Motion for Attorneys Fees (02455040)

Case 1:16-cv-11620-NMG Document 302 Filed 03/27/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, v. No. 1:16-CV-11620-NMG

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, REIMBURSEMENT OF EXPENSES, AND CASE CONTRIBUTION AWARDS FOR NAMED PLAINTIFFS

Under Federal Rules of Civil Procedure 23(h) and 54(d)(2), Plaintiffs move that the Court approve an attorneys’ fee award to Class Counsel of $6,032,730 (33.3% of the monetary recovery), reimburse Class Counsel’s reasonable litigation expenses of $522,021.93 and grant incentive awards of $25,000 each for Class Representatives David B. Tracey, Daniel Guenther,

Maria T. Nicholson, and Corrinne R. Fogg.

Class Counsel bore tremendous risk in order to benefit the Class. In spite of this risk, Class

Counsel leveraged their experience in excessive fee litigation to achieve an efficient resolution of this matter, thereby avoiding the delay and expense and substantial risk of non-recovery for the

Class. The lodestar for the requested fee is less than one and the percentage of the settlement fund is comparable to attorneys’ fees awards in similar cases. Based on all of the relevant factors, and for the reasons stated in Plaintiffs’ supporting memorandum, Plaintiffs respectfully request that the Court grant their motion.

Case 1:16-cv-11620-NMG Document 302 Filed 03/27/20 Page 2 of 2

March 27, 2020 /s/ Jerome J. Schlichter SCHLICHTER BOGARD & DENTON LLP Jerome J. Schlichter (admitted pro hac vice) Heather Lea (admitted pro hac vice) Joel D. Rohlf (admitted pro hac vice) Scott T. Apking (admitted pro hac vice) 100 South Fourth Street, Suite 1200 St. Louis, MO, 63102 (314) 621-6115 (314) 621-5934 (fax) [email protected] [email protected] [email protected] [email protected] Lead Counsel for Plaintiffs

Michael M. Mulder (admitted pro hac vice) Elena N. Liveris (admitted pro hac vice) LAW OFFICES OF MICHAEL M. MULDER 1603 Orrington Avenue, Suite 600 Evanston, Illinois 60201 (312) 263-0272 (847) 563-2301 (fax) [email protected] [email protected] Counsel for Plaintiffs

Stephen Churchill, BBO#564158 FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 (617) 607-3260 (617) 488-2261 (fax) [email protected] Local Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on March 27, 2020.

/s/ Jerome J. Schlichter

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, No. 16-cv-11620-NMG v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR AN AWARD OF ATTORNEYS’ FEES, CLASS REPRESENTATIVE AWARDS AND EXPENSES

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Table of Contents

INTRODUCTION ...... 1

BACKGROUND ...... 2

ARGUMENT ...... 3

I. The lodestar confirms the reasonableness of Class Counsel’s request...... 3

A. The hours expended are reasonable ...... 5

B. The hourly rates used to determine the lodestar are reasonable...... 6

II. Class Counsel’s request is additionally reasonable when the twelve factors are considered...... 9

A. The amount and labor required ...... 10

B. The novelty and complexity of the issues ...... 10

C. The skill required, reputation and ability of the attorneys (factors 3 and 9) ...... 12

D. The customary fee ...... 13

E. The preclusion of other employment by the attorneys and desirability of the case (factors 5 and 10) ...... 13

F. The contingent nature of the fee ...... 14

G. The time limitation imposed by the client or circumstances ...... 15

H. The nature and length of the client relationship ...... 18

I. The size of the award in similar cases ...... 18

J. Public policy ...... 18

III. The Court should award reimbursement of Class Counsel’s litigation expenses...... 19

IV. The Court should approve case contribution awards for the Named Plaintiffs...... 19

CONCLUSION ...... 20

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Table of Authorities

Cases Abbott v. Lockheed Martin Corp., No. 06-701, 2015 WL 4398475 (S.D. Ill. Jul. 17, 2015) ...... 8, 11, 12, 20 Bacchi v. Mass. Mutual Life Ins. Co., No. 12-11280-DJC, 2017 WL 5177610 (D. Mass. Nov. 8, 2017) ...... 4 Beesley v. Int’l Paper Co., No. 06-703, 2014 WL 375432 (S.D. Ill. Jan 31, 2014) ...... 8, 12, 20 Bezdek v. Vibram USA Inc., 79 F. Supp. 3d 324 (D. Mass. 2015) (Woodlock, J.) ...... 16 Carlson v. Target Enterprise, Inc., No. 18-40139-TSH, 2020 WL 1332829 (D. Mass. Mar. 23, 2020) ...... 4 Cassell v. Vanderbilt Univ., No. 16-2086, Doc. 174 (M.D. Tenn. Oct. 22, 2019) ...... 18 Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir. 1982) ...... 13 Clark v. Duke Univ., No. 16-1044, Doc. 165 (M.D. N.C. June 24, 2019) ...... 8, 12 Conley v. Sears, Roebuck & Co., 222 B.R. 181 (D. Mass. 1998) ...... 4 Cunningham v. Cornell Univ., No. 16-6525, 2019 WL 4735876 (S.D.N.Y. Sep. 27, 2019) ...... 11 Daugherty v. Univ. of Chi., No. 17-3736, Doc. 57-1 (N.D. Ill. Sept. 12, 2018) ...... 16 Davis v. Wash. Univ. in St. Louis, No. 17-1641, 2018 WL 4684244 (E.D. Mo. Sept. 28, 2018) ...... 12 Divane v. Northwestern Univ., No. 16-8157, 2018 WL 2388118 (N.D. Ill. May 25, 2018) affirmed, --- F.3d ---, 2020 WL 1444966 (7th Cir. Mar. 25, 2020) ...... 11 George v. Kraft Foods Glob., Inc., No. 07-1713, 2012 WL 13089487 (N.D. Ill. June 26, 2012) ...... 20 Gordan v. Mass. Mutual Life Ins. Co., No. 13-30184-MAP, 2016 WL 11272044 (D. Mass. Nov. 3, 2016) ...... 4, 6, 10, 18 I.W. v. School Dist. of Philadelphia, No. 14-3141, 2016 WL 147148 (E.D. Pa. Jan. 13, 2016) ...... 6 In re Global Crossing Sec. & ERISA Litig.,

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225 F.R.D. 436 (S.D.N.Y. 2004) ...... 11 In re Northrop Grumman ERISA Litig., No. 06-6214, 2017 WL 9614818 (C.D. Cal. Oct. 24, 2017) ...... 20 In re Prudential Ins. Co. of Am. SGLI/VGLI Contract Litig., No. 11-02208, 2014 WL 6968424 (D. Mass. Dec. 9, 2014) ...... 4 In re Relafen Antitrust Litig., 231 F.R.D. 52 (D. Mass 2005) ...... 10, 20 In re The Mills Corp. Sec. Litig., 265 F.R.D. 246 (E.D. Va. 2009) ...... 19 In re Thirteen Appeals Arising out of the San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295 (1st Cir. 1995) ...... 3 In re Volkswagen & Audi Warranty Extension Litig., 89 F. Supp. 3d 155 (D. Mass. 2015) ...... 4 In re Wachovia Corp. ERISA Litig., No. 09-262, 2011 WL 5037183 (W.D. N.C. Oct. 24, 2011) ...... 10 In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 364 F.Supp.2d 980 (D. Minn. 2005) ...... 5 Kelly v. Johns Hopkins Univ., No. 16-2835, 2020 WL 434473 (D. Md. Jan. 28, 2020) ...... 6, 12, 18 Krakauer v. Dish Network, LLC, No. 14-333, 2018 WL 6305785 (M.D.N.C. Dec. 3, 2018) ...... 13 Krueger v. Ameriprise Fin., Inc., 2015 WL 4246879 (D. Minn. July 13, 2015) ...... 9, 20 Kruger v. Novant Health, Inc., No. 14-208, 2016 WL 6769066 (M.D.N.C. Sep. 29, 2016) ...... 8, 10, 12, 15, 20 LaLonde v. Textron, Inc., 369 F.3d 1 (1st Cir. 2004) ...... 11 Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992) ...... 4 Martin v. Caterpillar, Inc., No. 07-1009, 2010 WL 3210448 (C.D. Ill. Aug. 12, 2010) ...... 10, 12 Momenta Pharms., Inc. v. Amphastar Pharms., Inc., No. 11-11681-NMG, 2016 WL 2642997 (D. Mass. May 9, 2016) ...... 7, 8, 10 New England Carpenters Health Bens. Fund v. First Databank, Inc., No. 05-11148-PBS, 2009 WL 2408560 (D. Mass. Aug. 3, 2009) ...... 4, 9 Nolte v. Cigna Corp., No. 07-2046, 2013 WL 12242015 (C.D. Ill Oct. 15, 2013) ...... 12, 14, 19 Ramsey v. Phillips N. Am. LLC,

iii

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No. 18-1099, Doc. 27 (N.D. Ill. Oct. 15, 2018) ...... 8, 14 Roberts v. TJX Co., No. 13-13142-ADB, 2016 WL 8677312 (D. Mass. Sep. 30, 2016) ...... 4, 9 Savani v. URS Prof’l Solutions LLC, 121 F. Supp. 3d 564 (D. S.C. 2015) ...... 20 Short v. Brown Univ., No. 17-318, Doc. 55 (D. R.I. Aug. 2, 2019) ...... 16 Sims v. BB&T Corp., No. 15-1705, 2019 WL 1993519 (M.D.N.C. May 6, 2019) ...... 5, 8, 12 Smith v. Krispy Kreme, No. 05-187, 2007 WL 119157 (M.D.N.C. Jan. 10, 2007) ...... 18 Spano v. Boeing Co., No. 06-743, 2016 WL 3791123 (S.D. Ill. Mar. 31, 2016) ...... 7, 12, 19 Tibble v. Edison Int’l, 135 S.Ct. 1823 (2015) ...... 13 Tibble v. Edison, No. 07-5359, 2017 WL 3523737 (C.D. Cal. Aug. 16, 2017) ...... 15 Tussey v. ABB, Inc., 746 F.3d 327 (8th Cir. 2014) ...... 9 Tussey v. ABB, Inc., No. 06-4305, 2012 WL 5386033 (W.D. Mo. Nov. 2, 2012), vacated and remanded, 746 F.3d 327 (8th Cir. 2014) ...... 11, 12 Tussey v. ABB, Inc., No. 06-4305, 2015 WL 8485265 (W.D. Mo. Dec. 9, 2015), vacated and remanded, 850 F. 3d 951 (8th Cir. 2017) ...... 13, 19 Tussey v. ABB, Inc., No. 06-4305, 2019 WL 3859763 (W.D. Mo. Aug. 16, 2019) ...... 6, 18 Tussey v. ABB, Inc., No. 06-4305, Doc. 859 (W.D. Mo. Mar. 28, 2019) ...... 15 U.S. Bank Nat’l Assoc. v. Dexia Real Estate Capital Mkts., No. 12-9412, 2016 WL 6996176 (S.D.N.Y. Nov. 30, 2016) ...... 7 Wilcox v. Georgetown Univ., No. 18-422, 2019 WL 132281 (D.D.C. Jan. 8, 2019) ...... 11 Will v. Gen. Dynamics Corp., No. 06-698, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) ...... 9, 12, 20 Statutes 29. U.S.C. §1106(a) ...... 3

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Rules Fed. R. Civ. P. 23(h) ...... 19 Other Authorities Greg Iacurci, Cross-selling gaining prominence in retirement-plan lawsuits, Investment News (Nov. 6, 2019) ...... 17 Informed Investor Advisory: Cross-Selling, North American Securities Administrators Association (Nov. 6, 2019) ...... 17 Peter Brady, Marginal Tax Rates and the Benefits of Tax Deferral, Investment Company Institute, Sept. 17, 2013 ...... 16

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INTRODUCTION

Class Counsel worked diligently in litigating this matter on behalf of the Settlement Class and achieved an outstanding result. Similar cases against universities have been dismissed and upheld on appeal, another university obtained summary judgment on most claims, and the only trial in an excessive fee case involving a university’s retirement plan resulted in a judgment for the defendant, New York University. Class Counsel recognizes that, before this filing, this Court indicated it would not approve fees exceeding 25% of the common fund, or $4,525,000 pursuant to the lodestar method. Class Counsel requests that this Court base its determination on the facts presented in this filing, recognizing the full value of the benefit to the Class, including the non- monetary relief, which must be taken into account, and the fact that there is no multiplier, despite the risk taken by Class Counsel. The percentage recovery, taking into account both the common fund and the valuable non-monetary relief, is as low as 20 percent.

Moreover, this case and the other university cases filed about the same time by Class Counsel are the first ever filed against universities for fiduciary breaches resulting in excessive fees and imprudent investments. Class Counsel’s commitment was the same as in each excessive fee case—to take the case as far as needed, including appeals, to invest whatever expenses were required, and to carry those expenses for potentially a decade or more.

Further, the settlement amount is the largest recovery ever obtained in an excessive fee case against a university—$18,100,000. No money will revert to the Defendants.

Not only will the settlement fund provide substantial monetary compensation to Plan participants, but the affirmative relief component will provide substantial additional benefit of up to $8,012,367 to the Class and ensure that current and future participants have a quality retirement plan for years.

Class Counsel requests that the Court award attorneys’ fees of $6,032,730, which represents 1

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a 0.97 lodestar with no multiplier, which means there is no compensation for the very substantial risk undertaken by Class Counsel. In ERISA class actions such as this, courts in this District and others, have routinely approved the hourly rates requested by Class Counsel and found similar hours expended reasonable. Additionally, apart from a lodestar less than one, a one-third fee award of the common fund is the market rate established by many courts for similar ERISA class actions. Such an award is both appropriate and reasonable considering the risk and results in this case and the standards established by the First Circuit.

The Court should also reimburse Class Counsel’s reasonable litigation expenses of

$522,021.93, and grant incentive awards of $25,000 each for Class Representatives David B.

Tracey, Daniel Guenther, Maria T. Nicholson, and Corrinne R. Fogg who remained highly engaged throughout the litigation.

BACKGROUND

On August 9, 2016, Plaintiffs filed this action alleging that Defendants breached their fiduciary duties and took part in prohibited transactions in operating the MIT Supplemental

401(k) Plan. Doc. 1.1 Prior to August 2016, no case had ever been brought by a private law firm, the Department of Labor, or any other party or entity asserting claims of fiduciary breach for excessive fees and imprudent investments on behalf of a university’s retirement plan. Schlichter

Decl. ¶¶22-23; Sturdevant Decl. ¶¶7-8. Since the filing of this case, the parties engaged in over three years of litigation that included the production of over 185,000 pages of documents and the deposition of 19 fact witnesses and 5 experts.

The Court granted class certification on October 19, 2018, certifying the following class:

All participants and beneficiaries of the MIT Supplemental 401(k) Plan from

1 “Doc.” references are to the docket unless otherwise indicated. Capitalized terms not otherwise defined have the meanings ascribed to them in the Settlement Agreement. Doc. 290-01. A detailed discussion of the procedural history of this case is set forth in the Declaration of Scott T. Apking submitted herewith. 2

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August 9, 2010 through the date of judgment, excluding the Defendants.

Doc. 157. On July 15, 2019, Defendants moved for summary judgment on all claims. Doc. 204.

On September 4, 2019, the Court granted in part and denied in part Defendants’ motion for

summary judgment. Doc. 274.The motion was granted to the extent Plaintiffs alleged under

Count III that Defendants engaged in prohibited transactions in violation of 29. U.S.C. §1106(a).

Id. at 16–7. The motion was denied in all other respects. Id. This case was set for trial beginning

on September 16, 2019. Doc. 233. The parties reached an agreement to settle the case on

September 10, 2019.

ARGUMENT

Class Counsel recognizes that this Court stated it would determine any fee award using the lodestar method. Doc. 295. Although the Court has the discretion to apply the lodestar method, the First Circuit prefers the percentage of fund approach in cases involving common funds. As noted by the First Circuit, the percentage of fund approach offers distinctive advantages including: (1) it is less burdensome to administer; (2) it reduces the possibility of collateral disputes; (3) it enhances the efficiency throughout the litigation; (4) it is less taxing on judicial resources; and (5) it better approximates the workings of the marketplace. In re Thirteen Appeals

Arising out of the San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 307 (1st Cir. 1995)

(emphasis added). The preference is particularly strong in this case because Class Counsel

represents clients entirely on a contingency basis and does not charge an hourly fee. Schlichter

Decl. ¶46. Further, it is fundamentally different from being paid an assured hourly payment

when a Plaintiffs’ firm is pioneering new litigation that no one has ever done, as is the case here.

I. The lodestar confirms the reasonableness of Class Counsel’s request.

The lodestar approach multiplies the reasonable hours spent in litigating the case by the

reasonable hourly rates of the attorneys who worked on the case. In re Thirteen Appeals, 56 F.3d

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at 305. The rates must be in line with attorneys with commensurate skill and experience. In re

Prudential Ins. Co. of Am. SGLI/VGLI Contract Litig., No. 11-02208, 2014 WL 6968424, at *6

(D. Mass. Dec. 9, 2014). A multiplier of the lodestar rate may be used. In re Volkswagen & Audi

Warranty Extension Litig., 89 F. Supp. 3d 155, 165 (D. Mass. 2015) (multipliers are an accepted means of enhancing a lodestar to appropriately reflect, for example, the scale of the results achieved by the prevailing counsel or the risks counsel took in pursuing contingent fees).

Although the First Circuit prefers the percentage of fund approach, a lodestar analysis may nevertheless be performed as simply a check to ensure that the percentage award is fair and reasonable. In re Volkswagen, 89 F. Supp.3d at 163.

Class Counsel’s lodestar in this matter is $6,168,902, resulting in a fee multiplier of less than one—0.97. The lodestar in this case is below “the lower end of multipliers reflected in other cases … [.]” Bacchi v. Mass. Mutual Life Ins. Co., No. 12-11280-DJC, 2017 WL 5177610, at *5

(D. Mass. Nov. 8, 2017) (finding that a 1.31 lodestar is low); see also Carlson v. Target

Enterprise, Inc., No. 18-40139-TSH, 2020 WL 1332829, at *2 (D. Mass. Mar. 23, 2020) (stating that 1.08 is a low multiplier); Gordan v. Mass. Mutual Life Ins. Co., No. 13-30184-MAP, 2016

WL 11272044, at *3 (D. Mass. Nov. 3, 2016) (approving 3.66 multiplier in a similar ERISA case); New England Carpenters Health Bens. Fund v. First Databank, Inc., No. 5-11148-PBS,

2009 WL 2408560, at *2 (D. Mass. Aug. 3, 2009) (approving 8.3 multiplier); Conley v. Sears,

Roebuck & Co., 222 B.R. 181, 182 (D. Mass. 1998) (approving 8.9 multiplier); Roberts v. TJX

Co., No. 13-13142-ADB, 2016 WL 8677312, at *13 (D. Mass. Sep. 30, 2016)(collecting cases with multiples from 1 to 2). “Once established, the lodestar represents a presumptively reasonable fee … [.]” Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). The hours and fees that Class Counsel used to calculate the lodestar are reasonable.

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A. The hours expended are reasonable

To determine the final number of hours in this matter, Class Counsel performed a line-by- line audit of the time records. Apking Decl. ¶¶6-8. First, Class Counsel eliminated all time from attorneys who spent under 100 hours on the case (with an exception for one attorney who participated in drafting the complaint). Id. ¶7. Next, Class Counsel removed any duplicative, insufficient or otherwise unnecessary time entries. Id. This process resulted in the elimination of over 900 hours. Id. After eliminating those hours, 9,094.60 hours of attorney time and 1,490.4 hours of non-attorney time remained for the over three-years to bring this case to an $18.1 million settlement on the eve of trial. Schlichter Decl. ¶¶42, Exhibit B; Apking Decl. ¶¶8, 10.2

The total hours expended in this case are consistent with the approved hours expended by other firms in complex ERISA class actions that did not even reach the summary judgment stage. See, e.g., In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 364 F.Supp.2d 980, 989 (D.

Minn. 2005) (Plaintiffs’ counsel spent a total of 10,401.67 hours prosecuting the case for two and a half years). The hours in this case are less than those approved in some of Class Counsel’s other similar cases with similar procedural backgrounds. Apking Decl. ¶9. For example, in a similar ERISA case that also settled on the eve of trial, Class Counsel expended 18,200 hours.

Sims v. BB&T Corp., No. 15-1705, 2019 WL 1993519, at *2 (M.D.N.C. May 6, 2019). This case required great attention to detail and efficiency by Class Counsel because it involve high-profile and sophisticated fact and expert witnesses. Schlichter Decl. ¶¶21, 37; Apking Decl. ¶¶23-25 ;

Doc. 205 at 7 (“members include MIT’s Executive Vice President and Treasurer and other senior faculty and administrators”). The case was vigorously defended. Schlichter Decl. ¶41; Apking

Decl. ¶¶15-20, 23-25, 27-28.

2 A detailed summary of Class Counsel’s efforts in this litigation is set forth in the Apking Declaration. If the Court deems it necessary, Class Counsel is willing to submit their time entries for in camera review, since they reflect sensitive work product of their attorneys. 5

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In these types of cases, opposing counsel’s hours and fees can dwarf those of Plaintiffs’

counsel. Tussey v. ABB, Inc. represents a prime example of this. In that case, the first 401k

excessive fee case trial, the two corporate defendants had 15 or more lawyers present in the

courtroom throughout the month-long trial. Schlichter Decl. ¶38; Rosen Decl. ¶39. The two

Defendants’ legal fees, not including expenses, exceeded $42 million through trial. Tussey v.

ABB, Inc., No. 06-4305, 2019 WL 3859763, at *3 (W.D. Mo. Aug. 16, 2019); see also I.W. v.

School Dist. of Philadelphia, No. 14-3141, 2016 WL 147148, at *13 (E.D. Pa. Jan. 13, 2016)

(“Evidence of the hours expended by the non-prevailing party on the same task is relevant to the

determination of whether the hours requested by the prevailing party are reasonable.” (citations

omitted)). Thus, the hours Class Counsel expended in this action are reasonable.

B. The hourly rates used to determine the lodestar are reasonable.

Without doubt, this is national litigation. As recently as January 2020, Class Counsel’s

hourly rates used to calculate the lodestar in this matter were approved in similar class action

litigation. Kelly v. Johns Hopkins Univ., No. 16-2835, 2020 WL 434473, at *6–7 (D. Md. Jan.

28, 2020). The approved hourly rates are as follows: for attorneys with at least 25 years of

experience, $1,060 per hour; for attorneys with 15–24 years of experience, $900 per hour; for

attorneys with 5–14 years of experience, $650 per hour; for attorneys with 2–4 years of

experience, $490 per hour; and for Paralegals and Law Clerks, $330 per hour. Id. Staff attorneys

are billed at the lowest experience rate for attorneys 2-4 years regardless of years of experience.

These rates were brought up to date based on 2016 hourly rates for Schlichter Bogard & Denton that were previously approved by Judge Ponsor in this District. Gordan, 2016 WL 11272044, at

*3. Judge Ponsor adopted the 2016 hourly rates that were previously approved by the Southern

District of Illinois in Spano v. Boeing Co., No. 06-743, 2016 WL 3791123, at *3 (S.D. Ill. Mar.

31, 2016).These rates are reasonable.

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Class Counsel has brought actions across the country defended by national firms with ERISA expertise, such as opposing counsel in this case. Schlichter Decl. ¶¶4-15, 20; Rosen Decl. ¶40.

Class Counsel’s requested rates were independently verified by a recognized expert in attorney fee litigation who opined that Class Counsel’s requested rates were reasonable based on rates charged by national attorneys of equivalent experience, skill, and expertise in complex class action litigation on both sides of the “v”. Rosen Decl. ¶¶59-74. Opposing counsel in this case,

O’Melveny, a global law firm with 15 offices, utilized attorneys from its offices in Washington

D.C., New York, and Los Angeles. Lead counsel for Defendants is the co-chair of O’Melveny’s

Financial Services Practice. The former Solicitor of Labor (who was responsible for enforcing

ERISA), Gregory Jacob, also represented Defendants. Defense attorneys of this caliber generally charge rates to clients in the range of $1,350-$2,000 per hour, much more than the highest rate set forth in Class Counsel’s rate schedule. See Rosen Decl. ¶¶61-62; see also U.S. Bank Nat’l

Assoc. v. Dexia Real Estate Capital Mkts., No. 12-9412, 2016 WL 6996176, at *8 (S.D.N.Y.

Nov. 30, 2016) (observing in 2016 that Morgan Lewis and another large firm billed at rates up to

$1,055 per hour to the client and that “partner billing rates in excess of $1,000 an hour are by now not uncommon in the context of complex commercial litigation.”). Indeed, in 2016 this

Court reviewed a declaration from a Boston based-law firm stating that its partner charged $1000 per hour to clients starting in March 2013. Momenta Pharms., Inc. v. Amphastar Pharms., Inc.,

No. 11-11681-NMG, 2016 WL 2642997, at *9 (D. Mass. May 9, 2016); Id. at Doc. 546, ¶4. A fifth-year associate at that firm billed clients $695 per hour in September 2013. Id. ¶¶7-8. A second to third-year associate billed $495 per hour in 2013. Id. ¶¶10-12. The same caliber attorneys routinely represents defendants in cases brought by Class Counsel. Rosen Decl. ¶40.

The 2013 rates these types of firms charge to clients are generally higher than those sought by

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Plaintiffs. Compare Momenta Pharms., Inc. No. 11-11681-NMG, Doc. 546 with Apking Decl.

¶10.

ERISA attorneys garner some of the highest rates in the country because litigating these breach of fiduciary duty claims involves managing a case with sparse yet rapidly evolving law, extremely complex facts, and analysis of a great number of documents. It requires deep knowledge of 401(k) industry practices. Thus, ERISA litigation, such as this, involves a national market because the number of plaintiff’s and defense firms who have the expertise and the resources to litigate these complex claims is small. Abbott v. Lockheed Martin Corp., No. 06-

701, 2015 WL 4398475, at *3 (S.D. Ill. Jul. 17, 2015); Schlichter Decl. ¶¶27, 37-38, 41;

Sturdevant Decl. ¶10, 12; Rosen Decl. ¶¶26, 47, 60, 64, 69. Therefore, the relevant hourly rate is the “nationwide market rate” and opposing counsel’s rates are instructive because Schlichter

Bogard & Denton charges an entirely contingent fee. Kruger v. Novant Health, Inc., No. 14-208,

2016 WL 6769066, at *4 (M.D.N.C. Sep. 29, 2016); Clark v. Duke Univ., No. 16-1044, Doc. 165 at 5, 8 (M.D. N.C. June 24, 2019); Sims, 2019 WL 1993519, at *2; Ramsey v. Phillips N. Am.

LLC, No. 18-1099, Doc. 27 at 8 (N.D. Ill. Oct. 15, 2018); Beesley v. Int’l Paper Co., No. 06-703,

2014 WL 375432, at *3 (S.D. Ill. Jan 31, 2014); Abbott, 2015 WL 4398475, at *2; Tussey, 2015

WL 8485265, at *7.

When viewed as a blended rate, Class Counsel’s request amounts to $569.93 per hour. This is the equivalent of a large defense firm’s second or third-year associate defending the entire case.

Rosen Decl. ¶73; see also Momenta Pharms., Inc. No. 11-11681-NMG, Doc. 546. Second and third-year associates at large defense firms engage in tasks such as document review and reviewing deposition testimony to make confidentiality designations. Rosen Decl. ¶73.

Additionally, this blended rate is similar to blended rates approved as far back as 2010. See, e.g.,

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Will v. Gen. Dynamics Corp., No. 06-698, 2010 WL 4818174, at *9, 13 (S.D. Ill. Nov. 22,

2010) (blended rate of $514.60 per hour to calculate lodestar in 2010); Tussey v. ABB, Inc., 746

F.3d 327, 340-41 (8th Cir. 2014) (same); Krueger v. Ameriprise Fin., Inc., 2015 WL 4246879, at

*8–9 (D. Minn. July 13, 2015)(same).

Class Counsel’s hours do not include the hours expended by local counsel. Having paid local

counsel, who is not on a contingent fee arrangement, Class Counsel’s net will be reduced by the

sum paid to local counsel. Apking Decl. ¶8. In addition, Class Counsel has committed to the

following work without any additional fee: (1) time for preparation, travel and attending the final

approval hearing; (2) time for managing the process of handling many calls from participants

that will come regarding the notice, the timing, and the details of the settlement; (3) time for interacting with the Settlement Administrator and the Independent Fiduciary; (4) time for reviewing the Requests for Proposals responses; (5) time for monitoring compliance with the settlement for the next three years; and (6) time for handling an enforcement action, if needed, to enforce the settlement. Apking Decl. ¶¶29-31.

Based on its experience in other cases, Class Counsel anticipates spending an additional 50-

100 hours administering the settlement over the upcoming years. Class Counsel will provide these additional services to the class for no additional fee, supporting Class Counsel’s reasonable fee. Roberts, 2016 WL 8677312, at *13; Apking Decl. ¶30.

The rates and hours used to calculate the lodestar are therefore reasonable, given the

specialized area of law, Class Counsel’s creation of the field of 401(k) excessive fee litigation,

and its skill, reputation, and expertise. First Databank, 2009 WL 2408560, at *2.

II. Class Counsel’s request is additionally reasonable when the twelve factors are considered.

In determining the reasonableness of class counsel’s fee award, the Court should considering

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 16 of 27

the following factors: (1) the time and labor required, (2) the novelty or complexity of the issues,

(3) the skill required, (4) customary fee, (5) the preclusion of other employment by the attorneys,

(6) the fixed or contingent nature of the fee, (7) the time limitations imposed by the client or circumstances, (8) the damages involved and results obtained, (9) attorney experience, reputation and ability, (10) desirability of the case, (11) the nature and length of the client relationship and

(12) the size of awards in similar cases. Momenta Pharms., 2016 WL 2642997, at *3; see also

Gordan, 2016 WL 11272044 (listing common fund considerations); In re Relafen Antitrust

Litig., 231 F.R.D. 52, 85−89 (D. Mass 2005). In applying these factors, Class Counsel demonstrates below that the requested award is not only fair and reasonable, it is warranted.

A. The amount of labor required

Class Counsel’s requested fee is amply justified by their work in this case. As noted above,

Class Counsel devoted over 10,500 hours of attorney and staff time over three years to bring this case to an $18.1 million settlement. These hours were efficiently expended and are less than the approved hours expended in other similar cases. Class Counsel reviewed over 180,000 pages of documents, the parties took 23 deposition, and Class Counsel fully prepared for trial, reaching settlement only on the brink of trial.

B. The novelty and complexity of the issues

ERISA class action litigation is inherently complex. Kruger, 2016 WL 6769066, at *2–3; see also Sturdevant Decl. ¶¶10-11. This “rapidly evolving” area of law places demands on counsel that are “complex and require the devotion of significant resources.” In re Wachovia Corp.

ERISA Litig., No. 09-262, 2011 WL 5037183, at *4 (W.D. N.C. Oct. 24, 2011). Excessive fee litigation “entails complicated ERISA claims” and “novel questions of law.” Martin v.

Caterpillar, Inc., No. 07-1009, 2010 WL 3210448, at *2 (C.D. Ill. Aug. 12, 2010); Tussey v.

ABB, Inc., No. 06-4305, 2012 WL 5386033, at *3 (W.D. Mo. Nov. 2, 2012), vacated and

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 17 of 27

remanded, 746 F.3d 327 (8th Cir. 2014). Few firms “are capable of handling this type of national litigation.” Abbott, 2015 WL 4398475, at *3; Schlichter Decl. ¶¶14, 27, 37-38, 41; Sturdevant

Decl. ¶10.

Litigating an ERISA 401(k) breach of fiduciary duty claim involves managing a case with sparse, yet rapidly evolving law, extremely complex facts, and analysis of a great number of documents. LaLonde v. Textron, Inc., 369 F.3d 1, 6 (1st Cir. 2004) (noting the sparse jurisprudence relating to ERISA breach of fiduciary duty claims)(citing In re Global Crossing

Sec. & ERISA Litig., 225 F.R.D. 436, 459 n.13 (S.D.N.Y. 2004) (noting the esoteric, rapidly developing nature of ERISA breach of fiduciary duty cases)); Schlichter Decl. ¶24. It requires deep, specialized knowledge of 401(k) industry practices, as demonstrated by the fact that Class

Counsel spent a year and nine months investigating the industry before filing any claim

Schlichter Decl. ¶¶18, 21-22 The novelty and difficulty of this case is demonstrated by the fact that Defendants retain global law firms that utilize attorneys from multiple offices throughout the nation. Rosen Decl. ¶40; Apking Decl. ¶23. The subject matter is highly technical, including facts about prudent investment practices, industry best practices, fiduciary practices, and complex financial matters, requiring use of multiple experts for all parties. Apking Decl. ¶¶24-

25.

In addition to the novel questions of law, Plaintiffs also faced recent, adverse precedent. See, e.g., Cunningham v. Cornell Univ., No. 16-6525, 2019 WL 4735876 (S.D.N.Y. Sep. 27,

2019)(granting summary judgment); Divane v. Northwestern Univ., No. 16-8157, 2018 WL

2388118 (N.D. Ill. May 25, 2018) (granting motion to dismiss) (and affirmed on March 25,

2020, --- F.3d ---, 2020 WL 1444966 (7th Cir. Mar. 25, 2020)); Wilcox v. Georgetown Univ., No.

18-422, 2019 WL 132281 (D.D.C. Jan. 8, 2019)(same); Davis v. Wash. Univ. in St. Louis, No.

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 18 of 27

17-1641, 2018 WL 4684244 (E.D. Mo. Sept. 28, 2018)(same); see also Kruger, 2016 WL

6769066, at *4 (noting adverse precedent). Demonstrating the novelty and complexity of the

legal issues, during this case, both parties filed notices of conflicting supplemental authority on

various questions of law. See, e.g., Docs. 55, 63, 68, 118.

C. The skill required, reputation and ability of the attorneys (factors 3 and 9)

Class Counsel is not only highly experienced in handing ERISA class actions involving

retirement plans, but “pioneer[ed] . . . the field of retirement plan litigation.” Abbott, 2015 WL

4398475, at *1. Class Counsel is the “preeminent firm” in excessive fee litigation having

“achieved unparalleled results on behalf of its clients” in the face of “enormous risks.” Nolte v.

Cigna Corp., No. 07-2046, 2013 WL 12242015, at *3–4 (C.D. Ill Oct. 15, 2013). Courts across

the country have recognized the reputation, skill, and determination of Class Counsel in pursuing

relief on behalf of retirement plan participants. Schlichter Decl. ¶¶5-15; Rosen Decl. ¶¶26-36.

Recently, on January 28, 2020, U.S. District Judge Russell found that “Schlichter Bogard &

Denton are Class Counsel of the highest caliber.” Kelly, 2020 WL 434473, *4. A litany of other

judges have commended the work of Class Counsel in ERISA matters. See, e.g., Clark, 2019 WL

2579201, at *3; Martin, 2010 WL 3210448, at *2; Nolte, 2013 WL 12242015, at *2 (internal

citations omitted); Will, 2010 WL 4818174, at *3; Sims, 2019 WL 1993519, at *3; Beesley, 2014

WL 375432, at *2; Spano, 2016 WL 3791123, at *3.

In awarding attorneys’ fees to Class Counsel after the first trial of an ERISA excessive class

action, the district court concluded that “Plaintiffs’ attorneys are clearly experts in ERISA

litigation.” Tussey, 2012 WL 5386033, at *3. Class Counsel’s record of success and

perseverance enabled the class to obtain a favorable settlement, and no other private law firm

could have obtained the extensive relief in the case. Rosen Decl. ¶38.

Class Counsel also litigated the landmark case of Tibble v. Edison Int’l, 135 S.Ct. 1823

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 19 of 27

(2015)—the first and only 401(k) fee case to be heard by the Supreme Court—where it won a unanimous 9-0 verdict. In that case, the United States Solicitor General and the AARP filed amicus briefs in support of Plaintiffs’ position, not only demonstrating the importance of the work being done by Class Counsel, but also that it is at the highest level. See Rosen Decl. ¶42.

D. The customary fee

As described above, Class Counsel represents clients entirely on a contingency basis and

does not charge an hourly fee. Therefore, the rates charged by defense counsel are instructive on

the customary fee in this type of case. See, e.g., Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 768

n.18 (7th Cir. 1982) (“The rates charged by the defendant’s attorneys provide a useful guide to

rates customarily charged in this type of case.” (citation omitted)). As noted below, the

customary fee is a one-third award of the common fund.

E. The preclusion of other employment by the attorneys and desirability of the case (factors 5 and 10)

The decision to pursue this case, advance substantial costs and commit substantial

resources and thousands of attorney hours to obtain a successful recovery materially

impacted Class Counsel’s ability to handle “other simpler and less risky matters.”

Krakauer v. Dish Network, LLC, No. 14-333, 2018 WL 6305785, at *4 (M.D.N.C. Dec.

3, 2018); Schlichter Decl. ¶42. The commitment for this type of litigation when taking it

on is done with the knowledge that it may require 20,000 or more hours over 12 years

with a trial, multiple appeals, and multiple remandments. See Tussey, 2015 WL 8485265

(over 12 years of litigation and 24,000 hours). This demonstrates the fact that it is

undesirable to bring these types of cases for most firms. See Schlichter Decl. ¶38.

Further, in August 2016 Class Counsel became the first law firm in the country to file

an excessive fee lawsuit involving a university’s retirement plan, including this case. No

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 20 of 27

law firm was willing to devote the resources and endure the tremendous risk of nonpayment inherent in this litigation “at any rate[.]” Nolte, 2013 WL 12242015, at *3;

Ramsey, Doc. 27 at 3; see also Schlichter Decl. ¶¶22-23; Sturdevant Decl. ¶¶13-14. Even now, few law firms have the necessary expertise and are willing take the risk and devote the substantial resources necessary, at risk of nonpayment, to litigate these complex

ERISA claims. Abbott, 2015 WL 4398475, at *3; Schlichter Decl. ¶¶37-38, 41;

Sturdevant Decl. ¶¶10.

F. The contingent nature of the fee

Class Counsel litigated this matter on a contingent basis with no guarantee of recovery. Class

Counsel entered into contingency fee agreements with each of the Named Plaintiffs for one-third of any monetary recovery plus reimbursement of expenses. Schlichter Decl. ¶35. The Named

Plaintiffs would not have been unable to pursue this litigation other than on a contingency fee basis. Id; Sturdevant Decl. ¶14. The action settled just before trial, a high-stakes endeavor, inherently fraught with risks and bearing enormous consequences, especially in light of the fact that the only university excessive fee to go to trial in history resulted in judgment for the

Defendants. Sacerdote v. New York Univ., 328 F.Supp.3d 273 (S.D. N.Y. 2018). That trial, handled by Class Counsel, occurred in April 2018. Judgment was entered on July 31, 2018.

Similar allegations of imprudence are also made in this case.

The difficulty in successfully obtaining a judgment is further illustrated by dismissals of similar excessive fee allegations involving university retirement plans. See, e.g., Divane, 2018

WL 2388118 (dismissal upheld by the 7th Circuit Court of Appeals, March 25, 2020, --- F.3d ---,

2020 WL 1444966); Cunningham, 2019 WL 4735876 (granting defendants’ summary judgment). Moreover, even if a successful judgment is obtained after a trial, recovery is far from certain. Tussey v. ABB, Inc., required over twelve years of litigation following multiple appeals

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 21 of 27

before the parties reached a settlement on March 28, 2019. Tussey v. ABB, Inc., No. 06-4305,

Doc. 859 (W.D. Mo. Mar. 28, 2019). Tibble v. Edison, supra, also took over 12 years and had multiple appeals. No. 07-5359, 2017 WL 3523737 (C.D. Cal. Aug. 16, 2017).

Obtaining the $18.1 million settlement in this case required Class Counsel to remain committed to the litigation throughout, and entailed significant risk of nonpayment.

G. The time limitation imposed by the client or circumstances

This case was set for trial on September 16, 2019. Doc. 234. The parties settled the case on

September 10, 2019. Doc. 286. Class Counsel was fully prepared for trial. Apking Decl. ¶28.

However, even if Plaintiffs had prevailed at trial, like Tussey and Tibble, the aggressive defense presented the possibility that Class Members would have to wait over a decade to receive any compensation pending multiple appeals. Rather than “having to wait as long as a decade as other classes in similar 401(k) cases have to do,” Class members will receive compensation and be able to invest their proceeds immediately in a tax-deferred vehicle, which adds more value.

Kruger, 2016 WL 6769066, at *5. Alternatively, this Court may have sided with the decisions of other courts and found in favor of Defendants.

H. The damages involved and the results obtained.

Class Counsel obtained $18.1 million in monetary compensation for the Class. This is an excellent result and represents the largest settlement in any university sponsored retirement plan excessive fee case in history. There are an estimated 29,567 class members. This case is not a

“coupon cases” where individual class members receive minimal benefit. They will also greatly benefit from the changes to the plan going forward for many years.

Comparison to similar settlements demonstrates the outstanding results here. After Plaintiffs filed the instant case, several other firms pursued similar cases against other university plan fiduciaries. Two of them settled. This settlement is multiples of the other university sponsored

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 22 of 27

retirement plan settlements handled by different law firms. See Short v. Brown Univ., No. 17-

318, Doc. 55 (D. R.I. Aug. 2, 2019) ($3.5 million; 41,780 class members); Daugherty v. Univ. of

Chi., No. 17-3736, Doc. 57-1 (N.D. Ill. Sept. 12, 2018) ($6.5 million; 14,838 class members).

Rosen Decl. ¶51. The robust non-monetary relief herein also exceeds any relief obtained by other

firms. Id. The superior result was reached because of Class Counsel’s hard-earned and acknowledged reputation as the pioneering law firm in retirement plan excessive fee litigation – a field Class Counsel created – along with its diligent work in this case. Class members will receive compensation and be able to invest their proceeds immediately in a tax-deferred retirement savings vehicle. The Investment Company Institute estimates that the benefit of the present value of tax deferral for 20 years is an additional 18.6%,3 so the actual present value to the Class of the monetary portion of the settlement is $21,466,600.

In addition to the monetary value of the settlement, this Court also must consider the

additional value added by the affirmative or injunctive relief obtained. Bezdek v. Vibram USA

Inc., 79 F. Supp. 3d 324, 346–47 (D. Mass. 2015) (Woodlock, J.) (“Injunctive relief has been

recognized as a meaningful component of a settlement agreement”) (internal citations omitted).4

The affirmative future relief is extensive and provides substantial additional value. See Doc. 290-

1 at 23–24 (Art. 10). Defendants have committed to providing this relief over a three-year

settlement period, during which it will, among other things, provide annual training to Plan

fiduciaries; conduct a competitive bidding process for recordkeeping services; and prohibit

solicitation for the purchase of non-Plan products. Class Counsel engaged Dr. Stewart Brown, a

nationally recognized economist, at no expense to the class, to provide the Court with an

3 Peter Brady, Marginal Tax Rates and the Benefits of Tax Deferral, Investment Company Institute, Sept. 17, 2013, available at http://www.ici.org/viewpoints/view_13_marginal_tax_and_deferral. 4 Blanchard v. Bergeron, 489 U.S. 87, 95 (1989) (cautioning against an “undesirable emphasis” on monetary “damages” that might “short-change efforts to seek effective injunctive or declaratory relief”). 16

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 23 of 27

estimate of the economic value of the expected decrease in recordkeeping fees following the

competitive bidding process. Dr. Brown estimates that over a five-year period, Plan participants

will achieve fee savings of at least $2,241,428 as a result of the competitive bidding process.

Brown Decl. ¶8. The present value of these savings is $2,212,367. Id. ¶11.

The non-monetary relief provisions of the Settlement provide significantly enhanced value beyond the value of the Plan consultant and competitive bidding process. These provisions will allow Plan participants to avoid targeted solicitations pressuring them to purchase investment products outside the Plan. Recent publications have noted the significance of the non-monetary

relief provision in this case, and have noted that these provisions help protect against cross-

selling by third-party service providers.5 Class Counsel engaged Professor Neil Richards, at no

expense to the class, an internationally recognized data privacy expert, to provide the Court with

an opinion about the value of the provision requiring Defendants to prohibit the Plan’s

recordkeeper from proactively soliciting Plan participants and inform the Court on how

companies collect and use data to influence consumers—here Plan participants. Richards Decl.

¶¶2, 10, 18-39. Protection of Plan participants from unwanted solicitations using their personal

information will save them as much as $5.8 million over the settlement period. Id. ¶¶40-54.

This substantial relief is not temporary or fleeting. Rather, this relief will go into effect after final approval and continue to protect class members for three years after final approval. The non-monetary terms will also protect future class members that join the Plan after final approval.

After agreeing to these items, it would be highly unlikely that Defendants would revert to past practices after the three-year enforcement period is concluded.

5 Greg Iacurci, Cross-selling gaining prominence in retirement-plan lawsuits, Investment News (Nov. 6, 2019 4:41 PM), https://www.investmentnews.com/article/20190812/FREE/190819996/cross-selling-gaining-prominence- in-retirement-plan-lawsuits; see also Informed Investor Advisory: Cross-Selling, North American Securities Administrators Association (Nov. 6, 2019), https://www.nasaa.org/51426/informed-investor-advisory-cross- selling/?qoid=investor-advisories. 17

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 24 of 27

Considering the monetary value of the Settlement, plus the value of tax deferral, anticipated future recordkeeping fee savings resulting from competitive bidding, and anticipated savings from the anti-solicitation clause, the Settlement is valued at as much as $29,478,967. Thus, Class

Counsel’s requested fee is 20% of the total benefit to the Class.

H. The nature and length of the client relationship

Class Counsel did not have a professional relationship with any of the Named Plaintiffs prior to this litigation, which supports the requested fee award. Schlichter Decl. ¶36; Smith v. Krispy

Kreme, No. 05-187, 2007 WL 119157, at *3 (M.D.N.C. Jan. 10, 2007).

I. The size of the award in similar cases

In complex ERISA class actions, a one-third contingency fee of the monetary sum is routinely awarded. See e.g., Kelly, 2020 WL 434473, *4 (D. Md. Jan. 28, 2020); Cassell v.

Vanderbilt Univ., No. 16-2086, Doc. 174 (M.D. Tenn. Oct. 22, 2019) (33.33%); Tussey, No. 06-

4305-NKL, Doc. 870 (same); Gordan, 2016 WL 11272044 (same); Apking Decl. ¶11.

The leading treatise on class action litigation has put the average fee at one third. See Alba

Conte & Herbert Newberg, Newberg on Class Actions (4th ed. 2002), §14:6 at 551 (“Empirical studies show that, regardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”

J. Public policy

Public policy also supports Class Counsel’s fee. Class Counsel has provided “significant, national contribution” helping to “clarify[y] ERISA standards” and “educate[] plan administrators, the Department of Labor, the courts and retirement plan participants about the importance of monitoring recordkeeping fees and separating a fiduciary’s corporate interest from its fiduciary obligations.” Tussey v. ABB, Inc., No. 06-4305, 2015 WL 8485265, at *2 (W.D. Mo.

Dec. 9, 2015), vacated and remanded, 850 F. 3d 951 (8th Cir. 2017). “The public benefits when

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 25 of 27

capable and seasoned counsel undertake private action to enforce [federal] laws.” In re The Mills

Corp. Sec. Litig., 265 F.R.D. 246, 263 (E.D. Va. 2009). Additionally, the non-monetary relief in this case helps draw attention to the issue of cross-selling in retirement plans. Richards Decl.

¶54. Class Counsel’s efforts have contributed to over $2 billion in fee savings for plan participants throughout the whole industry. Nolte, 2013 WL 12242015, at *2.

III. The Court should award reimbursement of Class Counsel’s litigation expenses.

Class Counsel is entitled to reimbursement of litigation expenses of $522,021.93. Fed. R.

Civ. P. 23(h). Reimbursable expenses include expert fees, travel, conference telephone, postage, delivery services, and legal research. Alba Conte, 1 Attorney Fee Awards §2:19 (3d ed. 2004).

That is what the expenses submitted here cover. See O’Gorman Decl. ¶5.6 The expenses incurred in this case were reasonable and necessary. Schlichter Decl. ¶¶38, 41; Apking Decl. ¶9.

Class Counsel brought this case without guarantee of reimbursement or recovery. There was a strong incentive to limit costs. Given the complexity of this case, the costs incurred are much lower with what would be expected in a case of this magnitude that was litigated for years and settled on the eve of trial. See Spano, 2016 WL 3791123, at *1, 4 ($1.8 million in expenses);

Abbott, 2015 WL 4398475, at *1, 4 ($1.6 million in expenses); Beesley, 2014 WL 375432, at *1,

3 ($1.6 million in expenses); In re Northrop Grumman ERISA Litig., No. 06-6214, 2017 WL

9614818, at *6 (C.D. Cal. Oct. 24, 2017) ($1.2 million in expenses); George v. Kraft Foods

Glob., Inc., No. 07-1713, 2012 WL 13089487, at *1, 4 (N.D. Ill. June 26, 2012) ($1.5 million in expenses).

IV. The Court should approve case contribution awards for the Named Plaintiffs.

In their discretion, Courts typically award special compensation to the class representatives

6 Class Counsel is not seeking reimbursement for expenses paid for local counsel’s time or expenses incurred by co-counsel. 19

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 26 of 27

in recognition of their time and effort. In re Relafen Antitrust Litig., 231 F.R.D. at 82. “A

substantial incentive award is appropriate in [a] complex ERISA case given the benefits accruing

to the entire class in part resulting from [named plaintiff’s] efforts.” Savani v. URS Prof’l

Solutions LLC, 121 F. Supp. 3d 564, 577 (D. S.C. 2015). In this case, the Named Plaintiffs

provided invaluable assistance to Class Counsel. See Apking Decl. ¶¶12-13, 16. They risked their reputation and alienation “in bringing an action against a prominent [university] in their community.” Kruger, 2016 WL 6769066, at *6; see also Apking Decl. ¶13. The Named

Plaintiffs were subject to national media regarding the case.7

A case contribution award of $25,000 each for the five Class Representatives, which when

combined represents less than one percent of the Settlement Fund is reasonable and appropriate

given the contributions of the Class Representatives to the case. This amount is consistent with

awards in similar excessive fee settlements. See Kruger, 2016 WL 6769066, at *6; Abbott, 2015

WL 4398475, at *4; Krueger, 2015 WL 4246879, at *4; Beesley, 2014 WL 375432, at *4; Will,

2010 WL 4818174, at *4 (all awarding $25,000 to each named plaintiff).

CONCLUSION

This Court should grant Plaintiffs’ Motion.

7 See, MIT Accused of Costing Workers Millions In Cozy Deal with Financial Giant Fidelity, All Things Considers, NPR, Aug. 14, 2019, https://www.npr.org/2019/08/14/750918282/mit-accused-of-costing-workers- millions-in-cozy-deal-with-financial-giant-fideli. 20

Case 1:16-cv-11620-NMG Document 302-1 Filed 03/27/20 Page 27 of 27

Stephen Churchill, BBO#564158 FAIR WORK, P.C. 192 South Street, Suite 450 Boston, MA 02111 (617) 607-3260 (617) 488-2261 (fax) [email protected] Local Counsel for Plaintiffs

CERTIFICATE OF SERVICE

/s/ Jerome J. Schlichter

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 1 of 29

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, v. No. 1:16-CV-11620-NMG

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF JEORME J. SCHLICHTER

I, Jerome J. Schlichter, declare as follows:

1. I am the founding and managing partner of the law firm of Schlichter, Bogard &

Denton, LLP, Class Counsel for Plaintiffs in the above-referenced matter. This declaration is submitted in support of Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses, and

Case Contribution Awards for Named Plaintiffs. I am familiar with the facts set forth below and able to testify to them.

2. I received my Bachelor’s degree in Business Administration from the University of Illinois in 1969, with honors and was a James Scholar. I received my Juris Doctorate from the

University of California at Los Angeles (UCLA) Law School in 1972, where I was an Associate

Editor of UCLA Law Review. I am licensed to practice law in the states of Illinois, Missouri, and

California and am admitted to practice before the Supreme Court of the United States, the

Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Circuit Courts of Appeals and numerous

U.S. District Courts. I have also been an Adjunct Professor teaching trial practice at Washington

University School of Law, and repeatedly selected by my peers for the list of The Best Lawyers in America.

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 2 of 29

3. Through over 40 years of practice, I have handled, on behalf of plaintiffs,

substantial personal injury, civil rights class actions, mass torts and class action fiduciary breach

litigation under the Employee Retirement Income Security Act (ERISA), on behalf of

participants in large 401(k) and 403(b) plans. In 2014, I was ranked number 4 in a list of the 100

most influential people nationally in the 401(k) industry in the industry publication 401(k) Wire.

Examples of class action cases I have successfully handled include: Brown v. Terminal Railroad

Association, a race discrimination case in the Southern District of Illinois on behalf of all

African-American and Hispanic employees at a railroad; Mister v. Illinois Central Gulf Railroad,

832 F.2d 1427 (7th Cir. 1987), a failure-to-hire class action brought on behalf of hundreds of

African-American applicants from East St. Louis, Illinois at a major railroad which was tried to conclusion and successfully appealed to the Seventh Circuit Court of Appeals and finally concluded with more than $10 million for the class over twelve years of litigation; Wilfong v.

Rent-A-Center, No. 00-680-DRH (S.D.Ill. 2002), a nationwide gender discrimination in employment case on behalf of women, which was successfully settled for $47 million and substantial affirmative relief to the class of thousands, after defeating the defendant’s attempt to conduct a reverse auction.

4. My firm has been named class counsel in many cases involving claims of fiduciary breaches in large 401(k) and 403(b) plans. See Vellali v. Yale Univ., 333 F.R.D. 10 (D. Conn.

2019); Munro v. Univ. of S. California, No. No. 16-CV-06191 (VAP), 2019 WL 7842551 (C.D.

Cal. Dec. 20, 2019); Bell v. Pension Cmte. of ATH Holding Co., No. 15-2062, 2018 WL 4385025

(S.D. Ind. Sept. 14, 2018); Cunningham v. Cornell Univ., No. 16-6525, Doc. 219 (S.D.N.Y. Jan.

22, 2019); Cassell v. Vanderbilt Univ., No. 16-CV-2086 (WDC), 2018 WL 5264640 (M.D.

Tenn. Oct. 23, 2018); Cates v. Trustees of Columbia Univ., No. 16-6524, Doc. 218 (S.D.N.Y.

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 3 of 29

Nov. 8, 2018); Henderson v. Emory Univ., No. 16-2920, Doc. 167 (N.D. Ga. Sept. 13, 2018);

Henderson v. Emory Univ., No. 16-CV-2920 (CAP), 2018 WL 6332343 (N.D. Ga. Sept. 13,

2018); Clark v. Duke Univ., No. 16-CV-1044 (CCE), 2018 WL 1801946 (M.D.N.C. Apr. 13,

2018); Sacerdote v. N.Y. Univ., No. 16-CV-6284 (KBF), 2018 WL 840364 (S.D.N.Y. Feb. 13,

2018); Ramos v. Banner Health, 325 F.R.D. 382 (D. Colo. 2018); Troudt v. Oracle Corp., 325

F.R.D. 373 (D. Colo. 2018), amended, No. 16-CV-00175-REB-SKC, 2019 WL 1006019 (D.

Colo. Mar. 1, 2019); Pledger v. Reliance Trust, No. 15-4444, Doc. 101 (N.D. Ga. Nov. 7, 2017);

Marshall v. Northrop Grumman Corp., No. CV 16-06794-AB (JCX), 2017 WL 6888281 (C.D.

Cal. Nov. 2, 2017); Sims v. BB & T Corp., No. 1:15-CV-732, 2017 WL 3730552 (M.D.N.C.

Aug. 28, 2017); Gordan v. Massachusetts Mutual Life Insurance Co., No. 13-30184, Doc. 112

(D. Mass. June 22, 2016); Kruger v. Novant Health, Inc., No. 1:14CV208, 2016 WL 6769054

(M.D.N.C. May 18, 2016); Krueger v. Ameriprise Financial, Inc., 304. F.R.D. 559 (D. Minn.

2014); Abbott v. Lockheed Martin Corp., 286 F.R.D. 388 (S.D.Ill. 2012), and Abbott, No. 06-

701, Doc. 403 (S.D. Ill. Aug. 1, 2014); Beesley v. Int’l Paper Co., No. 06-703, Doc. 240 (S.D.

Ill. Sept. 30, 2008), and Doc. 543 (S.D. Ill. Oct. 10, 2013); Nolte v. Cigna Corp., No. 07-2046,

2013 WL 3586645 (C.D. Ill. July 3, 2013); Spano v. Boeing Co., 294 F.R.D. 114 (S.D. Ill. 2013);

George v. Kraft Foods Global Inc., No. 08-3799, 2012 U.S.Dist.LEXIS 26536 (N.D. Ill. Feb. 29,

2012)(George II); In re Northrop Grumman Corp. ERISA Litig., No. CV 06-06213 MMM JCX,

2011 WL 3505264 (C.D. Cal. Mar. 29, 2011); Will v. Gen. Dynamics Corp., No. CIV. 06-698-

GPM, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010); Martin v. Caterpillar Inc., No. 07-1009,

Doc. 173 (C.D. Ill. April 21, 2010); Tibble v. Edison Int'l, No. CV 07-5359 SVW AGRX, 2009

WL 6764541 (C.D. Cal. June 30, 2009); George v. Kraft Foods Global Inc., 251 F.R.D. 338

(N.D. Ill. 2008)(George I); Taylor v. United Techs. Corp., No. 3:06CV1494(WWE), 2008 WL

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2333120 (D. Conn. June 3, 2008); Kanawi v. Bechtel Corp., 254 F.R.D. 102 (N.D. Cal. 2008);

Tussey v. ABB, Inc., No. 06-04305-CV-NKL, 2007 WL 4289694 (W.D. Mo. Dec. 3, 2007);

Loomis v. Exelon Corp., No. 06C4900, 2007 WL 2060799 (N.D. Ill. June 26, 2007). A brief

biography of my firm, including summaries of our professional experience, is attached as

Exhibit A.

5. In 2016, Judge Michael Ponsor, in this District, approved a fee award of 33 1/3 percent of a $30.9 million settlement to Schlichter, Bogard & Denton in a 401(k) breach of fiduciary duty case. Judge Ponsor recognized Schlichter, Bogard & Denton “has demonstrated extraordinary resourcefulness, skill, efficiency and determination” and achieved an “exceptional

result” because of the firm’s “unique expertise and outstanding effort.” Gordan v. Massachusetts

Mut. Life Ins. Co., No. 13-CV-30184-MAP, 2016 WL 11272044, at *2 (D. Mass. Nov. 3, 2016).

6. Federal judges across the country have noted my and my firm’s work in plaintiffs’ class

action cases. Honorable Judge James Foreman, in the Mister case, supra, speaking of my efforts,

stated:

This Court is unaware of any comparable achievement of public good by a private lawyer in the face of such obstacles and enormous demand of resources and finance.

Order on Attorney’s Fees, Mister v. Illinois Central Gulf R.R., No. 81-3006 (S.D.Ill. 1993).

7. Honorable Judge David R. Herndon wrote, regarding my and the firm’s handling of the

Wilfong class action, supra:

Class counsel has appeared in this court and has been known to this Court for approximately 20 years. This Court finds that Mr. Schlichter’s experience, reputation and ability are of the highest caliber. Mr. Schlichter is known well to the District Court Judge and this Court agrees with Judge Foreman’s review of Mr. Schlichter’s experience, reputation and ability.

4 Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 5 of 29

Order on Attorney’s Fees, Wilfong v. Rent-A-Center, No. 0068-DRH (S.D.Ill. 2002). Judge

Herndon also noted in Wilfong that I “performed the role of a ‘private attorney general’ contemplated under the common fund doctrine, a role viewed with great favor in this Court” and described my action as “an example of advocacy at its highest and noblest purpose.” Id.

8. In Beesley v. International Paper, a 401(k) ERISA excessive fee case that resulted in a

settlement of $30 million plus substantial affirmative relief following seven years of litigation,

Judge David Herndon observed: “Litigating this case against formidable defendants and their

sophisticated attorneys required Class Counsel to demonstrate extraordinary skill and

determination. Schlichter, Bogard & Denton and lead attorney Jerome Schlichter’s diligence and

perseverance, while risking vast amounts of time and money, reflect the finest attributes of a

private attorney general.” Beesley v. Int’l Paper Co., No. 06-703, 2014 WL 375432, at 2 (S.D.Ill.

Jan. 31, 2014). Similarly, in Abbot v. Lockheed Martin, a 401(k) excessive fee case that took

over nine years, Honorable Chief Judge Reagan observed that “[t]he law firm Schlichter, Bogard

& Denton has had a humongous impact over the entire 401(k) industry, which has benefitted

employees and retirees throughout the country by bringing sweeping changes to fiduciary

practices.” Abbott v. Lockheed Martin Corp., No. 06-701, 2015 WL 4398475, at 3 (S.D.Ill. July

17, 2015).

9. In Will v. General Dynamics, another ERISA excessive fee case, Honorable Judge

Patrick Murphy found that litigating the case and achieving a successful result for the class

“required Class Counsel to be of the highest caliber and committed to the interests of the

participants and beneficiaries of the General Dynamics 401(k) Plans.” Will v. General Dynamics

Corp., No. 06-698, 2010 WL 4818174, at 2 (S.D. Ill. Nov. 22, 2010).

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10. Honorable Judge Baker, in Nolte v. Cigna, commented that Schlichter, Bogard &

Denton is the “preeminent firm in 401(k) fee litigation” and has “persevered in the face of the enormous risks of representing employees and retirees in this area.” Nolte v. Cigna Corp., No.

07-2046, 2013 WL 12242015, at 2 (C.D. Ill. Oct. 15, 2013). Judge McDade of the Central

District of Illinois, again speaking of the firm, observed that achieving a favorable result in this type of case required extraordinary efforts because the “litigation entails complicated ERISA claims”. Martin v. Caterpillar, Inc., No. 07-1009, 2010 WL 3210448, at *2 (C.D.Ill. Aug. 12,

2010).

11. In approving a settlement including $32 million plus significant affirmative relief, in a 403(b) excessive fee case, Chief Judge William Osteen in Kruger v. Novant Health, Inc., No.

14-208, Doc. 61 at 7–8 (M.D.N.C. Sept. 29, 2016) found that “Class Counsel’s efforts have not only resulted in a significant monetary award to the class but have also brought improvement to the manner in which the Plans are operated and managed which will result in participants and retirees receiving significant savings[.]”

12. In awarding attorney’s fees after the first 401(k) excessive fee trial in the history of the United States, Judge Nanette Laughrey concluded that “Plaintiffs’ attorneys are clearly experts in ERISA litigation.” Tussey v. ABB, Inc., No. 06-4305, 2012 WL 5386033, at *3 (W.D.

Mo. Nov. 2, 2012). Following remand, the district court again awarded Plaintiffs’ attorney’s fees, emphasizing the significant contribution Plaintiffs’ attorneys have made to ERISA litigation, including educating the Department of Labor and federal courts about the importance of monitoring fees in retirement plans:

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 7 of 29

courts and retirement plan participants about the importance of monitoring recordkeeping fees and separating a fiduciary’s corporate interest from its fiduciary obligations.

Tussey v. ABB, Inc., No. 06-4305, 2015 WL 8485265, at *2 (W.D. Mo. Dec. 9,

2015)(emphasis added).

13. After recognizing “their persistence and skill of their attorneys”, Judge Nancy

Rosenstengel similarly noted:

Class Counsel has been committed to the interests of the participants and beneficiaries of Boeing’s 401(k) plan in pursuing this case and several other 401(k) fee cases of first impression. The law firm Schlichter, Bogard & Denton has significantly improved 401(k) plans across the country by bringing cases such as this one[.]

Spano, 2016 WL 3791123, at *3 (emphasis added).

14. Recently, Judge Catherine Eagles noted that “these [ERISA] cases require a high

level of skill on behalf of plaintiffs to achieve any recovery.” Clark v. Duke, No. 1:16-CV-

01044, Doc. 165 at 6 (M.D.N.C. June 24, 2019). In approving attorneys’ fees, Judge Eagles concluded that “Class Counsel has demonstrated diligence, skill, and determination in this matter and, more generally, in an area of law in which few attorneys and law firms are willing or capable of practicing.” Id. at 7.

15. A few months ago, Judge George L. Russell, III, in approving a fee of one third of a $14 million settlement in a similar case, noted that “Schlichter Bogard & Denton’s work on behalf of participants in large 401(k) and 403(b) plans has significantly improved these plans, brought to light fiduciary misconduct that has detrimentally impacted the retirement savings of American workers, and dramatically brought down fees in defined contribution plans.” Kelly v. Johns

Hopkins Univ., No. 1:16-CV-2835-GLR, 2020 WL 434473, at *2 (D. Md. Jan. 28, 2020). Judge

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Russell continued, “[w]ithout the unique and unparalleled foresight for this novel area of

litigation by Schlichter, Bogard & Denton, the class would not have obtained any recovery for

the alleged fiduciary breaches that affected the Johns Hopkins University 403(b) plan for years

prior.” Id. at *4.

16. I have also spoken on ERISA litigation breach of fiduciary duty claims at national

ERISA seminars as well as other national bar seminars.

17. In the decades of my private practice, I have never been reprimanded, sanctioned

or otherwise disciplined with respect to any aspect of the practice of law.

18. Since 2005, my firm and I have been investigating, preparing and handling, on behalf of plan participants, numerous cases against fiduciaries of large 401(k) plans alleging fiduciary breaches including excessive fees, conflicts of interests and prohibited transactions under ERISA.

19. My firm filed the first ERISA breach of fiduciary duty cases for excessive fees in the history of ERISA in 2006.

20. My firm has filed ERISA fiduciary breach class actions in numerous judicial districts throughout the United States, including districts within the First, Second, Third, Fourth,

Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits.

21. After close to a decade of handling excessive 401(k) fee cases, my firm and I began investigating similar claims for excessive fees and imprudent investments involving large plans sponsored by private universities. This investigation was extensive, lasting well over one year prior to the filing of a university plan lawsuit. My firm and I thoroughly researched legal and factual issues concerning university plans in general, as well as conducted specific analyses pertaining to each plan under investigation. We also were assisted by experienced industry

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 9 of 29

professionals knowledgeable about prudent fiduciary practices governing university plans, the

market rate for plan services, and other issues pertaining to the administration of plans.

22. Beginning in August 2016, after more than one year of diligently investigating

potential fiduciary breach claims involving private university plans, my firm expanded its

national ERISA practice by filing excessive fee cases against private universities. These lawsuits

were similar to the corporate excessive fee cases previously handled by my firm. This lawsuit

was one of a number of lawsuits that were filed in 2016 alleging breaches of fiduciary duty and

prohibited transactions concerning excessive fees charged to private university plan participants

and imprudent investments included in their plans.

23. No law firm had ever brought an excessive 401(k) or 403(b) case before my firm

did, and no other law firm has brought the number of cases our firm has brought, including:

• the first two trials of excessive 401(k) fee cases;

• the first and only 401(k) case in the United States Supreme Court; and

• the first and only trial of a 403(b) excessive fee case.

24. The first full trial of such a 401(k) case resulted in a judgment for the plaintiffs, affirmed in part by the Eighth Circuit. Tussey v. ABB, Inc., No. 06-4305, 2012 WL 1113291

(W.D.Mo. Mar. 31, 2012), aff’d in part, rev’d in part, 746 F.3d 327 (8th Cir. 2014). As Judge

Laughrey noted in that case, “[i]t is well established that complex ERISA litigation involves a national standard and special expertise. Plaintiffs’ attorneys are clearly experts in ERISA

litigation.” Tussey v. ABB, Inc., No. 06-4305, 2012 WL 5386033, at 3 (W.D.Mo. Nov. 2,

2012)(citations omitted). That case involved two appeal, lasted twelve and a half years, and was

only recently settled.

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25. In the other 401(k) excessive fee trial, Tibble v. Edison Int’l, the United States

Supreme Court granted our petition for writ of certiorari in the first and only ERISA 401(k) excessive fee case taken by the Supreme Court. In a 9-0 unanimous decision, the Supreme Court vacated the Ninth Circuit’s affirmance of the summary judgment order and held that an ERISA fiduciary has a continuing duty to monitor plan investments and remove imprudent ones regardless of when they were added. Tibble v. Edison Int’l, 135 S.Ct. 1823 (2015). This was a watershed and landmark decision in ERISA litigation. Sitting en banc, ten judges of the Ninth

Circuit on remand unanimously vacated a Ninth Circuit panel decision and remanded to the district court to determine whether the defendants violated their continuing duty to monitor the

401(k) plan’s investments, stating that “cost-conscious management is fundamental to prudence in the investment function”. Tibble v. Edison Int’l, 843 F.3d 1187, 1199 (9th Cir. 2016)(citation omitted). Following remand, in August 2017, the plaintiffs obtained a judgment of $13.4 million in plan losses and investment opportunity. Tibble, No. 07-5359, 2017 WL 3523737 (C.D.Cal.

Aug. 16, 2017); Tibble, Docs. 570, 572.

26. My firm also handled the first excessive 403(b) case in history to go to trial.

Sacerdote v. New York Univ., 328 F.Supp.3d 273 (S.D.N.Y. 2018). That trial occurred in April

2018, and judgment was entered on July 31, 2018, finding in favor of New York University and against the plaintiffs. The parties are currently briefing an appeal of that decision before the

Second Circuit.

27. Before my firm brought ERISA 401(k) or 403(b) excessive fee cases, virtually no firm was willing to bring such a case, and I know of no other firm that has made anything close to the financial and attorney commitment to such cases to this date. Given that no other private

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law firm or the Department of Labor brought these cases before my firm entered this space, the

ERISA fiduciary breach actions brought by my firm were novel and certainly groundbreaking.

28. Several of the 401(k) cases my office filed were dismissed and the dismissals

upheld by the Courts of Appeals. Hecker v. Deere & Co., 556 F.3d 575 (7th Cir. 2009); Loomis

v. Exelon Corp., 658 F.3d 667 (7th Cir. 2011); Renfro v. Unisys Corp., 671 F.3d 314 (3d Cir.

2011). Others had summary judgment granted against the plaintiffs in whole or in part. Kanawi

v. Bechtel Corp., 590 F.Supp.2d 1213 (N.D. Cal. 2008); Taylor v. United Techs. Corp., No. 06-

3194, 2009 U.S.Dist.LEXIS 19059 (D. Conn. Mar. 3, 2009), aff’d, 354 Fed. Appx. 525 (2d Cir.

2009); George v. Kraft Foods Global, Inc., 684 F.Supp. 2d 992 (N.D.Ill. 2010), rev’d in part,

641 F.3d 786 (7th Cir. 2011); Tibble v. Edison Int’l, 639 F.Supp.2d 1074 (C.D.Cal. 2009), aff’d,

729 F.3d 1110 (9th Cir. 2013), vacated, 135 S. Ct. 1823 (2015), aff’d on remand, 820 F.3d 1041

(9th Cir. 2016); Cunningham v. Cornell Univ., 16-6525, 2019 WL 4735876 (S.D.N.Y. Sep. 27,

2019).

29. One of the private university cases handled by my office also was dismissed, and

the dismissal upheld on appeal. Divane v. Northwestern Univ., No. 16-8157, 2018 WL 2388118

(N.D.Ill. May 25, 2018), affirmed No. 18-2569, Doc. 55 (7th Cir. Mar. 25, 2020).

30. Prior to the filing the Tracey lawsuit in August 2016, my firm began researching

the MIT 401(k) Plan, investigating claims, and consulting with experts in the field of 401(k)

administration and investment management. The investigation began with obtaining and

reviewing each of the Plan’s Annual Reports since 2009 (Forms 5500), which are publicly

available documents filed with the United States Department of Labor in which the Plan

discloses its investment holdings and financial statements. Using this data, we conducted an

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extensive analysis of the Plan’s administrative fees and investment performance based on our

knowledge of industry practices.

31. On behalf of one of the named plaintiffs in this lawsuit, my firm also requested

from the Plan administrator under 29 U.S.C. §1024(b) documents and other information related

to the administration of the Plan, which included plan documents, custodial account agreements,

recordkeeping services agreements, the summary plan description, and fee disclosures, among

other documents. We also analyzed documents obtained from the named plaintiffs and other

material obtained from publicly available sources related to the administration of the Plan.

32. The Settlement Agreement provides—as part of its comprehensive affirmative relief—that Class Counsel will continue to monitor and conduct the process of enforcing the terms of the agreement. Further, Class Counsel has committed to carry out the enforcement mechanism of the Settlement Agreement, including seeking court action, and enforcing the agreement, if necessary, without requesting any additional fee for these future services.

33. In my opinion, the affirmative relief obtained herein has substantial value beyond the monetary value of the settlement of $18.1 million due to the substantial changes MIT will make to the Plan because of this lawsuit and other reforms required by the terms of the settlement. These are set forth in other declarations.

34. As a practical matter, litigants such as named Plaintiffs David B. Tracey, Daniel

Guenther, Maria T. Nicholson, Corrine R. Fogg, and Vahik Minaiyan could not afford to pursue litigation against well-funded fiduciaries of a multi-billion dollar 401(k) plan sponsored by a

large employer such as the MIT in federal court on any basis other than a contingent fee. I know

of no law firm in the United States, of the very few firms which would even consider handling

such a case as this or that would handle any ERISA class action, with an expectation of anything

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but a percentage of the common fund created. I know of no law firm that would agree to take

such a case on a contingent fee of 25%. Moreover, I know of no law firm that would agree to

handle such a case on a contingent hourly rate basis. Defendants’ attorneys in these cases are paid on their hourly rate without delay, without taking risk of loss, and without advancing and risking expenses.

35. The contingency fee agreements entered into between my firm and each of the named Plaintiffs David B. Tracey, Daniel Guenther, Maria T. Nicholson, Corrine R. Fogg, and

Vahik Minaiyan in this case provide for our fee to be one-third of any recovery plus expenses.

The plaintiffs in other ERISA fiduciary breach cases brought by my firm have also signed similar agreements calling for a one-third contingency fee plus expenses. I know of no firm in the country that accepts such cases for less than a one-third contingency fee.

36. Prior to this lawsuit, my firm did not have a professional relationship with any of the Named Plaintiffs.

37. These kinds of excessive fee cases involve tremendous risk, require review and analysis of thousands of documents, finding and obtaining opinions from expensive, unconflicted, consulting and testifying national experts in finance, investment management, fiduciary practices, and related fields, and are extremely hard fought and well-defended.

38. A law firm that brings a putative class action such as this must be prepared to finance the case for years through a trial and appeals, all at substantial expense. This has been my experience in handling these types of cases. For example, in Tussey v. ABB, supra, seven experts testified at trial, and the two defendant groups therein had 15 or more lawyers present in the courtroom throughout the month long trial. In addition, all parties, including plaintiffs, had a technology team present throughout. In addition, our firm expended over $2,000,000 in out-of-

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pocket expenses by the conclusion of the trial therein, and carried the expense without reimbursement for more than twelve years. That case continued after being tried almost ten years ago, followed by two appeals to the Eighth Circuit, and multiple remandments to the district court. Tibble v. Edison Int’l, supra, was also still pending until an appeal was decided earlier this year, nearly 14 years after it was filed.

39. Based on my experience, the market for experienced and competent lawyers willing to pursue ERISA excessive fee litigation is a national market, and the rate of 33 1/3% of any recovery, plus costs is necessary to bring such cases. This is the rate that a qualified and experienced attorney would negotiate at the beginning of the litigation, and the rate found reasonable in similar ERISA fee cases in numerous federal district courts, including courts in this

District.

• Gordan v. Mass. Mutual Life Ins. Co., No. 13-30184, 2016 WL 11272044 (D. Mass. Nov. 3, 2016);

• Kelly v. Johns Hopkins Univ., No. 1:16-CV-2835-GLR, 2020 WL 434473, at *2 (D. Md. Jan. 28, 2020)

• Tussey v. ABB, Inc., No. 06-CV-04305-NKL, Doc. 869 (W.D. Mo. August 16, 2019);

• Sims v. BB&T Corp., No. 15-1705, 2019 WL 1993519 (M.D.N.C. May 6, 2019);

• Clark v. Duke, No. 1:16-CV-01044, Doc. 166 (M.D.N.C. June 24, 2019);

• Cassell v. Vanderbilt Univ., No. 3:16-CV-02086, Doc. 174 (M.D. Tenn. Oct. 22, 2019);

• Bell v. Pension Comm. Of ATH Holding Co., LLC, No. 1:15-CV-02062, Doc. 380 (S.D. Ind. Sept. 4, 2019);

• Ramsey v. Philips, No. 18-1099, Doc. 27 (S.D. Ill. Oct. 15, 2018);

• In re Northrop Grumman Corp. ERISA Litig., No. 06-6213, 2017 WL 9614818 (C.D.Cal. Oct. 24, 2017);

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 15 of 29

• Kruger v. Novant Health, Inc., No. 14-208, 2016 WL 6769066 (M.D.N.C. Sept. 29, 2016);

• Spano v. Boeing Co., No. 06-743, 2016 WL 3791123 (S.D. Ill. Mar. 31, 2016);

• Abbott v. Lockheed Martin Corp., 2015 WL 4398475 (S.D. Ill. July 17, 2015);

• Krueger v. Ameriprise Financial Inc., No. 11-2781, 2015 WL 4246879 (D. Minn. July 13, 2015);

• Beesley v. Int’l Paper Co., No. 06-703, 2014 WL 375432 (S.D. Ill. Jan. 31, 2014);

• Nolte v. Cigna Corp., No. 07-2046, 2013 WL 12242015 (C.D. Ill Oct. 15, 2013);

• George v. Kraft Foods Global, No. 07-1713, 2012 WL 13089487 (N.D. Ill. June 26, 2012);

• Will v. General Dynamics, No. 06-698, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010); and

• Martin v. Caterpillar, Inc., No. 07-1009, 2010 WL 11614985 (C.D. Ill. Sept. 10, 2010).

40. Our firm has been class counsel in over 30 ERISA breach of fiduciary duty cases.

In all of the ERISA cases we have settled, the fee award has always been higher than 25% of the total recovery.

41. The kind of long-term expensive commitment of time and resources is needed if plan participants are to receive full compensation for their losses in such cases. Because my firm has committed to doing this in each case we pursue, it is my opinion that defendants take into account this firm’s long-term commitment to these cases in assessing their costs and the likelihood of success.

42. My firm and our co-counsel, the Law Offices of Michael M. Mulder devoted

9,094.60 hours of attorney and 1,490.40 hours of non-attorney time to date to prosecute the

ERISA claims on behalf of the MIT participants and beneficiaries. The summary of time expended attached hereto as Exhibit B is a summary indicating the amount of time, by work

Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 16 of 29

category, spent by each attorney and paralegal who was involved in this litigation. More time

will be spent handling responses from participants who receive notice, preparing for the final approval hearing, and traveling to the final approval hearing in May. In addition, there will be

substantial attorney time spent after the settlement effective date. Because my firm works solely

on a contingency fee basis, and there is a limited number of active cases it can handle at any

given point, the decision to pursue this class action and commit significant resources to obtain a

successful recovery on behalf of the class through potentially years of litigation impacted the

firm’s ability to handle other class actions or pursue other less risky matters.

43. My firm will also monitor the settlement agreement for a three-year period without

seeking any reimbursement. This includes reviewing the final bid amounts that were submitted in

response to a request for proposals for recordkeeping vendors; handling any enforcement actions

if necessary; responding to calls from class members; and bearing half the expense if the

settlement is not approved.

44. Because of this monitoring, my firm will likely spend significant future time and

additional expenses without additional compensation both before and after final approval and

during the three-year settlement period. For instance, with nearly 30,000 current and former

participants who will be sent notices, in my experience, the firm will receive a high volume of

calls from Class members to address questions related to the settlement. The firm also will work

with the settlement administrator to facilitate the settlement during the settlement period.

45. By my firm obtaining this settlement for the Class without further delay, the Class

members will benefit by not only avoiding risk but also avoiding what would have been

substantial costs and delay for trial and potential appeals. In addition, they will benefit by being

able to invest their recoveries and benefit from the earnings much earlier than if there had been

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years of delay. Likewise, the non-monetary relief will benefit them much earlier than if they had

obtained the same relief after years more of litigation.

46. Schlichter, Bogard & Denton does not bill clients on an hourly basis. In January 2020,

based on the national market for complex ERISA fiduciary breach litigation, the following

hourly rates for my firm were approved: $1,060/hour for attorneys with at least 25 years of

experience, $900/hour for attorneys with 15–24 years of experience, $650/hour for attorneys

with 5–14 years of experience, $490/hour for attorneys with 2–4 years of experience, and

$330/hour for Paralegals and Law Clerks. Kelly, 2020 WL 434473, at *6.

47. These rates for our firm have been approved by numerous courts across the country in

the last year. See Id.; Tussey v. ABB, Inc., No. 06-CV-04305-NKL, Doc. 869 (W.D. Mo. August

16, 2019); Sims, 2019 WL 1993519, at *3; Clark v. Duke, No. 1:16-CV-01044, Doc. 166

(M.D.N.C. June 24, 2019); Cassell v. Vanderbilt Univ., No. 3:16-CV-02086, Doc. 174 (M.D.

Tenn. Oct. 22, 2019); Bell v. Pension Comm. Of ATH Holding Co., LLC, No. 1:15-CV-02062,

Doc. 380 (S.D. Ind. Sept. 4, 2019).

48. These rates were brought up to date based on 2016 hourly rates for Schlichter, Bogard

& Denton that were previously approved by Judge Ponsor in this District. Gordan, 2016 WL

11272044, at *3. Judge Ponsor adopted the 2016 hourly rates that were previously approved by

the Southern District of Illinois in Spano, 2016 WL 3791123 at *3. The rates were: $998/hour for

attorneys with at least 25 years of experience, $850/hour for attorneys with 15–24 years of

experience, $612/hour for attorneys with 5–14 years of experience, $460/hour for attorneys with

2–4 years of experience, $309/hour for Paralegals and Law Clerks, and $190/hour for Legal

Assistants.

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49. In the course of this litigation, we have also incurred local counsel fees for which we have not requested reimbursement, or included those hours in our hourly calculation.

I declare, under penalty of perjury, that the foregoing is true and correct to the best of my

knowledge and that this declaration was executed this 27th day of March, 2020, in St. Louis,

Missouri.

/s/ Jerome J. Schlichter Jerome J. Schlichter

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SCHLICHTER BOGARD & DENTON

SELECTED ATTORNEYS BIOGRAPHY

Schlichter Bogard & Denton is a plaintiffs’ law firm which represents individuals in personal injury actions, class actions and complex litigation involving pension claims, breaches of fiduciary duties, product liability, and pharmaceutical products. The following is biographical information on selected attorneys in the firm.

JEROME J. SCHLICHTER

Jerome J. Schlichter received his Bachelor’s degree in Business Administration from the University of Illinois in 1969, with honors and was a James Scholar. Mr. Schlichter received his Juris Doctorate from the University of California at Los Angeles Law School in 1972, where he was an Associate Editor of UCLA Law Review. Mr. Schlichter is a member of the bar of California, Illinois, and Missouri, and is admitted to practice before the Supreme Court of the United States and numerous federal courts. He has also been an Adjunct Professor teaching a trial class at Washington University Law School.

During his career, Mr. Schlichter has handled on behalf of plaintiffs many substantial personal injury cases, consumer cases, toxic tort cases, and numerous complex, multi-plaintiff cases including mass tort cases and numerous ERISA breach of fiduciary national class actions. He has also held offices in national plaintiffs’ lawyer groups. For each year since 2007, he has been listed among the 100 most influential persons nationally in the 401(k) industry in the industry publication 401(k) Wire; he was listed as 3rd most influential in 2007, and 4th most influential in 2015.

Mr. Schlichter is lead attorney on numerous national class action cases involving claims on behalf of employees and retirees of excessive fees and fiduciary breaches in large 401(k) plans. He and the firm are widely acknowledged to have pioneered the area of 401(k) excessive fee litigation and have obtained settlements in ten of those cases. In the case of Martin v. Caterpillar a settlement was obtained for the sum of $16,500,000 plus significant changes in the 401(k) plan. In Will v. General Dynamics, a settlement has been reached in the sum of $15.15 million plus additional non-monetary relief. In Kanawi v. Bechtel, the settlement obtained included $18.5 million as well as additional affirmative relief. In Beesley v. International Paper, a settlement was reached for the sum of $30 Million, as well as significant affirmative relief. In George v. Kraft Foods, a settlement was reached for $9.5 Million plus non-monetary relief. In Nolte v. Cigna, a settlement was reached for $35 Million plus significant changes in the plan to benefit participants. In

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Krueger v. Ameriprise, a settlement was reached for $27.5 Million, and substantial additional changes to the plan. Abbott v. Lockheed Martin produced a settlement of $62 million, the largest sum recovered in a 401k excessive fee case in history, plus significant non-monetary relief. Spano v. Boeing Co., resulted in a $57 million settlement on behalf of participants in Boeing’s 401(k) plan, including significant non-monetary relief. Kruger v. Novant Health, Inc., a $32 million settlement was reached on behalf of 401(k) plan participants, together with substantial affirmative non-monetary relief. Gordan v. Mass Mutual Life Inss., Co., a settlement was reached for $30.9 Million with plus additional non-monetary relief.

Mr. Schlichter was the lead attorney for plaintiffs in Tussey v. ABB, Inc., the first full trial for excessive fees in a 401(k) plan, which resulted in a multi-million dollar judgment for participants in ABB’s 401(k) Plan, plus substantial reform to the 401k plan.

Mr. Schlichter is also lead attorney in Tibble v. Edison, in which he and his firm represent participants in the 401(k) plan of Edison International. In that case, the U.S. Solicitor General, AARP and other organizations supported his firm’s position that the case was one of critical importance to all 401(k) participants. In May of 2015, the Supreme Court ruled, unanimously, in favor of the participants in the plan.

Examples of other class cases handled by Mr. Schlichter include: Brown v. Terminal Railroad Association, a discrimination case on behalf of African American and Hispanic workers, which was certified as a class, and concluded with a multi- million dollar settlement after more than 5 years of litigation; Mister v. Illinois Central Gulf Railroad, 832 F.2d 1427 (7th Cir. 1987), a failure-to-hire suit brought on behalf of hundreds of African-Americans applicants, which was certified, tried and successfully appealed to conclusion and finally settled for more than $10 million after 12 ½ years of litigation, and Wilfong v. Rent-A-Center, No. 00-680-DRH (S.D. Ill. 2002), a nationwide gender discrimination case on behalf of women employees and applicants, which was successfully settled for $47 million and other relief to the class, after defeating the defendant’s attempt to conduct a reverse auction.

Mr. Schlichter has been praised by numerous Federal Judges, retirement plan groups and national experts for his firm’s work.

• The AARP Foundation commented that Mr. Schlichter’s work in the Bechtel 401(k) fee case was “… truly extraordinary.” • In Beesley v. International Paper, an ERISA excessive fee case, U.S. District Judge David Herndon observed: “Litigating this case against formidable defendants and their sophisticated attorneys required Class Counsel to demonstrate extraordinary skill and determination. Schlichter, Bogard & Denton and lead attorney Jerome Schlichter’s diligence and perseverance,

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while risking vast amounts of time and money, reflect the finest attributes of a private attorney general.” Beesley v. Int’l Paper Co., No. 06-703-DRH, 2014 U.S. Dist. LEXIS 12037, 8 (S.D. Ill. Jan. 31, 2014). • In Will v. General Dynamics, another ERISA excessive fee case, U.S. District Judge Patrick Murphy found that litigating the case and achieving a successful result for the class “required Class Counsel to be of the highest caliber and committed to the interests of the participants and beneficiaries of the General Dynamics 401(k) Plans.” Will v. General Dynamics Corp., No. 06- 698-GPM, 2010 U.S. Dist. LEXIS 123349, 9 (S.D. Ill. Nov. 22, 2010). • U.S. District Judge Harold Baker, in Nolte v. Cigna, stated that Schlichter, Bogard & Denton is the “preeminent firm in 401(k) fee litigation” and has “persevered in the face of the enormous risks of representing employees and retirees in this area.” Nolte v. Cigna Corp., Case No. 07-2046, Doc. 413 at 5 (C.D.Ill. Oct. 15, 2013). • Chief U.S. District Judge Michael J. Reagan observed that “Mr. Schlichter and the firm of Schlichter, Bogard & Denton have demonstrated its well- earned reputation as a pioneer and the leader in the field” of 401(k) plan excessive fee litigation. He added: “Schlichter, Bogard & Denton’s work embodies the finest attributes of a private attorney general, risking significant resources for the good of those saving for their retirement.” Abbott v. Lockheed Martin Corp., No. 06-701, 2015 U.S. Dist. LEXIS 93206, at 4–5 (S.D. Ill. July 17, 2015). Similar remarks were given by U S. District Judge Nancy J. Rosenstengel in Spano v. Boeing Co. noting that for over nine years, Jerome Schlichter and Schlichter, Bogard & Denton have “zealously represented American workers and retirees seeking to improve their retirement plan”. Spano v. Boeing Co., Case No. 06-743, Doc. 587 at 2 (S.D.Ill. Mar. 31, 2015). • In Tussey v. ABB, Inc., U.S. District Judge Nanette K. Laughrey emphasized he significant contribution Schlichter, Bogard & Denton has made to ERISA litigation, including educating the Department of Labor and courts about the importance of monitoring fees in 401(k) plans.

Of special importance is the significant, national contribution made by the Plaintiffs whose litigation clarified ERISA standards in the context of investment fees. The litigation educated plan administrators, the Department of Labor, the courts and retirement plan participants about the importance of monitoring recordkeeping fees and separating a fiduciary’s corporate interest from its fiduciary obligations.

Tussey v. ABB, Inc., 2015 U.S.Dist.LEXIS 164818 at 7–8 (W.D.Mo. Dec. 9, 2015). • In Gordan v. Mass Mutual Life Ins., Co., U.S. District Judge Michael Ponsor found that by securing a $30.9 million settlement, Schlichter, Bogard & Denton had achieved an “outstanding result for the class,” and “demonstrated

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extraordinary resourcefulness, skill, efficiency and determination.” Gordan v. Mass Mutual Life Ins., Co., No. 14-30184, Doc. 144 at 5 (D. Mass. November 3, 2016).

Widely cited ERISA experts have expressed their opinions that the 401(k) fee cases brought by Mr. Schlichter directly contributed to the development of the U.S. Department of Labor’s regulatory initiatives to improve fee transparency. In total, Schlichter and his firm have been named Class Counsel in fifteen national class actions alleging fiduciary breaches and prohibited transactions involving the 401(k) plans of large companies.

Mr. Schlichter has also spoken on Employee Retirement Income Security Act (“ERISA”) litigation breach of fiduciary duty claims at national ERISA seminars as well as other national bar seminars. Mr. Schlichter has been widely featured and quoted in articles concerning 401(k) fees, appearing in such national publications as the New York Times, Wall Street Journal, USA Today, Bloomberg, Business Week, Reuters, Forbes, Consumer Reports, and the Los Angeles Times.

Mr. Schlichter has been called a “pioneer” in litigation involving excessive fee claims under ERISA by the New York Times (October 16, 2014); “A Lone Ranger of the 401(k)’s” by the New York Times (March 29, 2104); “Public Enemy No. 1 for 401(k) Profiteers” by Investment News (January 26, 2014); “Who Needs Fee Disclosure When You Have Jerry Schlichter” in Fiduciary News (April 7, 2015); “His Impact has been humongous” in reducing 401(k) fees in Reuters (November 5, 2013).

ROGER C. DENTON

Roger C. Denton earned his Bachelor of Art degree from Culver Stockton College in 1978, and his Juris Doctorate from Saint Louis University School of Law in 1982, where he graduated summa cum laude and Order of Woolsack. He is a member of the bar of Illinois, Missouri and Wisconsin, and is admitted to practice before the United States Supreme Court. Mr. Denton is also admitted to the United States District Courts for the Southern, Central and Northern Districts of Illinois, the Eastern and Western Districts of Wisconsin, and the Eastern and Western Districts of Missouri.

Mr. Denton has spent his career representing seriously injured individuals and in mass tort claims for work related injuries, and injuries resulting from the use of dangerous products and defective pharmaceutical drugs. He has litigated cases in more than a dozen states, both in state and federal courts, and has a national reputation in the field of FELA litigation with substantial verdicts in multiple jurisdictions. In addition to handling his individual cases and medical monitoring class actions, Mr. Denton is currently serves as co-lead counsel in multiple national multi district litigation cases, including In re: Pradaxa Products Liability Litigation,

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Liaison Counsel in In re Yasmin® and Yaz ® (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, lead counsel in In re NuvaRing® Products Liability Litigation. In addition, he has served on national steering committees in In re Gadolinium-Based Contrast Agents Product Liability Litigation and In re E.I. Du Pont De Nemours and Company C-8 Personal Injury Litigation. Mr. Denton has spoken at national seminars and published articles on mass torts and complex litigation.

NELSON G. WOLFF

Mr. Wolff is a partner in the firm and received his Bachelor of Arts degree in Biology from Emory University in 1988 and his Juris Doctorate from the University of Missouri in 1992. He was a member of the Missouri Law Review and a two-time winner of the National Moot Court Prize for Appellate Advocacy.

He is a member of the bar of Missouri, Illinois, and Arkansas. Mr. Wolff is admitted to practice before the United States Supreme Court, the United States Court of Appeals for the Fifth, Seventh, Eighth, and Tenth Circuits, in the United States District Courts for the Central, Southern, and Northern Districts of Illinois, Eastern District of Missouri, Western District of Kentucky, and the Eastern and Western Districts of Arkansas.

Mr. Wolff currently serves on the Board of Governors of the Missouri Association of Trial Attorneys. He has been selected as a Missouri and Kansas "Super Lawyer" each year since 2005 and has been repeatedly selected for inclusion in The Best Lawyers in America. Mr. Wolff has also had articles published in numerous legal and scientific journals on personal injury subjects and has presented at numerous legal seminars.

In addition, Mr. Wolff has been involved in multiple national class action ERISA cases involving challenges to 401(k) plan fees and expenses and breaches of fiduciary duty. He conducted the trial of Tibble v. Edison, a 401k excessive fee case in the Central District of California, a case in which the firm of Schlichter, Bogard & Denton obtained a writ of certiorari in the U.S. Supreme Court, and, in 2015, a unanimous favorable ruling in the U.S. Supreme Court.

KRISTINE K. KRAFT

Kristine K. Kraft is a partner of the firm. She received her Juris Doctorate from the University of Missouri-Kansas City in 1990, graduating with distinction and the honor of the Order of the Bench and Robe. She graduated cum laude from Avila College in 1983 with a Bachelor of Arts degree. She specializes in litigating highly complex pharmaceutical cases, mass tort, and complex litigation cases.

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She has represented clients throughout the United States, and is a member of the bar of Missouri, Kansas, and Illinois, as well as in numerous Federal courts.

She serves on the Board of Governors for the Missouri Association of Trial Attorneys, and has also been selected for inclusion in the “Honors Edition” of the Cambridge “Who’s Who Among Executive and Professional Women”.

Additionally, Ms. Kraft has been appointed to serve as co-lead counsel and liaison counsel of In Re NuvaRing® Products Liability Litigation, a Multi-District Litigation which resulted in a substantial settlement in the U. S. District Court for the Eastern District of Missouri. She also serves on the Science and Discovery Committees for the Multi-District Litigation matters: In re Yasmin® and Yaz® (Drospirenone) Marketing, Sales Practices and Products Liability Litigation, In re Ortho Evra® Products Liability Litigation and In re Gadolinium-Based Contrast Agents Product Liability Litigation.

Ms. Kraft is and has been involved in complex litigation, mass torts, and multi- district litigation.

MICHAEL A. WOLFF

Michael A Wolff is a partner of the firm. He received his Juris Doctor cum laude from the University Of Missouri-Columbia in 1990, where he was initiated into the Order of the Coif. He received his Bachelor of Arts magna cum laude from Colgate University in 1987, where he was initiated into Phi Beta Kappa. He has extensive experience in Federal and State appellate and trial practice, as well as fiduciary litigation, complex commercial litigation, and 401k excessive fee cases.

Mr. Wolff is a member of the bar of Missouri (1990) and Illinois (1991) and is admitted to practice before the Supreme Court of the United States and many federal courts. Mr. Wolff has successfully briefed and argued numerous dispositive motions and federal appeals in 401k excessive fee litigation.

Mr. Wolff is and has been involved in numerous complex, national ERISA class actions involving 401(k) plans of large employers, including numerous cases resulting in multi-million dollar settlements and substantial non-monetary improvements to the 401k plans.

TROY A. DOLES

Troy Doles is a partner of the firm, and received his Bachelor’s degree from Indiana University in 1992 and his Juris Doctorate from St. Louis University School of Law in 1996. He is a member of the bar of Missouri and Illinois and is admitted to

Exhibit A Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 25 of 29 practice before the Supreme Court of the United States and numerous federal courts.

Mr. Doles has extensive experience in complex class action cases and complex commercial litigation, including Federal Court and Multi-District Litigation cases. He has been deeply involved in numerous class actions on behalf of retirement plan participants, consumers, and health care providers. Mr. Doles has lectured frequently to a variety of associations and conferences including fiduciary groups, national and state medical associations, and bar associations.

Mr. Doles was a member of the trial team in Tussey v. A.B.B., a month-long trial which was the first and is the only full trial of a 401k excessive fee case in history, and which resulted in a favorable multi-million dollar judgment for plaintiffs.

Mr. Doles is and has been involved in numerous complex, national ERISA class actions involving 401(k) plans of large employers, including numerous cases resulting in multi-million dollar settlements and substantial non-monetary improvements to the 401k plans.

HEATHER LEA

Heather Lea is a partner of the firm. She graduated with a Bachelor of Arts degree from Rhodes College in 1994 and with a Juris Doctorate degree from Washington University School of Law in 2000, where she was Order of the Coif, and the Editor- in-Chief of the Washington University Journal of Law and Policy. Ms. Lea is a member of the bar of Illinois and Missouri, and is admitted to practice before the Supreme Court of the United States and numerous federal courts.

Ms. Lea was a judicial law clerk to the Honorable Jeanne E. Scott, United States District Court for the Central District of Illinois and has specialized in ERISA and pension plan litigation for her entire career. She is currently involved in litigating class actions under ERISA for claims of fiduciary breaches involving plans of large employers.

Ms. Lea was a member of the trial team in Tussey v. A.B.B., a month-long trial which was the first and is the only full trial of a 401k excessive fee case in history, and which resulted in a favorable multi-million dollar judgment for plaintiffs.

Ms. Lea is and has been involved in numerous complex, national ERISA class actions involving 401(k) plans of large employers, including numerous cases resulting in multi-million dollar settlements and substantial non-monetary improvements to the 401k plans.

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ANDREW D. SCHLICHTER

Andrew Schlichter is a partner of the firm. He graduated with a Bachelor of Arts Degree from Georgetown University cum laude in 2002 and from the University of Michigan Law School cum laude in 2005, where he was Executive Editor of the Michigan Law Review and received the Jason H. Honigman award. He is a member of the bars of New York and Missouri, and is admitted to practice before the Supreme Court of the United States and numerous federal courts. From 2005 to 2006, he served as a law clerk to U.S. District Judge David R. Herndon in East St. Louis, Illinois. Prior to joining Schlichter, Bogard & Denton, LLP, Mr. Schlichter worked for a large New York City law firm where he practiced complex commercial litigation.

Mr. Schlichter has extensive experience in high-stakes litigation. He has represented numerous clients in federal and state securities actions, and has obtained successful results in a broad range of complex matters, including dismissal with prejudice of a $147 million action asserted in connection with a debt refinancing and dismissal of several significant claims related to a corporate merger. He has also represented clients in regulatory matters and investigations, including investigations related to the collapse of an investment bank's sponsored hedge funds, off-label promotion at a major pharmaceutical company, and a utility's response to Hurricane Sandy.

In his pro bono practice, he has served as Counsel to the New York Chief Judge's Special Commission on the Future of the New York State Courts and in 2013 received a Pro Bono Publico Award from the Legal Aid Society.

Mr. Schlichter represents clients in complex litigation and personal injury litigation. He is involved in complex national ERISA class actions involving 401k plans of large employers, which have resulted in multi-million dollar settlements and substantial non-monetary improvements to the 401(k) plans.

SEAN E. SOYARS

Mr. Soyars is a partner of the firm. He received his Bachelor of Arts from St. Mary’s College in 2000. He received his Juris Doctorate in 2004 from Washington University School of Law. He is a member of the bar of Missouri and is admitted to practice before numerous federal courts.

He has extensive experience in appellate advocacy in representing participants in large 401(k) plans, as well as extensive experience working on all aspects of complex, national ERISA class actions involving 401(k) plans of large employers, including numerous cases resulting in multi-million dollar settlements and substantial non-monetary improvements to the 401(k) plans.

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KURT C. STRUCKHOFF

Kurt Struckhoff is Counsel in the firm. He graduated with a Bachelor of Science degree in finance and accounting from Saint Louis University in 2006, summa cum laude. He received his Juris Doctorate from Saint Louis University School of Law in 2009. He is a member of the bar of Missouri and Illinois and is admitted to practice before the Supreme Court of the United States and numerous federal courts.

Mr. Struckhoff has been with the firm since 2009.

Mr. Struckhoff was a member of the trial team in Tussey v. A.B.B., a month-long trial which was the first and is the only full trial of a 401k excessive fee case in history, and which resulted in a favorable multi-million dollar judgment for plaintiffs.

Mr. Struckhoff is and has been involved in numerous complex, national ERISA class actions involving 401(k) plans of large employers, including numerous cases resulting in multi-million dollar settlements and substantial non-monetary improvements to the 401k plans.

He has worked extensively in complex litigation in areas including ERISA, pension issues, securities fraud and fiduciary liability.

JOEL ROHLF

Joel Rohlf is Counsel in the firm. He graduated with a Bachelor of Arts degree from the University of Iowa with honors and highest distinction. He received his Juris Doctorate from the University of Iowa, College of Law in 2008 with high distinction and order of the coif. He is a member of the bars of Missouri, Illinois, and the District of Columbia and is admitted to practice before several federal courts.

Joel has extensive experience representing clients in high stakes financial litigation. He has successfully represented numerous clients in a broad range of cases, including ERISA, securities, civil RICO, False Claims Act, consumer protection and pharmaceutical matters.

He has also represented pro bono criminal defendants who cannot afford counsel, and has handled cases for the American Civil Liberties Union and handled a case for the National Association of Criminal Defense Lawyers before the United States Supreme Court in Vermont v. Brillion, 556 U.S. 81 (2009).

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SCOTT APKING

Scott earned his B.A. from The Ohio State University, and an MBA from Webster University. Scott graduated with honors from the University of Missouri School of Law. During law school, Scott co-founded the school’s Veterans Clinic, which represents low-income veterans in VA proceedings at all levels, including before the U.S. Court of Appeals for Veterans’ Claims and Court of Appeals for Federal Claims. Scott also served as Senior Associate Editor of the Missouri Law Review.

Prior to joining Schlichter, Bogard & Denton, LLP, Scott worked as a litigator for a large law firm in St. Louis. Scott is a veteran of Operation Iraqi Freedom and continues to serve in the United States Army Reserves as a Career Counselor responsible for over 4,000 Soldiers.

Scott represents clients in complex litigation in federal and state courts throughout the country. Scott has a broad range of experience representing clients in high stakes financial litigation, FINRA, consumer protection, and environmental matters.

ALEX BRAITBERG

Alex earned his B.A. from Cornell University, and his Juris Doctorate from Saint Louis University, magna cum laude.

Alex has served on the Board of Governors of the Bar Association of Metropolitan St. Louis since 2017, and is currently the Chair of the Continuing Legal Education Committee.

Alex represents clients in complex high-stakes cases in courts around the country, focusing his practice on Employee Retirement Income Security Act (ERISA) and pension plan litigation. He has extensive experience in class actions, including fiduciary breach, toxic exposure, product liability and consumer protection cases, and has obtained substantial results for his clients in a broad range of matters.

Exhibit A Case 1:16-cv-11620-NMG Document 302-2 Filed 03/27/20 Page 29 of 29

Summary of Attorney Hours and Fees

I. Summary of Attorney Hours

Mediation Motion Trial Case Case Court Timekeeper/Category Discovery Depositions Pleadings Experts and Practice Preparation Development Investigation Appearances Settlement ATTORNEYS Alex Braitberg 45.4 51.4 7.7 16.9 0.8 0.9 0.4 0 0 0 123.5 Anthony Reiner 350.1 0 0 0 0 0 0 0 5.5 0 355.6 Billy Hendrickson 1.3 0 0 0 0 0 510.5 0 0 0 511.8 Brian Bush 0 146.6 0 0 0.5 0 129.9 0 0 0 277 Christina Vogel 191.1 10 0 0 0 0 0 0 0 0 201.1 Elena Liveris 148.9 8.6 1 41.5 0 13.3 0 5.3 0 0 218.6 Gary Drag 39.1 0 6.3 0 45.5 2.2 65.4 0 20.9 0 179.4 Heather Lea 1.3 0 0.3 0.8 0.2 6.9 653.6 6.5 7 0 676.6 James Casagrand 395.4 786.7 0 0 7.1 0 56.5 0 0 0 1245.7 Jerry Schlichter 35.4 21.2 21.8 76.5 1.3 89.6 65.2 7.1 5.2 23.2 346.5 Joel Rohlf 0.9 86.9 21 243.3 7.6 40.2 211.4 0.2 0 0 611.5 Kurt Struckhoff 3.5 1.4 60.3 3.1 1.1 1.2 1 0.9 17.2 0 89.7 Michael Mulder 252.6 32.9 9 48.1 0 30.8 0 7 0 0 380.4 Michael Wolff 93.5 1.7 10.9 2.2 1.1 1 2.5 13 0.5 7 133.4 Patrick Kutz 0 0 0 6 12.5 0 350.5 0 0 0 369 Perry DeLay 75.1 0 0 0 2.7 0 344.2 0 0 0 422 Scott Apking 21.4 378.2 25.8 183.1 256.5 125.7 140.2 2.1 0 7.9 1140.9 Scott Bumb 73.4 422.5 0 0 8.1 12.1 21 26.1 27 0 590.2 Sean Milford 0 0 0 0 0 0 506.9 0 0 0 506.9 Sean Soyars 26.1 4.1 52 200.6 1.2 1 3.1 2.7 0.7 51 342.5 Troy Doles 0.9 1.8 0.1 28.8 71.7 2.8 11.8 0 0.8 0 118.7 William Avery 17.3 68 0 0 9.3 4.8 154.2 0 0 0 253.6 Total Hours Attorneys 1772.7 2022 216.2 850.9 427.2 332.5 3228.3 70.9 84.8 89.1 9094.6 Paralegals PARALEGALS Alex Donnely 169.6 1.4 10.2 21.9 3.7 20.9 0 12.6 0 0 240.3 Ally Edwards 0 0 0 0 0 0 372.9 0 0 0 372.9 Claire Nester 67.1 74.2 0 26.3 92.8 10.3 5 17.7 0 0 293.4 Jessica Hallermann 0 12.7 0 95.4 0 7 143.5 44.3 0 0 302.9 Rebekah Freisinger 36 1.7 17.4 46.7 7.1 0.7 33.8 13.1 0.1 0 156.6 Sarah Prite 95.1 0.7 0 13.6 1.3 8 0 5.6 0 0 124.3 Total Paralegal Hours 367.8 90.7 27.6 203.9 104.9 46.9 555.2 93.3 0.1 0 1490.4

II. Summary of Attorney Fees

1 All staff attorneys (non-partnership track attorneys) were billed at the 0-4 years level regardless of experience.

Exhibit B Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 1 of 12

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, v. No. 1:16-CV-11620-NMG

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF SCOTT T. APKING

I, Scott T. Apking, declare as follows:

1. I am an attorney at the law firm of Schlichter Bogard & Denton, LLP. I am one of the attorneys representing the Plaintiffs in this matter. This declaration is submitted in support of

Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses, and Case Contribution

Awards for Named Plaintiffs.

2. I have been deeply involved in this litigation. I am familiar with the facts set forth below and able to testify to them based on my personal knowledge or review of the records and files maintained by this firm in the regular course of its representation of Plaintiffs in this case.

3. I am licensed to practice in the States of Missouri and Illinois. I am admitted to practice in numerous district courts across the country.

4. I received my undergraduate degree from the Ohio State University in 2007, my

Master of Business Administration from Webster University in 2011 and my Juris Doctorate from the University of Missouri-Columbia in 2014, where I served as Senior Associate Editor of the Missouri Law Review and graduated Order of the Coif. After law school, I worked at a large

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 2 of 12

regional defense firm and represented, among others, large financial services broker-dealers. I have been employed as an attorney at Schlichter Bogard & Denton, LLP, Class Counsel in this matter. During that time, I have been exclusively dedicated to ERISA fiduciary breach class actions concerning 401(k) and 403(b) plans.

5. As set forth the in the Memorandum in Support of Plaintiffs’ Motion for

Attorneys’ Fees, and the Declaration of Jerome Schlichter, the District of Maryland recently approved the hourly rates requested in this case for Schlichter Bogard & Denton when the court approved a one-third attorney fee of the common fund in an ERISA excessive fee class action settlement. Kelly v. Johns Hopkins University, No. 16-2835, 2020 WL 434473, *4 (D. Md. Jan.

28, 2020). The approved hourly rates are as follows: for attorneys with at least 25 years of experience, $1,060 per hour; for attorneys with 15–24 years of experience, $900 per hour; for attorneys with 5–14 years of experience, $650 per hour; for attorneys with 2–4 years of experience, $490 per hour; and for Paralegals and Law Clerks, $330 per hour. These rates also have been approved for the firm by other district courts. See, e.g., Cassell v. Vanderbilt Univ.,

No. 16-2086, Doc. 174 at 3 (M.D. Tenn. Oct. 22, 2019); Clark v. Duke Univ., No. 16-1044, Doc.

165 at 8 (M.D.N.C. June 24, 2019); Sims v. BB&T Corp., No. 15-732, Doc. 450 at 7–8

(M.D.N.C. May 6, 2019); Bell v. ATH Holding Co., No. 15-2062, Doc. 380 at 10 (S.D. Ind. Sept.

4, 2019); Ramsey v. Philips N. Am. LLC, No. 18-1099, Doc. 27 at 8 (S.D. Ill. Oct. 15, 2018).

6. The number of hours spent by Class Counsel was actually greater than the number listed in Plaintiffs’ fee petition because Class Counsel engaged in a culling process to determine the final number of hours expended in this case for calculation of the lodestar hours. Class

Counsel limited their fee petition to the members of Plaintiffs’ litigation team who spent significant time working on the matter, eliminating small amounts of time. The hours also

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 3 of 12

include staff attorneys, many with multiple years of experience, whose involvement was necessary given the volume of relevant materials and trial preparation in this matter.

7. To arrive at the total number of hours in this case, Class Counsel first eliminated any attorney or staff member who billed less than 100 hours, regardless of the necessity of those hours, with one exception for the attorney who took the lead on preparing the initial pleading.

Next, Class Counsel conducted a line-by-line audit of each remaining time entry and carefully exercised billing judgment and made reductions where time arguably could have been more efficiently spent or the time entry contained an insufficient description of the work performed.

This process resulted in the elimination of 986.6 hours.

8. After this process, and as set forth in the table below, based on the firm’s billing records, Schlichter Bogard & Denton and the Mulder firm expended 9,094.60 hours of attorney time and 1,490.4 hours of non-attorney time. This time includes time spent by attorney Mike

Mulder and members of his firm. Mr. Mulder was brought into the case during a time when the press of discovery, deposition preparation, taking of depositions, and trial preparation required very significant attorney time. Local Counsel time of attorney Stephen Churchill, which was not contingent on recovery, was paid directly by Schlichter Bogard & Denton and is also not included in the hours listed above or included as an expense.

9. The attorney and non-attorney hours were reasonably and efficiently expended to obtain a successful recovery on behalf of the Class. I have reviewed the hours expended in similar cases handled by the firm and similar cases handled by other firms. Similar cases have required as much as 15,000 to 20,000 hours to bring the case to a successful resolution before trial and many more hours thereafter. Without committing the necessary resources to pursue

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 4 of 12

Plaintiffs’ claims, and having a track record of doing so repeatedly, a favorable recovery that

benefits tens of thousands of Class members would not have been possible.

10. To calculate the lodestar, Schlichter Bogard & Denton applied its previously

approved national rates to the number of hours incurred by attorneys and paralegals during the

Tracey action. This calculation is shown in the following table:

Experience Hours Rate Total 25 Years + 860.3 $1,060 $911,918.00 15–24 Years 795.30 $900 $715,770.00 5–14 Years 2,526.70 $650 $1,642,355.00 0–4 Years and Staff $490 Attorneys 4,912.30 $2,407,027.00 Attorney Total 9,094.6 $5,677,070.00

Paralegals Total 1490.4 $330 491,832.00

Total of All Hours 10,585 $6,168,902

11. Apart from the lodestar, Class Counsel’s requested one-third of the common fund is routinely awarded in similar cases:

Case Fee % Kelly v. Johns Hopkins Univ., No. 2020 WL 434473 (D. 33.33% Md. Jan. 20, 2020) Cassell v. Vanderbilt Univ., No. 16-2086, Doc. 174 33.33% (M.D. Tenn. Oct. 22, 2019) Tussey v. ABB, Inc., No. 06-4305, 2019 WL 3859763 33.33% (W.D. Mo. August 16, 2019) Sims v. BB&T Corp., No. 15-1705, 2019 WL 1993519 33.33% (M.D. N.C. May 6, 2019) Clark v. Duke, No. 16-1044, 2019 WL 2579201 (M.D. 33.33% N.C. June 24, 2019) Ramsey v. Phillips N.A., No. 18-1099, Doc. 27 (S.D. Ill. 33.33% Oct. 15, 2018) In re Northrop Grumman Corp. ERISA Litig., No. 06- 33.33% 6213, 2017 WL 9614818 (C.D. Cal. Oct. 24, 2017) 4

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 5 of 12

Case Fee % Gordan v. Mass. Mut. Life Ins. Co., No. 13-30184, 2016 33.33% WL 11272044 (D. Mass. Nov. 3, 2016) Kruger v. Novant Health, Inc., No. 14-208, 2016 WL 33.33% 6769066 (M.D.N.C. Sept. 29, 2016) Spano v. Boeing Co., No. 06-743, 2016 WL 3791123 33.33% (S.D. Ill. Mar. 31, 2016) Abbott v Lockheed Martin Corp., No. 06-701, 2015 WL 33.33% 4398475 (S.D. Ill. July 17, 2015) Krueger v. Ameriprise Fin., Inc., No. 11-2781, 2015 WL 33.33% 4246879 (D. Minn. July 13, 2015) Beesley v. Int’l Paper Co., No. 06-703, 2014 WL 33.33% 375432 (S.D. Ill. Jan. 31, 2014) Nolte v. Cigna Corp., No. 07-2046, 2013 WL 12242015 33.33% (C.D. Ill. Oct. 15, 2013) Will v. Gen. Dynamics Corp., No. 06-698, 2010 WL 33.33% 4818174 (S.D. Ill. Nov. 22, 2010) Martin v. Caterpillar Inc., No. 07-1009, 2010 WL 33.33% 11614985 (C.D. Ill. Sept. 10, 2010)

INVESTIGATION, INITIAL PLEADINGS AND DISCOVERY

12. Starting in 2015, Schlichter Bogard & Denton began their investigation of the claims at issue in this lawsuit. The attorneys conducted in-depth investigative analysis and research of publicly available documents, including summary plan descriptions, participant statements, prospectuses, and the MIT Supplemental 401(k) Plan Forms 5500 filed with the

Department of Labor, among other sources. Class Counsel requested documents from the Plan administrator on behalf of a current participant under 29 U.S.C. §1024(b), which included the production of the plan document, fee disclosures, custodial account agreements, recordkeeping services agreements, and other related documents.

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 6 of 12

13. Class Counsel’s investigation included meetings with the Named Plaintiffs, which

occurred both in-person and on the phone. The in-person meetings required attorneys to travel to

locations in Massachusetts, Pennsylvania and California where the named Plaintiffs reside.

These meetings provided valuable insight and additional understanding of the operation and

administration of the Plan, the Plan’s investment structure, as well as fee and performance

disclosures concerning the Plan’s investments and expenses. Each Named Plaintiff provided

Class Counsel with critical documents prior to preparing the Complaint. It has also been the

firm’s experience that university employees are hesitant to bring suit against their employer for

fear of alienation. Each Named Plaintiff also stayed apprised of the proceedings at each stage of

the case, including the mediation process and each submitted declarations in support of class

certification.

14. On August 9, 2016, Plaintiffs filed their complaint in Tracey v. Massachusetts

Institute of Tech., No. 16-11620 (D. Mass). Doc. 1.1 After Defendants filed their motion to dismiss, Class Counsel reviewed and analyzed Defendants’ briefing and evaluated whether to amend their complaint. After additional investigation and research was conducted related to their claims, Plaintiffs amended their complaint as of right under Fed. R. Civ. P. 15(a) on November

16, 2016. Doc. 32. The amended complaint provided additional detail regarding Plaintiffs’ claims.

15. Defendants filed their motion to dismiss the amended complaint on December 16,

2016. Doc. 38. Defendants’ 22-page memorandum was extensive and raised complex legal

arguments that addressed all of Plaintiffs’ claims. Doc. 39. Over the course of approximately one

1 Unless otherwise indicated, “Doc.” citations are to the Tracey docket. 6

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and a half months, Plaintiffs’ attorneys spent extensive time responding to Defendants’ arguments, which included conducting research and analysis of relevant authority. Plaintiffs filed their opposition on February 2, 2017. Doc. 46. The Court granted in part and denied in part

Defendants’ motion on September 29, 2017. Doc. 75.

16. On January 24, 2018, Defendants issued 15 interrogatories and 26 requests for production to each Named Plaintiff. Schlichter Bogard & Denton then engaged in extensive discussions with each client. The attorneys reviewed and analyzed all materials provided by each client and prepared responsive documents for production. On August 27, 2018, Defendants issues two additional interrogatories to each Named Plaintiff. On October 3, 2018, Defendants issued three additional interrogatories to each Named Plaintiff.

17. Plaintiffs filed a Second Amended Complaint on March 1, 2018. Doc. 98.

18. Plaintiffs filed a motion to certify the class on February 28, 2018. Doc.95.

Defendants partially opposed Plaintiffs’ motion to the extent it included the prudence of the

Plan’s investment lineup. Doc. 108. Defendants attached a 41-page expert report in opposition to class certification. Doc. 111-1. Plaintiffs responded to this motion on reply and filed a 10 page memorandum in support of their position.

The Court granted class certification on October 19, 2018, certifying the following class: All participants and beneficiaries of the MIT Supplemental 401(k) Plan from August 9, 2010 through the date of judgment, excluding the Defendants.

Doc. 157.

19. Following the Court’s denial of Defendants’ motion to dismiss, Plaintiffs proceeded with discovery. Plaintiffs prepared their initial requests for production and interrogatories directed to Defendants on March 16, 2018.

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 8 of 12

20. Throughout the course of discovery, Class Counsel diligently reviewed and analyzed approximately 189,660 pages of documents that were produced within over 11,080 documents. A detailed review and analysis of the document production was crucial for Plaintiffs to prove their claims.

21. To support those efforts, Schlichter Bogard & Denton developed a document review and analysis protocol for systematically and methodically evaluating the document production. It was incumbent on Plaintiffs’ attorneys to review each and every document produced in this litigation. The ongoing review and analysis of the document production was aided by numerous internal discussions and meetings to ensure a proper and efficient evaluation process, as well as to inform their litigation strategy.

22. Throughout all stages of the case, including discovery, the attorneys at Schlichter

Bogard & Denton met internally, both in large and small groups, to thoroughly discuss the legal theories at issue, the development of the case, and other issues that arose during the litigation.

Those internal meetings were critical to obtaining a successful recovery on behalf of the Class.

23. The parties took 23 depositions including 11 MIT personnel, 3 third parties including Fidelity and the Plan’s investment consultants, 4 named plaintiffs and 5 expert witnesses. These depositions involved highly complex issues and required many hours of preparation, including extensive document review. All depositions were defended by an

O’Melveny partner. The majority of deposition were defended by senior O’Melveny partners

Brian Boyle or Shannon Barrett. Both attorneys practice in the Washington, D.C. office of

O’Melveny. The deposition of a Fidelity employee was defended by the managing partner of

Skadden’s Boston office. Morgan Lewis Chicago partner Chris Boran defended the depositions of two former investment consultants.

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24. On December 14, 2018, the parties simultaneously exchanged expert reports.

Plaintiffs retained two expert witnesses, Dr. Gerald Buetow, an investment management expert, and Martin Schmidt, a recordkeeping expert. Dr. Buetow prepared a 43-page report, conducting extensive mathematical analysis of investment performance damages and analyzing Defendants’ investment management process. Mr. Schmidt prepared a 39-page report, calculating recordkeeping damages and analyzing Defendants’ process for monitoring recordkeeping fees.

Defendants retained Dr. Russell Wermers to opine on the objective prudence of the Plan’s investments. Dr. Wermers prepared a 66-page report with an additional 108-pages of exhibits and analysis.

25. On rebuttal, Plaintiffs retained Wendy Dominguez, a fiduciary process and investment management expert. Ms. Dominguez prepared a 16-page report analyzing fiduciary practices in the retirement plan industry. Defendants retained Steven Gissiner to opine on recordkeeping processes and pricing. Mr. Gissiner prepared a 71-page report with an additional

58 pages of exhibits and analysis. Dr. Buetow prepared a 20-page rebuttal report in response to

Dr. Wermers’ report. Dr. Wermers prepared a 57-page rebuttal report in response to Dr.

Buetow’s report. Dr. Wermers’ rebuttal report contained an additional 72 pages of exhibits and analysis.

MEDIATION, TRIAL PREPARATION AND SETTLEMENT

26. In May 2019, the parties engaged in mediation with private mediator Hunter

Hughes. Mr. Hughes is a nationally-recognized mediator specializing in the mediation of retirement plan, securities, and employment class actions. Class Counsel prepared extensively for this process, which included time devoted to the preparation of a 64 page detailed mediation

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 10 of 12

statement. The parties did not reach agreement during the mediation session, but continued discussions both directly and with the assistance of Mr. Hughes.

27. On July 15, 2019, Defendants moved for summary judgment on all claims, asserting 112 material facts and attaching 52 exhibits in support of the motion. Doc. 204.

Plaintiffs filed their opposition on August 5, 2019, asserting 152 additional material facts and attaching 115 exhibits. Doc. 223. On September 4, 2019, the Court granted in part and denied in part Defendants’ motion for summary judgment. Doc. 274.The motion was granted to the extent

Plaintiffs alleged under Count III that Defendants engaged in prohibited transactions in violation of 29. U.S.C. §1106(a). Id. at 16-7. The motion was denied in all other respects. Id.

28. Plaintiffs filed a lengthy motion in limine on August 19, 2019. Doc. 239.

Defendants filed three motions in limine the same day. Docs. 247-55. The parties filed a joint exhibit list and witness list on August 26, 2019 (Doc. 266) and joint pretrial memorandum on

September 4 2019. The joint exhibit list contained 2,276 exhibits. Doc. 266-1. Plaintiffs’ witness list contained 24 witnesses and Defendants’ contained 16 witnesses. Doc. 266. Plaintiffs prepared witness outlines and were fully prepared for trial.

29. After lengthy discussions on the eve of trial, the parties reached agreement on money and additional non-monetary terms to improve the plan. None of the money paid by MIT will go back to MIT under any circumstances. Prior to seeking preliminary approval of the class action settlement, Class Counsel was engaged in the preparation of numerous supporting settlement documents, including the class action notices, claim forms, their motion and memorandum in support of preliminary approval, their motion and memorandum in support of class certification, and related proposed orders. They also prepared requests for proposals sent to settlement administrators, since a settlement administrator is a necessary party to facilitate the

Case 1:16-cv-11620-NMG Document 302-3 Filed 03/27/20 Page 11 of 12

settlement. Class Counsel will not receive any portion from the interest earned on the common

fund while it is deposited in an interest-bearing account; class members will receive the entire

benefit of the interest.

30. More time will be spent handling responses from participants who receive notice,

preparing for the final approval hearing, and traveling to the final approval hearing in May. In

addition, there will be substantial attorney time spent after the settlement effective date

responding to participants and monitoring the affirmative, non-monetary relief. The class contains over 20,000 current and former participants. In the firm’s experience in similar cases, this will represent an additional 50-100 attorney, paralegal and staff hours, or more.

31. Pursuant to the settlement agreement, Defendants, with the agreement of Class

Counsel, shall retain an independent fiduciary to determine whether the settlement should be

approved. Among other things, the independent fiduciary will review Class Counsel’s fee request

to determine if it is fair to the Class. Class Counsel will respond to the independent fiduciary’s

inquiries all at no cost to the Class.

32. The description of the time and effort that Class Counsel expended during this

litigation illustrates the determination that these attorneys displayed through all aspects of this

case. The attorney and non-attorney hours were reasonably and efficiently expended to obtain a

successful recovery on behalf of the Class. Without committing the necessary resources to

pursue Plaintiffs’ claims, a favorable recovery that benefits tens of thousands of Class members

would not have been possible.

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I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.

Executed on March 26, 2020 in St. Louis, Missouri.

______Scott T. Apking

Case 1:16-cv-11620-NMG Document 302-4 Filed 03/27/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs,

v. No. 1:16-CV-11620-NMG

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF SHERI O’GORMAN

I, Sheri O’Gorman, under penalty of perjury pursuant to 28 U.S.C. §1746, declare as follows:

1. I am the Office Administrator of Schlichter Bogard & Denton, LLP and the

Custodian of Records, in charge of payment of expenses in this matter.

2. The firm in this case fronted all of the litigation costs and expenses, including

reimbursing the Mulder firm for expenses incurred.

3. I have examined the records and we have incurred case expenses totaling

$522,021.93 as of March 25, 2020.1

4. The expenses incurred in this action are reflected on the books and records of my

firm. These books and records are prepared from expense vouchers, check records and other

source materials and are an accurate recordation of the expenses.

1 Plaintiffs include $85 for estimated cab fare expenses for the final approval hearing, which is included in the Travel and Lodging category below.

1 Case 1:16-cv-11620-NMG Document 302-4 Filed 03/27/20 Page 2 of 2

5. The total costs and expenses of Class Counsel in this case are summarized as follows:

Description Total Filing, Transcripts, Subpoena Services and Related Costs $1,860.82 Depositions $55,304.54 Copies and Postage $8,439.74 Mediation and Settlement Costs $7,100.00 Data Development and Document Organization $14,704.91 Research and Investigation $2,448.72 Experts and Consultants $313,625.00 Travel, Lodging, and Parking $98,666.68 Trial Expenses $19,871.52 Total $522,021.93

6. Class Counsel retain receipts for litigation expenses. All such material is available for submission to or inspection by the Court upon request.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on March 26, 2020.

/s/Sheri O’Gorman Sheri O’Gorman

2 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, No. 16-cv-11620-NMG v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF MICHAEL M. MULDER IN SUPPORT OF PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES, COSTS AND SERVICE AWARDS

I, Michael M. Mulder, declare and state as follows:

1. I have been a member in good standing of the State Bar of Illinois since 1975. I

am admitted and have practiced and argued in the United States Supreme Court, several United

States Courts of Appeal, and district courts across the country.

2. I have been admitted pro hac vice to practice before this Court in the above- captioned matter. Doc. 117.

3. On February 28, 2018, Plaintiffs moved for class certification and for

appointment of class counsel. Doc. 95. On October 19, 2018, the Court granted the Motion. Doc.

157.

4. I now offer this declaration in support of Plaintiffs’ motion for attorney’s fees,

costs and service awards.

I. Qualifications

5. I am the principal in the law firm of Law Offices of Michael M. Mulder

(“MMM”), and I represent the Class in this action together with attorneys from my law firm and

the firms of Schlichter Bogard & Denton LLP and Fair Work, P.C.

1 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 2 of 11

6. Like our co-counsel, I and my firm have considerable experience handling complex ERISA class litigation similar to this action and we are knowledgeable in the applicable law.

7. Over the past 37 years, I, in conjunction with my law firm and its predecessor firm, have successfully prosecuted many complex federal class action cases, including several class action ERISA cases. For example, we litigated and reached settlement in In re: Sears Retire

Group Life Insurance Litigation, No. 97-C-7453 (N.D. Ill.), which involved issues concerning whether retiree life insurance benefits were vested for life or were subject to reduction. In that case, there were approximately 80,000 class members. I was appointed liaison counsel and headed the steering committee responsible for coordinating the prosecution of the case. The case eventually settled in 2001 for approximately $28 million and an agreement from Sears not to reduce class members’ benefits below a certain floor. At that time, this agreement was estimated to have achieved a present value of $204 million net savings to the class, and that the amount of life insurance expected to be paid to beneficiaries of the class was approximately $450 million.

8. I was also co-lead counsel in Millsap v. McDonnell Douglas Corporation,

162 F.Supp.2d 1262 (N.D. Okla. 2001), an ERISA section 510 class action. In that case, I tried liability issues to a favorable verdict for a class of 1,200 hourly and management employees. In reviewing the class counsel’s work, the Millsap court stated, “that, at all stages of this nine-year litigation, Class Counsel has been faced with novel questions and significant obstacles. In every instance, the Court finds that Class Counsel demonstrated the requisite skill necessary to provide high quality legal services to class members.” Millsap v.

McDonnell Douglas, No. 94-cv-633, 2003 WL 21277124, at *11 (N.D. Okla. May 28, 2003).

The case was partially settled for approximately $38 million. As part of the settlement, an

2 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 3 of 11

appeal of the district court’s ruling that the class was entitled to additional relief in the form

of back pay was certified for review by the Tenth Circuit. The Court of Appeals reversed

with one judge dissenting. Millsap v. McDonnell Douglas, 368 F.3d 1246 (10th Cir. 2004).

The back-pay claims of the class were then settled for approximately $8 million, bringing

the total value of the settlement to around $46 million.

9. I served as co-lead counsel in Neil v. Zell, No. 1:08-cv-06833 (N.D. Ill.), on

behalf of participants in the Tribune Employee Stock Ownership Plan. The plaintiffs alleged that

defendants breached their fiduciary duty to the class and engaged in prohibited transactions all in

violation of ERISA. On March 4, 2011, the court certified the class. On the basis of the work

undertaken by counsel in that case prior to the class certification order and declarations filed, the

court found that Rule 23(g) was satisfied and appointed me as co-counsel for the class. Neil v.

Zell, 275 F.R.D. 256, 270 (N.D. Ill. 2011). In March 2012, the case was resolved in favor of the

class through a $32 million settlement.

10. More recently, I served as co-lead counsel for the class in In re J.P. Morgan

Stable Value Fund ERISA Litig., No. 12-2548 (S.D.N.Y.). The plaintiffs alleged that the

defendants managed plaintiffs’ investments imprudently in violation of their fiduciary duties. On

March 31, 2017, the court certified the class and appointed my firm co-lead-class counsel, “given

[our] experience and demonstrated knowledge in this area of law.” In re J.P. Morgan Stable

Value Fund ERISA Litig., No. 12-2548, 2019 WL 4734396, at *3 (S.D.N.Y. Sept. 23, 2019). On

September 23, 2019, finding that the “case had an extra contribution to the public interest” the

court approved a $75 million settlement including a $25 million attorneys’ fee award and costs of $1,468,795.86. Attachment A is a partial list of other ERISA cases and other class actions in which my firm or its predecessor firm, Meites Mulder, has been lead or co-lead counsel.

3 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 4 of 11

11. I have served as trial counsel in more than a dozen trials and preliminary

injunction hearings and as lead trial counsel in two jury trials and three bench trials. I was

assisted in this case by another attorney at my firm who has considerable experience litigating

ERISA and complex federal class action cases, my associate Elena N. Liveris.

12. Elena N. Liveris is an associate at MMM and has been practicing law for eleven years. She has experience working on other class actions and complex litigation including

ERISA matters. Attachment B is a more detailed biography of Law Offices of Michael M.

Mulder and its attorneys.

II. The Requested Attorneys’ Fees and Costs are Reasonable

13. I and my firm were brought into this case by Class Counsel, Schlichter, Bogard &

Denton, because of the press of work while very substantial documents were being produced and

depositions had to be taken as well as for working on pleadings and other trial preparation. In a

case such as this, with massive document production, preparation for and taking of depositions is

very demanding if done properly, and trial preparation requires mastery of the documents.

Ultimately, it was because Class Counsel committed the resources and tremendous effort that it

did, as well as bringing in myself and members of my firm, that Class Counsel was able to

successfully create a common fund of $18.1 million. Accordingly Class Counsel are entitled to a

reasonable share of the fund as a fee to be awarded by the Court. Doc. 290-1 (“Settlement

Agreement”), §2.26.

14. Plaintiffs seek an award of attorneys’ fees in the amount of $6,032,730, one-third

of the common fund established in settlement of this class action, and reimbursement of

litigation costs of no more than $525,000. Id., §2.4. If this amount is granted, it is less than the

lodestar and has no multiplier for the very substantial risk involved in this kind of case. In

4 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 5 of 11

addition, Plaintiffs request the Court grant service awards of $25,000 to each named plaintiff in

recognition of their valuable service to the Settlement Class. Id., §2.4.

15. Class Counsel allocated the work in this action to maximize efficiency. We were assigned tasks based on a number of considerations with the goal of minimizing duplication of efforts. But for the team’s planning, the number of hours devoted to the case would have been higher.

16. In addition, my firm distributed work internally to minimize fees in the case. We assigned discrete work to support staff and my associate, Ms. Liveris, whenever it was possible to be more efficient by doing so.

17. Class Counsel have dedicated enormous efforts to this case since it was filed.

18. I and my associate Elena Liveris filed a motion to appear pro hac vice in this matter on May 18, 2018. Since that time, I and others at my firm have worked extensively on this case, including propounding and responding to multiple sets of discovery, reviewing thousands of pages of documents, spending numerous hours on discovery motion practice including prosecuting and defending motions to compel, preparing amended pleadings, expert discovery, and preparing for mediation. The case settled on the very eve of trial so the massive work involved in a case such as this to get ready for trial was virtually complete.

19. In my experience, ERISA class action cases are inherently complex, risky and often require an extraordinary investment of time and resources. This case was exceptionally complex because of the large number of underperforming funds at issue, and because the Plan had more than $3 billion of MIT’s employees’ retirement assets, including those belonging to a class of 18,000 participants during the relevant time period.

5 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 6 of 11

20. Discovery here was especially complex, because as this Court acknowledged,

“[n]o matter how clever or diligent, ERISA plaintiffs generally lack the insider information necessary to make out their claims in detail unless and until discovery commences. . . .” Tracey v. Mass. Inst. Of Tech., No. CV 16-11620-NMG, 2017 WL 4453541, at *11 (D. Mass. Aug. 31,

2017), report and recommendation adopted in part, rejected in part, No. CV 16-11620-NMG,

2017 WL 448239 (D. Mass. Oct. 4, 2017) (quoting Braden v. Wal-Mart Stores, Inc., 588 F.3d

585, 598 (8th Cir. 2009)). Through extensive discovery, plaintiffs determined whether fiduciary duties were met over an eight-year period, from 2010 to at least 2018. Adding to the complexity, there were ten defendants who were members of the MIT Supplemental 401(k) Plan Oversight

Committee (“OC”). There were also fiduciary trustees who oversaw the Plan who were not named defendants, but who had material knowledge of the decisions made by the OC.

21. Class Counsel, over objection from the Defendants, prevailed in their request to the Court to allow for additional depositions and enlarge the time for the completion of fact discovery, partly because of the complexity the case presented.

22. We also issued subpoenas on four non-parties and conferred extensively with these subpoenaed parties as well as Defendants regarding production of documents and scheduling depositions.

23. In addition to the above, I also took the depositions of two key witnesses, Kenneth

Davis - MIT Human Resources, Retirement Program Manager, and Liana Magner - Partner at

Mercer. My firm also helped prepare for the depositions of several other witnesses and conferred extensively with Class Counsel.

24. We have collected and carefully reviewed the time and expense reports of our firm. Time records are kept in accordance with our normal practices, by maintaining detailed and

6 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 7 of 11

contemporaneous records of time spent. Time is recorded on a computer program in tenth of hour increments by each lawyer or paralegal. These business practices and my review of all

MMM’s time allow me to be confident that the hours reported by MMM attorneys and paralegals in this action are accurate. The time I and members of my firm spent is as follows:

Motion Mediation/ Case Discovery Depositions Pleadings Practice Experts Settlement Development Totals Attorney 25 Years + 252.6 32.9 9 48.1 0 30.8 7 380.4 Attorney 5-14 Years 148.9 8.6 1 41.5 0 13.3 5.3 218.6 Paralegal/Staff 264.7 2.1 10.2 35.5 5 28.9 18.2 364.6 Total 963.6 25. This time is included in the list of hours submitted by Class Counsel.

26. Costs are kept by MMM’s lawyers and staff and compiled by the firm’s accountant by item. All such records of the costs are reflected in my firm’s books and records prepared from expense vouchers, check records, and other source materials and are accurate recording of the expenses. In addition, such records of the expenses incurred in this matter are maintained by our law firm’s accountant’s computer system and records. These items of expense are included in the expenses listed by Class Counsel.

27. In my judgment, the number of hours expended and services performed by

Plaintiffs’ counsel were reasonable and expended for the benefit of the Class in this action.

I declare under penalty of perjury that the foregoing is true and correct.

DATED: March 26, 2020

Michael Mulder

7 Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 8 of 11

LAW OFFICES OF MICHAEL M. MULDER PARTIAL LIST OF COMPLETED CASES

ERISA CASES

ERISA Fiduciary Breach In re JPMorgan Stable Value Fund ERISA Litigation, (No. 12-cv-2548) (VSB) (S.D.N.Y.). Acted as co-lead counsel in class action on behalf of workers who invested their retirement savings in J.P. Morgan stable value products. The complaint alleged that J.P. Morgan violated federal law when it failed to prudently manage its stable value funds, for example, by investing in risky mortgage assets, and violated its fiduciary duty to the class. In 2019, the U.S. District Court approved a $75 million settlement. (Co-lead counsel with Schneider Wallace Cottrell Konecky, LLP) (Defense Counsel Morgan, Lewis & Bockius, LLP)

Neil et al., v. Zell, et al., 677 F.Supp.2d 1010 (N.D. Ill. 2009) (motion to dismiss denied in part); 753 F.Supp.2d 724 (N.D. Ill. 2010) (plaintiffs’ partial motion for summary judgment granted); 275 F.R.D. 256 (N.D. Ill. 2011) (class certification granted); 767 F.Supp.2d 933(N.D. Ill. 2011) (defendant’s motion for partial summary judgment on damages denied). Acted as co-lead counsel in class action concerning a corporate restructuring of the Tribune Company through its Employee Stock Ownership Plan. The complaint alleged that the ESOP fiduciaries and Sam Zell had breached their fiduciary duties to plaintiffs and the class of ESOP participants and engaged in prohibited transactions in violations of ERISA. In March 2012, after the class was certified and the plaintiffs had established the trustee’s liability and successfully opposed its motion to limit damages, the class action settled for $32 million. (Co-lead counsel with Lewis Feinberg Lee Renaker & Jackson and Cotchett Pitre & McCarthy) (Defense Counsel Morgan Lewis & Bockius, LLP and Jenner & Block, LLP)

ERISA/Retirement Life Insurance In Re Sears Group Life Insurance Litigation, (No. 97-C-7453) (N.D. Ill.). Achieved a settlement in March 2002 of ERISA class action challenging removal of life insurance coverage for a class of Sears retirees including former executives, managers and hourly employees. The settlement restored life insurance benefits in $28 million range and preserved an additional $200 million of life insurance benefits. (Liaison and Steering Committee Counsel) (Defense Counsel Mayer Brown)

ERISA Section 510 Plant Shutdown Millsap et al. v. McDonnell Douglas Corp., 162 F. Supp.2d 1262 (N.D. Okla. 2001). Acted as co- lead counsel in class action which resulted in $44.1 million settlement. The settlement was reached after a bench trial established liability against defendant and found for the class of 1100 management and hourly employees that defendant violated ERISA rights in closing its Tulsa plant. (Co-lead Counsel with Feldman Franden Woodard & Farris) (Defense Counsel Bryan Cave)

Pension Valuation Davidson et al. v. Canteen Corporation et al., 957 F.2d 1404 (7th Cir. 1992). Acted as lead counsel in action alleging failure of a retirement plan to give notice of an amendment which reduced the rate of future benefit accrual. This plan’s conduct was found to be a violation of ERISA, entitling

Attachment A Case 1:16-cv-11620-NMG Document 302-5 Filed 03/27/20 Page 9 of 11

former executives’ benefits to be calculated at the pre-amendment accrual rates. (Lead Counsel) (Defense Counsel Kovar Nelson Brittain Sledz & Morris)

EMPLOYMENT DISCRIMINATION CASES

Gender Discrimination Cremin v. Merrill Lynch & Co., No. 96 C 3373 (N.D. Ill.). Participated in settlement of class action on behalf of 900 women who worked as brokers at Merrill Lynch. The lawsuit, which engendered a shakeup in the industry’s perceptions of women on Wall Street, alleged that Merrill Lynch discriminated against female employees as a group and denied them access to career opportunities that were offered to male investment advisors. Our firm successfully negotiated settlements for approximately 150 of the class members. (Co-counsel with Lead Counsel Stowell & Friedman) (Defense Counsel Morgan Lewis)

Discrimination In Public Accommodations Hill v. Shell Oil, No. 98-C-5766 (N.D. Ill). Acted las lead counsel in class action alleging that Shell engaged in a pattern or practice of discrimination by requiring that African-Americans, unlike Caucasians, pre-pay for gas purchases. The case was settled in 2004, with one-year nationwide testing program and other prospective relief. (Lead counsel) (Defense Counsel Barak Ferrazzano Kirschbaum & Nagelberg LLP)

Age Discrimination/Reduction In Force Herman et al. v. Westinghouse, et al., No. MJG 93-285 (D. Md.). In October 1997, achieved a $14 million settlement of this age-discrimination case on behalf of class of 300 plaintiffs involuntarily terminated or retired from Westinghouse. (Co-lead counsel with Bell, Boyd & Lloyd & Equal Employment Opportunity Commission) (Defense Counsel Jones Day)

Gender Discrimination/No-Marriage Rule Romasanta v. United Airlines, Inc., 537 F.2d 915 (7th Cir. 1975), aff'd, 432 U.S. 385 (1977); 587 F.2d 357 (7th Cir. 1978), cert. denied, 442 U.S. 934 (1979); 717 F.2d 1140 (7th Cir. 1983), cert. denied, 466 U.S. 944 (1984); 745 F.2d 1081 (7th Cir. 1984), cert. denied, 471 U.S. 1065 (1985). $37 million verdict awarded after class backpay hearing resulting in sex discrimination settlement for class of 1,600; reinstatement relief for 800 former flight attendants who were forced to leave their flight attendant positions on marriage, while male flight attendants who married could continue employment. (Lead Counsel) (Defense Counsel Winston & Strawn; Cohen Weiss & Simon)

SECURITIES CASES

Securities Fraud In re: WorldCom, Inc. Securities Litigation, No. 02 Civ. 3288 (S.D.N.Y.). Settled a securities fraud action brought on behalf of the Utah State Retirement Board, which had purchased WorldCom stock and bonds at artificially inflated prices. Our client opted out of the class settlement and subsequently settled its claim on an individual basis. (Co-lead Counsel For Utah State Retirement Board with Parr Brown Gee & Loveless) (Defense Counsel Hogan & Hartson LLP, Paul Weiss Rifkind Wharton & Garrison)

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Securities Fraud Brazen v. Tyco Int’l, No. 02 CH 11837 (Cook Co., Ill. Chancery Court). Represented the plaintiffs and class in a class action against Tyco International, L. Dennis Kozlowski, and various Tyco directors. The plaintiffs represented all former Mallinckrodt Inc. shareholders affected adversely by the merger of that company with Tyco International in 2000. The class complaint sought relief under Section 11 of the federal Securities Act of 1933, 15 U.S.C. § 77k. Case was resolved as part of the $3.2 billion nationwide settlement of the Tyco-related litigation. (Co-lead Counsel) (Defense Counsel Steptoe & Johnson and many others)

Securities Merger Ridings, et al. v. Canadian Imperial Bank & Trust Co., et al., No. 81 C 486 (N.D. Ill.). Obtained $23.5 million settlement of claims against Trans Union Corporation and Pritzker family interests arising out of the Pritzkers’ successful takeover of Trans Union by merger; companion case to Smith v. Van Gorkom, 488 A.2d 858 (Del. 1985). (Lead Counsel)

Securities Inadequate Disclosure Genden v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 700 F. Supp. 208 (S.D.N.Y. 1988). Obtained $4 million settlement in class securities action alleging failure to disclose mandatory early redemption possibility of mortgage subsidy bonds. (Lead counsel) (Defense Counsel Zavin, Sinnreich & Wasserman)

OTHER CLASS ACTIONS

Common Law Property Claims Mattson v. PPL Montana, LLC, Cause No. DV-99-548A (Mont. 11th Dist. Ct.). Acted as lead counsel in class action brought on behalf of class of landowners claiming that defendants operated Kerr Dam in a manner that resulted in erosion, property damage, and loss of shoreline on class members’ lakefront and riverfront properties. In March 2017, the court gave final approval to a third settlement in the case. Class counsel ultimately obtained $4.2 million in settlement recovery for the class.

Illinois Wage Act Fluegel v. FedEx Ground Package Systems, Inc., 1:05-cv-02326 (N.D. Ill.). Acted as co-counsel after case was remanded from multi-district litigation from the Northern District of Indiana in large 100-plus-person group action for violations of the Illinois Wage Payment and Collection Act, Illinois Consumer Fraud and Deceptive Business Practices Act and Illinois common law. The case eventually was settled in 2012. (Co-counsel with Lockridge Grindal Nauen and Zimmerman Reed both of Minneapolis MN) (Defense Counsel Faegre Baker Daniels, O’Melveny & Meyers)

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Law Offices of Michael M. Mulder Attorney Biographies

The Law Offices of Michael M. Mulder is based in Chicago, Illinois. The firm is currently comprised of one partner and one associate. The firm’s guiding principle has been to pursue the type of law that has a positive impact by advocating on behalf of classes of workers, investors, consumers, and others whose legal rights have been denied. We represent plaintiffs in class actions and multi-party complex litigation, focusing on pension and ERISA rights, securities litigation, employment discrimination, whistleblower actions, and consumer rights.

Michael M. Mulder: born December 17, 1949, Watertown, NY. Bar admissions: Illinois, 1975; Northern District of Illinois (and trial bar), 1982; U. S. Courts of Appeal for the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and D.C. Circuits; United States Supreme Court, 1979. Education: Western Michigan University (B.A. 1972, With Honors, Political Science); Valparaiso University School of Law (J.D., 1975). Experience: Assistant Defender, Illinois State Appellate Defender, 1975-1980; Adjunct Professor of Law, Appellate Practice Clinic, The John Marshall Law School, 1978-1980; Legal Director, Project Justice and Equality, 1980-1982; Adjunct Professor of Law, Federal Court Clinical Program, Valparaiso University School of Law, 1980-1982; Associate, Meites & Frackman, 1982-1986; Partner, Meites Mulder(and predecessor firms), 1986-2014; Principal, Law Offices of Michael M. Mulder, 2014-present. Professional activities: member, Illinois Bar Association, Young Lawyers Section, Committee on Juvenile Justice, 1977-1980; member, National Legal Aid and Defender Association, Defender Amicus Brief Committee, 1978-1981; member, Chicago Council of Lawyers, 1986- present; member, Illinois State Bar Association, 1988-present; member, National Employment Lawyers Association, 1990-present; member, American Bar Association, Section of Labor and Employment, 1996-present. Civil Rights Monitor to oversee remedial phase of Consent Decree, Massie, et al. v. Illinois Department of Transportation, No. 96 C 4830 (N.D. Ill.) (2000). Practice areas: Class Actions, Pension & ERISA Litigation, Securities Litigation, Employment Discrimination, Federal Practice, Commercial Litigation. Email: [email protected].

Elena N. Liveris: born July 28, 1983, Evanston, IL. Bar admissions: Illinois, 2008; California, 2009; U.S. District Court, Northern District of California, 2010; U.S. District Court, Northern District of Illinois (general bar), 2013. Education: Northwestern University (B.A., 2004); Chicago-Kent College of Law, Illinois Institute of Technology (J.D., 2008, With High Honors, Order of the Coif, Recipient of four CALI awards, Chicago-Kent Law Review, Executive Articles Editor, Seventh Circuit Review, Associate Editor). Experience: Extern, Hon. Joan B. Gottschall, U.S. District Court for the Northern District of Illinois, 2006; Associate, Winston & Strawn LLP, 2008-2009; Volunteer Attorney/Law Clerk, Legal Aid Society- Employment Law Center, 2009; Associate, Cooper & Mora APC, 2010-2013; Associate, Meites Mulder, 2013-2014; Associate, Law Offices of Michael M. Mulder, 2014-present. Publications: “Impala v. Commission: Changing the Tune of European Competition Law”, 83 Chi.-Kent L. Rev. 497, 2008; “Lost in Cyberspace: A Call for New Legislation to Fill the Black hole in Information Privacy Law Following Pisciotta v. Old National Bancorp”, 3 Seventh Circuit Rv. 658, 2008. Practice areas: Class Actions, Pension and ERISA Litigation, Employment Law, Federal Practice. Email: [email protected].

ATTACHMENT B Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 1 of 83

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, No. 16-cv-11620-NMG v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF SANFORD JAY ROSEN I, Sanford Jay Rosen, hereby declare as follows: 1. I am an attorney at law, admitted to practice in California, the Supreme Court of the United States, multiple United States Courts of Appeals, and several District Courts around the country. A complete recitation of my experience and background is included in my firm biography attached hereto as Exhibit 1. See https://rbgg.com/attorneys/partners/sanford-jay- rosen/. 2. I have been retained by Plaintiffs’ counsel to express my expert opinion concerning certain points in support of Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses, and Case Contribution Awards for Named Plaintiffs, and to the reasonableness of Plaintiffs’ requested hourly rates. The materials I considered in forming my opinions are set forth in Exhibit 2. My review of these materials, as well as my knowledge over the years about Schlichter, Bogard and Denton, have informed me as to Plaintiffs’ attorneys, including their backgrounds, reputations, the quality of their work, and the results they achieve for their clients, and that are recited in this declaration. The case-specific materials similarly have informed me about the facts of this case. 3. I am compensated at the rate of $1,100 per hour. This is my customary 2020 hourly rate that I charge and am paid as an expert and an attorney and claim in attorneys’ fees

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applications. My opinions and compensation are not dependent on my opinions or the outcome in this matter. GENERAL BACKGROUND 4. Briefly summarized, my background is as follows: I am a 1962 graduate of the Yale Law School and have been a licensed attorney since that year. After working as a federal judicial clerk, I was a law professor from 1963 to 1971, with my principal courses being constitutional law, labor law, and civil rights/civil liberties law. I was the Assistant Legal Director of the American Civil Liberties Union (ACLU) National Office from 1971 to 1973, and was the Legal Director of the Mexican American Legal Defense and Educational Fund (MALDEF) from 1973 to 1975. Since 1976, I have been in private practice as senior partner, managing partner, or sole principal of a small law firm. I am now one of two Founding Partners of Rosen, Bien & Galvin, LLP, a 21-lawyer litigation firm in San Francisco. 5. My practice, while a full-time law professor, then as a ranking ACLU and MALDEF lawyer, and finally as a private attorney, has always included numerous civil rights and class action matters, and in private practice has included consumer, commercial and other matters. My practice and that of my firm is and has been national in scope, and emphasizes complex litigation in numerous fields of the law. I have tried numerous cases to juries, bench, special masters, and arbitrators in jurisdictions around the country, including: San Francisco, California; Denver, Colorado; Arlington, Virginia; New York, New York; Baltimore, Maryland; Cleveland, Ohio; Honolulu and Kauai, Hawaii; and Saipan (the Commonwealth of the Northern Mariana Islands). In private practice, I have represented both plaintiffs and defendants in numerous employment cases, including individuals and groups of individuals in discrimination, wrongful termination and sexual harassment cases. I also represent high and middle ranking executives in the private sector in relation to their employment contracts, both entering and exiting from major companies. I am also a highly experienced appellate lawyer, having argued five times in the Supreme Court of the United States, and at least thirty times in the United States

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Courts of Appeals. I have briefed many more appeals. I am also active as an arbitrator, settlement judge pro tem, mediator and early neutral evaluator. LITIGATION BACKGROUND 6. My experience includes handling labor-intensive, complex, class-action litigation. On the plaintiffs’ side in private practice, I represented a large class of end users of certain anti- hypertensive drugs against several international pharmacy companies. This case, Center for Elders Independence, et al. v. Biovail Corporation, et al., No. CV 03320 (San Joaquin Superior Court), was settled. I also successfully concluded a settlement and prosecuting fee claims in an unfair competition case against State Farm Insurance Co., Waul v. State Farm Insurance Co., No. CGC 02-412248 (San Francisco Superior Ct. 2006). I represented a large consumer class in cases challenging non-sufficient funds charges imposed by numerous California banks. All these cases culminated in successful settlements, including substantial attorneys’ fees. See, e.g., Rebney v. Wells Fargo Bank, 232 Cal.App.3d 1344 (1991). I also successfully represented the majority of an opt-in class of former Pan Am pilots (a role similar to interveners), resulting— after 30 days of jury trial—in the largest ADEA settlement (nearly $20 million) to that date. EEOC v. Pan American World Airways, Inc., 796 F.2d 314 (9th Cir. 1986). 7. My firm is and has been highly successful lead class counsel in numerous cases alleging constitutional and ADA claims against the State of California’s governor and prison authorities. For example, we are lead counsel in what is now styled Coleman v. Newsom, et al. (2:90-cv-00520-KJM-DB) and were lead co-counsel in the consolidated case, which includes Coleman, decided by the Supreme Court of the United States affirming a prison population reduction order entered by a statutory three judge district court. Brown v. Plata, 563 U.S. 493 (2011). I was a lead counsel and attorney’s fees’ counsel in two of our prison conditions class actions which had lengthy trials of and required decades of litigation and post-trial oversight. My firm continues to be lead or co-lead in prison and jail conditions cases both in California, and in other states, such as Nebraska. See Sabata v. Nebraska Department of Correctional Services, No. 17-3107 (D. Neb. 2017).

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8. My firm is often lead or co-lead in disability rights cases and wage and hour cases in addition to those identified above. See, e.g, Quinby v. ULTA Salon, Cosmetics & Fragrance, Inc., No. 15-4099, Doc. 54 (N.D. Cal., Jan. 18, 2017) (granting final approval order of class action settlement, including attorneys’ fees in a misclassification wage and hour case); Stiner et al., v. Brookdale Senior Living, Inc. et al., 354 F.Supp.3d 1046 (N.D. Cal. 2019) (denying motion to dismiss, holding the ADA applies to assisted living facilities); 383 F.Supp.3d 949 (N.D. Cal. 2019) (denying motion for certification of interlocutory appeal). 9. The firm and I frequently represent plaintiffs in complex collective and representative actions. For example, I have represented multiple plaintiffs in labor intensive consolidated actions, most notably the victims of the May 4, 1970 National Guard Shootings at Kent State University. See, e.g., Krause v. Rhodes, 570 F.2d 563 (6th Cir. 1977); Krause v. Rhodes, 671 F.2d 212 (6th Cir. 1982). 10. As a mediator or early neutral evaluator, I have facilitated resolution of class actions. 11. I also have handled a number of ERISA matters. Following settlement of Pan American World Airways, Inc., discussed above, I sued PanAm on behalf of a number of the pilots due to PanAm’s underfunding of their pension plan. That suit was settled with PanAm and the Pension Benefit Guaranty Corporation. In addition, I have been a mediator or Early Neutral Evaluator for the United States District Court for the Northern District of California in resolving ERISA claims. I have also been an arbitrator selected from the Federal Mediation and Conciliation panel and the American Arbitration Association panel tasked to resolve claims under ERISA. On occasion, I have counseled business clients in ERISA-related matters. 12. In addition, my firm represented the Retired Employees Association of Orange County in Retired Employees Assn. of Orange County, Inc. v. County of Orange, 52 Cal. 4th 1171, 134 Cal. Rptr. 3d 779, 266 P.3d 287 (2011); remanded by 663 F.3d 1292 (9th Cir. 2011). We also litigated on behalf of retired firefighters and police officers in Los Angeles to challenge a health benefit rollback. Los Angeles Retired Fire and Police Association v. City of Los Angeles,

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No. B140201, Superior Court of Los Angeles (filed Nov. 1, 2012). We prevailed in the trial court to restore the benefits. Although the court of appeals reversed and ruled in favor of the city, the city was forced to concede that the retirees had a vested right to the health benefit. Fry v. City of Los Angeles, 245 Cal. App. 4th 539 (2016). 13. On the defendants’ side, my firm and I have represented the State of California’s Public Utility Commission in a number of employment discrimination matters, including an age discrimination class action and the Ninth Circuit appeal in another age discrimination case. Crommie v. State of California, Public Utilities Comm’n, 840 F. Supp. 719 (N.D. Cal. 1994), aff'd sub nom Mangold v. California Public Utilities Comm’n, 67 F.3d 1470 (9th Cir. 1995). I also was involved in the PUC’s successful defense of a case alleging anti-Semitism in employment in the United States District Court for the Northern District of California. My firm and I also represented the County of Contra Costa in a major sexual harassment-whistle blower case, which settled after I completed plaintiff’s 13-day deposition and before plaintiff took any depositions. I have also represented employers in other wrongful termination matters. 14. I have represented numerous public entities and officials in various litigation and pre-litigation matters ranging from contract to employment law matters. These include the Dominican Republic; the Public Utilities Commission of the State of California; the General Counsel of the California Agricultural Relations Board; the East Bay Regional Park District; the County of Contra Costa, CA; the Ravenswood City Elementary School District; and the Human Rights Commission of the City and County of San Francisco. I have also been retained on occasion by Bay Area Rapid Transit (BART) to represent supervisory personnel in labor- management matters. ATTORNEY’S FEE LITIGATION BACKGROUND 15. I am highly familiar with billing rates for law firms that have a sophisticated practice involving large, complex class-action cases. My law firm and I have handled almost countless fee disputes and claims on behalf of many other firms as well as many co-counsel arising in such cases. My law firm has many clients who pay their fees at our hourly rates, as

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well as our statutory fee shifting and contingency fee clients. We have also handled numerous appeals of attorney fee issues. 16. My experience in attorneys’ fees litigation includes extensive negotiation, legal research and pleadings, evidentiary hearings and appellate work in both state and federal court. I have been responsible for briefing and conducting oral argument in state and federal appellate courts in more than ten attorneys’ fees matters, including among others, Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1993); Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994); Gates v. Gomez, 60 F.3d 525 (9th Cir. 1995); Gates v. Shinn, Nos. 95-15402-15403 (unpublished Memorandum dated April 8, 1996); Holland v. Roeser, 37 F.3d 501 (9th Cir. 1994); Rebney v. Wells Fargo Bank, 232 Cal.App.3d 1344 (1991); Davis v. California Department of Corrections, No. A076411 (First District, Oct. 31, 1997). I was also special fees counsel in Finkelstein v. Bergna, 805 F. Supp. 1235 (N.D. Cal. 1992). 17. My firm won several significant additional attorneys’ fees cases including: National Federation of the Blind v. Uber Technologies, Inc. No. 14-04086, Doc. 203 (N.D. Cal. Nov. 8, 2019); Cole v. County of Santa Clara, No. 16-06594 (N.D. Cal. Mar. 21, 2019); L.H. v. Brown, 848 F.Supp.2d 1141 (E.D. Ca. 2011); Armstrong v. Brown, 805 F.Supp.2d 918 (N.D. Cal. 2011); L.H. v. Schwarzenegger, 645 F.Supp.2d 888 (E.D. Cal. 2009); Prison Legal News v. Schwarzenegger, 561 F.Supp.2d 1095 (N.D. Cal. 2008); Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010); Armstrong v. Davis, 318 F.3d 965 (9th Cir. 2003); Greene v. Dillingham Construction Company, 101 Cal.App.4th 418 (2002); Lucas v. White, 63 F. Supp. 2d 1047 (N.D. Cal. 1999). In several of these cases I was lead fees counsel. 18. I was counsel of record on an amicus curiae brief in Perdue v. Kenny A., 559 U.S. 542 (2010), in which the Supreme Court held that in appropriate cases, attorneys for civil rights plaintiffs are entitled to enhancement of their fees for quality of representation and results. I was also counsel of record on an amicus curiae brief filed in the Supreme Court of the United States in City of Burlington v. Dague, 505 U.S. 557 (1992) on behalf of the ACLU, the NAACP Legal Defense Fund, MALDEF, and numerous other pro bono organizations and private law firms. I

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was lead counsel on an amicus curiae brief in the California Supreme Court in County of Santa Clara v. Superior Court (Atlantic Richfield), 50 Cal.4th 35 (2010) on behalf of a number of leading legal ethics professors. The case involved the question whether public entities can retain private contingent fee lawyers in public nuisance cases. 19. I have been responsible for briefing, presenting documentation, and conducting evidentiary proceedings and oral argument in scores of fee matters in trial courts, and have briefed and argued numerous fees appeals. In addition to presenting my own firm’s attorneys’ fees claims, I regularly represent other lawyers, law firms and civil rights organizations in attorneys’ fees matters, including many major law firms. I have also served as a mediator in resolving cases that have included substantial attorneys’ fees components. 20. I have published numerous articles and lectured frequently in Practicing Law Institute (PLI), California’s Continuing Education of the Bar (CEB), ATLA and State Bar of California Labor Section programs and elsewhere on the subject of statutory attorneys’ fees, as well as establishing and financing of plaintiffs’ civil rights practices. In the Spring of 2012, the California Education of the Bar (CEB) published its practice guide, “Employment Damages and Remedies,” which includes a chapter written by myself and senior counsel Michael Freedman on “Attorney Fees and Costs.” We have updated that chapter, most recently in the summer of 2017. 21. Federal and state courts frequently have recognized me, including at least one California Court of Appeal, several United States District Courts in California, Ohio, and Colorado and several California Superior Courts, as an expert on attorneys’ fees matters. Several times I have testified through depositions as an attorneys’ fees expert. I have testified in court three times, once in a bench trial in the United States District Court in Colorado, once before a Los Angeles Superior Court jury, and once at a bench trial in Alameda County Superior Court, as an expert on attorneys’ fees subjects, including reasonable rates, billing practices and expenditures of time. 22. I have been retained as an expert on attorneys’ fees matters both by proponents and opponents of fees claims. On the plaintiffs’ side, I testified recently by declarations in

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support of class counsel’s attorneys’ fees in a wage and hour case against Apple that had been litigated for more than seven years, including a jury trial. Felczer, et al. v. Apple Inc., Case No. 37-2011-00102593-CU-OE-CTL (San Diego CA Superior Court). 23. On the defendants’ side, I was a retained expert for defendants in a real estate dispute resulting in a decision of the United States District Court for the Northern District of California in Stonebrae, L.P. v. Toll Bros., No. 08-0221, 2011 WL 1334444, at *8 (N.D. Cal. Apr. 7, 2011), aff'd, 521 F. App'x 592 (9th Cir. 2013). I was retained as an expert in Post Properties, LP v. Post Street Renaissance Partners, No. 12-640048 (S.F. CA Superior Court), and testified by way of a declaration opposing a fee claim in that wrongful detainer case. I was retained and testified at deposition as an expert in support of a fee claim as damages in a tort of another case in Santa Clara CA Superior Court, Gagnard v. Campi Properties Inc., No. 10- 167727. Recently, I was retained to testify at a jury trial on behalf of defendants in San Francisco Superior Court as an expert on quantum meruit fees for defendant in a legal malpractice matter arising from a law firm’s False Claims Act representation. Packard, Packard & Johnson v. Hinshaw and Culbertson, No. 16-55441 (San Francisco CA Superior Court). After my deposition, the case settled before trial. 24. Continuously since 1976, I have been a senior partner, managing partner or sole principal of a small law firm. In these capacities, I have been setting billing rates and practices for more than 40 years. I also frequently employ other law firms to work for my clients, and thereby become familiar with their rates and practices. 25. I constantly familiarize myself with the rates charged and the billing and work practices of lawyers throughout the nation in a number of additional ways: (1) from my own involvement in attorneys’ fees litigation and expert consultations and testimony; (2) by discussing attorneys’ fees, billing, and work practices with other attorneys; (3) by representing other attorneys seeking fees; (4) by obtaining declarations from other attorneys regarding market rates, attorneys’ fees, billing and work practices; (5) by discovering the rates charged by opposing parties’ counsel; (6) by reviewing surveys, legal newspapers, reported decisions, and

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treatises regarding prevailing attorneys’ rates, fees, billing and work practices; (7) by reviewing attorneys’ fees applications and awards in cases throughout the nation, as well as published and unpublished decisions and orders throughout the nation; (8) by reviewing rates charged by, and billing and work practices of, other firms that my firm has retained or associated with; and (9) by conducting research in my preparation for testimony as an expert. SCHLICHTER, BOGARD AND DENTON PIONEERED THE FIELD OF NATIONAL ERISA 401(K) LITIGATION 26. I am familiar with the work, results and reputation of Schlichter, Bogard and Denton. I know that it has a national ERISA practice, involving highly complex class-actions filed across the country in federal district courts including California, Colorado, Connecticut, Georgia, Indiana, Illinois, Maryland, Massachusetts, Minnesota, Missouri, New York, North Carolina, Pennsylvania, Tennessee, Texas and Wisconsin.

27. The excessive fee cases brought by the firm beginning in 2006 are unlike any complex ERISA class-action ever brought at the time. This law firm is acknowledged as the pioneering law firm in the area. Abbott v. Lockheed Martin Corp., No. 06-701, 2015 WL 4398475, at *1 (S.D. Ill. July 17, 2015). Neither the Department of Labor nor any private law firm in the United States brought an excessive-fee class action involving a 401(k) in the 30-plus years of ERISA. Spano v. Boeing Co., No. 06-743, 2016 WL 3791123, at *3 (S.D. Ill. Mar. 31, 2016). Numerous federal district courts have cited the staggering or “enormous risks of representing employees and retirees in this area.” Nolte v. Cigna Corp., No. 07-2046, 2013 WL

12242015, at *2 (C.D. Ill. Oct. 15, 2013); Will v. General Dynamics Corp., No. 06-698, 2010 WL 4818174, at *3 (S.D.Ill. Nov. 22, 2010). 28. Schlichter, Bogard and Denton’s expertise in this area has been recognized by numerous federal courts. For example, Judge Harold Baker in the Central District of Illinois noted that the firm is “the preeminent firm in 401(k) fee litigation” and that its work has “led to dramatic changes in the 401(k) industry, which have benefitted employees and retirees throughout the country by bringing sweeping changes to fiduciary practices.” Nolte, 2013 WL

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12242015, at *3. In fact, “the fee reduction attributed to Schlichter, Bogard and Denton’s fee litigation and the Department of Labor’s fee disclosure regulations approach $2.8 billion in annual savings for American workers and retirees.” Id. at *2. 29. Judge Susan R. Nelson recognized that “litigating the complex issues in [the] case required the attorneys to exercise extraordinary skill and determination. In fact, another judge in this Circuit has noted that [Schlichter, Bogard and Denton] are ‘experts in ERISA litigation.’” Krueger v. Ameriprise Fin., Inc., No. 11-2781, 2015 WL 4246879, at *2 (D. Minn. July 13, 2015) (quoting Tussey v. ABB, Inc., No. 06-4305, 2012 WL 5386033, at *3 (W.D. Mo. Nov. 2, 2012). Judge Nanette Laughrey recognized the firm’s “significant, national contribution” in “clarif[ying] ERISA standards in the context of investment fees.” Tussey, 2015 WL 8485265, at *2. In fact, “[t]he litigation educated plan administrators, the Department of Labor, the courts and retirement plan participants about the importance of monitoring recordkeeping fees and separating a fiduciary’s corporate interest from its fiduciary obligations.” Id. 30. Moreover, Judge G. Patrick Murphy recognized that “Schlichter, Bogard & Denton’s work throughout this litigation illustrates an exceptional example of a private attorney general risking large sums of money and investing many thousands of hours for the benefit of employees and retirees” and “[l]itigating the case required Class Counsel to be of the highest caliber and committed to the interests of the participants and beneficiaries of the General Dynamics 401(k) Plans.” Will, 2010 WL 4818174 at *3. Judge David R. Herndon similarly noted that the firm “[l]itigat[ed] this case against formidable defendants and their sophisticated attorneys,” which “required Class Counsel to demonstrate extraordinary skill and determination.” Beesley v. Int’l Paper Co., No. 06-703, 2014 WL 375432, at *2 (S.D.Ill. Jan. 31, 2014). 31. In another 401k excessive fee case in the District of Massachusetts, Judge Michael A. Ponsor stated that “Class Counsel has demonstrated extraordinary resourcefulness, skill, efficiency and determination” and the “exceptional result in [the] case is the direct result of Class Counsel’s unique expertise and outstanding effort.” Gordan v. Mass. Mut. Life Ins. Co., No. 13-30184, Doc. 144 at 5 (D.Mass. Nov. 3, 2016).

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32. In addressing the efforts of Class Counsel, Chief Judge Osteen of the Middle District of North Carolina, noted as follows: Class Counsel’s efforts have not only resulted in a significant monetary award to the class but have also brought improvement to the manner in which the Plans are operated and managed which will result in participants and retirees receiving significant savings in the coming four years.

Kruger, 2016 WL 6769066, at *3. 33. Class Counsel’s experience and resources expended in those matters contributed

to efficiently litigating and resolving this case. See Ramsey v. Phillips N. Am. LLC, No. 18-1099, Doc. 27 at 6–7 (N.D. Ill. Oct. 15, 2018) (“This Court believes that the early settlement in this case was reached due to Schlichter Bogard & Denton’s established reputation”). 34. On June 24, 2019, U.S. District Judge Catherine Eagles “recognized the experience, reputation, and ability” of Plaintiffs’ counsel and found that the firm “demonstrated diligence, skill, and determination in this matter and, more generally, in an area of law in which few attorneys and law firms are willing or capable of practicing.” Clark v. Duke Univ., No. 16- 1044, 2019 WL 2579201, at *3 (M.D. N.C. June 24, 2019). In another ERISA class action, Judge Eagles recognized the “skill and determination” of Class Counsel and noted that “[i]t is unsurprising that only a few firms might invest the considerable resources to ERISA class actions such as this, which require considerable resources and hold uncertain potential for recovery.” Sims v. BB&T Corp., No. 15-732, 2019 WL 1993519, at *3 (M.D. N.C. May 6, 2019). 35. On January 28, 2020, U.S. District Judge George L. Russell, III stated that “Schlichter, Bogard & Denton are Class Counsel of the highest caliber.” Kelly v. Johns Hopkins Univ., No. 16-2835, 2020 WL 434473, *4 (D. Md. Jan. 28, 2020). 36. In my experience this is a remarkable record of federal judges around the country praising a law firm for its stellar work and results in protecting the rights of employees and retirees in 401(k) plans. I have rarely seen or heard of such a consistent pattern of such accolades.

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37. Schlichter, Bogard and Denton’s work also has been featured in the New York Times, Wall Street Journal, Reuters, and Bloomberg, among other media outlets. See, e.g., Anne

Tergesen, The Lawyer on a Quest to Lower Your 401(k) Fees, Wall St. J. (June 9, 2017);1 Anne Tergesen, 401(k) Fees, Already Low, Are Heading Lower, Wall St. J. (May 15, 2016);2 Gretchen Morgenson, A Lone Ranger of the 401(k)’s, N.Y. Times (Mar. 29, 2014);3 Floyd Norris, What a 401(k) Plan Really Owes Employees, N.Y. Times (Oct. 16, 2014);4 Sara Randazzo, Plaintiffs’ Lawyer Takes on Retirement Plans, Wall St. J. (Aug. 25, 2015);5 Jess Bravin and Liz Moyer, High-Court Ruling Adds Protections for Investors in 401(k) Plans, Wall St. J. (May 18, 2015);6

Mark Miller, Are 401(k) Fees Too High? The High Court May Have an Opinion, Reuters (May 1, 2014);7 Greg Stohr, 401(k) Fees at Issue as Court Takes Edison Worker Appeal, Bloomberg (Oct. 2, 2014).8 38. Based on my personal experience and review of pleadings filed by Schlichter, Bogard and Denton in this and many other cases, including Appellate and Supreme Court filings, Schlichter, Bogard and Denton has displayed extraordinary skill in litigating complex ERISA issues. Not only is Schlichter, Bogard and Denton the first firm to ever bring 401(k) excessive fee cases and literally created the space, but no other firm has obtained the results for plan participants and beneficiaries after overcoming tremendous obstacles and facing the enormous risk of non-payment in hard-fought litigation. 39. Cases of this caliber with these types of well-funded defendants require

specialized knowledge and the ability to fund what amounts to an opposition to a blank-check defense. For example, I am aware that in the first full trial of a 401(k) excessive fee case under

1 Available at https://www.wsj.com/articles/the-lawyer-on-a-quest-to-lower-your-401-k-fees-1497000607. 2 Available at http://www.wsj.com/articles/401-k-fees-already-low-are-heading-lower-1463304601. 3 Available at http://www.nytimes.com/2014/03/30/business/a-lone-ranger-of-the-401-k-s.html?_r=0. 4 Available at http://www.nytimes.com/2014/10/17/business/what-a-401-k-plan-really-owes- employees.html?_r=0. 5 Available at http://blogs.wsj.com/law/2015/08/25/plaintiffs-lawyer-takes-on-retirement-plans/. 6 Available at http://www.wsj.com/articles/high-court-ruling-adds-protections-for-investors-in-401-k-plans- 1431974139. 7 Available at http://www.reuters.com/article/us-column-miller-401fees-idUSBREA400J220140501. 8 Available at http://www.bloomberg.com/news/articles/2014-10-02/401-k-fees-at-issue-as-court-takes-edison- worker-appeal.

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ERISA—Tussey v. ABB, Inc.—defendants had paid over $42.5 million in attorneys’ fees as of January 2010. The case was litigated for nearly another decade, including two appeals, two remands, a petition for writ of certiorari, and further proceedings in the district court, before finally settling in April 2019, resulting in much more in defendants’ attorneys’ fees being paid. 40. In ERISA cases brought by Schlichter Bogard and Denton, plan sponsor defendants retain some of the largest and most well-known law firms in the nation. These law firms have significant resources that make prosecution of these cases extraordinarily difficult. A sample of opposing counsel in these types of cases are listed below: Case Opposing Counsel Tibble v. Edison, 575 U.S. 523 (2015) O’Melveny9 Kelly v. Johns Hopkins Univ., No. 16-2835, 2020 WL Morgan Lewis 434473 (D. Md. Jan. 20, 2020) Ramos v. Banner Health, No. 15-2556, 2018 WL 4700707 McDermott Will (D. Colo. Aug. 8, 2018) & Emery, LLP Tussey v. ABB, Inc., No. 06-4305, 2019 WL 3859763 (W.D. Bryan Cave Mo. August 16, 2019) Munro v. Univ. of S. Cal., No. 16-6191, 2016 WL 11185428 Gibson Dunn (C.D. Cal. Dec. 2, 2016) Clark v. Duke, No. 16-1044, 2019 WL 2579201 (M.D. N.C. Morgan Lewis June 24, 2019) In re Northrop Grumman Corp. ERISA Litig., No. 06-6213, Mayer Brown 2017 WL 9614818 (C.D. Cal. Oct. 24, 2017) Gordan v. Mass. Mut. Life Ins. Co., No. 13-30184, 2016 WL Goodwin 11272044 (D. Mass. Nov. 3, 2016) Proctor Spano v. Boeing Co., No. 06-743, 2016 WL 3791123 (S.D. O’Melveny Ill. Mar. 31, 2016) Krueger v. Ameriprise Fin., Inc., No. 11-2781, 2015 WL O’Melveny 4246879 (D. Minn. July 13, 2015) Divane v. Northwestern Univ., No. 16-8157, 2018 WL Jenner & Block 2388118 (N.D. Ill. May 25, 2018) Martin v. Caterpillar Inc., No. 07-1009, 2010 WL 11614985 Seyfarth Shaw (C.D. Ill. Sept. 10, 2010) Sacerdote v. New York Univ., No. 16-6284, 2018 WL 840364 DLA Piper (S.D.N.Y. Feb. 13, 2018)

9 The case resulted in the Supreme Court of the United States unanimously ruling in Plaintiffs’ favor. O’Melveny is counsel for Defendants in this case.

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41. Complex cases, such as this case, typically last numerous years and involve many discovery battles, intense motion practice and multiple experts that often involve some of the nation’s foremost experts in the field. If tried, an appeal is almost certain. This type of litigation is risky and extremely costly. I am aware of no firm, including my own firm, that has filed a 401(k) excessive fee case prior to those brought by Schlichter, Bogard and Denton, nor any that have committed the resources the firm has to this litigation. It is therefore not surprising that Schlichter, Bogard and Denton stands alone in this niche, given the complexities of the issues and the risks it incurs. 42. As another example of Schlichter, Bogard and Denton displaying their tremendous skill and determination in securing a significant recovery for plan participants is their extraordinary work in the landmark Tibble v. Edison case, which was filed in 2007. Upon petition by the plaintiffs, the United States Supreme Court granted the plaintiffs’ Writ of Certiorari and—in a 9-0 unanimous decision—vacated the Ninth Circuit’s affirmance of the summary judgment order and held that an ERISA fiduciary has a continuing duty to monitor plan investments and remove imprudent ones regardless of whether they were added to the 401(k) plan prior to the statutory period. Tibble v. Edison Int’l, 135 S.Ct. 1823 (2015). On remand from the Supreme Court, the Ninth Circuit en banc vacated the Court’s summary judgment ruling that Plaintiffs’ claims as to retail share mutual funds added prior to the statutory period were barred and remanded to the Court to determine on an open record whether Defendants violated their continuing duty to monitor Plan investments. Tibble v. Edison Int’l, 843 F.3d 1187, 1199 (9th Cir. 2016). Following remand, in August 2017, the district court held that the defendants were liable for breaching their duty to monitor plan investments and awarded over $13.1 million in plan losses and investment opportunity. Tibble, No. 07-5359, 2017 WL 3523737 (C.D. Cal. Aug. 16, 2017); Tibble, Docs. 413, 570. This was a landmark, precedent-setting case, the significance of which cannot be overstated. It was the first and only ERISA 401(k) excessive fee case taken by the Supreme Court. Schlichter, Bogard and Denton persevered for over ten years through

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multiple appeals to dramatically increase the recovery for the Plan from $370,372 to over $13.1 million.

SCHLICHTER, BOGARD AND DENTON OBTAINED A SUBSTANTIAL RECOVERY FOR THE CLASS AFTER YEARS OF LITIGATION 43. Schlichter, Bogard and Denton devoted significant time and resources investigating potential claims for years. During the course of their pre-filing investigation, they analyzed thousands of publicly filed documents with the Department of Labor to support their claims. 44. Following these extensive efforts, on August 9, 2016, Plaintiffs filed their complaint in the United District Court for the District of Massachusetts, alleging that Defendant Massachusetts Institute of Technology, the MIT Supplemental 401(k) Plan Oversight Committee, the Administrative Committee, Israel Ruiz, Marc Bernstein, Glenn David Ellison, S.P. Kothari, Gunther Roland, Lorraine A. Goffe Rush, Glen Shor, Pamela Weldon, Thomas M. Wieand, and Barton Zwiebach (collectively “Defendants”) breached their fiduciary duties under ERISA and committed prohibited transactions relating to the management, operation, and administration of the Massachusetts Institute of Technology Supplemental 401(k) Plan (“Plan”), causing tens of millions of dollars in losses to Plan participants’ retirement savings. 45. On September 29, 2017, the district court granted in part and denied in part Defendants’ motion to dismiss Plaintiffs’ amended complaint. Doc. 75. 46. The parties then proceeded to merits discovery. Defendant produced over 180,000 pages of documents, including Plan-related materials, fee and performance data related to the Plan’s investments, fiduciary committee minutes and supporting materials, e-mail communications, and other documents. The parties also agreed to exchange electronically stored information after negotiating key custodians and search terms. 47. The parties took 23 depositions including 11 MIT personnel, 3 third parties including Fidelity and the Plan’s investment consultants, 4 named plaintiffs and 5 expert witness depositions. Each of these depositions involved highly complex issues and required many hours

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of preparation, including extensive document review. All depositions were defended by an O’Melveny partner. The majority of deposition were defended by senior O’Melveny partners Brian Boyle or Shannon Barrett. Both attorneys practice in the Washington, D.C. office of O’Melveny. The deposition of a Fidelity employee was defended by the managing partner of Skadden’s Boston office. Morgan Lewis Chicago partner Chris Boran defended the depositions of two former investment consultants. This litigation involved attorneys from large defense firms throughout the country. In my experience, large defense firms that are retained by out-of-town clients bill their home town rates. Therefore, in my experience, a firm like O’Melveny would have charged MIT O’Melveny’s Washington D.C. rates. 48. Plaintiffs filed a second amended complaint on March 1, 2018. Doc. 98. The district court granted class certification on October 19, 2018. Doc. 157. Defendants filed a motion for summary judgment on July 15, 2019. Doc. 204. Defendants’ motion for summary judgment was granted in part and denied in part on September 4, 2019. Doc. 274. The case was set for trial to begin on September 16, 2019. Doc. 233. 49. The parties conducted an in-person mediation session through a national private mediator on May 22, 2019. The parties continued to discuss settlement both directly and through the private mediator. After several months of additional negotiation, on September 12, 2019, the parties reached an agreement on all material terms. 50. Under the terms of the settlement, Defendants agreed to pay $18.1 million. They also agreed to very important non-monetary terms that include, but are not limited to: (1) conducting a competitive bidding process for the Plan’s recordkeeping services; (2) agreeing to certain factors that must be considered when evaluating administrative fees for the Plan; (3) utilizing an independent consultant to review all designated investment alternatives in the Plan; and (4) prohibiting the Plan’s recordkeeper from marketing non-Plan products and services to Plan participants. These provide valuable non-monetary relief with real value for the future. 51. The results obtained by Schlichter Bogard and Denton demonstrate their extraordinary skill in complex class action litigation. The settlement is the largest settlement of

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any case involving a claim of excessive fees in university retirement plans.10 The four cases settled by Schlichter Bogard and Denton resulted in larger settlements and more favorable and robust non-monetary relief provisions than those handled by other firms. See, Tracey v. Massachusetts Institute of Technology, No. 16-cv-11620-NMG, Doc. 290-1 (D. Mass. Oct. 28, 2019) (SBD); Cassell v. Vanderbilt Univ., No.16-2086, Doc. 147-1 (Apr. 23, 2019) (SBD); Kelly v. The Johns Hopkins Univ., No. 16-2835, Doc. 84-2 (Aug. 6, 2019) (SBD); Clark v. Duke Univ., No. 16-1044, Doc. 149-2 (M.D.N.C. Jan 16, 2019)(SBD); Daugherty v. Univ. of Chicago, No. 17-3736, Doc. 67-4 (N.D. Ill. Aug. 15, 2018); Short v. Brown Univ., No. 17-318, Doc. 55 (D.R.I., Aug. 8, 2019). 52. My firm and I have settled many complex cases. Many of these have been disability rights involving major companies or major jail conditions cases. Some of these cases, involving major companies or law firms, have never been filed or made public due to confidentiality provisions in the settlement agreements. Others have resulted in simultaneous or virtually simultaneous filing of a complaint and a settlement agreement or consent decree. In one of these case, the United States Court of Appeals sustained my 2008 billing rate of $740 per hour. See Prison Legal News v. Schwarzenegger, 561 F. Supp. 2d 1095 (N.D. Cal. 2008), subsequent order aff’d, 608 F.3d 446 (9th Cir. 2010); L.H. v. Schwarzenegger, 645 F. Supp. 2d 888 (E.D. Cal. 2009).

THE FEE REQUESTED BY PLAINTIFFS IS EMINENTLY REASONABLE, CONSISTENT WITH THE MARKET RATES FOR NATIONAL FIRMS IN COMPLEX LITIGATION, AND IS FAR LESS THAN THE LODESTAR, PROVIDING NOTHING FOR RISK OR THE FUTURE WORK ON THE CASE 53. I understand that Plaintiffs’ counsel is seeking one-third of the gross settlement amount (or $6,032,730) in attorneys’ fees to compensate them for their efforts in securing the valuable settlement and for the enormous risk of non-payment inherent in complex ERISA 401(k) fiduciary breach class actions, such as this one.

10 See MIT Inks Largest Settlement in College Retirement Plan Lawsuits, Bloomberg Law, October 29, 2019, Jacklyn Willie available at https://news.bloomberglaw.com/employee-benefits/mit- inks-largest-settlement-in-college-retirement-plan-lawsuits.

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54. In my experience, the percentage-of-recovery method for calculating attorneys’ fees in common fund cases is the preferred and adopted approach for determining reasonable attorneys’ fees. This is true for ERISA common fund cases. In addition, a one-third fee is consistent with the market rate in complex ERISA 401(k) class actions. 55. In making their attorneys’ fees request, I believe that Schlichter, Bogard and Denton is following properly complying with directives of the First Circuit concerning attorneys’ fees claims and awards in common fund class action case. In the First Circuit, in awarding attorneys’ fees in “common fund cases . . . the district court [has] discretion to use whichever method, [percentage-of-fund] or lodestar, [that] best fits the individual case.” In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 308 (1st Cir. 1995). Where the court awards a percentage of a common fund as attorneys’ fees, it may use the lodestar method as a cross-check on the reasonableness of the fees. In re Relafen Antitrust Litig., 231 F.R.D. 52, 79 (D. Mass. 2005). 56. Schlichter, Bogard and Denton have requested the following hourly rates: $1,060 for attorneys with at least 25 years of experience; $900 for attorneys with 15–24 years of experience; $650 for attorneys with 5–14 years of experience; $490 for attorneys with 2–4 years of experience; and $330 for paralegals and law clerks. In making my fee claims, like Schlichter, Bogard and Denton and consistent with Missouri v. Jenkins, 491 U.S. 274, 284 (1989), my firm and I and those we represent in making fees claims, request and are awarded our current billing rates as a means of compensating for delay in payment or loss of interest. 57. These rates have been approved by multiple courts, including this year in a class action settlement of an ERISA class action case involving the defined contribution plan of another higher education institution. Margaret E. Kelly et. al v. The Johns Hopkins University, No. 16-2835, Doc. 94 (D. Md. Jan. 28, 2020) (approving above-listed hourly rates for Schlichter, Bogard and Denton); see also Cassell v. Vanderbilt University, No. 16-2086, Doc. 174 (M.D. Tenn. Oct. 22, 2019) (same rates); Bell v. Pension Comm. of ATH Holding Co., LLC, No. 15- 02062, 2019 WL 4193376, at *5 (S.D. Ind. Sept. 4, 2019) (same rates); Clark v. Duke Univ., No.

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16-1044, 2019 WL 2579201, at *4 (M.D.N.C. June 24, 2019) (same rates); Sims v. BB&T Corp., No. 15-732, 2019 WL 1993519, at *3 (M.D.N.C. May 6, 2019) (same rates). 58. These rates, in turn, represent approximately a 6% increase over 2016 rates that were approved by various courts for Schlichter, Bogard and Denton in previous similar excessive fee cases: $998 for attorneys with at least 25 years of experience; $850 for attorneys with 15–24 years of experience; $612 for attorneys with 5–14 years of experience; $460 for attorneys with 2–4 years of experience; and $309 for paralegals and clerks. See Gordan v. Mass. Mutual Life Ins. Co., No. 13-30184, Doc. 144 at 6 (D. Mass. Nov. 3, 2016) (approving the “reasonable rates suggested by counsel”); Gordan, No. 13-30184, Doc. 120 at 29–30 (same rates as Kruger); Spano 2016 WL 3791123 at *3 (2016 rates); Kruger v. Novant Health, Inc., No. 14-208, 2016 WL 6769066, at *4 (M.D.N.C. Sept. 29, 2016) (applying Spano rates). 59. I am familiar with the rates charged by attorneys nationally in major, national markets, including New York, Washington, D.C., Chicago, Los Angeles and San Francisco. The requested hourly rates are well within the rates charged by attorneys of equivalent experience, skill, and expertise for comparable services. 60. For this type of complex class action litigation, a national rate for attorneys’ fees applies, and the firms which defend this and similar cases are national firms. Because of the unique nature of Schlichter, Bogard & Denton’s practice, the fact that few if any other firms are bringing innovative 401(k) lawsuits like the case at bar, the outstanding quality of the firm’s work, and the result it achieves for its clients, the firm and its attorneys should be compensated at the rates of the top of the national legal market. 61. In 2016, the Wall Street Journal reported that “senior partners routinely charge between $1,200 and $1,300 an hour, with top rates at several large law firms exceeding $1,400.”

Sara Randazzo and Jacqueline Palank, Legal Fees Cross New Mark: $1,500 an Hour, Wall St. J.

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(Feb. 9, 2016).11 According to multiple sources, prominent partners at some large firms more recently bill rates up to $2,000 per hour.12 62. I know that many top attorneys in these and other legal markets are charging and being paid rates well in excess of $1,000, $1,500 and even $2,000 per hour. For example, my firm has worked with Paul Clement, a former Solicitor General of the United States in our current California prison conditions cases. In Armstrong, cited in paragraphs 17 and 67, we have claimed and the State of California has paid his full 2012 and 2014 rates of $1,100 and $1,350 per hour. A colleague of his who had been a lawyer since 2005 was paid $650 per hour in 2012, and another who was also a lawyer since 2005 was paid $850 hour in 2014. I believe that Mr. Clements’s present billing rate is at least $2,000 per hour. 63. The hourly rates set forth above are those charged where full payment is expected promptly upon the rendition of the billing and without consideration of factors other than hours and rates. If any substantial part of the payment were to be contingent or deferred for any substantial period of time, for example, the fee arrangement would be adjusted accordingly to compensate the attorneys for those factors.

11 Available at https://www.wsj.com/articles/legal-fees-reach-new-pinnacle-1-500-an-hour-1454960708; see also, e.g., See, e.g., Martha Neil, Top Partner Billing Rates at BigLaw Firms Approach $1,500 Per Hour, ABA JOURNAL (Feb. 8, 2016), http://www.abajournal.com/ news/article/top_partner_billing_rates_at_biglaw_firms_nudge_1500_per_hour (2016 American Bar Association report relying on public filings in Chapter 11 bankruptcy cases noted billing rates as high as $1,475 at Proskauer Rose; $1,450 at Ropes & Gray; and $1,425 at both Akin Gump Strauss Hauer & Feld and Skadden Arps Slate Meagher & Flom); Final Application of Gibson, Dunn & Crutcher LLP as General Bankruptcy and Restructuring Co-Counsel for Debtors and Debtors-in Possession for Allowance of Compensation for Services Rendered and Reimbursement of Expenses Incurred for the Final Period Mar. 12, 2015–Nov. 19, 2015 at 4, In re SRC Liquidation, LLC, No. 15-10541-BLS (Bankr. D. Del.) (Dkt. No. 1404) (filed Dec. 15, 2015) (2015 fee application of Gibson Dunn revealing rates for partners in bankruptcy case as high as $1,475). 12 See, e.g., Mike Scarcella and Marcia Coyle, What New Supreme Court Cases Reveal Acount Big Law Billing Rates, Law360 (Aug. 27, 2019), https://www.law.com/201912019/08/27/what-new-supreme-court-cases-reveal- about-big-law-billing-rates/(discussing rates ranging from $900 to $1,745 per hour); Aebra Coe, What Do the Highest-Paid Lawyers Make an Hour?, Law360 (May 11, 2016), https://www.law360.com/legalindustry/articles/794929/what-dothe-highest-paid-lawyers-make-an-hour- (noting that research conducted by the BTI Consulting Group revealed that rates “reached $2,000 per hour” in 2016, up from the previous high of $1,600 per hour in 2015); Karen Sloan, $1,000 Per Hour Isn’t Rare Anymore, NAT’L L.J. (Jan. 13, 2014), https://www.law.com/national lawjournal/almID/1202637587261/NLJ-Billing-Survey%3A-%241%2C000- PerHour-Isn%27t-Rare-Anymore/ (noting that “four-figure hourly rates for in-demand partners at the most prestigious firms don’t raise eyebrows—and a few top earners are closing in on $2,000 an hour”).

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64. Other Plaintiffs’ firms that litigate complex class actions on a national scale obtain hourly rates similar to those requested by Schlichter Bogard and Denton. For example, a Connecticut district court recently approved rates between $530 and $980 per hour for attorneys at Wolf Haldensten Adler Freeman & Herz LLP (Doc. 125-2); between $500 and $975 per hour for attorneys at Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., located in Alabama and Georgia (Doc. 125-3); between $525 and $985 per hour for attorneys at DiCello Levitt Gutzler LLC (Doc. 125-4). Simerlin v. Toyota Motor Corp., No. 17-1091, 2019 WL 2417404 (D. Conn. June 10, 2019). These rates are consistent with rates awarded to Plaintiffs’ attorneys by courts throughout the nation. In 2017, the Eastern District of Tennessee approved rates of $475 to $1,000 per hour for attorneys at Cera LLP, a firm based in San Francisco with a Boston office (Doc. 492-4); rates of $260 to $1,000 per hour for attorneys at Cohen Milstein Sellers & Toll, PLLC; rates of $305 to $985 per hour for attorneys at Kaplan Fox & Kilsheimer LLP; rates of $470 to $945 per hour for attorneys at the Joseph Saveri Law Firm, Inc.; rates of $360 to $930 per hour for attorneys at Duane Morris. In re: Cast Iron Pipe and Fittings Antitrust Litig., No. 14-2508, Doc. 503 (E.D. Tn. May 26, 2017). 65. The expense, deferred payment and risk of public interest common fund class action litigation has not diminished over the years; to the contrary, these cases are in many ways more difficult than ever. As a result, fewer and fewer attorneys and firms are willing to take on such litigation, and the few who are willing to do so can only continue if their fee awards reflect true market value. 66. I am familiar with the trajectory of rate increases over time and successfully briefed those issues in prior cases. See, e.g., L.H. v. Schwarzenegger, 848 F. Supp. 2d 1141 (E.D. Cal. 2011); Armstrong v. Brown, 805 F. Supp. 2d 918 (N.D. Cal. 2011). Since the decisions in the L.H. and Armstrong cases, the State of California consistently has accepted and paid my firm’s yearly increase in rates in our ongoing cases involving the California Department of Corrections and Rehabilitation, Armstrong and Prison Legal News, supra.

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67. The 2019 LexisNexis CounselLink’s Enterprise Legal Management Trends Report, attached hereto as Exhibit 3, shows that the billing rates for partners in Washington D.C., New York, and San Francisco grew by over 5% annually over the last three years. The report also shows that across the entire county, including all markets, the average hourly billing rate for partners grew 3.3% in the year ending April 30, 2019, compared with 3.2% growth in 2017 versus 2016. As reported in a May 14, 2018 article in The American Lawyer, attached hereto as Exhibit 4, a recent analysis by Citi indicated that rates in 2018 had risen 4.8% from 2017. 68. Schlichter, Bogard and Denton’s 2020 requested, and previously approved rates, which have increased just 6% since 2016 and are in line with those of other Plaintiffs’ firms and firms that defend ERISA actions, are reasonable. For complex litigation such as that required to litigate this case, rates would be expected to increase at an even higher rate, making Schlichter, Bogard and Denton’s hourly rates request conservative compared to current national rates in this specialized area of practice. 69. The hourly rates proposed by Schlichter, Bogard and Denton compare favorably to the rates at national defense law firms, like those that defendants retain in these cases, in New York, Washington, D.C., Chicago, and San Francisco, and are significantly lower than most. In my experience, the rates charged by top tier law firms defending a public interest fee shifting case is an appropriate guide for determining the reasonableness of plaintiff’s hourly rates. 70. The National Law Journal published a Billing Report specifying identified law firms’ billing rates nationwide, last released in 2017 in that form, which shows the following rates:

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New York: NLJ Partner Associate Counsel Counsel Partner Associate 500 Billing Billing Billing Billing Firm Name Billing Billing Rank Rate Rate Rate Rate Rate Avg Rate Avg 2017 High High High Average DLA Piper13 2 $1,120 $985 $850 $595 $805 $775 Greenberg Traurig, LLP 8 $1,080 $790 $475 $475 $795 Reed Smith, LLP 15 $902 $880 $675 $528 Gibson, Dunn & Crutcher LLP14 17 $1,195 $1,150 $875 $685 Cleary Gottlieb Steen & Hamilton LLP 18 $490 $468 Simpson Thacher & Bartlett LLP 27 $1,360 $1,350 $1,080 $900 $1,170 $1,143 Paul Weiss Rifkind Wharton Garrison LLP 28 $1,395 $1,320 $1,040 $995 Willkie Farr & Gallagher LLP 74 $1,425 $1,350 $965 $800 Washington, D.C.: NLJ Partner Associate Counsel Counsel Partner Associate 500 Billing Billing Billing Billing Firm Name Billing Billing Rank Rate Rate Rate Rate Rate Avg Rate Avg 2017 High High High Average Jones Day 5 $1,050 $950 $800 $525 $850* Pillsbury Winthrop Shaw Pittman LLP 73 $1,235 $830 $680* Ballard Spahr LLP 85 $1,195 $895 $510 $453 $505

13 Opposing counsel in Sacerdote, 2018 WL 840364. 14 Opposing counsel in Munro, 2016 WL 11185428.

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Chicago: NLJ Partner Associate Counsel Counsel Partner Associate 500 Billing Billing Billing Billing Firm Name Billing Billing Rank Rate Rate Rate Rate Rate Avg Rate Avg 2017 High High High Average Sidley Austin LLP15 10 $1,180 $1,135 Kirkland & Ellis LLP 12 $1,410 $1,115 $955 $735 Winston & Strawn LLP 46 $930* $750 $655 San Francisco Bay Area: NLJ Partner Associate Counsel Counsel Partner Associate 500 Billing Billing Billing Billing Firm Name Billing Billing Rank Rate Rate Rate Rate Rate Avg Rate Avg 2017 High High High Average Cooley LLP 39 $1,100 $835 $735 $1,065 $998 71. According to the National Law Journal, the survey was produced by “collect[ing] 2017 hourly billing rates for partners, associates and of counsel from the published rates in the 20 largest federal bankruptcy jurisdictions. High, low and average attorney billing rates [we]re reported for 948 firms, in 31 states and the U.S. Territory Puerto Rico.” 72. In order to select firms from the survey with lawyers of equivalent experience, skill, and expertise as the lawyers at Schlichter, Bogard & Denton, I filtered the survey for firms in the top 100 of the National Law Journal 500 that were also located in the major legal markets in the United States (New York, Washington, D.C., Chicago, and San Francisco Bay Area). In the charts above, any rates information followed by an asterisk is not an average, as it represents one rate for one attorney. Attached hereto as Exhibit 5 is a PDF of the Microsoft Excel data for the firms listed above. 73. As of December 2015, O’Melveny, the firm which represented Defendants in this case, billed clients for first-year associates at rates of up to $450 per hour. Attached hereto as Exhibit 6 is a December 2015 Legal Billing Report by Thompson Reuters. A fourth-year

15 Opposing counsel in Cunningham v. Cornell Univ., 16-6525, 2019 WL 4735876 (S.D.N.Y. Sep. 27, 2019).

24 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 25 of 83

associate at Gibson Dunn billed clients at a rate of $625 per hour. Id. Taking the requested fee, $6,032,730 and dividing by the total hours in his matter, 10,585, the requested hourly rate by Schlichter Bogard and Denton equals $569.93 per hour. This is equivalent to defendant MIT’s counsel billing the entire case at a current second or third-year associate rate. Second and third- year associates at large firms engage in tasks such as document review and other matters that are generally handled by staff attorneys at sophisticated plaintiffs’ firms. In my experience, any large defense firm would never have taken the case for such a rate. 74. In December 2014, the National Law Journal reported that Jenner & Block attorneys billed clients from $380 to $925 per hour. St. Louis-based firms Husch Blackwell and Bryan Cave’s hourly rates were in line with these national rates. Id. Boston based firms Nixon Peabody, Foley Hoag, Edwards Wildman Palmer (n/k/a Locke Lord LLP), Bingham McCutchen (no longer in existence, many attorneys joined Morgan Lewis), and Brown Rudnick were also in line with these rates. Attached hereto as Exhibit 7 is a December 2014 National Law Journal Legal Billing Report. THE REQUESTED FEE IS LESS THAN THE LODESTAR 75. Class Counsel requests that the Court award attorneys’ fees of $6,032,730, which

represents a 0.97 lodestar multiplier. Class Counsel devoted 9,094.60 hours of attorney time and 1,490.4 hours of non-attorney time on this matter over three-years to bring this case to an $18.1 million settlement on the eve of trial. Multipliers are commonly awarded for risk and delay.

Here, there is no enhancement for the risk of the contingent agreement, and nothing is included for the firm’s work going forward. 76. In my opinion, this is a case in which the First Circuit’s 25% of common fund attorneys’ fee benchmark should not stand in the way of the fully compensatory one-third of the common fund attorneys’ fee that Schlichter, Bogard and Denton seeks, given the risk of the litigation and large outlay of funds, and especially the outstanding monetary and plan reform results achieved by the settlement and the firm’s exceptional skill. Cf. Perdue v. Kenny A, 559 U.S. 542 (2010) (plaintiffs’ statutory attorneys’ fees may be enhanced for extraordinary quality

25 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 26 of 83 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 27 of 83

Sanford Jay Rosen

101 Mission Street, Sixth Floor T: (415) 433-6830 San Francisco, California 94105-1738 F: (415) 433-7104 E: [email protected]

PRESENT: Founding Partner in a firm of twenty-one lawyers specializing in complex litigation.

LAW PRACTICE: My experience includes a wide variety of civil work for plaintiffs and defendants, including class actions and criminal defense work. I have secured many judgments and settlements of over a million dollars.

I have presented oral argument in the U.S. Supreme Court in five cases, in the U.S. Courts of Appeals for nine of the Circuits more than 30 occasions (more than half of which have been in the Ninth Circuit), and before the California Supreme Court and Courts of Appeal more than 10 times. I have briefed many more appeals for parties and for amici curiae.

I have tried numerous civil cases to jury and bench in federal district courts in California, Colorado, New York, Ohio and Virginia, and in California state courts; misdemeanors in Maryland state courts; and arbitrations and special proceedings in California, Hawaii and the Commonwealth of the Northern Mariana Islands.

I also represent parties in management and office employment contract negotiations and work as an expert witness, arbitrator, mediator, early neutral evaluator and special master.

BAR ADMISSIONS: 1. Connecticut (August 14, 1962) (inactive), District of Columbia (November 30, 1973) (inactive), California (December 18, 1974) 2. Supreme Court of the United States (March 1, 1966) 3. U.S.C.A.’s for all of the Circuits, except the First and Eleventh Circuits 4. U.S.D.C.’s: N.D. Cal., E.D. Cal., C.D. Cal., N. D. Ohio, D. Md., D. Conn., S.D.N.Y. BAR ASSOCIATIONS (PARTIAL LIST): 1. California State Bar 4. American Bar Association 2. Bar Association of San Francisco 5. American Association for Justice 3. District of Columbia Bar Association 6. Consumer Lawyers of California EDUCATION: Cornell University, A.B., 1959; Yale Law School, L.L.B., 1962.

[253094.8]

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BIOGRAPHICAL LISTING AND RATINGS: 1. Martindale Hubbell; A-V rating 2. Northern California Super Lawyers (general civil litigation)(2004–2019) 3. The Best Lawyers in America, in Appellate Practice (2013–2019) 4. Lawdragon 500 Leading Plaintiff Employment Lawyers (2018-2019) HONORS: 1. Council on Legal Education 4. Prisoner’s Union’s Free Person Opportunity (CLEO) Edge Founders Honoree, 1993 Award 2018 5. Legal Services Honoree, MALDEF, 2. CLEO Diversity Pioneer Honoree, 1987 2008 6. Bouton Law Lecturer, Princeton 3. NAACP LDF Cooperating Attorney University, 1971 Honoree, 1995 PAST LEGAL EMPLOYMENT: 1. Principal, Rosen & Associates, 1990. 2. Partner, Rosen & Phillips, 1986 to 1989. 3. Principal, Law Offices of Sanford Jay Rosen, 1982 to 1985. 4. Partner, Rosen, Remcho & Henderson (after 1980, Rosen & Remcho), 1976 to 1982. 5. Legal Director, MALDEF, 1973 to 1975. 6. Assistant Legal Director, ACLU (National Office), 1971 to 1973; Special counsel, May through August 1970 and 1975 to 1983 (Kent State Litigation Project). 7. University of Texas at Austin, Visiting Professor of Law, 1970 to 1971. 8. Associate Director, Council on Legal Education Opportunity, 1969 to 1970. 9. School of Law, University of Maryland, 1963 to 1971: (a) Assistant Professor, 1963 to 1966; (b) Associate Professor, 1966 to 1969 (tenured); (c) Professor, 1969 to 1971 (tenured). 10. Law Clerk, Chief Judge Simon E. Sobeloff, U.S.C.A. for the 4th Circuit, 1962 to 1963. ALTERNATIVE DISPUTE RESOLUTION ACTIVITIES: 1. American Arbitration Association National Employment, Labor, Employee Benefits and Commercial Dispute Resolution Panels. 2. Labor Management Relations Arbitrator, since 1965: (a) American Arbitration Association; (b) in the past on other specific panels and the Federal Mediation and Conciliation Service for more than 40 years. 3. Early Neutral Evaluator, U.S.D.C., N.D. Cal., since 1987. 4. Mediator, U.S.D.C., N.D. Cal., since 1993. 5. Acting Monitor, U.S.D.C., N.D. Cal., San Francisco Firefighters Case, 1989. 6. Mediator, Cal. Court of Appeal, 1st Dist., 2004-2013. 7. Pro Tem Judge, Superior Court, City and County of San Francisco, 1990-2018. 8. Ad hoc Admin. Law Officer, California’s Agricultural Labor Relations Board, 1975-80. 9. Member Dalkon Shield damages arbitration panel for Northern California, 1991 to 1993.

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GOVERNMENT BOARDS: 1. Member, Baltimore, MD Community Relations Commission, 1966 to 1969. 2. Member, State of Maryland’s Patuxent Institution Board of Review (a prison parole board), the Patuxent’s Advisory Board and its Board of Governors, 1967 to 1969. 3. Member, Mayor of Baltimore’s Committee on Administration of Criminal Justice Under Emergency Conditions, 1968. 4. Member, National Advisory Committee [of the U.S. HEW] project to draft a uniform Child Abuse and Neglect Law, 1974 to 1975. SELECTED ADDITIONAL PROFESSIONAL ACTIVITIES: 1. Attorney Delegate from the U.S. D.C. N.D. Cal. to the 9th Circuit Judicial Conference, 1996 to 1998. 2. Permanent Member, Fourth Circuit Judicial Conference, since 1967 now emeritus. 3. Member, ABA Litigation Section’s Committee to Study Rule 11, 1986 to 1989. 4. Co-chairperson and/or Faculty Member, Practicing Law (PLI) Institute programs on Civil Litigation, Federal Civil Rights Litigation, and/or Attorneys’ Fees, 1976 to 1989; Faculty in other federal practice and attorneys’ fees programs--most recently in 2004. 5. Faculty, California’s Continuing Education of the Bar (CEB), Federal Litigation Program, 1986; Fundamentals of Civil Litigation Before Trial, 1988; (Chair) Litigating Civil Rights Cases in Federal and State Court, 1989, 1992, 1995 and 1996. 6. Faculty, Georgetown University Law Center’s CLE § 1983 Civil Rights Litigation Program, 1993. 7. Faculty, ATLA’s Civil Rights Section Civil Rights CLE Program, 1992 and 1993 (Moderator), 1996, 1998; Employment Rights Section CLE Program Faculty, 1999; Civil Rights Section and Minority Caucus CLE, 2003. 8. Treasurer, Exec. Committee and Chair of Education Committee of ATLA’s Civil Rights Section, 1992 to 1993; 1993 to 1994; Civil Rights Newsletter Editor, 1994 to 1999; Member, Constitutional Litigation Committee, 1996. 9. Faculty, California Employment Lawyers Association CLE Program, 1999. 10. Faculty, Los Angeles Consumer Lawyers CLE Program, 2001. 11. Faculty, California State Bar Labor Section CLE, 2002. 12. Faculty, Lorman CLE on Police Misconduct and Institutional Reform in California, 2005. PUBLICATIONS: 1. Fair Representation, Contract Breach and Fiduciary Obligations, 15 HASTINGS L.J. 391 (1964). 2. The Individual Worker in Grievance Arbitration, 24 MD. L. REV. 233 (1964). 3. The Law and Racial Discrimination in Employment, 53 CAL. L. REV. 279 (1965); revised and reprinted in EMPLOYMENT, RACE AND POVERTY (Ross & Hill eds., Harcourt, Brace and World 1966); CORPORATE COUNSEL’S ANNUAL 1966 (Matthew Bender & Co. 1966). 4. Review of Marshall, The Negro and Organized Labor, 75 Yale L.J. 682 (1966). 5. Division of Authority Under Title VII of the Civil Rights Act of 1964: A Preliminary Study in Federal-State and Interagency Relations, 34 GEO. WASH. L. REV. 846 (1966).

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6. Contemporary Winds and Currents in Criminal Law, With Special Reference to Constitutional Criminal Procedure, 27 MD. L. REV. 103 (1967), revised and reprinted in SOURCEBOOK FOR PROSECUTORS (PLI 1969). 7. Review of Sovern, Legal Restraints on Racial Discrimination in Employment, 81 HARV. L. REV. 276 (1967). 8. Preemption and Exemption Under the National Labor Relations Act: Myths, Long Standing Questions and Recent Developments, 21 N.Y.U. ANN. CONF. ON LAB. 243 (1969). 9. Civil Disobedience and Other Such Techniques: Law Making Through Law Breaking, 37 GEO. WASH. L. REV. 435 (1969). 10. Co-author of Comment on Powell v. McCormack, 17 U.C.L.A. L. REV. 58 (1969). 11. Equalizing Access to Legal Education: Special Programs for Law Students Not Admissible by Ordinary Criteria, 1970 TOLEDO L. REV. 321 (1970). 12. The Greening of the Scranton Commission: Campus Unrest and Change in America, 71 COLUM. L. REV. 1120 (1971); 57 AAUP BUL. 506 (Dec. 1971). 13. Co-author of Your Rights Before the Grand Jury, ACLU Pamphlet (Feb. 1972). 14. Co-author of Your Right to Government Information, ACLU Pamphlet (Feb. 1973). 15. Review of several books on Treason, 51 TEX. L. REV. 817 (1973). 16. Judge Sobeloff’s Public School Race Segregation Decisions, 34 MD. L. REV. 498 (1974) 17. Co-author of State and Local Regulation of Religious Solicitation of Funds: A Constitutional Perspective, 446 ANNALS 166 (Nov. 1979). 18. The Legal Battle: Finishing Unfinished Business, in KENT STATE/MAY 4: ECHOES THROUGH A DECADE (Scott L. Bills ed.,1982). 19. Seeking Environmental Justice For Minorities and Poor People (with Tom Nolan), TRIAL MAGAZINE, Dec. 1994. 20. Defeating Efforts to Delay Section 1983 cases, TRIAL MAGAZINE, Aug. 1999. 21. Acknowledging a Military Wrong, TRIAL MAGAZINE, Apr. 2001. 22. A Strike Against Qualified Immunity, co-authored with Geri Lyn Green, THE RECORDER, October 1, 2010 23. Attorneys’ Fees, Costs and Interest (with Michael Freedman), in CALIFORNIA EDUCATION OF THE BAR (CEB) EMPLOYMENT LAW PRACTICE GUIDE (Spring 2012). 24. Seeking Justice in Their Memory – Victims of the Kent State Shootings, THE RECORDER, May 4, 2012 25. Online Bickel symposium: How I spent my summer of 1961, SCOTUSblog (Aug. 17, 2012, 12:56 P.M.), available at http://www.scotusblog.com/2012/08/online-bickel- symposium-how-i-spent-mysummer-of-1961/. 26. Same Sex Marriage: The Time Has Come, THE RECORDER, June 28, 2013 27. The Rights of Transgender Prisoners, DAILY JOURNAL, June 17, 2015 28. SF Jail Housing Policy a Big Step, DAILY JOURNAL, Sept. 21, 2015 29. Toward a More Perfect Union: Restoring Felons Who Have Served Their Time to Full Citizenship, co-authored with Jeffrey Bornstein, DAILY JOURNAL, May 10, 2016 30. Have You Actually Read the Directive on Use of Restrooms by Transgender Students?, DAILY JOURNAL, May 19, 2016 31. Anti-discrimination laws in jeopardy across the board, DAILY JOURNAL, Sept. 25, 2017 32. NIFLA v Becerra: folly, fallout and follow-up, DAILY JOURNAL, July 3, 2018

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33. New Justices and shifting public opinion make Title VII cases hard to predict, Daily Journal, May 7, 2019 34. The increasing positioning and politicizing of federal courts, Daily Journal, Feb. 23, 2020 35. Column on overturned conviction is wrong on the facts and the law, Daily Journal, March 3, 2020 36. Numerous articles in the Huffington Post, available at https://www.huffingtonpost.com/sanford-jay-rosen. or https://rbgg.com/attorneys/partners/sanford-jay-rosen/ 37. Additional reviews and essays in the Boston College Industrial and Labor Relations Review; the Brooklyn, California Western, George Washington, Maryland (2) and Pennsylvania Law Reviews; The Journal of Legal Education; The Law Library Journal; The Maryland Law Forum (2); The Cornell Industrial and Labor Relations Review; The Baltimore Sun (2); Patterns of Prejudice (2); Civil Liberties (4); and the Kent Left Studies/Left Review. 38. Numerous print and outline articles on federal and state civil practice and procedure subjects, on attorneys’ fees, and on employment and civil rights litigation, commencing 1976, up to the present, for the Practicing Law Institute, California’s CEB, ATLA (now AAJ), the Georgetown Law Center, the California State Bar Employment Section and other CLE provider organizations. 39. With annual updates, “Attorney Fees, Costs and Remedies,” Co-Author with Michael Freedman of Chapter in Employment Damages and Remedies, California Continuing Education of the Bar, 2012 40. Public lectures at Princeton University, the University of Texas (Austin), Kent State University and Emerson College; panel and other presentations at the Yale Law School. 41. Testimony to congressional committees. 42. Author and editor of comprehensive set of materials to guide appointed counsel for indigent prisoners in cases filed under 42 U.S.C. § 1983 for the U.S.D.C., N.D. Cal. (1988; 2nd ed. 1990; 3rd ed. 1992; and 4th ed. (for both the N.D and the E.D.) 1996). SELECTED CASES: U.S. Supreme Court: My first Supreme Court argument was in Whitehill v. Elkins, 389 U.S. 54 (1967), in which the Supreme Court declared most of Maryland’s loyal-security statute unconstitutional, overruling its previous decision sustaining that law. The four other cases I briefed and argued in the Supreme Court of the United States are: Connell v. Higginbotham, 403 U.S. 207 (1971) (in which the Court recognized due process rights of non-tenured public employees); Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972) (which the Court dismissed as unripe); Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974) (in which for the first time the Court applied full blown First Amendment standards to declare unconstitutional a civil disability as opposed to a criminal sanction); and Collins v. City of Harker Heights, 503 U.S. 115 (1992) (in which the Court significantly clarified the elements and liability standards for many 42 U.S.C. § 1983 claims and for municipal liability in § 1983 actions). I also have prepared petitions, briefs and motions in numerous other Supreme Court cases. Other Appeals: Among the other appeals in which I have been lead counsel and won are: (1) Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, 676 F.3d 1354 (Fed. Cir. 2012), reversing district court orders to hold that equitable tolling extends time to file an actual fraud

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Sanford Jay Rosen – Page 6 claim and damages not cut off as a matter of law upon granting of a reissue patent; (2) Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010), affirming the power of a federal district court to order monitoring to ensure publisher’s First Amendment rights to send books and magazines into state institutions; (3) Mayfield v. Woodford, 270 F.3rd 915 (9th Cir. 2001) (en banc). I have been representing Demetrie Mayfield for more than 30 years. Starting in the mid- 1980’s, I was appointed to represent Mr. Mayfield in his appeal to the California Supreme Court and in his state habeas corpus evidentiary hearing. We were unsuccessful in the California Supreme Court, and other attorneys were appointed to represent Mr. Mayfield in the federal courts. We submitted a brief amicus curiae in the Ninth Circuit supporting reversal of Demetrie Mayfield’s conviction and death sentence. My colleagues and I developed most of the record on basis of which the Ninth Circuit then vacated his death sentence and sent the case back to the California state courts for retrial as to penalty. Subsequently Mr. Mayfield was sentenced to life without the possibility of parole. In 2018 I submitted a clemency application for Mr. Mayfield to California Governor Jerry Brown. He granted that application on December 24, 2018, making Mr. Mayfield eligible for possible parole; (4) Davis v. California Department of Corrections (Oct. 31, 1997, Cal. Ct. App. A076411), upholding in unpublished opinion multimillion dollar fee award under the Unruh Act, including a 1.25 multiplier; (5) Holland v. Roeser, 37 F.3d 501 (9th Cir. 1994), holding that Rule 68 Offers of Judgment do not cut off fees for making a subsequent fee application unless the offer is unambiguous on the issue (I prepared only the successful Petition for Rehearing/Suggestion of Rehearing en Banc that caused the panel to reverse itself); (6) four appeals (one unreported) in Gates v. Deukmejian, including 987 F.2d 1392 (9th Cir. 1993), 39 F.3d 1439 (9th Cir. 1994) and 60 F.3d 525 (9th Cir. 1995), a prison conditions case; (7) Rebney v. Wells Fargo Bank, 232 Cal. App. 3d 1344 (1991), a consumer class action attorney fee matter; (8) Lucas Valley Home Owners Ass’n v. County of Marin, 233 Cal. App. 3d 130 (1991), involving the validity under zoning law and constitutional law of a conditional use permit issued to a synagogue, the real-party-in-interest Chabad of Marin; (9) eight appeals in Toussaint v. Gomez, including 926 F.2d 800 (9th Cir. 1990), 826 F.2d 901 (9th Cir. 1987) and 801 F.2d 1080 (9th Cir. 1986), a prison conditions case; (10) two appeals in EEOC v. Pan American World Airways, Inc., 796 F.2d 314 (9th Cir. 1986) and 897 F.2d 1499 (9th Cir. 1990), concerning two appeals -- one involving the appeal ability of a decision rejecting on grounds of inadequacy a settlement sponsored by the EEOC that my clients opposed, and the other affirming adoption of the nearly $20 million settlement of this federal Age Discrimination in Employment case that I crafted after a two-month long jury trial; (11) People v. Mroczko, 35 Cal.3d 86 (1984), in which the California Supreme Court unanimously reversed my client’s capital conviction for murder in a decision establishing the rule in California that each indigent criminal defendant presumptively must be represented by his own appointed attorney; (12) several appeals arising out of the May 4, 1970 shooting of students at Kent State University, including 671 F.2d 212 (6th Cir. 1982) and 570 F.2d 563 (6th Cir. 1977), the civil rights- wrongful death and bodily injury cases I successfully appealed, retried and settled; (13) Familias Unidas v. Briscoe, 544 F.2d 182 (5th Cir. 1976), an appeal overturning discovery sanctions and the First Amendment in a case involving a Texas statute that required disclosure of a civil rights organization’s membership list; (14) Marin City Council v. Marin County Redevelopment Agency, 416 F. Supp. 707 (N.D. Cal. 1976), involving a complex case where the court rejected a claim that HUD and a developer (my client) had provided insufficient federally assisted low-cost housing in a Marin County housing development. The decision was affirmed by the Ninth

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Circuit in an unpublished opinion; (15) Evergreen v. Foundation Films, Inc. v. Davis, where I succeeded before the Ninth Circuit on an expedited appeal involving the motion picture rights to Dee Brown’s BURY MY HEART AT WOUNDED KNEE; (16) Vinyl Products Inc. v. Armstrong Asphalt, in which the California Court of Appeal reversed a JNOV in a negligence and breach of warranty case in an unpublished decision; (17) United States v. Hawthorne, 370 F.2d 330 (4th Cir. 1966), which constitutional narrowed the scope of the 1961 Federal Criminal Travel Act on constitutional grounds. I participated in the briefing of Weeks v. Baker & McKenzie, 63 Cal. App. 4th 1128 (1998) (sexual harassment case); Greene v. Dillingham Construction NA, 101 Cal. App. 4th 418 (2002) (attorneys’ fees appeal); and Gober v. Ralphs Grocery Company, 128 Cal. App. 4th 648 (2005), 137 Cal. App. 4th 204 (2006), and No. D050962 (Cal. App. 4th Dist., Sept. 30, 2008) (unpublished) (punitive damages and attorneys’ fees in sexual harassment case). Three-Judge District Court: I won summary judgment motions for plaintiffs before three-judge district courts in the District of Columbia. Williams v. Blount, 314 F. Supp. 1356 (D.D.C. 1970), declared censorship of Williams’ newspaper violated procedural due process of law. Hiss v. Hampton, 338 F. Supp. 1141 (D.D.C. 1972), declared the “Hiss Act,” which denied Alger Hiss and others their U.S. government service annuities, an unconstitutional ex post facto law. Amicus Curiae Briefing: Counsel of Record on an amicus curiae brief in Perdue v. Kenny A, 559 U.S. __, 130 S. Ct. 1662 (2010), in which the Supreme Court held that civil rights plaintiffs’ attorneys fees can be enhanced for quality of representation and results. Lead counsel on an amicus curiae brief in the California Supreme Court in County of Santa Clara v. Superior Court (Atlantic Richfield), 50 Cal.4th 35 (2010), in which the Court held that public entities can retain private contingent fee lawyers in public nuisance cases. Lead counsel on an amicus curiae brief in Ibrahim v. Department of Homeland Security, 669 F.3d 983 (9th Cir. 2012), in which the Court held that plaintiff could challenge her inclusion on watch and no fly lists. Lead counsel on amici curiae briefs in support of California SB 1172, which prohibits sexual reorientation “therapy” to minors in Welch v. Brown, and Pickup v. Brown,728 F.3d 1042 (9th Cir. 2013), and in support of New Jersey’s similar law in King v. New Jersey, 767 F.3d 216 (3rd Circ. 2014). Counsel of Record on amici curiae briefs in Hollingsworth v. Perry, 570 U.S. 693 (2013), challenging California Proposition 8’s ban of same-sex marriages, and on an amici curiae brief in United States v. Windsor, 570 U.S. 744 (2013), challenging the federal “Defense of Marriage Act.” Amici curiae brief in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (June 26, 2016) on behalf of the National Center for Lesbian Rights (NCLR) and a coalition of 13 other LGBT racial justice, and health equity organizations asking the U.S. Supreme Court to strike down draconian restrictions on abortion providers enacted by the State of Texas in 2013, amici curiae brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018), on behalf of former U.S. Representative Tony Coelho, a principal author of the ADA, and a coalition of ten disability rights organizations, amici curiae brief in NIFLA v. Becerra, 585 U.S. ___ (2018) on behalf of several California and national advocacy organizations, Amici Curiae Brief on Behalf of LGBT Bar Associations in Bostock v. Clayton County, Georgia, No. 17-168; Altitude Express, Inc. v. Zarda, No. 17-1623; and R.G. & G.R. Harris Funeral Homes, Inc. v. E.E.O.C., No., 18-107.

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MATERIALS CONSIDERED

In addition to the materials identified in this declaration, I also considered the following:

Tracey et. al. v. The Massachusetts Institute of Technology et al. case documents: • Second Amended Complaint • Settlement Agreement • Memorandum in Support of Unopposed Motion for Preliminary Approval of Class Settlement • Case Docket Sheet

Representative Schlichter, Bogard and Denton case filings:

• Bell, et al. v. Ath Holding Company, LLC, et al., No. 15-2602 (S.D. Ind.) o Memo in Opposition of Defendants’ Motion to Dismiss o Memo in Support of Plaintiffs’ Motion for Class Cert o Order on Motion to Dismiss o Reply in Support of Plaintiffs’ Motion for Class Certification

• Gordan, et al. v. Massachusetts Mutual Life Insurance Co., et al., No. 13-30184 (D. Mass.) o Order granting Motion for Attorneys’ Fees and Costs o Memorandum in Support of Plaintiffs’ Motion for Attorneys’ Fees, Reimbursement of Expenses, and Case Contribution Awards

• In re Northrop Grumman Corporation ERISA Litigation, No. 06-6213 (C.D. Cal.) o Memorandum in Support of Motion for Class Certification o Order Granting Joint Stipulation re Class Cert Hearing

• Krueger, et al. v. Ameriprise Financial, Inc., et al., No. 11-2781 (D. Minn.) o Memorandum in Support of Motion to Certify Class Action o Order on Class Certification o Order on Motion to Dismiss Granted in Part Denied in Part o Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion to Dismiss o Reply in Support of Class Certification

• Kruger, et al. v. Novant Health, Inc., et al., No. 14-208 (M.D. N.C.) o Opposition to Motion to Dismiss o Order Denying Defendants’ Motion to Dismiss o Order Granting Motion for Attorneys’ Fees o Declaration of Jerome Schlichter in Support of Motion for Class Certification o Declaration of Karen Ferguson in Support of Motion for Attorneys’ Fees o Declaration of Thomas Theado in Support of Motion for Attorneys’ Fees

• Ramsey, et al. v. Philips North America LLC, No. 18-1099 (S.D. Ill.) o Complaint

Exhibit 2 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 35 of 83

o Settlement Agreement o Joint Motion for Preliminary Approval and Brief in Support o Motion for Class Certification and Brief in Support o Preliminary Approval Order o Case Docket Sheet

• Spano, et al. v. Boeing Company, et al., No. 09-3001 (7th Cir.) o Appellees’ Brief

• Spano, et al. v. Boeing Company, et al., No. 06-743 (S.D. Ill.) o Memorandum and Order granting Motion for Attorneys’ Fees and Costs

• Tibble, et al. v. Edison International, et al., No. 07-5359 (C.D. Cal.) o Findings of Fact and Conclusions of Law o Plaintiffs’ Trial Brief

• Tibble, et al. v. Edison International, et al., No. 10-56406 (9th Cir.) o Appellants’ 3rd Brief on Cross o Appellees’ Cross Appellants 2nd Brief Cross Appeal o Plaintiffs’ Appeal o Reply Brief of Appellants’ o Supplemental Brief of Appellants

• Tibble, et al. v. Edison International, et al., No. 11-56628 (9th Cir.) o Appellants’ Brief o Appellants’ Reply Brief

• Tibble, et al. v. Edison International, et al., No. 13-550 (S. Ct.) o Supreme Court Brief

• Troudt, et al. v. Oracle Corporation, et al., No. 16-00175 (D. Colo.) o Order Granting in Part Motion for Class Certification o Order Overruling Objections and Adopting Recommendation o Plaintiffs’ Motion to Certify Class and Memo in Support o Plaintiffs’ Response to Defendants' Superseding Motion to Dismiss the Complaint o Reply in Support of Motion for Class Certification

• Tussey, et al. v. ABB, Inc., et al., No. 06-4305 (W.D. Mo.) o Order and Judgment

• Tussey, et al. v. ABB, Inc., et al., No. 12-2056 (8th Cir.) o Appellees’ Brief

• Waldbuesser, et al. v. Northrop Grumman Corp, et al., No. 06-6213 (C.D. Cal.) o Order granting Motion for Attorneys’ Fees and Costs o Plaintiffs’ Proposed Findings of Fact and Conclusions of Law 2

Exhibit 2 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 36 of 83

CounselLink®

Enterprise Legal Management Trends Report UPDATE ON THE KEY METRICS 6 SEPTEMBER 2019

Exhibit 3 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 37 of 83

CounselLink Enterprise Legal Management Trends Report

SEPTEMBER 2019 Update on the Six Key Metrics

Executive Highlights

Insights are based on data derived from over $33 billion in legal spending, almost seven million invoices, and approximately 1.7 million matters processed through the CounselLink platform. The key metrics are based on 2018 and 2019 charges billed by outside counsel.

USE OF ALTERNATIVE FEE ARRANGEMENTS (AFAS) HAS INCREASED Relative to prior reports, AFAs are rising. The percentage of matters that include a non-hourly billing component has increased from 9.2% in 2017 to 12.2%. In addition, the percentage of dollars billed under an AFA increased from 7.4% to 8.3%.

HOURLY RATES AT LARGEST FIRMS HAVE INCREASED THE MOST The gap between the average partner rates at the “Largest 50” firms (those with Highlights 750+ lawyers) and those at the “Second Largest” firms (501-750 lawyers) has continued to widen since our last report. Firms with more than 750 lawyers have billable rates that are 53% higher than the next tier of firms (501-750 lawyers). This compares to a 45% gap reported in 2017, and a 40% gap in 2016.

HIGH RATE WORK IS DOMINATED BY THE “LARGEST 50” FIRMS The largest firms were responsible for 74% of the billings generated by Mergers and Acquisitions transactions in the period, 58% of Finance, Loans, and Investment work, 55% of Corporate, General, Tax work, and 52% of Regulatory and Compliance work. Combining these types of matters, the largest firms had a 57% share of the work in the current period compared to a 50% share in 2016.

THE LAW FIRM CONSOLIDATION TREND HAS STABILIZED 61% of companies in the data pool have 10 firms or fewer accounting for at least 80% of outside counsel fees. In prior reports 60% and 62% of companies were highly consolidated. Executive

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Introduction

The first edition of the CounselLink Enterprise Legal Management Trends Report was published in October 2013. That report established a set of key metrics based on data available via the CounselLink Enterprise Legal Management platform and provided insights that corporate law departments and law firms could use to guide their decisions and subsequent actions. With the volume of data available for analysis growing with each passing year, the 2019 edition of the Trends Report represents the most up-to-date and even more detailed picture of how legal market dynamics are evolving over time. As always, information about the methodologies used, definitions, and expert contributors conducting the analysis are presented at the end of the report.

TABLE OF CONTENTS

3 Introduction

4 The Key Metrics

5 #1: Blended Hourly Rate for Matters – by Practice Area

7 #2: Law Firm Consolidation - Number of Legal Vendors Used by Corporations

8 #3a: Alternative Fee Arrangement (AFA) Usage – Matters

9 #3b: Alternative Fee Arrangement (AFA) Usage – Billings

10 #4: Partner Hourly Rate – Overall

11 #5a: Partner Hourly Rate Growth – by City

12 #5b: Partner Hourly Rate Growth – by State

13 #6a: Partner Hourly Rate – by Practice Area

14 #6b: Partner Hourly Rate Growth – by Practice Area

15 About the Trends Report

16 Expert Contributor

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Each annual update of the CounselLink Enterprise Update on the Legal Management Trends Report covers a standard set of key metrics related to hourly legal rates and six key metrics the corporate procurement of legal services.

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Key Metric 1 Blended Hourly Rate for Matters – by Practice Area BLENDED HOURLY RATES AND RATE VOLATILITY DIFFER BY TYPE OF WORK Based on 12 months data ending April 30, 2019 Practice areas ordered by median blended matter rates

Blended matter hourly rate metrics Timekeeper rate metrics 10th - 90th Percentile Range Partner - Median Median Associate - Median

$900 25th - 75th Percentile Range Paralegal - Median

$800

$700

$600

$500

$400

$300

$200

$100

0 General Insurance IP- Patent IP- and Labor Litigation- Corporate, Real Estate Real Compliance Commercial Acquisitions General, Tax General, Employment Mergers and Mergers IP- Trademark IP- and Contracts Environmental Finance, Loans Loans Finance, Regulatory and Regulatory and Investments

Volatility 4 6 3 10 4 6 4 3 9 4 3 2 Rate Volatility is a calculated indicator of blended rate variability. Higher numbers suggest a better opportunity to negotiate rates and/or the assigned timekeeper mix.

See following page for guidance on interpreting this chart.

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Interpreting the Chart: The chart on page 5 captures median rates for three different groups of timekeepers (partners, associates, and paralegals) and the range of the blended average hourly rate across multiple matter types. As a guide to interpreting the output, consider IP-Trademark compared to Corporate, General, Tax. These two categories have somewhat similar median hourly partner rates – $552 and $500, respectively. Although the IP-Trademark partner rate is 10% higher than the Corporate, General, Tax partner rate, the blended median rate for IP-Trademark is considerably lower ($302) versus the same rate for Corporate, General, Tax ($410). An additional metric provided in this section is the Volatility Index – a calculated marker indicating the variability encountered in blended matter rates. Using a 10-point scale, the Index reflects how broad the spread is between the 25th and 75th percentiles of hourly rates. High volatility scores indicate greater variance in prices paid based on the mix of timekeepers and individual hourly rates. Although individual lawyer rates are the focus of considerable industry attention, it is equally, or arguably more important, to look at the bigger picture – the blended average rate of the different timekeepers that work on a matter. The chart shows that the median blended hourly rate is highest for Mergers and Acquisitions, where the most expensive firms are more often involved and with a great amount of partner engagement. Comparing Regulatory and Compliance to Insurance as an example, the spread between the 25th and 75th percentiles of blended hourly rates for Regulatory and Compliance work is broader than that for Insurance. On a 10-point scale, Regulatory and Compliance has a Volatility Index of 10, while Insurance has an index of two, indicating that the mix of timekeepers and rates paid on Regulatory and Compliance matters varies more significantly than the mix for Insurance. A high Volatility Index could also be an indicator of a wide variety of matter types being represented in this category. Eight matter types have a relatively low Volatility Index (4 or lower), which means rates are consistent and less subject to negotiations between corporations and their firms. • Employment and Labor • IP-Patent • Mergers and Acquisitions • Real Estate • Environmental • IP-Trademark • Litigation • Insurance

Rates across most practice areas are rising relative to prior reports, however, most notably for: • Mergers and Acquisitions • IP-Trademark • Finance, Loans and Investments

The overall trend of rates is down slightly for IP-Patent work. Legal departments can compare their own data against these rates and ranges for help in managing costs. If they are currently paying at the top end of the range for more volatile matter types, there may be an opportunity to negotiate lower rates or to request a different mix of timekeepers to reduce costs. Note, however, that when looking at trends, it is important to evaluate the entire range of rates rather than focusing solely on the median rate.

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Key Metric 2 Law Firm Consolidation – Number of Legal Vendors Used by Corporations 61% OF COMPANIES IN THE DATA POOL HAVE 10 FIRMS OR FEWER ACCOUNTING FOR AT LEAST 80% OF OUTSIDE COUNSEL FEES Based on 12 months data ending April 30, 2019

40%

35% 35%

30% 26%

25%

20%

% of companies % of 15%

10%

<20% 20-30% 30-40% 40-50% 50-60% 60-70% 70-80% 80-90% 90-100%

Degree of consolidation

Interpreting the Chart: This chart shows the degree of law firm consolidation among companies whose outside counsel legal billings are processed through CounselLink. The horizontal axis aligns participating companies into nine segments addressing different degrees of consolidation. For example, the bar on the far right indicates that 35% of participating companies have 90-100% of their legal billings with 10 or fewer vendors, representing the most consolidated legal departments. On the other hand, the far left bar shows the least consolidation, with 1% of companies having 20-30% of their legal billings with 10 or fewer firms. Industry type plays a significant role in consolidation. The segments noted below, reflecting high and low degrees of consolidation, were also identified as such in earlier Trends Reports: • Retail Trade companies at 67% and Manufacturing — Other companies, at 72%, are highly consolidated. • The Insurance industry has the lowest level of consolidation, at 39%. Overall, the percentages of corporations with high levels of law firm consolidation remained consistent since the last Trends Report.

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Key Metric Alternative Fee Arrangement (AFA) Usage 3A ALTERNATIVE FEE ARRANGEMENTS USED IN 12.2% OF MATTERS AND 8.3% OF BILLINGS IN THE PAST YEAR Based on 12 months data ending April 30, 2019

% OF MATTERS UTILIZING AFA

30%

25%

Average 20% 12.2%

15%

10%

General Insurance IP- Patent IP- and Labor Litigation- Litigation- Corporate, Real Estate Real Commercial Commercial Acquisitions General, Tax General, Compliance Employment Mergers and Mergers IP- Trademark IP- and Contracts Environmental Finance, Loans Loans Finance, Regulatory and Regulatory and Investments

Practice Area

The use of AFAs to govern legal service payments varies considerably by legal matter type. Commodity-type work included in the categories Insurance, IP-Patent, IP-Trademark, Employment and Labor, and Finance, Loans, and Investments usually have the highest volume of matters billed under AFAs. The percentage of matters billed under an AFA for the category Finance, Loans, and Investments has increased notably from the last Trends Report, with 28% now billed under an AFA. One other category, Employment and Labor, also has more than 20% of matters billed under an AFA.

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Key Metric Alternative Fee Arrangement (AFA) Usage 3B ALTERNATIVE FEE ARRANGEMENTS USED IN 12.2% OF MATTERS AND 8.3% OF BILLINGS IN THE PAST YEAR Based on 12 months data ending April 30, 2019

% OF BILLINGS EXECUTED UNDER AFA

30%

25%

20% Average 8.3% 15%

10%

Practice Area

Overall use of AFAs has increased relative to prior reports, with the percentage of matters billed under an AFA increasing from 9.2% in 2017 to 12.2%, and the percentage of billings executed under an AFA increased from 7.4% to 8.3%. As we have observed in previous Trends Reports, we are continuing to see high-cost matters, or portions of them, being billed under some form of an AFA.

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Key Metric 4 Partner Hourly Rate – Overall AVERAGE RATES ACROSS PRACTICE AREAS (EXCLUDING INSURANCE)

Based on 12 months data ending April 30, 2019

MEDIAN PARTNER HOURLY RATES BY LAW FIRM SIZE $250 $248 $295 $350 $375 $575 1-50 51-100 101-200 201-500 501-750 750+

Attorneys in firm

The gap between the average partner rates at the “Largest 50” firms (those with 750+ lawyers) and those at the “Second Largest” firms (501-750 lawyers) has continued to widen since our last report. Firms with more than 750 lawyers have billable rates that are 53% higher than the next tier of firms (501-750 lawyers). This compares to a 45% gap reported in 2017, and a 40% gap in 2016.

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Key Metric Partner Hourly Rate Growth – by City 5A 5 MAJOR CITIES SHOW RATE GROWTH OF 4.0% OR MORE BOTH OVER THE LAST YEAR AND OVER THE LAST 3 YEARS Based on 12 months data ending April 30, 2019

o 7.7% E C 4.7% o ELE 4.9%

C 5.7% o 5.2%

C 5.1%

CC o 4.9% o 4.7% C 5.4%

C 6.4%

ADDITIONAL GROWTH RATES ACROSS THE COUNTRY YOY Change 5% 3-Year CAGR

4% 4.0%

0 IL Chicago MA Boston TX Dallas GA Atlanta PA Philadelphia CA Angeles Los FL Miami TX Houston MN Minneapolis AZ Phoenix

Interpreting the Chart: In looking at unique partner hourly rates across 15 major metro areas, two indicators were plotted for each location to show both the year-over-year change and the compound annual growth rate (CAGR) over a three-year span. Data for attorney rate growth by major U.S. city show that Seattle, Detroit, San Francisco, Washington. D.C., and New York City are at or above 4.0% in both compound annual growth rate (CAGR) and annual growth rate. On the opposite side of the spectrum, two cities saw hourly rate growth below 3.0% in both metrics: Miami and Phoenix.

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Key Metric Partner Hourly Rate Growth – by State 5B GROWTH IN AVERAGE PARTNER RATES VARIES BY STATE, AVERAGING 3.3% YEAR OVER YEAR GROWTH Based on 12 months data ending April 30, 2019

6.20% 6.30% $250 median 5.90% $812 median Iowa $615 median New York Illinois 11.7% $654 median Delaware

GROWTH RATE > 4.0% 2.1% to 4.0% 0.0% to 2.0% < 0.0%

The average growth in partner rates across states has continued to increase in with average growth year over year of 3.3%, compared to 3.2% average growth in 2017 versus 2016.

2019 CounselLink Enterprise Legal Management | TRENDS REPORT 12 Exhibit 3 Commercial and Contracts

Commercial and Contracts Corporate, General, Tax

Corporate, General, Tax Employment and Labor

Employment and Labor Environmental

Environmental Finance, Loans and Investments

Finance, Loans Case 1:16-cv-11620-NMG Document and302-6 Investments Filed 03/27/20 Page 48 of 83 Insurance

Insurance IP-Patent

Key Metric Partner Hourly Rate – byIP-Patent Practice Area 6A Based on 12 months dataTM ending AprilIP-Trademark 30, 2019

TM IP-Trademark Litigation-General Commercial andCommercial Contracts and Contracts Litigation-General CommercialCommercialMergersCommercial and Acquisitions Mergers and Acquisitions andCorporate,andand Contracts Contracts Contracts General, Tax Corporate, General, Tax $706Mergers and Acquisitions Real Estate Corporate,EmploymentCorporate,Corporate, General, General, General, and Labor Tax Tax Tax Employment and Labor Corporate, General, Tax Real Estate $608Regulatory EmploymentEnvironmentalEmploymentEmployment and and and Labor Labor Labor Environmentaland Compliance Regulatory and Compliance Regulatory and Compliance EnvironmentalFinance,EnvironmentalCommercialEnvironmental Loans $593andFinance,and Investments Contracts Loans and Investments

Finance,Finance,Finance, Loans Loans Loans andInsuranceandCorporate,and Investments Investments Investments General, Tax Finance, Loans and Investments $583Insurance

InsuranceIP-PatentInsuranceEmploymentInsurance and Labor IP-Patent IP - Patent $539 IP-Patent TM IP-PatentIP-TrademarkEnvironmentalIP-Patent TM CommercialIP-Trademark and Contracts IP - Trademark Commercial $539andIP-Trademark Contracts TMTM IP-TrademarkLitigation-GeneralFinance,IP-Trademark Loans TM Litigation-General Commercialand Investments Corporate,and Contracts General, Tax Commercial and Contracts Corporate, General, Tax $500Litigation-GeneralMergersLitigation-GeneralLitigation-General andMergersInsurance Acquisitions and Acquisitions EmploymentEmploymentCorporate, and General, Laborand Labor Tax Employment and Labor $437MergersMergersMergers andRealandIP-Patentand Acquisitions AcquisitionsEstate Acquisitions EnvironmentalReal Estate EnvironmentalEmployment and Labor Environmental $426 Finance,RealRegulatoryRealIP-TrademarkReal Estate Estate LoansEstate TM andRegulatory Investments andFinance,Environmental Compliance Loans Real Estate $404andand Investments Compliance

InsuranceRegulatoryRegulatoryLitigation-GeneralRegulatory andand Compliance Compliance Finance,and Compliance Loans Litigation - General $367Insuranceand Investments IP-Patent $200Mergers Insurance and Acquisitions IP-PatentInsurance TM IP-Trademark

Real Estate Aggregate statistics based on CounselLink solution IP-Trademarkinvoice data submitted in the last 12 months TM Litigation-GeneralIP-Patent identify Mergers and Acquisition as the practice area with the highest partner rate - $706. Next is Corporate, General, Tax (including advice and counsel, Regulatoryantitrust work, and tax related matters), followed MergersLitigation-Generaland Compliance closely by Regulatory and Compliance andTM Finance, Loans,andIP-Trademark Acquisitions and Investments. In part, these practice areas at the top occupy those spaces because companies often use larger firms for these kinds of matters. In 2018

and 2019 to date, the “Largest 50” firms handled 74%RealMergersLitigation-General Estateof Merger and Acquisition work, 55% of Corporate, and Acquisitions General, Tax legal work, 52% of Regulatory and Compliance work, and 58% of Finance, Loans and Investment work. At the lower end of the average hourlyRegulatory rate spectrum is insurance work. Insurance andMergers Compliance companies demand and negotiate aggressively for lowRealand rates AcquisitionsEstate on their high volume defense matters.

RegulatoryReal Estate and Compliance 13 2019 CounselLink Enterprise Legal Management | TRENDS REPORT

Regulatory Exhibit 3 and Compliance Commercial and Contracts

Corporate, General, Tax

Employment and Labor

Environmental

Finance, Loans and Investments

Insurance Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 49 of 83

IP-Patent

Key Metric Partner Hourly Rate – by Practice Area 6B TM3 PRACTICE AREASIP-Trademark SHOWING 4% PARTNER RATE GROWTH BOTH OVER THE LAST YEAR AND OVER THE LAST 3 YEARS Based on 12 months data ending April 30, 2019 Litigation-General 4.0% Mergers Mergers and Acquisitions and Acquisitions

Commercial and Contracts Matter IP Patent categories with Real Estate

short- and Corporate,Corporate, General,General and TaxTax long-term

rate growth Finance, Loans and Investments Regulatory and ComplianceRegulatory >4.0% and Compliance

Commercial and Contracts IP-PatentIP Patent

Finance, LoansEmployment and Investments and LaborCorporate, General and Tax

Employment and LaborFinance, Loans and Investments

EnvironmentalCommercial and Contracts

Real Estate Employment and Labor

Matter IP–Trademark categories with short- and long-term Litigation - General rate growth

<2.5% Insurance

0 1% 2% 3% 4% 5% 6%

YOY Change 3 Year CAGR

Turning to partner rate growth by practice area, three of the 12 practice area categories have shown growth at or exceeding a 4.0% rate during the past year and over the previous three-year period: Mergers and Acquisitions, Corporate, General, Tax and IP-Patent. These same three practice groups stood out as having high rate growth in the prior Trends Report. Partner rates for Insurance are growing notably more slowly than rates in other practice areas.

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About the Enterprise Legal Management Trends Report

TERMINOLOGY: Matter Categorization – CounselLink solution users define the types of work associated with various matters that were analyzed and categorized into legal practice areas. For this analysis, all types of litigation matters are classified as “litigation,” regardless of the nature of the dispute.

Company Size – Based on revenue cited in public sources, companies were grouped into these three size categories: > $10 Billion Plus > $1-10 Billion > < $1 Billion

Company Industry – Companies were mapped into the NAICS hierarchy based on publicly available information: > Finance > Information > Insurance > Manufacturing > Pharmaceutical > Professional, Scientific and Technical Services > Retail Trade > Transportation and Warehousing > Other

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Since the inception of the CounselLink Enterprise Legal Management Trends Report, Kris Satkunas has been the principal author. She has made notable contributions to this latest Enterprise Legal Management Trends Report in the analysis of CounselLink data and in preparing the surrounding narrative.

Author KRIS SATKUNAS – DIRECTOR OF STRATEGIC CONSULTING

As Director of Strategic Consulting at LexisNexis CounselLink, Kris leads the CounselLink team in advising corporate legal department managers on improving operations with data-driven decisions. Kris is an expert in managing the business of law and in data mining, with specific expertise in matter pricing and staffing, practice area metrics and scorecards. Prior to joining CounselLink, Kris served as Director of the LexisNexis Redwood Think Tank, which she also established. For five years, Kris worked closely with thought leaders in large law firms conducting unbiased data-based research studies focused on finding solutions to legal industry management issues. Before that, she led the business of law consulting practice for large law firms. During that time she worked with key management at over a hundred law firms to improve the financial models and analyses developed for large law firms. Kris has authored numerous articles and spoken at many legal industry conferences and events. She came to LexisNexis in 2000 after having honed her finance skills as

Contributor a Senior Vice President in Strategic Finance at SunTrust Bank. She holds a B.B.A. in Finance from The College of William and Mary. Kris may be reached at [email protected]. Expert

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® CounselLink LexisNexis® CounselLink® is the leading cloud-based legal management solution designed to help corporate legal departments gain 100% visibility into all matters and invoices so they can control costs, maximize productivity, and make better decisions. For nearly 30 years, LexisNexis has been providing innovative solutions for corporate law departments – and we provide these solutions based on insight from thought leaders, industry expertise, and customer feedback. Here’s how CounselLink supports your legal department: • Financial Management improves the predictability of legal spend with complete visibility and oversight of every penny spent by the department. • Work Management helps you to collect, organize, track, audit, and report on all the work done within the legal department to increase productivity and drive better outcomes for your business. • Vendor Management strengthens your relationships with law firms while measuring their performance, so you can select the best mix for your needs. • Analytics provides you with full visibility over workloads and legal data analytics to make informed, data-driven decisions. If you have questions or comments about the CounselLink Enterprise Legal Management Trends Report or want to learn more about CounselLink software and services, visit CounselLink.com, or contact us via email: [email protected]. You may also contact us by phone: 855.974.7774. For media inquiries, please contact: [email protected].

Blog: www.businessoflawblog.com

Twitter: @LexisNexisLegal

Facebook “f” Logo CMYK / .ai Facebook “f” Logo CMYK / .ai Facebook: www.facebook.com/LexisNexisLegal

LinkedIn: LexisNexis Legal: www.linkedin.com/company/lexisnexislegal

17 2019 CounselLink Enterprise Legal Management | TRENDS REPORT Exhibit 3 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 53 of 83

CounselLink.com/Trends

LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., used under license. CounselLink is a registered trademark of LexisNexis, a division of RELX Inc. Other products or services may be trademarks or registered trademarks of their respective companies. Copyright © 2019 LexisNexis. All rights reserved. Exhibit 3 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 54 of 83

7/24/2018 The Legal Market Is Looking Up, Citi Q1 Survey Shows | The American Lawyer

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Page printed from: https://www.law.com/americanlawyer/2018/05/14/the-legal-market-is-looking-up-citi-q1-survey- shows/ The Legal Market Is Looking Up, Citi Q1 Survey Shows

The rst quarter of 2018 continued the growth trends experienced at the end of 2017 and leave a lot to look forward to for rms as they move further into the year. But volatility and stratication still lurk.

By David Altuna and Gretta Rusanow | May 14, 2018

Expense growth may have outpaced revenue growth for the law rm industry during the rst quarter, but there was plenty of good news about how 2018 began.

Demand growth surged in the industry in the fourth quarter of 2017 and much of this work was still in inventory as the year ended. In fact, 2018 began with the strongest inventory growth gures that we’ve published since 2007. Further, demand growth continued into the rst quarter of 2018, adding to those strong inventory levels. However, collections slowed, suggesting that rst quarter revenue growth could have been stronger, and perhaps outpaced expense growth.

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The good news is that the continued demand growth and slowing of collections has led to a further accumulation of inventory through the rst three months of the year, setting the industry up for a strong second quarter. That said, though the start of the year is promising, it is not equally promising for all rms. We continue to see broad dispersion in rm results. As has been the case for the past two years, large rms fared better than the rest of the industry in the rst three months of 2018.

These results are based on a sample of 179 rms (80 Am Law 100 rms, 47 Second Hundred rms and 52 niche/boutique rms). Thirty of these rms t our denition of either “international” (less than 25 percent but more than 10 percent of lawyers based outside the United States) or “global” (at least 25 percent of lawyers based outside the United States). Each quarter, the Law Firm Group condentially surveys rms in The Am Law 100 and the Second Hundred, along with smaller rms. In addition, we conduct a more detailed annual survey and semiannually produce the Law Firm Leaders Condence Index. These reports, together with extensive discussions with law rm leaders, provide a comprehensive overview of current nancial trends in the industry as well as forward-looking insight.

Revenue growth of 4.2 percent in the rst quarter of 2018 was driven by demand growth of 1.3 percent and lawyer billing rate growth of 4.8 percent. In the case of the demand growth, this was the strongest result we’ve published since the rst quarter of 2016, and in the case of lawyer billing rates this was the strongest result we’ve published since the rst quarter of 2008. The collection cycle, however, lengthened by 3.1 percent during the rst quarter, working counter to revenue growth, but contributing to inventory growth. In fact, inventory levels continued to accumulate during the quarter and on average are up 7.3 percent at quarter-end–the highest level we’ve seen since the rst quarter of 2008.

Expense growth of 4.8 percent exceeded revenue growth. It should be noted that following a year in which the dollar weakened, both expense growth and revenue growth would have been lifted by the foreign exchange eects of rms with foreign

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oces.

Broadly, lawyer compensation expense growth of 5.9 percent contributed more to the overall expense increase than operating expense growth of 3.8 percent. This was, at least in part, due to the growth in lawyer head count of 1.8 percent. As has been the case in recent years, this growth does not extend to the equity partnership and we actually nd that the size of the average partnership declined by 0.3 percent during the rst quarter, as the industry continues to carefully manage equity partner head count. As a result of both the growth in the industry and the slight decline in equity partners, we nd lawyer leverage increasing 2.9 percent. The good news is that the average rm was able to grow leverage without sacricing average lawyer productivity.

Behind these averages, we continue to see high levels of dispersion and volatility. Forty- seven percent of rms saw demand decline during the rst quarter of 2018. We also saw volatility in demand performance, dened as alternating periods of demand growth and decline. To measure volatility in demand performance, we looked at the 130 rms that reported rst-quarter results in 2016, 2017, and 2018. Approximately 42 percent of these rms either saw demand increase in the rst quarter of 2017 and decrease in the rst quarter of 2018, or vice versa. Further, 27 percent of rms saw demand decline in both periods. Whereas the majority of rms would have enjoyed consecutive periods of positive results in the high-growth market that preceded the recession, that result has now become the exception (31 percent of rms), while for the remainder of rms the best case scenario has been a more jagged path towards growth.

Looking at the results by revenue size, we nd that the Am Law 1-50 rms fared the best among the segments in the rst quarter. They were the only segment that saw demand increase (2.6 percent) and the only segment to see an improvement in lawyer productivity (0.2 percent). They also saw the second-greatest growth in revenue (5.3 percent) and the greatest growth in lawyer billing rates (5.0 percent).

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On the other hand, the Am Law 1-50 rms saw the greatest expense growth (6.5 percent) and, along with other Am Law segments, saw expense growth outpace revenue growth. Am Law 1-50 rms saw the greatest growth in lawyer FTE (2.9 percent) and this drove lawyer compensation expense higher, which in turn helps to explain their comparatively high expense growth. Inventory growth at these rms (10 percent) positions them well for the rest of the year.

Other rms saw greater revenue growth (5.5 percent) than the Am Law 1-50 rms, driven in large part by relatively strong rate growth (4.5 percent), but this was the only segment to accelerate collections (-2.3 percent) and they head into the second quarter with the second-lowest growth in inventory (3.1 percent). The Am Law 51-100 and Second Hundred rms saw comparatively lower levels of revenue growth (2.3 percent and 1.8 percent, respectively). These rms saw demand decline and did not achieve the levels of rate growth that the largest and smallest rms in our sample saw. Though they both saw the collection cycle lengthen, the Am Law 51-100 and Second Hundred rms saw inventory levels grow at similar paces to other rms.

Looking at rms by geographic reach, global rms outperformed the other segments in terms of revenue growth (8.0 percent), demand growth (2.4 percent), and lawyer billing rate growth (6.1 percent). Global rms also saw material growth in inventory (8.9 percent), despite seeing the smallest lengthening among the segments in their collection cycle (0.9 percent). Global rms also saw the greatest increase in expenses among the segments (9.8 percent).

All segments except national rms saw expense growth outpace revenue growth. International rms saw the lowest increase in revenue (2.9 percent) despite seeing the second-highest increase in demand (2.1 percent). This is largely due to the slowing of their collections (8.1 percent) and, as a result, these rms enter the second quarter with 11.2 percent growth in their inventory. National rms saw 3.8 percent growth in revenue. They saw demand increase 1 percent but it was coupled with the lowest billing rate increase among the segments (3.6 percent). These rms bring a 4.9 percent

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Exhibit 4 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 58 of 83

7/24/2018 The Legal Market Is Looking Up, Citi Q1 Survey Shows | The American Lawyer

inventory increase into the second quarter. Regional rms saw revenue increase 3.2 percent. While these rms saw billing rates increase at 4.9 percent, they struggled to add to demand and saw just 0.1 percent growth. These rms bring a 5.5 percent increase in inventory into the second quarter.

Though revenue growth trailed expense growth, this masks the strong economics during the rst three months of the year. Demand and billing rate growth through the rst quarter have been the strongest that we’ve published in years. The revenue tailwind provided by 2017’s strong year-end inventory levels has yet to catch in the sails of 2018, as collections slowed and inventory levels continued to accumulate, setting up the industry for a strong second quarter.

As rms focus on collections, we would expect to see stronger revenue results as we move through the rest of the year. While we would expect average industry revenue and PPEP growth levels to be in the mid-single-digits, wide dispersion in the results suggests that larger rms will see a better year than others in the market, and within any given segment, some rms will grow at the expense of others, driving further market consolidation.

David Altuna is a client advisor within Citi Private Bank’s Law Firm Group and Gretta Rusanow is Head of Advisory Services. Senior Client Advisor John Wilmouth contributed to the article.

The views expressed herein are for informational purposes only and are those of the author and do not necessarily reect the views of Citigroup Inc. All opinions are subject to change without notice.

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Exhibit 4 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 59 of 83

NLJ Partner Partner Partner Counsel Counsel Associate Associate Associate Counsel Largest U.S. 500 Billing Billing Billing Billing Billing Year Firm Name State Billing Billing Billing Billing Office - City Rank Rate Rate Rate Rate Rate Rate Low Rate High Rate Avg Rate High 2017 Low High Avg Low Average 2017 Cooley LLP Palo Alto CA 39 $1,100 $595 $835 $735 $850 $1,065 $998 2017 Jones Day Washington DC 5 $700 $1,050 $950 $300 $800 $525 $850* 2017 Pillsbury Winthrop Shaw Pittman LLP Washington DC 73 $790 $1,235 $830 $680* 2017 Ballard Spahr LLP Washington DC 85 $650 $1,195 $895 $395 $510 $453 $505 2017 Sidley Austin LLP Chicago IL 10 $965 $1,180 $1,135 2017 Kirkland & Ellis LLP Chicago IL 12 $235 $1,410 $1,115 $210 $955 $735 2017 Winston & Strawn LLP Chicago IL 46 $930* $560 $750 $655 2017 DLA Piper New York NY 2 $725 $1,120 $985 $265 $850 $595 $720 $805 $775 2017 Greenberg Traurig, LLP New York NY 8 $625 $1,080 $790 $450 $475 $475 $795 2017 Reed Smith, LLP New York NY 15 $820 $902 $880 $425 $675 $528 2017 Gibson, Dunn & Crutcher LLP New York NY 17 $925 $1,195 $1,150 $250 $875 $685 2017 Cleary Gottlieb Steen & Hamilton LLP New York NY 18 $445 $490 $468 2017 Simpson Thacher & Bartlett LLP New York NY 27 $1,340 $1,360 $1,350 $740 $1,080 $900 $1,115 $1,170 $1,143 2017 Paul Weiss Rifkind Wharton Garrison LLP New York NY 28 $1,220 $1,395 $1,320 $820 $1,040 $995 2017 Willkie Farr & Gallagher LLP New York NY 74 $1,150 $1,425 $1,350 $625 $965 $800

Exhibit 5 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 60 of 83

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Exhibit 6 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 62 of 83

California Region

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Exhibit 6 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 64 of 83

Billing Rates Rise Discounts Abound I National Law Journal Page 1 of3

ntl NOT FOR REPRINT NAT'(JNAllAW JOURNA

9 ___gJ LgKJo PriQ.t or Select 'Print' in your browser menu to print this document.

Page printed from: fY..fltio nal Law Journal

Billing Rates Rise, Discounts Abound

A 10 percent increase is offset by price cuts.

Katelyn Polantz, The National Law Journal

January 5, 2015

The price of a billable hour has risen by more than 10 percent in four years, as large corporate law firms focused on their most expensive work and saved clients' money elsewhere.

"The question is: Is anybody paying that?" Maurice Watson, chairman at Husch Blackwell, said, looking back at hourly rates charged last year for lawyers. Husch's average rate for partners is about $449 per hour, the firm told The National Law Journal in response to our 2014 billing survey. But $407 is closer to what the firm collects for its work.

The former number represents the "rack rate," Watson said, while the lower price factors in discounts given to clients on the billable hour and in alternative billing arrangements.

Husch's fees are indicative of the pricier billable hour and complementary cost cuts that law firms find for clients. The Kansas City, MO.-founded firm was among the firms that have reported their rates to The National Law Journal since 2010. Almost all of the highest- and lowest-charging partners among the firms increased rates since 2010.

Partners' hourly prices at the 40 firms that reported their numbers in 2014 now hover around $500 an hour on average. The highest-billing partner among the survey came from Kaye Scholer, with a $1,250 rate. The lowest-billing partner, from Frost Brown Todd, made $220, the firms told the NLJ.

See chart: .§l!!ing Rates at the Nation's Priciest Law Firm.§

The NLJ billing data also includes rates collected from public records - mostly bankruptcy filings - for 128 additional firms during the past three years.

Although the rates charged have gone up in recent years, the amounts that clients pay have not kept pace with inflation, legal industry leaders say.

"I think the story of billing rates is no longer as full or clear as it once was," Watson said.

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Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 65 of 83

Billing Rates Rise Discounts Abound I National Law Journal Page 2 of3

Lawyers often give discounts on their stated rates, or firms arrange alternative fee plans with clients, including caps on fees, retainers or other flat rates for legal work. Still, firms lean on hourly pricing more than any other model. Generally, 15 percent to 20 percent of work comes from alternative fee structures, according to Steve Nelson of the McCormick Group Inc., a legal consulting firm in Northern Virginia.

Dinsmore & Shohl, a Cincinnati-based firm, has changed the way it sets rates instead of ditching the billable model.

"The billable hour is still very important. There's probably 100 reasons for that," firm chairman George Vincent said.

Dinsmore opened an office in Washington in 2011, so billing rates for lawyers in the nation's capital notched higher than at the rest of the firm. At the same time, associates faced a shift away from rates that rise in lockstep to individualized pricing, Vincent said. Dinsmore also has added nonpartner-track associates to cut some fees. The firm's lawyers charged between $590 and $175 in 2010, but they ranged between $850 and $160 in 2014.

The spread shows a rate expansion that mimics the decisions made by other firms - increases for top earners while squeezing value where they can.

Associates, on average, charged $306 an hour at 28 firms in the NLJ study in 2014, an increase of 12 percent from those firms' average rate four years previously. The most expensive associates' rates pushed up at about the same pace, while a number of firms increased their lowest-paid associates' rates by only $15 or less an hour.

The deleveraging of lawyers in the industry may account for this. Many clients now refuse to pay for legal work performed by first-year associates, Nelson said. Associates instead train during their first year, or work on pro bono or the equivalent of clerk and paralegal tasks. Outsourcing some work to cheaper consultants and firms plays into the pricing models more every year.

Many large firms are shedding lower-end practices, which fueled partners' lateral moves in 2014, Nelson added. Large firms now often mandate that partners meet or exceed certain rates. Some practices become priced out, so the lawyers move to less strict or lower-tiered firms to keep their clients. Practices that work on large corporate mergers or high-stakes litigation saw less lateral movement because of rate pressure. Gibson, Dunn & Crutcher, with an $1,800 hourly rate for Theodore Olson, an outlier, had the highest rate the NLJ could find in public records.

The billing rate story was different in bankruptcy matters. Those numbers showed that the practice area, which runs countercyclical to the U.S. economy, suffered as companies recovered from the economic recession. Partners and associates working with clients in bankruptcy often must report their hourly rates in court.

Those partners averaged $452 per hour in 2014, compared with an average rate of $480 in 2012. The NLJ found fewer partners mentioned in new bankruptcy filings in 2014 compared with the previous years. On average over three years, bankruptcy partners charged about $475 an hour, according to records from more than 2,300 firm shareholders.

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Billing Rates Rise Discounts Abound I National Law Journal Page 3 of3

In 2012, when rates were higher, elite New York firms told courts their partners earned $1,000 an hour or more on the work. This $1 ,OOO-an-hour club included three partners from Paul, Weiss, Rifkind, Wharton & Garrison and two partners from Weil, Gotshal & Manges.

It also included a team of nine Sullivan & Cromwell partners who charged $1,150 an hour each to represent Eastman Kodak Co. in its bankruptcy.

In 2014, the rates for bankruptcy work topped out at about $900 an hour, according to the data. Two partners from Pachulski Stang Ziehl & Jones, a Los Angeles corporate restructuring boutique, charged $875 and $895 each for their work on the bankruptcy of staffing company Ablest Inc.

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Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 67 of 83

Notos I •••

Full-time equivalent Orleans, LA (FTE) attorneys at the finm and the city of the finm's lar.est U.S. office as listed in the 2014 NLJ 350 repcrt 2014 Akerman Miami, FL 523 $880.00 $360.00 $535.00 $465.00 , $205.00 $305.00 National Law Journal, FUll-time equivalent December 2014 (FTE) atlorneys at the firm and the city olthe firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Akin Gump Strauss Hauer •Was hington, 809 $1220.00. $615.00 $785.00 $660.00 $365.00 $525.00 National Law Journal, Full-time equivalent & Feld :DC ; December 2014 (FTE) allorneys at the firm and the city of th e firm's largest U.S. office as listed in the 2014 NLJ 3~.O repo rt ...... 201 4 Allen Matkins Leck Gamble Los IIngeles, . " 1S1 $68060 $525.00 . ' $615 :60 ; National Law Journal, . Full-time equivalent ; Mallory & Natsis CA [December 2014 (FTE) attorneys at the finm and the city of the finm 's largest U.S. office as listed in the 2014 NLJ 3.50r e[><)l1 2014 Alston & Bird IIlIanta, GA 789 . $875.00 $495.00 $675.00 '$575.00, $280.00 $425.00 NaiionalLaw Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report . " 2014 ""ndrews Kurth · Houston: TX 3:37 $109000 $745.00 ·········· $890.00 $109000; $265.00 $670.00 Netic,"al Law Journal, Full-time equivalent December 2014 (aFTE) tb rneys at the firm and the city of the firm 's largest U.S. offICe as listed in the 201 4 NLJ 350 report 20 14 Archer & Greiner · Haddonfield, 194 $460.00 $330.00 $400.00 $295.00 $200.00 $245.00' : National Law Journal, Full-time equivalent NJ ' December 2014 (FTE) attorneys at the firm and the city of the finm's largest U.S. office as listed in the 2014 NLJ 35Oreport . ' 2014 Arent Fox Washington: . 330 $860.00 $500.00 $650.00 $595.00 $27500 $395.00 National Law Journal, Full-tim e equivaient DC December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 201 4 NLJ 350 report 201 4 Arnall Golc!en Gregory . . .. . IItlanta: GA 140 $520. 00 ···· $430.0 0 .... " $490.00 Na'iionai Law"journal, FUll-time equivalent ' . December 201 4 (FTE) attorneys at the firm and the city of the firm's largest U.S. office . as listed in the 201 4 NLJ 350 report

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 68 of 83

2014 Amold& Porter :Washington, 720 $950.00 $670.00 $815.00 $610 00 $345.00 $500.00 National Law Joumal, Full~ime equivalent :DC December 2014 (FTE) ahorneys at the firm and the city of the firm's largesl U.S. office as lisled in the 2014 NLJ 350 report 2014 Arnstein & Lehr Chicago,IL 144 $595.00, $350.00 · $465.00 $350.00 $175.00 $250.00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ... .. 3.!i.9. r~P9rt 4 Bak~r&j.j"stet ler ...... ····· 201 CIElVeiancl, 798 $67ci.00 $275.00 $449.00 ... $350.00 $2i600 $272.00 · Natiol1all..aw .Jouinai: Full-time equivalent OH . December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Baker & McKenzie Chicago, IL 4087 $1130.00, $260.bo 5755.00 $92.5.00' 5100,00 $395.00 · Naiiol1all..awjournal, Full-time equivalent" December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 3!io repvrt .201

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 69 of 83

2014 Blank Rome Philadelphia, $940.00 $445.00 $640.00 $565.00 $175.00 $350.00 National Law Journal, Full-time equivalent PA December 2014 (FTE) attorneys at the firm and the city of the firm's lar!Jest U.S. office as listed in the 2014 NLJ 350 report 2014 Bond, Schoeneck B. King Syracuse, 198 $520.00 $240.00 $355.00 $310.00 $160.00 $225.00 $360.00 $275.00 $485.00 National Law Journal, Full-time equivalent NY December 2014 (FTE) attorneys at the firm and the city of the firm's lar!Jest U.S. office as listed in the 2014 NLJ :350report . 2014 Bowles Rice Charleston, $285.00 $165.00 $230.00 :£180.00 $115.00 $135.00 National Law Journal, Full-time equivalent \lW December 2014 (FTE) attorneys at the firm and the city olthe firm's largest U.S. office as listed ;n the 2014 NLJ 350 report . 2014 Bracewell & Giuliani Houston, TX 441 $1125.00 $575.00 $760.00 $700.00 $275.00 $440.00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's laruest U.S. office as listed in the 2014 NLJ 350rep01 ...... 2014 Bradley Arant Boult Birmingham, 413 $605.00 $325.00 $430.00 $340.00 $200.00 $260.00 NaiiOna-I-Lciw'J'ournai", Full-time equivalent Cummings AL December 2014 (FTE) att~rneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Broad and Cassel Orlando, FL 150 $465.00 $295.00 $380.00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Brown Rudnick Boston, MA 187 $1045.00 $650.00 $856.00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Brownstein Hyatt Farber Denver, CD 2H . '$760.00 . $31000 $520.00 $345.00 $265.00 $305.00 Nalional Law Journal, Full-time equivalent Schreck December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Bryan Cave $ , Louis. 985 $900.00 $410.00 $620.00 $595.00 $220.00 $405.00 $635.00 $355.00 $865.00 National Law Journal, Full-time equivalent MO December 2014 (FTE) attorneys at the finm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Buchalter Nemer Los Angeles, 139 $695.00 $475.00 $605.00. $375.00 $350.00 $365.00 National Law Journal, Full-time equivalent CA . December 2014 (FTE) attorneys at the finm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report

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2014 Burr & Forman Eirmingham, 261 $525.00 $300,00 $371 ,00 $275.00 $200,00 $241.00 National Law Journal, Full·tim" equivalent P,L December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 rep0rt 2014 Butler Snow Ridgeland, 280 $335,00 $235,00 $302,00 , ,National Law Journal, Full-time equivalent MS 'December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ...... ,. ., $665.00 3 50..f~P9.rt Cadwalacler, Wickersham & New York, $105000 $s60,cio $93660 $750,00 $395.00 National Law Journal, Full·time equivalent Taft NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U,S. office as listed in the 2014 NLJ 3!jPreport 2014 cariton' Fields Tampa, FL 272 $84Cioo $455,00 $600.00 Neii()n,,1 Law journal, Full·time equivalent December 2014 (FTE) attorneys at the firm and the c~y of the firm's largest U,S, office as listed in the 2014 NLJ .. 350r~"ort 2014 Cole, Schotz,iietsel, HackensaCk, 118 $i30,00 $59C1,00 $65306 $340.00 $275.00 $302,00 ; Nationall.awJClLJrnal, . Full·tima equivah'nt Forman & Leonard .NJ 'December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S, office as listed in the 2014 NLJ 350 r",port 2014 Connell Foley Roseland, 129 $575,00 $275.00 $425,00 $325.00, $200.00 $265.00 National Law Journal, Full-time equivalent NJ ,December 201 4 (FTE) attorneys at the firm and the city of the firm 's largest U,S. office as listed in the 2014 NLJ 350report ...... 2014 Cooley Palo Allo, CA 673 5990.00 $660.00 $820.00 $640.00$33500 $515.00 National Law Journal, Full·timE equivalent : December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report ...... 2014 Co~ingtci';&B~rli;,g Washington, 760 $800.00 $605.00 $786.00 ···· $565()()$3Z0.()0 . $41500 ,Naiion,,1 Law JOlJrnal, FulHime equivalent DC December 2014 (FTE) atiomeys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report . "2014 Cozen O'Connor Philadelphia, 495 $1135.()0 $27500 $570.00 $64000 $180.00 $355.00 . N'ationaiLaw' Journal, Full·Ume equivalent PA ·December 2014 (FTE) attorneys at the firm and the city of the firm 's lar.est U.S . office as listed in the 2014 NLJ 350 repcrt 2014 Curtis, Mallet·Prevost, Colt New York, 323 $86000 $730.00 $800.00 $785.00 $345.00 $480.00 National Law Journal, Full·time eqUivalent & Mosie NY December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S, office as listed in the 2014 NLJ 35.0 report ..

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.. $435.00 2014 D.vis Graham & Stubbs Denver, co 145, $635.00 $:i15.00 $350.00 $2(11).00 $255.00 National Law journal, Fiiil-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. o1fice as listed in the 2014 NLJ 350 report 2014 Davis Polk & Wardwell New York, 810 $985.00 $850.00 $975.00 $975.00. $130.00 $615.00 National Law Journal, FUll-time equivalent NY December 2014 (FTE) attorneys at the firm and the city of the firrn's largest U.S. office as listed in the 2014 NLJ

... ,,, .... 3~0 . report . .... 2014 D~bev()ise&Pllmpton ;New York, 595 $1075.00 $955.00 ill()55.00 $760:00 S120.00 $490.00 N"iionalLaw Journal; " Full-time equivalent :NY ' December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350r eport . 2014 Dechert .NewYork, 845 $1095.00 $670.00 $9CJO.00 , $73500$395.00 $530.00 National Law Journal, Full-time equivalent NY 'December 2014 (FrE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report ...... 2014 Dentons New York, 2503 $1050.00 $345.00 $700.00 . $685.00 $210.00 $425.00 N"ii"naILaw Journal, Full-time equivalent NY ·December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Dickstein Shapiro Washll'lgton, 254 51250.00 $590.00 $750.00, $585.00 $31 0.00 $475.00 National Law Journal, Full-time equivalent DC December 2014 (FrE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 rep<:>r( 2014 Dinsmore & Shahl Clllcinnatl, 415 S850_00 $250.00 $411.00 $365.00 $160.00 $238.00 $360.00 $150.00 $615.00 Natian"i Law Journal, Full-time equivalent OH December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 ..r~p'ort ...... 2()14 DLA Piper New York, 3962 -SI'o25.00 $450.00 $76500 $750.00 $250.00 ·· $5iIJ.00 NatiorlalLaw Journal, Full-time equivalent NY December 2014 (FIE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350rep<:>rt 2014 Dorsey & Whitney 'Minneapolis, 501 $585.00 $340.00 $43500 5510.00 $215.00 $315.00 National 'Law Journal. Full-time equivalent ,MN December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Duane Morris . Philadelphia, 613 . $960.00 $415.00 $589.00 $585.00 $280.00 $373.00 $638.00 $460.00 $1015.00 National Law Journal, FUll-time equivalent PA December 2014 (FTE) attorneys at the firrn and the city of thE' firm's largest U.S. office as listed in the 2014 NLJ ~~.oJeport

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Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 72 of 83

2014 Edwards Wildman Palmer :Bosto;', MA 540 $765.00: $210.00' $535.00 $415.00 $245.00 $325.00 National Law Journal, Full-time equivalenl December 2014 (FTE) attorneys at the firm and Ihe city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Faegre Baker Daniels -Minneapolis, 673 $580.00- $355.00 $455.00 $315.00 $110.00 $260.00 - National Law Journal, Full-time equivalent :MN December 2014 (FTE) attorneys at the finm and the city of the firm's lar~~est U.S. office as listed in the 2014 NLJ ..... :Milwaukee , ... ···· $33500 ... 359r."'PQrt ...... 20i4 F;;i ey&L~~dner ' 844 $860.00 $405.00 $600.00 $470.00 $210.00 N"iiClrlall..aw Journai, Full-time equivalent WI December 2014 (FT[) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Foley Hoag BaSion, MA 221 $775.00 $500 00 $670.00 $385.00 5290.00 $32500 Nationall..aw Jouma( Full-time equivalent December 2014 (FTE) attorneys at the finm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 359r",p()rt ...... $3i ii6CJ" 2014 .Fox R.otilscilild philadelphfa, 531 $750.00 $335:00 $53000 S500.00 $145 00 Natio",,1 Law Journai, Full-time equivalent PA December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ' 350 report 2014 ·Fried, Frank, Harris, Shriver :NewYork, 450 $1 100,00 $930,00 S1000,00 S760.00 $375.00 $595.00 National Law Journal, Full-time equivalent & Jacobson [NY December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Frosl Brown Tcdd : Cincinnati, 414 5600.00 $220.00 $387.00 5315.00 S15o.00 $234.00 $41700 $350.00 $540.00 N"iionalLaw Journal, Full-time equiv"l~nt OH December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 20 14 NLJ ~?9r.",p~rt ...... 20i 4 GardereWYl1neSewel1 ' Oailas, l'x 218 S775.00 $430. 00 $635.00 $33000 $29000 $30300 Nati(Jnal Law Jour""I, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Gibbons .Newark, NJ 201 S665.00 $440:00 : $560.00 $475.00 $295.00 $360.00 National Law Journal, Full-lime equivaleni December 2014 (FTE) attorneys at the firm and Ihe city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Gibson, Dunn & Crutcher New York, 1154 S1600.00 $765.00 $980 00 5930.00 $175,00 $590.00 National Law Journal, Full-time ·.quivalent NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed io the 2014 NLJ 3?0 r~p<> .rt .

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 73 of 83

2014 Gordon Rees Scully ' San Diego, 478 $4is.ob $375.00 $420.ci6 $325.00' $285.00 $300.00 National Law Journal, Full-time equivalent Mansukhani CA December 2014 (FTE) attorneys at the firm and the city of the firm's largest U. S. office as listed in the 2014 NLJ 350 report 2014 Greenberg Traurig New York, 1690 $955.00 $535.00 $763.00 $570.00, $325.00 $470.00 National Law Journal, Full-time equivalent NY . December 2014 (FTE) attorneys at the firm and the city of the firm's larllest U.S. office as listed in the 2014 NLJ 350 report ...... ········· $2:i0.OO . 2014 HalT;sBeach . : Rochester, 198 $406.00 $29800 $348.00 $285:66 $17500 $287.50' .. . ' $i7500 $40000 National LaY;iou;nal, Full-time equivalent NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S . office as listed in the 201 4 NLJ 35DrElP01 2014 Harter S~crest& Emery : Rochester. 132 $465,00 $300.00 $385.00, $290.00: $195.00 $250.00 National Law Jouriial, . Full-time equiva'lent NY ,December 2014 (FTE) attomeys at the firm and t.he city of the firm's largest U.S. office as listed in the 2014 NLJ ... 350 report ...... 2014 ,Haynes ""clBoon. Dallas, TX" 483 $1020.00 "$450.60 $670.00 $580.00 $310.00 $405:00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and Ihe city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Hogan Lovells Washington, 2313 $1000.00, $705.00 $835.00 : National Law Journal, Full-time equivalent DC December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Holland & Hart Denver, CO 423 $725.00 $305.00 . . $44200' $425.00 $175,00 $27700 $363.00 $225.00 $535.00 Natiol1~d LawJourm;I , Full-time equivalent" December 201 4 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 ...... $420.00 rep~rt 2014 Holland & Knight Washington";. 956 , $108500 $355.00 $625.00 $595.00 $210.00 $340.00 " $57500 $910.60' Nati()nal i.aw Journal, Full-time equivaient' DC ,December 2014 (FTE) attomeys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Honigman Miller Schwartz Detroit, MI 231 $560.00, $290.00 $390.00 $225.00, $205.00 $220.00; ; National Law Journal, Full-time equivalent and Cohn ;December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Hughes Hubbard & Reed New York, 351 $995.00 $725.00 $890.00 $675.00 $365.00 $555.00, National Law Journal, Full-time equivalent NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 35Oreport

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2014 Husch Blackwell St. louis, 539 $785.00 $250.00 $449.00 $440.00 $190.00 $275.00 $418.00 $240.00 $625.00 National law Journal, Full-time equivalent MO jDecember 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Ice Miller -Indianapolis, 291 $530.00 $335.00 $450.00 $305.00 $245.00 $270.00 National Law Journal, Full-time equivalent IN December 2014 (FTE) attorneys at the finn anj the city of the finn's largest U.S. office as listed in the 2014 NLJ 350 report . ' ...... 20i41r~JI & Manella Los Angeles, $975.00 $800.00 $890:00 $isi:iao $395.00 . ' $53500 'NationaiLaw Jourri.ii, . Full-timo equivalent CA December 2014 (F1E) attorneys at the firm an~ the city of the firm's largest U.S. office as listoo in the 2014 NLJ .. 350 report . 2014 JacksO~KeJly Charleston, 179 '$535.00 $270.00 $345.00 $31500 $200.00 $243.()0 · National law Jocrnai, " Full-time equivalent' . '/IN December 2014 (FTE) 8ttorneys at the firm and the city of the finn's largest U.S. office as liste,j in the 2014 NLJ 350 ref-ort...... 2614 JacksCln Lewis la.Angeles, 724 $446.00 $310.00 $:38CJ.OO $31506 $275.00 $290.00 National Law Journai, . FUll-time equivalent ;CA ; December 2014 (FTE) attorneys at the finn and the city of the firm's I'''gest U.S. office as listed in the 2014 NLJ 350 reFort 2014 Jackson Walker : Dallas, TX 333 $675.00 $575.00 $622.00- $385,00 $255.00 $335.00 _National lew Journal, Full-time equivalent : December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in Ihe 2014 NLJ 3.50 report 2014 Jaffer; Mangels, Butler & los Angeles, 125 $875.00 $560.00 $690.00 National Law Journal, Full-timG equivaleni Mitchell CA ,December 2014 (FTE) attorneys at the finn and the city of the firm's largest U.S. office as listed in the 2014 NLJ re $380.00 350 pc>rt ...... 2014 Jenner IloBlock . chiCago. ll 434 $925.00 $565.00 $745.00 ...... $55000 $465.00 NationaiLaw journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Jones Day .New York, 2464 $975.00- $445.00 $745.00 $775.00 $205.00 $435.00 National law Journal, Full-time equivalent ' NY December 2014 (FTE) attorneys at the finn and the cijy of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 .Jones Walker New 363: $425.00 $275.00 $385.00 $240.00. $200.00 $225.00 .National law Joumal, Full-time eqUivalent ' Orleans, LA December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ~~Oreport

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2014 Kasowitz, Benson, Torres New York, 372 $1195.00 $600.00 $835.00 $625.00 $200.00 $340.00 National Law Journal: Full-time equivalent & Friedman NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Kalten Muchin Rossnman Chicago,IL 612 $745.00, $500.00 $615.00 $595.00, $340.00 $455.00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report ...... 2014 Kaye Scholer . New York, 392 $125000, $725.00 $860.00 ···· $795:00 $37i5:60 $597.00, · Naii"n"iLawjou;;;"t, Full-time equivalent NY 'December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report ...... 2014 Kelley Drye & Warren New York, 293 $815.00 $435.00 $640.00 $600.00 $305.00 $430.00, Naii"nal I..aw Journal, Full-time equivalent NY •D ecember 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ...... " 561 35D report ...... 20i'\ Kilpatrick Townsend & Atlanta, GA" $i75.00 $400.00 5550,00 $475 ()() $315.00 $385.00 .. •NatiOnal Law Journal, Full-time equivalent Stockton : Decamber 2014 (FTE) attemeys at the firm and the city of the firm's targast U.S. office as listed in the 2014 NLJ 350 report 2014 King & Spalding Atlanta, GA 874 $995.00 $545.00 $775.00 $735.00 $125.00 $460.00 · NatIOnal Law Journal, Full-time equivalent December 2014 (FTE) attcrneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report 2014 Kirkland & Ellis Chicago,IL 1554 $995.00 $590.00 $825.00. $715.00 $23500 $540.00 Nationat Law Journal, Full-time equivaient' . December 2014 (FTE) attorneys at the firm and the city of the 'firm's largest U.S. office as listed in the 2014 NLJ 350 report 20i 4 Knobbe Martens 61son 8; irvine, CA 260 $610.00 $450.00 $57500 '$455.00 $305.00 $360.00 NaiionaiLaw Journal, Full-t ime equivaient ' Bear December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Kramer Levin Naffalls & New York, 313 $1100.00' $745.00 $921 :00 , $815.00 $515.00 $67500 · National Law Journal, Full-time equivalenl Frankel NY 'December 2014 (FTE) attorneys at the firm and the city of the firm's largesl U.S. office as listed in the 2014 NLJ 350 report 2014 Lane Powell Segltle, WA 170 $675.00 $375.00 $516.00 $425.00 $260.00 $331.00 $477.00 $300.00 $650.00 . National Law Journal, Full-lime equivalent · December 2014 (FTE) attorneys at the firm and \t,s cily of the firm's largest U.S. office as listed in the 2014 NLJ 35()r~P9rt

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2014 Latham & Watkins New York, 2060 $111000; $895.00 $990.00 $725.00 $465.00 $605.00 National Law Journal, Full:time equivalent ;NY . December 2014 (FTE) attorneys at the firm and the c~y of the firm's largest U.S. office as listed in the 2014 NLJ 350 repol1 2014 Lathrop & Gage . Kansas City, 283 $700.00 $285.00 $420.00. $375.00: $195.00 $250.00; National Law Journal, Full-time equivalent MO December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350rep()r\ . Lewis RocaRoiiigert,er Phoenix, AZ. 228 $695:00 "' $38000 $505.00 $525.00 $26500 $400.00 NationalLaw Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listad in the 2014 NLJ 350report ...... 20i 4 L.indquist&' Vennum . Minneapolis, 178 $600.00 $460.00 $52600: $470.00 $275.00 $36500 ; Nationai Law Journai, ... Full-time "'luivalent MN ·December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report ...... :2014 LitilerMendelson San " 1602 $61500 . . $395.00 $55000 $420.00 $24500 $290.00 National Law Jou,n"i, Full-time ·aquivalent : Francisco, December 2014 (FTE) attorneys at the CA firm and the c~y of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Lowenstein Sandler Roseland, 261 $990.00 $600.00 $765.00 $650.00. $300.00 $450.00 National Law Journal, Full-time equivalent N.I December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350repor\ ...... 2014 M,matt,Phelps& Phillips Los Angeles, 329 $795.00 $640.00 $740.00 Nationall..aw Journal, Full-time equivaleni' CA . December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S . office . as listed in the 2014 NLJ ...... 350 report ...... McCarte,,&EIl!llish Newark, NJ 371 . $625.00; $45()00 $536.00 $370.00 $220()0 $300.00; Nationai law Journi3i, . Full-time p-quivalent December 2014 (FTE) attorneys at the firm and U,e city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 McDermott Will & Emery Chicago,lL ' 1021 $835.00; $525.00 $710.00 : National Law Journal, FUll-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed ill the ~014 NLJ 350 report 2014 McElroy, Deutsch, Morristown, 274 $560.00, $325.00 $445.00. $335.00· $200.00 $295.00 National Law Journal, Full-time equivalent Mulvaney & Carpenter NJ December 2014 (FTE) attc.rneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ~5()repor.

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 77 of 83

2014 McGuireWoods Richmond, 931 $725.00 $450.00 $595.00 $525.00 $285.00 $36(l.OO ; National Law Journal, F ull-timeequivalent VA December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 McKenna Long & Aldridge Atlanta, GA 518 $650.00. $480.00 $530.00 $425.00 $375.00 $395. 00 National Law Journal, FUIl-timo equivalent ' December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ . ... $650.00 350repor1...... 201 4 Michael, Best & Friedrich Milwaukee, 189 $235 06 $44500' $425:00 $200.00 $28300 Natio"al i.aw Journal, · Full-time equivalent WI :December 2014 (FTE) attorneys at the fi rm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 3.50 report 2014 Miles &Stockb ri d~e B a~i more, 226 ' $740.00 $340.00 $478.00 $425.00, $230.00 $290.00 $41900 $225.00 $1595.00 , National Uiw Journal, Full-tim a eqU ivalent :MD December 20 14 (FTE) attorneys at th e firm and th e crty of the firm's largest U.S. offICe as listed in the 2014 NLJ . · 274 ...... $49000, 350 report ...... 2014 Moore 8. Vall Ail,m Cilarl()tte, $870. 00 $315.00 $430 00 $190.00 $28000 National Law journal, FulHim" equivalent·· NC . December 201 4 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 201 4 NLJ 350 report 2014 ,Morgan, Lewis & Bockius Philadelphia, 1363. $765.00 $430.00 $620.00· $565.00 $270,00 $390.00 National Law Journal, Full-time equivalent PA December 2014 (FTE) attorneys at th e firm and the city of th e firm's largest U.S. office as li sted in the 201 4 NLJ 350 repor,! . 2014 Morris, Manning & Martin Atlanta, GA 148 $575.00 $400.00 $480:00 ,National i's'wJo urnal, Full-time equivaleni : December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 201 4 NLJ 3ti(l rep().rt ...... ··· ·2014 Morrison 8. Foerster San 1020 · s1i9s:0O, $595.00 $865.00 5725.00 $23000 $525.00 NaiiCiniil Law Journal, FUll-time equivalent ·· . Francisco, December 2014 (FTE) attorneys at the 'CA firm an d the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 re port 2014 Nelson Mullins Colum bia, 466 $800.00 $250.00 $444.00 $395.00 . $21 5.00 $27 1.00 $376.00 $195.00 $600.00 National Law Journal, Full-tim e equivalent SC . December 201 4 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 201 4 NLJ 350 report 2014 Nixon Peabody Boston, MA 584. $850.00 $295.00 $520.00 $550.00. $180.00 $300.00 National Law Journal, Full-time eqUivalent : December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 201 4 NLJ .~50 rep".rt

-. --~----- Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 78 of 83

'2014 Norris McLaughl'in & Bridgewater, 128 $505.00 $485.00 $495.00 $365.00 $185.00 $275.00 ,National Law Journal, FUll-time equival ent Marcus NJ 'December 2014 (FTE) attorneys at th e firm and the city of the firm's largest U.S. office as listed in the 201 4 NLJ 350 report 2014 Norton Rose Fulbright Houston, TX 3537 $900.00 $525.00 $775.00 . $51 5.00. $300.00 $400.00 . National Law Journal, Full-time equivalent Decem ber 2014 (FTE) attorn eys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 3 5Q[~P9rt Nossaman Los Angeles, 148 $800.00 $370.00 $57iiiili , $490.00 $255. 00 $340.0() $495()O $440.00 $55() 61i .Nat ional Law Journal, . FUll-lime equivalent CA : December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 3 50rep~rt . . 2014 N~tter M"CI''''n ';~& Fish Bosiori , MA 146 $7 1500 $470.00 $575.00 $460.00 $295. 00 $375.00 National Law journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 rep°rt .... 2014091';i"" ,Deakir, .. .. Ailanta,GA ' S68 $650.00 $250.06 $360.00 ' $365.00 $200.00 ' $:26000 .. ·· $31 5.1l0 $230.00 . . . $55560 Naiional Law Journ"I, ' Full-time nquiva leiii " December 201 4 (FTE) attorneys at the firm and the ctty of the firm 's largest U.S. office as li sted in the 2014 NLJ 350 report 20140'Melveny & Myers Los Angeles, 721 $95000, $615.00 $7 15.00 1Natio nal Law Journal, FU ll-time equivalent CA December 2014 (FTE) attc.rneys at the fi rm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350.reP9[t 2014 Orrick Herrington & New York, 954 $1095.00 $715.00 $84500 $375.00: $710.00 $560.00 $735.00 $685.00 $850.00 NatiOnal Law Journal, FUll-time eqllivaient . Sutcliffe NY 'December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 201 4 NLJ ...... 3§O report 2014 Parker Pc:>';Ada ';;~ & Charlotte, 185. $500.00 $425.00 $450.00 . National Law Journal, Full-time equivalent " Bernstein NC : December 2014 (FTE) attcrneys at the firm and the city of the firm 's larg.st U.S. office as listed in the 2014 NLJ 350 repori 2014 Paul Hastings New York, 889 $900.00 $750.00 $615.00: $755.00 $335.00 $540.00 'National Law Journal, Full-time equivalent NY 'December 2014 (FTE) allorneys at the firm an d the city of the firm's largest U.S. office as listed in the 20 14 NLJ 350 report 2014 Paul, WeiSS, Rilklnd, New York, 654 $1120.00. $760.00 $1040.00 . $735.00 $595.00 $678.00 Nationat Law Journat, Full-time equivalent Wh arton & Garrison NY December 201 4 (FTE) attorneys at Ihe afirm nd the city of the firm's largest U.S . office as listed in the 2014 NLJ 35(Jreport

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 79 of 83

2014 Pepper Hamilton Philadelphia, 510 $950.00 $465.00 $645.00 $525.00' $280.00 $390.00 . Nalional Law Journal, Fu'ii~time equivalent PA 'December 2014 (FTE) atlorneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 20 14 Perkin 5 Cole Seattle, WA 861 $1000.00, $330.00 $615.00 $610.00 $215.00 $425.00 $635.00 $280.00 $800.00 National Law Journal, FUll-time equivalent December 2014 (FTE) allorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ .... $615.00 ~?9... r~P9rt...... 2014 Pillsbury Wlnlhrop Shaw Washington, 591 $1070.00 . . ' $865.00 $860.00 $375.00 5520.00 NatiOnal LawJournal, FulHime equivalenl Pinman DC December 2014 (FTE) attorneys al the firm and the city of the firm's largesl U.S. office as listed in the 2014 NLJ 350rep~r:t . 2014 Polsinelli Kansas City, 616 $775.00' $325.00 $435.00 $350.00 $235.00' S279.OO $376.00 $300.00 $450.00 National Law Journal, FUll-time equivalent MO December 2014 (FTE) a~orneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ .. 3~o.repc,rt .... " 2014 Proskaller Rose NewYoik: 712 $950:00 $72560 $880.00 $675.00 $29500 $465.06 Nalional Law Journal, " Full-lime equivalent NY December 2014 (FTE) attorneys at the firm and the city of Ihe firm 's largest U.S. office as listed in the 2014 NLJ 350 repert 2014 Quarles & Brady Milwaukee, 422 $625.00. $425.00 $519.00 $600.00 $210.00 $335.00 National Law Journal, FUll-time eqUivalent VVI 'December 2014 (FTE) allomeys at the firm and the ctty of the firm's lar.est U.S. office as listed in the 2014 NLJ 350 repert 2014 Quinn Emanuel Urquhart & New York, 673 $1075.00 $810.00 $915.00 $675.00 $320.00 $410.00 National Law Journal, Full-time equivalen't Sullivan NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ... 1555 ...... ~50re~rt 2014 Reed Smith Pittsburgh, $890.00. $60500 $737()1) .. $5300(} $29500 $420.00' Nati()I1"I!:.aw j()uinai, Full-time equivalent PA December 2014 (FTE ) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Richards, Layton & Finger Wilmington, 124 $800.00 $600.00 $67800 $465.00 $350.00 $41 4.00 National Law Journal, Full-time equivalent 'DE ,December 2014 (FTE) attorneys al the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Riker Danzig Sche",r Morristown, 146 $495.00 $430.00 $455.00 $295.00 $210.00 $25000: National Law Journal, Full-time equivalent Hyland & Perrelfl NJ December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 80 of 83

2014 ·Robinson & Cole H9r1ford,CT 201 S700.00 $295.00 $500.00 $445000 $215.00 $30000 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 repert 2014 Rutan & Tucker . Costa Mesa, $675.00 $345.00 $490.00 $500.00 $230.00 $320.00 National Law Journal, Full-time equivalent :C.I\ December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ ~s..oJ~p

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 81 of 83

201 4 Skadden, Arps, Siate, New vOik, 1664 $1150.00' $845.00 $1035.00 $845.00· $340.00 $620.00 National Law Journal, Full-time equivalent Meagher & Flom NY December 201 4 a(FTE) ttorneys at the firm and the crty of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Snell & Wilmer Phoenix, AZ. 411 $845.00 $325.00 $525.00 $470.00 $180.00 $280.00 •N ational Law Journa l, Full-tim e equivalent : December 2014 (FTE) attorneys at the firm and the city of the firm's lergast U.S. office as listed in the 2014 NLJ 350repor. . 2014Spilm,,;'TI!c>mas &B" ttle Charle ston, 131 .. $28(iOb $215.00 $350.00. National Law JOl.lrnal, Full-time equivalent VW . Decem ber 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed ill the 2014 NLJ 350 r~port . 2014 Squire Patton Boggs $950.00 $350.00 $655.00 $531J .OO $250.00 $355.00 Naiional Law Journal, Lo cation (lata not ; December 2014 available due to merger in 2014 . Full-time equivalent (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ .. :l5Q}~P9(t ...... 2014' Ste r;;e,K es"l~ r: Goldstein ' WaShington: ······ 122. $795.00 $450.00 $57700 $47600 $26506 $346.()O . "' $483.57 $450.00 $52iiCib · Nationall.aw Jouma( Full-time equivalent " & Fox DC December 2014 (FTE) attorneys at the firm and the city of the firm's larges t U.S. office as listed in the 2014 NLJ 350 report 2014 Slevens & Lee Reading, PA 154. $800.00 $525.00 $62500 National Law Journ ai, Full-time equivalent December 2014 a(FTE) ttorneys at the firm and the crty of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Sioel Rives Portland, OR 365 $800.00 $300.00. $4 92.00 $465.00: $205.00 $287.00 $312.00 $280.00 $51 0.00 National Law Journal, Full-time "qUivalent December 2014 (FTE) attorneys at the firm and the city crt the firm's largest U.S. office as listed in the 2014 NLJ ...... " $4is()0 3!iQr~P9rt. 2bi 4 St;~s b~;g~r !iP;ice D"lIa5, 1')( 21 7 $690.00 $290.00 $435.00 $365 00 $2 10. 00 ... $27000 ' $300.00 $69000.Na tlo.,"1 Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in th e 2014 NLJ 350 rep~ rt 2014 Sir~~ck & Slroo ~k ii. Lavan New York, 285 $11 25.00 $675.00 $96('iOO $840.00 $350.00 $549.00 '$979.00 . $745.00 ··· $1b95.00.National Law Journal, Full-time equivalent NY December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed ir, the 2014 NLJ 3 5 Drep~ rt

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 82 of 83

2014 Taft Stettinius & Hollisier Cincinnati, 357 $535.00 $285.00 $41 5.00 $475.00 $200.00 $285.00 Na;ional Law Journ al, Full-time equivalent 0:1 December 2014 (FTE) attorneys at the firm and the city of the firm's largest U. S. office as listed in the 2014 NLJ 350 report 2014 .Thompson & Knight Dallas, TX 290 $740.00 $425.00 $535.00 $610.00 $240.00 $370.00 National Law Journal, Full-time equivalent December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ ····· si. Louls: ······ $440.00 3!)()'''p

888-770-5647 www.alm .com Copyright 20 14 ALM Madia properties. LLC. All rights :eserved. 16 US_ADMIN· 79280B53 v1

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-6 Filed 03/27/20 Page 83 of 83

2014 White & Case ,New York, 1895 $1050.00. $700.00 $875.00, $1650.00 $220.00 $525.00. National Law Journal, FUll-time equivalent NY ,December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as liste,j in the 2014 NLJ 350 report 2014 Wiley Rein Washington, 277 $950.00 $550.00, $665.00 $535.00 $320.00 $445.00 National Law Journal, Full-time equivalent DC December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ . . 35Orep9r:t ...... 2014 wiillams Mull·.':' ... ' $38500 .. 'Richmond, 2:33 · $4io.00 $360.00 $35000, $260.00 $29500 ,Nati"",,1 Law Jou,nai, Ful~time equivalent' ,VA ·December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350report 201 4 WilikieFarr &Gaiiagh~~ 'New Yori<, 526 $1090.00 $790.00 $950.00 · S790.00 $350.00 $580.00 NaticinalLaw Journai, Full-time equivalent NY December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Wilmer Culler Pickering Washington, 9138 $1250.00 $7:35.00 $905.00 . . '$695.00$7506 $290.iJO National Law Journal, Full-time equivaient " Hale and DarT ,DC December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Winston & Strawn Chicago, IL 822 $995.00 $650.00 $800.00 $590.00 $425.00 $520.00 ,National Law Journal, Full-tim~ equivalent : December 2014 (FTE) attorneys at the firm and the city of the firm 's largest U.S. office as listed in the 2014 NLJ 350 report 2CJ14 W"lff& Samson West 125 $450.00 $325.00 $40CJbb $450.00 $22500 $340.00 National Law Journal, Full-time equivalent Orange, NJ December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350~~pjJrt ...... 2014 w~mbiec;';iYieSa;;d~idge \,vinston- ' 492 $64000, ' s4iii60 $554.00 Natianall.awJol.Jmal, Full-time equivalent & Rice Salem , NC 'December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report 2014 Wyatt Tarrant & Combs Louisville, 202 $500.00' $280.00 $418.00 Nationall..aw Journal, FUll-time equivalent KY 'December 2014 (FTE) attorneys at the firm and the city of the firm's largest U.S. office as listed in the 2014 NLJ 350 report

Exhibit 7 Case 1:16-cv-11620-NMG Document 302-7 Filed 03/27/20 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, v. No. 1:16-CV-11620-NMG

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF JAMES C. STURDEVANT

I, James C. Sturdevant, declare as follows:

1. I am an attorney admitted to the practice of law in all courts of the State of

California and Connecticut. I am admitted to practice in all federal district courts in California and Connecticut, the Second, Fourth, and Ninth Circuit Courts of Appeals, and the United States

Supreme Court. I am a graduate of Boston College School of Law where I received my J.D. in

1972, and of Trinity College, where I received a B.A. in 1969. A complete recitation of my experience and background is included in my current personal resume, which is attached hereto as Exhibit A.

2. I have concentrated on litigation, both at the trial and appellate levels, throughout my forty-five plus year legal career. From 1972 through May, 1978, I was employed with the

Tolland-Windham Legal Assistance Program, Inc., and Connecticut Legal Services, Inc., where I concentrated on significant housing, food and unemployment compensation litigation primarily in federal courts, legislation and administrative advocacy. Beginning in October, 1978, I initiated and directed all major litigation for the San Fernando Valley Neighborhood Legal Services, Inc.

Case 1:16-cv-11620-NMG Document 302-7 Filed 03/27/20 Page 2 of 6

program in Southern California. In 1980, I formed my own private practice, The Sturdevant Law

Firm, focusing on unfair business practices and civil rights cases. Since 1986, I have concentrated on lender liability, consumer protection class actions, complex employment discrimination cases, disability access, and unlawful/unfair business practice cases.

3. I have had extensive experience in representing consumers and low-income and other individuals in consumer class actions, employment discrimination cases, environmental litigation, disability access, unfair business practices litigation, and other public interest actions in both state and federal courts. I have handled the pre-trial, trial, and most of the appellate work for cases in my firm in which I was lead or co-counsel. A summary of examples of recent significant litigation in which I am or have been involved is described in my firm’s resume,

Exhibit B.

4. I have been regarded as one of the nation’s most respected consumer rights and class action attorneys. I recently received the 2019 CLAY Award with my team of attorneys for securing a unanimous decision from the California Supreme Court in De La Torre v. CashCall,

Inc., 5 Cal. 5th 966 (2018). In that case, which has lasted more than ten years, the Court held that interest rates between 96% and 135% on $2,600 loans payable over three and one-half years may be determined unconscionable in isolation from other loan terms and circumstances. The Court also held that borrowers may seek affirmative relief from unconscionable loans under

California’s Unfair Competition Law. Trial Lawyers nominated me for Trial Lawyer of the Year for Public Justice (now Public Justice) in 2004 for my work in Miller v. Bank of America which is described in some detail in my firm resume. The Consumer Attorneys of California named me

2004 Trial Lawyer of the Year for work in that same case; the San Francisco Trial Lawyers

Case 1:16-cv-11620-NMG Document 302-7 Filed 03/27/20 Page 3 of 6

Association named me 2002 Trial Lawyer of the Year for my work in Ting v. AT&T, which is

also described in my firm resume; and I have received numerous other awards for outstanding

advocacy on behalf of consumers and workers.

5. I serve and have served on numerous national, state and local boards and

committees concerned with civil litigation and amicus curiae work, and I and my firm have

authored a significant number of briefs and amicus briefs on the issues of mandatory arbitration,

federal preemption, the interpretation of consumer protection statutes and attorneys’ fees, among

many other subjects.

6. I am well acquainted with the reputation and practice of Jerome J. Schlichter, founding partner of Schlichter Bogard & Denton, which prosecuted this case as Class Counsel prior to the class action settlement. I have known Mr. Schlichter for many years and am familiar with the fact that he and his firm have done excellent work over the last three decades in advancing the rights of workers and individuals in a variety of class action cases in the employment discrimination field and in recent years national class actions involving fiduciary breaches and excessive fees in 401(k) and 403(b) plans.

7. Schlichter Bogard & Denton has been at the forefront of ERISA fiduciary breach class actions brought on behalf of employees in 401(k) and 403(b) plans. The firm first filed excessive fee cases involving 401(k) plans in 2006. Starting in 2016, Schlichter Bogard &

Denton expanded their national ERISA practice by filing similar excessive fee cases involving

403(b) plans sponsored by private universities.

8. To my knowledge, Schlichter, Bogard & Denton was the first in the country to bring excessive fee lawsuits involving 401(k) and 403(b) plans. Prior to Schlichter, Bogard &

Case 1:16-cv-11620-NMG Document 302-7 Filed 03/27/20 Page 4 of 6

Denton filing these lawsuits, there were no lawyers or law firms in the country handling such

cases. Consequently, no law firm has developed the expertise in these types of cases that

Schlichter Bogard & Denton has over the last 14 years, and no other law firm in the country, to

my knowledge, has taken an ERISA 401(k) or 403(b) excessive fee case to trial prior to

Schlichter Bogard & Denton.

9. I am also aware of no other law firm that has achieved the success that Schlichter

Bogard & Denton has in bringing ERISA class actions for excessive fees. The public has been

well served by the actions of these attorneys. Schlichter, Bogard & Denton has indeed functioned

as private attorneys general.

10. Complex class actions, such as those brought by Schlichter, Bogard & Denton, require representation of the class at a very high level throughout the matter. My firm and I have been involved in several ERISA class actions. In my experience, ERISA class actions and other complex class actions are national in scope, involve complex federal laws and regulations, and typically encompass parties, discovery, and attorneys from all over the United States. A plaintiff’s ERISA practice is therefore complex, highly specialized, time-consuming, and expensive to pursue. To my knowledge, there are very few attorneys and law firms willing and capable of handling large ERISA cases representing plaintiffs on a contingent basis. For these reasons, ERISA fiduciary breach litigation in any federal judicial district should be considered both very risky and national in scope.

11. In my personal experience and opinion, ERISA cases and other complex class actions are defended with a “blank check” for defense costs, meaning that defendants are willing to devote massive resources and spend substantial sums for defense costs and expert witnesses.

Case 1:16-cv-11620-NMG Document 302-7 Filed 03/27/20 Page 5 of 6

In my experience, defense firms often spend multiples more in time and expenses to defend these cases, and are paid on a monthly basis, as compared to the plaintiffs’ lawyers representing the participants and beneficiaries who typically work on a contingency fee basis.

12. Moreover, ERISA class actions, as recognized by courts throughout the country, have a “significant risk of nonpayment” due to “novel” legal issues and “adverse precedents.”

Kruger v. Novant Health, Inc., No. 14-208, 2016 WL 6769066, at *4 (M.D.N.C. Sept. 29, 2016); see also Kelly v. Johns Hopkins Univ., No. 1:16-CV-2835-GLR, 2020 WL 434473, at *3 (D. Md.

Jan. 28, 2020).

13. Because of this, I understand for complex class actions outside the Ninth Circuit, the market rate for plaintiffs’ lawyers who handle these class actions is 33 1/3% of any monetary recovery. Indeed, I would not agree to accept such a complex and risky case on a contingency fee basis for less than 33 1/3%, nor am I personally aware of any prominent plaintiffs’ lawyer or law firm that would take on such risky representation for less than 33 1/3% of any monetary recovery.

14. In my experience and opinion, because of the significant cost and extensive resources required to pursue ERISA class actions through judgment, individual named plaintiffs could not afford to hire a lawyer unless it was on a contingency fee basis. I am personally not aware of any plaintiffs’ lawyer or law firm that would be willing to handle an ERISA class action other than for a percentage of any monetary recovery.

Case 1:16-cv-11620-NMG Document 302-7 Filed 03/27/20 Page 6 of 6

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.

Executed on March 25, 2020 in San Rafael, California.

/s/ James C. Sturdevant James C. Sturdevant

Case 1:16-cv-11620-NMG Document 302-8 Filed 03/27/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, No. 16-cv-11620-NMG v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF STEWART BROWN, PHD., CFA

1. I hold a PhD. in finance from the University of Florida (1974) and the

professional designation of Chartered Financial Analyst. I am currently Professor Emeritus of

Finance at Florida State University. I am author or co-author of six law review articles on mutual

fund investment advisory fees. My vita is included at Appendix A.

2. I have reviewed the Settlement Agreement ("Settlement") between Plaintiffs and

The Massachusetts Institute of Technology ("MIT") in the above-referenced litigation and it

provides for substantial monetary benefits to participants and beneficiaries of the MIT

Supplemental 401(k) ("Plan"). The Settlement also provides for significant affirmative relief

over the three-year settlement period.

3. My assignment was to calculate the economic value of certain changes to the

operation and administration of the Plan. In particular, I understand from my review of the

Settlement and from discussions with Class Counsel that MIT will be required to, in relevant

part, conduct a competitive bidding process for the provision of recordkeeping and

administrative services provided to the Plan. See Settlement §§10.2-10.4, 10.7 (Doc. 290-l). Case 1:16-cv-11620-NMG Document 302-8 Filed 03/27/20 Page 2 of 3

4. My analysis considers the fee savings to participants from a decrease in recordkeeping fees following the competitive bidding process for recordkeeping services outlined in the Settlement. I used a period of five years to calculate the fee savings as a result of the Settlement because it is highly likely that the reduced recordkeeping fee will continue after the three-year settlement period and it also represents a reasonable period to determine the value of the Settlement for current and future participants in the Plan.

5. In valuing the fee savings over a five-year period, I compared the fee paid by the

Plan as of 2017 (approx. $52 per participant) and the reasonable fee that the Plan could obtain through a competitive process ($37 per participant) as opined by Plaintiffs' recordkeeping expert

Martin A. Schmidt. See Doc. 207-17 (~~131-132, 145). I used 21,202 as the number of current participants with account balances based on the Form 5500 for the year ending June 30, 2017.

Although the number of participants in the Plan have increased each year since 2010, I used the same number of participants over the five-year examination period. See Doc. 207-17 (~94).

Because I held the number of participants constant despite annual growth rate from 2010 to

2018, my analysis of the estimated fee savings is conservative.

6. I relied on the expert report of Martin A. Schmidt to determine the annual recordkeeping fee paid by the Plan as of 2017. I understand that Mr. Schmidt determined the amount by calculating the revenue sharing paid by the Plan's investment options to Fidelity. That amount was then reduced to account for any rebates or credits provided by Fidelity.

7. For purposes of my analysis, I assumed that all revenue sharing paid by the Plan's mutual fund investments would be made available to MIT to offset the Plan's recordkeeping expenses.

8. Based on the methodology set forth above, over a five-year period from 2020

2 Case 1:16-cv-11620-NMG Document 302-8 Filed 03/27/20 Page 3 of 3

through 2024, I determined that the Plan will achieve fee savings of at least $2,241,428.

9. In determining these fee savings, I accounted for lost investment opportunity

because these amounts would have reinvested in the Plan on an annual basis and appreciate in

value through investment gains. I used the 5-year return as of December 31, 2019 for the

Vanguard Institutional Index (VIIIX), which is an S&P 500 index fund. The S&P 500 index is a recognized proxy for the U.S. stock market and is the most widely used benchmarks among investors.

10. Calculating the exact amount the Plan would have gained is difficult to calculate accurately because the Plan's total return is not readily available. As a result, the S&P 500 index fund fairly approximates the Plan's lost investment returns.

11. Using the U.S. Government bond yields over the corresponding period as discount rates, I also determined that the present value of the fee savings would be $2,212,367.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on March 26, 2020 at Tallahassee, florida.

/ ~· ii&B'\'l UV\,~ Stewart L. Brown ·

3 Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs, No. 16-cv-11620-NMG v.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

DECLARATION OF PROFESSOR NEIL M. RICHARDS

I, Neil Michael Richards, declare as follows:

1. I am the Koch Distinguished Professor in Law at Washington University in

St. Louis School of Law, where I have taught privacy law for over sixteen

years, and where I co-direct the Cordell Institute for Policy in Medicine and

Law. I am an affiliate scholar with both the Stanford Center for Internet

and Society and the Yale Information Society Project, and a Fellow with the

Center for Democracy and Technology. I also taught for several years at the

international Summer Course on Privacy Law and Policy at the Institute for

Information Law at the University of Amsterdam in the Netherlands, and

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 2 of 54

will also be teaching Information Privacy Law next year at Georgetown Law

School.

2. I have been retained to provide an expert opinion on the benefits of the non-

monetary relief contained in the Settlement Agreement in this case.

Specifically, I have been asked to consider the benefits of requiring the

Defendants, during the three year Settlement Period, to maintain

restrictions on the Plan recordkeeper’s ability to use Plan participant data

to market or sell non-Plan products and services, including, but not limited

to Individual Retirement Accounts, life or disability insurance, non-Plan

investment products, and wealth management services. Settlement,

§§ 2.43; 10.6.

QUALIFICATIONS AND BACKGROUND

3. Education and Training: I am a nationally and internationally regarded

expert in the field of information privacy law. I am a 1997 graduate of the

University of Virginia School of Law, from which I also graduated with a

Master’s Degree in Legal History. In law school, I was the Executive Editor

of the Virginia Law Review, and was awarded several academic prizes,

including the Order of the Coif. Following law school, I clerked twice for

federal judges, first for Judge Paul V. Niemeyer of the United States Court

of Appeals for the Fourth Circuit, and then for Chief Justice of the United

States William H. Rehnquist. My clerkship with Chief Justice Rehnquist

involved assisting him during the impeachment trial of President William

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 3 of 54

Jefferson Clinton in the United States Senate. Following my clerkships, I

was the inaugural Hugo Black Fellow at the University of Alabama Law

School, and then a Temple Bar Fellow with the Inns of Court in London. I

then practiced law for a number of years with Wilmer, Cutler, and Pickering

(now WilmerHale), in their Washington, DC Office. At Wilmer, my practice

was split between privacy law and litigation.

4. Professional Experience. Since I entered academia, I have remained highly

active in professional activities relating to privacy and technology law. I am

an elected member of the American Law Institute and an Advisor on the

ALI’s project on the Principles of the Law of Data Privacy. I am a member of

the Advisory Board of the Future of Privacy Forum, a Washington, DC-

based think-tank composed of privacy law experts in industry and academia

that seeks to advance responsible data practices. I have also consulted with

law firms and companies about practical privacy issues. I have often been

an invited speaker by the Federal Trade Commission and international

government and private organizations to speak on questions of data privacy

and data protection. For example, I have spoken at major Federal Trade

Commission workshops to advise FTC Commissioners and staff on policy

issues related to the collection of comprehensive data about consumers by

data and Internet companies and on the limits of “notice and choice”

regimes for personal data governance.

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 4 of 54

5. Privacy Litigation Experience. I remain active as an expert witness and

consultant in cutting-edge privacy litigation. Much of this work has involved

issues relevant to the opinions submitted in this Declaration, relating to the

remedies available in privacy litigation. For example, I submitted a brief

along with several other leading privacy law scholars in the Supreme

Court’s most recent privacy law standing case, Spokeo v. Robins, 135 S.Ct.

1892 (2016). Our brief in Spokeo concerned the necessity of privacy remedies

obtained through litigation by private parties rather than government

enforcement. I was also asked by the Irish government to be one of their two

U.S. privacy law experts in the case of Data Protection Commissioner v.

Facebook Ireland Ltd, known as Schrems II, and perhaps the most closely-

watched privacy law case in the world. My evidence, which focused on

privacy remedies under U.S. law, was accepted by the Irish High Court,

sustained on appeal by the Supreme Court of Ireland, and the matter is

currently pending before the European Court of Justice in Luxembourg.

6. Scholarship. My written scholarship has been devoted almost entirely to

questions of information privacy law. My article “The Dangers of

Surveillance,” which appeared in the Harvard Law Review in 2013, is one of

the most-read articles in the field of privacy law in recent years. I am also

the author of over thirty academic articles and numerous smaller essays,

and my scholarship has appeared in many of the leading law reviews,

including the Harvard Law Review, Yale Law Journal, Columbia Law

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 5 of 54

Review, Virginia Law Review, California Law Review, and the Georgetown

Law Journal. I have been cited in over 1,000 different law review articles.

My first book, Intellectual Privacy, was published in 2015, and my second

book, Why Privacy Matters, will be published in 2021, both by Oxford

University Press. I have also written extensively for a general audience

about a range of privacy law issues, and my work has appeared in a wide

variety of publications, including CNN, Time, The Guardian, Slate, Salon,

MIT Technology Review, WIRED UK, and the Chronicle of Higher

Education.

7. Media. I regularly appear in the media giving expert commentary on a wide

range of consumer privacy and Internet law issues. I have appeared as a

guest on television and radio programs, including CNN, National Public

Radio, and Fox News, and have been quoted as an expert on privacy and

constitutional law in newspapers such as the New York Times, the

Washington Post, The Wall Street Journal, The Guardian, the Chicago

Tribune, and the Boston Globe.

8. Compensation. For my work in this matter, I am being compensated at the

rate of $1,000 per hour. This is my customary 2020 hourly rate that I charge

and am paid as an expert. It is also consistent with the market rate for an

attorney with my level of credentials and expertise.

9. Curriculum Vitae. My curriculum vitae is attached as Exhibit 1.

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 6 of 54

10. Given my expertise, I was specifically asked by the Plaintiffs to speak about

the value of the privacy protections provided in the settlement agreement in

this matter.

MATERIALS REVIEWED

11. In preparing this opinion, I have reviewed a set of materials pertinent to

this case, which I have appended to this Report as Exhibit 2.

EXPERT OPINION

I. The Settlement in Tracey v. Massachussetts Institute of Technology, No. 16-cv-11620-NMG, Doc. 290-1 (D. Mass. Oct. 28, 2019)

12. I have reviewed the Settlement Agreement (“Settlement”) between Plaintiffs

and Massachusetts Institute of Technology, the MIT Supplemental 401(k)

Plan Oversight Committee, the Administrative Committee, Israel Ruiz,

Marc Bernstein, Glenn David Ellison, S.P. Kothari, Gunther Roland,

Lorraine A. Goffe Rush, Glen Shor, Pamela Weldon, Thomas M. Wieand,

and Barton Zwiebach (collectively “MIT”), regarding litigation over the

administration of the The Massachusetts Institute of Technology

Supplemental 401(k) Plan. (Hereinafter, the “Plan”).

13. I have also reviewed agreements between Fidelity and MIT produced in the

above-captioned case. The agreements I have reviewed contain no

restriction on the marketing of non-Plan products and services to Plan

participants. E.g., Amended and Restated Recordkeeping Agreement

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 7 of 54

Between MIT and Fidelity Investments Institutional Operations Company,

Inc., The MIT Supplemental 401(k) Plan, dated Oct. 22, 2001, as amended.

In addition, I have also been asked to assume, for purposes of this

Declaration, that Plan participant data was used to solicit the purchase of

non-Plan products and services.

14. In addition to monetary relief, the Settlement also provides for substantial

non-monetary benefits to participants and beneficiaries of The

Massachusetts Institute of Technology Supplemental 401(k) Plan. (The

“Plan”). Among other things, the Settlement requires Defendants, during

the three-year Settlement Period, to maintain restrictions on the Plan’s

recordkeeper’s ability to market or sell non-Plan products and services,

including, but not limited to Individual Retirement Accounts, life or

disability insurance, non-Plan investment products, and wealth

management services. Settlement, §§ 2.43; 10.6.

15. My understanding is that Defendants maintain that they have a “current

practice of . . . prohibiting any communications to Plan participants . . .

concerning non-Plan products and services.” Settlement § 10.6. The terms of

the Settlement require that Defendants continue such practices for at least

three years. Id.

16. Importantly, the Settlement provides for enforcement of its terms, including

enforcement of § 10.6. Settlement §§ 13.5–8.

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 8 of 54

17. Given the absence of restrictions or limitations on cross-selling of non-Plan

products in the agreements between Fidelity and MIT that I have reviewed,

it is my expert opinion that § 10.6 of the Settlement Agreement, the

provision which memorializes the requirement that MIT continue a practice

of restricting Fidelity’s ability to cross-sell non-Plan products and services,

is of substantial value to the Plan’s participants.

I. Why and How Sophisticated Companies Use Personal Data to Influence Consumer Behavior

18. My study of information privacy law and policy over the past two decades

has given me extensive knowledge and experience regarding how companies

collect and use data to influence consumers.

19. Information privacy law is intended to protect personal information –

information that identifies or which can be used to identify a consumer. In

my experience, companies have become ever-eager to obtain personal

information about consumers because it allows them to influence those

consumers and to better persuade them to buy their products.

20. It has long been recognized that information is power, and information

about people confers power over those people. While many popular

understandings of privacy equate privacy to the keeping of secrets or

placing consumers in control of their personal information, legal protections

for consumer privacy are in reality most important because they protect

consumers from the increased power that personal information about them

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 9 of 54

confers to companies. This is a phenomenon that has been explored by a

number of privacy scholars, including in my own work. See, e.g., Daniel J.

Solove, Privacy and Power: Computer Databases and Metaphors for

Information Privacy, 53 STAN. L. REV. 1393 (2001); DANIEL J. SOLOVE, THE

DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE DIGITAL AGE (2004); Lisa

A. Austin, Why Privacy Is About Power, Not Consent or Harm, in A WORLD

WITHOUT PRIVACY? WHAT LAW CAN AND SHOULD DO (Austin Sarat ed. 2015);

Neil M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934,

1954 (2013).

21. Put simply, personal information about consumers confers power over those

consumers, and it can be used to influence and even manipulate those

consumers. It is precisely for this reason that sales organizations access

consumer data – to more effectively persuade consumers to purchase their

products and services. Data brokers, like financial sales organizations,

amass vast troves of data to enable their clients to profile, segment, and

influence people as consumers.

22. Our information is collected, used, and analyzed in ways consumers cannot

understand and can rarely control. Given this fact, it should be no surprise

that people feel confused and disempowered when it comes to their data.

Instead of feeling confident that we will be protected when we share

information with others, we increasingly feel helpless and resigned to our

fate, whatever that might be. One of the biggest fears in the modern

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 10 of 54

information economy is that personal information obtained from users will

be used to manipulate their behavior in ways that are contrary to their

interests.

23. The example of Target Corporation’s data-based pregnancy detector, famous

in privacy and data science circles, illustrates how sophisticated companies

use personal data to manipulate consumers and increase sales – often while

those consumers are entirely unaware that they are being manipulated by

their data.

24. Target had long collected a lot of data about its customers, both by collecting

it directly through purchases and loyalty cards, and indirectly by buying it

from data brokers. About twenty years ago, Target wanted to grow its

maternity and baby products business. The problem was that consumers are

creatures of habit, and it can be hard to change habits. As a result,

consumer buying preferences are sticky and hard to change, even when they

are subjected to lots of advertising. However, there are a few times in our

lives when our buying preferences up for grabs, such as when we start

college, get married, divorce, or move to a new city to start a new job.

Another of those predictable life events when our purchasing habits change

is around the birth of a child, when so many other aspects of our lives are

also in flux. Target wanted to get to consumers who were expecting before

its competitors could. It wanted to get those consumers shopping (and

shopping more) at Target, and to habituate them as Target shoppers for

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 11 of 54

baby formula and maternity clothes before, weary from diapering and

feeding their infant, their buying preferences readjusted to new habits—

with Target as one of those habits. As Target’s own data scientist told a New

York Times journalist,

We knew that if we could identify them in their second trimester, there’s a good chance we could capture them for years,” Pole told me. “As soon as we get them buying diapers from us, they’re going to start buying everything else too. If you’re rushing through the store, looking for bottles, and you pass orange juice, you’ll grab a carton. Oh, and there’s that new DVD I want. Soon, you’ll be buying cereal and paper towels from us, and keep coming back.

Charles Duhigg, How Companies Learn Your Secrets, N.Y. TIMES, Feb. 16,

2012.

25. Accordingly, Target used its large customer data set to find some interesting

things about the people in it. Target apparently had discovered, for

example, that pregnant women are more likely than others to buy

unscented lotion, and that they tend to start doing so around the beginning

of their second trimester. This correlation between pregnancy and changes

in behavior was one of about twenty-five that the data analysts were able to

identify. They combined these correlations with a dash of algorithmic

science to generate a “pregnancy prediction” score – one that allowed them

to identify not only which of their female customers was pregnant, but also

to guess each woman’s due date with surprising precision. This in turn gave

Target the ability to send coupons timed to the various stages of a

customer’s pregnancy to each of the pregnant consumers at the precise

times judged most likely to make them come into Target and use them. 11

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 12 of 54

Target of course, did not tell its customers what it was doing or why they

were doing it. In fact, when some customers realized that Target had

figured out that they were pregnant and were understandably shocked that

they were being profiled in that way, Target ran another experiment on

groups of customers. From this second experiment, Target learned that if

they bundled their payload of targeted coupons with misleadingly irrelevant

ones, the customers were tricked into thinking that the baby-related

coupons were merely nice coincidences. The customers wouldn’t know they

were being “spied on,” so they would use the coupons and likely form the

habit of becoming Target customers over the long term. Target’s cocktail of

behavioral science and data science fueled by the personal data of the

consumers thus became even more effective at getting the consumers to do

what Target wanted them to do. CHARLES DUHIGG, THE POWER OF HABIT:

WHY WE DO WHAT WE DO IN LIFE AND BUSINESS (2014); Charles Duhigg,

How Companies Learn Your Secrets, N.Y. TIMES, Feb. 16, 2012.

26. Personal information is valuable. It is commonplace for corporate

representatives to claim that “data is the new oil,” meaning a fundamental

source of both power and value in the information economy. E.g., The

World’s Most Valuable Resource, THE ECONOMIST, May 6, 2017, at 9. People

are becoming wise to the fact that “free” services are only free in the sense

that companies do not charge money for them. Their cost is frequently an

implicit or unwitting transaction of the customer’s personal information and

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 13 of 54

mental attention to advertisements targeted on the basis of that data. Given

the commercial value of personal data, and the lack of substantive rules

restricting this practice in sectors other than health, financial, or other

sectors were specific rules apply to data and relationships (such as federal

health privacy law or ERISA’s imposition of fiduciary duties), it is not

surprising that entrustees in information relationships are tempted to use

personal information they receive for their own benefit.

II. Consumer Data Is Also Used to Drive the Sales of Financial Products and Services.

27. Personal data about consumers can give companies enhanced powers of

commercial persuasion. The use of personal data to drive sales is not limited

to retail sales, and is being used throughout the economy, including to drive

the sales of financial products and services.

28. As in other sectors of the economy, the personal data of consumers can be

used to influence their behavior (such as by agreeing to buy certain financial

products). This phenomenon that can be made even more powerful when

combined (as it was by Target) with the insights of the behavioral sciences

or when combined (as it is by many technology companies) with the design

of software interfaces or marketing scripts that nudge the median consumer

towards doing what the marketers want them to do, and regardless of

whether that is in the consumer’s best interests. See, e.g., WOODROW

HARTZOG, PRIVACY’S BLUEPRINT: THE BATTLE TO CONTROL THE DESIGN OF

NEW TECHNOLOGIES 5 (2018) (“The predominant Internet business model is 13

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 14 of 54

built on collecting as much user data as possible and selling it or using it to

target and persuade users.”).

29. As the present MIT ERISA litigation illustrates, recordkeepers to defined

contribution plans are able to obtain valuable information from plan

participants in connection with their contracted services. This information

can include details such as the identity of investments, account balances,

age, contribution rates and call center contact notes. This detailed financial

information is not generally available from any other source—for any

price—and, just like the data used by Target to market to its pregnanct

customers, plan participant data is of immense value in marketing and

selling financial products.

30. One source of potentially lucrative business for recordkeeping providers is

rollovers of plan participant retirement plans administered by the plan

recordkeeper into individual retirement accounts (“IRAs”) provided by the

incumbent recordkeeper or company affiliate. Sales of this sort represent an

opportunity for substantial lucrative indirect revenue for recordkeeping

providers, and the use of personal data about plan participants – like other

uses of personal data – can significantly improve the prospects of a sale.

31. The potential for such profitable rollovers – as well as the ways in which

such sales can diverge from the best interests of plan participants – is not

only real, but has been recognized by the U.S. Government in a

Congressional report on potential conflicts of interest for financial services

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 15 of 54

companies. Indeed, in January 2011, the U.S. Government Accountability

Office found that:

Cross-selling products outside of a plan to participants can substantially increase a service provider’s compensation, which creates an incentive for the service provider to steer participants toward the purchase of these products even though such purchases may not serve the participants best interest. For example, products offered outside a plan may not be well suited to participants’ needs or participants may be able to secure lower fees by choosing investment funds within their plans comparable with products offered outside their plan. Industry professionals we spoke with said that cross-selling IRA rollovers to participants, in particular, is an important source of income for service providers. For example, according to an industry professional, a service provider could earn $6,000 to $9,000 in fees from a participant’s purchase of an IRA, compared with $50 to $100 in fees if the same participant were to invest in a fund within a plan. Plan sponsors can take steps to preclude service providers from cross-selling non-plan products and services to plan participants.

United States Government Accountability Office, Report to Congressional Requesters, 401(K) PLANS, Improved Regulation Could Better Protect Participants from Conflict of Interest, January 2011, at 36, available at https://www.gao.gov/assets/320/315363.pdf (“2011 GAO Study”).

III. Principles Underlying Opinion

32. American privacy lawyers and scholars agree that there is a global

consensus on the key Fair Information Practices, also known as the “FIPs”.

Joel Reidenberg summarizes this consensus as having four elements: (1)

data quality standards, which ensure that data is acquired legitimately and

is used in a manner consistent with the purpose for which it was

acquired; (2) transparency standards, such as giving individuals

meaningful notice regarding how their information is being used, the ability

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 16 of 54

to access their data, and correct it where it is inaccurate; (3) special

protections for sensitive data, such as requiring affirmative consent before

such data (including financial data) may be used or disclosed and ensuring

that it is held securely; and (4) enforcement of the standards. Joel R.

Reidenberg, Setting Standards for Fair Information Practice in the U.S.

Private Sector, 80 IOWA L. REV. 497, 514–15 (1995) (emphasis added).

33. Of particular importance to my opinions in this case, I note that from the

very beginning of the FIPs, an essential principle of the fair use of personal

data is to use data in a manner consistent with the purposes for which it

was acquired. This concern about what are known as “secondary uses” is

retained in Europe’s new General Data Protection Regulation (which has

extraterritorial effects in the United States), and is a feature of many U.S.

privacy laws intended to protect consumers from misuse of their data by

companies. See Chris Jay Hoofnagle, Bart van der Sloot & Frederik

Zuiderveen Borgesius, The European Union general data protection

regulation: what it is and what it means, INFO. & COMM. TECH. L., 28:1, 65-

98, DOI: 10.1080/13600834.2019.1573501; see also id. at 66 n.4 (“U.S. credit

reporting laws have use limitations; communications laws regulate

collection, use and sale of user data; the videotape privacy protection act

establishes deletion requirements; credit reporting and cable and satellite

providers must provide data subject access; and so on.”).

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 17 of 54

34. Data that is used for the purpose for which it is collected has a much lower

risk of harm to consumers, particularly where the consumer has an

opportunity to consent meaningfully to the data collection, or the data

collection is a necessary incident to the activity the consumer is seeking.

Thus, a consumer who consents to a retirement plan needs to share data

with the plan provider in order for the service to be provided, and the use of

data by the employer and the employer-supervised recordkeeper to carry out

this service would be largely unobjectionable, at least as long as the data

was processed ethically and in compliance with the fiduciary and other

obligations imposed by law.

35. However, and in stark contrast, if the data were used for other purposes

unrelated to the operation of the plan, such as being used to market

different financial products and services to the consumer (as is alleged in

this litigation), this would be a problematic secondary use, particularly if

the marketing was not in the best interests of the consumer, and

particularly if such data use happened without the knowledge or informed

consent of the consumer.

36. Substantive rules restrict certain data uses. An example of a substantive

rule would be a form of the secondary use principle that forbids data

collected for the administration of an ERISA-covered plan from being used

for direct marketing by the recordkeeper of financial products and services

unrelated to the recordkeeping duty. As I have explained in my academic

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 18 of 54

work, substantive rules are essential for meaningful protection of consumer

privacy against the power imbalances that personal information confers.

E.g., Woodrow Hartzog & Neil Richards, Privacy’s Constitutional Moment

and the Limits of Data Protection, B.C. L. REV. (forthcoming June 2020),

available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3441502.

37. Memorialization by contract. In my experience, it is common for data

privacy controls to be memorialized in writing. Meaningful privacy

protection requires clear, enforceable rules about how personal data is used

if it is to be more than vague and under-protective marketing slogans. As

our first-year law students learn, the most important tool in commerce, the

contract, is essentially a mechanism for encouraging and protecting trust by

providing legal backing for promises. In the privacy world, contracts have

long been an essential tool for protecting personal information in the context

of relationships, from non-disclosure agreements all the way up to complex

data use contracts allowing for the sharing of highly-sensitive customer

data with processors, record-keepers, and other third parties. As the author

of the leading privacy casebook puts it well, “[a]greements accompanying

the transfer of information are woven throughout the law: contracts related

to employee handling of trade secrets, nondisclosure agreements signed

before businesses can discuss an acquisition, confidential settlements in

litigation, duties of confidentiality undertaken by lawyers and doctors, and

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 19 of 54

the list goes on.” WILLIAM A. MCGEVERAN, PRIVACY AND DATA PROTECTION

LAW 514 (1st ed. 2016).

38. Litigation settlements are a kind of contract as well, and settlements have a

particular importance to the way privacy law has developed in the United

States, and especially in the context of protecting consumers. Since the late

1990s, and in the absence of a comprehensive federal privacy law, the

Federal Trade Commission has acted as the primary consumer privacy

regulator in the United States, under its long-standing authority under

Section Five of the FTC Act to prosecute “unfair and deceptive acts or

practices in or affecting commerce.” FTC Act § 5, codified at 15 U.S.C. §

45(a)(1). “Deceptive” practices are ones that involve a material

representation, omission or practice that is likely to mislead a consumer

acting reasonably in the circumstances. An “unfair” act or practice is one

that “causes or is likely to cause substantial injury to consumers which is

not reasonably avoidable by consumers themselves and not outweighed by

countervailing benefits to consumers or to competition.” 15 U.S.C. § 45(n).

Because the FTC lacks as a general matter the power to impose substantial

fines in the first instance under Section Five, it has sought a series of

consent decrees against leading technology and other companies that

process consumer personal information. All such orders require the settling

company to cease engaging in the proscribed conduct. These consent decrees

include substantial benefits to consumers, such as requiring companies to

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create comprehensive privacy programs within their corporations, privacy

auditing inspection requirements, which also permits the FTC to seek

money damages for violations of a consent decree of up to $16,000 per

violation. The orders thus act like a consumer protection statute tailored to

each settling company; a form of regulation known in the field as “fencing

in.” CHRIS JAY HOOFNAGLE, FEDERAL TRADE COMMISSION PRIVACY LAW AND

POLICY 167 (2016).

39. FTC consent decrees are widely read and used by privacy lawyers advising

corporations to determine which data practices run afoul of Section Five,

and have been famously characterized as creating a “common law of

privacy” in the United States. See generally Daniel J. Solove & Woodrow

Hartzog, The FTC and the New Common Law of Privacy, 114 COLUM. L.

REV. 583 (2014).

IV. Value of the Settlement to Plan Participants and to Consumers

40. In my opinion, the non-monetary relief contained in the Settlement

Agreement represents a substantial benefit both to the Plan participants

and to consumers as a whole. I believe that a substantial benefit will accrue

from requiring the Defendants, during the three year Settlement Period, to

maintain restrictions on the Plan recordkeeper’s ability to use Plan

participant data to market or sell non-Plan products and services, including,

but not limited to Individual Retirement Accounts, life or disability

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insurance, non-Plan investment products, and wealth management services.

Settlement, §§ 2.43; 10.6.

41. A substantial benefit of the Settlement is that it will protect Plan

participants from the more effective targeted selling of non-Plan products

based upon their personal data, a benefit that can be financially quantified

as substantial by any measure.

42. Based on my review of the materials provided by class counsel, if allowed to

market and sell non-plan products, recordkeepers may utilize a variable

compensation model that provides an incentive for plan representatives to

recommend the transfer of employer retirement plan assets to IRAs and

other non-plan products. Furthermore, plan recordkeepers may supplement

this compensation model with performance scorecards, sales goals, sales

reporting and sales rankings that further incentivize marketing activities.

43. Based on a 2011 GAO report, a reasonably conservative estimate for the

approximate average industry-wide differential between all-in fees for in-

plan investments and out-of-plan products and services, such as those

financial products found in out-of-plan IRAs, is 30 basis points, or 0.3%. As

the GAO report stated:

Representatives from a 401(k) record-keeping firm said that, typically, IRA owners pay higher fees in the range of 25 to 30 bps and, in some cases, as high as 65 bps, which can be two to three times higher than fees paid by plan participants for in- plan investments. 2011 GAO Report at 40.

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44. The Plan is required to annually file Form 5500 with the Department of

Labor. Form 5500, Schedule H, Line 2e(1) reports the amount of payments

to participants, including the amount of direct rollovers.

45. Using the rollover figures reported by Schmidt, and data from the Plan’s

publicly available Forms 5500 provided to me by counsel, the rate at which

the recordkeeper captured payments to plan participants as direct rollovers

to its own IRAs was 38.54% in 2010, 42.32% in 2011, and 30.91% in 2012.

46. Based on Schmidt’s report, I assume that marketing of non-Plan products

and services resulted in approximately $49.6 million annually (the average

of rollovers in years 2010–2012) in new Fidelity rollovers of Plan assets

outside the Plan from 2013 through 2019, as well as projected through 2023.

Schmidt Report ¶¶ 105, 110, 124.

47. This assumption is consistent with the Plan’s Form 5500s. Indeed, this

assumption is very conservative, because it assumes a sharply declining

IRA rollover capture rate from 2013–2018, as shown in Table 1, below:

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Known Projected Known IRA Projected Form 5500 Rollover Rollover Rollover IRA Rollover Schedule H, Amount Amount Capture Rate Capture Rate 2010 $130,203,299 $50,184,599 38.54% 2011 $133,718,946 $56,589,526 42.32% 2012 $136,020,005 $42,037,551 30.91% 2013 $140,085,253 $49,603,892 35.41% 2014 $178,972,576 $49,603,892 27.72% 2015 $208,379,236 $49,603,892 23.80% 2016 $168,752,102 $49,603,892 29.39% 2017 $182,428,138 $49,603,892 27.19% 2018 $211,149,542 $49,603,892 23.49% 2019 $49,603,892 2020 $49,603,892 2021 $49,603,892 2022 $49,603,892 2023 $49,603,892 Table 1 Estimated IRA Rollovers and Capture Rates for Plan Participants, 2010–Present

48. Under these assumptions, had there been a non-marketing provision

prohibiting the recordkeeper from marketing non-Plan financial products to

Plan participants during the years from 2010 through 2020, the Plan’s

participants would have potentially saved up to $9.8 million in fees. Under

these same assumptions, Plan participants protected by the non-marketing

provision in the Settlement could be expected to save up to $5.8 million in

the years 2021-2023.

49. The calculations resulting in the figures cited in the preceding paragraph

are set forth in Table 2, below:

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New Cumulative Estimated Fee Estimated Rollovers Rollovers Differential Excess Fees 2010 $50,184,599 $50,184,599 0.30% $150,553.80 2011 $56,589,526 $106,774,125 0.30% $320,322.38 2012 $42,037,551 $148,811,676 0.30% $446,435.03 2013 $49,603,892 $198,415,568 0.30% $595,246.70 2014 $49,603,892 $248,019,460 0.30% $744,058.38 2015 $49,603,892 $297,623,352 0.30% $892,870.06 2016 $49,603,892 $347,227,244 0.30% $1,041,681.73 2017 $49,603,892 $396,831,136 0.30% $1,190,493.41 2018 $49,603,892 $446,435,028 0.30% $1,339,305.08 2019 $49,603,892 $496,038,920 0.30% $1,488,116.76 2020 $49,603,892 $545,642,812 0.30% $1,636,928.44 Estimated total, 2010–2020 $9,846,011.76 2021 $49,603,892 $595,246,704 0.30% $1,785,740.11 2022 $49,603,892 $644,850,596 0.30% $1,934,551.79 2023 $49,603,892 $694,454,488 0.30% $2,083,363.46 Projected total, 2021–2023 $5,803,655.36 Table 2 Estimates of Increased Fees Paid by Plan Participants Who “Rolled Over” Plan Assets Into Fidelity IRAs, 2010–Present

50. The calculations set forth in Table 1 do not account for any investment

growth. The assets rolled over into an IRA, if properly managed, would be

expected to experience some market-based gains, thus increasing the

percentage-based excess fees collected as a result of cross-selling.

51. Further, the calculations in Table 1 account only for potential fees due to

the cross-selling of IRAs; they do not account for the value of the

Settlement’s restrictions on cross-selling life and disability insurance, non-

Plan investment products, and wealth management services, nor do they

account for any intangible benefits of control over plan participant data.

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52. Given the calculations set forth herein, a conservative estimate of the

savings to the Plan’s participants of the restrictions embodied in the

Settlement’s § 10.6 over the three-year Settlement Period is $5.8 million.

53. Given the absence of restrictions or limitations on cross-selling of non-Plan

products in the agreements between Fidelity and MIT that I have reviewed,

the provision in the Settlement Agreement memorializing the requirement

that MIT continue a practice of restricting Fidelity’s ability to cross-sell non-

Plan products and services, § 10.6, is thus of immense value to the Plan’s

participants.

54. From the foregoing, it is my opinion that the approval of the Settlement in

this case, including the substantial non-monetary benefit to Plan

participants and consumers contained in § 10.6, would have a substantial

benefit to consumers who are ERISA plan participants. At a minimum, the

Settlement would signal to other sophisticated players in the market that

they must prevent recordkeepers from using Plan participant data to

market non-Plan financial products and services. A change in market

behavior based upon the signaling effect of this Settlement would, in my

opinion, be a substantial benefit to consumers. Moreover, to the extent that

the Settlement might affect the operation of the ERISA duty of prudence’s

fact-specific ‘prudent man of like capacity’ test, this would also represent a

potentially even more significant benefit to consumers.

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CONCLUSION

55. Congress has long valued the right to privacy in passing legislation; indeed,

in the Privacy Act of 1974, the statute that first applied the FIPs to the data

processing of the federal government, Congress expressly found that “the

right to privacy is a personal and fundamental right.” Like other rights,

privacy is a non-monetized, non-market good. For precisely this reason,

Congress has often sought to help courts value privacy in private litigation

by creating liquidated or statutory damages provisions for privacy

violations. The federal Wiretap Act, for example, provides for money

damages of up to $10,000 per violation for anyone who intentionally

intercepts the contents of an electronic, wire, or oral communication. See 18

U.S.C. § 2520 (additionally providing in appropriate cases for injunctive and

declaratory relief, as well as punitive damages and attorneys’ fees).

56. Consistent with these observations, if I were to estimate the monetary value

of the settlement to plan participants (separate and apart from the

quantification in IV.B, supra), it would be in the millions of dollars at a

minimum, beyond the up to $5.8 million in quantifiable savings. But by any

reasonable measures of value we have, in my opinion there is no doubt that

the non-monetary relief authorized by the Settlement in this case has a

substantial aggregate economic value for plan participants.

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Executed this 27th day of March, 2020. ______Professor Neil M. Richards

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 28 of 54

Exhibit 1

Curriculum Vitae of Professor Richards

NEIL M. RICHARDS

Koch Distinguished Professor in Law Washington University in St. Louis One Brookings Drive St. Louis, Missouri 63130 (314) 935-4794

email [email protected]

EMPLOYMENT & PROFESSIONAL SERVICE: Koch Distinguished Professor in Law, Washington University School of Law, St. Louis, Missouri. January 2019-present. • Founding Director, Cordell Institute for Policy in Medicine & Law, October 2016- present. • Thomas & Karole Green Professor of Law, July 2016-December 2018. • Professor of Law with tenure, July 2008-June 2016. • Associate Professor of Law, July 2003-July 2008. • Awards o Voted Professor of the Year by student body, 2003-04 Academic Year. o Israel Treiman Faculty Fellow, 2005-06, 2018-19 Academic Years. • Courses o Law School: Information Privacy Law, First Amendment Law, Constitutional Law, Fourteenth Amendment, Property, Digital Civil Liberties Seminar, First Amendment Theory, Law and Politics Colloquium. o Arts & Sciences: The Digital Society (undergraduate trans-disciplinary course). o School of Engineering: Privacy & Security Law and Ethics. • Conferences Organized o Cordell3: Ethics of Human Gene Editing, October 2019 o Cross-Border Privacy & Speech Roundtable, Berkeley Law, May 2019. o Cordell Institute Launch Symposium, Sept. 2018. o “Privacy and Trust in a Digital Age,” Washington University Law Review Symposium, Sept. 2018. o Institute for Policy in Medicine and Law Planning Symposium, Sept. 2017. o Washington University-Cambridge University International Privacy Conference, Clare College, Cambridge, June 2012, July 2013. o Washington University First Amendment Roundtable, 2013-15. • Institutional Service o Chair, Law School Sesquicentennial Committee, 2015-17. o Chair, Institutional Profile Committee, 2014-15; Committee member 2015-16. o Chair, Faculty Appointments, 2010-11; Committee 2004-05, 2008-09, 2018- 28

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19. o Chair, Clerkships Committee, 2016-18; Faculty Clerkships Advisor, 2003-04, 2005-06, 2009-2011. o Decanal Review Committee, Spring 2010. o Washington University Faculty Senate Council, Law School Elected Representative, 2008-2011. o Faculty Chair, Washington University Social Media Committee, 2013-14. o Institute for Informatics Internal Advisory Board, 2018-present. o Provost’s Online Education Committee, 2014-2017. o University Data Policy Committee, 2017-present. o University IT Council, 2014-2019. o Scholarship Committee, 2015-16. o Faculty Promotions Committee, 2012-13. o Faculty Marketing Committee, 2013-14. o Faculty Advisor, Washington University Law Review, 2004-2010. o Curriculum Committee, 2006-07 and 2009-10. o Student Life Committee, 2011-12. o Law School Liaison to Arts & Sciences, 2011-15.

Visiting Professor of Law, Georgetown Law School, Spring Semester 2021. • Will teach 3-credit course on Information Privacy Law. IViR (Institute for Information Law) Fellowship, University of Amsterdam, The Netherlands, Summer 2014. Faculty Member, IViR Summer Course on Privacy Law and Policy, 2014-2018. Adviser, American Law Institute Project on Privacy Law, Sept. 2012-2019. Member, American Law Institute, 2015-2019. Affiliate Fellow, Yale Information Society Project, Yale Law School, March 2015- present. Affiliate Scholar, Stanford Center for Internet & Society, Stanford Law, Jan. 2015- present. Advisory Board Member, Future of Privacy Forum, 2010-present. Distinguished Visiting Scholar, Notre Dame Law School, October 2017. Trustee, Freedom to Read Foundation, July 2015-July 2017. Visiting Professor of Law, Utrecht University, the Netherlands, January 2012. Visiting Professor of Law, University of Illinois College of Law, October 2010. Associate, Wilmer, Cutler & Pickering, Washington, D.C. 2000-2003. Practice included privacy, electronic commerce, and appellate litigation. Hugo Black Faculty Fellow, University of Alabama School of Law, Tuscaloosa, Alabama. Academic Year 1999-2000; Spring Semester 2003. Inaugural research and teaching fellow in a visiting faculty program for former Supreme Court clerks. Courses: Property, Constitutional Law, First Amendment. Chaired Clerkships Committee, 1999-2000. Temple Bar Scholar, American Inns of Court. London, England. October 2000.

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Law Clerk, Hon. William H. Rehnquist, Chief Justice of the United States, United States Supreme Court, Washington, D.C. July 1998-July 1999. Served during the Supreme Court’s 1998-99 Term and the 1999 Presidential Impeachment Trial. Law Clerk, Hon. Paul V. Niemeyer, United States Court of Appeals for the Fourth Circuit, Baltimore, MD. August 1997-July 1998. Summer Associate, Powell, Goldstein, Washington, D.C. (now Bryan Cave) Summers 1996-97. Research Assistant, Professor A.E. Dick Howard, University of Virginia School of Law, Charlottesville, VA. 1995-1997.

EDUCATION: University of Virginia School of Law, J.D. May 1997. Class rank: 2/390. Activities: Executive Editor, Virginia Law Review. Teaching Assistant, First-Year Study Skills Workshop. Legal Education Project. Editorial Board, Virginia Journal of International Law. Honors: Order of the Coif. Slaughter Honor Prize. Davis Prize in Constitutional Law. University of Virginia, M.A. Legal History. Secondary Field of Study in Early American History. May 1997. Master’s Thesis: Clio and the Court: A Reappraisal after Three Decades. George Washington University, B.A. History with Special Honors, summa cum laude, Phi Beta Kappa, University Honors Program. Minor in Economics, Secondary Field of Study in International Affairs. May 1994. GPA 3.93. Honors Thesis: The Last Days of the Horse: The U.S. Cavalry and Technology in the 20th Century. Awards: National Merit Scholar (1990). Hubbard Prize for best student of American history. Distinguished Academic Achievement Awards. Strasser Essay Prize. Presidential Honor Scholarship (full tuition).

PUBLICATIONS:

Books:

INTELLECTUAL PRIVACY: RETHINKING CIVIL LIBERTIES IN THE DIGITAL AGE (Oxford University Press, 2015) (paperback ed. 2017).

INTELLECTUAL PRIVACY: RETHINKING CIVIL LIBERTIES IN THE DIGITAL AGE (Oxford University Press, 2015).

Works in Progress:

Why Privacy Matters (under contract, Oxford University Press, forthcoming 2020).

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Privacy’s Constitutional Moment and the Limits of Data Protection, B.C. L. Rev. (forthcoming 2020) (with Woodrow Hartzog). • Selected for the Future of Privacy Forum’s “Privacy Papers for Policymakers” award 2020.

Articles and Essays in Law Reviews:

The Pathologies of Digital Consent, WASH. U. L. REV. (2019) (with Woodrow Hartzog). • SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3370433

Four Preconditions for Digital Expression (You Won’t Believe #3!) 95 WASH. U. L. REV. 1353 (2018), with Danielle Citron, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3155384

Privacy’s Trust Gap, 126 YALE L.J. 908 (2017). • SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2899760

The Third Party Doctrine and the Future of the Cloud, 94 WASH. U. L. REV. 1441 (2017). • SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3123199

Secret Government Searches and Digital Civil Liberties, in NATIONAL CONSTITUTION CENTER, A TWENTY-FIRST CENTURY FRAMEWORK FOR DIGITAL PRIVACY (2017) o available at https://constitutioncenter.org/digital-privacy

Free Speech and the Twitter Presidency, 2017 U. ILL. L. REV. ONLINE: TRUMP 100 DAYS (April 29, 2017) • Available at: https://illinoislawreview.org/symposium/first-100-days/free-speech-and- the-twitter-presidency/

Trusting Big Data Research, 66 DEPAUL LAW REVIEW 579 (2017) (invited Symposium Issue) (with Woodrow Hartzog). • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2717868

Taking Trust Seriously in Privacy Law, 19 STAN. TECH. L. REV. 431 (2016) (with Woodrow Hartzog). • Selected for The Future of Privacy Forum’s “Privacy Papers for Policymakers 2015.” • Selected for regular and encore discussion at the 2015 Privacy Law Scholars Conference. • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655719.

Why Data Privacy Law Is (Mostly) Constitutional, 56 WILLIAM AND MARY LAW REVIEW 1501 (2015). • Selected for The Future of Privacy Forum’s “Privacy Papers for Policymakers 2013” • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2335196

“The Internet Grows Up?” B.U. L. REV. ANNEX (2015), available at http://www.bu.edu/bulawreview/richards-the-internet-grows-up/.

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Big Data Ethics, 49 WAKE FOREST LAW REVIEW 393 (2014) (with Jonathan H. King). • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2384174.

The Dangers of Surveillance, 126 HARVARD LAW REVIEW 1934 (2013). • available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239412.

The Perils of Social Reading, 101 GEORGETOWN LAW JOURNAL, 689 (2013). • Selected for encore and regular discussion at the 2012 Berkeley-GW Privacy Law Scholars Conference. • Awarded the 2012 University of Houston IPIL Sponsored Scholarship Grant prize.

Three Paradoxes of Big Data, 66 STANFORD LAW REVIEW ONLINE 41 (2013) (with Jonathan H. King).

The Limits of Tort Privacy, 9 J. TELECOM. & HIGH TECH. L. 357 (2011). • Invited submission for Conference on “Privacy and the Press,” Silicon Flatirons Center, University of Colorado School of Law, Dec. 3, 2010.

Prosser’s Privacy Law: A Mixed Legacy, 98 CALIFORNIA LAW REVIEW 1887 (2011) (with Daniel J. Solove).

The Puzzle of Brandeis, Privacy, and Speech, 63 VANDERBILT LAW REVIEW 1295 (2010). • Selected for discussion at the 2010 Berkeley-GW Privacy Law Scholars Conference.

Rethinking Free Speech and Civil Liability (with Daniel J. Solove), 109 COLUMBIA LAW REVIEW 1650 (2009). • Selected for plenary discussion at the 2009 Berkeley-GW Privacy Law Scholars Conference.

Privacy and the Limits of History, 21 YALE JOURNAL OF LAW AND THE HUMANITIES 165 (2009) (review essay discussing Lawrence Friedman, Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy (2007)).

Intellectual Privacy, 87 TEXAS LAW REVIEW 387 (2008). • Selected for discussion at the 2008 Berkeley-GW Privacy Law Scholars Conference.

Privacy’s Other Path: Recovering the Law of Confidentiality, 96 GEORGETOWN LAW JOURNAL 123 (2007) (with Daniel J. Solove). • Selected for the 2007 Michigan-Illinois Comparative Law Works-in-Progress Workshop. • Excerpted in Daniel J. Solove, Marc Rotenberg & Paul Schwartz, INFORMATION PRIVACY LAW (Aspen: 3d ed. 2008).

The Information Privacy Law Project, 94 GEORGETOWN LAW JOURNAL 1087 (2006) (essay). 32

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• Reprinted in Practising Law Institute, EIGHTH ANNUAL INSTITUTE ON PRIVACY AND SECURITY LAW: PATHWAYS TO COMPLIANCE IN A GLOBAL REGULATORY MAZE, 902 PLI/Pat 11 (July 2007). • Excerpted in Daniel J. Solove, Marc Rotenberg & Paul Schwartz, INFORMATION PRIVACY LAW (Aspen: 3d ed. 2008).

Reconciling Data Privacy and the First Amendment, 52 U.C.L.A. LAW REVIEW 1145 (2005). • Excerpted in Daniel J. Solove, Marc Rotenberg & Paul Schwartz, INFORMATION PRIVACY LAW (Aspen: 3d ed. 2008). • Excerpted in Rodney Smolla, ed., THE FIRST AMENDMENT LAW HANDBOOK (Thompson West: 2006).

“The Good War,” the Jehovah’s Witnesses, and the First Amendment, 87 VIRGINIA LAW REVIEW 781 (2001) (book review).

The Supreme Court Justice and “Boring” Cases, 4 THE GREEN BAG 2D 401 (2001).

Sallie Mae, The Gunderson Effect, and My Plumber 3 THE GREEN BAG 2D 251 (2000) (with Christopher P. Bowers).

Clio and the Court: A Reassessment of the Supreme Court’s Uses of History, 13 JOURNAL OF LAW & POLITICS 809 (1998).

U.S. Term Limits v. Thornton and Competing Notions of Federalism, 12 JOURNAL OF LAW & POLITICS 521 (1996) (student note).

Book Chapters:

Understanding American Privacy, RESEARCH HANDBOOK ON PRIVACY AND DATA PROTECTION LAW: VALUES, NORMS AND GLOBAL POLITICS, Gloria González Fuster, Rosamunde van Brakel and Paul De Hert (eds.), Edward Elgar Publ’g 2018 (with Andrew Serwin & Tyler Blake). • SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3256918

Digital Civil Liberties and the Translation Problem, in THE OXFORD HANDBOOK OF CRIMINAL PROCESS (Darryl K. Brown, Jenia Iontcheva Turner, and Bettina Weisser eds. 2019) (with Michael Washington).

Big Data and the Future for Privacy, in HANDBOOK ON DIGITAL TRANSFORMATIONS (Edward Elgar 2016) (with Jonathan H. King). • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2512069

How Should the Law Think About Robots? in ROBOT LAW (Edward Elgar: Calo, Froomkin & Kerr, eds., 2016) (with William Smart). • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263363

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Privacy and Free Speech: The Transatlantic Divide, in COMPARATIVE DEFAMATION AND PRIVACY LAW (Cambridge Press 2015) (with Kirsty Hughes). • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2648307.

Four Privacy Myths, in A WORLD WITHOUT PRIVACY? (Cambridge Press, Austin Sarat, ed. 2015). • Keynote address, Amherst College/University of Alabama Conference on “A World Without Privacy? What Can/Should Law Do?” Jan. 17, 2014. • Selected for The Future of Privacy Forum’s “Privacy Papers for Policymakers 2014” • SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2427808

“Privacy and Intellectual Freedom,” in M. Alfino ed., THE HANDBOOK OF INTELLECTUAL FREEDOM (Unwin, 2014) (with Joanna F. Cornwell).

• SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2501448

“Tort Privacy and Free Speech,” in D. Doerr & U. Fink, eds., THE RIGHT TO PRIVACY - PERSPECTIVES FROM THREE CONTINENTS (De Gruyter 2012).

Other Writings:

“Why Europe’s GDPR Magic Will Never Work in the US,” WIRED Magazine (UK) (Feb. 20, 2020) (with Woodrow Hartzog).

There’s A Lot to Like About the Senate Privacy Bill, If It’s Not Watered Down, The Hill, December 6, 2019 (with Woodrow Hartzog).

Who is Who, and What Do They Do? Executive Powers over Surveillance, part two, IAPP.org, Mar. 26, 2019 (with Andrew Serwin).

Who is Who, and What Do They Do? Executive Powers over Surveillance, IAPP.org, Jan. 29, 2019 (with Andrew Serwin).

“It’s Time to Try Something Different on Internet Privacy,” Washington Post, Dec. 20, 2018 (with Woodrow Hartzog).

“Who is Who and What Do They Do? Deconflicting Cyber,” IAPP.org, Oct. 30, 2018 (with Andrew Serwin).

“The Intelligence Community: Who Is Who and What Do They Do?” IAPP.org, Sept. 25, 2018 (with Andrew Serwin).

“Why the Logan Pauls of the world can push the boundaries of privacy and good taste,” The Hill, Jan. 16, 2018.

“We will work out the commercial, clinical, ethical and legal issues around genome sequencing.” The Wired World in 2018, WIRED Magazine (UK) (2017) (with Jonathan Heusel). 34

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“Should Supreme Court Justices Continue to Have Life Tenure?” (revised), Junior Scholastic Magazine, Feb., 2017.

“Should Supreme Court Justices Continue to Have Life Tenure?” (revised), New York Times Upfront Magazine, Sept., 2016.

The future of espionage: What techniques will spies be using in ten years’ time? Wired UK, July 16, 2016, available at http://www.wired.co.uk/article/big-question-new-techniques- spy-agencies-in-ten-years-time

“Privacy and Respect for Individuals,” ALA Choose Privacy Week (May 4, 2016), available at https://chooseprivacyweek.org/privacy-and-respect-for-individuals/.

“The iPhone Case and the Future of Civil Liberties,” Microsoft Technology/Academics/Policy Blog, March 7, 2016, available at http://www.techpolicy.com/Blog/Featured-Blog- Post/iPhone-Case-and-the-Future-of-Civil-Liberties,-The.aspx.

“Apple’s Code = Speech Mistake,” MIT Technology Review, March 1, 2016, available at https://www.technologyreview.com/s/600916/apples-code-speech- mistake/#/set/id/600918/.

“The iPhone Case and the Future of Civil Liberties,” Boston Review, February 25, 2016, available at https://www.bostonreview.net/us/neil-richards-apple-iphone-privacy.

Apple v. The FBI: Why the 1789 All Writs Act Is the Wrong Tool, The Guardian, February 24, 2016, available at http://www.theguardian.com/technology/2016/feb/24/apple-v-the- fbi-why-1789-all-writs-act-is-the-wrong-tool.

“Facebook’s New Digital Assistant M Will Need to Earn Your Trust,” The Guardian, September 9, 2015, available at http://www.theguardian.com/technology/2015/sep/09/what-should-we-demand-of- facebooks-new-digital-assistant.

“Privacy Law: From a National Dish to a Global Stew” LinkedIn Pulse Blog, April 8, 2015 (with Daniel J. Solove), available at https://www.linkedin.com/pulse/privacy-law-from- national-dish-global-stew-daniel-solove

“The Electronic Panopticon,” The Chronicle of Higher Education, March 16, 2015, available at http://www.chroniclecareers.com/article/The-Electronic-Panopticon/228419/

“Digital Laws Evolve,” GQ Korea, February 2015.

“Google Has Captured Your Mind,” Salon.com, Feb. 26, 2015, available at http://www.salon.com/2015/02/26/google_has_captured_your_mind/

“The Fifty Shades of Grey Paradox,” Slate.com, Feb. 13, 2014, available at http://www.slate.com/articles/technology/future_tense/2015/02/fifty_shades_of_grey_and _the_paradox_of_e_reader_privacy.html

“Why Regulating Revenge Porn Isn’t Censorship,” Al-Jazeera America, Feb. 11, 2015, available at http://alj.am/1Mb8pZo. (with Danielle Citron) 35

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“How Encryption Protects Our Intellectual Privacy (And Why You Should Care),” Wired Magazine (UK), January 7, 2015, available at http://www.wired.co.uk/magazine/archive/2015/05/features/encryption-intellectual- privacy

“Digital Laws Evolve,” Wired Magazine UK, The Wired World In 2015, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2523748.

“Will We Have Any Privacy After the Big Data Revolution?” Time, Sept. 25, 2014, available at http://time.com/3430090/will-we-have-any-privacy-after-the-big-data-revolution/.

“Big Data Isn’t Magic,” Zocalo Public Square, Sept. 24, 2014, available at http://www.zocalopublicsquare.org/2014/09/24/will-we-have-any-privacy-after-the-big- data-revolution/ideas/up-for-discussion/.

“Can and Should Perez Hilton Be Held Liable for Reposting Celebrities’ Private Nude Photos Without their Consent?” Forbes, Sept. 3, 2014 (with Danielle Keats Citron), available at http://www.forbes.com/sites/daniellecitron/2014/09/03/can-and-should- perez-hilton-be-held-liable-for-reposting-celebrities-private-nude-photos-without-their- consent/

“Can Technology Prevent Another Ferguson?” CNN.com, Sept. 2, 2014, available at http://www.cnn.com/2014/09/02/opinion/richards-ferguson-cameras/

“Privacy Is Not Dead—It’s Inevitable,” The Boston Review, May 28, 2014, available at http://www.bostonreview.net/blog/neil-m-richards-privacy-not- dead#.U4YV_7EKpXs.twitter.

“The Promises and Pitfalls of Big Data,” Aj-Jazeera America, May 8, 2014, available at http://america.aljazeera.com/opinions/2014/5/big-data-surveillancensagoogle.html.

“What’s Up With Big Data Ethics?” Forbes, March 28, 2014 (with Jonathan H. King), available at http://www.forbes.com/sites/oreillymedia/2014/03/28/whats-up-with-big- data-ethics/.

“What’s Up With Big Data Ethics?” O’Reilly Strata Blog, March 21, 2014 (with Jonathan H. King), available at http://strata.oreilly.com/2014/03/whats-up-with-big-data-ethics.html.

“Gigabytes Gone Wild,” Al-Jazeera America, March 2, 2014, (with Jonathan H. King) available at http://america.aljazeera.com/opinions/2014/2/gigabytes-gone-wild.html.

“Obama’s Surveillance Reforms,” Boston Review, January 22, 2014, available at http://www.bostonreview.net/blog/richards-nsa-obama-surveillance.

“Watching the Watchers: The Rise of Sousveillance,” Wired Magazine UK, The Wired World in 2014, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2350002.

“They Know Where You Are (But They Shouldn’t), Boston Review, August 26, 2013, available at http://www.bostonreview.net/blog/they-know-where-you-are-they- shouldn%E2%80%99t. 36

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“Opinion: Don’t Let U.S. Government Read Your E-mail,” CNN.com Opinion, August 18, 2013, available at http://www.cnn.com/2013/08/18/opinion/richards-lavabit- surveillance/index.html.

“Surveillance After the Boston Bombing,” The Chronicle of Higher Education, Issue #35, May 10, 2013, available at http://chronicle.com/blogs/conversation/2013/04/29/surveillance-after-the-boston- bombings/.

“Opinion: Surveillance State No Answer to Terror,” CNN.com Opinion, April 23, 2013, available at http://www.cnn.com/2013/04/23/opinion/richards-surveillance- state/index.html?hpt=hp_t4.

“Keep Your Update to Yourself,” Wired Magazine, The Wired World in 2013 (UK Edition), 2012, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2172385.

“Choose Privacy Week 2012: The Perils of Social Reading,”PrivacyRevolution.org, May 2, 2012, available at http://www.privacyrevolution.org/index.php/comments/cpw_2012/.

“Rethinking Privacy in the Digital Age,” Washington University Law Magazine, Spring 2012, at p. 47, available at http://law.wustl.edu/Magazine/spring2012/.

Guest Blogger, ConcurringOpinions.com, 2007-2012.

Should Supreme Court Justices Continue to Have Life Tenure? (revised) New York Times Upfront Magazine, Sept. 21, 2009.

William Hubbs Rehnquist, in Encyclopedia of the Supreme Court of the United States (West: 2008).

Missouri v. Holland, in Encyclopedia of the Supreme Court of the United States (West: 2008).

Foreword: The Rehnquist Court and the First Amendment, 21 Wash. U. J. L. & Pol. 1 (2006).

Griswold v. Connecticut, in The Encyclopedia of Privacy (William Staples et al. eds., 2006).

Should Supreme Court Justices Continue to Have Life Tenure? New York Times Upfront Magazine, March 7, 2005.

The Constitutionality of Federal and State Historic Preservation Grants to Religious Properties SJ053 ALI-ABA 873 (2004) (coauthor).

Ex Ante: Taxing Cases, 5 The Green Bag 2d 2 (2001).

The Electronic Communications Privacy Act and Internet Privacy Litigation, Libel Defense Resources Council Cyber Space Project (2001). http://www.ldrc.com/Cyberspace/cyber11.html (coauthor).

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ACADEMIC & PUBLIC PRESENTATIONS:

“Lessons from the Clinton Impeachment,” Washington University School of Law, October 30, 2019.

“Why Privacy Matters,” Koch Distinguished Professor in Law Installation, Washington University, St. Louis, Missouri, October 28, 2019.

“Privacy’s Constitutional Moment,” PLSC-Europe, The University of Amsterdam, The Netherlands, October 25, 2019.

“Introduction: The Ethics of Human Genome Editing,” Cordell3 Conference, St. Louis, Missouri, October 11, 2019.

Moderator, “The Science of Biohacking,” St. Louis Young Presidents’ Organization, October 10, 2019.

“The Pathologies of Digital Consent,” Stanford University Program on Democracy and the Internet, Palo Alto, California, October 4, 2019.

“The Future of Human Data in Health Care & Beyond,” MOMENTUM: The Inauguration of Chancellor Andrew D. Martin, Washington University, St. Louis, MO, October 3, 2019.

“Why Privacy Matters,” Washington University Political Theory Workshop, September 13, 2019.

“Why Privacy Matters,” Society of Law Scholars Annual Meeting, University of Central Lancashire, Preston, England, September 4, 2019.

“Law Students vs. Technology,” Washington University School of Law Orientation, St. Louis, Missouri, August 16, 2019.

“Private-Sector Threats to Privacy,” Dartmouth College Summer Lecture Series, August 8, 2019.

“Information Fiduciaries and Trust Models for Data,” Multidisciplinary Workshop on the Future of Health Data, Yale University, June 13, 2019.

“Privacy’s Constitutional Moment,” Privacy Law Scholars Conference, Berkeley Law, May 30, 2019.

Convenor and Moderator, Cross-Border Speech and Privacy Roundtable, Berkeley Law, May 29, 2019.

“Digital Searches and Privacy,” Duke University Kenan Center for Ethics, April 19, 2019.

“Why Privacy Matters,” Duke University Kenan Center for Ethics, April 18, 2019.

“Notice and Choice,” FTC Hearings on Competition and Consumer Protection in the 21st Century, Washington DC, April 10, 2019.

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Commentator, Timothy Bartley, “Big Data, Small Governance? Self-Regulation of Predictive Analytics in the Private Sector,” Washington University Political Theory Workshop, April 5, 2019.

Privacy Matters,” Boston University, March 20, 2019.

“Genomic Privacy and Ethics,” St. Louis Academy of Science, St. Louis, Missouri, Feb. 28, 2019.

“Author Communication and the Law Reviews,” Washington University School of Law, Feb. 22, 2019.

Panelist, “Inside the Marble Palace: A Conversation with Four Former Supreme Court Clerks,” Washington University School of Law, Feb. 12, 2019.

Chair & panelist, Clashing Constitutional Norms, Cross-Border Data, and Free Expression, Computers, Privacy, and Data Protection (CPDP) 2018, University of Brussels, Brussels, Belgium, Feb. 1, 2019.

“Why Privacy Matters,” University of Tel Aviv, Israel, December 10, 2018.

Moderator, Panel Discussion: Carpenter v. United States, Washington University School of Law, October 30, 2018.

Privacy Colonialism: The EU as US Privacy Regulator, Amsterdam Privacy Conference (APC), University of Amsterdam, The Netherlands, October 2018.

“Privacy and Free Expression in a Time of Fake News,” Tulane Law School, Sept. 28, 2018.

“Surveillance and Free Expression,” Yale Law School, September 26, 2018.

“The Pathologies of Consent,” Washington University Law Review Symposium, Sept. 14, 2018.

Privacy Colonialism: The EU as US Privacy Regulator, Society of Law Scholars Annual Conference, Queen Mary School of Law, London, England, September 6, 2018.

“The Supreme Court Speaks on the Fourth Amendment: U.S. v. Carpenter,” Thomas Eagleton Federal Courthouse, St. Louis MO August 23, 2018.

“Law Students vs. Technology,” Washington University Law Orientation, Sept. 22, 2018.

“Why Privacy Matters,” University of Amsterdam, The Netherlands, July 5, 2018.

Commentary, Designing without Privacy?, Privacy Law Scholars’ Conference, George Washington University, Washington DC, June 2018.

“Four Preconditions for Digital Expression (You Won’t Believe #4!), Privacy Law Scholars’ Conference, George Washington University, Washington DC, June 2018.

“Privacy and Design,” Notre Dame Law School, April 27, 2018.

“Thoughts on Privacy’s Blueprint,” Notre Dame Law School, April 27, 2018.

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“Why Privacy Matters,” UCLA Law School Faculty Colloquium, April 2, 2018.

“Why Privacy Matters,” Washington University Institute for Informatics Annual Symposium, St. Louis MO, March 31, 2018.

“Why Privacy Matters,” Washington University Dallas-Fort Worth Regional Cabinet Annual Dinner, Dallas, Texas, March 8, 2018.

“Data Transfer-Where Have We Been and Where Are We Going?” International Privacy + Security Forum, George Washington University, Washington DC, February 26, 2018.

“Commentator on Ari Waldman, Designing Without Privacy,” Privacy Law Scholars Conference (Europe) 2018, University of Brussels, Brussels, Belgium, Jan. 28, 2018.

“Moderator, Finding a Way Forward for Cross-Border Data Requests,” Computers, Privacy, and Data Protection (CPDP) 2018, University of Brussels, Brussels, Belgium, Jan. 25, 2018.

“Four Preconditions for Digital Expression (You Won’t Believe #4!), Washington University School of Law, January 20, 2018.

“Privacy’s Trust Gap,” Institute for Informatics, Washington University Medical School, December 18, 2017.

“Six Preconditions for Digital Expression (You Won’t Believe #5!), Princeton University Department of Philosophy, December 15, 2017.

“Intellectual Privacy,” International Association of Privacy Professionals (IAPP), St. Louis Chapter, Dec. 13, 2017.

“Distinguished Commentary, SidleyAustin Lecture on ‘Privacy and the Collection/Use Distinction,’” Center for Data & Governance, Ohio State University, November 9, 2017.

“Why Privacy Matters,” Notre Dame Law School Faculty Workshop, South Bend, Indiana, October 27, 2017.

“Amicus Briefing Before the U.S. Supreme Court,” Microsoft Corporation, Brussels, Belgium, October 18, 2017.

“Trust and Connected Toys,” Privacy + Security Forum, George Washington University, Washington, DC, October 6, 2017.

Panelist, “The Interrelation Between Privacy and Free Expression,” University of Michigan School of Law, September 22, 2017.

“Closing Remarks: Genomics, Privacy, and Trust,” Institute for Policy in Medicine & Law Planning Symposium, Washington University, September 18, 2017.

“An Evening with Edward Snowden,” St. Louis, MO, Sept. 16, 2017.

“Law Students v. Technology,” Washington University Law Orientation, August 24, 2018.

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Panelist, “Fake News, Trolling, & Cyberbullying: Debating Social Media Companies’ Rights & Responsibilities,” AEJMC, Chicago, Illinois, August 9, 2017. (forthcoming)

“Why Privacy Matters,” University of Amsterdam, The Netherlands, July 6, 2017.

“Why Privacy Matters,” Privacy Law Scholars Conference, Berkeley, CA, June 2, 2017.

Commentator, Surveillance and Transparency Since the Sixties (Sarah Igo), Privacy Law Scholars Conference, Berkeley, CA, June 2, 2017.

“Intellectual Privacy,” Washington University Science on Tap, St. Louis, MO, April 26, 2017.

Participant, “Algorithms and Us,” National Endowment for the Humanities, SUNY Stony Brook, Stony Brook NY, April 4-5, 2017.

“Free Speech and the Twitter Presidency,” University of Illinois College of Law, April 11, 2017.

“Keynote: Why Privacy Matters,” American Medical Informatics Association Annual Meeting, San Francisco, CA, March 27, 2017.

“Privacy and the Future of the Cloud,” Washington University School of Law, December 14, 2016.

“Why Privacy Matters,” WindowGroup, St. Louis, MO, December 7, 2016.

“Challenges to the Enforcement of Consumer Privacy in the Information Age,” ICPEN Annual Meeting, Bad Wiessee, Germany, September 29, 2016.

“The Dangers of Surveillance,” Fontbonne University, St. Louis, MO, September 22, 2016.

“Oliver Stone’s Snowden,” ACLU of Eastern Missouri Movie Premiere, St. Louis, MO, September 13, 2016.

“Why Privacy Matters,” Fontbonne University Convocation Address, St. Louis, MO, August 24, 2016.

“A Judicial Conversation with Judge Coleman,” Washington University School of Law, August 22, 2016.

“Why Privacy Matters,” University of Amsterdam, The Netherlands, July 6, 2016.

“Intellectual Privacy and Intermediary Liability,” Senate of Argentina, Buenos Aires, Argentina, June 8, 2016.

“Intellectual Privacy and Intermediary Liability,” Seminar on International Internet Politics, Universidad de San Andrés, Buenos Aires, Argentina, June 6, 2016.

“Privacy and the Future of the Cloud,” Privacy Law Scholars Conference, Washington, DC, June 1-2, 2016.

“Privacy and Genomic Science,” Washington University Genomics Retreat, April 29, 2016.

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“Trusting Big Data Research,” Washington University School of Law, April 22, 2016.

“Code = Speech?” Washington University First Amendment Roundtable, April 15, 2016.

“Design, Privacy, and Trust,” UC Berkeley Law School, April 8, 2016.

“Comments on Privacy’s Blueprint,” UC Berkeley Law School, April 7, 2016.

“Big Data: How will regulation affect your use of data analytics in the years ahead?” Microsoft Envision Conference, New Orleans, LA, April 4, 2016.

“The Future of Privacy Laws,” Microsoft Envision Conference, New Orleans, LA, April 4, 2016

“Drones and Privacy,” Washington University Assembly Series, March 31, 2016.

“Taking Trust Seriously in Privacy Law,” Saint Louis University School of Law, February 19, 2016.

“Justice Scalia: The Legacy and the Vacancy,” Washington University School of Law, February 17, 2016.

“Trusting Big Data Research,” University of Toronto School of Law, January 22, 2016.

“Privacy and Trust,” Dartmouth College Geisel School of Medicine, January 15, 2016.

“Taking Trust Seriously in Privacy Law,” Future of Privacy Forum “Privacy Papers for Policymakers 2015,” Washington, DC, January 13, 2016.

Adviser, American Law Institute Restatement of Information Privacy Principles, Philadelphia, Pennsylvania, December 17, 2015.

“Intellectual Privacy,” Sever Institute Analytics Roundtable, Washington University, December 15, 2015.

“Trusting Big Data Research,” Washington and Lee Law Review/Future of Privacy Forum Conference on “Beyond IRBs?” Washington, DC, December 10, 2015.

“Privacy and Trust,” Dartmouth College Geisel School of Medicine, November 15, 2015.

“The Right to Be Forgotten and Free Expression,” ASIS&T Annual Meeting, St. Louis, Missouri, Nov. 10. 2015.

“Guardians of Data: How to Be Trusted in an Untrustworthy World,” Microsoft Corporation, Redmond, Washington, Nov. 7, 2015.

“Intellectual Privacy,” Microsoft Corporation, Redmond, Washington, Nov. 7, 2015.

“Intellectual Privacy,” Washington University Seattle Regional Council Annual Dinner, Seattle, Washington, November 6, 2015.

“Commentary: Internet Search and Mass Surveillance,” Conference on Empirical Research and the Law 2015, St. Louis, MO, October 30, 2015.

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“Privacy, Security, and Trust,” Fontbonne University, St. Louis, MO, October 29, 2015.

“Taking Trust Seriously In Privacy Law,” Privacy Law Scholars Conference Europe, Amsterdam, The Netherlands, October 26, 2015.

“Intellectual Privacy and Personalized Media,” Amsterdam Privacy Conference, Amsterdam, The Netherlands, October 27, 2015.

“Algorithms and Policing,” Washington University School of Law Public Law and Policy Speaker Series, October 20, 2014.

“Intellectual Privacy and Libraries,” The Digital Shift Online Library Conference, October 14, 2015.

“Intellectual Privacy,” Washington University Management Team, St. Louis MO, October 12, 2015.

“Four Privacy Myths,” STL SecureWorld Expo, St. Louis, MO, September 22, 2015.

“Intellectual Privacy,” Washington University Law Alumni Weekend, September 19, 2015.

“Security Rountable: The Right to Be Forgotten,” Washington University, September 17, 2015.

“Intellectual Privacy,” Fordham Law School, September 16, 2015.

“Intellectual Privacy,” Yale Law School, September 15, 2015.

“Intellectual Privacy and the Hague Declaration,” University of Brescia, Italy, July 22, 2015.

“Privacy and Civil Liberties,” Michigan State University Spartan Debate Institute (videoconference), July 17, 2015.

“Intellectual Privacy,” Washington University Law Eliot Society, St. Louis, MO, July 16, 2015.

“Intellectual Privacy,” University of Amsterdam, The Netherlands, July 9, 2015.

“Intellectual Privacy,” University of Leuven, The Netherlands, July 8, 2015.

“Intellectual Privacy,” American Library Association Annual Meeting, San Francisco, California, June 29, 2015.

“Intellectual Privacy,” Washington University Law Eliot Society, Chicago, IL, June 24, 2015.

“A Theory of Privacy and Trust,” Privacy Law Scholars Conference, Berkeley, California, June 5, 2015.

“Privacy and Free Speech: A Transatlantic Divide,” Privacy Law Scholars Conference, Berkeley, California, June 5, 2015.

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“Choose Privacy Week: Intellectual Privacy,” University of Wisconsin-Milwaukee, May 4, 2015.

Moderator, Plenary Session: The First Amendment and Image Capture, Yale Free Expression Scholars Conference, New Haven, Connecticut, May 3, 2015.

“Intellectual Privacy,” Berkman Center for Internet and Society, Harvard University, Cambridge, Massachusetts, April 28, 2015.

“Intellectual Privacy,” Washington University Boston Regional Council Annual Dinner, Boston Massachusetts, April 28, 2015.

“Privacy Myths,” Microsoft Corporation, Redmond, Washington, April 24, 2015.

“Intellectual Privacy,” University of Washington Tech. Policy Lab, April 23, 2015.

“Intellectual Privacy,” Washington University San Francisco Regional Council Annual Dinner, April 22, 2015.

“Intellectual Privacy,” Berkeley Law School, Berkeley, California, April 22, 2015.

“Intellectual Privacy,” Stanford Law School, Palo Alto, California, April 21, 2015.

“Intellectual Privacy,” Saint Louis University Law School, April 13, 2015.

“Intellectual Privacy,” Washington University School of Law, March 30, 2015.

“Intellectual Privacy,” University of Maryland School of Law, Baltimore, Maryland, March 27, 2015. “Intellectual Privacy,” Washington University Pre-Law Society, March 25, 2015. “Big Data Ethics,” National Academies of Sciences, Irvine, California, March 13, 2015. “Intellectual Privacy,” Chicago-Kent School of Law, Chicago, Illinois, February 23, 2015. “Intellectual Privacy,” Fordham Law School, New York, NY, February 2, 2015. “Law Enforcement Use of Body-Worn Cameras,” IAPP Webinar, January 30, 2015. Invited Delegate, LIBER Declaration on Data Mining, The Hague, The Netherlands, December 9, 2014. “Ferguson and Free Speech,” Washington University School of Law, December 2, 2014. “Four Privacy Myths,” American Association of University Women, St. Louis Chapter, Chesterfield, Missouri, November 13, 2014. “Intellectual Privacy,” Sever Analytic Roundtable, Washington University School of Engineering, November 11, 2014. Adviser, American Law Institute Restatement of Information Privacy Principles, San Francisco, California, November 6, 2014. “Privacy and Technology,” Eliot Society Seminar Series, Washington University, October 28, 2014. 44

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“A Theory of Privacy and Trust,” Notre Dame Law School, October 24, 2014. “Big Data and the Future for Privacy,” University of Quebec at Montreal, October 17, 2014. “Big Data Ethics,” Washington University Olin School of Business, October 10, 2014. “Why Privacy Matters,” Washington University Political Theory Workshop, September 19, 2014. Panelist, “Our Enduring Constitution,” Washington University Constitution Day Event, September 17, 2014. Panelist, “If You Have Nothing to Hide…” Missouri Bar Association Annual Meeting Plenary Session, Kansas City, Missouri, September 11, 2014. “Why Privacy Matters,” Saint Louis University Faculty Workshop Series, September 3, 2014. “Why Privacy Matters,” University of Amsterdam IViR, Amsterdam, the Netherlands, July 24, 2014. “Intellectual Privacy,” University of Amsterdam, IViR Summercourse on Privacy Law and Policy, Amsterdam, The Netherlands, July 10, 2014. “Big Data Ethics,” The Guardian Newspaper HQ, London, England, June 12, 2014. “Four Privacy Myths,” Privacy Law Scholars Conference, GW Law School, Washington, DC, June 5, 2014. “Big Data Ethics,” StampedeCon Big Data Conference, St. Louis Missouri, May 30, 2014. “Why Data Privacy Law Is (Mostly) Constitutional,” Yale Free Expression Scholars Conference, Yale Law School, New Haven, Connecticut, May 3, 2014. Privacy and Free Speech: The Transatlantic Divide, University of Melbourne Conference on Privacy and Defamation, Melbourne, Australia, April 24, 2014. (via Skype) “Four Privacy Myths,” Washington University Law National Council, April 25, 2014. “Four Privacy Myths,” Washington University Cyber-Security Roundtable, April 18, 2014. “The Dangers of Surveillance (Robots),” 2014 WeRobot Conference, University of Miami School of Law, Miami, Florida, April 5, 2014. “Four Privacy Myths,” Loyola Law School, Chicago, Illinois, March 31, 2014. Facilitator, White House Office of Science & Technology Policy/Data & Society Institute Conference on The Social, Cultural & Ethical Dimensions Of “Big Data,” NYU School of Law, New York, NY, March 17, 2014. “Why Data Privacy Law Is (Mostly) Constitutional, Future of Privacy Forum Privacy Papers for Policymakers, United States Congress, Washington, DC, March 5, 2014. “Why Data Privacy Law Is (Mostly) Constitutional,” William and Mary Law Review First Amendment Conference, Williamsburg, Virginia, Feb. 22, 2014.

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“Four Privacy Myths,” Keynote Address, University of Alabama Conference on Privacy Law, Tuscaloosa, Alabama, Jan. 17, 2014. “Four Privacy Myths,” Ethical Society of St. Louis, Jan. 14, 2014. “The Dangers of Surveillance,” Weidenbaum Center Policy Breakfast, Washington University, St. Louis, Missouri, Dec. 16, 2013 “Four Privacy Myths,” Washington University School of Law Faculty Workshop, December 5, 2013. “Why Surveillance Is Dangerous,” Yale Information Society Project Thompson-Reuters Lecture Series, Yale Law School, Dec. 3, 2013. “Privacy and Security: A Roundtable,” Washington University Interdisciplinary Program in the Humanities, St. Louis Missouri, November 20, 2013. “Big Data Ethics,” University of Pennsylvania Invisible Harms Conference, Philadelphia, Pennsylvania, November 15, 2013. “Cyber-Security, Social Media, and Big Data,” Washington University School of Engineering, October 29, 2013. “Big Data Ethics,” Wake Forest Law Review Symposium on Privacy, Winston-Salem, North Carolina, October 24, 2013. “Three Paradoxes of Big Data,” Stanford Law Review/Future of Privacy Forum Conference on Privacy and Big Data, Washington, DC, September 10, 2013. “The Dangers of Surveillance,” 2013 Society of Law Scholars Annual Meeting, University of Edinburgh School of Law, Edinburgh, Scotland, September 5, 2013. “Intellectual Privacy,” Washington University-Cambridge University International Privacy Law Conference, Clare College, Cambridge, England, July 29-31, 2013. “Data Privacy and the Right to be Forgotten after Sorrell,” George Mason Law School Conference on the Law & Economics of Search and Social Media, Arlington, Virginia, May 15, 2013. “Data Privacy and the Right to be Forgotten after Sorrell,” Center for Democracy and Technology, Washington, D.C., May 14, 2013. “Associations and Social Networks,” Yale Law School Free Expression Scholars Conference, New Haven, Connecticut, May 4, 2013. “The Dangers of Surveillance,” Yale Law School Free Expression Scholars Conference, New Haven, Connecticut, May 4, 2013. “Data Privacy and the Right to be Forgotten after Sorrell,” Berkeley-GW Privacy Law Scholars Conference, Berkeley Law School, Berkeley, California, June 6-7 2013. “The Dangers of Surveillance,” University of Illinois Faculty Workshop, Champaign, Illinois, April 18, 2013.

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“Free Speech Issues in the Standard & Poor’s Case,” Washington University Law/Business Roundtable, Washington University Olin School of Business, April 3, 2013. Conference Organizer and participant, Washington University First Amendment Conference, Washington University School of Law, March 21-22, 2013. “Intellectual Privacy,” Amherst College Department of Law, Jurisprudence, and Social Thought, Amherst, Massachusetts, February 22, 2013. “Intellectual Privacy” Fordham Law School Center for Information Law and Policy Workshop, January 19, 2013. Panelist, Federal Trade Commission Workshop on “The Big Picture – Comprehensive Consumer Data Collection,” Federal Trade Commission, Washington, DC, December 6, 2012. “The Dangers of Surveillance,” Harvard Law Review Symposium on Information Privacy in the Twenty-First Century, Harvard Law School, Cambridge, Massachusetts, November 9, 2012. Invited participant, American Law Institute Invitational Conference on Information Privacy Law, San Francisco, California, September 28, 2012. “The Dangers of Surveillance,” Washington University Political Theory Workshop, September 7, 2012. Invited Commenter, Ronald Krotoszynsky Faculty Workshop, Saint Louis University Law School Faculty Workshop, September 6, 2012. “Intellectual Privacy,” Duke Law School Faculty Workshop, August 31, 2012. “The Perils of Social Reading,” Comparative Perspectives on Privacy Conference (conference co-organizer), Clare College, Cambridge University, Cambridge, England, June 27, 2012. “The Perils of Social Reading,” Berkeley-GW Privacy Law Scholars Conference, Washington, DC, June 8 & June 9 (encore session), 2012. “The Perils of Social Reading,” Washington University School of Law Faculty Workshop, May 2, 2012. “How Should the Law Think About Robots?” WeRobot Conference, University of Miami, Coral Gables, Florida, April 22, 2012. “The Perils of Social Reading,” University of Maryland Law Faculty Workshop, March 23, 2012. “Freedom of Assembly and Intellectual Privacy,” Engaging Liberty’s Refuge Conference, Washington University School of Law, March 2, 2012. Google Fellow, Privacy Law Salon, Miami, Florida, February 2012 “Tort Privacy and Intellectual Privacy,” University of Durham Law Faculty Workshop, Durham, England, September 2011.

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“Tort Privacy and Intellectual Privacy,” Society of Law Scholars, Downing College, University of Cambridge, England, September 2011. “Intellectual Privacy: Rethinking Civil Liberties in the Digital Age,” Washington University Faculty Workshop, July 2011. “Free Speech and Tort Privacy,” Privacy Discussion Forum, Mainz, Germany, June 2011. “Tech Talk: Intellectual Privacy,” Google Campus, Mountain View, California, June 6, 2011. Discussant, Sandra Petronio, Privacy Perils: Deciding to Disclose or Protect Confidentialities, Berkeley-GW Privacy Law Scholars Conference, June 3, 2011. Discussant, “What’s Wrong with Spying?” Washington University Political Theory Workshop, April 15, 2011. “The Limits of Tort Privacy,” University of California Berkeley School of Law, March 31, 2011. “The Limits of Tort Privacy,” Notre Dame Law School Faculty Workshop, March 4, 2011. Participant, “Workshop on Meeting the Challenge of Online Hate,” Stanford Center for Internet and Society, January 14, 2011. “The Limits of Tort Privacy,” Conference on “Privacy and the Press,” Silicon Flatirons Center, University of Colorado School of Law, Dec. 3, 2010. “The Puzzle of Brandeis, Privacy, and Speech,” University of California, Davis Faculty Workshop, November 9, 2010.

“Why Privacy Matters,” ACLU of Eastern Missouri, September 21, 2010.

“Snyder v. Phelps and the First Amendment,” Washington University School of Law Supreme Court Preview, September 20, 2010.

“The First Amendment in the 21st Century,” Gephardt Center for Public Service, Washington University, September 17, 2010.

“The Puzzle of Brandeis, Privacy, and Speech,” 2009 Berkeley-GW Privacy Law Scholars Conference, George Washington University School of Law, Washington, DC, June 4, 2010.

“The Puzzle of Brandeis, Privacy, and Speech,” Washington University School of Law Faculty Research Seminar, February 24, 2010.

Prosser’s Privacy Law: A Mixed Legacy, California Law Review Symposium on the 50th Anniversary of William Prosser’s “Privacy” Article, GW Law School, Washington, DC, January 29, 2010.

Panelist, “Constitutional Law, Pharmaceutical Regulation, and Commercial Speech,” Section on Law, Medicine, and Health Care and Section on Constitutional Law, Association of American Law Schools Annual Meeting, New Orleans LA, January, 2010.

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“Librarians, Privacy, and the First Amendment,” Missouri Library Association Annual Meeting, Columbia MO, October 9, 2009.

“The Shadow First Amendment,” Washington University School of Law Faculty Incubator Workshop, July 1, 2009.

“Rethinking Free Speech and Civil Liability,” 2009 Berkeley-GW Privacy Law Scholars Conference, Berkeley School of Law, Berkeley CA, June 5, 2009.

Principal Commentator, Washington University Political Theory Workshop, Spring 2009 (discussing “Legal Realism” by Frank Lovett, Washington University Department of Political Science).

Rethinking Free Speech and Civil Liability,” Washington University School of Law Faculty Research Seminar, April 2009.

“Brandeis, Privacy, and Speech,” Washington University Political Theory Workshop, February 2009.

“Rethinking Free Speech and Civil Liability,” Fordham Law School Center on Law and Information Policy Workshop, December 5, 2008.

“Intellectual Privacy,” 2008 Berkeley-GW Privacy Law Scholars Conference, George Washington University School of Law, Washington, DC, June 13, 2008.

“Brandeis, Privacy and Speech,” Oklahoma City College of Law Faculty Workshop, March 25, 2008.

“The Supreme Court,” StreetLaw St. Louis Seminar, February 15, 2008.

“Intellectual Privacy,” Loyola Los Angeles School of Law Faculty Workshop, January 31, 2008.

“Intellectual Privacy,” Washington University Political Theory Workshop, January 25, 2008.

Principal Commentator, Washington University Political Theory Workshop, Nov. 16, 2007 (discussing “Bong Hits 4 Citizens?,” by Ian MacMullen of the Washington University Department of Political Science).

“Branzburg v. Hayes and Intellectual Privacy,” Conference on Branzburg v. Hayes, University of Oregon Schools of Law and Communications, Eugene, Oregon, October 5, 2007.

Panelist, Washington University Political Theory Conference, August 27, 2007.

“Intellectual Privacy,” Washington University School of Law Faculty Research Seminar, August 15, 2006.

“Foundations, Trends, and Directions: Privacy and Security Law in 2007,” PLI Eighth Annual Institute on Privacy Law, New York, NY, June 25, 2007.

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“Intellectual Privacy,” University of Illinois Law School Faculty Workshop Series, Champaign, IL, May 2, 2007.

“Intellectual Privacy,” University of Missouri-Columbia Faculty Workshop Series, April 9, 2007.

“Intellectual Privacy,” University of Nebraska Faculty Workshop Series, March 22, 2007.

“Privacy’s Other Path,” St. John’s University Law School Faculty Workshop Series, Feb. 12, 2007.

“Privacy’s Other Path,” Invited Participant, Michigan-Illinois Works-in-Progress Workshop on Comparative Law, Champaign, IL, Feb. 8-10, 2007.

Panelist, “Information, Technology, and Privacy: What’s Next?” Section on Defamation and Privacy Law, AALS Annual Meeting, Washington, D.C., Jan. 3, 2007.

Participant and Discussant, Workshop on Binding Corporate Rules, Fordham University School of Law, Nov. 13-14, 2006.

“Privacy without Confidentiality,” Washington University School of Law Faculty Research Seminar, November 8, 2006.

“Privacy after September 11,” Missouri Bar Association Annual Meeting, September 28, 2006.

“Griswold, Privacy, and the First Amendment,” presented at the American Association of Law Librarians Annual Meeting, St. Louis, MO, July 11, 2006.

Conference Organizer, Welcoming Remarks, and Panel Moderator, Conference on the Rehnquist Court and the First Amendment, Washington University School of Law, November 18, 2005.

“The Historiographical Poverty of Information Privacy Law,” Symposium on “Privacy Law in the New Millenium: A Tribute to Richard C. Turkington,” Villanova Law School. October 28, 2005.

“The Information Privacy Law Project,” Washington University School of Law Faculty Research Seminar. October 26, 2005.

“The Information Privacy Law Project,” Works-In-Progress Intellectual Property Colloquium 2005, Washington University School of Law. October 8, 2005.

“The Nomination of John Roberts and the Future of the Supreme Court,” Pomona College, Pomona, California, September 16, 2005.

“The Information Privacy Law Project,” Whittier Law School. September 15, 2005.

“The Information Privacy Law Project and the Limits of Metaphor,” 2005 Cardozo/Berkeley/ Stanford/DePaul IP Scholars Conference, Cardozo Law School, August 11, 2005.

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 51 of 54

Chair and Discussant, “The Digital Person and the Information Privacy Law Project,” Law and Society Association Annual Meeting, Las Vegas, NV. June 2, 2005.

“Information Privacy, Free Speech, and Lochner,” Fordham Law Review Symposium on Law and the Information Society. Fordham Law School, April 7, 2005.

“Brandeis, Privacy, and Speech,” Washington University School of Law Faculty Research Seminar. March 31, 2005.

“The Constitutionality of Don’t Ask, Don’t Tell,” Washington University School of Law. February 24, 2005.

“The War on Terror Cases and Separation of Powers,” Washington University School of Law Student-Faculty Supreme Court Workshop. September 1, 2004.

“Journalism and the First Amendment,” Bar Ass’n of Metropolitan St. Louis, July 24, 2004.

“Reconciling Data Privacy and the First Amendment,” Washington University School of Law Faculty Research Seminar. July 14, 2004.

“Rehnquist Court” faculty conference, Northwestern University School of Law. April 23-24, 2004.

“Lawrence v. Texas and Privacy Law,” Washington University School of Law Student- Faculty Supreme Court Workshop. October 1, 2003.

“Reconciling Data Privacy and the First Amendment,” University of Alabama School of Law Faculty Workshop. April 14, 2003. “Reconciling Data Privacy and the First Amendment,” University of Virginia School of Law. October 10, 2002.

“The Lessons of Past Federal Privacy Regulation for the Contemporary Privacy Debate,” University of Alabama Faculty Workshop. April 22, 2002.

“Family Law and the Supreme Court,” delivered at Annual Meeting, Alabama State Bar Family Law Section. July 20, 2000.

“The Supreme Court Law Clerk: An Agent with Many Masters,” delivered to The Federalist Society, Montgomery (Alabama) Lawyers Chapter. April 14, 2000.

PROFESSIONAL AND HONOR SOCIETIES: American Law Institute; Phi Beta Kappa, Order of the Coif, Phi Alpha Theta History Honor Society, Golden Key Honor Society, Phi Eta Sigma Honor Society.

SELECT CONSULTING/LITIGATION EXPERIENCE

• Independent Testifying Expert retained by the Irish Government on U.S. privacy law, Data Protection Commissioner v. Facebook, Irish High Court, Spring 2017 (also known as “Schrems II.”) 51

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 52 of 54

• Testifying Expert on history and theory of privacy law retained by the ACLU, Neal v. Roessler, (Va. Cir. Ct. 2018) (challenge to Fairfax Police use of automatic license plate readers under the Virginia Data Collection Act). • Represented fantasy sports company in successful right of publicity litigation against Major League Baseball from federal district court to Supreme Court certiorari phase. The litigation, Major League Baseball Advanced Media v. CBC Distribution & Marketing, 505 F.3d 818 (8th Cir. 2007), cert. denied, 128 S.Ct. 2872 (2008), is widely considered to have saved the independent fantasy sports industry. • Co-drafted Amicus Brief of Information Law Professors in Spokeo v. Robins before U.S. Supreme Court (2015). • Advised prevailing sporting goods company in high-profile Supreme Court litigation relating to the problem of “patent trolls” or “non-practicing entities,” Octane v. Icon Health & Fitness, 572 U.S. __ (2014). • Represented celebrities in high-profile privacy litigation. • Expert witness in consumer credit class action settlement, giving opinion on whether a settlement under the Fair Credit Reporting Act was in the best interests of consumers. • Consulted with various state attorneys general’s offices in privacy litigation over physician detailing statutes, culminating in the Supreme Court case of IMS v. Sorrell, Inc., 131 S.Ct. 2653 (2011). • Drafted First Amendment argument in Law Professors Brief as Amicus Curiae in Opposition to Motion to Dismiss at 16-22, SEC v. Siebel Sys., Inc., 384 F. Supp. 2d 694 (S.D.N.Y. 2005) (No. 04 CV 5130(GBD)). • Consulted with counsel, represented clients, or appeared in a variety of other cases involving privacy, defamation, or constitutional issues before a variety of state, federal, and international tribunals, including the U.S. Supreme Court.

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 53 of 54

Exhibit 2

List of Materials Consulted

I. Public Sources 1. United States Government Accountability Office, Report to Congressional Requesters, 401(K) PLANS, Improved Regulation Could Better Protect Participants from Conflict of Interest, January 2011. 2. United States Government Accountability Office, Report to Congressional Requesters, 401(K) PLANS, Labor and IRS Could Improve the Rollover Process for Participants, March 2013. 3. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1. 4. Sommers Drug Stores Co. Employee Profit Sharing Tr. v. Corrigan Enterprises, Inc., 793 F.2d 1456, 1468 (5th Cir. 1986). 5. Fidelity Brokreage Servs. LLC v. James Pacholek, No. 07-333, Doc. 28-2, Doc. 28-6, Doc. 28-13 (N.D. Tx. Nov. 26, 2007). II. Materials Relating to the MIT Litigation 6. Amended and Restated Recordkeeping Agreement Between MIT and Fidelity Investments Institutional Operations Company, Inc., The MIT Supplemental 401(k) Plan, dated Oct. 22, 2001.

7. Settlement Agreement in Tracey v. Massachussetts Institute of Technology, No. 16-cv-11620-NMG, Doc. 290-1, dated Oct. 28, 2019.

8. Expert Report of Martin A. Schmidt, dated December 14, 2018. III. Secondary Sources A. Academic Sources 9. Lisa A. Austin, Why Privacy Is About Power, Not Consent or Harm, in A WORLD WITHOUT PRIVACY? WHAT LAW CAN AND SHOULD DO (Austin Sarat ed. 2015). 10. WOODROW HARTZOG, PRIVACY’S BLUEPRINT: THE BATTLE TO CONTROL THE DESIGN OF NEW TECHNOLOGIES (2018).

Case 1:16-cv-11620-NMG Document 302-9 Filed 03/27/20 Page 54 of 54

11. Woodrow Hartzog & Neil Richards, Privacy’s Constitutional Moment and the Limits of Data Protection, B.C. L. REV. (forthcoming June 2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3441502. 12. CHRIS JAY HOOFNAGLE, FEDERAL TRADE COMMISSION PRIVACY LAW AND POLICY (2016). 13. Chris Jay Hoofnagle, Bart van der Sloot & Frederik Zuiderveen Borgesius, The European Union general data protection regulation: what it is and what it means, INFO. & COMM. TECH. L., 28:1, 65-98, DOI: 10.1080/13600834.2019.1573501. 14. WILLIAM A. MCGEVERAN, PRIVACY AND DATA PROTECTION LAW (1st ed. 2016). 15. Joel R. Reidenberg, Setting Standards for Fair Information Practice in the U.S. Private Sector, 80 IOWA L. REV. 497 (1995). 16. Neil M. Richards, The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013). 17. Daniel J. Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy, 53 STAN. L. REV. 1393 (2001). 18. DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE DIGITAL AGE (2004). 19. Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114 COLUM. L. REV. 583 (2014).

B. Media Sources

20. CHARLES DUHIGG, THE POWER OF HABIT: WHY WE DO WHAT WE DO IN LIFE AND BUSINESS (2014); 21. Charles Duhigg, How Companies Learn Your Secrets, N.Y. TIMES, Feb. 16, 2012.

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DAVID B. TRACEY, et al.,

Plaintiffs,

v. No. 1:16-CV-11620-NMG

MASSACHUSETTS INSTITUTE OF TECHNOLOGY, et al.,

Defendants.

[PROPOSED] MEMORANDUM AND ORDER

Nathaniel M. Gorton, District Judge.

Class Counsel for Plaintiffs seek an award of attorneys’ fees, reimbursement of reasonable expenses, and compensation for class representatives from a common fund created from the class action settlement. The Court has reviewed Class Counsel’s request and supporting evidence, as well as attorney-fee and class-representative awards from similar cases and conducted a lodestar analysis. For the reasons stated herein, the Court will grant the motion.

BACKGROUND

On August 9, 2016, Plaintiffs filed this action alleging that Defendants breached their fiduciary duties and took part in prohibited transactions in operating the MIT Supplemental

401(k) Plan. Doc. 1.1 Prior to August 2016, no case had ever been brought by a private law firm,

the Department of Labor, or any other party or entity asserting claims of fiduciary breach for

excessive fees and imprudent investments on behalf of a university’s retirement plan. Since the

filing of this case, the parties engaged in over three years of litigation that included the

1 “Doc.” references are to the docket unless otherwise indicated.

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 2 of 10

production of over 185,000 pages of documents and the deposition of 19 fact witnesses and five

experts.

The Court granted class certification on October 19, 2018, certifying the following class:

All participants and beneficiaries of the MIT Supplemental 401(k) Plan from August 9, 2010 through the date of judgment, excluding the Defendants.

Doc. 157. On July 15, 2019, Defendants moved for summary judgment on all claims. Doc. 204.

On September 4, 2019, the Court granted in part and denied in part Defendants’ motion for

summary judgment. Doc. 274. This case was set for trial beginning on September 16, 2019. Doc.

233. The parties reached an agreement to settle the case on September 10, 2019.

ANALYSIS

I. Attorney’s Fees

Class Counsel requests attorneys’ fees of one-third of the settlement proceeds, or

$6,032,730. The requested fee of one-third of the monetary recovery is reasonable and

appropriate given the “significant risk of nonpayment” in these types of cases due to “the novel

nature of this case and adverse precedents.” Kruger v. Novant Health, Inc., No. 14-208, 2016

WL 6769066, at *4 (M.D.N.C. Sept. 29, 2016). In particular, for this case, the risk of

nonpayment was tremendous. The action settled just before trial, a high-stakes endeavor,

inherently fraught with risks and bearing enormous consequences, especially in light of the fact

that the only ERISA excessive fee case involving a university to go to trial in history resulted in

judgment for the Defendants. Sacerdote v. New York Univ., 328 F.Supp.3d 273 (S.D. N.Y.

2018). The risk of nonpayment is further illustrated by dismissals of similar excessive fee

allegations involving university retirement plans. See, e.g., Divane v. Northwestern Univ., No.

16-8157, 2018 WL 2388118 (N.D. Ill. May 25, 2018) (granting motion to dismiss) (affirmed on

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 3 of 10

appeal March 25, 2020, --- F.3d ---, 2020 WL 1444966 (7th Cir. Mar. 25, 2020)); Cunningham v.

Cornell Univ., No. 16-6525, 2019 WL 4735876 (S.D.N.Y. Sep. 27, 2019) (granting defendants’

summary judgment). Moreover, even if the class obtains a trial judgment, recovery is far from certain and years of appeals may follow.

A. Lodestar Analysis

Complex ERISA class action litigation, such as this, involves a national market. Defendants in this, and similar cases, retain large multi-national law firms and utilize attorneys from offices across the nation. The Court therefore finds that the relevant market rate for cases such as this is a nationwide market rate. This is consistent with the findings of numerous other district courts in similar excessive fee cases handled by Class Counsel. Kruger, 2016 WL 6769066, at *4

(collecting cases). Based on the documentation and arguments submitted by Class Counsel, the

Court approves the following hourly rates for Class Counsel: for attorneys with at least 25 years

of experience, $1,060 per hour; for attorneys with 15–24 years of experience, $900 per hour; for

attorneys with 5–14 years of experience, $650 per hour; for attorneys with 2–4 years of

experience, $490 per hour; and for Paralegals and Law Clerks, $330 per hour. The Court finds

that these rates are consistent with the rates charged by firms defending these types of complex

class actions. Class Counsel’s reasonable hourly rates were approved by district courts in similar

class action litigation in 2020. Kelly v. Johns Hopkins Univ., No. 16-2835, 2020 WL 434473, at

*6–7 (D. Md. Jan. 28, 2020); see also, e.g., Cassell v. Vanderbilt Univ., No. 16-2086, Doc. 174 at 3 (M.D. Tenn. Oct. 22, 2019).

These reasonable hourly rates were independently verified by a recognized expert in

attorney fee litigation who opined that Class Counsel’s requested rates were reasonable based on

rates charged by national attorneys of equivalent experience, skill, and expertise in complex class

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 4 of 10

action litigation. The Court brought the rates up to date based on 2016 hourly rates for Schlichter

Bogard & Denton previously approved in this District. Gordan v. Mass. Mutual Life Ins. Co.,

No. 13-30184-MAP, 2016 WL 11272044, at *3 (D. Mass. Nov. 3, 2016). This District adopted

the 2016 hourly rates that were previously approved by the Southern District of Illinois in Spano

v. Boeing Co., No. 06-743, 2016 WL 3791123, at *3 (S.D. Ill. Mar. 31, 2016). In light of the

close similarities between the fiduciary breach claims in those cases and this one, Schlichter

Bogard & Denton’s representation of the class in those cases and this one, Defendants’ counsel’s

involvement in many similar cases, including Spano and Tibble v. Edison Int’l, 135 S.Ct. 1823

(2015), and the recency of the decisions, the Court finds that these hourly rates are reasonable for

the services provided.

The hours expended are also reasonable. Class Counsel spent over 10,500 hours of attorney

and staff time on this matter to date. The Court finds that the time spent by Class Counsel on the

case is reasonable considering the complexity and number of contested issues throughout the

litigation. These hours are consistent with the hours expended litigating similar complex class

actions. See, e.g., Sims v. BB&T Corp., No. 15-1705, 2019 WL 1993519, at *2 (M.D.N.C. May

6, 2019) (Plaintiffs spent 18,200 hour prosecuting case to eve of trial); In re Xcel Energy, Inc.,

Sec., Derivative & “ERISA” Litig., 364 F.Supp.2d 980, 989 (D. Minn. 2005) (Plaintiffs’ counsel

spent a total of 10,401.67 hours prosecuting the case for two and a half years).

Using the approved rates set forth above, Class Counsel’s lodestar is $6,168,902, creating a multiplier of 0.97. “Once established, the lodestar represents a presumptively reasonable fee …

[.]” Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). The requested fee results in a multiplier far below the range approved in complex class actions in this District. See, e.g., Bacchi v. Mass.

Mutual Life Ins. Co., No. 12-11280-DJC, 2017 WL 5177610, at *5 (D. Mass. Nov. 8, 2017)

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 5 of 10

(finding that a 1.31 multiplier is low); see also Carlson v. Target Enterprise, Inc., No. 18-40139-

TSH, 2020 WL 1332829, at *2 (D. Mass. Mar. 23, 2020) (stating that 1.08 is a low multiplier);

Gordan 2016 WL 11272044, at *3 (approving 3.66 multiplier in a similar ERISA case); New

England Carpenters Health Bens. Fund v. First Databank, Inc., No. 5-11148-PBS, 2009 WL

2408560, at *2 (D. Mass. Aug. 3, 2009) (approving 8.3 multiplier); Conley v. Sears, Roebuck &

Co., 222 B.R. 181, 182 (D. Mass. 1998) (approving 8.9 multiplier); Roberts v. TJX Co., No. 13-

13142-ADB, 2016 WL 8677312, at *13 (D. Mass. Sep. 30, 2016)(collecting cases with

multipliers from 1 to 2).

B. Relevant Factors

In determining the reasonableness of class counsel’s fee award under either the percentage of

fund or lodestar method, the Court considered the following factors: (1) the time and labor

required, (2) the novelty or complexity of the issues, (3) the skill required, (4) customary fee, (5)

the preclusion of other employment by the attorneys, (6) the fixed or contingent nature of the fee,

(7) the time limitations imposed by the client or circumstances, (8) the damages involved and results obtained, (9) attorney experience, reputation and ability, (10) desirability of the case, (11) the nature and length of the client relationship and (12) the size of awards in similar cases.

Momenta Pharms., Inc. v. Amphastar Pharms., Inc., No. 11-11681-NMG, 2016 WL 2642997, at

*3 (D. Mass. May 9, 2016). Pursuant to these factors, the requested award is not only fair and

reasonable, it is warranted.

Class Counsel’s requested fee is amply justified by their work in this case. Litigating an

ERISA 401(k) breach of fiduciary duty claim involves managing a case with sparse, yet rapidly

evolving law, extremely complex facts, and analysis of a great number of documents. LaLonde v.

Textron, Inc., 369 F.3d 1, 6 (1st Cir. 2004) (noting the sparse jurisprudence relating to ERISA

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 6 of 10

breach of fiduciary duty claims) (citing In re Global Crossing Sec. & ERISA Litig., 225 F.R.D.

436, 459 n.13 (S.D.N.Y. 2004) (noting the esoteric, rapidly developing nature of ERISA breach

of fiduciary duty cases)). The subject matter is highly technical, including facts about prudent

investment practices, retirement industry best practices, fiduciary practices, and complex

financial matters, requiring the use of multiple experts for all parties. Demonstrating the novelty and complexity of the legal issues, during this case, both parties filed notices of conflicting supplemental authority on various questions of law. See, e.g., Docs. 55, 63, 68, 118. Class

Counsel devoted over 10,500 hours of attorney and staff time over three years to bring this case to an $18.1 million settlement. These hours were efficiently expended and are less than the approved hours expended in other similar cases.

Courts across the country have recognized the reputation, skill, and determination of Class

Counsel in pursuing relief on behalf of retirement plan participants. This Court agrees. In this

case, Class Counsel obtained a settlement that is multiples of the other university sponsored

retirement plan settlements handled by different law firms. See Short v. Brown Univ., No. 17-

318, Doc. 55 (D. R.I. Aug. 2, 2019) ($3.5 million; 41,780 class members); Daugherty v. Univ. of

Chi., No. 17-3736, Doc. 57-1 (N.D. Ill. Sept. 12, 2018) ($6.5 million; 14,838 class members).

The robust non-monetary relief herein also exceeds any relief obtained by other firms. The

superior result was reached because of Class Counsel’s well-earned and acknowledged

reputation as the pioneering law firm in retirement plan excessive fee litigation—a field Class

Counsel created—along with its diligent work in this case.

The decision to pursue this case, advance substantial costs and commit substantial resources

and thousands of attorney hours to obtain a successful recovery materially impacted Class

Counsel’s ability to handle other matters. The commitment to litigation like this may require tens

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 7 of 10

of thousands of hours, years of litigation, trial, appeals, and other proceedings. Given this reality,

despite Class Counsel’s success in similar litigation, few law firms have the necessary expertise

and are willing take the risk and devote the substantial resources necessary, all at risk of

nonpayment, to litigate these complex ERISA claims.

Obtaining the $18.1 million settlement in this case required Class Counsel to remain

committed to the litigation throughout, and entailed significant risk of nonpayment. Class

Counsel’s efforts resulted in significant benefits to the Class. Current participants will receive

their distributions directly into their accounts tax deferred and former participants have the right

to direct their distribution into a tax-deferred vehicle, such as an Individual Retirement Account.

The Investment Company Institute estimates that the present value of the benefit of tax deferral for 20 years is an additional 18.6%,2 and this Court adopts that value. This Court finds that the actual value to the class of the monetary portion of the settlement is $21,466,600, when this tax-

deferred benefit is taken into account.

Although the $18.1 million monetary component alone would support the requested fee

award, the Court must also consider the value of the non-monetary relief when evaluating the

overall benefit to the class. Bezdek v. Vibram USA Inc., 79 F. Supp. 3d 324, 346–47 (D. Mass.

2015); see also Blanchard v. Bergeron, 489 U.S. 87, 95 (1989) (cautioning against an

“undesirable emphasis” on monetary “damages” that might “short-change efforts to seek

effective injunctive or declaratory relief”). The affirmative relief Class Counsel obtained is extensive and provides substantial additional value to the Class.

2 Peter Brady, Marginal Tax Rates and the Benefits of Tax Deferral, Investment Company Institute, Sept. 17, 2013, http://www.ici.org/viewpoints/view_13_marginal_tax_and_deferral. 7

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 8 of 10

Class Counsel engaged Dr. Stewart Brown, a nationally recognized economist, at no

expense to the Class, to provide the Court with an estimate of the economic benefits that will be

achieved by the above non-monetary relief. Dr. Brown determined that the reduction in

recordkeeping fees through the competitive bidding process for recordkeeping services provides

an additional benefit to the class of $2,241,428, with a present value of $2,212,367.

Class Counsel engaged Professor Neil Richards, an internationally recognized data privacy expert, at no cost to the Class, to provide the Court with an opinion about the value of the provision requiring Defendants to prohibit the Plan’s recordkeeper from proactively soliciting

Plan participants. Professor Richards determined that because of a required and enforceable non-

solicitation provision in the Settlement Agreement, Plan participants will save as much as $5.8

million over the next three years. The Court finds that Professor Richards and Dr. Brown provide

reliable analysis of the estimated economic benefits the Class will achieve through the

settlement. As a result, the Court will consider these benefits in the economic value of the

common fund that Class Counsel created through their diligent efforts.

Taking into account the benefit of tax deferral and saving from the non-monetary relief

provisions, the settlement is valued at $29,478,967. Thus, Class Counsel’s requested fee is 20%

of the total benefit to the Class. This is a conservative estimate because it does not take into

account additional benefits that are provided through other non-monetary terms.

II. Expenses

Under Rule 23(h), a trial court may award nontaxable costs that are authorized by law or the

parties’ agreement. Fed. R. Civ. P. 23(h). A cost award is authorized by both the parties’

settlement agreement and the common fund doctrine. Doc. 290-01 at 3, 21 (§§2.4, 7.1). Class

Counsel brought this case without guarantee of reimbursement or recovery. There was a strong

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 9 of 10

incentive to limit costs. Given the complexity of this case, the costs incurred are much lower than what would be expected in a case of this magnitude that was litigated for years and settled on the eve of trial. Here, Class Counsel requests reimbursement of expenses in the amount of

$522,021.93. The requested expenses are all for legitimate costs associated with prosecuting the case and the amounts are reasonable. The Court finds that Class Counsel’s request is fair and reasonable and will approve it.

III. Class Representatives

In their discretion, Courts typically award special compensation to class representatives in recognition of their time and effort. In re Relafen Antitrust Litig., 231 F.R.D. 52, 82 (D. Mass

2005). “A substantial incentive award is appropriate in [a] complex ERISA case given the benefits accruing to the entire class in part resulting from [named plaintiff’s] efforts.” Savani v.

URS Prof’l Solutions LLC, 121 F.Supp.3d 564, 577 (D.S.C. 2015). Here, Class Counsel requests a case contribution award of $25,000 each for Class Representative. The Class Representatives provided invaluable assistance to Class Counsel in prosecuting the case. They also risked their reputation and alienation from employers or peers in bringing an action against a prominent institution in their community.

The Court finds that the requested case contribution award for the Class Representatives is reasonable and appropriate given their contributions to the action. This amount is consistent with awards in similar excessive fee settlements. See Kruger, 2016 WL 6769066, at *6 (collecting cases awarding $25,000 to each named plaintiff).

Case 1:16-cv-11620-NMG Document 302-10 Filed 03/27/20 Page 10 of 10

It is ORDERED that:

1. Class Counsel’s motion for attorneys’ fees, reimbursement of expenses, and case

contribution awards for named plaintiffs is GRANTED.

2. The Court awards Class Counsel an attorney’s fee of $6,032,730, to be paid from the

settlement amount.

3. The Court awards Class Counsel expenses of $522,021.93, which are to be paid from the

settlement amount.

4. The Court awards a case contribution award of $25,000 each for Class Representatives

David B. Tracey, Daniel Guenther, Maria T. Nicholson, and Corrinne R. Fogg, also to be

paid from the settlement amount.

This is the _____ day of ______, 2020.

______UNITED STATES DISTRICT JUDGE