its first of many challenges to Plaintiff’s claims—a motion for more definite statement, that sought to avoid responding to allegations by requesting Plaintiff provide further evidence without the benefit of discovery. Doc. 27. Plaintiff responded by providing additional details regarding his claims for breach of specific contract provisions—far more detail than required—and arguing in opposition to the motion that the specific decisions behind USAA Life’s breach would necessarily be determined through discovery. Doc. 29. On February 28, 2018, this Court denied Defendant’s motion. Doc. 34.
B. Class Counsel engaged in extensive discovery, including prevailing on multiple discovery disputes without the need for Court intervention, largely due to Class Counsel’s expertise in life insurance overcharge litigation.
10. Concurrently, the Parties began a lengthy and thorough discovery process. On
January 23, 2018, Class Counsel prepared and served three sets of discovery requests: Plaintiff’s
First Interrogatories to Defendant (containing 13 interrogatories); Plaintiff’s First Set of
Requests for Production of Documents (requesting several dozen categories of documents and data); and Plaintiff’s First Set of Requests for Admission (seeking admissions on 18 issues).
Class Counsel served Plaintiff’s initial disclosures on that date.
11. In February 2018, Class Counsel negotiated a proposed scheduling order (Doc.
32), which was entered by the Court on February 13th (Doc. 33). Similarly, Class Counsel negotiated a proposed Confidentiality and Protective Order, which was filed on March 16th
(Doc. 37), and granted on April 11th (Doc. 38). After the agreement on confidentiality,
Defendant provided responses to Plaintiff’s initial three sets of discover requests on March 26,
2018.
5 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 7 of 43
12. Soon thereafter Class Counsel engaged counsel for USAA Life in a series of meet-and-confer discussions relating to document requests and interrogatories. USAA Life produced an initial batch of documents on March 26, 2018. On April 9, 2018, in one of the early discussions regarding USAA Life’s document production, Class Counsel identified several priority productions of additional documents and materials. Because of their experience with life insurance litigation, Class Counsel was able to both prioritize particularly probative pieces of information and suggest which reports would likely contain such information. For instance, in a follow up email to the April 9, 2018 discussion, Class Counsel memorialized the “highly relevant” categories of information to be produced as follows:
the original internal pricing/design materials for the 11-87 that were likely captured in a final pricing or product memorandum that may or may have not been filed with regulators (to be clear, the request is for all original pricing/design materials, even if not included in a final memorandum for the product – this may include drafts or revisionary materials used during the pricing process); USAA’s periodic studies, including its mortality, expense, and persistency studies, from the date 11-87 was first made available for sale through the present; documents reflecting periodic asset adequacy analyses and cash flow testing since the 11-87 was first made available for sale through the present; the original current and guaranteed maximum cost of insurance rate tables for 11-87; the original mortality assumptions used for pricing 11-87, including any referenced industry or internal mortality tables; documents reflecting any changes or contemplated changes to cost of insurance rate scales for 11-87; and documents reflecting any subsequent repricing of 11-87, and the related assumptions used for the repricing.
13. Similarly, Class Counsel met with counsel for Defendant on April 17, 2018, and agreed that Defendant would produce by May 1 all policy forms with language fitting the class allegations and an amended response to the requests for production of documents. Thereafter, on
May 1 and May 15, Defendant produced dozens of different state-specific policy forms comprising about 2,600 pages of policy forms. Additionally, on July 31, 2018, Class Counsel proposed a set of 57 ESI search terms to help identify additional relevant documents. Class Counsel continued to confer with counsel for Defendant, who made two large document productions in August 2018,
6 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 8 of 43
which provided 20,000 pages of documents relating to key issues in the case, including specific policy forms, illustrations, repricing documentation, cost estimates, pricing assumptions, profit studies, illustration testing materials (which contain mortality assumptions), and asset adequacy documentation (also containing mortality assumptions).
14. Class Counsel engaged in further meet-and-confer discussions with counsel for
Defendant on August 15, 2018, to gather additional information, including the number of policies issued on each policy form and the full list of unique “policy pull codes” applicable to the form sold in each state. Class Counsel quickly synthesized this information with their review of the document productions to determine the policy forms with provisions similar to Plaintiff’s. This task was complicated by largely subtle—but occasionally material—state-specific variations among forms. Nonetheless, on August 23, Class Counsel prepared and served Plaintiff’s Second
Set of Interrogatories to Defendant, which included 12 interrogatories directed at a tailored group of all the Class Policies (UL 1-4) and a “variable universal life” (VUL) policy with similar policy terms. Soon thereafter, Class Counsel discovered as a part of this process that only around a dozen
VUL policies remained in force and dropped those policies from the case.
15. Class Counsel continued to confer with Defendant’s counsel regarding certain complicated discovery issues, including the production of policyholder data. USAA Life had initially objected to producing specific policyholder data for each Class Policy. In August 2018, counsel for Defendant requested and Class Counsel agreed to provide an in-depth explanation of the need and protections for the policy data. Class Counsel drafted a clear explanation of the need for the policyholder data, which led to Defendant’s agreement to provide the policy data with certain identifying information removed. See Doc. 40 at ¶ 9. Class Counsel negotiated the production of sample data to confirm that the data included all fields necessary to identify
7 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 9 of 43
overcharges and compute damages for the proposed class. On October 10, 2018, Defendant’s counsel provided the first sample of the data fields that could be collected from USAA Life’s systems. USAA Life identified two relevant data sources: the contract database, which includes the basic details regarding the policy and the insured, and the activity database, which includes annualized summaries of policy transactions like payments and charges. Counsel for USAA Life confirmed that there would be 155,000 rows of relevant data in the contract database and 1,960,000 rows of relevant data in the activity database.
16. While discussions regarding production of policy owner data continued, Class
Counsel also continued to confer with USAA Life’s counsel on their search term proposal. Class
Counsel negotiated an iterative process for the search terms by which the terms could be refined based on hit counts against a list of agreed custodians. Due to the various ways USAA Life referred to the relevant products (including by product names, form names, and pull codes), Class
Counsel’s original 57 proposed search terms contained many combinations of relevant terms and relevant products. Additionally, USAA Life’s systems lacked the ability to perform complex searches, which required serial searches to perform all relevant combinations of terms. Thus,
USAA Life ran the initial set of search terms as 300 separate search term combinations, the vast majority of which were targeted to documents discussing both relevant issues and the relevant products. Counsel for Defendant provided an initial hit report on October 15, 2018, which revealed the hits for each of the 300 searches in the initial batch and reflected an aggregate total of around
350,000 unique documents. Class Counsel provided a proposal to narrow the search terms on
November 28, 2018. After further meet-and-confer discussions Class Counsel proposed a final set of search terms on January 2, 2019.
8 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 10 of 43
17. During this period, USAA Life propounded extensive discovery on Plaintiff. On
September 10, 2018, USAA Life served on Plaintiff its first interrogatories, requesting responses to 12 issues, and requests for production, which contained 30 unique requests. Class Counsel worked with Mr. Spegele to draft responses to this discovery as well as search for and collect responsive documents. Class Counsel served Plaintiff’s responses to the interrogatories and requests for production on November 6, 2018. Along with Plaintiff’s responses, Class Counsel produced about 130 pages of responsive materials from Plaintiff’s files. In March 2019, Plaintiff supplemented his interrogatory responses to identify a new purchase of an insurance policy in late
2018 and produced several additional documents related to other insurance policies. USAA Life deposed Mr. Spegele on October 9, 2019. Class Counsel had several meetings and conversations with Mr. Spegele to prepare for his deposition.
18. Counsel for USAA Life provided sample policyholder data in November 2018.
Class Counsel conferred with counsel for Defendant regarding various questions regarding interpreting the various data fields and data codes, the availability of certain data fields, including requesting a data key. On January 23, 2019, counsel for USAA Life provided the data key for the activity data, which allowed Class Counsel (with the assistant of actuarial expert, Scott Witt) to determine whether the data would be sufficient to prove class claims without the need for individual presentation of evidence. On February 11, 2019, the Parties held a meet-and-confer discussion regarding additional data questions. On February 14, USAA Life produced the full policyholder data for the Class Policies. Due to the many data fields and codes in the data, Class
Counsel compiled USAA Life’s data explanation into a comprehensive document identifying the explanations on certain data fields and the open questions for USAA Life to answer. On March
11, 2019, Class Counsel provided that document to counsel for USAA Life. Thereafter, on April
9 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 11 of 43
19, Class Counsel spoke directly with USAA Life’s system administrator, Mike Rothe, to resolve certain outstanding questions regarding the data productions and data availability. Class Counsel again incorporated Mr. Rothe’s answers into the comprehensive data document. After several further meet-and-confer conversations, Class Counsel negotiated to have Mr. Rothe sign a declaration attesting to the accuracy of the data document, which obviated the need for a further time-consuming deposition relating to data issues. The declaration was executed on June 23, 2019.
19. On February 12, 2019, Class Counsel spoke with counsel for Defendant regarding supplementation of Defendant’s responses to certain interrogatories, including interrogatories relating to the cost of insurance rate scales for the Policies and the relevant mortality assumptions used in setting those COI Rates. Over the course of several months, Class Counsel negotiated for
USAA Life to crystalize two key pieces of information for each product in writing to be used by the damages experts in this case—the actual COI Rates used and USAA Life’s expected mortality rates. After further conferences, counsel for USAA Life provided an initial response identifying the key mortality assumptions and COI Rates for the Class Products. Thereafter, on August 19,
2019, USAA Life formalized these mortality assumptions and COI Rate materials into a formal interrogatory response.
20. Throughout discovery, Class Counsel reviewed Defendant’s document productions on a rolling basis. USAA Life produced roughly 20,000 documents in this litigation. Class Counsel utilized internal search terms and prioritization filters to efficiently identify relevant documents, but still collectively reviewed in excess of 10,000 distinct documents comprising around 130,000 pages. Class Counsel staffed this review process with attorneys that had significant experience in
COI litigation and who understood insurance and actuarial terms of art. The review returned hundreds of pages of documents bolstering Plaintiff’s claims, including key documents that were
10 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 12 of 43
handwritten in the 1980s, which could have only been identified through a painstaking manual review by attorneys familiar with sometimes arcane insurance terminology.
21. Class Counsel also took the deposition of six USAA Life witnesses, including three of these witnesses testifying in their capacity as a corporate representative as well as an individual fact witness. On June 5, 2019, Class Counsel deposed Amanda Hamala (USAA Life’s head of pricing and reinsurance), individually and as a corporate representative. On June 19, Class Counsel deposed Phillip Beyer (USAA Life’s Assistant Vice President of Innovation and former Assistant
Vice President of Pricing). On June 20, Class Counsel took the deposition of Elizabeth Branaum
(an actuary with 43 years of experience at USAA Life, who was involved in designing and pricing the Universal Life 1, Universal Life 2, and Universal Life 3 products). On June 21, Class Counsel took the deposition of Rebecca Rosser (USAA Life’s Senior Financial Officer and former Director of Life Insurance Pricing), individually and as a corporate representative. On June 27, Class
Counsel took the deposition of Nadeem Chowdhury (Assistant Vice President at USAA Life and
Chair of its Life Actuarial Modeling Forum), individually and as a corporate representative. And on October 17, Class Counsel took the deposition of Jeffrey Nordstrom (former President and former Chief Actuary of USAA Life). The topics covered by the Rule 30(b)(6) representatives for
USAA Life were as follows: Amanda Hamala was deposed regarding USAA Life’s knowledge as to the repricing of the universal life products, financial projections, and discovery responses;
Nadeem Chowdhury was deposed regarding USAA Life’s knowledge as to its mortality experience and assumptions; and Rebecca Rosser was deposed regarding USAA Life’s knowledge as to pricing the universal life products, communications with state regulators, policy owner data, and disclosures to policy owners. USAA Life’s employees and former employees also testified
11 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 13 of 43
that they each spent significant time preparing for their depositions, including as much as thirty hours for some witnesses.
22. As part of completing discovery, Class Counsel negotiated three separate stipulations with Defendant. First, on July 18, 2019, the Parties entered a joint stipulation regarding
USAA Life’s data production, in which Defendant agreed not to challenge certain aspects of
Plaintiff’s damages model on the basis of data that had not been produced. Second, on September
9, 2019, the Parties entered into a joint stipulation regarding authenticity and certain business records prerequisites relating to USAA Life’s document productions, which confirmed that
Plaintiff’s documentary evidence would be admissible at trial and for dispositive briefing. Finally,
Class Counsel negotiated for USAA Life to enter into a stipulation identifying all known state- specific variations for the Universal Life 3 (“UL3”) and Universal Life 4 (“UL4”) products, and further confirmed that there were no known state-specific policy variations that would impact the issues in this lawsuit, which USAA Life’s witness executed on September 18, 2019.
23. In all, Plaintiff served and USAA Life responded to two sets of requests for production of documents totaling 74 separate categories of documents. In response to those requests, USAA Life produced over 20,000 documents, including over 150,000 pages of documents in addition to more than 5,400 spreadsheets. Plaintiff collected and provided to Class
Counsel significant amounts of documentation regarding his claims, and ultimately produced
145 pages of documents responsive to USAA Life’s requests. Plaintiff served, and USAA Life responded to, two sets of requests for admission totaling 20 separate requests, two of which each had 176 subparts (these two related to the admissibility of key documents).
24. All this information allowed Plaintiff to determine, among other things, that
USAA Life was including in its COI Rates a load for factors unrelated to its expectations as to
12 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 14 of 43
future mortality experience. In addition, with the policy-by-policy transactional data produced by USAA Life, Plaintiff’s expert, Scott Witt, was able to develop a damages model to calculate the lost cash value suffered by policy owners resulting from USAA Life’s inclusion of undisclosed factors in the COI Rates.
C. Class Counsel prevailed on class certification and overcame USAA Life’s motion to exclude Plaintiff’s key expert, Scott Witt.
25. On December 20, 2019, Class Counsel filed Plaintiff’s motion for class certification, requesting that this Court certify a nationwide class of current and former UL3 and
UL4 policy owners, with certain limited exceptions. Doc. 54. Class Counsel also spent several days preparing and producing Plaintiff’s actuarial expert, Scott Witt, for deposition, which occurred on January 30, 2020. On February 24, 2020, USAA Life filed its opposition to class certification, arguing that issues relating to adequacy, predominance, USAA Life’s affirmative defenses, choice of law, and Plaintiff’s damages model precluded class certification. Doc. 61.
Additionally, on February 24, 2020, USAA Life filed its motion to exclude the expert report of
Mr. Witt. Doc. 59. Plaintiff filed his opposition to USAA Life’s motion to exclude Mr. Witt’s report on March 16, 2020, Doc. 71, and his reply in support of class certification on April 13,
2020. Doc. 81.
26. On March 2, 2020, USAA Life filed its motion for summary judgment, arguing its universal life policies’ COI Rates provision authorizes USAA Life to include factors in addition to its expectations of future mortality experience in its COI Rates and that it had no obligation to lower COI Rates when its mortality expectations improved. Doc. 67. USAA Life also argued that Plaintiff’s claims were barred by the statute of limitations and the doctrine of laches. Id. Class Counsel responded to each of those arguments in turn, arguing that case law supports Plaintiff’s claims, the policy language supports Plaintiff’s claims, that the cases on
13 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 15 of 43
which USAA Life relied were distinguishable, that USAA Life’s proffered extrinsic evidence was inadmissible and irrelevant, that USAA Life’s motion for summary judgment fails under several potential interpretations of the COI Rates provision, and that USAA Life is not entitled to summary judgment on the issue of statute of limitations or laches because the claims are continuing in nature and were undiscoverable. Doc. 72.
27. On September 23, 2020, the Court granted Plaintiff’s motion for class certification and denied USAA Life’s motion to exclude Mr. Witt’s report, thereby certifying the class of UL3 and UL4 policy owners as to Counts I – IV under Rule 23(b)(3) and Count V under
Rule 23(b)(2). Doc. 89. On October 7, 2020, USAA Life filed in the United States Court of
Appeals for the Fifth Circuit its petition for leave to appeal under Rule 23(f). See Fifth Circuit
Case No. 20-90039. On October 19, 2020, Class Counsel filed Plaintiff’s opposition to USAA
Life’s petition for leave to appeal. On October 26, 2020, USAA Life filed its reply. On October
29, 2020, the Fifth Circuit granted USAA Life’s petition for leave to appeal. On January 25,
2021, USAA Life filed its principal brief on appeal. See Fifth Circuit Case No. 20-50909. On
February 1, 2021, the Washington Legal Foundation, the Chamber of Commerce of the United
States of America, and the American Council of Life Insurers, filed amicus briefs in the Fifth
Circuit supporting USAA Life’s request that this Court’s order certifying the class be reversed.
When the Parties reached a binding agreement, they advised the Fifth Circuit Mediator that the case has settled, and the appeal has been taken off the active calendar pending the approval of the Settlement.
Settlement Negotiations
28. The Parties engaged in intermittent settlement talks at various points in the early stages of the case that were not fruitful. After the Court concluded this case satisfied the
14 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 16 of 43
requirements of Rule 23 and certified a nationwide class of UL3 and UL4 policy owners on
September 23, 2020 (Doc. 89), however, settlement negotiations began in earnest. On October
30, 2020, at USAA Life’s request, Plaintiff made a formal settlement demand and provided a general description of his expert’s methodology for calculating classwide damages. On
November 30, 2020, USAA Life submitted questions about Plaintiff’s damages methodology and requested a phone conference to ask additional questions. On December 3, 2020, the Parties participated in a video conference where Plaintiff’s counsel answered questions about the damages methodology. Following the phone conference, the Parties agreed to mediation before
Professor Eric Green.
29. Both Parties submitted mediation statements and participated in phone conferences with Professor Green prior to the mediation. On January 12, 2021, the Parties participated in a full day mediation wherein multiple proposals and counterproposals were exchanged; however, they were unsuccessful in resolving the case that day. The Parties continued to negotiate directly over the course of the next several weeks and—following a face- to-face settlement conference—on February 2, 2021, agreed to the material terms of the
Settlement Agreement now submitted for approval. As part of the settlement negotiations, Class
Counsel was able to expand the relief to include UL1 and UL2 policy owners, who had previously been excluded from the certified class, primarily due to limitations with the evidence retained from the early 1980s.
30. Throughout the process, the settlement negotiations were conducted by highly qualified and experienced counsel on both sides at arm’s length. Plaintiff’s counsel was well informed of the material facts and the negotiations were hard-fought and non-collusive.
Plaintiff’s counsel analyzed all of the contested legal and factual issues to thoroughly evaluate
15 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 17 of 43
USAA Life’s contentions and advocated in the settlement negotiation process for a fair and reasonable settlement that serves the best interests of the Settlement Class.
Issuance of Notice
31. On April 9, 2021, Plaintiff filed his Unopposed Motion Pursuant to Rule 23(e) to
Permit Issuance of Class Notice of Proposed Class Action Settlement and Memorandum in
Support Thereof. Doc. 103. Plaintiff requested that the Court issue notice to the Settlement Class upon finding that the Court would likely be able to (1) approve the Settlement as fair, reasonable, and adequate, and (2) certify the Settlement for purposes of judgment on the Settlement. Id. On
May 17, 2021, the Court entered order its granting Plaintiff’s motion, thus permitting issuance of notice to the Settlement Class. Doc. 105. As explained in the Declaration of Richard Simmons of Analytics Consulting LLC, notice of the Settlement was sent to the appropriate officials in accordance with the requirements under the Class Action Fairness Act (“CAFA”), 28 U.S.C. §
1715(b). See id. at ¶ 7. And, pursuant to that Order, on July 1, 2021, the Settlement Administrator mailed the Court-approved Class Notice to members of the Settlement Class. See Doc. 105, ¶¶
5, 11. The deadline for Settlement Class Members to object or exclude themselves from the
Settlement is August 5, 2021. See Doc. 105, ¶¶ 6, 9, 11. USAA’s records revealed that some
Settlement Class Members owned multiple class policies, so the total number of Settlement Class
Members is 109,874, who own or owned more than 120,000 policies. As of the filing of
Plaintiff’s motion for final approval of the class action settlement and motion for an award of attorneys’ fees, costs, and expenses to class counsel and named plaintiff service award, one objection and six requests for exclusion have been submitted.
16 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 18 of 43
The Settlement Is Fair, Reasonable, and Adequate
32. Based on my experience and knowledge of the litigation, as well as my experience in similar litigation against other life insurers, I can represent without equivocation that this
Settlement is fair, reasonable and adequate. The Settlement requires USAA Life to fund a cash
Settlement Fund in the amount of $90,000,000, which will be used to pay (1) all payments to
Settlement Class Members; (2) fees and expenses incurred in providing Class Notice and administering the Settlement including those fees and expenses incurred by the Settlement
Administrator (fixed at $200,000); (3) any Service Award to Mr. Spegele awarded by the Court
(up to $20,000); and (4) any attorneys’ fees and expenses awarded by the Court (up to 30% of the
Settlement Fund for fees and up to $300,000 for expenses).
33. Plaintiff engaged an actuary, Scott Witt, to develop a methodology to calculate damages at class certification. In essence, that methodology compares the COI Rates USAA Life actually used to assess COI Charges with its internal expectations as to future mortality experience to identify overcharges to the class. Applying these principles, Plaintiff has calculated an average overcharge percentage over the life of each of the products using the COI Rate scales that have been in effect for the longest period of time (i.e., 1994 rates for UL1-3 and 2005 rates for UL4).
The average overcharge percentage is within a narrow range for all products, varying from 21% to 27%. Because the overcharge percentages are substantially similar, damages for each Settlement
Class Member are largely proportional to the amount of COI Charges paid by each policy owner.
34. Assuming Plaintiff would have been successful at trial on all of the threshold legal issues, and consistent with the calculation of the average overcharge percentage above, Plaintiff estimates the evidence would have established overcharges for all class policies in the range of
21% to 27% of the aggregate COI Charges paid. Plaintiff’s second actuarial expert, Tom Bakos,
17 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 19 of 43
has determined the aggregate COI Charges paid by putative class members to be approximately
$1.7 billion, implying aggregate overcharges between $360 and $460 million. Thus, the Settlement provides relief amounting to a significant portion of the total available damages had Plaintiff been successful on all issues at trial and through appeal.
35. Plaintiff’s distribution plan is designed to distribute to each Settlement Class
Member a share of the Net Settlement Fund, subject to a minimum payment, in an amount proportionate to the amount of COI Charges paid by each Settlement Class Member, and is therefore, in my opinion, a fair method of distributing settlement benefits to the Settlement Class
Members.
36. Settlement Class Members are not required to submit a claim or otherwise perform any steps to receive this relief. Settlement checks will be issued upon final approval of the
Settlement. Given the uncertainties that the litigation presents, including but not limited to: an adverse ruling from the Fifth Circuit Court of Appeals on the Court’s order granting class certification and denying USAA Life’s motion to exclude Mr. Witt’s damages methodology; a potential adverse ruling at trial or on appeal related to contract liability; a potential adverse ruling on the issue of the statute of limitations or the doctrine of laches; and the chance a jury could reject
Mr. Witt’s damages methodology in whole or in part; the avoidance of these risks in favor of settlement is, in my opinion, a significant and meaningful result for the Settlement Class, and supports a finding that the Settlement it is fair, reasonable and adequate.
37. Furthermore, even if Plaintiff were to overcome all of USAA Life’s defenses through trial, there would be lengthy appeals. For example, Stueve Siegel Hanson and Miller
Schirger obtained a $34 million jury verdict in the Vogt case against State Farm (referenced above) in June of 2018. Even though the Eighth Circuit affirmed the verdict in June 2020 and the United
18 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 20 of 43
States Supreme Court denied certiorari in April of this year, the judgment has yet to be paid and distributed to the class. Avoiding such delay by settling now is unquestionably in the best interests of the Settlement Class and further supports a finding that the Settlement is fair, reasonable and adequate.
38. Mr. Spegele, as the named class representative, likewise supports the proposed
Settlement and considers it to be in the best interests of the Settlement Class.
Summary of Hours Spent Prosecuting the Case
39. To prepare this declaration, I reviewed the complete set of time records maintained by Stueve Siegel Hanson in its time and billing system; John Schirger performed the same task with respect to the time records maintained by Miller Schirger; and Dan Girard performed that task for the records of Girard Sharp. From the inception of the case Class Counsel utilized the firms’ standard billing practices to track and maintain contemporaneous time records for all timekeepers in 6-minute increments. Through July 13, 2021, Stueve Siegel Hanson, Miller
Schirger, and Girard Sharp, along with local counsel Smyser Kaplan & Veselka, have collectively spent 7,356.2 hours prosecuting this action. Stueve Siegel Hanson has expended 3,114.5 hours prosecuting this action. Each firm’s hours total hours are provided below.
Hours Summary Through July 13, 2021 Stueve Siegel Hanson 3,114.5 Miller Schirger 3,310.5 Girard Sharp 865.4 Smyser Kaplan & Veselka 65.8 TOTAL: 7,356.2
40. The anticipated time and resources (including expenses, attorney time, staff time, and expert time) to prosecute and resolve this case precluded Stueve Siegel Hanson (and other
19 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 21 of 43
Class Counsel) from pursuing other work.
41. The hours summarized above were reasonably expended to address the novel and complex issues presented by this litigation and USAA Life’s vigorous defense. This included fighting for discovery from USAA Life, overcoming USAA Life’s arguments relating to class certification, preparing a fulsome damages methodology for the 110,000 class members, and preparing the case for trial on the merits. If this Court requests Class Counsel to do so, detailed billing records will be provided for in camera review.
42. All of this time is of the kind and character that we would normally bill to paying clients, as well as time that we normally track and seek to be paid for at the conclusion of successful contingency litigation. Class Counsel staffed and managed the litigation as efficiently as possible.
We did not duplicate responsibilities and assigned work to qualified professional staff as opposed to lawyers where possible.
43. Courts across the country have approved attorneys’ fees for my firm using similar percentages of the fund as requested in this case. In December 2018, the U.S. District Court for the District of Kansas approved a fee award of 33% of a $1.51 billion class action settlement fund.
See In Re Syngenta AG MIR162 Corn Litig., Case No. 2:14-md-02591-JWL-JPO, MDL No. 2591,
Docs. 3587, 3849, 4128 (D. Kan.). In May 2018, the Superior Court of Alameda County,
California, approved a fee award of 30% of a $59.75 million class action settlement fund. See
Larson v. John Hancock Life Ins. Co. (U.S.A.), Case No. RG16813803 (Sup. Ct. Alameda Cty.
Cal. May 8, 2018). In July 2019, the U.S. District Court for the District of Maryland approved a fee award of 30% of a $3.25 million class action settlement fund. See Hutton v. Nat’l Bd. of
Exam’rs in Optometry, Inc., Case No. 16:cv-3025-JKB, Doc. 51 (D. Md.).
44. In non-class action cases, a typical contingent fee arrangement provides that the
20 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 22 of 43
attorney representing the plaintiff receives 25 to 50 percent of the plaintiffs’ recovery, exclusive of costs. Moreover, Class Counsel often represents sophisticated businesses in complex commercial litigation on a contingency basis, where these business clients commonly agree to pay fees amounting to 30 to 50 percent of any recovery.
45. Class Counsel will continue to spend time on this case to administer the distribution of the judgment. Based on experience in other class actions of similar size and scope, Class
Counsel anticipates that an additional 250 hours will be spent responding to class member inquiries and working with the Administrator to complete the distribution process. This will bring the total number of hours expended to more than 7,600.
Class Counsel’s Unique Skills and Experience Support the Requested Fee
46. Stueve Siegel Hanson practices predominantly in the area of complex litigation in state and federal courts across the country and primarily represents plaintiffs on a contingency basis. The firm is unique in that it is capable of handling large scale and high stakes litigation on a fully contingent basis. We are in a position to advance substantial litigation costs, including expert fees, and to prosecute complex and lengthy litigation that includes many thousands of clients. We do this with the hope that we will ultimately recover as much as, or more than, we would in a traditional hourly billable practice. Like this case, many of our cases are taken on a contingency basis such that the firm advances all expenses and time with no guarantee of recovery absent a judgment or settlement.
47. As evidence of the firm’s unique position in the legal market, Stueve Siegel Hanson is one of the few firms in the country that has prosecuted multiple class and collective action cases through trial and appeal. In June 2018, Stueve Siegel Hanson and Miller Schirger successfully tried a class action COI overcharge case like this against State Farm Life Insurance Company,
21 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 23 of 43
securing a jury verdict of $34,333,495.81 for approximately 24,000 Missouri policy owners, which was affirmed on appeal by the Eighth Circuit Court of Appeals. See Vogt v. State Farm Life Ins.
Co., No. 2:16-CV-04170-NKL at Docs. 358 & 360 (W.D. Mo. June 6, 2018), aff’d, 963 F.3d 753
(8th Cir. 2020), cert. denied sub nom., No. 20-1008, 2021 WL 1521013 (U.S. Apr. 19, 2021). In
June 2017, Stueve Siegel Hanson tried a class action in In re: Syngenta AG MIR162 Corn litigation, Case No. 14-MD-2591-JWL (D. Kan.) and secured a class action jury verdict of $217.7 million on behalf of Kansas corn farmers. And, in 2011, Stueve Siegel Hanson tried a class and collective action in Garcia, et al. v. Tyson Foods, Inc., et al., Case No. 06-2198-JTM (D. Kan.), and secured a total class and collective action jury verdict and judgment of $785,894.23 on behalf of hourly employees at a meat processing plant who were not paid certain straight and overtime wages. Stueve Siegel Hanson has prosecuted all manner of class action and complex commercial litigation matters. These cases are detailed in the firm’s resume. See Exhibit 1.
48. Stueve Siegel Hanson also has deep experience in litigating cost of insurance cases like this one. With Miller Schirger, Stueve Siegel secured a settlement on behalf of 77,000 policy owners against The Lincoln National Life Insurance Company providing additional death benefits valued at $2.25 billion, with a market value of approximately $171.8 million. See Bezich v. The
Lincoln Nat. Life Ins. Co. (Allen Co, IN) No 02C01-0906-PL-73. They also secured a settlement on behalf of about 91,500 owners of John Hancock Life Insurance Company universal life insurance policies, creating a settlement fund of $59.75 million. See Larson v. John Hancock Life
Ins. Co., Case No. RG16 813803 (Alameda Co., CA May 8, 2018). The firm (together with Miller
Schirger) is also simultaneously prosecuting similar cases against State Farm Life Insurance
Company, Symetra Life Insurance Company, Kansas City Life Insurance Company, and
Connecticut General Life Insurance Company.
22 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 24 of 43
49. Class Counsel has previously sought and been awarded 30% of the fund as fees in other common fund cost of insurance cases. For instance, the court in Larson v. John Hancock awarded Class Counsel fees totaling 30% of the common fund obtained through settlement. And, in Vogt v. State Farm Life Insurance Company, the court awarded Class Counsel fees totaling one- third of the common fund Class Counsel obtained through a judgment following trial and that was affirmed on appeal.
50. Several judges in state and federal court have previously recognized the skill and professionalism of the attorneys at Stueve Siegel Hanson:
This Court noted in granting class certification that Stueve Siegel Hanson, Miller
Schirger, and Girard Sharp “have extensive experience in these kinds of lawsuits,
and Defendant does not challenge their adequacy as class counsel.” Doc. 89 at 26.
In Nobles v. State Farm Mutual Automobile Insurance Co., the Honorable Nanette
Laughrey stated the following in regards to Stueve Siegel Hanson’s work in that
case: “I’ve always been impressed with the professionalism and the quality of work
that has been done in this case by both the plaintiffs and the defendants. On more
than one occasion, it has made it difficult for the Court because the work has been
so good.”
Recently, the Honorable Andrew J. Guilford in certifying a contested class action
in the Central District of California remarked:
The most compelling evidence of the qualifications and dedication of proposed class counsel is their work in this case. Considering how far this action has come despite a grant of summary judgment in Defendant’s favor and a reversal on appeal, proposed class counsel have made a strong showing of their commitment to helping the class vigorously prosecute this case.
The Honorable John W. Lungstrum on the United States District Court for the
23 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 25 of 43
District of Kansas stated the following about Stueve Siegel Hanson attorneys in the
In Re: Syngenta AG MIR 162 Corn Litigation:
The complex and difficult nature of this litigation, which spanned across multiple jurisdictions and which involved multiple types of plaintiffs and claims, required a great deal of skill from plaintiffs’ counsel, including because they were opposed by excellent attorneys retained by Syngenta. That high standard was met in this case, as the Court finds that the most prominent and productive plaintiffs’ counsel in this litigation were very experienced had very good reputations, were excellent attorneys, and performed excellent work. In appointing lead counsel, the various courts made sure that plaintiffs would have the very best representation…
In this Court’s view, the work performed by plaintiffs’ counsel was consistently excellent, as evidenced at least in part by plaintiffs’ significant victories with respect to dispositive motion practice, class certification, and trial.
The Honorable Audrey G. Fleissig on the United States District Court for the
Eastern District of Missouri, in Perrin v. Papa John’s International, Inc., which
Stueve Siegel Hanson prosecuted, stated:
I believe this was an extremely difficult case. I also believe that it was an extremely hard fought case, but I don’t mean hard fought in any negative sense. I think that counsel for both sides of the case did an excellent job…I congratulate the plaintiffs and I also congratulate the defense lawyers on the very, very fine job that both sides did in a case that did indeed pose novel and difficult issues.
The Honorable Michael Manners on the Jackson County, Missouri Circuit
Court, who presided over the case, Berry v. Volkswagen Group of America,
Inc., which Stueve Siegel Hanson prosecuted, stated: “The experience,
reputation and ability of class counsel is outstanding.”
Class Counsel Seeks Reimbursement for Their Reasonable Out-of-Pocket Expenses
51. In addition, all of the expenses itemized in the charts below totaling $176,165.01 are reasonable out-of-pocket expenses that are normally passed on to the client and are not
24 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 26 of 43
absorbed as part of overhead. These expenses were reasonably necessary in order to successfully prosecute the case. Had we not been successful on behalf of the class, Class Counsel would have been required to absorb these expenses at a considerable loss. Stueve Siegel Hanson has incurred
$84,258.63 in reimbursable expenses in this matter.
Expense Summary Through July 13, 2021 Smyser Stueve Siegel Miller Girard Expense Category Kaplan & Total Hanson Schirger Sharp Veselka Court Costs $450.00 $531.00 $366.55 $0.00 $1,347.55 Expert Fees $18,438.10 $20,144.58 $17,980.00 $0.00 $56,562.68 Online Legal Research $40,405.64 $10,010.05 $1,424.93 $0.80 $51,841.42 Telephone/Conferencing $2.10 $0.00 $161.66 $0.00 $163.76 Photocopy Charges $5,396.60 $2,027.50 $1,431.90 $302.50 $9,158.50 Postage/Delivery $284.20 $935.79 $722.66 $0.00 $1,942.65 Transcription Fees $6,443.36 $2,528.26 $17,160.74 $0.00 $26,132.36 Travel Expenses $12,838.63 $10,403.66 $5,773.80 $0.00 $29,016.09 Total: $84,258.63 $46,580.84 $45,022.24 $303.30 $176,165.01
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct.
Executed this 14th day of July, 2021.
Norman E. Siegel
25 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 27 of 43 EXHIBIT 1
Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 28 of 43 Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 29 of 43
WHO WE ARE Stueve Siegel Hanson was launched in 2001 on a foundational business model where our payment for legal services would depend on the results delivered and the value provided rather than the hours spent on a case. Since then, this model has been a hallmark of our success, which has included the recovery of billions of dollars in damages and relief for consumers, entrepreneurs, employees, small and large businesses, and a variety of economic underdogs. The cases we handle frequently arise in some of the most complex areas of the law, including antitrust, intellectual property, FLSA collective actions, consumer and securities class actions, data breach, franchise disputes and other complex business litigation.
Our team of lawyers includes some of the best trained and most experienced trial lawyers in the country. Stueve Siegel Hanson’s founding partners were partners at some of the country’s largest law firms. The firm has also been fortunate in its ability to attract, retain and promote lawyers educated at top law schools and groomed at nationally prominent law firms, many of whom also have had valuable experiences as judicial law clerks at both the trial court and appellate levels.
Stueve Siegel Hanson is a national litigation firm based in Kansas City, Missouri, with offices in the heart of The Country Club Plaza.
OUR MISSION Stueve Siegel Hanson provides aggressive, cutting-edge representation in litigation. Our law firm serves companies in business disputes as well as individuals harmed by dangerous products, unjust employers or unfair business practices.
Because we work on a contingency model, our fees are based on the results we achieve. This means our trial lawyers have the same interests you do: Succeed for you and we succeed ourselves, fail you and we fail ourselves.
We believe the pursuit of justice should not be subject to the dysfunction of the billable hour, which rewards attorneys more for time than the results achieved. We take pride in winning efficiently and effectively as our clients’ partner in the courtroom.
We invest in our firm, our profession and our community. We recruit the brightest attorneys from the nation’s top law firms, and together we maintain a culture of camaraderie and respect. We apply new technology to further our efficiency, communication and creativity. We give our time and talents to pro bono projects, community service and bar organizations. While we take considerable pride in earning awards and recognition, we are most fulfilled by results, referrals and repeat business. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 30 of 43
RECENT RECOVERIES AS LEAD COUNSEL IN COMPLEX AND CONSUMER LITIGATION $2.25 billion in death benefits settlement, with a market value of approximately $171.8 million, on behalf of 77,000 policyholders against Lincoln National Life Insurance Company for policy overcharges. $1.51 billion settlement on behalf of a nationwide class of corn growers, grain-handling facilities and ethanol plants against biotech giant Syngenta related to its marketing and launch of genetically modified corn seed. $1.5 billion settlement in a nationwide class action stemming from Equifax’s 2017 data breach. $220 million settlement for all Missouri residents who purchased the prescription pain reliever Vioxx before it was removed from the market. $218 million jury trial verdict as lead trial counsel on behalf of class of Kansas farmers against Syngenta related to the sale of genetically modified corn seed. $75 million settlement in relief for purchasers of Hyundai vehicles for Hyundai’s overstatement of horsepower in vehicles. $73 million settlement on behalf of bank employees improperly classified under the FLSA. $59.75 million settlement on behalf of life insurance policyholders against John Hancock Life Insurance Company (U.S.A.) for policy overcharges. $53.5 million in settlements between a class of direct purchasers of automotive lighting products and several manufacturers accused of participating in a price fixing scheme. $44.5 million settlement to resolve a class action accusing U.S. Bank of facilitating the theft of customer funds at now-bankrupt futures merchant Peregrine Financial Group Inc. $44 million in restitution and $7.9 million in cash settlement for dentists against Align Technology, Inc. in a nationwide deceptive trade practices case. $39.5 million in settlements from three refiners on behalf of adjacent homeowners who were living above a large plume of gasoline leaked from the refineries and connecting pipelines. $35 million settlement for consumer fraud and antitrust claims brought on behalf of retail customers of pre-filled propane tanks. $34.3 million jury verdict on behalf of 24,000 State Farm Life Insurance Co. policyholders who were overcharged for life insurance policies. $33 million settlement for owners of Mitsubishi and Chrysler related to defective wheel rims. $29 million in settlements against Experian, one of the “big three” credit reporting agencies, arising out of Experian’s reporting of delinquent loan accounts. $29.5 million in settlements for overdraft fees charged to customers from UMB Bank, Bank of Oklahoma and Intrust Bank. $25.4 million settlement for purchasers of H&R Block’s Express IRA product related to allegedly false representations made during the sales presentation. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 31 of 43
CLASS AND COLLECTIVE ACTIONS Since opening its doors in 2001, Stueve Siegel Hanson has obtained substantial results in a wide range of complex commercial, class, and collective actions while serving as lead or co-lead counsel.
Over the past decade, verdicts and settlements include:
Data Privacy
Obtaining a historic $1.5 billion settlement in a nationwide class action stemming from credit reporting firm Equifax’s massive 2017 data breach. Obtaining a $115 million settlement resulting from a 2015 data breach affecting Anthem, Inc., one of the nation’s largest for-profit managed health care companies. Obtaining a $10 million settlement in a class action stemming from a data breach at Target Corp. Obtaining a $3.25 million settlement in a class action stemming from a data breach at the National Board of Examiners in Optometry. Obtaining a $13 million settlement resulting from a 2014 data breach affecting 40 million customers of The Home Depot Inc. . Cost of Insurance
Obtaining a $2.25 billion settlement in a class action lawsuit against The Lincoln National Life Insurance Company over alleged life insurance policy overcharges. Obtaining a $59.75 million settlement in a nationwide class action lawsuit against John Hancock Life Insurance Company (U.S.A.) over alleged life insurance policy overcharges. Obtaining a $34 million jury verdict in a class action trial against State Farm Insurance Company for life insurance policy overcharges. . Commercial Litigation
Obtaining a $1.51 billion settlement – the largest agribusiness settlement in U.S. history – for U.S. corn growers, grain handling facilities and ethanol production plants that purchased corn seeds prematurely sold by Syngenta. Obtaining a $218 million jury verdict for a class of Kansas corn producers who purchased corn seeds prematurely sold by Syngenta. Obtaining more than $44 million in restitution and $7.9 million in cash for dentists against Align Technology, Inc. in a nationwide deceptive trade practices case. Obtaining a $24 million settlement resolving consumer class action claims against Experian, a major credit reporting agency, over alleged violations of the Fair Credit Reporting Act. .
Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 32 of 43
CLASS AND COLLECTIVE ACTIONS Antitrust
Obtaining $53 million in settlements between a class of direct purchasers of automotive lighting products and several manufacturers accused of participating in a wide-ranging price fixing scheme. Obtaining a $25 million settlement in a nationwide antitrust class action for price fixing of aftermarket automotive sheet metal parts. Obtaining a $7.25 billion settlement in a massive price-fixing case brought by a class of U.S. merchants against Visa, Mastercard and their member banks. Obtaining $33 million in nationwide class action for price fixing for certain polyurethanes in Urethanes antitrust case. Obtaining a $25 million settlement in a class action lawsuit that alleged Blue Rhino and certain competitors conspired to reduce the amount of propane gas in cylinders sold to customers. The firm obtained a $10 million settlement in a related suit against AmeriGas. . Fair Labor Standards Act
Obtaining a $73 million settlement on behalf of current and former Bank of America retail banking and call center employees for alleged violations of the Fair Labor Standards Act. Obtaining a $27.5 million settlement for a class of loan originators who were misclassified as exempt and denied overtime. Obtaining a $25 million settlement for a class of mortgage consultants for unpaid overtime as lead counsel in multidistrict litigation. Obtaining a $24 million settlement to resolve a collective arbitration and over 50 federal mass actions involving misclassified satellite technicians denied overtime and minimum wages. Obtaining a $14.5 million settlement for a class of inventory associates for unpaid overtime. Obtaining a $12.5 million settlement for multiple classes and collective of pizza delivery drivers alleging vehicle expenses reduced their wages below the minimum wage. Obtaining a $10.5 million settlement for a class of bank employees misclassified as exempt from overtime. Obtaining a $8.5 million settlement for a collective of employees in the hospitality industry for unpaid minimum wages. Obtaining a $7.7 million settlement for a class of loan account servicers misclassified as exempt and denied overtime. Obtaining a $7.5 million settlement for class of loan processers as lead counsel in multidistrict litigation. Obtaining numerous settlements for $5 million or less for classes and collective seeking unpaid overtime and minimum wages. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 33 of 43
. CLASS AND COLLECTIVE ACTIONS Consumer Class Action
Obtaining up to $220 million in damages for all Missouri residents who purchased the prescription pain reliever Vioxx before it was removed from the market. Obtaining more than $75 million in relief for purchasers of Hyundai vehicles for Hyundai’s overstatement of horsepower in vehicles. Obtaining $29.5 million in settlements for overdraft fees charged to customers from UMB Bank, Bank of Oklahoma and Intrust Bank. Obtaining two settlements totaling $29 million to resolve consumer class action claims against Experian, one of the "big three" credit reporting agencies, arising out of the company's reporting of delinquent loan accounts. Obtaining $19.4 million for purchasers of H&R Block’s Express IRA product related to allegedly false representations made during the sales presentation. . Catastrophic Injury
Obtaining $39.5 million in settlements from three refiners on behalf of adjacent homeowners who were living above a large plume of gasoline leaked from the refineries and connecting pipelines. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 34 of 43
CONSUMER CLASS ACTIONS Stueve Siegel Hanson devotes a significant portion of its practice to representing consumers across the country in large class and collective actions.
Representative cases include:
Smith v. Experian Information Solutions, Case No. 8:17-cv-00629, United States District Court for the Central District of California (class action lawsuit alleging violations of the Fair Credit Reporting Act; class settlement of $5 million approved in November 2020). Reyes v. Experian Information Solutions, Case No. 8:16-cv-563-AG-AFMx, United States District Court for the Central District of California (class action lawsuit alleging violations of the Fair Credit Reporting Act; class settlement of $24 million approved in July 2020). Vogt v. State Farm Life Insurance Co., Case No. 16:4170-CV-C-NKL, United States District Court for the Western District of Missouri (class action for life insurance policy overcharges; $34 million jury verdict affirmed by the Eighth Circuit Court of Appeals in June 2020). Larson v. John Hancock Life Ins. Co., Case No. RG16813803, Superior Court for Alameda County, California (class action alleging life insurance policy overcharges; class settlement of $59.75 million approved in May 2018). Bezich v. Lincoln National Life Insurance Co., Case No. 1:09-CV-200-JVB, Circuit Court of Allen County, Indiana (class action alleging life insurance policy overcharges; settlement terms include $2.25 billion in death benefits, with a market value of approximately $171.8 million; settlement approved in February 2016). Plubell v. Merck & Co., Case No. 04-CV-235817, Circuit Court of Jackson County, Missouri at Independence (consumer fraud class action alleging unlawful and unfair business practices under the Missouri Merchandising Practices Act; up to $220 million settlement approved in March 2013). In re: Underfilled Propane Tank Litigation, Case No. 4:09-md-02086-GAF, United States District Court for the Western District of Missouri (MDL consumer protection case alleging Ferrellgas and AmeriGas conspired to reduce the fill levels of retail propane tanks; $35 million in settlements approved in 2012). Molina et al. v. Intrust Bank, N.A., Case No. 10-CV-3686, in the Eighteenth Judicial District, District Court, Sedgwick County, Kansas (case based on Intrust Bank’s alleged unfair and deceptive overdraft fee practices; $2.75 million settlement obtained in January 2012). Eaton, et. al v. Bank of Oklahoma, N.A., Case No. CJ-2010-05209, in the District Court in and For Tulsa County State of Oklahoma (case based on Bank of Oklahoma’s alleged unfair and deceptive overdraft fee practices; $19 million settlement obtained in November 2011). Allen et al. v. UMB Bank, N.A., Case No. 1016-CV34791, in the Circuit Court of Jackson County, Missouri at Kansas City (case based on UMB’s alleged unfair and deceptive overdraft fee practices; $7.8 million settlement in May 2011).
Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 35 of 43
CONSUMER CLASS ACTIONS Hyundai Horsepower Litigation, Case No. 02CC00303, Superior Court for Orange County, California (consumer claims alleging Hyundai overstated horsepower ratings in more than 1 million vehicles sold in the United States over a 10 year period; settlement approved in May 2010 valued at between $75 million and $125 million). In Re: H&R Block, Inc. Express IRA Marketing Litigation, Case No. 4:06-md01786-RED, United States District Court for the Western District of Missouri (consumer protection case alleging H&R Block improperly marketed and sold its Express IRA product; $19.4 million class settlement approved May 2010). Parkinson v. Hyundai Motor America, Case No. 8:06-cv-345-AHS, United States District Court for the Central District of California (consumer protection case alleging Hyundai knowingly sold vehicles with defective flywheel systems; class settlement for reimbursement of repair expenses approved in April 2010). Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 36 of 43
UNIVERSAL LIFE INSURANCE OVERCHARGE LITIGATION Stueve Siegel Hanson has been litigating cases involving universal life insurance for more than 10 years. These policies are often sold as a combination solution for death benefit protection and investment growth.
Some life insurance companies have been overcharging policy owners for the cost of insurance and expenses. As a result, money that should be building up for the policy owner's benefit is going instead to the insurance company's coffers. Worse, for many policy owners, overcharges or rate increases have made policies simply unaffordable – exactly when they are needed the most.
This puts policy owners in a tough spot:
Do they continue to pay overcharges and premiums just to maintain their life insurance? Do they give up their policies after they've paid so much into them? Can they still get life insurance? . Stueve Siegel Hanson advocates for policy owners nationwide. We have recovered more than $2 billion in cash and death benefits for policy owners. Recent experience includes obtaining:
A $34 million jury verdict against State Farm on behalf of Missouri policy owners alleging the insurer improperly included non-mortality factors in calculating the cost of insurance charge under the insurance contract. A $59 million settlement with John Hancock on behalf of policy owners in a nationwide class action alleging that John Hancock overcharged policy owners by including expenses in its cost of insurance charge in violation of the insurance contract. A settlement for $2.25 billion in potential death benefits with Lincoln National Life on behalf of policy owners who purchased a variable universal life insurance policy and alleged the insurer overcharged them for the cost of insurance in violation of the policy. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 37 of 43
AWARDS AND RECOGNITION We are proud to have been recognized by local, regional and national publications for our work and results.
Among our recent accolades:
Representative Firmwide Rankings
The National Law Journal: Elite Trial Lawyers: Finalist for business torts, employment rights, financial products and privacy/data breach The National Law Journal: 2017 Top 100 Verdicts: Ranked No. 10 for the $217.7 million federal jury verdict on behalf of a class of Kansas corn farmers against Syngenta Law360: Practice Group of the Year, Food & Beverage Law360: Practice Group of the Year, Cybersecurity & Privacy U.S. News & World Report/Best Lawyers in America: “Best Law Firms,” nationally ranked for mass tort and class action litigation; ranked Tier 1 for appellate, commercial litigation, and mass tort and class action for the Kansas City region Chambers USA: Missouri: Kansas City & Surrounds, ranked firm for commercial litigation Benchmark Litigation: Missouri, “Recommended” for employment litigation . Representative Individual Honors
Law360: Titans of the Plaintiffs Bar, Norman Siegel Law360: Cybersecurity & Privacy MVP of the Year, Norman Siegel Law360: Food & Beverage MVP of the Year, Patrick Stueve The National Law Journal: Plaintiffs' Lawyers Trailblazers, George Hanson The National Law Journal: Elite Boutique Trailblazer, Patrick Stueve Best Lawyers in America: Mass Tort Litigation/Class Actions - Plaintiffs Lawyer of the Year, Norman Siegel International Academy of Trial Lawyers Association, Patrick Stueve Missouri Lawyers Weekly: Missouri Lawyers Awards - Influential Lawyer, Norman Siegel Missouri Lawyers Weekly: POWER30 - Commercial and Consumer Litigation, Norman Siegel and Patrick Stueve Missouri Lawyers Weekly: POWER30 - Employment Law, George Hanson
Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 38 of 43
JUDICIAL PRAISE “I’ve always been impressed with the professionalism and the quality of work that has been done in this case by both the plaintiffs and the defendants. On more than one occasion, it has made it difficult for the Court because the work has been so good.”
Hon. Nanette Laughrey U.S. District Court for the Western District of Missouri Nobles v. State Farm Mutual Automobile Insurance Co.
“The complex and difficult nature of this litigation, which spanned across multiple jurisdictions and which involved multiple types of plaintiffs and claims, required a great deal of skill from plaintiffs’ counsel, including because they were opposed by excellent attorneys retained by Syngenta. That high standard was met in this case, as the Court finds that the most prominent and productive plaintiffs’ counsel in this litigation were very experienced had very good reputations, were excellent attorneys, and performed excellent work. In appointing lead counsel, the various courts made sure that plaintiffs would have the very best representation… In this Court’s view, the work performed by plaintiffs’ counsel was consistently excellent, as evidenced at least in part by plaintiffs’ significant victories with respect to dispositive motion practice, class certification, and trial.”
Hon. John Lungstrum U.S. District Court for the District of Kansas In Re: Syngenta AG MIR 162 Corn Litigation
“The most compelling evidence of the qualifications and dedication of proposed class counsel is their work in this case. Considering how far this action has come despite a grant of summary judgment in Defendant’s favor and a reversal on appeal, proposed class counsel have made a strong showing of their commitment to helping the class vigorously prosecute this case.”
Hon. Andrew J. Guilford U.S. District Court for the Central District of California Reyes v. Experian
“I believe this was an extremely difficult case. I also believe that it was an extremely hard fought case, but I don’t mean hard fought in any negative sense. I think that counsel for both sides of the case did an excellent job… I congratulate the plaintiffs and I also congratulate the defense lawyers on the very, very fine job that both sides did in a case that did indeed pose novel and difficult issues.”
Hon. Audrey G. Fleissig U.S. District Court for the Eastern District of Missouri Perrin v. Papa John’s International, Inc.
“The experience, reputation and ability of class counsel is outstanding.”
Hon. Michael Manners Circuit Court of Jackson County, Missouri Berry v. Volkswagen Grp. of Am., Inc. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 39 of 43
NORMAN E. SIEGEL PARTNER
Norman E. Siegel litigates high-stakes cases for companies and individuals. He has earned a reputation locally and nationally for his ability to strategize, negotiate and deliver results. He was named by Best Lawyers as a “Lawyer of the Year” and by Law360 as a “Titan of the Plaintiff’s Bar” for his work in class action litigation following big wins against some of the largest corporations in America.
Norm has successfully tried to verdict a wide range of cases, obtaining several multimillion-dollar jury verdicts, and has obtained billions in settlements for his clients. Norm concentrates his practice in three principal areas:
Business Litigation. Norm successfully deploys the firm’s contingency fee business litigation model in bet-the-company and “David vs. Goliath” matters involving intellectual property, breach of contract, fraud, misrepresentation and more. In one such matter, he prosecuted a groundbreaking antitrust case on behalf of Heartland Surgical Specialty Hospital, which claimed the region’s dominant hospital systems conspired to prevent it from obtaining in-network T 816.714.7112 provider contracts. After Norm secured a key admission from a [email protected] defense witness, Heartland settled with all defendants.
Data Breach and Privacy. Named one of Law360's “MVPs of the Year” for Cybersecurity and Privacy, Norm has served as lead counsel in several of the largest data breach cases litigated to date, including the multidistrict litigation alleging Equifax compromised the personal information of more than 148 million Americans in a 2017 data breach. More than 250 cases were filed, and Norm was selected lead counsel over scores of other applicants. Norm has prosecuted data breach claims against Capital One, Quest Diagnostics, Target Corp., The Home Depot Inc., Marriott, the Office of Personnel Management, and the National Board of Examiners in Optometry, and co-founded the American Association for Justice’s data breach and privacy group.
Class Actions. Norm’s recent work includes multimillion-dollar jury verdicts and settlements on behalf of consumers who were overcharged for life insurance policies. In Vogt v. State Farm Insurance Co., Norm delivered the closing argument to the jury that returned a $34 million verdict for Missouri owners of State Farm life insurance. Norm also served as lead counsel in Larson v. John Hancock Life Insurance Co., a nationwide class action that ultimately settled for $59.75 million just before trial. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 40 of 43
LINDSAY TODD PERKINS PARTNER
Lindsay Todd Perkins focuses her practice on legal writing and researching. Recognized as a 2020 “Rising Star” by Law360, she develops strategies and arguments for briefings to the court; interprets laws, rulings and regulations; and drafts complaints, memoranda, and appellate briefs.
In one recent matter, Lindsay served on the trial team in Vogt v. State Farm Life Insurance Co., a class-action lawsuit in the U.S. District Court for the Western District of Missouri that alleged the insurance company overcharged its policyholders for 23 years. The case resulted in a $34 million verdict after just two hours of jury deliberations. Lindsay prepared the jury instructions and post-trial and appellate briefing.
In another matter, Larson v. John Hancock Life Insurance Company, Lindsay drafted the class certification briefing in a case alleging the defendant life insurance company improperly charged its policyholders excessive fees for the cost of insurance. The California state court ultimately certified a nationwide class. The lawsuit settled T 816.714.7143 soon thereafter for $59,750,000. [email protected] Lindsay also took primary drafting responsibility for the appeal in a class action matter, Bezich v. The Lincoln National Life Insurance Co. She successfully defended the certification of the class of plaintiffs who alleged inappropriate fees and charges on their life insurance policies. The lawsuit ultimately resolved with a settlement valued at approximately $171.8 million.
Lindsay also focuses a significant portion of her practice on data and privacy litigation, taking a lead role in preparing the pleadings and briefing in cases against Capital One, Marriott, and the National Board of Examiners in Optometry, among others.
Lindsay earned her J.D., summa cum laude, from the University of Missouri in Kansas City Law School graduating first in her class, where she was the Editor-in-Chief of UMKC Law Review. After law school, Lindsay honed her legal writing and analysis during two clerkships; she served as a law clerk for Judge Duane Benton of the U.S. Court of Appeals for the Eighth Circuit and Judge Ortrie Smith of the U.S. District Court for the Western District of Missouri. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 41 of 43
ETHAN M. LANGE ATTORNEY
Ethan Lange represents individuals and businesses in a wide variety of high-stakes cases, including business disputes, nationwide class actions, multidistrict litigation, antitrust lawsuits, patent infringement matters, personal injury cases, civil rights cases and will contests. He has served clients ranging from Fortune 500 companies to prisoners; working tirelessly to secure the most favorable outcome possible.
Ethan’s practice is concentrated in litigation, arbitration and other trial work that includes first-chair federal and state jury trial experience. In addition to his trial exposure, he has handled numerous hearings, depositions, mediations and motions.
In one recent matter, Ethan served on the trial team in Vogt v. State Farm Life Insurance Co., a class-action lawsuit in the U.S. District Court for the Western District of Missouri that alleged the insurance company overcharged its policyholders for 23 years. He picked the jury, cross-examined the key expert witness, and assisted with jury arguments. The case resulted in a substantial verdict after just two hours of jury deliberations. The verdict has since been affirmed on T 816.714.7174 appeal. [email protected] In other recent matters, Ethan, along with his colleagues, successfully briefed class certification motions, resulting in the certification of two different classes with more than 80,000 policyholders in each.
Ethan earned his J.D., magna cum laude, from Baylor Law School graduating in the Top 5 in his class, where he was the Editor-in-Chief of the Baylor Law Review. Ethan began his legal career in the Dallas office of a national trial boutique where he was introduced to high- stakes complex litigation.
He then served as a law clerk for Judge Ed Kinkeade of the U.S. District Court for the Northern District of Texas. During his clerkship, Ethan was involved in hundreds of different lawsuits, including civil and criminal trials. He credits this trial exposure with affirming his desire to pursue justice for his clients in the courtroom.
Following his clerkship, Ethan practiced at Locke Lord, one of the largest law firms in the country, where he represented clients in jury and bench trials in federal and state courts, as well as arbitration and mediation proceedings. He joined Stueve Siegel Hanson in 2015. Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 42 of 43
DAVID A. HICKEY ATTORNEY
An engineer by training, David Hickey advises individuals and companies in high-stakes litigation requiring in-depth technical and factual analysis. David leverages his knowledge of financial, scientific, and actuarial practices to develop winning legal strategies. He prides himself on learning every intricacy in each of his cases.
David has successfully litigated complex cases in both state and federal courts around the nation, advocating for clients in areas including:
Antitrust. David helps businesses that have suffered losses from price fixing, monopolization, conspiracy to restrain trade, and more. He represented one of the largest grocery wholesalers in an antitrust matter against the country’s largest potato sellers, who were alleged to have fixed the price of fresh and processed potatoes nationwide; he previously represented the same client in an antitrust dispute surrounding a conspiracy to increase the price of eggs under the guise of animal welfare. Stueve Siegel Hanson achieved favorable settlements in both lawsuits. T 816.714.7187 [email protected] Cost of Insurance. David works on behalf of consumers who are being improperly overcharged for life insurance policies; he is a part of the Stueve Siegel Hanson team that pursues class action litigation against life insurance companies for unauthorized hidden fees and rate increases. The team’s recent accomplishments include a $59.75 million settlement in a class action lawsuit against John Hancock and a $34.3 million jury verdict in a class action lawsuit against State Farm.
Before joining Stueve Siegel Hanson in 2010, David worked as a summer clerk for Judge David Waxse at the U.S. District Court for the District of Kansas and practiced at another Kansas City law firm.
He volunteers with Legal Aid of Western Missouri’s Volunteer Attorney Project, where he represents low-income individuals in civil matters. David is an avid Kansas City sports fan and runs in a wide variety of local road races.
Case 5:17-cv-00967-OLG Document 108-1 Filed 07/14/21 Page 43 of 43
460 Nichols Road, Suite 200 Kansas City, Missouri 64112 stuevesiegel.com 816.714.7100 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 1 of 28 EXHIBIT B Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 2 of 28
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
ROY C. SPEGELE, individually and on behalf of all others similarly situated, Plaintiff, v. USAA LIFE INSURANCE COMPANY, Case No. 5:17-cv-967-OLG Defendant.
DECLARATION OF JOHN J. SCHIRGER IN SUPPORT OF CLASS COUNSELS’ UNOPPOSED MOTION PURSUANT TO RULE 23(H) FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES TO CLASS COUNSEL AND NAMED PLAINTIFF SERVICE AWARD
I, John J. Schirger, hereby declare as follows:
1. This declaration is based on my personal knowledge and submitted in support of
Class Counsels’ Unopposed Motion Pursuant to Rule 23(h) For an Award of Attorneys’ Fees,
Costs, and Expenses to Class Counsel and Named Plaintiff Service Award (the “Motion”).
2. I am an attorney licensed to practice law and in good standing in the states of
Missouri and Nebraska (inactive) and am one of the founding partners in Miller Schirger LLC, located at 4520 Main Street, Suite 1570, Kansas City, Missouri 64111 (“Miller Schirger”), and currently serve as managing partner of the firm. Miller Schirger is a civil litigation firm with substantial nationwide experience in complex business and commercial litigation, and multi-party
actions, including class actions. A true and accurate copy of my firm’s resume is attached hereto
as Exhibit 1.
3. Along with co-counsel at Miller Schirger, Stueve Siegel Hanson LLP (“Stueve
Siegel”) and Girard Sharp LLP (“Girard Sharp”), I have served as counsel for Plaintiff Roy C.
1
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 3 of 28
Spegele and the certified class since the inception of this case against defendant, USAA Life
Insurance Company (“USAA Life”).
4. The services performed in this case by attorneys at Miller Schirger, along with the other firms representing the class, and the procedural history of this case are accurately described in the Motion, and Memorandum in Support Thereof, including the Declaration of Norman E.
Siegel submitted in support thereof, all of which I have reviewed and incorporate as though fully set forth herein by reference in the interest of brevity.
5. The Miller Schirger attorneys primarily responsible for rendering services in this case have more than 50 years of combined legal experience in complex business and commercial litigation, including multi-party and class action litigation, as more fully described below.
6. John J. Schirger
I obtained a B.A. from the University of Notre Dame in 1988 and a J.D. from
Creighton University School of Law in 1992. I am currently admitted and
licensed to practice in the states of Missouri and Nebraska (inactive), as well as
before numerous federal district and appellate courts.
I began my legal career at McGrath, North, Mullin & Kratz, PC LLO, a large
regional law firm located in Omaha, Nebraska, where I was elected partner after
four years of practice. After 12 years of private practice, I spent approximately
three years as in-house counsel in the insurance industry, including approximately
two years as a senior legal officer for a Fortune 500 life and health insurance
company. I returned to private practice in 2008 when I, along with my law partner
Stephen R. Miller, formed Miller Schirger LLC. I have been named a “Top 100
Missouri & Kansas Super Lawyer” by Missouri and Kansas Super Lawyers,
“Best of the Bar” by the Kansas City Business Journal, have been “AV” rated by
2 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 4 of 28
Martindale-Hubbell for approximately 24 years and named to the 2020 Power 30
List for Commercial and Consumer Litigation by Missouri Lawyers Media.
Throughout my career, I have represented clients ranging from individuals to
Fortune 500 companies in various complex business and commercial matters,
including class actions and other multi-party actions, in state and federal courts
across the United States. In addition, my 29 years of experience includes
representing clients, both individuals and insurers, in a wide variety of litigation
and regulatory matters within the insurance area in both the life/health and
property/casualty industries. My substantial insurance experience, including life
insurance in particular, includes:
• Drafting and revising the following types of insurance policies: term life;
whole life; universal life; variable universal life; disability; long-term-
care; and Medicare supplement.
• Negotiating with state insurance regulators regarding issues related to,
among others, policy approval, agency issues, and financial capital and
reserve requirements.
• Representing and advising plaintiffs and defendants in a wide variety of
litigation matters including class actions.
• Analyzing and advising clients on: cost of insurance charges; general
policy charges; underwriting; policy guarantees; and policy pricing with
respect to universal life and/or variable universal life policies.
• Analyzing and advising clients on various premium financing issues, and
third-party owned life insurance arrangements.
3 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 5 of 28
• Representing plaintiffs in cost of insurance class actions throughout the
United States.
7. Matthew W. Lytle.
Matt obtained a B.A. from Creighton University in 1996, and a J.D. from
Creighton University School of Law (magna cum laude) in 2004. He is currently
admitted and licensed to practice in the states of Missouri and Nebraska (inactive),
as well as before numerous federal district and appellate courts.
Matt began his legal career at McGrath, North, Mullin & Kratz, PC LLO, a
large regional law firm located in Omaha, Nebraska. Matt then spent
approximately three years practicing at Shughart Thompson & Kilroy and Bryan
Cave LLP, large national and international law firms in Kansas City, Missouri. In
2009, Matt left Bryan Cave LLP to join Miller Schirger, and was named a partner
in the firm in 2013.
Throughout his career, Matt has represented clients ranging from individuals to
Fortune 500 companies in various complex business and commercial matters,
including class actions and other multi-party actions, in state and federal courts
across the United States. Matt has significant experience representing plaintiffs in
class action lawsuits brought in a number of state and federal courts throughout the
United States.
Matt has been named a “Super Lawyer” by Missouri and Kansas Super Lawyers
and was also named to the 2012 BTI Client Service All-Stars, a select group of only
272 lawyers nationwide chosen solely on unprompted, unequivocal
recommendations by corporate counsel for their understanding of business issues,
innovative approaches to legal services, and commitment to client needs.
4 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 6 of 28
8. Joseph M. Feierabend
Joe obtained his B.B.A. from the University of Notre Dame in 2005, with a
major in accounting, and his J.D. from the University of Missouri School of Law
in 2008. He is currently admitted and licensed to practice in the State of Missouri,
as well as before the United States District Courts for the Western District of
Missouri, the District of Colorado, and the District of Kansas.
In 2010, Joe joined Miller Schirger as an associate and was named a partner in
the firm in 2018. Joe focuses his practice in the areas of insurance, business,
banking and securities litigation, and his experience includes complex business and
commercial matters and disputes involving insurance coverage and bad faith
claims. Joe has significant experience representing plaintiffs in cost of insurance
class actions brought in state and federal courts throughout the United States. Joe
has been selected as a “Rising Star” by Super Lawyers.
9. In the last 10 years, the Miller Schirger attorneys primarily responsible for rendering services in this case have devoted the majority of their time and practice to prosecuting and litigating class claims involving cost of insurance overcharge like those here. Together with
Stueve Siegel, Miller Schirger’s efforts have resulted in securing a settlement on behalf of more than 77,000 life insurance policyholders against The Lincoln National Life Insurance Company that provided additional death benefits to the class valued at $2.25 billion, and a market value of approximately $171.8 million (Bezich v. The Lincoln National Life Insurance Co., Case No.
02C01-0906-PL-73 (Allen Co., IN)). And, together with Stueve Siegel and Girard Sharp, Miller
Schirger’s efforts also resulted in securing a cash settlement on behalf of more than 91,000 life insurance policyholders against John Hancock Life Insurance Company in the amount of $59.75 million (Larson v. John Hancock Life Insurance Co., Case No. RG16 813803 (Alameda Co., CA)).
5 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 7 of 28
10. In June 2018, Miller Schirger and Stueve Siegel also successfully tried a class action case against State Farm Life Insurance Company (“State Farm Life”) involving cost of insurance overcharge claims like those asserted against USAA Life here. That trial resulted in a jury verdict of more than $34 million for a certified class of more than 24,000 owners of Missouri life insurance policies issued by State Farm Life. See Vogt v. State Farm Life Ins. Co., No. 2:16-
CV-04170-NKL at Docs. 358 & 360 (W.D. Mo. June 6, 2018). The verdict was affirmed on appeal to the Eighth Circuit Court of Appeals (see Vogt v. State Farm Life Ins. Co., 963 F.3d 753 (8th
Cir. 2020)), after which State Farm Life’s petition for writ of certiorari seeking to challenge class certification was denied by the United States Supreme Court. See State Farm Life Insurance Co. v. Vogt, cert. denied sub nom., No. 20-1008, 2021 WL 1521013 (U.S. Apr. 19, 2021). Miller
Schirger and Stueve Siegel are also simultaneously prosecuting other, similar cases against State
Farm Life, as well as similar cases against Kansas City Life Insurance Company, Symetra Life
Insurance Company, Genworth Life & Annuity Company, and Connecticut General Life Insurance
Company.
11. Miller Schirger and Stueve Siegel’s substantial experience prosecuting and litigating class actions involving alleged cost of insurance overcharges provided a significant knowledge and experience base from which Class Counsel was able to evaluate the merits of the claims against USAA Life and which allowed Class Counsel to evaluate the reasonableness of the
Settlement in this case.
12. Miller Schirger took this case on a contingency basis. Likewise, the Miller Schirger attorneys primarily responsible for rendering services in this case devote the vast majority of their practice to complex litigation, primarily representing plaintiffs in state and federal courts across the country on a contingency basis. Because it is in a position to advance substantial litigation costs, including expert witness fees, Miller Schirger is capable of taking on large scale and high
6 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 8 of 28
stakes cases, and prosecuting complex and protracted class litigation on a fully contingent basis,
such that we advance all expenses and time with no guarantee of recovery absent judgment or
settlement. We do so with the hope that we will recover as much, or more, than we would in a
traditional hourly billable practice.
13. I routinely consult with other lawyers as well as published data (including surveys
and reported judicial decisions) to determine fee arrangements by attorneys of comparable
experience and skill in Texas and nationally. Based on this data and my own experience, I have
knowledge of practices in Texas and nationally regarding contingent and non-contingent fees in
both class action and non-class action cases.
14. In non-class action cases, a typical contingent-fee contract provides that the
attorney representing a plaintiff receives anywhere from 25–50% of the plaintiffs’ recovery,
exclusive of costs, depending upon a number of factors. In individual complex cases, my
contractual fees have been up to 45% of the total recovery achieved for individual clients. The same general range has been utilized by courts in awarding attorney fees in class actions – attorneys
typically are awarded anywhere from 25–40% of the amount of the common fund or value of the
benefit created by the settlement or judgment.
15. Based on my personal involvement in prosecuting this case since its inception, and
my review of the billing and expense records maintained by the firm, I have personal knowledge
of the services rendered by Miller Schirger attorneys, the time spent in rendering those services,
and the costs and expenses incurred during the course of this litigation. Miller Schirger has
expended substantial time, effort, and expense litigating this case and pursuing the claims that led
to the Settlement.
16. From this case’s inception, Miller Schirger utilized its standard billing practices to
track and maintain contemporaneous time records, in six-minute increments, for all timekeepers
7 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 9 of 28
providing services during the course of this litigation. In preparing this declaration, I reviewed the
complete time records maintained in Miller Schirger’s time and billing system. Through July 13,
2021, Miller Schirger expended 3,310.50 hours prosecuting and litigating this action, all of which
I believe added value to the case and were reasonably necessary to give our client and class
members the best possible chance for a favorable outcome. Additional time will be expended for
services rendered to administer the distribution of the Settlement.
17. All of the hours Miller Schirger expended litigating this case were reasonably
expended to address the novel and complex issues presented by this action and USAA Life’s
defense and are also of the kind and character that Miller Schirger would normally bill to paying
clients, as well as time that Miller Schirger would normally track and seek to be paid for at the
conclusion of successful contingency litigation. Class Counsel staffed and managed the litigation
as efficiently as possible and did not duplicate efforts and responsibilities.
18. At various points throughout this litigation the services provided were intense and
dominated the practice of Miller Schirger’s attorneys and timekeepers to the exclusion of other
matters. This time commitment, together with the anticipated time and resources (including
expenses, and attorney, staff, and expert time) to prosecute and litigate this case to resolution, resulted in the need for Miller Schirger to decline other business during the pendency of this action.
19. Class Counsel has previously sought and been awarded 30% of the fund as fees in other common fund cost of insurance cases like the case against USAA Life here. For instance, in
May 2018, the Superior Court of Alameda County, California, approved a fee award of 30% of a
$59.75 million class action settlement fund to Miller Schirger, Stueve Siegel, and Girard Sharp.
See Larson v. John Hancock Life Ins. Co. (U.S.A.), Case No. RG16813803 (Sup. Ct. Alameda Cty.
Cal. May 8, 2018). Similarly, in Vogt v. State Farm Life Insurance Company, the court awarded
Miller Schirger and Stueve Siegel fees totaling one-third of the common fund they obtained as
8 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 10 of 28
class counsel through a judgment following trial that was affirmed on appeal. See Vogt v. State
Farm Life Ins. Co., No. 2:16-CV-04170-NKL at Doc. 458 (W.D. Mo. Jan. 25, 2021).
20. In addition, Miller Schirger incurred costs and expenses in the normal course of
this litigation totaling $46,580.84 through July 13, 2021. The costs and expenses Miller Schirger
incurred are itemized and accurately reflected in the table below.
Expense Summary Through July 13, 2021 Expense Category Amount Court Costs $531.00 Expert Fees $20,144.58 Online Legal Research $10,010.05 Photocopy Charges $2,027.50 Postage/Delivery Fees $935.79 Transcription Fees $2,528.26 Travel Expenses $10,403.66 TOTAL: $46,580.84
All of the costs and expenses reflected in the above table were reasonable and necessary out-of-
pocket expenses that are normally passed on to the client and not absorbed as overhead. These
expenses were reasonably necessary in order to successfully prosecute and litigate this case, and
were incurred by Miller Schirger on an at-risk, contingent basis, with no guarantee of recovery
absent a settlement or judgment. Thus, had Class Counsel not been successful in obtaining relief
on behalf of Plaintiff and the Class, Miller Schirger would have been required to absorb these
expenses at a considerable loss.
9 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 11 of 28
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct.
Executed this 14th day of July, 2021, in Kansas City, Missouri.
/s/ John J. Schirger John J. Schirger
10 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 12 of 28 EXHIBIT 1 Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 13 of 28
Nationwide representation of plaintiffs and defendants in complex legal disputes.
4520 Main Street Suite 1570 Kansas City, MO 64111 816.561.6500 www.millerschirger.com
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 14 of 28
FIRM OVERVIEW
Miller Schirger is a Kansas City, Missouri-based law firm focused on resolving complex disputes on behalf of businesses and individuals nationwide. Information regarding the firm, the scope of its practice, and its honors is available at www.millerschirger.com. Below is a partial listing of the firm’s experience in plaintiff- side class actions. The firm has also obtained significant results in a wide range of lawsuits representing individual plaintiffs and defendants. CLASS ACTIONS
• Appointed and currently serving as class counsel to a certified nationwide class of life insurance policy owners in a class action against USAA Life Insurance Co. asserting claims for breach of contract resulting in alleged policy overcharges. Spegele v. USAA Life Insurance Co., No. 5:17-CV-00967-OLG (W.D. Tex.).
• Appointed and currently serving as class counsel to a certified class of California life insurance policy owners in a class action against State Farm asserting claims for, among other things, breach of contract resulting in alleged life insurance policy overcharges, including “cost of insurance” overcharges. Bally v. State Farm Life Ins. Co., 335 F.R.D. 288 (N.D. Cal. 2020).
• After two hours of deliberations, on June 6, 2018, a federal jury in Missouri awarded $34.3 million to State Farm policyholders in a class action trial. The class action was brought on behalf of approximately 24,000 current and former owners of universal life insurance policies issued in Missouri. Universal life insurance is a type of life insurance that includes an interest-bearing savings account from which the insurer deducts money each month to cover the cost of the life insurance. The jury found that State Farm systematically overcharged its policyholders for 23 years. Vogt v. State Farm Life Insurance Co., No. 2:16-cv-04170-NKL, (W.D. Mo.). The case was affirmed on appeal. Vogt v. State Farm Life Insurance Co., 963 F.3d 753 (8th Cir. 2020), cert. denied, No. 20-1008, 2021 WL 1521013 (U.S. Apr. 19, 2021).
• Settled a nationwide class action lawsuit against John Hancock Life Insurance Company (U.S.A.) over alleged life insurance policy overcharges. The settlement was approved by the court in May 2018 and provided that John Hancock pay $59.75 million (less fees and expenses) in cash compensation to approximately 103,000 policyholders who own or owned a Flex V-II variable whole life insurance policy sold and administered by John Hancock over the last several decades. Larson v. John Hancock Life Ins. Co., Case No. RG16 813803 (Superior Court of California, County of Alameda).
• Represented plaintiff class of policyholders in nationwide class action against The Lincoln National Life Insurance Company alleging life insurance policy overcharges including “cost of insurance” overcharges. Lincoln National agreed to settle the case by, among other things, issuing term life insurance certificates to a settlement class consisting of approximately 77,000 policy owners across 30 states. The term life insurance certificates have a total face amount of death benefits estimated at $2.25 billion, with a market value of approximately $171.8 million. Bezich v. The Lincoln Nat. Life Ins. Co., No. 02C01-0906-PL-73 (Allen Co, IN).
• Represented plaintiff in alleged class action involving cost of insurance overcharges in life insurance policies. Case of first impression holding Class Action Fairness Act’s (CAFA) securities exception allowed
2
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 15 of 28
alleged class action involving variable life insurance policy to proceed forward in state court; case was not subject to removal to federal court. Lincoln Nat'l. Life Ins. Co. v. Bezich, 610 F.3d 448 (7th Cir. 2010).
• Represented plaintiff in alleged class action involving cost of insurance overcharges in life insurance policies. Securities Litigation Uniform Standards Act (SLUSA) did not preclude plaintiff's claim for breach of contract even though such claim was related to the purchase or sale of a covered security under SLUSA. Freeman Investments, L.P. v. Pac. Life Ins. Co., 704 F.3d 1110 (9th Cir. 2013). PLAINTIFF RESULTS
• $59.75 million nationwide settlement in life insurance class action
• $34.3 million verdict to Missouri life insurance policyholders
• $2.25 billion nationwide class action settlement
• $116 million verdict for general contractor in bad faith claim against surety
• Substantial recovery for institutional investor from mortgage-backed securities broker
• Groundbreaking class-action decision against Fortune 500 life insurance company
• $4.3 million settlement of highway construction case
• $4.9 million verdict in water utility case
• $11.4 million case involving development rights resolved in client’s favor during trial
• $4 million professional malpractice claims settled in trustee’s favor
• Antitrust claim settled on behalf of client
• Judgment for injunction relief and damages obtained in unfair competition and fraud case
• Wrongful death settlement in product liability case DEFENSE RESULTS
• $1.2 billion whistleblower claim dismissed on summary judgment
• $100 million in claims successfully resolved for broker/dealer
• NY investment bank pays nothing in settlement of unfair competition claim
• Win for IBM in $8.5 million alleged fraud case
• Multi-billion dollar product liability exposure resolved to client’s satisfaction
3
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 16 of 28
• $7 million claim against propane company defeated at trial
• Intellectual property claim resolved for manufacturer
• $12 million workout for commercial borrower
• $30 million environmental mass tort claims against Beatrice dismissed on summary judgment TRIAL FIRM
EXPERIENCED
We have a proven track record of success representing plaintiffs and defendants in state and federal trial and appellate courts, before administrative and regulatory tribunals and in arbitration and other alternative dispute resolution proceedings nationwide.
PRACTICAL
From the beginning of an engagement, we seek to truly understand your business in order to provide strategic counsel and insightful guidance tailored to your objectives.
FOCUSED ON RESULTS
We measure success not by the hours billed, but by the results obtained for our clients. Although we are skilled trial lawyers who prepare each case as though it will go to trial, we never stop seeking the most efficient, cost-effective strategy for obtaining results.
Firm members who make up the trial team on plaintiff-side class actions are identified below.
4
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 17 of 28
John J. Schirger For over 25 years John has represented businesses and individuals nationwide in disputes concerning breach of contract, fraud, business torts, consumer protection, insurance and reinsurance, securities and commodities, whistle-blower claims, and environmental matters. He also has significant experience in personal injury and wrongful death cases. John has successfully handled cases in federal or state courts in over 20 states, has argued before federal and state appellate courts, and has represented parties in AAA and Financial Industry Regulatory Authority (FINRA) arbitrations. John began his career at a large regional law firm where he was elected partner after four years of practice. After only five years of practice, he obtained an "AV" rating from law publisher Martindale-Hubbell, the highest rating a lawyer can receive for competence and ethics. John has been named a “Top 100 Missouri & Kansas Super Lawyer” and “Best of the Bar” by the Kansas City Business Journal. John represents clients in a wide variety of cases involving business and commercial disputes, securities litigation matters, and class actions. In these cases, his clients include business owners, individuals and family members, investors including community banks and hedge funds, and members of the Forbes 400. John is known for his disciplined and thorough approach in cases, but also for being practical and creative in resolving disputes. AREAS OF PRACTICE
• Banking Litigation • Commercial Litigation • Class-Action Lawsuits • Construction Law • Construction Litigation • Fiduciary Litigation • Insurance Litigation • Mass Torts Litigation • Personal Injury & Wrongful Death Litigation • Products Liability Litigation • Real Estate Litigation • Securities Litigation • Antitrust, Unfair Competition and Deceptive Trade Practices Litigation • Whistleblower Litigation
5
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 18 of 28
BAR ADMISSIONS
• Missouri • Nebraska (inactive) • U.S. District Court District of Nebraska • U.S. District Court Northern District of Illinois • U.S. District Court District of Colorado • U.S. District Court District of Kansas • U.S. District Court Western District of Missouri • U.S. District Court Eastern District of Wisconsin • U.S. Court of Appeals 1st Circuit • U.S. Court of Appeals 3rd Circuit • U.S. Court of Appeals 7th Circuit • U.S. Court of Appeals 8th Circuit • U.S. Court of Appeals 9th Circuit • U.S. Court of Appeals 10th Circuit
EDUCATION
• Creighton University School of Law o Juris Doctor - 1992
• University of Notre Dame o Bachelor of Arts - 1988 HONORS & AWARDS • The National Law Journal’s Top 100 Verdicts 2018 • Missouri Lawyers Awards – Top 5 Verdict in 2018 • Multi-Million Dollar Advocates Forum – Top Trial Lawyers in America • Best of the Bar – Kansas City Business Journal • Martindale Hubbell – AV Highest Rating • SuperLawyers – SuperLawyer Magazine • Fellow – American Bar Foundation
PROFESSIONAL ASSOCIATIONS & MEMBERSHIPS
• American Bar Association o Section on Tort Trial and Insurance Practice o Section on Litigation • Missouri Bar Association • Kansas City Metropolitan Bar Association o Civil Litigation Section o Business Litigation Committee (Former Chair) • Missouri Association of Trial Attorneys • Nebraska Bar Association • American Association for Justice
6
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 19 of 28
o Section on Business Torts o Section on Insurance Law o Section on Product Liability
REPRESENTATIVE CASES Business Litigation — Represented plaintiff in action on a guaranty related to a securities purchase. Defeated defendant's attempt to force the case to arbitration; affirmed on appeal.
Business Litigation – Represented defendant in alleged internet fraud case where plaintiff claimed $2.5 million in damages; favorable settlement reached for client shortly before trial.
Business Litigation – Represented defendant majority owner in minority shareholder dispute where plaintiff claimed $1.5 million in damages; case dismissed in favor of defendant after full evidentiary hearing and plaintiff elected not to appeal.
Business Litigation – American Shizuki Corp. v. International Business Machines, Represented defendant IBM in alleged fraud case where plaintiff claimed $8.5 million in damages; summary judgment granted in favor of defendant on all counts and affirmed by the Eighth Circuit. (8th Cir. 2001)
Mass Torts (Environmental) Litigation – Truck Components, Inc., et al. v. Beatrice Company, Inc. et al., Represented defendant Beatrice Company in complex environmental case where plaintiff claimed $30 million in damages in connection with acquisition and divestiture of a foundry plant; summary judgment granted in favor of defendant on all counts and affirmed by Seventh Circuit. (7th Cir. 1998)
Construction Litigation – Represented defendant steel contractor in lawsuit involving the construction of a power plant; defeated 90% of plaintiff’s claims and damages in week-long arbitration.
Construction Litigation – Represented plaintiff underground utility contractor in complex lien foreclosure lawsuit resulting in settlement the morning of trial where plaintiff received 100% of monies claimed.
Construction Litigation – Represented general contractor in dispute with surety concerning the construction of a food processing facility; favorable settlement reached for client without initiating lawsuit.
Cost of Insurance Class Action – Vogt v. State Farm Life Insurance Company, Represented plaintiff Missouri class of policyholders in class action trial involving cost of insurance overcharges in life insurance policies. Jury awarded policyholder class $34.3 million and determined that State Farm had systematically overcharged policyholder class (Western District of Missouri, Central Division 2018); affirmed on appeal. (8th Cir. 2020)
Cost of Insurance Class Action – Larson v. John Hancock Life Insurance Company (U.S.A.), Represented plaintiff class of policyholders in nationwide class action involving cost of insurance overcharges in life insurance policies. John Hancock agreed to settle the case for $59.75 million that will be distributed to approximately 103,000 policyholders. (Superior Court of California, County of Alameda, Oakland, CA 2018)
7
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 20 of 28
Cost of Insurance Class Action — Bezich v. Lincoln Nat’l. Life Ins. Co., Represented plaintiff class of policyholders in nationwide class action against The Lincoln National Life Insurance Company alleging life insurance policy overcharges including “cost of insurance” overcharges. Lincoln National agreed to settle the case by, among other things, issuing term life insurance certificates to a settlement class consisting of approximately 77,000 policy owners across 30 states. The term life insurance certificates have a total face amount of death benefits estimated at $2.25 billion, with a market value of approximately $171.8 million. (Allen County Circuit Court, Fort Wayne, IN 2016)
Cost of Insurance Class Action - Bezich v. Lincoln Nat'l. Life Ins. Co., Represented plaintiff in alleged class action involving cost of insurance overcharges in life insurance policies. Case of first impression holding Class Action Fairness Act’s (CAFA) securities exception allowed alleged class action involving variable life insurance policy to proceed forward in state court; case was not subject to removal to federal court. (7th Cir. 2010)
Cost of Insurance Class Action – Freeman Investments, L.P. v. Pac. Life Ins. Co., Represented plaintiff in alleged class action involving cost of insurance overcharges in life insurance policies. Securities Litigation Uniform Standards Act (SLUSA) did not preclude plaintiff's claim for breach of contract even though such claim was related to the purchase or sale of a covered security under SLUSA (9th Cir. 2013)
Employment Law and Litigation – Represented defendant manufacturer in dispute with former employee. Summary judgment entered in favor of defendant on all counts. Plaintiff elected not to proceed with an appeal.
Insurance Litigation – Represented plaintiff property-owner in direct action against property-casualty insurer involving risk of loss provision in purchase and sale agreement. Case settled through mediation shortly before trial where plaintiff recovered 125% of specified damages.
Mass Torts Litigation – Represented defendants nationwide in lead paint products liability cases; cases resolved through successful summary judgment practice or mediation.
Personal Injury and Wrongful Death Litigation – Represented widower and young children in personal injury and wrongful death case; obtained maximum recovery for clients under various insurance policies without initiating a lawsuit.
Products Liability Litigation – Represented plaintiff widow and family members in wrongful death case of husband/father involving a defective consumer product. Confidential settlement reached after minimal discovery.
Real Estate Litigation – Represented defendant owner/landlord in complex dispute with tenant; favorable settlement reached for client after successful trial.
Securities Litigation – Represented plaintiff Colorado Bank in dispute with its broker-dealer involving the marketing and sale of mortgage-backed securities. Confidential settlement reached for client resulting in substantial recovery. Within two weeks of finalizing the settlement, regulatory officials substantially upgraded the Bank's rating.
8
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 21 of 28
Securities Litigation – Represented plaintiff Texas bank in dispute with its broker-dealer involving the marketing and sale of mortgage-backed securities. Confidential settlement reached for client resulting in substantial recovery.
Securities Litigation – Represented individual investor in alleged ponzi scheme. Seven-figure settlement reached with broker/advisor; all invested funds were recovered for client.
Securities Litigation – Represented defendant broker/dealer in complex securities and commodities' ponzi scheme cases where plaintiffs claimed damages in excess of $100 million; after close of discovery, favorable settlements reached for client through mediation.
Unfair Competition and Deceptive Trade Practices Litigation – Represented defendant New York investment banking firm in commercial dispute involving alleged breach of nondisclosure agreement. Successful settlement reached for client after minimal discovery; client paid no money to Plaintiff.
Whistleblower Litigation - U.S. ex rel. Bahrani v. ConAgra, Inc., Represented defendant ConAgra Foods, Inc. in alleged civil false claims case where plaintiff claimed $1.2 billion in damages; summary judgment granted in favor of defendant on all counts. (D. Colorado 2004)
9
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 22 of 28
Matthew W. Lytle Attorneys at Law Main: 816.561.6500 [email protected] 4520 Main Street, Suite 1570 Direct: 816.561.6510 www.millerschirger.com Kansas City, Missouri 64111 Fax: 816.561.6501
Matthew W. Lytle Throughout his practice, Matt has represented clients ranging from individuals to privately held and publicly traded corporations in various state and federal courts nationwide, and in arbitrations with the AAA and the Financial Industry Regulatory Authority (FINRA). Matt’s experience covers all phases of the litigation process including case strategy, pre-trial briefing and motion practice, depositions and discovery, dispositive motion practice, trial preparation, trial, and appeals. Matt’s representative litigation experience includes representing both plaintiffs and defendants in disputes involving claims for fraud, breach of fiduciary duty, breach of trust, breach of contract, and civil RICO, as well as consumer class action and whistleblower claims. In addition to litigation, Matt has experience in the area of white collar defense and investigations, and has represented clients in investigations by various federal agencies including the CFTC and the USDA. Matt was named a “Rising Star” (2011, 2012) and a “Super Lawyer” (every year since 2013) by Missouri & Kansas Super Lawyers. Matt was also named to the 2012 BTI Client Service All-Stars, a select group of only 272 lawyers nationwide who are chosen solely on unprompted, unequivocal recommendations by corporate counsel for their understanding of business issues, innovative approaches to legal services, and commitment to client needs. Matt began his legal career at a large regional law firm in Omaha, Nebraska. After moving to Kansas City, he practiced in large national and international law firms before joining Miller Schirger. AREAS OF PRACTICE
• Banking Litigation • Commercial Litigation • Class-Action Lawsuits
10
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 23 of 28
• Fiduciary Litigation • Insurance Litigation • Personal Injury & Wrongful Death LitigationProducts Liability Litigation • Real Estate Litigation • Securities Litigation • Antitrust, Unfair Competition and Deceptive Trade Practices Litigation • Whistleblower Litigation
BAR ADMISSIONS
• Missouri • Nebraska (inactive) • U.S. District Court Western District of Missouri • U.S. District Court District of Nebraska • U.S. District Court District of Kansas • U.S. District Court District of Colorado • U.S. District Court Eastern District of Wisconsin • U.S. Court of Appeals 8th Circuit • U.S. Court of Appeals 9th Circuit • U.S. Court of Appeals 10th Circuit
EDUCATION
• Creighton University School of Law o Juris Doctor (Magna Cum Laude) - 2004
• Creighton University o Bachelor of Arts - 1996 HONORS & AWARDS • The National Law Journal’s Top 100 Verdicts 2018 • Missouri Lawyers Awards – Top 5 Verdict in 2018 • Rising Star, SuperLawyers, 2011-2012 • SuperLawyers – SuperLawyer Magazine • BTI Client Service All-Stars, 2012 • Fellow – American Bar Foundation
PROFESSIONAL ASSOCIATIONS & MEMBERSHIPS
• American Bar Association • Missouri Bar Association • Kansas City Metropolitan Bar Association • Nebraska Bar Association
REPRESENTATIVE CASES Business Litigation — Multivac, Inc. vs. Rotella’s Italian Bakery, Inc., Represented defendant / counterclaimant in case involving claims for breach of contract, and counterclaims for repudiation of contract
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 24 of 28
and breach of express and implied warranties, among others, related to the purchase of a vacuum-seal packaging machine. A four-day jury trial in the United States District Court for the Western District of Missouri, resulted in verdicts in client’s favor on the plaintiff’s claim for breach of contract, and the client’s counterclaims for repudiation of contract and breach of express warranty.
Business Litigation – Represented plaintiff and counter-defendant propane company in protracted litigation involving claims for alleged overcharges related to vehicle refurbishing services and counterclaims against client seeking damages of $6.97 million for alleged breach of contract and business torts. A nine day jury trial in the Circuit Court for Jackson County, Missouri, produced a favorable result for the client, including the client paying less than 10% of the counter-claim damages sought.
Cost of Insurance Class Action – Vogt v. State Farm Life Insurance Company, Represented plaintiff Missouri class of policyholders in class action trial involving cost of insurance overcharges in life insurance policies. Jury awarded policyholder class $34.3 million and determined that State Farm had systematically overcharged policyholder class (Western District of Missouri, Central Division 2018); affirmed on appeal. (8th Cir. 2020)
Cost of Insurance Class Action – Larson v. John Hancock Life Insurance Company (U.S.A.), Represented plaintiff class of policyholders in nationwide class action involving cost of insurance overcharges in life insurance policies. John Hancock agreed to settle the case for $59.75 million that will be distributed to approximately 103,000 policyholders. (Superior Court of California, County of Alameda, Oakland, CA 2018)
Cost of Insurance Class Action — Bezich v. Lincoln Nat’l. Life Ins. Co., Represented plaintiff class of policyholders in nationwide class action against The Lincoln National Life Insurance Company alleging life insurance policy overcharges including “cost of insurance” overcharges. Lincoln National agreed to settle the case by, among other things, issuing term life insurance certificates to a settlement class consisting of approximately 77,000 policy owners across 30 states. The term life insurance certificates have a total face amount of death benefits estimated at $2.25 billion, with a market value of approximately $171.8 million. (Allen County Circuit Court, Fort Wayne, IN 2016)
Cost of Insurance Class Action - Bezich v. Lincoln Nat'l. Life Ins. Co. — Represented plaintiff in alleged class action involving cost of insurance overcharges in life insurance policies. Case of first impression holding Class Action Fairness Act’s (CAFA) securities exception allowed alleged class action involving variable life insurance policy to proceed forward in state court; case was not subject to removal to federal court. (7th Cir. 2010)
Cost of Insurance Class Action - Freeman Investments, L.P. v. Pac. Life Ins. Co. — Represented plaintiff in alleged class action involving cost of insurance overcharges in life insurance policies. Securities Litigation Uniform Standards Act (SLUSA) did not preclude plaintiff's claim for breach of contract even though such claim was related to the purchase or sale of a covered security under SLUSA (9th Cir. 2013)
Securities Litigation — Represented plaintiff Colorado Bank in dispute with its broker-dealer involving the marketing and sale of mortgage-backed securities. Confidential settlement reached for client resulting in
12
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 25 of 28
substantial recovery. Within two weeks of finalizing the settlement, regulatory officials substantially upgraded the Bank's rating.
Securities Litigation — Represented plaintiff Texas bank in dispute with its broker-dealer involving the marketing and sale of mortgage-backed securities. Confidential settlement reached for client resulting in substantial recovery.
Securities Litigation — Represented individual investor in alleged ponzi scheme. Seven-figure settlement reached with broker/advisor; all invested funds were recovered for client.
13
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 26 of 28
Joseph M. Feierabend Joe focuses his practice primarily in the areas of complex business and commercial litigation. He represents businesses and individuals in state and federal courts and before arbitration panels nationwide in disputes involving breach of contract, business torts, and other commercial claims. His expertise extends to class actions, insurance coverage and bad faith claims, personal injury claims, claims asserting violations of constitutional rights, as well as counseling institutional investors in broker/dealer disputes involving complex, structured financial products and transactions. In addition, Joe has significant experience representing plaintiffs in cost-of-insurance class-action litigation in state and federal courts throughout the United States. Joe obtained his B.B.A. degree from the University of Notre Dame where he majored in accounting and obtained his J.D. from the University of Missouri School of Law, where he focused his studies in the areas of finance and tax. Before beginning his legal career, Joe spent two years running the daily operations of a Kansas City company. His prior work experience and financial background provide a unique perspective in analyzing business disputes, and consistently prove to be a significant advantage in advising clients. AREAS OF PRACTICE
• Banking Litigation • Commercial Litigation • Class-Action Lawsuits • Constitutional Law/Civil Rights Litigation • Construction Law • Construction Litigation • Insurance Litigation • Real Estate Litigation • Securities Litigation • Antitrust, Unfair Competition and Deceptive Trade Practices Litigation • Whistleblower Litigation
BAR ADMISSIONS
• Missouri • U.S. District Court District of Colorado • U.S. District Court Western District of Missouri • U.S. District Court District of Kansas • U.S. Court of Appeals 9th Circuit • U.S. Court of Appeals 10th Circuit
EDUCATION
14
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 27 of 28
• University of Missouri School of Law o Juris Doctor - 2008
• University of Notre Dame o Bachelor of Business Administration - 2005 PROFESSIONAL ASSOCIATIONS & MEMBERSHIPS
• American Association for Justice • American Bar Association • Missouri Bar Association • Kansas City Metropolitan Bar Association • Missouri Association of Trial Attorneys
REPRESENTATIVE CASES Business Litigation – Represented individual and brought action to recover on claims arising from breach of settlement agreement and non-compliance with judgment of a Missouri circuit court. A favorable settlement was reached soon after initiating enforcement proceedings with the court.
Business Litigation – Represented business in contract dispute with multinational insurance brokerage. Negotiated and obtained a settlement in client's favor, without filing a lawsuit.
Civil Rights – Represented plaintiff in a tort/civil rights action which alleged 12 claims against police, hospital and the doctors who treated plaintiff in the emergency room, the municipality emergency services personnel and the municipality which employed the individual defendants. The claims included Excessive Force, Unlawful Seizure, False Arrest, Unlawful Search, Interference With and Denial of Medical Care, Delay of Plaintiff’s Release, Municipal Liability, Assault, Battery, Intentional Infliction of Emotional Distress, False Imprisonment, and Negligence, and sought relief for violation of civil rights secured by 42 § U.S.C. 1983. The defense settled with plaintiff for relief of $11.4 million. (W.D. Missouri – Kansas City, 2018)
Cost of Insurance Class Action – Vogt v. State Farm Life Insurance Company, Represented Missouri class of policyholders in class action trial involving cost of insurance overcharges in life insurance policies. Jury determined that State Farm had systematically overcharged policyholder class and awarded $34.3 million (Western District of Missouri, Central Division 2018); affirmed on appeal. (8th Cir. 2020)
Cost of Insurance Class Action – Larson v. John Hancock Life Insurance Company (U.S.A.), Represented class of approximately 103,000 plaintiff policyholders in nationwide class action involving cost of insurance overcharges on life insurance policies. John Hancock agreed to settle the case for $59.75 million. (Superior Court of California, County of Alameda, Oakland, CA 2018).
Cost of Insurance Class Action — Bezich v. Lincoln Nat’l. Life Ins. Co., Represented class of policyholders in nationwide class action against The Lincoln National Life Insurance Company alleging life insurance policy overcharges including “cost of insurance” overcharges. Lincoln National agreed to settle the case by, among other things, issuing term life insurance certificates to a settlement class consisting of approximately 77,000 policy owners across 30 states. The term life insurance certificates had a total face amount of death benefits
15
Case 5:17-cv-00967-OLG Document 108-2 Filed 07/14/21 Page 28 of 28
estimated at $2.25 billion, with a market value of approximately $171.8 million. (Allen County Circuit Court, Fort Wayne, IN 2016).
Insurance Litigation – Represented plaintiffs in various disputes regarding defendant insurance companies’ failure to pay on property loss claims. Favorable outcomes have been reached for clients soon after initiating lawsuits.
Intellectual Property Litigation – Represented plaintiff in a trademark infringement case resulting in a positive outcome ensuring protection of client’s intellectual property rights into the future.
Property Rights Litigation – Represented plaintiff in dispute involving rights to use of land and alleged adverse possession, among other claims; negotiated and obtained a favorable settlement for client.
Securities Litigation – Represented plaintiff bank in dispute with its broker-dealer. The dispute involved the marketing and sale of asset-backed securities. Confidential settlement was reached for client resulting in a substantial recovery.
16
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 1 of 33 EXHIBIT C Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 2 of 33
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
ROY C. SPEGELE, individually and on behalf Case No. 5:17-cv-967-OLG of all others similarly situated,
Plaintiff,
v.
USAA LIFE INSURANCE COMPANY,
Defendant.
DECLARATION OF DANIEL C. GIRARD IN SUPPORT OF PLAINTIFF’S UNOPPOSED MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES TO CLASS COUNSEL AND NAMED PLAINTIFF SERVICE AWARD
I, Daniel C. Girard, hereby declare as follows:
1. I am the founder and managing partner of Girard Sharp LLP, counsel of record for Plaintiff and the certified class in this matter. I am admitted pro hac vice to practice in this
Court. I make this declaration based on my personal knowledge and if called to testify to the matters discussed herein, I could and would competently do so.
2. Girard Sharp is a national litigation firm that serves individuals, institutions and business clients in cases ranging from mass torts to antitrust, securities, consumer protection, privacy, and whistleblower laws. Girard Sharp specializes in class action litigation in federal and state courts throughout the United States, and brought to this case many years of experience in complex litigation. Girard Sharp’s expertise in class actions has repeatedly been recognized by the federal judiciary, and the firm’s partners have hosted and appeared as panelists at judicial education events sponsored by the Federal Judicial Center.
1 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 3 of 33
3. I have specialized in class actions since 1988 and have served as lead counsel in a wide range of class actions in over 30 years of advocacy for plaintiffs. It has been my further privilege as a federal court practitioner to contribute to the development of the law by participating in the federal rule-making process. In 2015, Chief Justice Roberts appointed me to the Standing Committee on Rules of Practice and Procedure, and I completed my second term in June 2021. Chief Justice Rehnquist previously appointed me to serve on the United States
Judicial Conference Advisory Committee on Civil Rules from 2004 to 2010. I am a member of the Council of the American Law Institute, currently serving as Chair of Audit Committee. I am also a Life Fellow of the American Bar Foundation. I served on the Advisory Board of the
Institute for the Advancement of the American Legal System from 2007 to 2016.
4. My partner Jordan Elias worked with me on this litigation since its inception. A former Ninth Circuit law clerk and the author of various legal articles and treatise chapters, Mr.
Elias has applied his skills to many successful class action cases nationwide, such as Hale v.
State Farm Mutual Automobile Insurance Company, No. 3:12-cv-00660-DRH-SCW (S.D. Ill.), and In re Checking Account Overdraft Litigation, No. 09-MD-02036-JLK (S.D. Fla.). He received a California Lawyer Attorney of the Year (CLAY) award in 2016, has been recognized as a Northern California Super Lawyer since 2014, and previously served as chief arbitrator for the San Francisco Bar Association’s attorney-client fee disputes program. Among his work in this litigation, Mr. Elias was responsible for responding to USAA’s choice of law arguments in the Fifth Circuit 23(f) appeal.
5. Elizabeth Kramer, a former Girard Sharp associate, worked on case management and discovery tasks in this case. Ms. Kramer gained litigation experience in In re Peregrine
Financial Group Customer Litigation, No. 1:12-cv-5546 (N.D. Ill.), mentioned below, and has
2 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 4 of 33
been recognized as a Northern California Super Lawyer Rising Star since 2015. She served on the co-lead counsel team for women who were abused by gynecologist George Tyndall, M.D. in a class action against Tyndall and the University of Southern California, In re USC Student
Health Center Litigation, which resulted in a landmark $215 million settlement for the victims.
6. Girard Sharp has participated in a range of class actions and complex litigation cases since our founding. A true and correct copy of the firm’s resume demonstrating our experience prosecuting class actions is attached hereto as Exhibit 1. Representative cases illustrating the range of matters handled by the firm include:
• Billitteri v. Securities America, Inc., No. 3:09-cv-01568-F (N.D. Tex.). Girard Sharp served as lead counsel in an action brought by investors in a failed investment scheme who asserted claims under Texas state securities laws. Girard Sharp coordinated settlement negotiations with bankruptcy trustees and competing plaintiff groups, securing a global $150 million settlement. In approving the settlement, U.S. District Judge W. Royal Furgeson wrote: “Class counsel in this case possess great competence and experience, and the result reached in this case perfectly exemplifies their abilities. The Court has been extremely impressed with the conduct, skill, and accomplishment of class counsel throughout this litigation.” 2011 WL 3585983, at *8 (N.D. Tex. Aug. 4, 2011).
• In re Pacific Fertility Center, No. 18-cv-01586-JSC (N.D. Cal.). This ongoing litigation arises from the catastrophic failure of an IVF storage tank that contained human reproductive material. Girard Sharp serves as trial counsel for plaintiffs whose frozen eggs and embryos were compromised in this incident. On June 11, 2021, after a three-week trial, the jury awarded nearly $15 million to the first five of hundreds of Plaintiffs, finding the tank manufacturer liable on all claims.
• In re JUUL Labs Inc. Marketing, Sales Practices, and Products Liability Litigation, No. 3:19-cv-06466-WHO (N.D. Cal.). Girard Sharp serves as one of four co-lead counsel in this complex multidistrict litigation arising from the alleged deceptive marketing of e-cigarettes to minors. Plaintiffs allege that JUUL misleadingly marketed highly addictive e-cigarettes as smoking cessation devices, and manipulated their nicotine formulation to increase their addictive qualities, contributing to a widespread “vaping” epidemic.
• Larson v. John Hancock Life Insurance Company (U.S.A), No RG16813803 (Cal. Super. Ct., Alameda Cty.). Girard Sharp served as co-counsel with Miller Schirger and Stueve Siegel on behalf of policyholders who alleged John Hancock overcharged
3 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 5 of 33
nearly 100,000 of its insureds, depriving owners of the full benefits of the premium dollars they paid over many years. The Larson action settled for $59 million.
• In re Peregrine Financial Group Customer Litigation No. 1:12-cv-5546 (N.D. Ill.). As co-lead counsel, Girard Sharp prosecuted this litigation on behalf of investors who lost millions in the collapse of a commodities futures merchant. The litigation generated recoveries of more than $75 million. The court wrote that counsel “conferred an impressive monetary benefit on the Settlement Class: the funds recovered from U.S. Bank are substantial—both in absolute terms and when assessed in light of the risks of establishing liability and damages.”
• Paeste v. Government of Guam, No. 1:11-cv-00008 (D. Guam). The court issued a permanent injunction against the government of Guam requiring the timely payment of refunds of the Guam Territorial Income Tax. Plaintiffs represented by Girard Sharp and local counsel in Guam challenged the government’s refund program, pursuant to 42 U.S.C. § 1983, as a violation of equal protection and asserted claims under the Organic Act of Guam. The Ninth Circuit affirmed the district court’s orders, rejecting Guam’s sovereign immunity and subject matter jurisdiction arguments. 798 F.3d 1228, 1234 (9th Cir. 2015), cert. denied, 136 S. Ct. 2508 (2016).
• In re Lehman Brothers Holdings Securities & ERISA Litigation, No. 09-MD-2017 (S.D.N.Y.). I served as one of four attorneys appointed to manage MDL proceedings arising out of the collapse of Lehman Brothers Holdings, Inc., the largest bankruptcy in American history. Girard Sharp also served as class counsel for a certified class of retail investors in Lehman-issued principal protection notes sold by UBS Financial Services. The Lehman litigation yielded $735 million in recoveries.
Time and Expenses Dedicated to This Case
7. The procedural history of this case and the services rendered by attorneys at Girard
Sharp and the other firms representing the class are accurately described in the Memorandum in
Support of the Motion, and the Declaration of Norman E. Siegel submitted in support thereof. A brief overview focusing on Girard Sharp’s contributions is provided below.
8. As part of preparing this declaration, I reviewed the complete set of time records maintained by Girard Sharp in its time and billing system. From the beginning of this case Girard
Sharp used the firm’s standard billing practices to track and maintain contemporaneous time records for all timekeepers in 6-minute increments. Through July 11, 2021, Girard Sharp has
4 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 6 of 33
expended over 865 hours prosecuting this action, all of which I believe added value to Plaintiff’s case and were reasonably necessary to give Plaintiff and the class members the best possible chance for a favorable outcome.
9. The time and resources that Girard Sharp dedicated to prosecuting and resolving this case precluded the firm from pursuing other legal work. All of this time is of the kind and character that we normally bill to paying clients, and that we normally track and seek to be paid for at the conclusion of successful contingency litigation. Girard Sharp, along with its co-counsel, staffed and managed this litigation as efficiently as possible. We did not duplicate responsibilities and assigned work to qualified professional staff rather than lawyers where possible.
10. The hours we applied to this case were reasonably expended on matters relevant and necessary to the successful prosecution of this litigation. Work done by Girard Sharp includes the initial screening interviews of plaintiff Roy Spegele, and review of his USAA policy. Girard
Sharp also took the lead on communicating with Mr. Spegele, keeping him apprised of the litigation’s progress and his responsibilities as class representative, and obtaining his input on and approval of strategic decisions. Girard Sharp coordinated Class Counsel’s discussions with Mr.
Spegele regarding his facts and claims and researched relevant legal principles in preparing his initial complaint. Girard Sharp also consulted and met in person with experts to develop background information relevant to the theory of the case.
11. Girard Sharp participated in briefing Plaintiff’s opposition to several challenges raised by USAA to Plaintiff’s claims, including its unsuccessful Rule 12(e) motion. Doc. 34.
Girard Sharp prepared several sets of written discovery requests and initial disclosures, negotiated with defense counsel to refine document search terms, and negotiated case scheduling with defense
5 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 7 of 33
counsel. In addition, we prepared and negotiated an ESI and document production protocol and protective order with defense counsel.
12. Further, in conjunction with co-counsel, Girard Sharp reviewed tens of thousands of documents that USAA produced. Girard Sharp also coordinated responses to plaintiff-directed discovery, working closely with Mr. Spegele to obtain and review his relevant documents, prepare his responses and objections to USAA’s discovery requests, and prepare and represent him at his deposition.
13. Girard Sharp worked with co-counsel to prepare class certification briefing and supporting documents. After the Court certified the Class, Girard Sharp researched and drafted arguments in response to USAA’s Rule 23(f) petition to appeal the Court’s order.
14. Girard Sharp participated in settlement negotiations and mediation and follow up sessions. In addition to our work on the settlement papers once the parties reached an agreement in principle, we communicated with Mr. Spegele during the mediation process and updated him on the progress of settlement discussions and proposals.
15. If this Court requests Class Counsel to do so, detailed billing records will be provided for in camera review. Girard Sharp will continue to expend time and resources on this case, including to administer the distribution of the settlement fund.
16. In coordination with co-counsel, Girard Sharp has diligently prosecuted this case and devoted the resources necessary to bring it to a successful conclusion. We do not rely on litigation funding, have demonstrated the willingness to fund complex class action cases to a successful conclusion in the past, and did so here. For example, in approving a settlement that
Girard Sharp negotiated on the first day of trial, a state court judge wrote: “It is abundantly clear that Class Counsel invested an incredible amount of time and costs in a case which lasted
6 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 8 of 33
approximately 10 years with no guarantee that they would prevail. . . . Simply put, Class Counsel earned their fees.” Skold v. Intel Corp., No. 1-05-CV-039231 (Cal. Super. Ct., Santa Clara Cty.).
17. Girard Sharp incurred $45,022.24 in costs and expenses in furtherance of this litigation that were reasonably necessary to its successful prosecution and settlement. These costs and expenses are accurately summarized in the table below, and we respectfully request that the
Court approve their reimbursement.
Expense Category Girard Sharp
Court Costs $200.00 Expert Fees $17,980.00 Online Legal Research $1,424.93 Photocopy Charges $1,431.90 Postage/Delivery $722.66 Process Fees $166.55 Transcription Fees $17,160.74 Travel Expenses $5,773.80 Long Distance $161.66 TOTAL $45,022.24
I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct.
Executed this 14th day of July, 2021.
Daniel C. Girard
7 Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 9 of 33 EXHIBIT 1
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 10 of 33
Firm Resume
Girard Sharp is a national litigation firm representing plaintiffs in Partners class and collective actions in federal and state courts. The firm Daniel Girard p. 2 Dena Sharp p. 4 serves individuals, institutions and business clients in cases Adam Polk p. 5 involving consumer protection, securities, antitrust, privacy, and Jordan Elias p. 6 whistleblower laws. Scott Grzenczyk p. 7 Simon Grille p. 7 Our clients range from individual consumers and small businesses Associates to Fortune 100 corporations and public pension funds. We have Makenna Cox p. 8 recovered over a billion dollars on behalf of our clients in class Mani Goehring p. 8 actions and non-class cases. In addition to litigation, our firm also Trevor Tan p. 8 provides consulting and strategic counseling services to Peter Touschner p. 9 institutional clients and professionals in securities litigation, and Tom Watts p. 9 corporate governance. We are committed to achieving favorable Erika Garcia p. 10 Gina Kim p. 10 results for all of our clients in the most expeditious and Nina Gliozzo p. 11 economical manner possible. Mikaela Bock p. 11 Kai Lucid p. 11 Girard Sharp has been distinguished as a Tier 1 law firm for Of Counsel plaintiffs’ mass tort and class action litigation in the “Best Law Michael Danko p. 12 Firms” list in the survey published in the U.S. News & World Kristine Meredith p. 13 Report’s Money Issue. The National Law Journal (NLJ) has named Girard Sharp to its elite “Plaintiffs’ Hot List,” a selection of top U.S. plaintiffs’ firms recognized for wins in high-profile cases. In 2020, Girard Sharp was honored with the Daily Privacy Violations p. 13 Journal’s “Top Boutiques in California” award. Girard Sharp Deceptive Trade Practices p. 16 also was honored as the 2019 Elite Trial Lawyers winner in the Defective Products p. 17 category of Insurance Litigation and as a finalist in Consumer Other Consumer Matters p. 19 Securities & Financial Fraud p. 21 Protection Litigation, Pharmaceutical Litigation, and Products Mass Tort p. 23 Liability Litigation. Antitrust p. 24 Government Reform p. 24 Nine of the firm’s attorneys have been selected as Northern California Super Lawyers and Rising Stars. Two of the firm’s senior attorneys, Daniel Girard and Michael Danko, have been recognized among the “Top 100 Super Lawyers” in Northern California, and were selected by their peers for The Best Lawyers in America. Best Lawyers also designated Mr. Girard as the 2013 “Lawyer of the Year” in San Francisco for class action litigation. Mr. Girard has earned an AV-Preeminent rating from Martindale- Hubbell, recognizing him in the highest class of attorneys for professional ethics and legal skills.
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 11 of 33
ATTORNEYS
Partners
Daniel Girard serves as the firm’s managing partner and coordinates the prosecution of the various consumer protection, securities, and antitrust legal matters handled by the firm. Under Daniel Girard’s leadership, Girard Sharp has become one of the most respected and experienced class action law firms in the United States. Dan believes that, too often, our legal system favors companies and financial institutions over ordinary people. He founded the firm to provide individuals who work hard and play by the rules the same focused, dedicated representation enjoyed by corporations, banks, and insurance companies.
Dan is frequently appointed by courts to lead major complex cases. For example, he served as a lead lawyer for securities investors following the collapse of investment bank Lehman Brothers and oil and gas producer Provident Royalties. He served as lead counsel for commodities investors following the failure of the Peregrine Financial Group. Dan has successfully prosecuted numerous cases for violations of consumer fraud, predatory lending, and unfair competition laws.
Dan’s current case work includes serving as sole lead counsel in the United States Office of Personnel Management Data Breach class action and in the Woodbridge Investments Litigation, and one of the lead attorneys in the USC Student Health Center Litigation.
Dan’s past and present clients include the California Teachers Retirement System, the Kansas Public Employees Retirement System, the American Federation of Government Employees, Fireman’s Fund Insurance Company, Allianz Life Insurance Company, Nu Skin International Inc., and celebrity photographer Gunter Sachs.
Dan has served on several United States Judicial Conference committees. He was appointed by Chief Justice William H. Rehnquist to the United States Judicial Conference Advisory Committee on Civil Rules and served from 2004 through 2010. Chief Justice John G. Roberts appointed Dan to the Standing Committee on Practice and Procedure in 2015 and reappointed him to a second term in 2018.
Dan is a member of the Council of the American Law Institute and currently serves as Chair of the Audit Committee. In addition, he has served as a member of the faculty on several Federal Judicial Programs for federal judges. Dan served on the Advisory Board for the Duke Law School Center for Judicial Studies and the Institute for the Advancement of the American Legal System. He is a member of the Business Law Section of the American Bar Association. He is past Chair of the Business Law Section’s Subcommittee on Class Actions, Co-Chair of the Business and Corporate Litigation Committee’s Task Force on Litigation Reform and Rule Revision, and Vice-Chair of the Business and Corporate Litigation Committee.
Dan’s article, Limiting Evasive Discovery: A Proposal for Three Cost-Saving Amendments to the Federal
GIRARD SHARP FIRM RESUME Page 2 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 12 of 33
Rules, 87 Denver Univ. L. Rev. 473 (2010), proposed several rule amendments that were ultimately adopted in Federal Rule of Civil Procedure 34(b)(2). Other published articles include: Managez efficacement vos litiges d’affaires, Extrait du magazine, Décideurs N°121, November 2010, Stop Judicial Bailouts, The National Law Journal, December 1, 2008, and Billions to Answer For, Legal Times, September 15, 2008. His speaking engagements include the following: Panelist for COVID and the Courts Conference, Center on Civil Justice at NYU Law School, January 11, 2021; Panelist for First Annual Class Action Annual Case Law and Practices Review Bench-Bar Conference, James F. Humphreys Complex Litigation Center at the George Washington University Law School, November 12-13, 2020; Guest lecturer, Vanderbilt Law School, November 13, 2017; Co-chair for Judicial Training Symposium, Federal Judicial Center and Electronic Discovery Institute, October 2017; Panelist for “The Judicial Perspective and Rule 23 Committee Update,” Perrin Conferences’ Class Action Litigation Conference, May 31, 2017; Panelist for Multi-district Litigation Roundtable, The George Washington University, April 27-28, 2017; Panelists for “Precision Advocacy: Reinventing Motion Practice to Win,” Federal Bar Association, San Francisco Chapter, March 2017; Panelist for Class Action Settlements and Discovery presentations, HB Litigation Conferences, May 3, 2016; Panelist for Data Breach & Privacy presentation, HB Litigation Conferences, February 11, 2016; Panelist for “Hello ‘Proportionality,’ Goodbye ‘Reasonably Calculated,’” Joint Conference of ABA Section of Litigation and Duke Law Center for Judicial Studies, January 28, 2016; Invited Participant in Special MDL Conference, Duke Law Center for Judicial Studies, October 8, 2015; Co-panelist with Judge James P. O’Hara on Discovery Amendments to Federal Rules of Civil Procedure; Kansas City Metropolitan Bar Association, D. Kan., and W. D. of Mo., September 17, 2015; Panelist in Private Breakfast Seminar on Class Action Risk Mitigation Strategies, Lazareff LeBars, September 22, 2015; Invited Participant on Judicial Conference Advisory Committee on Civil Rules, Rule 23 Mini- Conference, September 11, 2015; Attorney Faculty in Managing Complex Litigation Workshop for US District Judges, Federal Judicial Center, August 25, 2015; Moderator and Panelist on panels addressing proposed Rule 23 amendments, Class Action Settlement Conference, Duke Law Center for Judicial Studies, July 2015; Panelist on Role of Consumer Class Actions in the Herbal Supplements Industry, HarrisMartin’s MDL Conference: Herbal Supplements Litigation, May 27, 2015; Panelist on Transferee Judge Case Management; Multidistrict Litigation Institute, Duke Law Center for Judicial Studies, April 9-10 2015; Roundtable Participant on Settlement Class Actions, George Washington University Law School, April 8, 2015; Lessons from Recent Data Breach Litigation, Western Trial Lawyers, February 26, 2015; Speaker in Privacy & Cybersecurity Webinar, State Bar of California, February 24, 2015; Panelist on Preservation Issues, Proportionality Discovery Conference, Duke Law Center for Judicial Studies, November 13-14, 2014; Roundtable Participant on Public and Private Enforcement after Halliburton, ATP and Boilermakers, Duke Law Center for Judicial Studies, September 26, 2014; Co-panelist on Consolidation and Coordination in Generic Drug Cases, HarrisMartin’s Antitrust Pay for Delay Conference, September 22, 2014; Guest Lecturer on Civil Litigation Seminar, UC Berkeley, Hastings School of Law, September 18, 2014; Panel Moderator on Selection and Appointment of Plaintiffs’ Steering Committee, MDL Best Practices, Duke Law Center for Judicial Studies, September 11-12, 2014; Panel on Shareholder Class Action Lawsuits under the New Companies Act, Joint Conference of the Society of Indian Law Firms and the American Bar Association, Delhi, India, February 14-15, 2015; Panelist on Symposium on Class Actions, University of Michigan Law School Journal of Law Reform, March 2013; Co-taught Seminar on Class Actions and Complex Litigation, Duke University Law School, January 2013; Recent Developments in U.S. Arbitration Law, Conference on Business Law in Africa, Abidjan, Côte d’Ivoire, October 2012; Bringing and Trying a Securities Class Action Case, American Association for Justice 2012 Annual Convention, July 2012; Panel on Class Actions, U.S. Judicial Conference Standing Committee on Rules of Practice and Procedure, Phoenix, January 2012; Panel on Paths to (Mass)
GIRARD SHARP FIRM RESUME Page 3 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 13 of 33
Justice, Conference on Globalization of Class Actions and Mass Litigation, The Hague, December 2011; Contentieux et Arbitrage International: les bons réflexes à acquérir (Litigation and International Arbitration: acquiring the right reflexes), Paris, France, March 2011; Panel on Proposals for Rule Amendments and Preservation Obligations, U.S. Judicial Conference Advisory Committee on Rules of Practice and Procedure, January 2011.
Dan has served as a guest lecturer on class actions and complex litigation at the UC Davis School of Law, UC Berkeley School of Law, UC Hastings College of the Law, Vanderbilt Law School and Stanford Law School. Dan has been consistently honored as a Northern California Super Lawyer (2007- 2018). He was educated in France as well as the United States and is fluent in French.
Dena Sharp is a problem solver who simplifies even the most complicated issues in class action litigation. Dena currently serves as co-lead counsel in the In re Juul Labs Inc. multidistrict litigation and in the In re California Gasoline Spot Market Antitrust Litigation in the Northern District of California. She also represents prescription drug purchasers as co-lead counsel in the In re Restasis Antitrust Litigation and serves as a member of the End-Payer Steering Committee in the In re Generic Pharmaceuticals Pricing Antitrust Litigation. In addition, Dena represents clients of a fertility center whose eggs and embryos were affected by a freezer tank malfunction in San Francisco.
As co-lead counsel in In re Lidoderm Antitrust Litigation, a “pay-for delay” antitrust case that settled for $104.75 million on the eve of trial, Dena worked with her team to win class certification, defeat summary judgment, and obtain the largest recovery for a class of end-payers in similar federal litigation in more than a decade. She has also played a key role in a variety of other high-profile cases, including representing investors in litigation arising from Lehman Brothers’ bankruptcy and in matters involving Ponzi schemes and accounting fraud.
The National Law Journal has recognized Dena as an “Elite Woman of the Plaintiffs’ Bar” for two consecutive years, honoring her as one of only a handful of lawyers nationwide who has “consistently excelled in high-stakes matters on behalf of plaintiffs” over the course of her career. In 2021, Dena was named one of the “Best Lawyers in America.” Dena was honored as a Northern California Rising Star from 2009 to 2016 and has been recognized as a Northern California Super Lawyer since 2017.
Outside the courtroom, Dena is co-author of the widely cited Sedona Principles: Best Practices and Principles for Electronic Document Production (Third Edition). She serves on the board of directors of the Impact Fund, a public interest nonprofit, and as vice chair of the Advisory Council for the Duke Law School Center for Judicial Studies. An editor of the Duke Law Proportionality Guidelines and Best Practices, Dena is also co-author of a chapter in a forthcoming ABA book on class action practice and strategy. In 2018, Dena was elected to the American Law Institute. Dena also routinely speaks on issues pertaining to civil procedure and electronic discovery. Most recently she served as co-chair and a faculty member of the Fourth Annual Judicial Training Symposium for Federal Judges, a conference co-hosted by the Federal Judicial Center and Electronic Discovery Institute.
A first-generation American, Dena is fluent in Spanish and German.
GIRARD SHARP FIRM RESUME Page 4 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 14 of 33
Adam Polk is a partner at Girard Sharp who takes a client-focused approach to each matter he handles. A devoted advocate, Adam rolls up his sleeves and does whatever it takes to give each of his clients the high-quality representation they deserve. Concentrating his practice on complex consumer, securities, and antitrust class actions, Adam’s experience covers all aspects of civil litigation, from initial case investigation and complaint preparation through discovery and trial.
Adam currently serves as co-lead counsel in: (1) In re Subaru Battery Drain Litigation (an ongoing consumer protection action concerning defective batteries in Subaru vehicles); and (2) In re Maxar Technologies Inc. Shareholder Litigation and In re Hewlett Packard Enterprise Co. Shareholder Litigation (actions alleging violations of the Securities Act of 1933). He also serves as part of the co-lead counsel teams in In re California Gasoline Spot Market Antitrust Litigation (an antitrust class action alleging manipulation of the spot market for gasoline in California); In re Pacific Fertility Center Litigation (a product defect class action related to the alleged failure of an IVF tank holding human eggs and embryos); In re PFA Insurance Marketing Litigation (a consumer protection class action alleging the unfair and deceptive sale of life insurance); and as an executive committee member in In re Allergan Biocell Textured Breast Implant Products Liability Litigation (a multidistrict litigation centering on allegedly defective breast implants pending in the District of New Jersey).
Recently, Adam served on the lead counsel teams in several cases that resolved favorably for his clients, including Bentley v. LG Electronics U.S.A. Inc. and Sosenko v. LG Electronics U.S.A. Inc. (class actions alleging that LG’s refrigerators are defective and prone to premature failure); and, In re Nexus 6P Products Liability Litigation and Weeks v. Google, LLC (two consumer class actions against Google relating to defective mobile phones, which resolved for a combined $17 million). Adam was also instrumental in achieving substantial settlements for his clients in In re Sears Holdings Corporation Stockholder and Derivative Litigation ($40 million settlement) and Daccache v. Raymond James Financial, Inc. ($150 million partial settlement).
Before joining the firm, Adam externed for the Honorable Sandra Brown Armstrong and the Honorable Claudia Wilken, of the U.S. District Court for the Northern District of California.
Adam is chair of the American Bar Association’s Class Action and Derivative Suits committee, for which he is a frequent contributor of content regarding emerging issues in class action litigation. His articles include: Ninth Circuit: Central District of California’s 90-Day Deadline to Move for Class Certification Incompatible with Rule 23, ABA Practice Points, October 2018, Fourth Circuit, No Presumption of Timeliness Where One Class Action Plaintiff Moves to Intervene in Another Class Action Prior to the Opt-Out Deadline, ABA Practice Points, July 2018, California Supreme Court: Unnamed Class Members Must Intervene or Move to Vacate to Gain Right to Appeal Class Settlements, ABA Practice Points, May 2018, Tilting at Windmills: Nationwide Class Settlements After In re Hyundai and Kia Fuel Economy Litigation, ABA Section of Litigation, Class Actions & Derivative Suits, February 2018 (co-author), “Ninth Circuit.” Survey of Federal Class Action Law, ABA 2018 (co-author), Ninth Circuit: No Formal Motion for Reconsideration Needed to Toll 23(f) Deadline, ABA Practice Points, September 2017, Eighth Circuit Clarifies CAFA’s Local-Controversy Exception Applies to Local Citizens, Not Mere Residents, ABA Practice Points, May 2017, Shrink-Wrap Arbitration Clauses Must Be Conspicuously Displayed: Ninth Circuit, ABA Practice Points, April 2017, Predispute Arbitration Clauses Targeting Public Injunctive Relief Are Unenforceable: CA Supreme Court, ABA Practice
GIRARD SHARP FIRM RESUME Page 5 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 15 of 33
Points, April 2017, Ninth Circuit: Cy Pres Awards Must be Tailored to Plaintiffs’ Claims to Justify a Class Action Release, ABA Practice Points, February 2017, Rule 23 Does Not Include an ‘Administrative Feasibility Requirement: Ninth Circuit, ABA Practice Points, January 2017.
Adam has been selected by his peers as a Northern California Super Lawyer, Rising Star, each year since 2013. Adam has been named to the National Trial Lawyers “Top 40 Under 40” for two consecutive years. In 2021, Adam was named to Best Lawyers “Ones to Watch.”
Jordan Elias, a partner in the firm, represents consumers and small businesses injured by corporate violations. He has pursued civil claims against monopolists, price-fixing cartels, oil and tobacco companies, and the nation’s largest banks. Over the past decade, Jordan has also taken on pharmaceutical companies for collusion leading to inflated prescription drug prices.
Jordan served as head writer for the plaintiffs in the wrongful death cases arising from sudden unintended acceleration of Toyota vehicles. He was the primary author of the plaintiffs’ briefs in the California Supreme Court in the landmark Cipro “pay-for-delay” antitrust case, and gained a reversal for the plaintiff in Pavoni v. Chrysler Group, LLC, 789 F.3d 1095 (9th Cir. 2015). Jordan also spearheaded the appeal in In re U.S. Office of Personnel Management Data Security Breach Litigation, 928 F.3d 42 (D.C. Cir. 2019), where the court reversed the dismissal of a case brought on behalf of 21.5 million federal government workers whose sensitive private information was hacked. More recently, Jordan argued the successful appeal in Velasquez-Reyes v. Samsung Electronics America, Inc., No. 17-56556 (9th Cir. Sept. 17, 2019), where the Ninth Circuit held that Samsung could not compel individual arbitration of false advertising claims even though its smartphone packaging had an arbitration clause.
Jordan received a California Lawyer Attorney of the Year (CLAY) award in 2016. He has been recognized as a Northern California Super Lawyer, Appellate, since 2014. A former chief arbitrator for the San Francisco Bar Association’s attorney-client fee disputes program, Jordan now serves as the program’s vice-chair.
In 2017, Jordan was elected to the American Law Institute. He authored the Supreme Court chapter, and co-authored the Ninth Circuit chapter, in the American Bar Association’s Survey of Federal Class Action Law. He also co-authored the chapter on antitrust standing, causation and remedies in California State Antitrust and Unfair Competition Law (Matthew Bender 2019), the chapter on CAFA exceptions in The Class Action Fairness Act: Law and Strategy (ABA 2d ed. 2021), and the chapter on jurisdiction and preemption in California Class Actions and Coordinated Proceedings (Matthew Bender 2015). Jordan wrote the law review articles “More Than Tangential”: When Does the Public Have a Right to Access Judicial Records?, Journal of Law & Pol’y (forthcoming); Course Correction—Data Breach as Invasion of Privacy, 69 Baylor L. Rev. 574 (2018), Cooperative Federalism in Class Actions, 86 Tenn. L. Rev. 1 (2019), and The Ascertainability Landscape and the Modern Affidavit, 84 Tenn. L. Rev. 1 (2017). His bar journal articles include “Putting Cipro Meat on Actavis Bones,” 24 No. 2 Competition 1, State Bar of California (2015), “Does Bristol-Myers Squibb Co. v. Superior Court Apply to Class Actions?” ABA Section of Litigation, Class Actions & Derivative Suits (Feb. 25, 2020) (co-author), and “Tilting at Windmills: Nationwide Class Settlements After In re Hyundai and Kia Fuel Economy Litigation,” ABA Section of Litigation, Class Actions & Derivative Suits (Feb. 28, 2018) (co-author).
GIRARD SHARP FIRM RESUME Page 6 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 16 of 33
Jordan was awarded the Field Prize in the humanities at Yale College, where he was an all-Ivy League sprinter. While attending Stanford Law School, he served on the law review and externed for the Honorable Charles R. Breyer of the Northern District of California. After law school, Jordan clerked for the late Judge Cynthia Holcomb Hall of the Ninth Circuit Court of Appeals. He then defended technology companies in securities and intellectual property cases at Wilson Sonsini Goodrich & Rosati, which honored him with the John Wilson Award for winning asylum for refugees from Haiti and Indonesia. Before joining Girard Sharp in 2015, Jordan practiced for seven years at Lieff Cabraser Heimann & Bernstein.
Scott Grzenczyk dedicates his practice to representing plaintiffs in antitrust and consumer protection matters. He has wide-ranging experience in all aspects of complex litigation and has served as a member of leadership teams that have recovered hundreds of millions of dollars for the firm’s clients. Scott brings a tireless work ethic and a practical, results-oriented approach to his cases.
For several years, Scott has represented union health and welfare funds in cases alleging that large, multinational drug companies illegally inflated the price of prescription drugs. Scott has helped achieve precedent-setting recoveries, including a $104.75 million settlement shortly before trial in a case concerning the prescription drug Lidoderm. He also plays a key role in the firm’s work in the In re Restasis Antitrust Litigation and In re Generic Pharmaceuticals Antitrust Litigation matters.
Scott led the firm’s litigation efforts in a class action filed by native inhabitants of Guam bringing due process and equal protection claims against the government of Guam. He also has a track record of successfully representing consumers, including car and cell phone purchasers, in cases involving fraud and unfair business practices. During law school, Scott successfully argued a precedent-setting immigration case before the U.S. Court of Appeals for the Ninth Circuit. He has been honored as a Rising Star by Northern California Super Lawyers every year since 2013. In 2020, Scott was honored as a recipient of the American Antitrust Institute’s “Outstanding Antitrust Litigation Achievement by a Young Lawyer” award.
Simon Grille, a partner in the firm, is committed to seeking justice for individuals harmed by corporate wrongdoing. He represents plaintiffs in class and complex litigation concerning consumers’ rights and financial fraud. He has taken a lead role in consumer class actions against some of the largest technology companies in the world. Simon has been named a Rising Star by Super Lawyers since 2017.
Simon approaches each case with an unwavering commitment to obtaining the best possible outcome for his clients. A creative problem-solver, Simon welcomes the challenges of complex civil litigation. He has substantial experience in all aspects of civil litigation.
GIRARD SHARP FIRM RESUME Page 7 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 17 of 33
Before joining Girard Sharp, Simon worked at a prominent Bay Area law firm, where he represented victims of toxic exposure in complex civil litigation. He also has experience working in- house at a multinational company and as an extern for the Honorable Arthur S. Weissbrodt of the United States Bankruptcy Court for the Northern District of California.
Associates
Makenna Cox handles all aspects of complex class action litigation, including consumer protection cases against some of the nation’s largest corporations.
Before joining Girard Sharp, Makenna advocated for musicians’ rights and co-authored comments filed with the Federal Communications Commission. She worked during law school at an appellate firm in Los Angeles.
Makenna served as Senior Production Editor on the Loyola of Los Angeles Entertainment Law Review. She received her B.A. with honors from the University of San Francisco.
Mani Goehring strives to provide clients with prompt attention, reliable guidance, and excellent outcomes. She represents consumers in class action and other complex litigation seeking to hold companies and institutions accountable for misconduct. From intake to resolution, Mani knows that responsiveness and tenacity are key to obtaining favorable results.
Mani previously worked on criminal matters at the Antitrust Division of the U.S. Department of Justice. She also interned for the U.S. Attorney’s Office, the San Francisco District Attorney’s Office, and the American Civil Liberties Union of Northern California.
GIRARD SHARP FIRM RESUME Page 8 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 18 of 33
Trevor Tan focuses on consumer protection class actions and other complex civil litigation, specializing in legal research and writing. He was honored as a Rising Star by Super Lawyers beginning in 2019.
Trevor has considerable experience working in judicial chambers. Before joining Girard Sharp, he clerked for the Honorable Fernando M. Olguin of the U.S. District Court for the Central District of California. Trevor also clerked for Judges of the Los Angeles County Superior Court and the court’s Appellate Division.
Trevor received his J.D. from the University of Chicago Law School in 2011. During law school, he was an extern for the Honorable George H. Wu in the Central District of California and a law clerk with the Illinois Attorney General. In addition, he served as a child advocate with the school’s immigrant child advocacy clinic and worked on behalf of immigrant children from China. After law school, Trevor represented unaccompanied minors in removal proceedings as a fellow at the Young Center for Immigrant Children’s Rights.
Trevor received his undergraduate degree with honors in political science from the University of California, Irvine in 2006.
Peter Touschner handles complex class action e-discovery matters for the firm. Before joining Girard Sharp, Peter represented class members harmed by Volkswagen’s emissions-related fraud, as well as insureds who were charged inflated premiums due to the anticompetitive practices of a hospital conglomerate.
Peter previously worked as a Research Attorney at the Center for Democracy and Technology, where he investigated deceptive online advertising practices and evaluated proposed cybersecurity legislation. During law school, Peter externed for U.S. District Judge Charles R. Breyer and served as Senior Articles Editor for the Hastings Science and Technology Law Journal.
Tom Watts focuses his practice on complex antitrust litigation against monopolists and other wrongdoers. Before joining the firm, Tom clerked for the Honorable Jane Roth on the Third Circuit and the Honorable Robert McDonald of the Maryland Court of Appeals, assisting in a wide variety of appellate and state supreme court matters.
Tom earned a J.D. and master’s in public policy magna cum laude from Harvard Law School and Harvard Kennedy School. During law school, he gained experience in litigation, appeals, and policy advocacy by interning with the U.S. Department of Justice’s Civil Appellate Section, Santa Clara County’s Impact Litigation and Social Justice Section, and Public Advocates.
GIRARD SHARP FIRM RESUME Page 9 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 19 of 33
Tom received his B.A. from the University of California, Berkeley, with High Distinction in General Scholarship. He double majored in Classical Languages, in which he received High Honors, and Astrophysics, for which he was the undergraduate commencement speaker.
Erika Garcia handles complex e-discovery matters for the firm. She is admitted to practice in California and New York.
Before joining Girard Sharp, Erika worked at a large international law firm with a focus on class action and commercial litigation as well as regulatory investigations. She has negotiated and drafted numerous confidentiality agreements in the mergers and acquisitions setting.
Erika is fluent in Spanish and previously served as a volunteer advocate in Ecuador for refugees from other Latin American countries.
Gina Kim focuses her practice on antitrust and securities litigation. She has represented plaintiffs in multidistrict class actions in the pharmaceutical, finance, and internet commerce sectors. Prior to joining Girard Sharp, Gina was a staff attorney at a boutique antitrust class action firm representing consumers in case involving the airline industry, the automotive parts industry, and foreign exchange markets. She also represented institutional investors in securities litigation at a leading New York-based plaintiff-side firm.
Gina serves the legal community as a member of the San Diego County Bar Association and the Lawyers Club of San Diego, and previously as Vice President of the Korean-American Bar Association of San Diego. She also serves on the board of the Princeton Club of San Diego and is a lifelong member of Mensa. She earned her J.D. from the University of San Diego School of Law and her A.B. from Princeton University.
GIRARD SHARP FIRM RESUME Page 10 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 20 of 33
Nina Gliozzo works to seek justice for plaintiffs in complex litigation nationwide. Before joining Girard Sharp, Nina clerked for the Honorable Marsha S. Berzon of the U.S. Court of Appeals for the Ninth Circuit.
Nina earned her J.D., magna cum laude, from the University of California, Hastings College of Law. During law school she externed for the Honorable Charles R. Breyer, U.S. District Judge for the Northern District of California. She also served as Executive Symposium Editor for the Hastings Law Journal, organizing a symposium featuring a conversation with former Supreme Court Justice Anthony M. Kennedy.
Mikaela Bock advocates for mass tort victims and injured consumers in complex civil litigation.
During law school, Mikaela externed in the Northern District of California and was the national champion of the Evan A. Evans Constitutional Law Moot Court Competition. She previously worked for Teach for America, teaching 7th graders in East Palo Alto, California.
Kai Lucid focuses his practice on representing clients in investment and financial matters. Before joining Girard Sharp, Kai worked as an associate at the Palo Alto office of a renowned corporate firm based on Wall Street.
Kai earned his J.D., magna cum laude, from the University of California, Hastings College of the Law. During law school he externed for two U.S. District Judges for the Northern District of California. Kai also served as Executive Articles Editor for the Hastings Law Journal, determining which articles would be published in the Journal.
GIRARD SHARP FIRM RESUME Page 11 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 21 of 33
Of Counsel
Michael S. Danko is a renowned trial lawyer with more than 25 years of legal experience. Mike represents individuals who have suffered catastrophic personal injuries, as well as families of wrongful death victims in cases involving product defects, defective medications and medical devices, airplane and helicopter accidents, and dangerous structures. He has tried cases in state and federal courts throughout the country and has won numerous eight-figure verdicts on behalf of his clients.
Mike represents dozens of victims of a Pacific Gas & Electric gas line explosion and serves on the Plaintiffs’ Steering Committee in a California state coordinated proceeding San Bruno Fire Cases, JCCP No. 4648. He also serves on the Science Committee for Plaintiffs in In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, MDL No. 2100.
In 2009, Mike won a $15 million jury verdict for a client injured by a defective aircraft part, which earned him a nomination for 2009 California Trial Lawyer of the Year by the Consumer Attorneys of California.
Mike’s trial advocacy has helped bring about significant reforms and changes to corporate policies. As lead counsel in In re Deep Vein Thrombosis Litigation, MDL No. 1606 (N.D. Cal.), he represented more than one hundred air travelers who suffered strokes, pulmonary emboli, or heart attacks as a result of airline-induced blood clots. He developed theories of liability and proof regarding the cause of his clients’ injuries that led to virtually every major air carrier advising air travelers of the risks of deep vein thrombosis and measures to mitigate those risks. Mike also represented parents of children who were injured or killed by a popular candy made by a foreign manufacturer. His work in proving that the candy’s unusual ingredients and consistency made it a choking hazard resulted in the candy being removed from Costco and Albertson’s stores nationwide, and helped persuade the FDA to ban the candy from further import into the United States.
Mike has been named a Northern California Super Lawyer each year since the award’s inception in 2004. He is a Lawdragon 500 finalist. In 2010, Mike was named one of the Best Lawyers in America. He is a member of the American Association for Justice, the Lawyer Pilots Bar Association and the Consumer Attorneys of California, where he serves on the board of governors. Mike received his A.B. degree from Dartmouth College, magna cum laude, in 1980, and earned his J.D. from the University of Virginia School of Law in 1983.
Kristine Keala Meredith is a trial attorney specializing in product liability litigation. Kristine served as co-lead counsel with Michael Danko representing more than one hundred air travelers who suffered strokes, pulmonary emboli, or heart attacks as a result of airline-induced blood clots in In re Deep Vein Thrombosis Litigation, MDL No. 1606.
GIRARD SHARP FIRM RESUME Page 12 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 22 of 33
Kristine served on the Law and Motion committee in In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, MDL No. 2100, where she assisted in the successful opposition to 15 Daubert motions in fewer than three weeks. Before she began representing plaintiffs, Kristine worked on the national defense counsel teams for medical device manufacturers in multi-district litigation including In re Silicone Gel Breast Implants Product Liability Litigation, MDL No. 926, and In re Orthopedic Bone Screw Product Liability Litigation, MDL No. 1014. She also represented doctors and hospitals in defense of medical malpractice actions, where she worked with some of the world's leading medical experts.
In 2010, Kristine was named a Northern California Super Lawyer. She is currently an officer of the American Association for Justice and the San Mateo County Trial Lawyers Association. She is also a member of the San Francisco Trial Lawyers Association and the Consumer Attorneys of California. She is a former chair of the Minority Issues Committee of the San Francisco Bar Association Barrister Club.
Kristine obtained her B.S. with honors from the University of California at Davis and was awarded a scholarship to attend Brigham Young University’s J. Reuben Clark Law School. While in law school, she was awarded the Distinguished Student Service Award and spent a semester at Howard University Law School in Washington, D.C., as a member of the faculty/student diversity exchange.
FAVORABLE RESULTS AND SIGNIFICANT RECOVERIES
Privacy Violations
In re Yahoo Mail Litigation, No. 5:13-cv-04980-LHK (N.D. Cal.). Girard Sharp represented non-Yahoo email subscribers whose emails with Yahoo email subscribers were illegally intercepted and scanned by Yahoo. The court certified a nationwide class for injunctive-relief purposes, issuing an opinion that has been widely cited. 308 F.R.D. 577 (N.D. Cal. 2015). With cross-motions for summary judgment fully briefed, the parties settled. Yahoo agreed to restructure its email delivery architecture to ensure that incoming and outgoing email would no longer be intercepted while in transit—bringing its email scanning practices into compliance with applicable law—and to disclose its email scanning practices on its website. The court, in approving the settlement, noted that “Class Counsel achieved these benefits only after several years of litigation,” which the court found was conducted “in an effective and cost-efficient manner.” 2016 WL 4474612, at *10 (N.D. Cal. Aug. 25, 2016).
In re Lenovo Adware Litigation, MDL No. 2624 (N.D. Cal.). Girard Sharp is co-lead counsel for a class of computer purchasers whose online activities were surreptitiously monitored by pre- installed software. The undisclosed spyware degraded the computers’ performance, operating continuously in the background as it analyzed browsing activity and injected ads into visited webpages. The Honorable Ronald M. Whyte certified a nationwide indirect purchaser class for trial. 2016 WL 6277245 (N.D. Cal. Oct. 27, 2016). After the defendants agreed to a non-
GIRARD SHARP FIRM RESUME Page 13 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 23 of 33
reversionary cash settlement, Girard Sharp helped design a claims process that allowed each participating class member to choose between (1) completing a short online claim form to receive an estimated $40 cash payment for every purchased computer, or (2) submitting receipts or other documentation to recover sums actually expended as a result of the spyware being on the computer, up to $750. The Honorable Haywood S. Gilliam granted final approval of the settlement, see 2019 WL 1791420 (N.D. Cal. Apr. 24, 2019), and Girard Sharp continues to supervise distribution of the fund.
Corona v. Sony Pictures Entertainment, No. 2:14-cv-09600-RGK-SH (C.D. Cal.). Girard Sharp served as co-lead counsel in a class action brought on behalf of 15,000 current and former employees of Sony Pictures Entertainment following a cyberattack attributed to North Korean intelligence as retaliation for release of the film The Interview. In April 2016, the court approved a class settlement that reimbursed actual losses in full and provided extended credit monitoring—a structure adopted in subsequent data breach settlements.
In re The Home Depot, Inc. Customer Data Security Breach Litigation, MDL No. 2583 (N.D. Ga.). The Honorable Thomas W. Thrash, Jr. appointed Girard Sharp to the Plaintiffs’ Executive Committee in this MDL arising from a breach of Home Depot customers’ credit and debit card information. Under the court-approved settlement, class members with documented claims could receive up to $10,000, and the defendant paid an additional $6.5 million to provide 18 months of identity monitoring services for the benefit of class members. 2016 WL 6902351, at *4 (N.D. Ga. Aug. 23, 2016). Judge Thrash described the settlement as “an outstanding result for the Class in a case with a high level of risk,” id. at *5, and further noted that “Class Counsel obtained an exceptional result . . . .” 2017 WL 9605208, at *1 (N.D. Ga. Aug. 1, 2017).
In re Target Corp. Customer Data Security Breach Litigation, MDL No. 2522 (D. Minn.). Girard Sharp served on the Plaintiffs’ Steering Committee representing consumers whose personal and financial information was compromised in a breach of Target’s point-of-sale systems. After plaintiffs defeated Target’s motion to dismiss, see 66 F. Supp. 3d 1154 (D. Minn. 2014), the parties agreed to a class settlement that was approved by the MDL court and upheld on appeal, see 892 F.3d 968 (8th Cir. 2018). The settlement requires changes to Target’s information security practices and delivered cash recoveries to class members under a simplified claim procedure.
In re Experian Data Breach Litigation, No. 15-01592 (C.D. Cal.). Girard Sharp serves on the Plaintiffs’ Steering Committee in this litigation arising out of a breach of Experian’s electronic systems than compromised names, addresses, and social security numbers of T-Mobile subscribers. The Honorable Andrew J. Guilford in 2019 granted final approval of a settlement that established a $22 million fund and provided identity theft protection services for the benefit of class members.
In re Adobe Systems, Inc. Privacy Litigation, No. 5:13-cv-05226-LHK (N.D. Cal.). Girard Sharp was appointed as lead counsel in this consolidated litigation on behalf of consumers asserting privacy and consumer fraud claims arising from a 2013 data breach. Girard Sharp obtained a pivotal ruling when the court denied Adobe’s motion to dismiss for lack of standing, ruling that the Supreme Court’s decision in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), did not change existing standing jurisprudence. 66 F. Supp. 3d 1197 (N.D. Cal. 2014). Before this ruling, many data breach defendants had obtained dismissals for lack of standing based on Clapper. The Adobe ruling has been followed by a number of courts, including the Seventh Circuit Court of Appeals in Remijas v. Neiman Marcus Group, LLC. 794 F.3d 688, 693–94 (7th Cir. 2015).
GIRARD SHARP FIRM RESUME Page 14 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 24 of 33
Prather v. Wells Fargo Bank, N.A., No. 17-cv-00481 (N.D. Ill.). Girard Sharp served as co- lead counsel in an action alleging that Wells Fargo used an automatic telephone dialing system to repeatedly call the cellular phone numbers of persons with no prior affiliation with Wells Fargo. On December 10, 2019, the Honorable Manish S. Shah of the Northern District of Illinois granted final approval of a settlement that established a fund of $17,850,000 for class members.
Whitaker v. Health Net of California, Inc., No. 2:11-cv-00910-KJM-DAD (E.D. Cal.); Shurtleff v. Health Net of California, Inc., No. 34-2012-00121600-CU-CL (Cal. Super Ct. Sacramento Cty.). Girard Sharp served as co-lead counsel in this patient privacy action. On June 24, 2014, the court granted final approval of a settlement that provided class members with credit monitoring, established a $2 million fund to reimburse consumers for related identity theft incidents, and required material upgrades to and monitoring of Health Net’s information security protocols.
In re Sony BMG CD Technologies Litigation, No.1:05-cv-09575-NRB (S.D.N.Y.). Girard Sharp served as co-lead counsel for a class of consumers who alleged that Sony BMG incorporated “Digital Rights Management” software into its music CDs, violating the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., and rendering the consumers’ computers vulnerable to viruses and spyware. The firm negotiated a settlement that required Sony BMG to promptly recall all affected CDs and provide “clean” CDs and cash to class members.
In re Countrywide Financial Corp. Customer Data Security Breach Litigation, MDL No. 1988 (W.D. Ky.). Girard Sharp served on the Plaintiffs’ Executive Committee representing a class of millions of actual and potential customers of Countrywide whose personal information was stolen by a former Countrywide employee and then sold to other mortgage lenders. The class settlement approved by the court provided for free credit monitoring, reimbursement of out-of-pocket expenses incurred as a result of the theft, and reimbursement of up to $50,000 per class member for identity theft losses.
Smith v. Regents of the University of California, San Francisco, No. RG-08-410004 (Cal. Super Ct. Alameda Cty.). Girard Sharp represented a patient who alleged that UCSF’s disclosure of its patients’ medical data to outside vendors violated California’s medical privacy law. The firm succeeded in negotiating improvements to UCSF’s privacy procedures on behalf of a certified class of patients of UCSF Medical Center. In approving the stipulated permanent injunction, the Honorable Stephen Brick found that “Smith has achieved a substantial benefit to the entire class and the public at large.” Deceptive Trade Practices
In re Hyundai and Kia Horsepower Litigation, No. 02CC00287 (Cal. Super. Ct. Orange Cty.). Girard Sharp served as lead counsel in this coordinated nationwide class action against Hyundai for falsely advertising the horsepower ratings of more than 1 million vehicles over a ten-year period. The case was aggressively litigated on both sides over several years. In all, over 850,000 Hyundai vehicle owners received notice of the settlement, which was valued at $125 million and which provided cash and other benefits to class members.
In re Chase Bank USA, N.A. “Check Loan” Contract Litigation, No. 09-2032 (N.D. Cal.). Girard Sharp and several other firms led this nationwide class action alleging deceptive marketing
GIRARD SHARP FIRM RESUME Page 15 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 25 of 33
and loan practices by Chase Bank USA, N.A. After certifying a nationwide class, the Honorable Maxine M. Chesney granted final approval of a $100 million settlement benefiting Chase cardholders.
In re Hyundai and Kia Fuel Economy Litigation, No. 2:13-ml-2424 (C.D. Cal.). In a lawsuit alleging false advertising in connection with the fuel efficiency of various Hyundai and Kia models, the firm served as liaison counsel and in that capacity regularly reported to the court and coordinated a wide-ranging discovery process. The case resulted in a nationwide class action settlement with an estimated value of up to $120 million.
In re Providian Credit Card Cases, J.C.C.P. No. 4085 (Cal. Super. Ct. San Francisco Cty.). Girard Sharp served as court-appointed co-lead counsel in this nationwide class action brought on behalf of Providian credit-card holders. The suit alleged that Providian engaged in unlawful, unfair and fraudulent business practices in connection with marketing and assessing fees for its credit cards. The Honorable Stuart Pollack approved a $105 million settlement, plus injunctive relief—one of the largest class action recoveries in consumer credit-card litigation.
In re MCI Non-Subscriber Telephone Rates Litigation, MDL No. 1275 (S.D. Ill.). Girard Sharp served as co-lead counsel and recovered an $88 million settlement for MCI telephone subscribers who were charged rates and surcharges applicable to non-subscribers instead of the lower advertised rates. In approving the settlement, the Honorable David Herndon highlighted “the complexity of the issues involved; the vigorous opposition Plaintiffs’ counsel faced from sophisticated and well-funded Defendants represented by skilled counsel; the achievement of a very large cash settlement fund under these conditions”; and the “design and implementation of a computerized claims process, which appears to have been highly successful.” Daniel Girard argued the key motions in the case and designed the claim procedure.
Skold v. Intel Corp., No. 1-05-CV-039231 (Cal. Super. Ct., Santa Clara Cty.). Girard Sharp represented Intel consumers through a decade of hard-fought litigation, ultimately certifying a nationwide class under an innovative “price inflation” theory and negotiating a settlement that provided refunds and $4 million in cy pres donations. In approving the settlement, Judge Peter Kirwan wrote: “It is abundantly clear that Class Counsel invested an incredible amount of time and costs in a case which lasted approximately 10 years with no guarantee that they would prevail. . . . Simply put, Class Counsel earned their fees in this case.”
Steff v. United Online, Inc., No. BC265953, (Los Angeles Super. Ct.). This nationwide class action was brought against NetZero, Inc. and its parent, United Online, Inc. by former NetZero customers. Plaintiffs alleged that defendants falsely advertised their internet service as unlimited and guaranteed for a specific period of time. The Honorable Victoria G. Chaney of Los Angeles Superior Court granted final approval of a settlement that provided full refunds to customers whose services were cancelled, and which also placed restrictions on Defendants’ advertising.
Stoddard v. Advanta Corp., No. 97C-08-206-VAB (Del. Super. Ct.). This nationwide class action was brought on behalf of cardholders who were promised a fixed APR for life in connection with balance transfers, but whose APR was then raised pursuant to a notice of change in terms. The Honorable Vincent A. Bifferato appointed the firm as co-lead counsel and approved a $7.25 million settlement.
GIRARD SHARP FIRM RESUME Page 16 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 26 of 33
Khaliki v. Helzberg’s Diamond Shops, Inc., No. 11-0010-CV-W-NKL (W.D. Mo.). Girard Sharp and co-counsel represented consumers who alleged deceptive marketing in connection with the sale of princess-cut diamonds. The court approved a favorable settlement, recognizing “that Class Counsel provided excellent representation” and obtained “a favorable result relatively early in the case, which benefits the Class while preserving judicial resources.” The court further recognized that “Class Counsel faced considerable risk in pursuing this litigation on a contingent basis, and obtained a favorable result for the class given the legal and factual complexities and challenges presented.”
In re Tyson Foods Inc., Chicken Raised Without Antibiotics Consumer Litigation, No. RDB- 08- 1982 (D. Md.). Girard Sharp served as Class Counsel on behalf of consumers who purchased chicken products misleadingly labeled as having been “raised without antibiotics.” After discovery, counsel negotiated a cash settlement that required Tyson Foods to pay class members and make substantial cy pres contributions to food banks.
Defective Products
Weeks v. Google LLC, No. 18-cv-00801-NC (N.D. Cal.). Girard Sharp served as co-lead counsel representing owners of Google Pixel and Pixel XL smartphones. The lawsuit alleged that a defect in the Google phones caused the microphones to fail; as a result, users were unable to make calls, dictate texts, record audio, search the web with voice command, or use the advertised Google Assistant feature. On December 6, 2019, the court approved a $7.25 million settlement for the class that it deemed “excellent.”
In re Nexus 6P Products Liability Litigation, No. 5:17-cv-02185-BLF (N.D. Cal). Girard Sharp was appointed as co-lead counsel in a class action alleging that Nexus 6P smartphones suffer from a defect that renders the phones inoperable through an endless boot-loop cycle and an accelerated battery drain that causes the phones to shut off prematurely. On November 11, 2019, the Honorable Beth L. Freeman approved a $9.75 million class settlement, stating in part that “Class counsel has extensive experience representing plaintiffs and classes in complex litigation and consumer class actions. . . . [T]he quality of their work is reflected in the results achieved for the class.” 2019 WL 6622842, at *10, *12 (N.D. Cal. Nov. 12, 2019).
In re iPod Cases, JCCP No. 4355 (Cal. Super. Ct. San Mateo Cty.). Girard Sharp, as court- appointed co-lead counsel, negotiated a settlement that provided warranty extensions, battery replacements, cash payments, and store credits for class members who experienced battery failure. In approving the settlement, the Honorable Beth L. Freeman wrote that Girard Sharp attorneys are “extremely well qualified” and negotiated a “significant and substantial benefit” for the class.
Sugarman v. Ducati North America, Inc., No. 5:10-cv-05246-JF (N.D. Cal.). The firm served as class counsel on behalf of owners of Ducati motorcycles whose fuel tanks degraded and deformed due to incompatibility with the motorcycles’ fuel. In January 2012, the Honorable Jeremy D. Fogel approved a settlement that provided an extended warranty and repairs, commenting: “The Court recognizes that class counsel assumed substantial risks and burdens in this litigation. Representation was professional and competent; in the Court’s opinion, counsel obtained an excellent result for the class.” 2012 WL 113361, at *6 (N.D. Cal. Jan. 12, 2012).
GIRARD SHARP FIRM RESUME Page 17 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 27 of 33
Parkinson v. Hyundai Motor America, No. CV 8:06-0345 (C.D. Cal.). Girard Sharp served as class counsel in this class action involving allegations that the flywheel and clutch system in certain Hyundai vehicles was defective. After achieving nationwide class certification, Girard Sharp negotiated a settlement that provided from 50% to 100% in reimbursement to class members for their repairs, depending on their vehicle’s mileage at the time of repair. The settlement also provided full reimbursement for rental car expenses for class members who rented a vehicle while flywheel or clutch repairs were being performed. After approving the settlement, the court wrote, “Perhaps the best barometer of . . . the benefit obtained for the class . . . is the perception of class members themselves. Counsel submitted dozens of letters from class members sharing their joy, appreciation, and relief that someone finally did something to help them.” 796 F. Supp. 2d 1160, 1175 (C.D. Cal. 2010).
In re Medtronic, Inc. Implantable Defibrillators Products Liability Litigation, MDL No. 1726 (D. Minn.). Girard Sharp served on the discovery and law committees and performed briefing, discovery, and investigative work in this lawsuit that followed a February 2005 recall of certain models of Medtronic implantable cardioverter defibrillator devices. The controversy was resolved for $75 million.
Browne v. American Honda Motor Co., Inc., No. CV 09-06750 (C.D. Cal.). Girard Sharp served as co-lead counsel representing plaintiffs who alleged that about 750,000 Honda Accord and Acura TSX vehicles had brake pads that wore out prematurely. Girard Sharp negotiated, and the court approved, a settlement valued at $25 million that provided reimbursements to class members and made improved brake pads available.
In re General Motors Dex-Cool Cases, No. HG03093843 (Cal. Super Ct. Alameda Cty.). These class actions alleged that General Motors’ Dex-Cool engine coolant damaged certain vehicles’ engines and formed a rusty sludge that caused vehicles to overheat. After consumer classes were certified in both Missouri and California, General Motors agreed to pay cash to class members nationwide. On October 27, 2008, the California court granted final approval of the settlement.
Roy v. Hyundai Motor America, No. SACV 05-483-AHS (C.D. Cal.). Girard Sharp served as court-appointed co-lead counsel in this nationwide class action alleging a defect in the air-bag system in Hyundai Elantra vehicles. Girard Sharp helped negotiate a settlement under which Hyundai agreed to repair the air-bag systems in the vehicles it sold and leased to class members. Hyundai also agreed to reimburse class members for transportation expenses and administer an alternative dispute resolution program for trade-ins and buy-backs. In approving the settlement, the Honorable Alicemarie H. Stotler described the settlement as “pragmatic” and a “win-win” for all concerned.
Other Consumer Protection Matters
Larson v. John Hancock Life Insurance Company (U.S.A.), No. RG16813803 (Cal. Super. Ct. Alameda Cty.). Girard Sharp served as liaison counsel in this certified class action on behalf of universal life insurance policyholders alleging John Hancock overcharged more than 100,000 of its insureds, depriving them of the full value of the premiums they paid over time. On May 8, 2018, the Honorable Brad Seligman granted final approval of a $59 million settlement.
GIRARD SHARP FIRM RESUME Page 18 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 28 of 33
In re America Online Spin-Off Accounts Litigation, MDL No. 1581 (C.D. Cal.). Girard Sharp served as court-appointed co-lead counsel in this nationwide class action on behalf of America Online subscribers who were billed for a second account without their knowledge or consent. The litigation settled for $25 million and changes in AOL’s billing and account practices.
Mitchell v. American Fair Credit Association, No. 785811-2 (Cal. Super. Ct. Alameda Cty.); Mitchell v. Bankfirst, N.A., No. C-97-1421-MMC (N.D. Cal.). This class action was brought on behalf of California members of the American Fair Credit Association (AFCA). Plaintiffs alleged that AFCA operated an illegal credit repair scheme. The Honorable James Richman certified the class and appointed the firm as class counsel. In February 2003, the Honorable Ronald Sabraw of Alameda County Superior Court and the Honorable Maxine Chesney of the Northern District of California granted final approval of settlements valued at over $40 million.
In re Mercedes-Benz Tele Aid Contract Litigation, MDL No. 1914, CV No. 07-2720-DRD (D.N.J.). Girard Sharp served as co-lead class counsel on behalf of consumers whose vehicles’ navigation systems were on the verge of becoming obsolete. Counsel obtained nationwide class certification before negotiating a settlement valued at up to $50 million. In approving the settlement, the court acknowledged that the case “involved years of difficult and hard-fought litigation by able counsel on both sides” and that “the attorneys who handled the case were particularly skilled by virtue of their ability and experience.” 2011 WL 4020862, at *4, *8 (D.N.J. Sept. 9, 2011).
In re LookSmart Litigation, No. 02-407778 (Cal. Super. Ct. San Francisco Cty.). This nationwide class action was brought against LookSmart, Ltd. on behalf of consumers who paid an advertised “one time payment” to have their websites listed in LookSmart’s directory, only to be charged additional fees to continue service. The court granted final approval of a class settlement valued at approximately $20 million that provided cash and other benefits.
In re America Online, Inc. Version 5.0 Software Litigation, MDL No. 1341 (S.D. Fla.). Girard Sharp served as co-lead counsel in this MDL involving 45 centralized actions. The case alleged violations of state consumer protection statutes, the Computer Fraud and Abuse Act, and federal antitrust laws arising from AOL’s distribution of its Version 5.0 software upgrade. The Honorable Alan S. Gold granted final approval of a $15.5 million settlement.
In re PayPal Litigation, No. C-02-1227-JF (PVT) (N.D. Cal.). Girard Sharp served as co-lead counsel in this nationwide class action alleging violations of California consumer protection statutes and the Electronic Funds Transfer Act (EFTA). Plaintiffs alleged that PayPal unlawfully restricted access to consumers’ PayPal accounts. On September 24, 2004, Judge Fogel granted final approval of a settlement valued at $14.35 million in cash and returned funds, plus injunctive relief to ensure compliance with the EFTA.
Powers Law Offices, P.C. v. Cable & Wireless USA, Inc., No. 99-CV-12007-EFH (D. Mass). Girard Sharp prosecuted this class action on behalf of cable and wireless subscribers who were overcharged for recurring fees. The court granted final approval of an $8 million settlement, and the bankruptcy court approved a 30% distribution from the unsecured creditors’ fund of bankruptcy liquidation proceeds.
GIRARD SHARP FIRM RESUME Page 19 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 29 of 33
Lehman v. Blue Shield of California, No. CGC-03-419349 (Cal. Super. Ct. San Francisco Cty.). In this class action charging Blue Shield with having illegally modified the risk-tier structure of its individual and family health care plans, Girard Sharp negotiated a $6.5 million settlement on behalf of current and former Blue Shield subscribers in California. The Honorable James L. Warren granted final approval of the settlement in March 2006.
Telestar v. MCI, Inc., No. C-05-Civ-10672-JGK (S.D.N.Y). This class action was brought on behalf of MCI commercial subscribers who were charged both interstate and intrastate fees for the same frame relay on prorate line service during the same billing period. On April 17, 2008, the Honorable John G. Koeltl approved a favorable cash settlement.
Wixon v. Wyndham Resort Development Corp., No. C-07-02361 JSW (BZ) (N.D. Cal.). Girard Sharp served as class and derivative counsel in this litigation against a timeshare developer and the directors of a timeshare corporation for violations of California law. Plaintiffs alleged that the defendants violated their fiduciary duties by taking actions for the financial benefit of the timeshare developer to the detriment of the owners of timeshare interests. On September 14, 2010, the district court approved a settlement of the derivative claims.
Berrien v. New Raintree Resorts, LLC, No. CV-10-03125 CW (N.D. Cal.); Benedict v. Diamond Resorts Corporation, No. CV 12-00183-DAE (D. Hawaii). Girard Sharp pursued these actions on behalf of timeshare owners, challenging the imposition of unauthorized “special assessment” fees. The court in each case approved a favorable settlement of the claims asserted on behalf of class members who were charged the fee.
Allen Lund Co., Inc. v. AT&T Corporation, No. C 98-1500-DDP (C.D. Cal.). This class action was brought on behalf of small businesses whose long-distance service was switched to Business Discount Plan, Inc. The Honorable Dean D. Pregerson appointed Girard Sharp as class counsel, and thereafter approved a settlement providing full cash refunds and free long-distance telephone service.
Mackouse v. The Good Guys – California, Inc., No. 2002-049656 (Cal. Super Ct. Alameda Cty.). This nationwide class action against The Good Guys and its affiliates alleged violations of the Song- Beverly Consumer Warranty Act and other California consumer protection laws. Plaintiff alleged that The Good Guys failed to honor contracts that it offered for sale to customers in exchange for protection of a purchase after the manufacturer’s warranty expired. On May 9, 2003, the Honorable Ronald M. Sabraw granted final approval of a settlement providing cash refunds or services at a class member’s election.
In re H&R Block Express IRA Litigation, MDL No. 1786 (W.D. Mo.). Girard Sharp served as co-lead counsel in this MDL involving H&R Block’s marketing and sale of its “Express IRA” investment products. The firms negotiated a settlement in coordination with the New York Attorney General that delivered more than $19 million in cash to class members—resulting in a full recovery for consumers—as well as non-cash benefits entitling Express IRA holders to convert their investments to alternative IRAs with lower fees.
Securities and Financial Fraud
GIRARD SHARP FIRM RESUME Page 20 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 30 of 33
Daccache v. Raymond James Financial, Inc., No. 1:16-cb-21575-FAM (S.D. Fla.). Girard Sharp served as a member of the leadership team representing investors in various Jay Peak EB-5 Immigrant Investor Program project offerings. The investors’ funds were diverted and misappropriated instead of being applied to the intended project to develop the area surrounding the Jay Peak Ski Resort. In June 2017, the court approved a settlement of $150 million for the investors.
In re Oppenheimer Rochester Funds Group Securities Litigation, No. 09-md-02063-JLK (D. Colo). Girard Sharp represented investors who were misled by the Oppenheimer California Municipal Bond Fund about the investment risks associated with the fund’s holdings. On November 6, 2017, the Honorable John L. Kane approved a $50.75 million settlement for the investors.
In re Sears Holdings Corporation Stockholder and Derivative Litigation, Consolidated C.A. No. 11081-VCL (Del. Ch.). Girard Sharp served as co-lead counsel on behalf of the company in this derivative suit charging CEO and majority owner Edward S. Lampert and other directors with depriving stockholders of the full value of 266 of Sears Holdings’ most valuable properties. Girard Sharp obtained a $40 million settlement for Sears Holdings Corporation in the Court of Chancery.
In re Digex, Inc. Shareholder Litigation, Consol. No. 18336 (Del. Ch.). Girard Sharp represented the Kansas Public Employees Retirement System, one of two institutional lead plaintiffs in this lawsuit; minority stockholders of Digex, Inc. sued to enjoin MCI WorldCom’s planned acquisition of a controlling interest in Digex via a merger with Intermedia Communications, Inc. A settlement approved by the Delaware Chancery Court secured $165 million in MCI WorldCom stock and $15 million in cash for Digex shareholders, as well as non-cash benefits valued at $450 million.
Billitteri v. Securities America, Inc., No. 3:09-cv-01568-F (N.D. Tex.). Girard Sharp served as lead counsel in an action against broker-dealer Securities America, Inc. and its corporate parent, Ameriprise, Inc. in connection with sales of investments in the Provident Royalties and Medical Capital investment schemes. Daniel Girard coordinated negotiations resulting in a $150 million settlement, with $80 million allocated to class plaintiffs represented by Girard Sharp and $70 million allocated to individual investors who had initiated arbitration proceedings. The settlements returned over 40% of investment losses.
In re Lehman Brothers Equity/Debt Securities Litigation, No. 08-Civ-5523 (S.D.N.Y.). Girard Sharp was appointed class counsel for a certified class of retail investors in structured products sold by UBS Financial Services, Inc., following the collapse of Lehman Brothers Holdings, Inc. in the largest bankruptcy in American history. The plaintiffs alleged that UBS misrepresented Lehman’s financial condition and failed to disclose that the “principal protection” feature of many of the notes depended upon Lehman’s solvency. Girard Sharp negotiated a settlement that established a $120 million fund to resolve these claims.
In re Prison Realty Securities Litigation, No. 3:99-0452 (M.D. Tenn.). Girard Sharp served as co- lead counsel in this securities class action brought against a real estate investment trust and its officers and directors relating to a merger between Corrections Corporation of America and CCA Prison Realty Trust. The court approved a settlement for over $120 million in cash and stock.
GIRARD SHARP FIRM RESUME Page 21 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 31 of 33
In re American Express Financial Advisors Securities Litigation, No. 04-cv-01773-DAB (S.D.N.Y.). Girard Sharp served as co-lead counsel in this class action on behalf of individuals who bought financial plans and invested in mutual funds from American Express Financial Advisors. The case alleged that American Express steered its clients into underperforming “shelf space funds” to reap kickbacks and other financial benefits. The court granted final approval of a settlement providing $100 million in cash and other relief.
Scheiner v. i2 Technologies, Inc., No. 3:01-CV-418-H (N.D. Tex.). Girard Sharp represented the lead plaintiff—the Kansas Public Employees Retirement System—and served as co-lead counsel on behalf of investors in i2 Technologies. The Honorable Barefoot Sanders approved cash settlements for $88 million from the company, its officers, and its former auditor Arthur Andersen. As part of the settlement, i2 agreed to significant corporate governance reforms.
In re Peregrine Financial Group Customer Litigation, No. 1:12-cv-5546 (N.D. Ill.). As one of two co-lead counsel, Girard Sharp prosecuted this litigation under the Commodities Exchange Act and state law on behalf of investors who lost millions in the collapse of a commodities futures merchant. The litigation generated recoveries of more than $75 million. The court wrote that counsel “conferred an impressive monetary benefit on the Settlement Class: the funds recovered from U.S. Bank are substantial—both in absolute terms and when assessed in light of the risks of establishing liability and damages” [ECF No. 441].
CalSTRS v. Qwest Communications, No. 415546 (Cal. Super. Ct. S.F. Cty.). Girard Sharp represented the California State Teachers Retirement System in this opt-out securities fraud case against Qwest Communications, Inc. and certain of its officers and directors, as well as its outside auditor Arthur Andersen. The case resulted in a precedent-setting $45 million settlement for California schoolteachers.
In re SLM Corp. Securities Litigation, No. 08-Civ-1029-WHP (S.D.N.Y). Girard Sharp served as lead counsel representing investors of SLM Corporation who alleged Sallie Mae, the leading provider of student loans in the United States, misled the public about its financial performance in order to inflate the company’s stock price. After achieving nationwide class certification, Girard Sharp negotiated a settlement that established a $35 million fund to resolve the investors’ claims.
In re Winstar Communications Securities Litigation, No. 01 Civ. 11522 (S.D.N.Y.). Girard Sharp represented Allianz of America, Inc., Fireman’s Fund and other large private institutional investors against Grant Thornton and other defendants on claims arising out of plaintiffs’ investments in Winstar Communications, Inc. The firm achieved a settlement on the eve of trial that provided a recovery rate over 30 times higher than what class members received in a related class action. After deduction of attorneys’ fees, the fund returned 78.5% of potentially recoverable losses.
In re Oxford Tax Exempt Fund Securities Litigation, No. WMN-95-3643 (D. Md.). Girard Sharp served as co-lead counsel in class and derivative litigation brought on behalf of a real estate limited partnership with assets of over $200 million. The parties reached a settlement providing for exempt issuance of securities under section 3(a)(10) of the Securities Act of 1933, public listing of units, and additional benefits valued at over $10 million.
GIRARD SHARP FIRM RESUME Page 22 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 32 of 33
Calliott v. HFS, Inc., No. 3:97-CV-0924-L (N.D. Tex.). Girard Sharp intervened on behalf of an institutional client in this securities class action arising out of the bankruptcy of Amre, Inc., a seller of home remodeling and repair services. After being designated lead counsel under the Private Securities Litigation Reform Act, Girard Sharp negotiated and obtained court approval of settlements totaling $7.3 million.
In re Towers Financial Corporation Noteholders Litigation, MDL No. 994 (S.D.N.Y.). This class action was brought against promoters and professionals linked to a failed investment scheme that the SEC described at the time as being the “largest Ponzi scheme in U.S. history.” The case resulted in $6 million in partial settlements and a $250 million judgment entered against four senior Towers executives. Girard Sharp served as liaison counsel and as a Plaintiffs’ Executive Committee member. The court stated that “class counsel—particularly plaintiffs’ liaison counsel, Daniel Girard—has represented the plaintiffs diligently and ably in the several years that this litigation has been before me.” 177 F.R.D. 167, 171 (S.D.N.Y. 1997).
Mass Tort
In re USC Student Health Center Litigation, No. 2:18-cv-04258-SVW-GJS (C.D. Cal.). Girard Sharp served as co-lead counsel for a class of women who alleged they were sexually assaulted or molested by a USC gynecologist. The court in February 2020 approved a settlement for $215 million that also secured comprehensive injunctive relief at the university.
In re Actos (Pioglitazone) Products Liability Litigation, MDL No. 2299 (W.D. La.). Girard Sharp lawyers were appointed to the Plaintiffs’ Steering Committee and served on the Daubert and Legal Briefing Committees in this MDL. A $2.37 billion global settlement was achieved.
In re Yasmin and Yaz (Drospirenone) Marketing, Sales, Practices and Products Liability Litigation, MDL No. 2385 (S.D. Ill.). Girard Sharp lawyers were appointed to the Plaintiffs’ Steering Committee and served as Co-Chair of the Plaintiffs’ Law and Briefing Committee in this MDL that produced settlements worth approximately $1.6 billion.
In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385 (S.D. Ill.). Girard Sharp lawyers were appointed to the Plaintiffs’ Steering Committee in mass tort litigation that culminated in settlements worth approximately $650 million.
Antitrust
In re TFT-LCD (Flat Panel) Antitrust Litigation, MDL No. 1827 (N.D. Cal.). The firm served as liaison counsel for the direct purchaser plaintiffs and certified direct purchaser class in this multidistrict antitrust litigation against makers of LCD screens alleging a far-reaching conspiracy to raise, fix and maintain prices. The direct purchasers achieved settlements of more than $400 million.
In re Lidoderm Antitrust Litigation, No. 14-md-02521 (N.D. Cal.). Girard Sharp lawyers were appointed co-lead counsel in a class action on behalf of end-purchasers of the prescription drug Lidoderm who alleged that two drug companies, Endo Pharmaceuticals and Teikoku Pharma,
GIRARD SHARP FIRM RESUME Page 23 of 24
Case 5:17-cv-00967-OLG Document 108-3 Filed 07/14/21 Page 33 of 33
unlawfully paid a third, Watson Pharmaceuticals, to delay the launch of more affordable generic Lidocaine patches. The firm secured a $104.75 million settlement on the eve of trial.
In re Aggrenox Antitrust Litigation, No. 14-md-2516 (D. Conn.). Girard Sharp served on the Plaintiffs’ Executive Committee in this “pay-for-delay” litigation accusing Teva Pharmaceuticals USA, Inc. and Boehringer Ingelheim Pharmaceuticals, Inc. of illegally agreeing to keep generic Aggrenox off the market. The case settled for $54 million.
In re Solodyn Antitrust Litigation, No. 14-md-2503 (D. Mass.). The firm served on the Plaintiffs’ Executive Committee in this action alleging that Medicis Pharmaceuticals and several generic drug manufacturers conspired to monopolize the market for the acne drug Solodyn. The case settled for over $40 million in cash.
In re Natural Gas Antitrust Cases I, II, III and IV, J.C.C.P. No. 4221 (Cal. Super. Ct. San Diego Cty.). Girard Sharp served on the leadership team in coordinated antitrust litigation against numerous natural gas companies for manipulating the California natural gas market. The firm helped achieve settlements of nearly $160 million.
Government Reform
Paeste v. Government of Guam, No. 11-cv-0008 (D. Guam) (Marshall, J.). Girard Sharp and co-counsel served as class counsel in litigation against the Government of Guam on behalf of Guam taxpayers for chronic late payment of income tax refunds. After obtaining certification of a litigation class, the plaintiffs prevailed at summary judgment and obtained a permanent injunction reforming Guam’s administration of tax refunds. The Ninth Circuit affirmed the injunction. 798 F.3d 1228 (9th Cir. 2015), cert. denied, 136 S. Ct. 2508 (2016).
Ho v. San Francisco Unified School District, No. C-94-2418-WHO (N.D. Cal.). This civil rights action was brought on behalf of a certified class of San Francisco public school students of Chinese descent to terminate racial and ethnic quotas imposed under a 1983 desegregation consent decree. See Ho v. San Francisco Unified Sch. Dist., 965 F. Supp. 1316 (N.D. Cal. 1997), aff’d, 147 F.3d 854 (9th Cir. 1998); see also 143 Cong. Rec. S6097, 6099 (1997) (statement of Senator Hatch noting testimony of a class representative before the Senate Judiciary Committee).
GIRARD SHARP FIRM RESUME Page 24 of 24
Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 1 of 16 EXHIBIT D Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 2 of 16
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
ROY C. SPEGELE, individually and on behalf of all others similarly situated, Plaintiff, v. USAA LIFE INSURANCE COMPANY, Case No. 5:17-cv-967-OLG Defendant.
DECLARATION OF RICHARD W. SIMMONS REGARDING IMPLEMENTATION OF SETTLEMENT NOTICE PLAN
I, Richard W. Simmons, declare as follows:
1. My name is Richard W. Simmons. I have personal knowledge of the matters set
forth herein, and I believe them to be true and correct.
2. I am the President of Analytics Consulting LLC (“Analytics”)1. My company is
one of the leading providers of class and collective action notice and claims management programs
in the nation. Analytics’ class action consulting practice, including the design and implementation
of legal notice campaigns, is one of the oldest in the country. Through my work, I have personally
overseen court-ordered class and collective notice programs in more than 2,000 matters.
3. On March 31, 2021, I signed a declaration (“March Declaration”) summarizing the
proposed Class Notice Plan2 (the “Notice Plan”) proposed here for the Settlement in Spegele v.
1 In October 2013, Analytics Consulting LLC acquired Analytics, Incorporated. I am the former President of Analytics, Incorporated (also d/b/a “BMC Group Class Action Services”). References to “Analytics” herein include the prior legal entity. 2 All capitalized terms not defined herein have the same meaning as those defined in the Settlement Agreement (the “Settlement” or “Settlement Agreement”). 1
Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 3 of 16
USAA Life Insurance Company, Case No. 5:17-cv-967-OLG in the Western District of Texas, San
Antonio Division; and why the Notice Plan would provide the best practicable notice in this matter.
4. The Notice Program provided that Analytics would mail notice of the settlement to all members of the Settlement Class members for whom a mailing address was available in
Defendants’ records. The mailed Class Notice will direct the recipients to a website dedicated to the Settlement where they can access additional information as well as to a toll-free phone number where they can call with settlement-related inquiries.
5. Pursuant to its Order Permitting Issuance of Notice of Proposed Class Action
Settlement on May 17, 2021 (the “May 17, 2021 Order”), the Court appointed Analytics as
Settlement Administrator, with responsibility for Class Notice and claims administration. The
Court further approved the proposed Class Notice Program as proposed in my March Declaration.
6. After the Court approved the Notice Plan, Analytics performed the services described herein under my supervision and I submit this Declaration to provide the Court with proof of the mailing of the Court-approved Notices and to report on the toll-free telephone number and the Settlement Website.
Mailing of the Notice
7. Pursuant to the May 17, 2021 Order, Analytics received from the Defendant a data file identifying, after accounting for duplication, 110,038 Settlement Class Members.
8. All addresses were updated using the National Change of Address (“NCOA”) database maintained by the United States Postal Service (“USPS”);3 certified via the Coding
3 The NCOA database contains records of all permanent change of address submissions received by the USPS for the last four years. The USPS makes this data available to mailing firms and lists submitted to it are automatically updated with any reported move based on a comparison with the person’s name and last known address.
2
Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 4 of 16
Accuracy Support System (“CASS”);4 and verified through Delivery Point Validation (“DPV”).5
In the event that a Settlement Class Member is known to be deceased, the Class Notice was set to be mailed “To the Estate of [the deceased Settlement Class Member]” at the last known address.
The address list was then reviewed to identify and consolidate duplicate entries.
9. Analytics identified 164 records with missing addresses.
10. These measures ensured that all appropriate steps have been taken to send Notices to current and valid addresses and resulted in mailable address records for 109,874 Settlement
Class Members.
11. Analytics formatted the Class Notices and caused them to be printed, personalized with the name and address of each Settlement Class Member, posted for First-Class Mail, postage pre-paid, and delivered on July 1, 2021 to the USPS for mailing. A copy of the Class Notice is attached as Exhibit A
12. Analytics requested that the USPS return (or otherwise notify Analytics) of Class
Notices with undeliverable mailing addresses. As of the date of this Declaration, 78 Class Notices have been returned by the USPS as undeliverable. Analytics continues to receive Class Notices returned by the USPS, and will research addresses for these Settlement Class Members with third- party data to identify updated mailing addresses (to which a Class Notice will be mailed).
Toll Free Phone Support
13. Beginning on July 1, 2021, Analytics established and continues to maintain a toll- free telephone number for the Action, 1-888-392-1061. This toll-free telephone line connects
4 The CASS is a certification system used by the USPS to ensure the quality of ZIP +4 coding systems. 5 Records that are ZIP +4 coded are then sent through Delivery Point Validation (“DPV”) to verify the address and identify Commercial Mail Receiving Agencies. DPV verifies the accuracy of addresses and reports exactly what is wrong with incorrect addresses.
3
Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 5 of 16
callers with an Interactive Voice Recording (“IVR”). By calling this number, Class Members are
able to listen to pre-recorded answers to Frequently Asked Questions (“FAQs”) or request to have
a Notice mailed to them. The toll-free telephone line and IVR have been available 24 hours a day,
7 days a week.
14. In addition, Monday through Friday from 8:30 a.m. to 5:00 p.m. Central Time
(excluding official holidays), callers to the toll-free telephone line are able to speak to a live
operator regarding the status of the Action and/or obtain answers to questions they may have about
the Notice. During other hours, callers may request a call back which is automatically queued the
next business day.
15. Automated messages are available to Class Members 24 hours a day, 7 days a week,
with live call center agents also available during standard business hours. Analytics’ IVR system
allows Class Members to request a return call if they call outside of business hours.
Settlement Website
16. Prior to July 1, 2021, Analytics established and continues to maintain a Website
dedicated to this Action (www.usaacoisettlement.com.) to assist Class Members. The Website
address was set forth in the Notice.
17. Recognizing the increasingly mobile nature of communications, the Website is
mobile optimized, meaning it can be clearly read and used by Class Members visiting the Website via smart phone or tablet.
18. By visiting the Website, Class Members are able to read and download key information about the litigation, including, without limitation:
a. important dates and deadlines;
b. answers to frequently asked questions; and
4
Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 6 of 16
c. case documents, including the Class Notice and other relevant case documents such as
the Settlement Agreement, and Plaintiff’s Motion for Final Approval of Class Action
Settlement and Class Counsel’s Motion for Attorneys’ Fees, Expenses and For Service
Award and supporting memoranda.6
Requests for Exclusion and Objections
19. Settlement Class Members could opt out of the settlement by mailing a written
statement requesting exclusion from the Settlement Class to Analytics by August 5, 2021. As of
the date of this Declaration, Analytics has received six requests for exclusion from Settlement
Class Members.
20. Settlement Class Members could object to the proposed settlement by mailing a
written statement objecting to the settlement to Analytics by August 5, 2021. As of the date of
this Declaration, Analytics has received one objection from a Settlement Class Member.
CAFA Notice
21. On April 19, 2021, Analytics served CAFA Notice to the 51 insurance regulators
identified by Defendants as proper recipients as well as the Attorney General of the United States,
pursuant to 28 U.S.C. §1715.
Fees and Expenses
22. Analytics’ total costs, fees, and expenses in connection with the administration of
this Settlement, including fees incurred and anticipated future costs for completion of the
administration, are fixed at $200,000.00 pursuant to the Settlement Agreement. The Settlement
Agreement provides that this amount will be paid from the Settlement Fund. Analytics’ work in
6 Plaintiffs’ Motion for Final Approval of Class Action Settlement and Class Counsel’s Motion for Attorneys’ Fees, Expenses and For Service Award and supporting memoranda were posted to the Website on the day they were filed.
5
Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 7 of 16 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 8 of 16
Exhibit A Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 9 of 16
Spegele v. USAA Life Insurance Company
NOTICE OF CLASS ACTION LAWSUIT
Dear Class Member, You have been sent this Notice of Class Action Lawsuit (the “Notice”) because you have been identified as a Settlement Class Member in the class action lawsuit, Spegele v. USAA Life Insurance Company, pending in the United States District Court for the Western District of Texas, Case No. 5:17-cv-967. This Notice summarizes a recent Settlement between the Parties that impacts your rights. A full description of the Settlement is contained in the Settlement Agreement, which includes the precise definitions of capitalized terms used in this Notice. The Agreement is available for you to read at www.usaacoisettlement.com. Please read it and this Notice carefully to understand your rights and obligations under the Settlement. Records provided by USAA Life Insurance Company indicate that you are currently the owner or were the owner at the time of termination of a Universal Life 1, Universal Life 2, Universal Life 3, and/or a Universal Life 4 life insurance policy issued or administered by USAA Life. Throughout this Notice, USAA Life Insurance Company is referred to as “USAA Life.” The parties have reached a Settlement involving the cost of insurance charges that USAA Life deducted from policyholders’ account values for these life insurance policies. The Settlement provides that USAA Life will fund a cash Settlement Fund in the amount of $90 million, which will be used to pay (1) cash to Settlement Class Members; (2) Class Counsel’s attorneys’ fees and expenses in an amount to be approved by the Court; (3) a service award to the class representative in an amount to be approved by the Court; and (4) the expenses incurred in administering the Settlement. USAA Life’s records show that you may be eligible to participate in the Settlement.
Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 10 of 16
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS If You Own or Owned a Universal Life 1, Universal Life 2, Universal Life 3, and/or Universal Life 4 Insurance Policy Issued or Administered by USAA Life Insurance Company, a Class Action Settlement May Affect Your Rights A COURT AUTHORIZED THIS NOTICE. THIS IS NOT A SOLICITATION FROM A LAWYER. YOU ARE NOT BEING SUED.
• A Settlement has been reached with USAA Life in a class action lawsuit about the cost of insurance charges deducted from policyholders’ account values. If the Settlement is approved by the Court, you will automatically receive a payment. No further action is required. • Generally, the Settlement includes current and former Universal Life 1, Universal Life 2, Universal Life 3, and/or Universal Life 4 policy owners whose policies were in force on or after March 1, 1999 (see Question 4 below). • As part of the Settlement, Settlement Class Members will be eligible to receive a portion of a cash Settlement Fund funded by USAA Life in the amount of $90 million (see Question 6 below).
YOUR LEGAL RIGHTS AND OPTIONS IN THIS LAWSUIT
DO NOTHING Automatically receive your share of the Settlement Fund.
Get no benefits from the Settlement and preserve your right to ASK TO BE EXCLUDED separately sue USAA Life about the claims in this case.
OBJECT Write to the Court if you don’t like the Settlement.
GO TO A HEARING Ask to speak in Court about the fairness of the Settlement.
• These rights and options—and the deadlines to exercise them—are explained in this Notice. • The Court in charge of this case still has to decide whether to finally approve the Settlement. Settlement checks will be automatically issued to each Settlement Class Member if the Court approves the Settlement and after any appeals are resolved. You do not need to take further action to receive payment if you are eligible under the Settlement. Please be patient. BASIC INFORMATION
1. Why did I get this Notice? USAA Life’s records show that you own or owned a Universal Life 1, Universal Life 2, Universal Life 3, and/or a Universal Life 4 life insurance policy issued or administered by USAA Life or its predecessors in interest (or were identified as the legal representative of such an owner) that was in force on or after March 1, 1999. A Court authorized this Notice because you have a right to know about the proposed Settlement and all of your options before the Court decides whether to approve the Settlement. This Notice explains the lawsuit, the Settlement, and your legal rights. Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 2 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 11 of 16
Chief Judge Orlando L. Garcia of the United States District Court for the Western District of Texas is overseeing this case. The case is known as Spegele v. USAA Life Insurance Company, Case No. 5:17-cv-967. The person who sued, Roy Spegele, is called the “Plaintiff.” USAA Life is called the “Defendant.” The following is only a summary of the Settlement. A full description of the Settlement is in the Settlement Agreement. Nothing in this notice changes the terms of the Settlement Agreement. You can read the Settlement Agreement by visiting www.usaacoisettlement.com.
2. What is this lawsuit about? This lawsuit is about whether USAA Life’s “cost of insurance” charges were consistent with the policy language in Universal Life 1, Universal Life 2, Universal 3, and Universal Life 4 life insurance policies (“Policies”). The Policies have a “cash value” that earns interest at or above a minimum rate guaranteed under the Policies. The Policies expressly authorize USAA Life to take a monthly deduction from the cash value to cover various charges. Plaintiff alleges that USAA Life violated the Policies in three different ways. First, the Policies say that Cost of Insurance Rates are “based on the insured’s age, sex, and rate class,” and that “[c]urrent cost of insurance rates are based on [USAA Life’s] expectations as to future mortality experience.” Plaintiff alleges that USAA Life impermissibly used factors other than those identified in the Policies when setting Cost of Insurance Rates. Second, while the Policies permit a separate monthly Maintenance Charge, Administrative Charge, and/or Expense Charge, Plaintiff alleges that USAA Life exceeds the fixed amounts for these charges by considering its expenses when setting Cost of Insurance rates. Third, Plaintiff contends that, although USAA Life’s expectations as to future mortality experience have improved, it has failed to reduce Cost of Insurance Rates for the Policies. USAA Life denies all of these claims and believes that all the rates and charges it applied to the Policies are, and always have been, consistent with the terms of the Policies. You can read Plaintiff’s Class Action Complaint and USAA Life’s Answer to Class Action Complaint at www.usaacoisettlement.com.
3. Why is there a Settlement? The Parties negotiated the Settlement with an understanding of the factual and legal issues that would affect the outcome of this lawsuit. During the lawsuit, Plaintiff, through his attorneys, thoroughly examined and investigated the facts and the law relating to the issues in this case. Plaintiff believes that the final outcome of the lawsuit, if it were to proceed through trial and appeals, is uncertain. A settlement avoids the costs and risks of further litigation and provides immediate relief to the Settlement Class Members. Based on their evaluation of the facts and law, Plaintiff and his attorneys have determined that the proposed Settlement is fair, reasonable, and adequate. They have reached this conclusion based on the substantial benefits the Settlement provides to Settlement Class Members and the risks, uncertainties, and costs inherent in the lawsuit. There has been no trial and there has been no final determination on the merits of the claims or defenses in this lawsuit. There will be no trial or final determination on the merits of the claims and defenses if the Court approves the Settlement. The Settlement does not indicate that USAA Life has done anything wrong, or that Plaintiff and the Settlement Class Members would win or lose if the lawsuit were to go to trial.
4. Who is included in the Settlement Class? The Settlement Class includes all persons who own or owned Universal Life 1, Universal Life 2, Universal Life 3, and/or Universal Life 4 life insurance policies issued or administered by USAA Life, or its predecessors in interest, that were in force on or after March 1, 1999, subject to certain important exclusions (“Class Policy”).
Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 3 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 12 of 16
If someone who would otherwise be a Settlement Class Member is deceased, his or her estate is a Settlement Class Member. Excluded from the Settlement Class are USAA Life; any entity in which USAA Life has a controlling interest; any of the officers, directors, or employees of USAA Life; the legal representatives, heirs, successors, and assigns of USAA Life; anyone employed with Plaintiff’s law firms; and any Judge to whom this case is assigned, and his or her immediate family. Also excluded from the Class are persons or entities who own or owned Universal Life 3 and Universal Life 4 policies issued in New Jersey and policies issued by USAA Life Insurance Company of New York. If you only own one or more excluded Policies, you are not a member of the Class. If you own both a Class Policy and an excluded Policy, you are a member of the Class but only with respect to the Class Policy.
5. How can I confirm that I am in the Settlement Class? If you are not sure whether you are included in the Settlement Class, you can get free help at www. usaacoisettlement.com or by calling 1-888-392-1061.
6. What does the Settlement provide? USAA Life has agreed to fund a cash Settlement Fund in the amount of $90 million, which will be used to pay (1) all payments to Settlement Class Members; (2) Class Counsel’s attorneys’ fees and expenses in an amount to be approved by the Court; (3) a service award to Plaintiff in an amount to be approved by the Court; and (4) the expenses incurred in administering the Settlement. If the Court approves the Settlement, settlement checks will be mailed to Settlement Class Members in amounts that will vary according to a distribution plan. The distribution plan is designed to provide each Settlement Class Member an approximate pro rata portion of the Net Settlement Fund based on the amount of Cost of Insurance Charges paid by each Settlement Class Member. The distribution plan is attached to the Settlement Agreement as Exhibit B and is available on the settlement website. Settlement Class Members will receive a minimum payment of $50. You should consult your own tax advisors about the tax consequences of the proposed Settlement, including any benefits you may receive and any tax reporting obligations you may have as a result.
7. How do I participate in the Settlement? Do I need to make a claim? Settlement Class Members do not have to do anything to participate in the Settlement. No claims need to be filed. Upon approval of the Settlement, a settlement check will be sent to every Settlement Class Member in the amount determined by the Settlement Administrator using the method described in Question 6 above. If someone who would otherwise be a Settlement Class Member is deceased, his or her estate is a Settlement Class Member.
8. When will I receive my settlement check? The settlement checks will be sent to Settlement Class Members within 30 days after the Final Settlement Date. Settlement checks will be automatically mailed without any proof of claim or further action on the part of the Settlement Class Members.
9. What happens if I do nothing? If the Settlement is approved, you will receive a settlement check representing your share of the Settlement. You cannot sue USAA Life (or certain other released parties included as “Released Parties” in the Settlement Agreement) or be part of any other lawsuit against USAA Life concerning the claims in this case or claims
Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 4 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 13 of 16
that could have been brought in this case, including claims over Cost of Insurance Charges assessed in the past and Cost of Insurance Charges assessed in the future. You may sue USAA Life for future increases to Cost of Insurance Rate scales if worsening mortality expectations are not a material or primary reason for the increase. The Settlement Agreement is available at www.usaacoisettlement.com and describes the claims that you are giving up. If you have any questions, you can talk to the law firms listed in Question 11 for free, or you can hire your own lawyer.
10. Can I exclude myself from the Settlement? Yes. If you don’t want a payment from the Settlement, and/or you want to keep the right to hire your own lawyer and sue USAA Life at your own expense about the issues in this case, then you may request to be excluded from the Settlement Class by sending a written notice to the Settlement Administrator. The notice must include the following information: • The Settlement Class Member’s name (or the name of the entity that owns the Policy), current address, telephone number, and e-mail address; • Policy number; • A clear statement that the Settlement Class Member elects to be excluded from the Settlement Class and does not want to participate in the Settlement in Spegele v. USAA Life Insurance Company, Case No. 5:17-cv-967; • The Settlement Class Member’s signature, or the signature of a person providing a valid power of attorney to act on behalf of the Settlement Class Member. If there are multiple owners of a Class Policy, all owners must sign the notice, unless the signatory submits a copy of a valid power of attorney to act on behalf of all then-current owners of the Policy. Your written notice must be served on the Settlement Administrator by mailing it to Spegele v USAA, c/o Analytics Consulting LLC, P.O. Box 2007, Chanhassen, MN 55317-2007, postmarked no later than August 5, 2021.
11. How do I tell the Court if I do not like the Settlement? You can object to the Settlement if you do not like some part of it. The Court will consider your views. To object to the Settlement, you must serve a written objection in the case, Spegele v. USAA Life Insurance Company, Case No. 5:17-cv-967. The objection must include the following information: • The Settlement Class Member’s name (or the name of the entity that owns the Policy), current address, telephone number, and email address; • Policy number; • A written statement of all grounds for your objection accompanied by any legal support for the objection (if any); • Copies of any papers, briefs, or other documents upon which the objection is based; • A list of all persons who will be called to testify in support of the objection (if any); • An indication of whether you intend to appear at the Fairness Hearing and the identity of all attorneys (if any) who will appear at the Settlement Hearing on your behalf; • A statement whether the objection applies only to the objector, to a specific subset of the class, or to the entire class; and • The signature of you or your counsel.
Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 5 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 14 of 16
You must serve your objection on the Settlement Administrator by mailing it to Spegele v USAA, c/o Analytics Consulting LLC, P.O. Box 2007, Chanhassen, MN 55317-2007, postmarked no later than August 5, 2021.
12. Do I have a lawyer in this case? Yes. The Court appointed the following lawyers as “Class Counsel” to represent all the members of the Class:
Norman E. Siegel John J. Schirger Daniel C. Girard Stueve Siegel Hanson LLP Miller Schirger LLC Girard Sharp LLP 460 Nichols Rd., Suite 200 4520 Main St., Suite 1570 601 California St., Suite 1400 Kansas City, MO 64112 Kansas City, MO 64111 San Francisco, CA 94108 [email protected] [email protected] [email protected]
If you have questions, you may contact these lawyers. You will not be charged for contacting these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
13. How will the lawyers be paid? Class Counsel have not been paid for their work in this case. In addition to thousands of hours of labor spent on this case, Class Counsel have expended substantial expenses prosecuting this case. The Court will determine how much Class Counsel will be paid for fees and expenses. Class Counsel will seek an award for attorneys’ fees of up to 30% of the Settlement Fund, plus reimbursement of Class Counsel’s costs and expenses (no more than $300,000), also to be paid from the Settlement Fund. You will not be responsible for payment of Class Counsel’s fees and expenses. Class Counsel will also request a service award payment of up to $20,000 for Plaintiff for his service as representative on behalf of the Settlement Class. This payment will also be paid from the Settlement Fund. The Court must approve any amounts paid to Class Counsel and to Plaintiff.
14. When and where will the Court decide whether to approve the Settlement? The Court will hold a hearing to decide whether to approve the Settlement and any requests for attorneys’ fees and expenses, a service award to Plaintiff, and the costs of settlement administration. You may attend and ask to speak, but you do not have to. The Court will hold the hearing at 1:30 p.m. on August 26, 2021, at the United States District Court for the Western District of Texas, 655 E. Cesar E. Chavez Boulevard, San Antonio, Texas 78206. The hearing may be moved to a different date or time without additional notice being mailed to you, so it is a good idea to check www.usaacoisettlement.com for any updates. At the hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate and in the best interests of Settlement Class Members. If there are objections, the Court will consider them and will listen to people who have asked to speak at the hearing. After the hearing, the Court will decide whether to approve the Settlement. We do not know how long the Court’s decision will take.
15. Do I have to attend the hearing? No, but you or your own lawyer are welcome to attend the Fairness Hearing at your expense. If you send a timely objection but do not attend the Fairness Hearing, the Court will still consider your objection.
16. May I speak at the hearing? You may speak at the Fairness Hearing by filing an objection that indicates your intention to do so. If you wish to appear through counsel, your written objection must list the attorneys representing you who will appear at Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 6 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 15 of 16
the Fairness Hearing. Unless otherwise ordered by the Court, a Settlement Class Member who does not submit a timely objection with the proper notice will not be permitted to speak at the Fairness Hearing.
17. How do I get more information? This Notice summarizes the proposed Settlement. More details are in the Settlement Agreement. You can find a copy of the Settlement Agreement at www.usaacoisettlement.com. You may also send your questions to the Settlement Administrator, in writing, at Spegele v USAA, c/o Analytics Consulting LLC, P.O. Box 2007, Chanhassen, MN 55317-2007 or call the Settlement Administrator at 1-888-392-1061. You can review the Court’s docket in this case at www.pacer.gov. If your address has changed or will change, please notify the Settlement Administrator by August 5, 2021.
DATE: July 1, 2021
Questions? Visit www.usaacoisettlement.com or call 1-888-392-1061 7 Case 5:17-cv-00967-OLG Document 108-4 Filed 07/14/21 Page 16 of 16
Spegele v USAA c/o Analytics Consulting LLC P.O. Box 2007 Chanhassen, MN 55317-2007
IMPORTANT COURT-ORDERED NOTICE Case 5:17-cv-00967-OLG Document 108-5 Filed 07/14/21 Page 1 of 2 EXHIBIT E Case 5:17-cv-00967-OLG Document 108-5 Filed 07/14/21 Page 2 of 2
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION
ROY C. SPEGELE, individually and on behalf of all others similarly situated, Plaintiff, v. USAA LIFE INSURANCE COMPANY, Case No. 5:17-cv-967-OLG Defendant.
[PROPOSED] ORDER GRANTING UNOPPOSED MOTION PURSUANT TO RULE 23(H) FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND EXPENSES TO CLASS COUNSEL AND NAMED PLAINTIFF SERVICE AWARD
This matter comes before the Court on Plaintiff’s Unopposed Motion Pursuant to Rule
23(h) for an Award of Attorneys’ Fees, Costs, and Expenses to Class Counsel and Named
Plaintiff Service Award. Doc. ( ). The Motion is hereby GRANTED as follows:
Class Counsel is awarded attorneys’ fees of thirty (30) percent of the Settlement Fund, which results in a fee award of $27,000,000, and reimbursement for costs and expenses of
$176,165.01. Plaintiff Roy C. Spegele is awarded $20,000 for his contribution to this litigation on behalf of the class.
IT IS SO ORDERED
Dated: ______Orlando L. Garcia Chief United States District Judge