Case 2:18-cv-08494-JMV-JBC Document 72 Filed 05/04/21 Page 1 of 3 PageID: 772
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
RICHARD GRISAFI, on behalf of Case No. No.18-8494-JMV-JBC himself and the Putative Class Civil Action Plaintiff,
v.
SONY ELECTRONICS INC.
Defendant.
PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY’S FEES AND EXPENSES AND CLASS REPRESENTATIVES INCENTIVE
Pursuant to this Court’s December 7, 2020 Preliminary
Approval Order, (ECF No. 69) as modified by the Court’s February
3, 2021 Order modifying the schedule, (ECF No. 71) on July 19,
2021 at 11:30 a.m., or as soon thereafter as the Court shall
direct, Representative Plaintiff, Richard Grisafi will move
pursuant to Federal Rule of Civil Procedure 23(h)and the terms of
the Settlement Agreement before the Honorable James B. Clark III,
U.S.M.J., for an order awarding attorneys’ fees and reimbursement
of expenses to Plaintiffs’ counsel in the agreed upon amount of
$418,675.35 as determined in a binding Arbitration conducted by
Hon. Stephen Orlofsky (ret.) and a Class Representative Incentive
Award in the amount of $10,000 each for the Plaintiff/Class
Representative.
In support Plaintiff will rely upon the Memorandum of Law in
Support of Plaintiff’s Unopposed Motion for Attorneys’ Fees and Case 2:18-cv-08494-JMV-JBC Document 72 Filed 05/04/21 Page 2 of 3 PageID: 773
Expenses and Class Representative Incentive Award, and the
Certification of Bruce H. Nagel in Support of Approval of Award of
Attorneys’ Fees and Reimbursement of Expenses with Exhibits. A
proposed Order addressing the Attorneys’ Fees will be included in
conjunction with the submission of the proposed Final Approval
Order at the time when the Final Approval Motion is filed.
Respectfully submitted this 4th day of May, 2021.
NAGEL RICE, LLP
By: /s/ Bruce H. Nagel Bruce H. Nagel, Esq. Randee Matloff, Esq. 103 Eisenhower Parkway Roseland, NJ 07068 (973) 618-0400 Class Counsel
Case 2:18-cv-08494-JMV-JBC Document 72 Filed 05/04/21 Page 3 of 3 PageID: 774
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing
documents with the Clerk of the Court using CM/ECF.
/s/ Bruce H. Nagel Bruce H. Nagel, Esq. Randee Matloff, Esq. 103 Eisenhower Parkway Roseland, NJ 07068 (973) 618-0400 Class Counsel Dated: May 4, 2021
Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 1 of 33 PageID: 775
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
RICHARD GRISAFI, on behalf Case No. 2:18-cv-08494(JMV)(JBC) of himself and the Putative Class
Plaintiff, Civil Action
v.
SONY ELECTRONICS INC.
Defendant.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS FEES AND EXPENSES, AND CLASS REPRESENTATIVE INCENTIVE AWARD
Bruce H. Nagel Of Counsel
Bruce H. Nagel Randee M. Matloff On the Brief
NAGEL RICE, LLP 103 Eisenhower Parkway Suite 103 Roseland, New Jersey 07068 973-618-0400 [email protected] [email protected] Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 2 of 33 PageID: 776
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES ii
PREFATORY STATEMENT 1
SUMMARY OF SETTLEMENT TERMS 4
A. INCENTIVE AWARD TO THE CLASS REPRESENTATIVES 7
B. AWARD OF ATTORNEYS' FEES TO CLASS COUNSEL 7
PROCEDURAL HISTORY 8
EXPERIENCE OF CLASS COUNSEL 11
LEGAL ARGUMENT 13
POINT I. THE COURT SHOULD GRANT FINAL APPROVAL OF THE ATTORNEYS' FEE PROVISION IN THE SETTLEMENT AGREEMENT 13
A. RULE 23(H) AUTHORIZES AGREEMENTS ON ATTORNEYS' FEES IN SETTLEMENTS 13
B. THE REQUESTED FEE AWARD IS REASONABLE 15
C. APPLICATION OF THE LODESTAR METHOD 16
D. APPLICATION OF GUNTER FACTORS CONFIRMS THAT FEE REQUEST IS REASONABLE 21
POINT II. THE COURT SHOULD GRANT FINAL APPROVAL OF PLAINTIFFS' COUNSELS' EXPENSES 26
POINT III. THE REQUEST FOR CLASS REPRESENTATIVE SERVICE AWARD SHOULD BE APPROVED 27
CONCLUSION 28
-i- Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 3 of 33 PageID: 777
TABLE OF AUTHORITIES Page(s) Cases
Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir.1995) 26
Boeing Co. v. Van Gernert, 444 U.S. 472 (1980) 21
Charles v. Goodyear Tire & Rubber Co., 976 F. Supp. 321 (D.N.J. 1997) 16
Cullen v. Whitman Med. Corp., 197 F.R.D. 136 (E.D. Pa 2000) 28
Doherty v. Hertz Corp., 2014 WL 2916494 (D.N.J. June 25, 2014) 16, 20, 21
GM Pickup Truck, 55 F.3d 768 (3d Cir. 1994) 21, 26
Grisafi v. Sony Electronics Inc., 2019 WI 1930756 (D.N.J. April 30, 2019) 8
Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000) 15, 21, 22
In re Baby Prods. Antitrust Litig., 708 F.3d 163 (3d Cir. 2013) 16, 21
In re Brokerage Antitrust Litig., 579 F.3d 241 (3d Cir. 2009) 20
In re Cendant Corp. PRIDES Litig., 243 F.3d 722 (3d Cir. 2001) 13, 15, 20
In re Diet Drugs Prod. Liab. Litig., 582 F3d 524 (3d Cir. 2009) 19
In re Ins. Brokerage Antitrust Litig., 282 F.R.D. 92 (D.N.J. 2012) 24, 26
In re Merck & Co. Vytorin ERISA Litig., 2010 WL 547613 (D.N.J. Feb. 9, 2010) 19 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 4 of 33 PageID: 778
In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148 F.3d 283 (3d Cir. 1998) 15, 20, 22
In re Remeron Direct Purchaser Antitrust Litig., 2005 WL 3008808 (D.N.J. Nov. 9, 2005) 24, 28
In re Remeron End-Payor Antitrust Litig., 2005 WL 2230314 (D.N.J. 2005) 28
In re Rite Aid Corp. Sec. Litig, 396 F.3d 294 (3d. Cir. 2005) 20, 24
In re Safety Components, 166 F.Supp. 2d. 76 (D.N.J. 2001) 23, 26
In re Schering-Plough/Merck Merger Litigation, 2010 WL 1257722 (D.N.J. 2010) 16
Ins. Brokerage Antitrust Litig., 297 F.R.D. 136 (D.N.J. 2013) 26
Lanni v. New Jersey, 259 F.3d. 146 (3d. Cir. 2001) 16
Loughner v. Univ. of Pittsburg, 260 F.3d 173 (3d. Cir. 2001) 16
McCoy v. Health Net, Inc., 569 F. Supp.2d 448 (D.N.J. 2008) 13, 22, 23
McDonough v. Horizon Healthcare Servs., Inc., No. CIV.A. 09-571 SRC, 2014 WL 3396097 (D.N.J. July 9, 2014) 19
Mehling v. New York Life Ins. Co., 248 F.R.D. 455 (E.D. Pa. 2008) 23
Milliron v. T-Mobile, 423 Fed. Appx. 131 (3d Cir. 2011) 15
Milliron v. T-Mobile USA, Inc., 2009 WL 3345762 (D.N.J. Sept. 10, 2009) 25
Missouri v. Jenkins, 491 U.S. 274 (1989) 16 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 5 of 33 PageID: 779
Planned Parenthood of Central New Jersey v. Attorney General of the State of New Jersey, 297 F.3d 253 (3d Cir. 2002) 17
Public Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1985) 17
Ursic v. Bethlehem Mines, 719 F.2d 670 (3d Cir. 1983) 15
Statutes
15 U.S.C. § 230 8
18 U.S.C. §1030 8
N.J.S.A. 56:12-15 8
N.J.S.A. § 56:8-2 8
Rules
Rule 23(h) of the Federal Rules of Civil Procedure 13
-iv- Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 6 of 33 PageID: 780
PREFATORY STATEMENT
This Brief and the Certification of Bruce H. Nagel are
submitted in support of Plaintiff's Motion for an award of
attorney's fees and costs and a Class Representative Incentive
Award for Plaintiff, Richard Grisafi. After three years of
litigation by Plaintiff's counsel including participating in
several motions, engaging in discovery, and engaging in
mediation with the well-respected mediator, the Hon. Stephen
Orlofsky (ret.), a settlement) was successfully negotiated which
provides significant monetary benefits for a class of 118,954
class members. The value of the monetary benefits to the class
members is $1,673,298.00.
This result was accomplished only after Class Counsel
expended over 568 hours of work and had out-of-pocket expenses
totaling $8,675.35 with no guarantee of any recovery or
receiving any compensation for professional services or
reimbursement of their expenses
Plaintiffs seek an award of counsel fees and costs in the
amount of $418,675.35. This amount was determined in accordance
with 12.3 of the Settlement Agreement, by Judge Orlofsky in a
binding arbitration, after the parties were unable to resolve
the fee issue through negotiations. Additionally, the parties
1 The Settlement Agreement preliminarily approved by the Court appears on the Docket as D.E. 64-3.
1 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 7 of 33 PageID: 781
agreed to a Class Representative Incentive Award in the amount
of $10,000.00 pursuant to 12.2 of the Settlement Agreement.
Significantly, neither the legal fees award nor the Class
Representative Incentive Award reduces or impacts the payments
available to Class Members, as these payments will be paid by
Defendant, Sony Electronics, Inc. ("Sony") separate from the
funds available to the class. The parties did not commence
negotiations with respect to the legal fees and Class
Representative Incentive Award until they had reached an
agreement in principle regarding all other material terms of the
settlement. (Nagel Cert. 17).
Consistent with the Settlement Agreement, Sony does not
oppose the requests made by Plaintiffs in this motion and has
agreed to pay them if the Court approves this application. (See
12.3 of the Settlement Agreement). The amount of the proposed
fee award and Class Representative Incentive Award was included
in the Full Notice (Exhibit B) and Email Notice (Exhibit C) to
the Settlement Agreement which was disseminated to Class Members
pursuant to the December 7, 2020 Order Granting Preliminary
Approval (D.E. 69). This notice is also included on the website
created by the Administrator, KCC Class Action Services, LLC.
(Nagel Cert at 114). Further, the instant motion papers will
also be posted on the website created for this settlement for
the Class Members' review. (Id.). KCC, the Claims Administrator,
2 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 8 of 33 PageID: 782
confirmed that on February 19, 2021: (1) the email notice was
sent; (2) the online ads were published; and (3) the settlement
website was launched. The cut-off date for objections and opt-
outs is June 1, 2021 and there have been no objections or opt-
outs to date. (Id.).
Given the extensive work performed by Class Counsel, and
the significant and favorable recovery obtained in this
litigation, we submit that the fee award, determined by Judge
Orlofksy, acting as Arbitrator, which Plaintiff now seeks
judicial approval for, is consistent with fee awards in this
District. Similarly, the Class Representative Incentive Award is
within the range of awards approved in this Court and recognizes
the time and effort of the Class Representative which was
crucial to the successful resolution of this case. This
settlement and the relief obtained is fair, reasonable and
adequate. Id at 118. Hence, Class Counsel respectfully requests
that the Arbitrator-determined award for attorneys' fees and
costs as well as the negotiated Class Representative Incentive
Award be granted in full at the final approval hearing presently
scheduled for July 19, 2021.
3 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 9 of 33 PageID: 783
SUMMARY OF SETTLEMENT TERMS
The relief provided in this Settlement constitutes a
valuable and substantial benefit to Class Members. Class Members
who (i) purchased a new dash in the United States prior to July
12, 2017 (which is when the software update disconnecting the
dash from Sony's servers was released), (ii) were United States
residents at the time of purchase, and (iii) either registered
their dash through the Sony Essentials website or have proof of
purchase are eligible to receive $11.25. Class Members who
satisfy these conditions and whose dashes were turned on and
connected to the Sony servers as of July 12, 2017 are eligible to
receive $35. This delineation makes sense because the Class
Members whose dashes were still connected to the servers were
still actively enjoying their dashes when the forced firmware
update disconnected the units from the servers.
Sony's internal data indicates that 118,954 new dashes were
sold in the United States prior to July 12, 2017. Thus, the value
of the Settlement to the Class would be $1,673,298. Based upon
Sony's records, there are 14,108 Dash purchasers who were
actively using their devices as of 7/12/17 and these individuals
will be entitled to $35 upon filing a claim. These Dash purchase
will receive direct email notice and can use a code provided with
the notice and sign the form certification on the claim form in
lieu of providing proof of purchase. There are 68,628 Dash
4 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 10 of 33 PageID: 784
purchasers who registered their devices but were not actively
using them as of 7/12/17. These purchasers will be entitled to
$11.25 upon filing a claim, will also receive direct email
notice, and can use the code plus the certification in lieu of
providing proof of purchase. The remaining dash purchasers (i.e.,
individuals who purchased, but did not register, their dashes)
consisting of 36,218 individuals will also be entitled to $11.25
upon filing a claim. The Settlement Agreement requires a robust
media plan requiring at least 1,000,000 internet impressions
targeted to adults residing in the United States. In filing a
claim these class members must submit their receipt, picture(s)
of dash, or other circumstantial documentation showing purchase
as well as sign the form certification on the claim form. (Nagel
Cert. 110)
The chart below provides a schematic of the payments
available to the various class members:
5 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 11 of 33 PageID: 785
Group Number Payment Notice Claim
Dash purchasers who were actively using their devices Email notice as of 7/12/17 Unique proof (all (All of these of purchase purchasers who dashes were code provided 14,108 $35 registered registered; in email their devices Sony's internal notice + provided email data shows when certification addresses) registered dashes last accessed its servers)
Dash purchasers Email notice Unique proof who registered (all of purchase their devices purchasers who 68,628 code provided but were not $11.25 registered in email actively using their devices notice + them as of provided email certification 7/12/17 addresses)
Remaining dash Receipt, purchasers At least picture(s) of (i.e., 1,000,000 dash, or other individuals who internet circumstantial 36,218 $11. 25 purchased, but impressions documentation did not targeted to showing register, their adults purchase + dashes) certification
TOTAL CLASS 118,954 $1,673,298 SETTLEMENT VALUE MEMBERS
Additionally, Sony will pay the cost of notice to the Class
and for claims administration. The parties have negotiated and
agreed upon a robust notice program, which was approved by the
Court.
6 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 12 of 33 PageID: 786
Either Sony or the Claims Administration shall mail the
payments to the Authorized Claimants within sixty days following
the Final Settlement Date. (§3.11).
A. Incentive Award to the Class Representative
After reaching a settlement in principle, the parties
agreed that, subject to the Court's final approval, the named
Plaintiff who is serving as Class Representative is entitled to
seek an incentive award in recognition of the amount of time and
effort expended in acting as Class Representative. Class Counsel
seeks an incentive award for the Class Representative in the
amount of $10,000, which Sony agrees not to oppose. (§2.2) The
amount awarded by the Court for the incentive award will not
reduce the recovery to the Class Members.
B. Award of Attorneys' Fees to Class Counsel
The Parties also agreed that, subject to the Court's final
approval, Class Counsel shall be entitled to seek an award of
attorneys' fees and costs in the amount of $418,675.35 in
accordance with 12.3 of the Settlement Agreement, as determined
in the Judge Orlofsky Arbitration Award. (Nagel Cert. Exhibit
C). Sony agrees not to oppose this application. The amount
awarded by the Court for attorneys' fees will not reduce the
recovery to the Class Members. Nagel Cert. at 112.
7 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 13 of 33 PageID: 787
PROCEDURAL HISTORY
After conducting an investigation of the facts, and
analyzing the relevant legal issues in regard to the claims and
defenses asserted in the Action, Grisafi commenced this action by
filing this nationwide putative class action on April 27, 2018.
In the CAC plaintiff asserted the following claims for relief
individually and on behalf of a putative nationwide class: (1)
violation of the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C.
§1030, et seq., (2) violation of the New Jersey Consumer Fraud
Act ("CFA"), N.J.S.A. § 56:8-2, et seq., (3) violation of the
Magnuson-Moss Warranty Act, 15 U.S.C. § 230, et seq., (4)
violation of the Truth-in-Consumer Contract, Warranty and Notice
Act, N.J.S.A. 56:12-15, et seq., (5) breach of express warranty,
(6) breach of implied warranty, (7) trespass to chattels, and (8)
unjust enrichment. (Nagel Cert. 12, 18)
Sony moved to dismiss the complaint, which was opposed, and
a reply brief was filed. Judge Vasquez adjudicated Sony's first
motion to dismiss the CAC on April 30, 2019, leaving intact the
First Count alleging violation of the CFAA and the Seventh
Count, alleging Trespass to Chattels. See opinion in Grisafi v.
Sony Electronics Inc., 2019 WL 1930756 (D.N.J. April 30, 2019).
Plaintiff filed the First Amended Complaint ("FAC") on May 29,
2019, asserting the surviving CFAA and trespass to chattels
claims and repleading the previously-dismissed CFA claim. Sony
8 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 14 of 33 PageID: 788
filed its Answer to the Counts that were upheld on June 26, 2019.
Nagel Cert. ¶3)
On July 16, 2019, Sony filed its motion to dismiss the
newly revised Second Count and that motion was also fully
briefed. The parties participated in several Case Management
Conferences before Magistrate Judge Clark and exchanged formal
discovery in the form of Interrogatories, Requests for Production
of Documents and Requests for Admissions. Both parties provided
responses, and Sony began a rolling production of documents. The
parties then decided to attempt an amicable resolution and
exchanged additional informal discovery in furtherance of a
settlement. The parties participated in a full day mediation
session in Roseland, New Jersey before Judge Orlofsky (ret.) on
February 24, 2020. While the mediation provided a constructive
forum for settlement discussions, it did not result in a
settlement. After the mediation, the parties engaged in
additional settlement efforts with the assistance of Judge
Orlofsky. (Nagel Cert. ¶4-5)
On March 5, 2020, the Court entered an order dismissing the
CFA claim, as pled in the First Amended Complaint, but granted
one more opportunity for Plaintiff to replead. Plaintiff then
filed the Second Amended Complaint ("SAC"), the operative
complaint in this Action, on May 19, 2020. The SAC asserts the
9 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 15 of 33 PageID: 789
surviving CFAA and trespass to chattels claims and again repleads
the previously-dismissed CFA claim. (Nagel Cert. ¶6)
Throughout this period the parties continued their
discussions with the assistance of Judge Orlofsky. As a result of
arm's length negotiations, both before, during and after the
mediation, counsel for the parties reached an agreement to settle
this case. Counsel for the parties did not discuss the
appropriateness or amount of any application by Plaintiff's
Counsel for an award of attorneys' fees and expenses until the
substantive terms of the Settlement had been negotiated at arm's-
length and agreed upon. (Nagel Cert. 17)
The finalization of the settlement on the merits was
achieved on October 27, 2020. The issue of attorneys' fees and
expenses remained open. The motion for preliminary approval was
filed on October 28, 2020, and the Court held a hearing on that
motion on December 7, 2020 and entered an Order granting
preliminary approval that same day. (Nagel Cert. 18)
The parties were unable to resolve the issue of legal fees,
so counsel for both parties utilized binding arbitration with
Judge Orlofsky as contained in the Settlement Agreement.
Extensive briefing was submitted to Judge Orlofsky on the fee
issue, including a moving brief by plaintiff on January 16, 2021
an opposition brief on February 1, 2021 and a reply brief on
February 4, 2021. On February 12, 2021 Judge Orlofsky issued his
10 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 16 of 33 PageID: 790
binding fee award in the amount of $410,000 in fees and $8,675.35
in expenses. This is the amount we are seeking approval of in
this motion. (Nagel Cert. 113 and Exhibit C)
EXPERIENCE OF CLASS COUNSEL2
The Settlement Agreement was negotiated by Class Counsel
who is highly experienced in class action and complex
litigation. Nagel Rice, LLP, founded in 1983, is widely
recognized as one of premier litigation firms in New Jersey and
the country having handled complex actions in federal and state
courts garnering over $1 billion in settlements and verdicts.
Mr. Nagel has tried over 100 cases to conclusion and handled
over 100 appeals in federal and state court (including 12 before
the New Jersey Supreme Court). Mr. Nagel has approximately 70
published opinions in the field of class action, medical
malpractice, trial practice, product liability, consumer fraud,
health care law and other related areas of law. He has the
unique distinction of arguing three class actions before the New
Jersey Supreme Court. (Nagel Cert. at 115)
The firm has served as a lead, co-lead, co-counsel or in
Executive Committee positions in a number of court-approved
multi-million dollar class actions including: Diaz, et al v. TD
Bank, N.A., 16-2395 (D.N.J. 2018)(Court appointed co-lead
2 The firm resume of Nagel Rice, LLP is annexed to the Certification of Bruce Nagel at Exhibit A.
11 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 17 of 33 PageID: 791
counsel in $7.5 million nationwide class action settlement);
Gelis, et al v. BMW of North America, LLC, Civil Action No.
2:17-cv-7386 (D.N.J. 2021)(Court appointed co-lead in national
class action settlement valued at close to $90 million); In re:
Electrolux Home Products Ice Maker Cases, Docket No. 1:12-3341
(D.N.J. 2016)(Court appointed co-lead counsel in $20 million
nationwide class action settlement); In re: Discover Card
Payment Protection Plan Marketing and Sales Practices
Litigation, MDL No. 2217, (N.D. Ill. 2010) (Court-appointed co-
lead class counsel in $10.5 million nationwide class action
settlement alleging improper marketing and administration of its
Payment Protection Plan, Identity Theft Protection, Wallet
Protection and Credit Score Tracker products); In re: Bank of
America Credit Protection Marketing & Sales Practices
Litigation, MDL No. 2269, (N.D. Ca. 2011)(Member of Plaintiffs'
Executive Committee in $20 million nationwide class action
settlement involving Bank of America's marketing/sales practices
relating to its debt suspension/debt cancellation product,
Credit Protection); Esslinger, et al. v. HSBC Bank Nevada, N.A.
et als., 2:10-cv-03213, (E.D. Pa. 2010) (Court-appointed co-lead
class counsel in $23.5 million nationwide class action
settlement alleging improper marketing and practices related to
HSBC's debt suspension and cancellation products). Nagel Cert.
at 116.
12 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 18 of 33 PageID: 792
LEGAL ARGUMENT
POINT I
THE COURT SHOULD GRANT FINAL APPROVAL OF THE ATTORNEYS' FEE PROVISION IN THE SETTLEMENT AGREEMENT
A. Rule 23(h) Authorizes Agreements on Attorneys' Fees in Settlements
Rule 23(h) of the Federal Rules of Civil Procedure
explicitly provides, with respect to class action settlements,
that "the court may award reasonable attorney's fees and
nontaxable costs that are authorized by law or by the parties'
agreement." The awarding of fees is within the court's
discretion so long as the proper legal standard is employed,
proper procedures are followed and the court makes findings of
fact that are not clearly erroneous. In re Cendant Corp. PRIDES
Litiq., 243 F.3d 722, 727 (3d Cir. 2001) cert. den. sub nom. 534
U.S. 889 (2001); McCoy v. Health Net, Inc., 569 F. Supp.2d 448,
475 (D.N.J. 2008).
In accordance with Rule 23(h), the Parties' Settlement
Agreement and Judge Orlofsky's Arbitration Award, (Nagel Cert.
Exhibit C) Plaintiffs apply for a total fee and expense award of
$418,675.35.3 Plaintiffs' counsel have spent a total of over 568
hours working on the case and amassed a lodestar of $455,990.
3 Plaintiff Counsel's detailed time reports will be made available upon the Court's request. Since these records reflect Plaintiff Counsel's work product and other privileged
13 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 19 of 33 PageID: 793
This does not including time spent working on this fee motion,
or the additional time that will be spent responding to
questions by class members, addressing any Objections, preparing
the motion for final approval and appearing at the Final
Approval Hearing. Of course, if Final Approval is granted and an
objecting Class Members files a Notice of Appeal additional time
and expense will be incurred. (Nagel Cert. 117) A chart of the
hours worked and descriptions of the work by
attorneys/paralegals and hourly rates is attached to the Nagel
Cert. at Exhibit B.
We submit that an award of $418,675.35, which is below our
lodestar, is reasonable given the extraordinary work performed
and the results achieved. Class Counsel worked strenuously to
achieve this settlement by conducting a thorough investigation,
engaging in motion practice, extensive discovery, and
participating in adversarial litigation for over 3 years in a
complex litigation. Moreover, the fees and costs (as well as the
Class Representative Service Awards) will be paid separately
from, and in addition to, the other benefits to be paid to the
Class Members and over $1.6 million of monetary relief is
available to class members who file claims. Hence, these
requests should be approved. Nagel Cert. at ¶18.
information, Plaintiff's Counsel respectfully requests that the Court review these detailed time reports in camera.
14 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 20 of 33 PageID: 794
B. The Requested Fee Award is Reasonable
The two primary methods for assessing attorneys' fees in
class action settlements are the percentage of recovery method
and the lodestar method. In re Cendant PRIDES Litigation, supra
243 F.3d at 732.
To determine the attorney's lodestar, the court multiplies
"the number of hours he or she reasonably worked on a client's
case by a reasonable hourly billing rate for such services given
the geographical area, the nature of the services provided, and
the experience of the lawyer." Gunter v. Ridgewood Energy Corp.,
223 F.3d 190, 195 n.1 (3d Cir. 2000). The lodestar method is
"designed to reward counsel for undertaking socially beneficial
litigation in cases where the expected relief has a small enough
monetary value that a percentage of recovery method would
provide inadequate compensation." In re Prudential Ins. Co. Am.
Sales Practice Litig. Agent Actions, 148 F.3d 283, 333 (3d Cir.
1998). As explained by the Third Circuit in Ursic v. Bethlehem
Mines, 719 F.2d 670, 676 (3d Cir. 1983), "[t]his formulation
suggests a twin inquiry into reasonableness: a reasonable
hourly rate and a determination of whether it was reasonable
to expend the number of hours in a particular case."
The percentage of recovery method, which is favored in
common fund cases, is calculated by applying "a certain
15 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 21 of 33 PageID: 795
percentage to the settlement fund." Milliron v. T-Mobile United
States, 423 Fed. Appx. 131, 135 (3d Cir. 2011).
Which method is used rests within the district court's
sound discretion. Charles v. Goodyear Tire & Rubber Co., 976 F.
Supp. 321, 324 (D.N.J. 1997). As noted in Doherty v. Hertz
Corp., 2014 WL 2916494 (D.N.J. June 25, 2014), "whichever method
is chosen, 'we have noted previously that "it is sensible for a
court to use a second method of fee approval to cross check" its
initial fee calculation.'" Citing In re Baby Prods. Antitrust
Litig., 708 F.3d 163, 176-77 (3d Cir. 2013). We submit that in
this case it is appropriate to use the lodestar method and apply
the common fund method as a cross check.
C. Application of the Lodestar Method
The first step to calculate the lodestar is to determine
the appropriate hourly rate, based on the attorneys "usual
billing rate" and can consider the "prevailing market rates" in
the relevant community. In re Schering-Plough/Merck Merger
Litigation, 2010 WL 1257722 at *18 (D.N.J. 2010). The attorney
rates in this litigation have been "consistent with the market
rates for complex class actions." Loughner v. Univ. of
Pittsburg, 260 F.3d 173, 180 (3d. Cir. 2001). When attorneys'
fees are awarded, the rate at the time of the fee petition
should be used. Lanni v. New Jersey, 259 F.3d. 146, 149 (3d.
Cir. 2001); Missouri v. Jenkins, 491 U.S. 274, 283-84
16 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 22 of 33 PageID: 796
(1989)(endorsing "an appropriate adjustment for delay in
payment" by applying "current" rate).
The second step is to determine whether the billable time
was reasonably expended. See Schering-Plough, supra. "Time
expended is considered `reasonable' if the work performed was
`useful and of a type ordinarily necessary to secure the final
result obtained from the litigation.' Public Interest Research
Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir.
1985). The lodestar amount will be deemed "presumptively
reasonable" where it arises from a reasonable hourly rate and a
reasonable number of hours. See Planned Parenthood of Central
New Jersey v. Attorney General of the State of New Jersey, 297
F.3d 253, 265 n.5 (3d Cir. 2002).
The fact that the fees being sought By Plaintiffs in this
application were decided by retired Federal Judge Stephen
Orlofsky after full briefing and review of time records as part
of a binding arbitration agreed to by the parties in the
Settlement Agreement unquestionably supports approval of
Plaintiffs' fee request. (Nagel Cert. 119)
Here, counsel billed at the current billing rates which are
consistent with hourly rates routinely charged in complex class
action litigation. (Nagel Cert. at 120) The partner rates at
Nagel Rice were between $525 and $900 per hour depending on
17 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 23 of 33 PageID: 797
expertise and level of experience and associate rates were
billed at $350 per hour. (Nagel Cert. at 120 and Exhibit B.)
Similar rates have been approved by other Courts in this
District in cases where Nagel Rice LLP has been appointed as
Class Counsel. See Edwards v. Horizon Blue Cross Blue Shield of
New Jersey, Civil Action No. 2:08-cv-06160-KM-MAH (Dkt. No.
320)(Order appointing Bruce H. Nagel co-lead and approving fees
and expenses of $9,000,000 and approving hourly rate of $850 for
senior partners); Gelis v BMW N.A., (D.N.J. 2021) Civil Action
No. 2:17-cv-07386 (Dkt._)(order to be entered)(Nagel Rice and
two other firms appointed co-lead counsel and awarded $3.7
million in fees and expenses, Court approved $900 per hour for
most senior partners); Donnenfeld v. Petro Inc. d/ba Petro Home
Services, Eastern District of New York, Civil Action No. 17-
02310. Court appointed lead counsel and approving fees and
expenses of $975,000 and approving hourly rates of between $550
and $900 for senior partners.) Filannino-Restifo et al v. TD
Bank, NA, No. 1:16-cv-02395-JBS-JS (Dkt. No. 38) (Order
appointing Bruce H. Nagel and 3 others as Class Counsel and
approving fees and expenses of approximately $2,000,000 with
partner rates between $550 and $800); Kuzian v. Electrolux Home
Prod., Inc., No. CIV. 12-3341 NLH/AMD (D.N.J. Feb. 10, 2016)
[Dkt. No. 189] (Order approving fees and expenses of $2,750,000
to Nagel Rice LLP as Co-lead Counsel based on hourly rates of
18 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 24 of 33 PageID: 798
partners between $500 and $800 and hourly rates of associates
between $300 and $500); McDonough v. Horizon Healthcare Servs.,
Inc., No. CIV.A. 09-571 SRC, 2014 WL 3396097, at *11 (D.N.J.
July 9, 2014) aff'd sub nom. McDonough v. Horizon Blue Cross
Blue Shield of New Jersey, No. 14-3558, 2015 WL 5573821 (3d Cir.
Sept. 23, 2015) (Appointing Nagel Rice LLP as Class Counsel and
finding "the requested fee award is warranted. Plaintiffs have
demonstrated a lodestar of $3.4 million based on billing rates
consistent with the market rate for complex class actions." In
that case, partner rates were between $525 and $750). (Nagel
Cert. at 121)
Further, this district has approved hourly rates in the
range sought in this case. In Re Volkswagen Timing Chain Product
Liability Litigation, Civil Action No. 16-2765 (JLL)(JAD) the
court approved counsel's hourly rates of $850.00 per hour for
senior partner. See e.g. In re Merck & Co. Vytorin ERISA
Litiq., No. 08-CV-285 (DMC), 2010 U.S. Dist LEXIS 12344, at *45,
2010 WL 547613 (D.N.J. Feb. 9, 2010) (approving rates between
$250 and $850 per hour).
Once the lodestar amount is calculated, the court "may
increase or decrease that amount by applying a lodestar
multiplier," which "attempts to account for the contingent
nature or risk involved in a particular case and the quality of
the attorney's work." In re Diet Drugs Prod. Liab. Litig., 582
19 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 25 of 33 PageID: 799
F3d 524, 540 (3d Cir. 2009). The lodestar multiplier is obtained
by dividing the proposed fee award by the lodestar amount. In re
Brokerage Antitrust Litig., 579 F.3d 241, 280 (3d Cir. 2009).
Courts routinely find in complex class actions that a
multiplier between one and four of counsel's lodestar is fair
and reasonable, Doherty v. Hertz Corp., 2014 WL 2916494, at *7
(D.N.J. June 25, 2014).
However, in this case, we are not asking for a multiplier
since Plaintiff's counsel's actual lodestar already exceeds the
maximum amount of attorney's fees that Judge Orlofsky ruled we
are entitled to and the Settlement Agreements binds us to seek
no more than that number. (Nagel Cert. at 122)
Common Fund Cross-Check
As a cross-check, a percentage of common fund should also
be considered.4 In re Cendant, 243 F.3d at 736-742; In re Rite
Aid Corp. Sec. Litig, 396 F.3d 294, 306-07 (3d. Cir. 2005)
(Percentage of common fund is proper approach to awarding
counsel fees); In re Prudential, 148 F.3d 283, 333 (3d. Cir.
1998).
In undertaking a common fund analysis, the court must first
value the settlement and then decide what percentage of the
4 In Cendant, 243 F.3d at 734, the Third Circuit approved the use of the common fund method as appropriate despite the fact that it was not a traditional common fund case, since the unclaimed portion of the fund would return to Cendant.
20 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 26 of 33 PageID: 800
settlement should be awarded as attorneys' fees. See, GM Pickup
Truck, 55 F.3d 768, 822 (3d Cir. 1994); Varacallo v. Mass. Mut.
Life Ins. Co., 226 F.R.D.207, 249 (D.N.J. 2005). In this case
the total value of the monetary benefits of the settlement to
class members is estimated to be approximately $1.67 million,
Consequently, the total requested fee award of $410,000 (not
including our expenses) is approximately 24.5% of the $1.67
million common fund. (Nagel Cert. 123)5.
D. Application of Gunter Factors Confirms That Fee Request is Reasonable
The Third Circuit in Gunter v. Ridgewood Energy Corp., 223
F.3d 190, 195 (3d. Cir. 2000), set forth several factors to be
considered by the court when setting a fee award in a common
fund case:
(1) the size of the fund created and the number of persons benefited; (2) the presence or absence of substantial objections by members of the class to the settlement terms and/or fees requested by counsel; (3) the skill and efficiency of the attorneys involved; (4) the complexity and duration of the litigation; (5) the risk of
5 As the claims deadline is set for June 1, 2021 it cannot be determined what the "take rate" will be for the class, and thus the amount actually claimed by Class Members out of the maximum value of settlement. The case law supports an award of attorney's fees based upon the monies potentially available to be claimed rather than the amount ultimately claimed. Doherty v. Hertz Corp., at *7; Boeing Co. v. Van Gemert, 444 U.S. 472 (1980); In re Baby Prods. Antitrust Litig., 708 F.3d 163, 177 (3d Cir. 2013).
21 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 27 of 33 PageID: 801
nonpayment; (6) the amount of time devoted to the case by plaintiffs' counsel; and (7) the awards in similar cases.
In Prudential, supra, 148 F.3d at 336-40, the court
detailed three additional facts which may be relevant in certain
cases: "(1) the value of benefits accruing to class members
attributable to the efforts of class counsel as opposed to the
efforts of other groups, such as governmental agencies
conducting investigations; (2) the percentage fee that would
have been negotiated had the case been subject to a private
contingent fee agreement at the time counsel was retained; and
(3) any innovative terms of settlement."
Each of these factors weigh heavily in favor of granting
the fees and disbursements requested:
1. Size of Fund and Persons Benefited
This settlement provides significant monetary relief to the
class members. There are 118,954 class members who are eligible
for a cash award if they file a claim. In short, this settlement
has a value in excess of $1.67 million which is significant.
2. Presence or Absence of Substantial Objections
The deadline by which Class Members may object is June 1,
2021. To date, not one objection was received. The lack of
objections is a factor and supports the reasonableness of the
fee request. McCoy, supra, 569 F.Supp. 2d. at 476. Gunter, 223
F.3d at 195 n.l.
22 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 28 of 33 PageID: 802
3. Skill and Efficiency of Class Counsel
As pointed out in McCoy, the quality of class counsel's
representation is "measured by the quality of the result
achieved, the difficulties faced, the speed and efficiency of
the recovery, the standing, experience and expertise of the
counsel, the skill and professionalism with which counsel
prosecuted the case and the performance and quality of opposing
counsel." McCoy, supra, 569 F.Supp. 2d. at 476, quoting Mehlinq
v. New York Life Ins. Co., 248 F.R.D. 455, 465 (E.D. Pa. 2008);
In re Safety Components, 166 F.Supp. 2d. 76, 96 (D.N.J. 2001)
(Lechner, J.) (The "single clearest factor reflecting the
quality of class counsel's services to the class are the results
obtained"). The results in this case are in large measure based
upon the skill with which Class Counsel handled this litigation.
The significant benefits obtained flow directly from Class
Counsel's aggressive pursuit of the litigation, discovery
efforts and vigorous negotiations. Skilled Class Counsel
negotiated this settlement, and did so without facing the
enormous risks of trial, let alone the risks of certifying a
class.
4. Complexity and Duration of the Litigation
This class action took more than 3 years to bring to a
resolution. Plaintiffs' Counsel engaged in extensive work
through discovery, motion practice, and mediation in order to
23 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 29 of 33 PageID: 803
bring the case to a successful conclusion. The complexity of the
action and the highly efficient work performed provides ample
basis for this court to approve the requested fee award. See In
re Rite Aid, supra, 396 F.3d at 305 (district court did not
abuse its discretion in concluding that - given legal issues,
duration of the case, discovery and necessity of resorting to
mediation to reach settlement - the matter was complex).
5. Risk of Non-Payment
As the Court stated in In re Remeron Direct Purchaser
Antitrust Litig., 2005 WI, 3008808 (D.N.J. Nov. 9, 2005) "[a]
determination of a fair fee must include consideration of the
sometimes undesirable characteristics of a contingent [class]
action, including the uncertain nature of the fee, the wholly
contingent outlay of large out-of-pocket sums by plaintiffs, and
the fact that the risk of failure and nonpayment in a [class
action] are extremely high." Id. at *14 (citations omitted).
Indeed, courts recognize the risk of non-payment as a major
factor in considering an award of attorney fees. In re Ins.
Brokerage Antitrust Litig., 282 F.R.D. 92, 122 (D.N.J. 2012).
Here, Class Counsel undertook this litigation more than 3
years ago solely on a contingent fee basis. Plaintiffs' Counsel
expended over 568 hours and over $8,000 in expenses. Class
Counsel undertook this litigation which had a risk of no
24 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 30 of 33 PageID: 804
recovery or inability to certify a class and resolved the case
with enormous benefits to the class. (Nagel Cert. at 124.)
At the time the case settled, there were several hurdles
yet to be overcome including obtaining class certification and
successfully trying the case to verdict. All of these risks
undertaken by bringing this litigation on a contingency basis
weighs heavily in favor of granting the fee request. Id.
6. Amount of Time Devoted by Plaintiffs' Counsel
Plaintiffs' Counsel spent over 568 hours to date on this
action in analysis, investigation, drafting, strategy,
discovery, motion practice and intricate settlement
negotiations. A total of at least seven attorneys and support
staff contributed to this case. The effort resulted in an
extraordinary settlement which was reached prior to trial. Nagel
Cert. at 125 and Exhibit B.
7. Awards in Similar Cases
In Milliron v. T-Mobile USA, Inc., No. CIV.A. 08-4149
(JLL), 2009 WL 3345762, at *13 (D.N.J. Sept. 10, 2009), as
amended (Sept. 14, 2009), aff'd, 423 F. App'x 131 (3d Cir.
2011), the court noted that this factor requests that the court
(1) compare the award requested with other awards in comparable
settlements; and (2) ensure that the award is consistent with
what the attorney would have received had the fee been
negotiated on the open market. After conducting an analysis, in
25 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 31 of 33 PageID: 805
Milliron, Judge Linares approved a fee of 33 1/3% finding that
this "is a standard figure for recovery in a consumer class
action of the contingent-fee variety." See also General Motor
Pickup Truck, 55 F.3d at 822 ("[F]ee awards have ranged from
nineteen percent to forty-five percent of the settlement fund");
In re Ins. Brokerage Antitrust Litig., 297 F.R.D. 136 (D.N.J.
2013) (court approves fee award in amount of $3.465 million, or
33% of settlement fund).
We are seeking an award of approximately 24.5% of the value
of the settlement. This request is clearly within the range of
fees awarded in similar cases by courts in this District and the
Third Circuit. Applying the lodestar method, with a percentage
of common funds crosscheck, the fee application is fair and
reasonable and should be granted. (Nagel Cert. 126).
POINT II
THE COURT SHOULD GRANT FINAL APPROVAL OF PLAINTIFFS' COUNSELS' EXPENSES
As the Court held in In re Ins. Brokerage Antitrust Litig.,
297 F.R.D. 136, 157-58 (D.N.J. 2013), "Counsel for a class
action is entitled to reimbursement of expenses that were
adequately documented and reasonably and appropriately incurred
in the prosecution of the class action." In re Safety
Components Inc., 166 F.Supp.2d 72, 108 (D.N.J.2001) (citing
Abrams v. Lightolier, Inc., 50 F.3d 1204, 1225 (3d Cir.1995)).
26 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 32 of 33 PageID: 806
In this case Class Counsel has incurred $8,867.35 in
expenses that were for the common benefit of Class Members.
These expenses will be paid out of the $418,675.35 fee and
expense request. These expenses include, but are not limited to,
the costs of Xerox and postage, travel expenses, legal research,
mediation, arbitration and messengers, as well as court fees.
Nagel Cert. 127.
The payment of these expenses should be approved as part of
this application.
POINT III
THE REQUEST FOR CLASS REPRESENTATIVE SERVICE AWARD SHOULD BE APPROVED
Pursuant to §2.2 of the Settlement Agreement, Sony has
agreed to pay a Class Representative Incentive Award in the
amount of $10,000 to Plaintiff, Richard Grisafi, subject to
Court approval. Mr. Grisafi was actively involved in this case,
meeting in our office, carefully reviewing pleadings, turning
over documents and the actual Sony dash units in his possession,
responding to discovery requests. In view of the time devoted to
this action, the risks involved, and the significant benefits
obtained on behalf of the Class, the Class Representative
Service Award should be approved by this Court. (Nagel Cert.
128).
27 Case 2:18-cv-08494-JMV-JBC Document 72-1 Filed 05/04/21 Page 33 of 33 PageID: 807
It has been long recognized by numerous courts that the
time, risk, and benefits to the class should not go
unrecognized. See, In re Remeron End-Payor Antitrust Litig.,
2005 WL 2230314, at *32 (D.N.J. 2005); Cullen v. Whitman Med.
Corp., 197 F.R.D. 136, 145 (E.D. Pa 2000). The amount sought is
well within amounts approved in a variety of class actions. See,
In re Remeron Direct Purchase Antitrust Litigation, 2005 WL
3008808 (D.N.J. 2005) and cases cited therein. The incentive
award is both justified and reasonable and this Court should
grant approval of the payment.
CONCLUSION
For all of the foregoing reasons, we respectfully request
that this Court award Plaintiffs' Counsel the payment of
$418,675.35 in attorneys' fees and expenses, and approve the
Class Representative Service Award in the amount of $10,000 for
Richard Grisafi, in his capacity as the Class Representative.
NAGEL RICE, LLP Attorneys for Plaintiffs
By: s/Bruce H. Nagel BRUCE NAGEL
Dated: May 2021
28 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 1 of 31 PageID: 808
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
RICHARD GRISAFI, on behalf of Case No. No.18-8494-JMV-JBC himself and the Putative Class Civil Action Plaintiff,
v .
SONY ELECTRONICS INC.
Defendant.
CERTIFICATION OF BRUCE H. NAGEL IN SUPPORT OF PLAINTIFFS'S UNOPPOSED MOTION FOR AWARD OF ATTORNEY'S FEES AND EXPENSES, AND CLASS REPRESENTATIVE INCENTIVE AWARD
I, BRUCE H. NAGEL, of full age, do hereby certify:
1. I am an attorney at law of the state of New Jersey and
a founding partner in the law firm Nagel Rice, LLP. I submit this
declaration in support of the within Motion for Preliminary
Approval of the Class Action Settlement in the above entitled
action. I have been involved in the prosecution of this action
throughout and I am thoroughly familiar with the proceedings herein
and have personal knowledge of the matters set forth herein.
2. After conducting an investigation of the facts, and
analyzing the relevant legal issues in regard to the claims and
defenses asserted in the Action, we commenced this action on behalf
of Richard Grisafi by filing this nationwide putative class action
on April 27, 2018 set forth in eight counts. Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 2 of 31 PageID: 809
3. Sony moved to dismiss the complaint, which was opposed,
and a reply brief was filed. Judge Vasquez adjudicated Sony's first
motion to dismiss the CAC on April 30, 2019, leaving intact the
First Count alleging violation of the CFAA and the Seventh Count,
alleging Trespass to Chattels. See opinion in Grisafi v. Sony
Electronics Inc., 2019 WL 1930756 (D.N.J. April 30, 2019).
Plaintiff filed the First Amended Complaint ("FAC") on May 29,
2019, asserting the surviving CFAA and trespass to chattels claims
and repleading the previously-dismissed CFA claim. Sony filed its
Answer to the Counts that were upheld on June 26, 2019.
4. On July 16, 2019, Sony filed its motion to dismiss the
newly revised Second Count and that motion was also fully briefed.
The parties participated in several Case Management Conferences
before Magistrate Judge Clark and exchanged formal discovery in
the form of Interrogatories, Requests for Production of Documents
and Requests for Admissions. Both parties provided responses, and
Sony began a rolling production of documents.
5. The parties then decided to attempt an amicable
resolution and exchanged additional informal discovery in
furtherance of a settlement. The parties participated in a full
day mediation session in Roseland, New Jersey before Judge Orlofsky
(ret.) on February 24, 2020. While the mediation provided a
constructive forum for settlement discussions, it did not result
in a settlement. After the mediation, the parties engaged in
2 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 3 of 31 PageID: 810
additional settlement efforts with the assistance of Judge
Orlofsky.
6. On March 5, 2020, the Court entered an order dismissing
the CFA claim, as pled in the First Amended Complaint, but granted
one more opportunity for Plaintiff to replead. We then filed the
Second Amended Complaint ("SAC"), the operative complaint in this
Action, on May 19, 2020. The SAC asserts the surviving CFAA and
trespass to chattels claims and again repleads the previously-
dismissed CFA claim.
7. Throughout this period the parties continued their
discussions with the assistance of Judge Orlofsky. As a result of
arm's length negotiations, both before, during and after the
mediation, counsel for the parties reached an agreement to settle
this case. Counsel for the parties did not discuss the
appropriateness or amount of any application by Plaintiff's
Counsel for an award of attorneys' fees and expenses until the
substantive terms of the Settlement had been negotiated at arm's-
length and agreed upon.
8. The finalization of the settlement on the merits was
achieved on October 27, 2020. The issue of attorneys' fees and
expenses remained open. The motion for preliminary approval was
filed on October 28, 2020, and the Court held a hearing on that
motion on December 7, 2020 and entered an Order granting
preliminary approval that same day.
3 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 4 of 31 PageID: 811
9. The relief provided in this Settlement constitutes a
valuable and substantial benefit to Class Members. Class Members
who (i) purchased a new dash in the United States prior to July
12, 2017 (which is when the software update disconnecting the dash
from Sony's servers was released), (ii) were United States
residents at the time of purchase, and (iii) either registered
their dash through the Sony Essentials website or have proof of
purchase are eligible to receive $11.25. Class Members who satisfy
these conditions and whose dashes were turned on and connected to
the Sony servers as of July 12, 2017 are eligible to receive $35.
This delineation makes sense because the Class Members whose dashes
were still connected to the servers were still actively enjoying
their dashes when the forced firmware update disconnected the units
from the servers.
10. Sony's internal data indicates that 118,954 new dashes
were sold in the United States prior to July 12, 2017. Thus, the
value of the Settlement to the Class would be $1,673,298. Based
upon Sony's records, there are 14,108 Dash purchasers who were
actively using their devices as of 7/12/17 and these individuals
will be entitled to $35 upon filing a claim. These Dash purchase
will receive direct email notice and can use a code provided with
the notice and sign the form certification on the claim form in
lieu of providing proof of purchase. There are 68,628 Dash
purchasers who registered their devices but were not actively using
4 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 5 of 31 PageID: 812
them as of 7/12/17. These purchasers will be entitled to $11.25
upon filing a claim, will also receive direct email notice, and
can use the code plus the certification in lieu of providing proof
of purchase. The remaining dash purchasers (i.e., individuals who
purchased, but did not register, their dashes) consisting of 36,218
individuals will also be entitled to $11.25 upon filing a claim.
The Settlement Agreement requires a robust media plan requiring at
least 1,000,000 internet impressions targeted to adults residing
in the United States. In filing a claim these class members must
submit their receipt, picture(s) of dash, or other circumstantial
documentation showing purchase as well as sign the form
certification on the claim form.
11. Additionally, Sony will pay the cost of notice to the
Class and for claims administration. The parties have negotiated
and agreed upon a robust notice program, which was approved by the
Court. In addition, the parties have agreed that the Named
Plaintiff who is the Settlement Class Representative may request
that the Court approve an Incentive Award in the amount of $10,000.
12. The award of Attorneys' Fee and costs, for which we are
now seeking approval by this Court, is also a benefit to the class.
Sony agrees not to oppose this application. The amount awarded by
the Court for attorneys' fees will not reduce the recovery to the
Class Members.
13. The parties were unable to resolve the issue of legal
5 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 6 of 31 PageID: 813
fees, so we utilized binding arbitration with Judge Orlofsky as
contained in the Settlement Agreement. We submitted extensive
briefing to Judge Orlofsky on the fee issue, including a moving
brief by plaintiffs on January 16, 2021 an opposition brief on
February 1, 2021 and a reply brief on February 4, 2021. On February
12, 2021, Judge Orlofsky issued his binding fee award in the amount
of $410,000 in fees and $8,675.35 in expenses. A true and correct
copy of Judge Orlofksy's Arbitration Award is annexed hereto as
Exhibit C. This is the amount we are seeking approval of in this
motion.
14. The amount of the proposed fee award and Class
Representative Incentive Award was included in the Full Notice
(Exhibit B) and Email Notice (Exhibit C) to the Settlement
Agreement which was disseminated to Class Members pursuant to the
December 7, 2020 Order Granting Preliminary Approval (D.E. 69).
This notice is also included on the website created by the
Administrator, KCC Class Action Services, LLC. Further, the
instant motion papers will also be posted on the website created
for this settlement for the Class Members' review. KCC, the Claims
Administrator, confirmed that on February 19, 2021: (1) the email
notice was sent; (2) the online ads were published; and (3) the
settlement website was launched. The cut-off date for objections
and opt-outs is June 1, 2021 and there have been no objections or
opt-outs to date.
6 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 7 of 31 PageID: 814
15. As set forth in the Firm Resume, Class Counsel is highly
experienced in class action and complex litigation. Nagel Rice,
LLP, founded in 1983, is widely recognized as one of premier
litigation firms in New Jersey and the country having handled
complex actions in federal and state courts garnering over $1
billion in settlements and verdicts. I have tried over 100 cases
to conclusion and handled over 100 appeals in federal and state
court (including 12 before the New Jersey Supreme Court). I have
approximately 70 published opinions in the field of class action,
medical malpractice, trial practice, product liability, consumer
fraud, health care law and other related areas of law. He has the
unique distinction of arguing three class actions before the New
Jersey Supreme Court. A true and correct copy of the Firm Resume
is annexed hereto as Exhibit A.
16. The firm has served as a lead, co-lead, co-counsel or in
Executive Committee positions in a number of court-approved multi-
million dollar class actions including: Diaz, et al v. TD Bank,
N.A., 16-2395 (D.N.J. 2018)(Court appointed co-lead counsel in
$7.5 million nationwide class action settlement); Gelis, et al v.
BMW of North America, LLC, Civil Action No. 2:17-cv-7386 (D.N.J.
2021)(Court appointed co-lead in national class action settlement
valued at close to $90 million); In re: Electrolux Home Products
Ice Maker Cases, Docket No. 1:12-3341 (D.N.J. 2016)(Court
appointed co-lead counsel in $20 million nationwide class action
7 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 8 of 31 PageID: 815
settlement); In re: Discover Card Payment Protection Plan
Marketing and Sales Practices Litigation, MDL No. 2217, (N.D. Ill.
2010) (Court-appointed co-lead class counsel in $10.5 million
nationwide class action settlement alleging improper marketing and
administration of its Payment Protection Plan, Identity Theft
Protection, Wallet Protection and Credit Score Tracker products);
In re: Bank of America Credit Protection Marketing & Sales
Practices Litigation, MDL No. 2269, (N.D. Ca. 2011)(Member of
Plaintiffs' Executive Committee in $20 million nationwide class
action settlement involving Bank of America's marketing/sales
practices relating to its debt suspension/debt cancellation
product, Credit Protection); Esslinger, et al. v. HSBC Bank
Nevada, N.A. et als., 2:10-cv-03213, (E.D. Pa. 2010) (Court-
appointed co-lead class counsel in $23.5 million nationwide class
action settlement alleging improper marketing and practices
related to HSBC's debt suspension and cancellation products).
17. In accordance with Rule 23(h), the Parties' Settlement
Agreement and Judge Orlofsky's Arbitration Award, Plaintiffs apply
for a total fee and expense award of $418,675.35. Plaintiffs'
counsel have spent a total of over 568 hours working on the case
and amassed a lodestar of $455,990. This does not including time
spent working on this fee motion, or the additional time that will
be spent responding to questions by class members, addressing any
Objections, preparing the motion for final approval and appearing
8 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 9 of 31 PageID: 816
at the Final Approval Hearing. Of course, if Final Approval is
granted and an objecting Class Members files a Notice of Appeal
additional time and expense will be incurred. A schedule attached
hereto as Exhibit B, is a summary indicating the amount of time
spent by each attorney or paralegal involved in the Action based
on various tasks, and the lodestar calculation based on Nagel
Rice's current billing rates. Plaintiff Counsel's detailed time
reports will be made available upon the Court's request. Since
these records reflect Plaintiff Counsel's work product and other
privileged information, Plaintiff's Counsel respectfully requests
that the Court review these detailed time reports in camera if the
Court deems review necessary.
18. We submit that an award of $418,675.35, which is below
our lodestar, is reasonable given the extraordinary work performed
and the results achieved. This settlement and the relief obtained
is fair, reasonable and adequate. Class Counsel worked strenuously
to achieve this settlement by conducting a thorough investigation,
engaging in motion practice, extensive discovery, and
participating in adversarial litigation for over 3 years in a
complex litigation. Moreover, the fees and costs (as well as the
Class Representative Service Awards, whose contributions were
crucial to the successful resolution of this case) will be paid
separately from, and in addition to, the other benefits to be paid
to the Class Members and over $1.6 million of monetary relief is
9 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 10 of 31 PageID: 817
available to class members who file claims. Hence, these requests
should be approved.
19. The fact that the fees being sought By Plaintiffs in
this application were decided by retired Federal Judge Stephen
Orlofsky after full briefing and review of time records as part of
a binding arbitration agreed to by the parties in the Settlement
Agreement unquestionably supports approval of Plaintiffs' fee
request.
20. Here, counsel billed at the current billing rates which
are consistent with hourly rates routinely charged in complex class
action litigation. The partner rates at Nagel Rice were between
$525 and $900 per hour depending on expertise and level of
experience and associate rates were billed at $350 per hour. See
Exhibit B annexed hereto.
21. Similar rates have been approved by other Courts in this
District in cases where Nagel Rice LLP has been appointed as Class
Counsel. See Edwards v. Horizon Blue Cross Blue Shield of New
Jersey, Civil Action No. 2:08-cv-06160-KM-MAH (Dkt. No. 320)(Order
appointing Bruce H. Nagel co-lead and approving fees and expenses
of $9,000,000 and approving hourly rate of $850 for senior
partners); Gelis v BMW N.A., (D.N.J. 2021) Civil Action No. 2:17-
cv-07386 (Order to be entered) (Dkt ) (Nagel Rice and two other
firms appointed co-lead counsel and awarded $3.7 million in fees
and expenses, Court approved $900 per hour for most senior
10 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 11 of 31 PageID: 818
partners); Donnenfeld v. Petro Inc. d/ba Petro Home Services,
Eastern District of New York, Civil Action No. 17-02310. Court
appointed lead counsel and approving fees and expenses of $975,000
and approving hourly rates of between $550 and $900 for senior
partners.) Falannino-Restifo et al v. TD Bank, NA, No. 1:16-cv-
02395-JBS-JS (Dkt. No. 38) (Order appointing Bruce H. Nagel and 3
others as Class Counsel and approving fees and expenses, of
approximately $2,000,000 with partner rates between $550 and
$800); Enzian v. Electrolux Home Prod., Inc., No. CIV. 12-3341
NLH/AMD (D.N.J. Feb. 10, 2016) [Dkt. No. 189] (Order approving
fees and expenses of $2,750,000 to Nagel Rice LLP as Co-lead
Counsel based on hourly rates of partners between $500 and $800
and hourly rates of associates between $300 and $500); McDonough
v. Horizon Healthcare Servs., Inc., No. CIV.A. 09-571 SRC, 2014 WL
3396097, at *11 (D.N.J. July 9, 2014) aff'd sub nom. McDonough v.
Horizon Blue Cross Blue Shield of New Jersey, No. 14-3558, 2015 WL
5573821 (3d Cir. Sept. 23, 2015) (Appointing Nagel Rice LLP as
Class Counsel and finding "the requested fee award is warranted.
Plaintiffs have demonstrated a lodestar of $3.4 million based on
billing rates consistent with the market rate for complex class
actions." In that case, partner rates were between $525 and $750).
22. However, in this case, we are not asking for a multiplier
since Plaintiff's counsel's actual lodestar already exceeds the
maximum amount of attorney's fees that Judge Orlofksy ruled we are
11 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 12 of 31 PageID: 819
entitled to and the Settlement Agreements binds us to seek no more
than that number.
23. In this case the total value of the monetary benefits of
the settlement to class members is estimated to be approximately
$1.67 million, Consequently, the total requested fee award of
$410,000 (not including our expenses) is approximately 24.5% of
the $1.67 million common fund.
24. Here, Class Counsel undertook this litigation more than
3 years ago solely on a contingent fee basis. Plaintiffs' Counsel
expended over 568 hours and over $8,000 in expenses. Class Counsel
undertook this litigation which had a risk of no recovery or
inability to certify a class and resolved the case with enormous
benefits to the class.
25. At the time the case settled, there were several hurdles
yet to be overcome including obtaining class certification and
successfully trying the case to verdict. All of these risks
undertaken by bringing this litigation on a contingency basis
weighs heavily in favor of granting the fee request.
26. Plaintiffs' Counsel spent over 568 hours to date on this
action in analysis, investigation, drafting, strategy, discovery,
motion practice and intricate settlement negotiations. A total of
at least 7 attorneys and support staff contributed to this case.
The effort resulted in an extraordinary settlement which was
reached prior to trial. See Exhibit B hereto.
12 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 13 of 31 PageID: 820
27. We are seeking an award of approximately 24.5% of the
value of the settlement. This request is clearly within the range
of fees awarded in similar cases by courts in this District and
the Third Circuit. Applying the lodestar method, with a percentage
of common funds crosscheck, the fee application is fair and
reasonable and should be granted.
28. In this case Class Counsel has incurred $8,867.35 in
expenses that were for the common benefit of Class Members. These
expenses will be paid out of the $418,675.35 fee and expense
request. These expenses include, but are not limited to, the costs
of Xerox and postage, travel expenses, legal research, mediation,
arbitration and messengers, as well as court fees.
29. Pursuant to §2.2 of the Settlement Agreement, Sony has
agreed to pay a Class Representative Incentive Award in the amount
of $10,000 to Plaintiff, Richard Grisafi, subject to Court
approval. Mr. Grisafi was actively involved in this case, meeting
in our office, carefully reviewing pleadings, turning over
documents and the actual Sony dash units in his possession,
responding to discovery requests. In view of the time devoted to
this action, the risks involved, and the significant benefits
obtained on behalf of the Class, the Class Representative Service
Award should be approved by this Court.
13 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 14 of 31 PageID: 821
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false I am subject to punishment.
Date: May 4, 2021 s/ Bruce H. Nagel BRUCE H. NAGEL
14 Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 15 of 31 PageID: 822
EXHIBIT A Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 16 of 31 PageID: 823
NAGEL RICE, LLP
Nagel Rice, LLP, founded in 1983, is widely recognized as one of the premier litigation firms in the New York metropolitan area having handled complex actions in federal and state courts throughout the county and garnering over $1 billion in settlement and verdicts. The firm has the distinction of having over 200 settlements and verdicts in excess of one million dollars. The firm's experience in class action litigation has been extensive and varied.
The firm has served as lead, co-counsel or in Executive Committee positions in numerous State and Federal class actions and MDL's, including•
NEW JERSEY CLASS ACTIONS
Gelis v BMW NA, District of New Jersey, Civil Action No. 17-07386, Court appointed co-lead counsel in nationwide class involving 575,024 vehicles containing defective timing chains in several models and model year BMW's. Final Approval of Class Action Settlement granted in settled valued at approximately $90 million, counsel awarded $3.7 in legal fees.
Donnenfeld v Petro Inc., d/b/a Petro Home Services, Eastern District of New York, civil Action No. 17-02310. Court appointed lead counsel in $3 million nationwide class action settlement involving Petro marketing and sale of "ceiling price plan" contract to its home heating oil customers and providing monetary relief to each of the 92,546 ceiling plan customers of Petro during the Class Period. Approved by Honorable Steven I. Locke, U.S.M.J. on March 26, 2020.
Venneman v. BMW Fin. Servs. NA, LLC, Civil Action No. 09-5672, United States District Court, District of New Jersey. Preliminary approval granted in class action involving claims against BMW by servicemembers under the Servicemembers Civil Relief Act; Nagel Rice appointed co-Class Counsel.
Edwards, et al, v Horizon Blue Cross Blue Shield of New Jersey, District of New Jersey, Civil Action No. 08-6160. After 12 years of litigation, court appointed co- lead counsel in $160 million class action settlement involving ERISA claims and under reimbursement of surgery center fees. Approved by the Honorable Kevin McNulty, U.S.D.J. on June, 29, 2018.
Diaz, et al v. TD Bank, NA., District of New Jersey, Civil Action No.: 16-2395. Court appointed co-lead counsel in $7 5 million nationwide class action settlement involving consumer fraud and other claims approved by the Honorable Jerome B. Simandle, U.S.D.J. on January 12, 2108.
Kuzian, et al. v. Electrolux Home Products, Inc., District of New Jersey, Civil Action No.: 12-03341. Court appointed co-lead counsel in a nationwide consumer class action involving consumer fraud claims regarding defective ice-makers Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 17 of 31 PageID: 824
impacting over 100,000 class members, resulting in a $20 million nationwide settlement approved by the Honorable Noel L. Hillman, U.S.D.J. on February 10, 2016. Published opinion substantially defines the causes of action, Kuzian v. Electrolux Home Products, 937 F.Supp. 2d 599 (D.N.J. 2013).
Drazin v. Horizon Blue Cross-Blue Shield of New Jersey, 06-06219, United States District Court, District of New Jersey. Lead Counsel in class action for injunctive relief and damages relating to coverage of eating disorders as biologically based mental illnesses under the New Jersey Mental Health Parity Act; resulting in settlement of $19 million and multiple business reforms affecting 1 5 million class members; final approval granted by Hon. Faith Hochberg; Court finds Nagel Rice to be "fine lawyers," and "honorable counsel" who "settled on terms that provided class members with very valuable relief" Drazin v. Horizon Blue Cross Blue Shield of NJ, 832 F.Supp. 2d 432 (D.N.J. 2011), aff'd. 528 Fed. Appx. 211 (3d. Cir. 2013)
O'Hara, et. al v. Medieval Times, 10-751, United States District Court of the District of New Jersey. Court-appointed co-lead class counsel in nationwide class action regarding violations of the Fair and Accurate Credit Transaction Act, resulting in multi-million dollar settlement, and other injunctive relief
Finkelman v. Nat '1 Football League, 877 F.3d 504 (3d Cir. 2017) and Finkelman v. Nat '1 Football League 810 F.3d 187 (3d Cir. 2016), Lead counsel in consumer class action brought on behalf of all attendees at the Super Bowl who bought tickets in the secondary market at prices above the face value of the tickets. Action asserts statutory violations of the New Jersey Consumer Fraud Act due to withholding more than 5% of tickets from sale to the public. Third Circuit reversed trial court and found Article III standing and certified a question to the New Jersey Supreme Court. After the New Jersey Supreme Court's opinion in Finkelman v. Nat'l Football League, 236 N.J. 280 (2019) the Third Circuit dismissed.
Torres-Hernandez, et al. v. STI Prepaid, et.al, 08-1089, United States District Court, District of New Jersey. Court appointed co-lead counsel in nationwide consumer class action involving sale of prepaid calling cards; $8.2 million dollar settlement granted final approval.
De Vito v. Aetna, 07-418 (FSH) United States District Court, District of New Jersey. Lead counsel in class action for injunctive relief and damages relating to coverage of eating disorders as biologically based mental illnesses under the New Jersey Mental Health Parity Act. Settlement involving reimbursement of past denials and multiple business reforms affecting 250,000 class members. De Vito v. Aetna, 536 F.Supp.3d 523 (D.N.J. 2008).
Ravi Motwani, et aL v. Marina District Development Company, LLC, et al., District of New Jersey, Civil Action No.: 15-2069. Lead counsel in consumer class action, including New Jersey Consumer Fraud Act and New Jersey Truth in Consumer Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 18 of 31 PageID: 825
Warranty and Notice Act claims on behalf of class members. On December 22, 2016, Honorable John Michael Vazquez, U.S.D.J. granted fmal approval of a settlement class predicated upon Defendant Borgata's use of deceptive and misleading parking vouchers. The sum of $405,650.00 in benefits automatically distributed to Class Members without the need to file a claim.
Englewood Hospital and Medical Center for v. Esurance Holdings, Inc. d/b/a Esurance (NJ), District of New Jersey, Civil Action No. 10-05585. Lead counsel in consumer class action where court approved class action settlement provided for monetary relief and the termination of the offending practices.
Glickman v. Live Nation Entertainment, Inc., et al. Civil Action No. 15-08041; Lead counsel in case pending in the District of New Jersey involving allegations that Defendants violated the New Jersey Consumer Fraud Act regarding improper ticketing practices.
Kennedy v Samsung Electronics America, Inc.- Civil Action No. 14-04987; Lead counsel in defective top load washer class action filed in District of New Jersey involving allegations of faulty drain pumps that cause flooding; claims brought under the California Unfair Competition Law, California False Advertising Law, the California Consumers Legal Remedies, the Song-Beverly Act, and the Magnuson-Moss Warranty Act. Case transferred to MDL.
Rosen v. Smith Barney, 393 N.J. Super. 578 (App. Div. 2007) of 'd 195 N.J. 423 (2008). Lead counsel in certified class action against brokerage firm involving deferred compensation plan, resulting in $9 million judgment against the firm, reversed on appeal, and affirmed by the New Jersey Supreme Court.
NATIONAL CLASS ACTIONS
In re: Discover Card Payment Protection Plan Marketing and Sales Practices Litigation, MDL No. 2217, United States District Court for the Northern District of Illinois. Court-appointed co-lead class counsel in $10 5 million nationwide class action settlement alleging improper marketing and administration of Defendants' Payment Protection Plan, Identity Theft Protection, Wallet Protection and Credit Score Tracker products.
Esslinger, et al. v. HSBC Bank Nevada, N.A. et als., 10-03213, United States District Court for the Eastern District of Pennsylvania. Court-appointed co-lead class counsel in $23 5 million nationwide class action settlement involving improper marketing and practices related to Defendants' debt suspension/debt cancellation products. Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 19 of 31 PageID: 826
In re: Bank of America Credit Protection Marketing & Sales Practices Litigation, MDL No. 2269, United States District Court of the Northern District of California. Selected to serve on the Plaintiffs' Executive Committee in this Multi-District litigation involving Bank of America's marketing and sales practices relating to its debt suspension/debt cancellation products.
In re: South African Apartheid Litigation, MDL No. 1499, United States District Court for the Southern District of New York. Co-lead counsel in a putative class action under the ATS against corporations who violated jus cogen standards of international human rights law.
In re African American Slave Descendants' Litig., 304 F.Supp.2d 1027 (N.D. Ill. 2004); In re African American Slave Descendants' Litig., 307 F.Supp.2d 977 (N.D. Ill. 2004); In re African American Slave Descendants' Litig., 272 F.Supp.2d 755 (N.D. Ill. 2003); and In re African American Slave Descendants' Litig., 231 F.Supp.2d 1357 (J.P.M.L. 2002). Court appointed co-lead counsel in landmark reparation cases.
Smith, et at v. Ticketmaster, 09-02177, United States District Court, Central District of California. Class action involving consumers who were wrongfully transferred to secondary market web-site that was owned by company recently acquired by Ticketmaster where they could only purchase tickets significantly higher than their ticket price. Bruce Nagel was a member of Executive Committee.
In re Citigroup Capital Accumulation Plan, 150 F.Supp.2d 274 (D.Mass. 2001). Court-Appointed Lead Counsel in class action involving deferred compensation plan of major brokerage firm for the states of Florida, Nebraska, Colorado, Louisiana, Georgia, and Michigan. Class certification granted for the states of Florida, Colorado and Louisiana Claims in excess of $300 million. Referenced in Farr, The Manuel for Complex Litigation, Fourth Ed. (2004), Appendix.
In re Ski Train Fire in Kaprun, Austria, 220 F.R.D. 195 (S.D.N.Y. 2003) rev'd Kern v. Siemens Corp., 393 F.3d. 120 (2d Cir. 2004). Court appointed co-lead counsel in multi-district certified class action involving the death of 153 individuals in a train fire in Austria. Class certification reversed on appeal. Settlement of $16 million on behalf of the American plaintiffs.
Nagel Rice also has extensive experience in complex litigation. Among other cases, the firm represented the State of New Jersey in establishing liability for natural resource damages against Exxon Mobil in connection with pollution at two refinery sites, N.J.D.E.P. v. Exxon Mobil, 393, N.J. Super, 388 (App. Div. 2007), and is handling a multi-billion dollar RICO action against major hedge funds in connection with a short selling scheme. Fairfax Financial Holdings Limited v. S.A.C. Capital Management, LLC, et al., Docket No.: MRS-L-2032-06, Superior Court, State of New Jersey. Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 20 of 31 PageID: 827
INDIVIDUAL ATTORNEYS
MEMBERS OF FIRM Trial Lawyers of America; The Association of Trial Attorneys of New Jersey (Board of BRUCE H. NAGEL, born Paterson, New Governors); Million Dollar Advocates Jersey, August 28, 1952; admitted to bar Forum. (Certified Civil Trial Attorney, 1977, New Jersey, U.S. District Court, Supreme Court of New Jersey, Board on District of New Jersey and U.S. Court of Trial Attorney Certification) SPECIAL Appeals, Third Circuit; 1995, U.S. Court of AGENCIES: Special Counsel to New Jersey Appeals, Fourth Circuit; 2001, U.S. Court of Department of Environmental Protection for Appeals, First Circuit 2014, U.S. Supreme Natural Resource Damage Litigation. Court. EDUCATION: Cornell University REPORTED CASES: Finkelman v. Nat'l (B.S., 1974); New York University (J.D., Football League, 877 F.3d 504 (3d Cir. 1977). Author: "Griggs Settlements• Dead or 2017); Finkelman v. Nat'l Football League, Alive," New Jersey Law Journal, May 2008; 810 F.3d 187 (3d Cir. 2016); Kuzian v. "The Evolving Torts of Wrongful Life and Electrolux Home Products, Inc., 937 Wrongful Birth," New Jersey Lawyer, F.Supp.2d 599 (D.N.J. 2013); Clark v. October, 1997. Co-Author: "Critical Pattern Prudential, 289 F.R.D. 144 (D.N.J. 2013); Requirement under RICO," New Jersey Law Clark v. Prudential Ins. Co. of America, 736 Journal, September 1, 1988. Moderator and F.Supp.2d 902 (D.N.J. 2010); Drazin v. Lecturer: Trying Breast Cancer Cases, Horizon Blue Cross Blue Shield of NJ, 832 Institute for Continuing Legal Education, F.Supp. 2d. 432 (D.N.J. 2011) aff'd Fed. September 2004; Winning the Big Verdict, Appx. 211 (3d Cir. 2013); Franco v. Conn. Institute for Continuing Legal Education, Gen. Life Ins. Co., 818 F.Supp. 2d. 792 November, 2003; "Trying a Wrongful Birth (D.N.J. 2011); Devito v. Aetna, 536 F. Supp. Case," ATLA, New Jersey Symposium, 2d 523 (D.N.J. 2008); New Jersey Dept. of 2002; First Annual Tort Law Forum, Institute Environmental Protection v. Exxon Mobil for Continuing Legal Education, June, 1997, Co. 393 NJ Super, 388 (App. Div. 2007); July 2008. Lecturer: Tort Law Conference, New Jersey Eye Center v. Princeton Ins. Co., Institute for Continuing Legal Education, 394 N.J. Super. 557 (App. Div. 2007); Rosen 2007, 2008; Annual Convention, Top Ten v. Smith Barney, 195 N.J. 423 (2008); In re Tort Cases of 1997, The Association of Trial Citigroup, Inc., Capital Accumulation Plan Lawyers of America-New Jersey, 1997; Litigation, 150 F. Supp. 2d 274 (D. Mass. Third Annual At-Will Employment Law 2000; In re Citigroup, Inc., Capital Symposium, 1989; Civil Trial Institute, Accumulation Plan Litigation, 2001 WL Institute for Continuing Legal Education, 1423721 (D. Mass. 2001); Brodsky v. July, 2005. Adjunct Professor, Medical Grinnell Haulers, Inc. 181 N.J. 102 (2004); Malpractice, New Jersey Practice, Seton Hall Macedo v. Dello Russo, 178 N.J. 340 (2004); University School of Law. Included on Howard v. UMDNJ, 172 N.J. 537 (2002); 2008-2013 top 10 New Jersey Super Lawyers Couri v. Gardner, 173 N.J. 328 (2002); Myers list, New Jersey Monthly Magazine; Best v. Epstein, 282 F. Supp. 2d 151 (S.D. Lawyers in America, 2006-2013. Best N.Y.,2003); Ponzo v. Pele, 166 N.J. 481 Lawyers in New York Metropolitan Area, (2001); Teaneck FMBA v. Township of New York Magazine, 2006-2013. Teaneck, 177 N.J. 560 (2003); Linquito v. MEMBER: Essex County and New Jersey Siegel, 370 N.J. Super. 21 (App. Div. 2004); State Bar Associations; The Association of Hummel v. Reiss, 129 N.J. 118 (1992); Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 21 of 31 PageID: 828
Jacobs v. Great Pacific Century Corp., 104 with honors, 1974; J.D., 1977). Recipient, Pro N.J. 580 (1986); Lodato v. Kappy, 353 N.J. Bono Chancery Achievement Award, Essex Super. 439 (App. Div. 2002); Moscatello v. County Bar Association, 1995. Listed, Top UMDNJ, 342 N.J. Super. 351 (App. Div. 100 Lawyers New Jersey Monthly Magazine, 2001); RFE Industries, Inc. v. SPM Corp., 2007, 2008, 2009, 2010 and 2011. Top 10 105 F.3d 923 (4th Cir. 1997); National Lawyer, New Jersey Monthly Magazine 2012. Property Investors VIII v. Shell Oil Co., 917 Law Clerk to the Honorable Baruch S. F. Supp.324 (D.N.J. 1995); Caputa v Antiles, Seidman, New Jersey Superior Court, 296 N.J. Super. 123 (App. Div. 1996); Appellate Division, 1977-1978. Author: Ladner v. Mercedes-Benz of North America, "Equity Procedures," New Jersey Practice, Inc., 266 N.J. Super. 481 (App. Div. 1993); Vol. 19, Chapter 4, 1993; "Responsibility of Town of Kearny v. Hudson Meadows Urban Insolvent Corporation for Environmental Renewal Corp., 829 F.2d 1263 (3rd Cir. Cleanup," New Jersey Law Journal, 1987). PRACTICE AREAS: Trial Practice; September 25, 1986. Lecturer: "Restrictive Class Actions; Medical Malpractice; Serious Covenants," New Jersey State Bar Association Personal Injury; Products Liability; Convention, 1989; "The Corporate Deadlock Employment Law; Professional Liability; Statute," New Jersey State Bar Convention, Mass Torts; Toxic Torts; Wrongful Birth; 1990; "Law Firm Dissolution," New Jersey Environmental Litigation; Qui Tam State Bar Association Convention, 1991; "The Litigation. EMAIL: BNagel(&,nagelrice.com Corporate Deadlock Statute," Institute of Mr. Nagel has tried over 150 cases to Continuing Legal Education, 1991; conclusion and handled over 100 appeals in "Successfully Litigating The Closely Held federal and state courts throughout the Corporate Dispute When Those in Control country (including 12 before the New Jersey Have Engaged in Fraud and Supreme Court). He has approximately 70 Mismanagement," Essex County Bar published opinions in the field of class action, Association, 1993; "Litigating Fraud and medical malpractice, trial practice, product Mismanagement Disputes in Closely Held liability, consumer fraud and other related Corporations," Institute of Continuing Legal areas of law; he is an adjunct professor at Education, 1995; "Marketability Discounts in Seton Hall Law School; and he has also the Sale of Closely Held Stock," Equity lectured extensively for both ICLE and Jurisprudence Committee, 1999; "Law Firm ATLA-NJ on a variety of trial related topics. Breakups Ten Years After Norris," New He is a certified civil trial attorney, a Jersey State Bar Association General Equity designation held by less than 2% of New Jurisprudence Committee, 2003; "Chancery Jersey attorneys. He has the unique 2010 Corporate Divorces", New Jersey State distinction of arguing three class actions Bar Association Convention 2010. Member: before the New Jersey Supreme Court. District Ethics Committee for Essex County District V-B, 1994-1999; N.J. Lawyer JAY J. RICE, bon New York, N.Y., February Editorial Board, 1996-2008. Program 12, 1952; admitted to bar 1977, New Jersey Administrator, Superior Court Chancery and U.S. District Court, District of New Division Essex County Early Settlement Jersey; 1979, U.S. Court of Appeals, Third Program, 1990-. MEMBER: Essex County, Circuit; 1981, U.S. Supreme Court; 2002, U.S. New Jersey State (Member, Committee on Court of Appeals, Second Circuit; 2003, U.S. Equity Jurisprudence, 1982-; Chairman, 1989- District Court, Southern District of New York. 1991; Member, Certified Trial Attorneys EDUCATION: Rutgers University (B.A., Section) and American Bar Associations. Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 22 of 31 PageID: 829
(Certified Civil Trial Attorney, Supreme Lawyers. MEMBER: New Jersey State Bar Court of New Jersey, Board on Trial Attorney Association; New Jersey Association for Certification) REPORTED CASES: Pappas v. Justice; The Association of Trial Lawyers of Coach House Diner & Restaurant, Inc., 2005 America. REPORTED CASES: Finkelman v. WL 1010359 (N.J.Super.Ch. March 28, Nat'l Football League, 877 F.3d 504 (3d Cir. 2005); Tannen v Tannen, 416 N.J. Super. 248 2017); Finkelman v Nat'l Football League, (App. Div. 2010), aff d, 208 N.J. 409 (2011); 810 F.3d 187 (3d Cir. 2016); Clark v. Pappas v. Coach House Diner & Restaurant, Prudential Ins. Co. of Am., 940 F. Supp. 2d Inc., 2005 WL 1421375 (Ch. Div. June 17, 186 (D.N.J. 2013); Clark v. Prudential Ins. Co. 2005); Sherman v. Wellbrock, 761 F.Supp. of Am., 289 F.R.D. 144 (D.N.J.) 1135 (D.N.J. 1991); Dairy Stores, Inc. v. reconsideration denied, 940 F. Supp. 2d 186 Sentinel Pub. Co., Inc., 104 N.J. 125 (1986); (D.N.J. 2013); USI Ins. Servs. LLC v. Miner, National Recovery Systems v. Feltman, 211 801 F. Supp. 2d 175 (S.D.N.Y. 2011); Noble N.J. Super. 526 (1986); Consolidated Precast, v. Porsche Cars N. Am., Inc., 694 F. Supp. 2d Inc. v. Action Builders Co., Inc., 190 N.J. 333 (D.N.J. 2010); Clark v. Prudential Ins. Co. Super. 92 (1983); Franldin Mint Corp. v. of America, 736 F.Supp.2d 902 (D.N.J. 2010); Master Mfg. Co., 667 F.2d 1005 (1981); In re Meyers v. Epstein, 232 F.Supp. 2d 192 Ski Train Fire in Kaprun, Austria, on (S.D.N.Y., 2002); Meyers v. Epstein, 282 November 11, 2000, 2004 WL 1048233 F.Supp. 2d 151 (S.D.N.Y., 2003); Couri v. (S.D.N.Y. 2004); Kern v. Oesterreichische Gardner, 173 N.J. 328 (2002); Howard v. Elektrizitaetswirtschaft Ag, 178 F.Supp.2d UMDNJ, 172 N.J. 537 (2002); 1530 Owners 367 (S.D.N.Y. 2001); Sherman v. Wellbrock, Corp. v. Borough of Fort Lee, 135 N.J. 394 761 F.Supp. 1135 (D.N.J. 1991); In re (1994); Serico v. Rothberg, 448 N.J. Super. Shopping Cart Antitrust Litigation, 95 F.R.D. 604 (App. Div. 2017); Geler v. Akawie, 358 309 (S.D.N.Y. 1982). PRACTICE AREAS: N.J. Super. 437 (App. Div. 2003); Lodato v. Commercial Litigation; Complex Litigation; Kappy, 353 N.J. Super. 439 (App. Div. 2002); Alternative Dispute Resolution; Corporate Moscatello v. UMDNJ, 342 N.J. Super. 351 Law; Chancery Practice; Class Action (App. Div. 2001); Michelman v Ehrlich, 311 Litigation; Estate Litigation; Construction N.J. Super. 57 (App. Div. 1998); Caputo v. Litigation. EMAIL: JRice nagelrice.com Antiles, 296 N.J. Super. 123 (App. Div. 1996); McDonough v. Horizon Blue Cross Blue ROBERT IL SOLOMON, born Glen Ridge, Shield of New Jersey, 641 Fed. Appx. 146, New Jersey, 1964; admitted to bar 1990, New 147 (3d Cir. 2015); NAF Holdings, LLC v. Li Jersey and U.S. District Court, District of New & Fung (Trading) Ltd., 2015 WL 3896792 Jersey; 1997, U.S. Court of Appeals, Third (Del.); Reed v. Swatch Grp. (US), Inc., 2015 Circuit; 2014, United States Supreme Court. WL 5822669 (D.N.J.); Reed v. Swatch Grp. EDUCATION: University of Rochester (US), Inc., 2014 WL 7370031 (D.N.J.); (B.A., 1986); University of Pittsburgh (J.D., McDonough v. Horizon Healthcare Servs., 1990). Member: Moot Court Board; National Inc., 2014 WL 3396097 (D.N.J.); Appellate Moot Court Competition. Law WorldScape, Inc. v. Sails Capital Mgmt., 2014 Clerk, Honorable Freda L. Wolfson, U.S. WL 1342983(D.N.J.); Leibholz v. Hariri, 510 District Court, District of New Jersey. Former F. App'x 112 (3d Cir. 2013); Friedfertig Adjunct Professor of Law, Seton Hall Family P'ship 2 v. Lofberg, 2013 WL 6623896 University School of Law. Included in 2008- (D.N.J.); Worldscape, Inc. v. Sails Capital 2017 New Jersey Super Lawyers; Listed in Management, 2011 WL 3444218 (D.N.J.); 2010-2017 Top 100 New Jersey Super Glen Ridge SurgiCenter, LLC v. Horizon Blue Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 23 of 31 PageID: 830
Cross and Blue Shield of New Jersey, Inc., Circuit (2013). EDUCATION: College of 2011 WL 5882019 (D.N.J.); McDonough v William and Mary (B.A., in Government); Horizon Blue Cross Blue Shield of New Seton Hall School of Law (J.D., 1981). Jersey, Inc., 2011 WL 4455994 (D.N.J.); Glen Assistant District Attorney, New York Ridge SurgiCenter, LLC v. Horizon Blue County, 1981-1985. Author: "Corporate Cross and Blue Shield of New Jersey, Inc., Reparations for Descendents of Enslaved 2011 WL 5881924 (D.N.J.); Clark v. African Americans - Practical Obstacles," Prudential Ins. Co. of America, 2011 WL Max DuPlessis, Stephen Pete; Repairing the 1833355 (D.N.J.); Leibholz v. Hariri, 2011 Past? International Perspectives on WL 1466139 (D.N.J.); Clark v. Prudential Ins. Reparations for Gross Human Rights Abuses, Co. of America; 2011 WL 940729 (D.N.J.); (Intersentia 2007) at 315. "Retaliation", Rabinowitz v. Rayman, 2010 WL 2867909 Michele Paludi, DeSouza, Prager Handbook (N.J.App.Div.); Wayne Surgical Center v. on Workplace Discrimination: Legal, Concentra, 2009 WL 961389 (D.N.J.); Management and Social Science Perspectives Gregory Surgical Center v. Horizon, 2009 WL (Praeger, 2010). Presenter and Lecturer: 749795 (D.N.J.); Glen Ridge SurgiCenter, "Canonical Development. Standing LLC v. Horizon Blue Cross and Blue Shield Commission on Constitution and Canons", of New Jersey, Inc., 2009 WL 3233427 "Title IV Implementation and Education (D.N.J.); Abrahams v. Hygrosol Issues", Western Chancellors' Conference Pharmaceutical Corp., 2009 WL 3055372 (2011); "Modeling Civil Discourse in (D.N.J.); Clark v. Prudential Ins. Co. of Negotiation and Governance Settings"; America, 2009 WL 2959801 (D.N.J.); Western Chancellors' Conference (2011); McDonough v. Horizon Blue Cross Blue "New Title IV Disciplinary Code"; Shield of New Jersey, Inc., 2009 WL 3242136 Chancellors' Conference (2010); "Report of (D.N.J.); Gregory Surgical v. Horizon, 2007 Title IV Task Force," Province II Synod (May WL 4570323 (D.N.J.); Wayne Surgical v. 2009), Western Chancellors' Conference Concentra, 2007 WL 2416428 (D.N.J.); (May 2009), Standing Committee on Ministry Fairfax Financial v. S.A.C. Capital Development (November 2008); Management, 2007 WL 1456204 (D.N.J.); "Breakthrough on Statute of Limitations ABS Associates v. Hartz Mountain, 2006 WL Issue", North Carolina Conference of the 1519577 (N.J. Ch. Div. 2006); Gregory NAACP CLE Seminar (October 2008); Surgical v. Horizon, 2006 WL 3751385 "Reconciliation at the Roundtable," The (D.N.J.); Kantha v. Pacific Life, 2006 WL Desmond Tutu Center; General Theological 2583239 (D.N.J.); Gregory Surgical v. Seminary (September 2007); "The Misuse of Horizon, 2006 WL 1541021 (D.N.J.); Samco Church Computers: What You May Want to Rockaway 90, Inc. v. Lawyers Title, 1995 WL Know More About," National Chancellors' 328141 (D.N.J.). EMAIL: Conference (May 2007); "National Canons: [email protected] History and Application of Title IV," Drew University Theological School (May 2007); DIANE ELIZABETH SAMMONS, born "Authority in the Anglican Communion and Jersey City, New Jersey, December 18, 1955; the Windsor Report," Episcopal Lawyers' admitted to bar 1981, New Jersey, New York Volunteer Network (May 2007); "The Legal and U.S. District Court, District of New Case for Reparations," Brooklyn Law School Jersey; 2003, U.S. District Court, Southern (February 2007); "The Moral and Legal Basis and Eastern Districts of New York; 2005, U.S. for Reparations for Historical Wrongs," Court of Appeals, Second Circuit; 2012, U.S. Plainfield Unitarian Society (January 2007); Supreme Court; U.S. Court of Appeals, Third Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 24 of 31 PageID: 831
"Excellence, Justice, Honor Through an Lawyer New Jersey Monthly Magazine Unflinching Look at the Harms of the MEMBER: New Jersey State and American Transatlantic Slave Trade," Horace Mann Bar Associations. REPORTED CASES: In re High School Honor Society (May 2006); "The African American Slave Descendants' Litig., Case for Reparations and Comments on Film: 304 Supp.2d 1027 (N.D. Ill. 2004); In re `Slavery Reparations: The Final Passage'," African American Slave Descendants' Litig., Brooklyn Film Festival (February 2006); 471 F.3d (7th Cir. 2006); In re Apartheid "Human Rights Through Reparations Litig., 238 F.Supp.2d 1379 (Jud. Pan. Mult. Litigation," United Universalist Association Lit. 2002); In re Apartheid Litig., 346 F. Diversity Conference, New York (February Supp.2d 538 (S.D.N.Y. 2004): Khulumani v. 2006); "Bishop and Clergy Development Barclay Nat. Bank, 504 F. 3d 245 (2d Cir. Search Processes/Letter of Agreement", 2007); American Isuzu Motors v. Ntsebeza, Western Chancellor's Conference, 2005; 128 S. Ct. 2424, 171 L. Ed 2d 225, 76 USLW "Human Rights as Tool for Social Change", 3405, 76 USLW 3603, 76 USLW 3608 (U.S. UNESCO, Institute of Comparative Human May 12, 2008); In re South African Apartheid Rights Conference, 2005, 2006, 2007, 2008, Litig. F. Supp.2d, 2009 WL 960078 (S.D.N.Y. 2009, 2010; "Update on Reparations April 8, 2009); In re Ski Trian Fire in Kaprun, Litigation," Congressional Black Caucus 175 F.Supp.2d 1379 (Jud. Pan. Mult. Lit. Conference (September 2005); "Update in 2001). PRACTICE AREAS: Class Actions; African-American Slave Descendants' International Human Rights; Canon Law; Litigation and Apartheid Litigation," Stanford Commercial Litigation; Criminal Law; Law School (2004); "Reparations, a Legal Municipal Law; Personal Injury; Labor and Model," University of Connecticut School of Employment. EMAIL: Law (2002); "A Review on African-American [email protected] Slave Descendants' Litigation," Union Theological Seminary (2002); "Class Action LORI ILENE MAYER, born New York, as a Mechanism for Enforcement of Human N.Y., August 30, 1954; admitted to bar 1980, Rights Violations," Kean University (Fall New York; 1989, New Jersey, U.S. District 2002). Member: Hogan Morgenthau Count, District of New Jersey and U.S. Court Associates; Board Member, Episcopal of Appeals, Third Circuit. EDUCATION: Chancellors' Network; Ecclesiastical Law Cornell University (B.A., with honors in all Society; Disciplinary Board for Bishops of the subjects, 1976); Georgetown University Law Episcopal Church; Chair, Standing Center (J.D., cum laude, 1979). Editor, Commission of the Constitution and Canons Georgetown Law Journal, 1978-1979. of the National Episcopal Church (2009- AUTHOR: "Landlord 2012); Subcommittee on Title IV Revision of Consents: Reasonableness, Good Faith, and the National Episcopal Church (2006-2009); Remedies," New Jersey Lawyer, December Presiding Bishop's Chancellor's Council of 2009; "New Uniform Prudent Management of Advice; Episcopal Lawyers' Volunteer Institutional Funds Act: Wider Discretion and Network - Diocese of Newark; Committee on Greater Risks for Managers of Endowment Constitution and Canons - Diocese of Newark; Funds," New Jersey Lawyer, April 2010. New Jersey State District Ethics Committee LECTURER: Handling Current Commercial for Essex County, District V-B, 1998-2002. Landlord Tenant Issues, 2010, New Jersey Chancellor, Episcopal Diocese of Newark Institute for Continuing Legal Education. (2004-) (Legal Advisor to Bishop and 112 MEMBER: New Jersey State (Co-Chair, congregations). LISTED: 2010, 2012 Super Family and Small Business Law Committee, Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 25 of 31 PageID: 832
Business Law Section) and American Bar Appellate Practice. EMAIL: Associations. PRACTICE AREAS: Corporate [email protected] Law; Business Law; Trademarks; Real Estate; Trusts and Estates. EMAIL: ANDREW L. O'CONNOR, born Alexandria, [email protected] Virginia, April 9, 1975; admitted to bar 2000, New Jersey. EDUCATION: Lafayette RANDEE M. MATLOFF, born Jersey City, College (B.A., 1997); Seton Hall University New Jersey, August 20, 1956; admitted to bar School of Law (J.D., 2000). Listed, New 1981, New Jersey, U.S. District Court, District Jersey Super Lawyers magazine, Rising Star, of New Jersey and U.S. Court of Appeals, 2007, 2008, 2009 and 2010. PRACTICE Third Circuit. EDUCATION: Rutgers AREAS: Litigation; Personal Injury; Medical University (B.A., highest honors, 1978; J.D., Malpractice; Mass Tort. EMAIL: 1981). Phi Beta Kappa. Articles Editor, AOConnorna Women's Rights Law Reporter, 1980-1981. REPORTED CASES: Tannen v. Tannen, 416 GREG M. KOHN, born Morristown, New N.J. Super. 248, 277 (App. Div. 2010); DeVito Jersey, January 7, 1980; admitted to bar, v. Aetna, 536 F. Supp. 2d 523 (D.N.J. 2008); 2007, New Jersey, U.S. District Court, Beye v. Horizon Blue Cross Blue Shield of District of New Jersey; 2008 New New Jersey, 568 F. Supp. 2d 446 (D.N.J. York. Education: Colgate University (B.A., 2008); Ravin, Sarasohn, Cook, Baumgarten, Economics and Computer Science, 2002); Fisch & Rosen, P.C. v. Lowenstein Sandler, Seton Hall University School of Law (J.D. P.C., 365 N.J. Super. 241 (App. Div. 2003); In 2007). Member — Seton Hall Sports and re Ski Train Fire in Kaprun, Austria on Entertainment Journal; Member — Seton Hall November 11, 2000, 220 F.R.D. 195 Interscholastic Moot Court Team; President (S.D.N.Y. 2003); In re Ski Train Fire in — Intellectual Property Law Association; Kaprun, Austria, on November 11, 2000, 257 Former Law Intern to the Honorable William F. Supp. 2d 717 (S.D.N.Y. 2003); In re Ski J. Martini, United States District Court for the Train Fire in Kaprun, Austria, November 11, District of New Jersey; Former Intern for the 2000, 257 F. Supp.2d 648 (S.D.N.Y. 2003); New York Stock Exchange, Enforcement Couri v. Gardner, 173 N.J. 328 (2002); Division. Member: New Jersey State Bar Reynolds v. Lancaster County Prison, 325 Association; New York County Lawyers N.J. Super. 298 (App. Div. 1999); Hartford Association, American Bar Association, New Acc. and Indem. Co., v. Marley Industries York State Bar Association. PRACTICE Corp., 245 A.D. 2d 554, 666 N.Y.S. 2d 503 AREAS: (Mem), Dec. 19, 1997; Dawson Corp. v. Litigation. EMAIL: [email protected] National Union Fire Ins. Co. of Pittsburgh, Pa. 285 N.J. Super. 137 (App. Div. 1995); National Recovery Systems v. Feltman, 211 SUSAN F. CO1VNORS, admitted to bar, N.J. Super. 526 (Law Div. 1986); Gregory 1988, New Jersey. Education: Seton Hall Marketing Corp. v. Wakefern Food Corp., 207 University (B.A. Political Science, 1985, cum N.J. Super. 607 (Law Div. 1985). Listed, 2010 laude); Seton Hall University School of Law and 2011 Super Lawyer New Jersey Monthly (J.D. 1988). Member- Seton Hall Magazine. PRACTICE AREAS: Interscholastic Moot Court Team; Director, Commercial Litigation; Product Liability; Moot Court Program; Legal Intern to the Class Action; Employment; Chancery; Honorable Alfred J. Lechner, United States District Court for the District of New Jersey; Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 26 of 31 PageID: 833
Law Clerk to the Honorable Frederick C. Review; President — Rutgers Jewish Law Kentz, J.S.C., New Jersey Superior Court, Student Association; Former Law Intern — Union County (General Equity Division). Honorable Kenneth Levy, New Jersey Member: New Jersey State Bar Association. Superior Court, Chancery Division; Former Practice Areas: Civil Litigation, Personal Associate — O'Melveny & Myers, LLP (New Injury, Medical Malpractice, Business Tort York) and Wilk Auslander LLP (New York). and Commercial Litigation. EMAIL: Member: New York State Bar Association; [email protected] Essex County Bar Association; PRACTICE AREAS: Commercial Litigation; Complex Litigation; Class Action Litigation; Chancery OF COUNSEL Practice; Personal Injury; Medical Malpractice; Employment Litigation; CARLETON R. KFMPH, born Newark, Alternative Dispute Resolution; and New Jersey, September 15, 1953; admitted to Corporate Law. EMAIL: bar: 1978, New Jersey; 1990, New York. [email protected] EDUCATION: University of Notre Dame (B.A., 1975); Rutgers - Newark School of Law (J.D., 1978); Rutgers - Newark Graduate MICHAEL J. PARAGANO, born School of Management (M.B.A. - Finance, Livingston, New Jersey, February 24, 1986; 1980); New York University School of Law admitted to bar, 2011, New Jersey; 2012, (attended Masters in Tax Program, 1980- New York. Education: Rutgers University 1981). Publications and lectures include New (B.A., Criminal Justice and Sociology, Jersey Lawyer, New Jersey Builders 2008); Seton Hall University School of Law Association, New Jersey Law Journal, (J.D., cum laude, 2011). Member- Mock Commercial Law Journal, CLE, PRACTICE Trial Team; Law Clerk — Honorable Donald AREAS: Real Estate, Land Use, W. De Leo, Surrogate of Hudson County; Redevelopment, Business and Commercial, Former Associate — Pellettieri, Rabstein & Property Tax Appeals. EMAIL: Altman. Member: Middlesex County Bar [email protected] Association, Mercer County Bar Association, and New Jersey Association for Justice. ASSOCIATES PRACTICE AREAS: Litigation; Class Action, Personal Injury, and Medical ANDREW I. PEPPER, admitted to bar 2010, Malpractice. New Jersey. Education: Yeshiva University EMAIL: [email protected] (B.A. 2006); Cordozo School of Law (J.D. 2009). PRACTICE AREAS: Civil Litigation, Commercial Litigation, Personal Injury, Medical Malpractice. EMAIL: [email protected]
BRADLEY L. RICE, born Livingston, New Jersey, October 20, 1982; admitted to bar, 2008, New Jersey; 2009, New York. Education: Cornell University (B.S., Industrial and Labor Relations, 2005); Rutgers School of Law — Newark (J.D., 2008). Research Editor — Rutgers Law Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 27 of 31 PageID: 834
EXHIBIT B Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 28 of 31 PageID: 835
GRISAFI V. SONY ELECTRONICS, INC Case No. 2:18-cv-08494 TIME & LODESTAR CHART (By Category) PERIOD: Inception to March 15.2021
Name/Position 1 2 3 4 5 6 7 8 9 10 11 Hours Hourly Lodestar Rate
2.0 6.8 8.2 .9 10.7 2.5 4.2 13.6 7.3 3.4 59.6 $900.00 $53,640.00 BI1N/P
5.3 109.8 14.6 13.3 187.4 8.2 10 27.7 36.3 62.9 2.0 477.5 $799.50 $381,760.00 RMM/P
RHS/P .4 10.6 7.3 .5 .5 19.3 $800.00 $15,440.00
611/P 1.8 1.5 .8 4.1 $750.00 $3,075.00
SJ/A 2.2 2.2 $350.00 $770.00
LIMP .2 .2 $525.00 $105.00
PL 6.0 6.0 $200.00 $1,200.00
TOTAL 15.5 128.7 23.0 21.5 200.8 10.7 14.2 41.8 43.6 67.1 2.0 568.9 $455,990.00
CATEGORIES 1. Pre-Litigation Investigation and Fact Analysis 2. Drafting Complaints (Original, First, Amended Second Amended) 8. Mediation, Negotiations and Settlement Process 3. Case Development and Case Administration 9. Settlement Documentation, Motions & Briefing (e.g., Prelim & Final Approval 4. Post Filing Investigation and Communications with Class Members 10. Discovery 5. Motion Practice, Drafting Memoranda and Legal Research I I. Class Claims Administration Issues and Communications with Class 6. Court Hearings and Appearances Members/Witnesses re Settlement 7. Arbitration, arbitration documentation, letters, and statements
Position Key: P=Partner, SA=Senior Associate, A=Associate, PL=Paralegal Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 29 of 31 PageID: 836
EXHIBIT C Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 30 of 31 PageID: 837
UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
RICHARD GRISAFI, on behalf of himself Civil Action No.: 2:18-cv-08494 (JMV) and the putative class, (JBC)
Plaintiff,
v. AWARD OF ATTORNEYS' FEES AND COSTS SONY ELECTRONICS INC.,
Defendant.
Orlofsky, Mediator
1. On February 24, 2020, I conducted a full day "in person" mediation session in
Roseland, New Jersey. The case did not settle on February 24, however, following the mediation,
the parties continued to negotiate by telephone and email with my assistance;
2. Ultimately, the parties reached a settlement, the terms of which were embodied in
a SETTLEMENT AGREEMENT AND RELEASE filed with the Court on October 28, 2020;
3. In relevant part, paragraph 2.3 of the SETTLEMENT AGREEMENT, captioned
"Attorneys' Fees and Costs" provides: "In the event the Parties do not reach an agreement with
respect to the amount of attorneys' fees and costs . . . the Parties shall refer that issue to mediator
Judge Orlofsky for binding resolution."1;
4. In connection with the referral of the issue of attorneys' fees and costs to me for
binding resolution, the parties agreed to waive any potential conflict of interest arising out of my
service as a mediator;
Although the Settlement Agreement describes me as a mediator, in connection with the award of attorneys' fees and costs, I am acting as an arbitrator. Case 2:18-cv-08494-JMV-JBC Document 72-2 Filed 05/04/21 Page 31 of 31 PageID: 838
5. The parties also agreed that the award of attorneys' fees and costs would simply be
a number, unaccompanied by any opinion or memorandum explaining the reasoning or rationale
for the award;
6. The parties briefed the issue of attorneys' fees and costs with comprehensive briefs.
Plaintiff's counsel filed a letter brief with me on January 16, 2021. Defendant's counsel filed a
letter brief in opposition with me on February 1, 2021. Plaintiff's counsel filed a letter reply brief
with me on February 4, 2021;
7. I have considered the briefs filed by counsel, as well as the applicable case law, and
hereby make the following award to Nagel Rice, LLP, counsel for Plaintiff:
Attorneys' fees: $410,000.00
Costs: $8,675.35.
Dated: February 12, 2021 /s/ Stephen M. Orlofsky STEPHEN M. ORLOFSKY, MEDIATOR