Case 4:14-md-02541-CW Document 1169-3 Filed 03/26/19 Page 1 of 174 1 Steve W. Berman (pro hac vice) Jeffrey L. Kessler (pro hac vice) Craig R. Spiegel (SBN 122000) David G. Feher (pro hac vice) 2 Emilee N. Sisco (pro hac vice) David L. Greenspan (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP Joseph A. Litman (pro hac vice) 3 1918 Eighth Avenue, Suite 3300 WINSTON & STRAWN LLP Seattle, WA 98101 200 Park Avenue 4 Telephone: (206) 623-7292 New York, NY 10166-4193 Facsimile: (206) 623-0594 Telephone: (212) 294-6700 5 [email protected] Facsimile: (212) 294-4700 [email protected] [email protected] 6 [email protected] [email protected] [email protected] 7 Jeff D. Friedman (SBN 173886) [email protected] HAGENS BERMAN SOBOL SHAPIRO LLP 8 715 Hearst Avenue, Suite 202 Sean D. Meenan (SBN 260466) Berkeley, CA 94710 Jeanifer E. Parsigian (SBN 289001) 9 Telephone: (510) 725-3000 WINSTON & STRAWN LLP Facsimile: (510) 725-3001 101 California Street 10 [email protected] San Francisco, CA 94111 Telephone: (415) 591-1000 11 Bruce L. Simon (SBN 96241) Facsimile: (415) 591-1400 Benjamin E. Shiftan (SBN 265767) [email protected] 12 PEARSON, SIMON & WARSHAW, LLP [email protected] 44 Montgomery Street, Suite 2450 13 San Francisco, CA 94104 Class Counsel for Jenkins and Consolidated Telephone: (415) 433-9000 Action Plaintiffs 14 Facsimile: (415) 433-9008 [email protected] 15 [email protected] 16 Class Counsel for Jenkins and Consolidated Action Plaintiffs 17 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 OAKLAND DIVISION 21 IN RE: NATIONAL COLLEGIATE ATHLETIC Case No. 4:14-md-2541-CW ASSOCIATION ATHLETIC GRANT-IN-AID 22 CAP ANTITRUST LITIGATION DECLARATION OF STEVE W. 23 BERMAN IN SUPPORT OF MOTION FOR AWARD OF ATTORNEYS’ 24 FEES AND REIMBURSEMENT OF This Document Relates to: EXPENSES 25 ALL ACTIONS EXCEPT 26 Jenkins v. Nat’l Collegiate Athletic Ass’n, Case No. 14-cv-02758-CW 27 28 DECLARATION OF STEVE W. BERMAN CASE NO. 4:14-MD-02541-CW Case 4:14-md-02541-CW Document 1169-3 Filed 03/26/19 Page 2 of 174 1 I, Steve W. Berman, declare: 2 1. I am the managing partner of the law firm Hagens Berman Sobol Shapiro LLP 3 (“Hagens Berman”), co-counsel of record for Plaintiffs. Based on personal knowledge or discussions 4 with counsel in my firm of the matters stated herein, if called upon, I could and would competently 5 testify thereto. 6 2. On December 4, 2015, this Court appointed Hagens Berman as co-lead counsel along 7 with Pearson Simon & Warshaw LLP (“Pearson Simon”) and Winston & Strawn LLP (“Winston 8 Strawn”) for the injunctive relief classes in this litigation. [ECF No. 305]. 9 3. The background and experience of Hagens Berman and the principal attorneys who 10 performed work on this case are summarized in the updated firm resume attached hereto as Exhibit 11 A. 12 FEES AND COSTS ATTRIBUTABLE TO THE DAMAGES PORTION OF THE CASE 13 4. As the Court is aware, a subset of plaintiffs (the “Damages Plaintiffs”) also pursued 14 claims for damages against Defendants. Those claims were settled in February 2017 for a total of 15 $208,664,445. 16 5. On September 5, 2017, counsel for the Damages Plaintiffs filed a motion for fees, 17 expenses, and service awards in connection with the damages settlement. [ECF No. 688]. On 18 September 6, 2017 and September 12, 2017, I submitted declarations in support of that motion. [ECF 19 Nos. 689 and 697]. 20 6. Those declarations explained the extensive work that my firm performed in 21 conjunction with the damages part of this litigation, including: investigation and fact discovery, 22 written discovery, document review, motion practice, depositions, client and class communications 23 and settlement negotiation. 24 7. Because only the damages portion of this case had settled at the time of my prior 25 declarations, Hagens Berman excluded fees or expenses that were exclusively or primarily related to 26 the injunctive relief portion of the case. [See ECF No. 697 at ¶ 3]. For example, time spent drafting 27 and editing the Rule 23(b)(2) injunction class certification brief, attending the Rule 23(b)(2) 28 1 DECLARATION OF STEVE W. BERMAN CASE NO. 4:14-MD-02541-CW Case 4:14-md-02541-CW Document 1169-3 Filed 03/26/19 Page 3 of 174 1 injunction class certification hearing, working with experts on merits reports for the injunctive side 2 of the case, and working on Plaintiffs’ motion for summary judgment and Daubert motions, was 3 excluded. 4 8. Although a substantial amount of the work performed in connection with the damages 5 claims also related to, and bore significant fruit for purposes of our class-certification, summary- 6 judgment, and trial proceedings related to the injunctive claims, Hagens Berman does not seek now 7 to recover any portion of the attorneys’ fees and/or costs that were already awarded from the 8 damages settlement. Instead, we have calculated and included herein, only the fees and expenses 9 specifically attributable to work done for the injunctive portion of this case as outlined below. 10 WORK PERFORMED ON BEHALF OF THE INJUNCTIVE RELIEF CLASSES 11 9. Hagens Berman has had an integral role in performing and coordinating all manner of 12 tasks related to the injunctive relief portion of this case at each phase of the litigation, including 13 initial case investigation, filing of complaints, discovery, class certification, dispositive motion 14 practice, and trial preparation. 15 10. In the earlier phases of the case, Hagens Berman spent a significant amount of time 16 and resources briefing, arguing and obtaining injunctive-class certification, including extensive work 17 with Plaintiffs’ economics expert Dr. Daniel Rascher, who prepared a lengthy report in support of 18 class certification. The firm also prepared for and defended the depositions of several injunctive 19 relief class representatives. 20 11. Hagens Berman worked extensively with Plaintiffs’ experts throughout this case. My 21 firm retained and worked particularly closely with Dr. Rascher, including preparing for his 22 depositions and assisting as he drafted his merits reports and trial testimony. Over the course of this 23 litigation, Hagens Berman attorneys had numerous meetings and calls with Dr. Rascher as well as 24 Plaintiffs’ other experts. The firm assisted these experts and their staffs in identifying and gathering 25 the materials relevant to their expert analyses. 26 12. Hagens Berman played a critical role in nearly every aspect of Plaintiffs’ trial 27 preparation. This process was a tremendous undertaking, particularly due to the fact that the trial 28 2 DECLARATION OF STEVE W. BERMAN CASE NO. 4:14-MD-02541-CW Case 4:14-md-02541-CW Document 1169-3 Filed 03/26/19 Page 4 of 174 1 schedule was expedited to accommodate defense counsel. Throughout the litigation, and even more 2 frequently in the months leading up to trial, Hagens Berman attorneys had numerous conference calls 3 and meetings with co-counsel regarding trial strategy, status and assignments, and internal case 4 management issues. 5 13. The firm devoted considerable time on work related to all of the major pre-trial 6 briefing and written submissions to the Court on behalf of Plaintiffs. Hagens Berman attorneys 7 contributed substantially to Plaintiffs’ legal research and briefing strategy, and worked closely with 8 co-counsel throughout all stages of drafting and editing. 9 14. For example, Hagens Berman was heavily involved in the analyzing, drafting and 10 editing of all briefing related to the parties’ motions for summary judgment and also spent substantial 11 time researching and drafting briefs in connection with the parties’ Daubert motions. In addition, the 12 Court ordered both parties to submit written opening statements and direct expert testimony in 13 advance of trial, along with deposition designations, witness and exhibit lists, and motions in limine. 14 Hagens Berman attorneys were extensively involved in each of these projects. 15 15. Hagens Berman attorneys spent hundreds of hours organizing and reviewing the 16 voluminous documentary record (in excess of 680,000 documents spanning more than six million 17 total pages) in order to identify materials for use at trial and in Plaintiffs’ pre-trial motions. Along 18 with co-counsel, Hagens Berman attorneys also went through the laborious process of analyzing all 19 of the materials proposed on Defendants’ initial exhibit list (totaling more than 1,000 documents). 20 Hagens Berman participated in lengthy meet and confer negotiations to address objections raised by 21 all parties with respect to documents on the exhibit lists. 22 16. Hagens Berman attorneys also expended significant amounts of time reviewing and 23 designating deposition testimony for trial and working with co-counsel to negotiate numerous 24 disputes regarding the admissibility of the parties’ proffered designations. The parties ultimately 25 jointly submitted final deposition designations from thirty-seven depositions, consisting of nearly 26 1,000 pages of testimony. 27 28 3 DECLARATION OF STEVE W. BERMAN CASE NO. 4:14-MD-02541-CW Case 4:14-md-02541-CW Document 1169-3 Filed 03/26/19 Page 5 of 174 1 17. Hagens Berman worked extensively on Plaintiffs’ forty-seven-page opening 2 statement, including by taking the lead in drafting the sections refuting Defendants’ primary 3 purported procompetitive justification related to the NCAA’s concept of amateurism. 4 18. Hagens Berman played a leading role as a member of Plaintiffs’ trial team. Hagens 5 Berman prepared for and handled the direct and/or cross examinations of numerous live witnesses at 6 trial.