2012-09-14 (WDTN) (37) - LLF, Et Al. V DNPUSA, Et Al. Defendants Petition For Reasonable Attorney Fee (00265887)

Case 2:12-cv-02143-STA-cgc Document 37 Filed 09/14/12 Page 1 of 12
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
LIBERTY LEGAL FOUNDATION, JOHN DUMMETT, LEONARD VOLODARSKY, CREG MARONEY, Plaintiffs, vs. NATIONAL DEMOCRATIC PARTY OF THE USA, INC., DEMOCRATIC NATIONAL COMMITTEE, TENNESSEE DEMOCRATIC PARTY, DEBBIE WASSERMAN SCHULTZ, and CHIP FORRESTER, Defendants.
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Case No. 2:12-cv-02143-cgc
Removal of Case No. CH-11-1757-3 From Chancery Court for the State of Tennessee in Shelby County
DEFENDANTS PETITION FOR REASONABLE ATTORNEY FEE Pursuant to this Courts August 24, 2012 Order Granting in Part, Denying in Part Defendants Motion for Sanctions (Dkt. 32, the Sanction Order), Defendants, the Tennessee Democratic Party (TNDP), and Chip Forrester (collectively the TNDP Defendants and together with the Democratic National Committee and Debbie Wasserman Schultz the Defendants) file this Petition for Reasonable Attorney Fee. The TNDP Defendants filed a Motion for Sanctions (Dkt. 25, the Sanctions Motion) requesting the Court impose sanctions against Plaintiffs Liberty Legal Foundation, John Dummett, Leonard Volodarsky and Creg Maroney (collectively the Plaintiffs) and Plaintiffs counsel because Plaintiffs claims are: 1) offered for an improper purpose; 2) not warranted under existing facts and law and are frivolous; and/or 3) aimed at unreasonably and vexatiously imposing undue costs on the Defendants. The Sanctions Order granted in part this Sanctions Motion and specifically granted sanctions against Plaintiffs counsel as follows:
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Defendants are granted sanctions in the form of reasonable attorney fees related to the preparation and briefing of the motion to dismiss in which they raised the issue of standing. (Sanctions Order at 11.) The Court then requested the TNDP Defendants submit this Petition for recovery of fees subject to the Courts Sanctions Order. FACTUAL BACKGROUND Plaintiffs initially filed this case in Shelby County Chancery Court and Defendants successfully removed this case to this Court. (Dkt. 1.) The operative complaint in this action is a class action complaint seeking injunctive relief for the extraordinary purpose of keeping Barack Obama off the Tennessee ballot for the upcoming November 2012 election. Complaint 1, 52-59.) Although the Defendants immediately recognize the Complaints frivolity, given the extraordinary relief requested and the complexity of class actions, the Defendants felt the need to act quickly and decisively to dismiss this case. Accordingly, the Defendants filed three motions to dismiss (Dkt. 4, 6 and 8) pursuant to Fed. R. Civ. P 12(b)(1) and (6), 12(b)(2) and 12(b)(3), and sent a Rule 11 letter requesting that the Plaintiff immediately dismiss the lawsuit (Dkt. 26, Ex. A). Shortly after parties fully briefed these motions, the Court granted the Defendants consolidated Rule 12(b)(1) and (6) Motion to Dismiss (Dkt. 4, the 12(b)(1) Motion to Dismiss) on the basis that the Court lacked subject matter jurisdiction because the Plaintiffs lacked standing to pursue their claims. (Dkt. 31.) That Order is now final. Thereafter, the Court granted the TNDP Defendants Sanctions Motion and found that the TNDP Defendants counsel is entitled to the fees it incurred in drafting the consolidated Rule 12(b)(1) and (6) Motion to Dismiss. (Dkt. 4 and 5.) The TNDP Defendants counsel have expended a total amount of 197.2 hours in defending against this action as of August 31, which constitutes, under the current, applicable
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billing rates for the respective attorneys performing that work, a total fee amount of $69,932.50. (Declaration of Benjamin A. Gastel, 2 (hereinafter Gastel Decl..) 1 Given that the Sanctions Order grants sanctions for only part of this work, the TNDP Defendants counsel has reviewed the time entries and seeks a sanction award for a total number of 61.3 hours, which constitutes under the current, applicable billing rates for the respective attorneys performing the applicable work, a total fee amount of $22,800. The breakdown for this allocation is as follows:
Attorney Mr. Benjamin A. Gastel Mr. J. Gerard Stranch, IV Mr. James G. Stranch, III Total
Total Time 135.4 16.8 14.8 167.0
Total Sanctionable Time 48.0 9.1 4.2 61.3
Billable Rate $ 300 $ 600 $ 700
Total Sanction Fee $ 14,400 $ 5,460 $ 2,940 $ 22,800
Attorney Benjamin A. Gastel performed the vast majority of work on this case expending a total amount of 135.4 hours of time in this action. (Gastel Decl., 3.) As is customary in the profession, Mr. Gastel billed his time on an hourly basis and provided a daily narrative for the work he performed on a given day. (Gastel Decl., 2 and Ex. A.) Given that Mr. Gastel did not know until after the Sanctions Order that he should have allocated his time for each respective motion to dismiss, Mr. Gastels time entries reflect daily total of hours for all work tasks. (Gastel Decl., 2 and Ex. A.) As a result, Mr. Gastel cannot say with absolute certainty the exact amount of time he expended strictly in performing work associated with the Rule 12(b)(1) Motion to Dismiss. Nevertheless, given the narrative description of his daily time entries, Mr. Gastel can competently estimate the time devoted to the 12(b)(1) Motion to Dismiss and the Sanctions
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A copy of this declaration is attached as Attachment 1. 3
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Motion. (Gastel Decl., 3 and Ex. A.) Of the 135.4 hours Mr. Gastel worked on this case, Mr. Gastel estimates that 48.0 hours were devoted to researching, drafting, and editing the Rule 12(b)(1) Motion to Dismiss and Sanctions Motion. (Gastel Decl., 3 and Ex. A.) A full breakdown of this calculation is provided as Exhibit A to the Gastel Declaration. As the Court can see by reviewing the document attached to the Gastel Decl., Mr. Gastel spent the majority of his sanctionable time focused on researching, drafting, and editing the 12(b)(1) Motion to Dismiss and the Sanctions Motion. Mr. Gastel arrived at his calculation by omitting time for any daily entry that did not mention work on the motions to dismiss or the motion for sanctions and by allocating 2/3 of the daily time towards the Rule 12(b)(1) Motion to Dismiss when the narrative identified that work consisted of tasks devoted to the motions to dismiss. (Gastel Decl., 2-3 and Ex. A.) Except that for the entry of February 1, 2012, the entry was reduced by 1/2 as a result of the fact that the time for this day also included researching Rule 11 sanctions. Additionally, this estimation includes time expended on the Motion for Sanctions. Given that the Court denied sanctions under Rule 11, but granted the Motion for Sanctions under 28 U.S.C. 1927, Mr. Gastel has reduced his time by 1/3 for any entry that mentions the motion for sanctions as this is a reasonable estimation of the time devoted to drafting, researching, and filing the portions of Sanctions Motion which the Court granted. (Gastel Decl., 2 and Ex. A.) Mr. J. Gerard Stranch, IV also had time devoted to the 12(b)(1) Motion to Dismiss and the Sanctions Motion, and his time keeping has been adjusted in the same fashion as Mr. Gastels time. (Declaration of J. Gerard Stranch, 2 and Ex. A (G. Stranch Decl..) 2 As a result, Mr. Stranch expended a total amount of 16.8 hours related to this case and can competently estimate that he expended a total amount of 9.1 hours related to the 12(b)(1) Motion to Dismiss and the
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Sanctions Motion. (G. Stranch Decl., 2 and Ex. A.) As the Court can see by reviewing the documents attached to the G. Stranch Decl., Mr. Gerard Stranch spent the majority of his sanctionable time editing the 12(b)(1) Motion to Dismiss and the Sanctions Motion and requesting additional research into certain issues arising under both motions. Mr. James G. Stranch, III also had time devoted to the 12(b)(1) Motion to Dismiss and the Sanctions Motion, and his time keeping has been adjusted in the same fashion as Mr. Gastels time. (Declaration of James G. Stranch, 2 and Ex. A (J. Stranch Decl..) 3 As a result, Mr. Stranch expended a total amount of 14.8 hours related to this case and can competently estimate that he expended a total amount of 4.2 hours related to the 12(b)(1) Motion to Dismiss and the Sanctions Motion. (J. Stranch Decl., 2 and Ex. A.) As the Court can see by reviewing the
documents attached to the J. Stranch Decl., Mr. J. Stranch spent the majority of his sanctionable time reviewing and editing the 12(b)(1) Motion to Dismiss and the Sanctions Motion. Mr. Gastels billing rate is $300 per hour. Mr. Gastel is a senior associate at Branstetter, Stranch, and Jennings, PLLC and has been practicing law since 2007 and has close to 5 years of experience in areas of complex and general litigation. (Gastel Decl. 4.) Mr. Gerard Stranch bills at $600 per hour. (G. Stranch Decl, 3.) Mr. G. Stranch is the senior partner at Branstetter, Stranch, and Jennings, PLLC in charge of the firms Class Action, Complex Litigation and Mass Tort Practice Group, and is currently the General Counsel to the Tennessee Democratic Party. (G. Stranch Decl, 3.) He has been practicing law since 2003 and has extensive experience in areas of complex and general litigation and election law. (G. Stranch Decl, 3.) Mr. G. Stranch is an adjunct professor at Vanderbilt School of Law and has been recognized by his peers as an expert in Class Action practice. (G. Stranch Decl, 3.)
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Mr. James Stranch bills at $700 per hour. (J. Stranch Decl, 3.) Mr. James Stranch is a senior partner at Branstetter, Stranch, and Jennings, PLLC and has significant experience in the areas of complex and general civil litigation. (G. Stranch Decl, 3.) He has been practicing law since 1973 and has extensive experience in areas of complex and general litigation and election law. (J. Stranch Decl, 3.) According to Charles Baum, Ph.D. Professor of Economics and Finance at the Department of Economics and Finance at the Middle Tennessee State University, these rates are consistent with the prevailing rates of attorneys with similar expertise and experience in the geographical area applicable to this case. (Declaration of Charles Baum, 19-20, hereinafter Baum Decl.) 4 Specifically, Mr. Baum concluded that reasonable hourly rates for Mr. Gastel are $302.92 per hour, for Mr. Gerard Stranch, $491.53 and for Mr. James Stranch, $740.08 and that these raise are well within the range of rates charged by similar attorneys with similar experience. (Baum Decl. 11, 19-20.) Additionally, Mr. Jef Feibelman, a partner at Burch, Porter & Johnson, PLLC, also reviewed fee petitions in other class cases in this district. Based on Mr. Feibelmans review of relevant fee petitions, Mr. Feibelman concluded that reasonable hourly rates for Mr. Gastel are $300 per hour, for Mr. G. Stranch are $600 per hour, and for Mr. J. Stranch are $700 per hour. (Declaration of J. Feibelman, 9-11, hereinafter Feibelman Decl..) 5 In summary, counsel seeks a sanction award of $22,800, which constitutes the fee associated with drafting, researching, and editing the Rule 12(b)(1) Motion to Dismiss along with drafting, researching, and editing the Sanctions Motion.
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A copy of this declaration is attached as Attachment 4. A copy of this declaration is attached as Attachment 5. 6
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ARGUMENT The TNDP Defendants maintain that the amount of $22,800 for attorneys fees and costs is reasonable due to the nature of the case before this Court and is a reasonable estimate of the time devoted to drafting, researching, and editing the 12(b)(1) Motion to Dismiss and the portion of the Sanctions Motion which this Court granted. The primary concern in awarding a fee is that the fee must be reasonable. See Blum v. Stenson, 465 U.S. 886, 893 (1984). A reasonable fee is one that is adequate to attract competent counsel, butdoes not produce windfalls to attorneys. Id. at 897. Generally, the amount of attorney's fees is determined by the "lodestar" method, in which fees are "calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blanchard v. Bergeron, 489 U.S. 87, 94 (1989) (quoting Blum, 465 U.S. at, 888. In making a determination of an award of attorneys fees, the Sixth Circuit in Reed v. Rhodes, 179 F.3d 453, 471-473 has adopted the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). 6 This approach is consistently used in
determining the reasonableness of fees awarded for sanctionable conduct. See e.g. Jones v. Ill. Cent. R.R. Co., 2011 U.S. Dist. LEXIS 99065 (W.D. Tenn. 2011); Jarbo v. Fifth Third Bank, 2011 U.S. Dist. LEXIS 21217 (E.D. Mich. 2011). Thus, when considering an award of attorneys fees, a court first determines the lodestar amount by multiplying the reasonable number of hours billed by a reasonable billing rate, and
These factors are: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal service properly; the preclusion of other employment by the attorney due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time limitations imposed by the client or the circumstances; the amount involved and the results obtained; the experience, reputation, and ability of the attorneys; the "undesirability" of the case; the nature and length of the professional relationship with the client; and awards in similar cases. Failure to consider these factors and to reflect such consideration in the record constitutes an abuse of discretion. Johnson, 488 F.2d at 717-18.
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then adjusts that amount with the Johnson factors. See Jarbo, 2011 U.S. Dist. LEXIS 21217, * 6-7. Although the TNDP Defendants have a reasonable basis to conclude that the lodestar fee could be adjusted upwards based on the Johnson factors, in taking a conservative approach to their fee request, the TNDP Defendants decline to seek an upward adjustment of the lodestar fee. Accordingly, the only question presented by this Petition is whether the $22,800 fee represents an appropriate lodestar calculation (i.e. whether this award represents a reasonable number of hours at a reasonable hourly rate). 1. The TNDP Defendants Counsels Rates Are Reasonable In order to determine whether Defendants requested hourly rates are reasonable, the Court looks to "'[rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.'" Hadix v. Johnson, 65 F.3d 532, 536 (6th Cir. 1995) (quoting Blum, 465 U.S. at 896, n.11). In support of the rates requested for Messrs. Gastel, Stranch, and Stranch, the TNDP Defendants submitted the declaration of an economist with significant experience in the rates charged by similar attorneys for similar work. Mr. Baum concluded that associates like Mr. Gastel regularly bill at rates between $233-$426 and partners like Messrs. Stranch and Stranch regularly bill at rates between $595-$939. (Baum Decl., 19-20.) Mr. Gastels proposed rate of $300 and Mr. Gerard Stranchs proposed rate of $600 and Mr. Jim Stranchs proposed rate of $700 are at the lower end of these distributions and imminently reasonable based on the prevailing rates in the community for similar services. (Baum Decl. 19-20.). Additionally, Mr. Feibelman provided testimony that these rates are consistent with rates already approved for similar work in this jurisdiction. (Feibelman Decl. 9-11.) Further support for these rates can be found in opinions that have explicitly approved these rates or previous rates. See e.g., Owens v. Carrier Corp., Case No. 08-CV-02331, Dkt. No.
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50 (2010 W.D. TN.) (J. Mays) (approving rates in a class action WARN Act case of $300 for associates and $500-695 for senior partners). In fact, Judge Mays in the Carrier case at the final approval fairness hearing stated the following: Also, the hourly rates are high relative to what I remember about private practice but I will say that even ten years ago when I left the practice, when I was -- eight years ago when I actually left it, $500 an hour would not have been an excessive fee in [the Memphis] market. Id. Transcript of Final Fairness Hearing at p. 26, a true and correct copy of which is attached as Attachment 6. 2. The TNDP Defendants Counsels Hours Are Reasonable The TNDP Defendants seek compensation for 61.3 hours in drafting, researching, and editing the Rule 12(b)(1) Motion to Dismiss and the portion of the Sanctions Motion which this Court granted. The Rule 12(b)(1) motion was approximately 19 pages in length and required significant research into the highly case specific issues of standing. Furthermore, this Motion required significant time in researching the now plethora of cases raising the exact same issues raised by Plaintiffs complaint, namely the issue of whether President Barack Obama satisfies Article IIs requirements to hold the office of President of the United States. As detailed in the numerous filings in this case, no less than 18 state and federal cases have raised this issue and as already explained to this Court, many of these cases, if not the majority of them, have been dismissed for lack of standing. (Sanctions Motion at 2-3.) The nature of the allegations in the Plaintiffs Complaint compelled the TNDP Defendants counsel to expend significant amount of time familiarizing themselves with this growing body of case law and then monitor the development in these cases, since the issue of standing is such a central issue raised by each of these claims. Accordingly, given the nature of the claims raised and the growing body of
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directly-applicable case law, the fact that the TNDP Defendants counsel expended 61.3 hours on drafting, researching, and editing the Rule 12(b)(1) Motion to Dismiss and the Sanctions Motion is imminently reasonable. Moreover, the TNDP Defendants counsel have reasonably estimated the amount of time devoted to these motions and has adjusted their time records to reflect a reasonable estimation of time spent on sanctionable activities given the nature of counsels time keeping method. In fact, it is customary when a sanction award only covers certain tasks for counsel to use daily narrative descriptions to retroactively estimate the time expended on specific tasks. See e.g., Ceglia v. Zuckerberg, 2012 U.S. Dist. LEXIS 18438, Case No. 10-CV-0569A(F), *49-52 (W.D.N.Y.) (discussing the fact that block billing of time records does not preclude finding that time expended on certain tasks was reasonable and noting that a broad percentage reduction across time can be a reasonable basis for determining hours spent on sanctionable tasks); Leser v. U.S. Bank N.A., 2012 U.S. Dist. LEXIS 21626, Case No. 09-CV-2362, * 15-17 (E.D.N.Y.) (holding that [g]enerally, when billing records reveal repeated use of block billing courts have used percentage reductions as a practical means of trimming fat from a fee application and accepting such good faith attempts by counsel to break down each time entry to the portion of the entry subject to a sanctions motion); see also Hensley, 461 U.S. at 437, n.12 (holding that "[p]laintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended," but rather "should identify the general subject matter of his time expenditures."); Pittsburgh & Conneaut Dock Co. v. Dir., 473 F.3d 253, 273 (6th Cir. 2007) (holding that block billing does not preclude a fee award and that counsels detailed descriptions of his activities, although not further described by time spent on each individual activity, is sufficient to assess whether the cost of the service is reasonably related to the quality or extent of service); Traditional Cat Ass'n v. Gilbreath, 340 F.3d 829 (9th Cir. 2003)
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(Where a district court must apportion attorney's fees, the impossibility of making an exact apportionment does not relieve the district court of its duty to make some attempt to adjust the fee award in an effort to reflect an apportionment.) The TNDP Defendants counsel has adequately attempted to reduce hours worked on sanctionable tasks and therefore the fee request properly seeks compensation for all reasonable hours expended on compensable tasks. Leser, 2012 U.S. Dist. LEXIS 21626, Case No. 09-CV2362, * 15-17. Additionally, given that the Rule 12(b)(1) Motion to Dismiss was 19 pages in length and the other two motions to dismiss were a combined 13 pages in length, the TNDP Defendants counsels reduction of narrative time by 1/3 is a reasonable estimate of time solely devoted to the Rule 12(b)(1) Motion to Dismiss. CONCLUSION Given the foregoing, the TNDP Defendants request a fee award of $22,800, which constitutes a reasonable lodestar calculation for the time expended on the Rule 12(b)(1) Motion to Dismiss and the Sanctions Motion. Submitted this 14th day of September, 2012.
By:
/s/ J. Gerard Stranch, IV J. Gerard Stranch, IV (BPR #023045) Benjamin A. Gastel (BPR# 028699) BRANSTETTER, STRANCH & JENNINGS, PLLC 227 Second Avenue North, 4th Floor Nashville, TN 37201-1631 Telephone: 615/254-8801 Facsimile: 615/250-3932 gerards@branstetterlaw.com beng@branstetterlaw.com Counsel for the Tennessee Democratic Party and Chip Forrester
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CERTIFICATE OF SERVICE I hereby certify that the foregoing was served via the Courts CM/ECF system, on September 14, 2012, upon:
Van Irion Liberty Legal Foundation 9040 Executive Park Dr., Ste. 200 Knoxville, TN 37923 /s/ J. Gerard Stranch, IV J. Gerard Stranch, IV
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Case 2:12-cv-02143-STA-cgc Document 37-1 Filed 09/14/12 Page 1 of 4
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE LIBERTY LEGAL FOUNDATION, et al. Plaintiff, v. NATIONAL DEMOCRATIC PARTY OF THE USA, INC., et al. Defendant. Hourly Fee Estimate for Mr. Benjamin A. Gastel, Mr. James G. Stranch III, and Mr. J. Gerard Stranch IV. 1. I am Charles L. Baum II, Ph.D., Professor of Economics and Finance in ) ) ) ) ) ) ) ) )
No. 2:12-cv-01243-cgc
the Department of Economics and Finance at Middle Tennessee State University. 2. 3. I also serve as Chair of the MTSU Department of Economics and Finance. I earned a Ph.D. in Economics from the University of North Carolina at
Chapel Hill and a B.A. in Political Science from Wake Forest University. My full curriculum vitae is attached to this report. 4. In this report, I provide an estimate of the hourly fee I believe Mr.
Benjamin A. Gastel, Mr. James G. Stranch III, and Mr. J. Gerard Stranch IV (current Branstetter, Stranch, & Jennings, PLLC attorneys) should reasonably be able to charge in return for their legal services in the Liberty Legal case. 5. 6. In return for this report, I am compensated at an hourly rate of $125.00. It is my understanding Mr. Benjamin A. Gastel graduated with his J.D. in
2007 from Vanderbilt University, Mr. James G. Stranch III graduated with his J.D. in 1973 from the University of Tennessee, and Mr. J. Gerard Stranch IV graduated with his J.D. in 2003 from Vanderbilt University.
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7.
It is my understanding Mr. Benjamin A. Gastel has approximately 5 years
of experience practicing law, Mr. James G. Stranch III has approximately 39 years experience, and Mr. J. Gerard Stranch IV, approximately 9 years of experience practicing law. 8. It is my understanding Mr. Benjamin A. Gastel, Mr. James G. Stranch III,
and Mr. J. Gerard Stranch IV currently work for Branstetter, Stranch, & Jennings, PLLC in Nashville, Tennessee. 9. It is my understanding Mr. James G. Stranch III and Mr. J. Gerard Stranch
IV are partners and Mr. Benjamin A. Gastel is an associate at Branstetter, Stranch, & Jennings, PLLC. 10. In this analysis, based on the assumption that paragraphs 6-9 are true, I
estimate the hourly fee I believe these Branstetter, Stranch, & Jennings, PLLC attorneys should reasonably be able to charge in return for legal services. 11. I estimate that the hourly rate Mr. James G. Stranch III should reasonably
be able to charge in return for legal services is $740.08, Mr. J. Gerard Stranch IV should be able to charge $491.53 hourly, and Mr. Benjamin A. Gastel, $302.92 per hour. A detailed presentation of my analysis is in the table below. The case-related documents, treatises, and other information used to prepare this analysis are listed in Exhibit A. I respectfully reserve the right to make changes to this report and to request supplemental documents as additional information becomes available. 12. To arrive at this approximation, I use survey data on average hourly
billing rates for lawyers collected in 2011 by the National Law Journal to estimate a
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regression model forecasting hourly billable rates (regression results are presented in Table 1). 13. The dependent variable used in the regression is the average hourly rate of
partners and associates at each firm in the 2011 National Law Journal survey. 14. The independent variables are region dichotomous variables, as defined by
the U.S. Census Bureau, which account for geographic variation in billable rates, and dichotomous variables for being a senior partner, a partner, and a new partner, which proxy for experience relative to that of associates. 15. Billable rates are assumed to grow at the national rate of inflation, which
was 2.962% in 2011. 16. Since the data used come from year-2011 surveys, year-2012 billable
hourly rates equal year-2011 hourly rates adjusted upward for inflation. 17. Regression standard errors are clustered at the region level (Bertrand and
Mullainathan, 2004). 18. The model takes the Ordinary Least Squared (OLS) functional form and is
estimated using Stata software (Stata 2001). 19. One-standard-deviation confidence intervals indicate 66 percent of senior
partners earn between $595.17 and $939.92, 66 percent of partners earn between $378.54 and $659.13, and 66 percent of associates earn between $233.95 and $426.50. 20. Two-standard-deviation confidence intervals indicate 95 percent of senior
partners earn between $422.80 and $1,112.30, 66 percent of partners earn between $238.24 and $799.43, and 66 percent of associates earn between $137.68 and $522.77.
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21.
The point estimates in paragraph 11 are conservative in that average
billable rates for senior partners, partners, new partners, and associates nationally in the National Law Journal survey when adjusted for inflation are higher ($767.56 for senior partners, $518.85 for partners, $357.39 for new partners, and $330.23 for associates). 22. 23. My opinions are given within a reasonable degree of certainty in my field. I declare under penalty of perjury that the foregoing is true and correct.
Executed on September 11, 2012.
__________________________________ Charles L. Baum, Ph.D. Date
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Table 1: OLS Regression Results Coefficient Standard Error t-value p-value Covariates Senior Partner 437.16** 6.11 71.51 0.01 Partner 188.61** 7.20 26.19 0.01 New Partner 26.99* 5.22 5.16 0.14 Northeast Region 88.20* 20.73 4.25 0.02 South Region -8.76 20.71 -0.42 0.70 Intercept 302.92** 20.14 15.04 0.01 ** indicates statistical significance at the 1% level and * indicates statistical significance at the 5% level. The r-squared value is 0.665. The models use 230 observations. Standard errors are clustered at the region level. The reference region category is the midwest and west regions and the reference experience level is the associate level.
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Notes to Table (1) The dependent variable used in the regression is the average hourly rate of partners and associates at each firm included in the 2011 National Law Journal survey. (2) The model uses 230 observations. (3) The independent variables are U.S. Census region dichotomous variables (the midwest and west regions are the reference category), which accounts for geographic variation, and dichotomous variables for being a senior partner, a partner, and a new partner, which proxy for lawyer experience (associate is the reference category). (4) Regression standard errors are clustered at the region level (see Bertrand and Mullainathan, 2004). (5) The model takes the OLS functional form and is estimated using Stata software (Stata 2001).
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Exhibit A: Treatises and Other Information Relied Upon 1. Email correspondence from Mr. J. Gerard Stranch IV (August 28, 2012 and August 30, 2012). 2. The National Law Journal. (2011). A Nationwide Sampling of Law Firm Billing Rates. The National Law Journal, December 2011. 3. U.S. Census Bureau. (2012). U.S. Census Regions and Divisions of the United States. Washington, D.C.: http://www.census.gov/geo/www/us_regdiv.pdf. 4. InflationData.com. (2012). Historical CPI. InflationData.com: http://inflationdata.com/Inflation/Consumer_Price_Index/HistoricalCPI.aspx and http://inflationdata.com/inflation/inflation_rate/HistoricalInflation.aspx?dsInflation_currentPage =2. 5. Stata. (2001). Stata Reference Manual. College Station, TX: Stata Press: vol 4. 6. Bertrand, M., E. Duflo, and S. Mullainathan. (2004). How Much Should We Trust Differences-in-Differences Estimates? Quarterly Journal of Economics, 119(1): 249-275.
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EXHIBIT A
Baum Declaration

C HARLES L. B AUM II Economics and Finance Dept., Box 27 Middle Tennessee State University Murfreesboro, Tennessee 37132 cbaum@mtsu.edu W: 615-898-2527 F: 615-898-5596 www.mtsu.edu/~cbaum
Charles L. Baum II Curriculum Vitae 2012
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Employment 2010present Professor of Economics, MTSU 2008present Chair, Economics and Finance Department, MTSU 20042010 20042008 19992004 Education 1999 1995 U NIVERSITY OF N ORTH C AROLINA AT C HAPEL H ILL Ph.D., Economics WAKE F OREST U NIVERSITY B.A., Political Science Associate Professor of Economics, MTSU Director of the Economics Graduate Programs (Masters and Ph.D. Programs), MTSU Assistant Professor of Economics, MTSU
Instruction - Courses Taught at MTSU ECON 2420 Principles of Economics, Microeconomics ECON 2420 (Honors) Principles of Economics, Microeconomics ECON 4420/5420 Labor and Human Resource Economics ECON 4510/5510 Unions and Collective Bargaining ECON 6120 Microeconomics I ECON 7120 Microeconomics II ECON 7121 Microeconomics III ECON 7520 Advanced Labor Economics II
Academic Publications 1

2012 2012 2012 2011 2009 2009 2009 2009 2009 2007 2006 2006 2005 2004 2004 2004 2004 2003 2003 2003
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Baum, Charles L. The Effects of Food Stamp Receipt on Weight Gained by Expectant Mothers. Journal of Population Economics, 25 (4): 1307-1340. Baum, Charles L., William F. Ford, and Kevin M. Zhao. Top Five Executives Share of Core Earnings. Journal of Financial and Economic Practice, 12 (2): 103-115. Owens, Mark F., and Baum, Charles L. The Effects of Welfare Vehicle Asset Rules on Vehicle Assets. Applied Economics, 44 (13): 1603-1619. Baum, Charles L. The Effects of Food Stamps on Obesity. Southern Economic Journal, 77 (3): 623-651. Baum, Charles L. The Effects of Cigarette Taxes on Obesity. Health Economics, 18 (1): 3-19. Baum, Charles L. The Effects of Vehicle Ownership on Employment. Journal of Urban Economics, 66 (3): 151-163. Baum, Charles L., and Christopher J. Ruhm. Age, Socioeconomic Status, and Obesity Growth. Journal of Health Economics, 28 (3): 635-648. Owens, Mark F., and Charles L. Baum. The Effects of Federal Housing Assistance on Exiting Welfare and Becoming Employed for Welfare Recipients. Journal of Poverty, 13 (2): 130-151. Zhao, Kevin M., Charles L. Baum, and William F. Ford. The CEO Share of Earnings: A New Approach to Evaluating Executive Compensation. Business Economics, 44 (2): 120-122. Baum, Charles L. The Effects of Race, Ethnicity, and Age on Obesity. Journal of Population Economics, 20 (3): 687-705. Baum, Charles L., William F. Ford, and Jeffery D. Hopper. The Obese Smokers Wage Penalty. Social Science Quarterly, 87 (4): 863-881. Baum, Charles L. The Effects of Government-Mandated family Leave on Employer Family Leave Policies. Contemporary Economic Policy, 24 (3): 432-445. Baum, Charles L. The Effects of Employment while Pregnant on Health at Birth. Economic Inquiry, 43 (2): 283-302. Baum, Charles L., and William F. Ford. The Wage Effects of Obesity: A Longitudinal Study. Health Economics, 13 (9): 885-899. Baum, Charles L. Has Family Leave Legislation Increased Leave-Taking? Journal of Law and Policy, 15 (1): 93-114. Baum, Charles L., Lee Sarver, and Thomas Strickland. EVA, MVA, and CEO Compensation: Further Evidence. American Business Review, 22 (2): 82-87. Baum, Charles L. The Long-Term Effects of Early and Recent Maternal Employment on a Childs Academic Achievement. Journal of Family Issues 25 (1): 29-60. Baum, Charles L. The Effects of State Maternity Leave Legislation and the 1993 Family and Medical Leave Act on Employment and Wages. Labour Economics 10 (5): 573-596. Baum, Charles L. The Effects of Maternity Leave Legislation on Mothers Labor Supply Patterns after Childbirth. Southern Economic Journal 69 (4): 772-799. Baum, Charles L. Does Early Maternal Employment Harm Child Development? An Analysis of the Potential Benets of Leave-Taking. Journal of Labor Economics 21 (2): 409-448.

2002 2002 2002
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Baum, Charles L. A Dynamic Analysis of the Effect of Childcare Costs on the Work Decisions of Low-Income Mothers with Infants. Demography 39 (1): 139-164. Baum, Charles L. The Effect of Work Interruptions on Womens Wages. Labour 16 (1): 1-36. Baum, Charles L., Richard L. Hannah, and William F. Ford. The Effect of the Senior Citizens Freedom to Work Act of 2000 on Employer-Provided Pension and Medical Plans. Benets Quarterly 18 (2): 65-72. Baum, Charles L., and William F. Ford. Federal Freedom to Work Law Challenges Academic Planning. Planning for Higher Education 30 (2): 28-34. Hannah, Richard L., and Charles L. Baum. An Analysis of the Linkages Between High School Allowance, High School Labor Supply, and Academic Success in Higher Education. The High School Journal 85 (3): 1-12. Baum, Charles L., and William F. Ford. The Effect of The Senior Citizens Freedom to Work Act of 2000 on Delayed Retirement Incentives. The Labor Law Journal 52 (1): 3-9. Hannah, Richard L., and Charles L. Baum. An Examination of College-Bound High School Students Labor Market Behavior: Why Some Students Work and Why Some Do Not. Education 121 (4): 787-794.
2002 2002
2001 2001
Working Papers 2012 2012 2012 2012 Baum, Charles L. The Likelihood of Staying with an Employer. Invitation to revise and resubmit, Journal of Forensic Economics. Baum, Charles L.. The Effects of College on Weight: Examining the Freshman Fifteen Myth. Submitted, Journal of Health Economics. Baum, Charles L., and Shin-Yi Chou. The Socio-Economic Causes of Obesity. Working Paper, National Bureau of Economic Research (NBER). Baum, Charles L., and Christopher J. Ruhm. Working Paper, The Effects of Paid Family Leave on Labor Market Outcomes.
External Research Grants and Awards Baum, Charles L. (with Shin-Yi Chou, Lehigh University). The Socio-Economic Causes of Obesity. Center for Consumer Freedom, 2011-2012, $32,668.75. Baum, Charles L. College of Business Outstanding Faculty Member Award, 2008-2009. Baum, Charles L. Middle Tennessee State University Distringuished Research Award, 2006-2007. Baum, Charles L. (Principal [sole] investigator). The Effect of Food Stamps on Weight: Extensions. United States Department of Agriculture (USDA), Economic Research Service (ERC), Food Assistance and Nurtition Research Program, June 2007-February 2009, $37,000. Baum, Charles L. (Principal [sole] investigator). The Effects of Public Housing Assistance on Transitions off Welfare, Employment, and Childcare Arrangements for Welfare Recipients. Univestiy of Kentucky (Lexington, KY) Center for Poverty Research, Regional Small Grants Program (through the United States Department of Health and Human Services), June 2007-July 2008, $17,850. Baum, Charles L. (Principal [sole] investigator). The Effects of the Food Stamp Program on Weight Gained by Expectant Mothers. University of Wisconsim (Madison, WI) Institute for Research on Poverty, 3
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Small Grants Program (through the United States Department of Agriculture), July 2006-December 2007, $27,833. Baum, Charles L. State Farm Insurance Company Distinguished Associate Professor Award, 2005-2006. Baum, Charles L. (Principal [sole] investigator). The Effect of the Food Stamp Program on Obesity. United States Department of Agriculture (USDA), Economic Research Service (ERS), Food Assistance and Nutrition Research Program, May 2005-May 2007, $120,000. Baum, Charles L. (Principal [sole] investigator). The Effect of Vehicle Asset Rules on Food Stamp Program Parrticipation. University of Kentucky (Lexington, KY) Center for Poverty Research, Young Investigator Development Grant (through the United States Department of Health and Human Services), May 2004-May 2005, $5,000. Baum, Charles L. College of Business Outstanding Faculty Member Award, 2003-2004. Baum, Charles L. Bridgestone-Firestone Distinguished Assistant Professor Award, 2001-2002. Academic Presentations 2011 2009 2008 The Socio-Economic Causes of Obesity, Vanderbilt University, Nashville, TN. The Effects of Food Stamps on Pregnancy Weight Gain, Wake Forest University, WinstonSalem, NC. The Effects of In-Kind Government Transfer Programs on Transitions Off Welfare and Employment for AFDC/TANF Recipients, The Center for Poverty Research, University of Kentucky, Lexington, KY. The Effects of Food Stamps on Pregnancy Weight Gain, The United States Department of Agriculture, Economic Research Service, Washington, D.C. The Effects of Food Stamps on Obesity, The United States Department of Agriculture, Economic Research Service, Washington, D.C. The Effects of Food Stamps on Pregnancy Weight Gain, The Institute for Research on Poverty, University of Wisconsin, Madison, WI. The Effects of Cigarette Taxes on Obesity, Vanderbilt University, Nashville, TN. The Effects of Cigarette Taxes on Obesity, University of North Carolina at Greensboro, Greensboro, NC. The Effects of Cigarette Taxes on Obesity, University of South Florida (Louis de la Parte Florida Mental Health Institute), Tampa, FL. The Effects of Cigarette Taxes on Obesity, Florida State University (Department of Economics and the Center for Demography and Population Health), Tallahassee, FL. The Obese Smokers Wage Penalty, The University of Alabama-Birmingham (School of Public Health), Birmingham, AL. The Obese Smokers Wage Penalty, The Academy of Economics and Finance, Biloxi, MS. The Wage Effects of Obesity, The Academy of Economics and Finance, Savannah, GA. The Effect of Work Interruption on Womens Wages, Southern Economic Association, Tampa, FL.
2007 2007 2007 2006 2005 2005 2005 2004 2004 2003 2002

2001 2001
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The Effect of The Senior Citizens Freedom to Work Act of 2000 on Delayed Retirement Incentives, The Academy of Economics and Finance, Biloxi, MS. The Long-Term Effects of Early and Recent Maternal Employment on a Childs Educational Attainment, The Middle Tennessee State University Faculty Research Symposium, Murfreesboro, TN. An Analysis of High School Labor Supply and its Effect on College, The 21st Annual Southern Industrial Relations and Human Resources Conference, Birmingham, AL. Evaluating Electronic Networks and Internet Applications in Employment Relations and Benets, The Institute for Organizational Development 2000 Conference, Murfreesboro, TN.
2000 2000
Conferences Attended 2012 2011 2011 2009 2007 2006 2005 2004 2003 2002 2001 2000 1999 American Economic Association, Chicago, IL. Financial Management Association, Denver, CO (October 2011). American Economic Association, Denver, CO (January 2011). American Economic Association, San Francisco, CA. American Economic Association, Chicago, IL. American Economic Association, Boston, MA. American Economic Association, Philadelphia, PA. Academy of Economics and Finance, Biloxi, MS. Academy of Economics and Finance, Savannah, GA. Southern Economic Association, Tampa, FL. Academy of Economics and Finance, Biloxi, MS. Annual Southern Industrial Relations and Human Resources Conference, Birmingham, AL. American Economic Association, New York, NY.
Notable Chaired Committee Assignments 2009-10 2008-09 Provost Search Committee Chair (University Committee) Academic and Instructional Review (AIR) Committee Chair (University Committee)
Ph.D. Dissertation Supervision 2012 2010 Kirby, Laron (The U.S. Food and Drug Administration). Empirical Essays on Wage Determination and Mobility. Committee Member. Allen, Brandeanna (U.S. Department of Defense). Empirical Essays on Public Health and Family Policies. Chair.

2009 2008 2008 2008 2005 2003
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Wilson, Rachel (Urbana University). Essays on the Regulations of Advanced Practice Nurses and the Healthcare System. Chair. Hopper, Jeffrey (Transylvania University). The Effects of Private Pension Labor Program Participation on Recidivism. Committee Member. Nunley, John (University of Wisconsin - La Crosse). Empirical Essays on Divorse and Child Investment. Co-Chair. Seals, Alan (Auburn University). Essays in Applied Microeconomics. Chair. Gong, Tao (University of Maryland - Eastern Shore). Two Essays on Youths Labor Supply. Co-Chair. Joshi, Prathibha (Gordon College). Two Essays on Human Capital. Comittee Member.
Professional Service Served as reviewer for Agricultural Economics, American Economic Review, American Journal of Agricultural Economics, American Journal of Public Health, American Sociological Review, Applied Economics, Contemporary Economics Policy, Demography, Developmental Psychology, Economica, Economics Bulletin, Economics and Human Biology, Economics of Education Review, Economic Inquiry, Food Policy, Health Economics, Health Economics Letters, Health Policy, Journal of Economic Behavior and Organization, Journal of Economic Dynamics and Control, Journal of Family Issues, Journal of Health Economics, Journal of Human Capital, Journal of Human Resources, Journal of Insurance Issues, Journal of Labor Economics, Journal of Legal Studies, Journal of Marriage and the Family, Journal of Policy Analysis and Management, Journal of Population Economics, Journal of Public Economics, Journal of the Royal Statistical Society, Journal of the Tennessee Economics Association, Labour Economics, National Science Foundation (NSF), RAND Corporation, Smith Richardson Foundation, Oxford Bulletin of Economics and Statistics, Southern Economic Journal, The Journal For Economics Educators, and the USDAs Economic Research Service. Community County Commission, Rutherford County (2010-present). Budget, Finance, and Investment Committee, Rutherford County (Committee Member, 2010-present) Property Management Committee, Rutherford County (Committee Member, 2010-present) Audit Committee, Rutherford County (Chair, 2011-present) American Heart Association, Rutherford County (Board Member, 2012-present). Domestic Violence Center, Murfreesboro (Board Member, 2005-2010; Advisory Board Member, 2010-present). Eagle Scout (September 12, 1986, Great Smokey Mountain Council, Knoxville, TN).
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EXHIBIT B
Baum Declaration
Case 2:12-cv-02143-STA-cgc Document 37-4 Filed 09/14/12 Page 16 of 16 2011LawyerSalariesSpreadsheet

AverageHighest PartnerLow South 250 595 275 325 295 575 375 325 320 815 305 380 325 540 1000 150 530 295 375 310 350 460 325 205 380 815 400 275 195 240 300 895 625 225 255 505 685 480 415 340 275 270 435 540 295 405 800 245 240 610 220 850 235 550 410 990 380 285 190 465 275 350 770 355 505 265 320 211 630 440 875 315 280 295 365 680 580 240 500
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PartnerHigh Baker Best Briggs broad bryan butzel carlton cozen day dickinson dickstein dinsmore dla dorsey duane dykema epstein fitzpatrick fox frost gardere gibbons harris hiscock hodgson hollland hughes husch jackson kaye kelley knobbe lane lathrop lewis lowenstein manatt mcelroy mckenna michael miller nelson nexsen patton pepper perkins phelps polsinelli saul schulte seyfarth shepard shumaker stoel strasburger thompson thompson ulmer vedder winstead winston wyatt s w x s x x s e e e s x e x e e e e e x s e e e e s e x s e e w w x x e w e s x s s s s e w s x e e x w x w s s x x x s x s s w x s x x s e e e s x e x e x e e e x s e e e e s e x s e e w w x x e w e s x s s s s e w s x e e x w x w s s x x x s x s Ave STDEV AVE+1 AVE1 AVE+2 AVE1 357 417 435 565 440 470 510 537 680 373 747 526 575 482 519 486 340 550 563 304 378 530 828 395 319 831 634 525 460 390 613 676 350 562 413 369 412 659 557 550 281 502 846 528 364 451 395 594 405 500 477 713 325 228 265 265 356 274 262 330 317 435 217 508 294 365 309 341 297 200 325 380 207 234 295 533 226 208 519 425 346 295 246 400 464 250 374 241 215 255 410 344 368 189 326 608 341 252 292 250 358 357 417 435 565 440 470 510 537 680 373 747 526 575 482 519 486 340 550 563 304 378 530 828 395 319 831 634 525 460 390 613 676 350 562 413 369 412 659 557 550 281 502 846 528 364 451 395 594 405 500 477 713 325 228 265 265 356 274 262 330 317 435 217 508 294 365 309 341 297 200 325 380 207 234 295 533 226 208 519 425 346 295 246 400 464 250 374 241 215 255 410 344 368 189 326 608 341 252 292 250 358 260 345 301 434 220 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 3 4 2 3 2 2 3 1 1 1 3 2 1 2 1 1 1 1 1 2 3 1 1 1 1 3 1 2 3 1 1 4 4 2 2 1 4 1 3 2 3 3 3 3 1 4 3 2 1 1 2 4 2 4 3 3 2 2 2 3 2 3 Inf.Adj. 767.5502 172.3751 939.9253 595.1751 1112.3 422.8001 595 575 625 575 795 700 815 900 960 600 1000 630 1120 810 875 665 850 730 725 515 815 725 390 750 685 895 990 850 505 1080 925 735 645 735 470 895 850 575 800 650 610 850 550 990 825 875 465 630 750 935 790 860 555 625 630 875 750 585 735 680 1130 500
Associate 315
350
380
545
500
495
260
510 275 350 265 570
245
332 460
260 345 301 434 220 Inf.Adj. 503.9245 518.8407 136.2623 140.2957 640.1868 659.1364 367.6622 378.545 776.4491 799.432 231.3999 238.2493
410 275 384.5294118
PartnerHigh 595 575 625 575 795 700 815 900 960 600 1000 630 1120 810 875 665 850 730 725 515 815 725 390 750 685 895 990 850 505 1080 925 735 645 735 470 895 850 575 800 650 610 850 550 990 825 875 465 630 750 935 790 860 555 625 630 875 750 585 735 680 1130 500
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
PartnerLow 250 275 325 295 375 325 320 305 380 325 540 150 530 295 375 310 350 460 325 205 380 400 275 195 240 300 625 225 255 685 480 415 340 275 270 435 540 295 405 245 240 220 235 410 380 285 190 275 350 770 355 505 265 320 211 440 315 280 295 365 580 240
0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Inf.Adj. 320.7358 330.2296 93.50507 96.27282 414.2409 426.5025 227.2308 233.9568 507.746 522.7753 133.7257 137.684
745.483871 347.1129032 714.705882 167.419444 122.6954252 912.903315 469.8083285 578.064427 224.417478 1080.322759 410.644983
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 -against-
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TENNESSEE -------------X SEAN OWENS AND MELINDA BEAN on behalf of themselves and all others: similarly situated, : 08-CV-02331 (SHM)
CARRIER CORPORATION, Defendant. : 1:30 p.m. -------------X
: : : : United States Courthouse : Memphis, Tennessee : : : July 15, 2010
CIVIL CAUSE FOR FAIRNESS HEARING BEFORE THE HONORABLE SAMUEL H. MAYS UNITED STATES DISTRICT COURT JUDGE ---
Nicole M. Warren, CSR, RMR, CRR
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court Reporter: For Defendant: For the Plaintiffs:
A P P E A R A N C E S:
Branstetter, Stranch & Jennings, PLLC 227 2nd Avenue North, 4th Floor Nashville, TN 37201 BY: J. GERARD STRANCH, IV, ESQ. The Gardner Firm P.O. Drawer 3103 210 S. Washington Ave. Mobile, AL 36652 BY: M. VANCE McCRARY, ESQ.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6410 Poplar Ave., Suite 300 Memphis, TN 38119 BY: FREDERICK J. LEWIS, ESQ. BY: JEREMY A. IRELAND, ESQ.
Nicole M. Warren, CSR, RMR, CRR Official Court Reporter
Proceedings recorded by computerized stenography Transcript produced by Computer-aided Transcription.
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INDEX
Fairness Hearing ........................................ 4
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as well. Thurston. whom?
(In open court; all parties present.) THE COURT: This is a Fairness Hearing in the case of
Sean Owens and Melinda Bean, on behalf of themselves and all others similarly situated, against the Carrier Corporation. So, who's here? Who wants to admit to representing
MR. STRANCH:
Your Honor, my name is Gerard Stranch.
I'm with Branstetter, Stranch, and Jennings appearing on behalf of plaintiffs. Also appearing on behalf of plaintiffs is Vance McCrary of The Gardner Firm. We've got a couple of other introductions we'd like to do as well, your Honor. THE COURT: MR. STRANCH: Go ahead. We have with us Ms. Melinda Bean, now
THE COURT: MR. STRANCH: THE COURT: MR. STRANCH:
Welcome, Ms. Thurston. And we have Mr. Sean Owens. Welcome, Mr. Owens. And Mr. Owens' son, Sage, is a defendant
THE COURT: in court today.
How are you? It's a pleasure to have you
How old are you? MR. OWENS: 12.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that right?
THE COURT: remember it.
Twelve? I was once 12 myself. I almost
Who else do you have? MR. STRANCH: And, your Honor, we've got Mrs. Sherry
Eubanks and her great-nephew. And then we've got Mr. Michael Rhodes. These are class members who desire to attend today and just see how our judicial system works. THE COURT: Well, it's a pleasure to have you today.
I have three great-nephews and one great-niece, and I hope you have as much pleasure with your great-niece as I have with mine. They're wonderful kids. So, we're ready to go forward for the plaintiffs. Is that right, Mr. Stranch? MR. STRANCH: THE COURT: That's correct, your Honor. Who's going to be the principle
spokesperson for your group? MR. STRANCH: Well, your Honor, I was going to do some
initial introductions and some discussions; and if you had some specific questions, I was going to turn it over to Mr. McCrary. THE COURT: Oh, the hard labor goes to Mr. McCrary; is
MR. STRANCH:
Your Honor, in the words of Shakespeare,
I'm going to set the scene in fair Verona. THE COURT: You're going to be the stage manager.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Yes, Mr. Lewis. How are you today? MR. LEWIS: Fine, sir. Good to see you, Judge.
Jeremy Ireland and I are here on behalf of the Carrier. I haven't told Mr. Ireland this, but he should be the chief spokesperson on behalf of the employer. THE COURT: MR. IRELAND: THE COURT: Well, Mr. Ireland -I'm prepared to do so. -- I look forward to questioning you
extensively about this matter. I'm pleased to hear that you're prepared, and I was a little nervous that I might have to be asking Mr. Lewis questions when I knew that Mr. Ireland had done all the work. Now, let's proceed. I have a few questions of my own, but I think it's probably in the interest of judicial economy to hear first from the parties. And why don't I hear first from you, Mr. Stranch? MR. STRANCH: Thank you, your Honor.
I think we have an additional class member. MS. ISABEL: THE COURT: MS. ISABEL: THE COURT: meet you first. MS. ISABEL: THE COURT: Okay. I'm Ms. Isabel. Ms. Isabel? Y'all go right ahead. What's that? Y'all go right ahead. I'm sitting in. We're going right ahead. We'd like to
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MS. ISABEL: THE COURT:
Ms. Isabel. It's good to have you in court today,
Ms. Isabel. Thanks for coming. Now, Mr. Stranch, you may proceed. MR. STRANCH: Thank you.
As the Court is aware, this is a case involving the "Warn Act," a Federal statute that deals with notice prior to layoffs; and as the Court is aware, the procedural history of this case is that the case was filed. There was some initial litigation that went forward. We eventually were unable to reach a mutually agreeable resolution to the class certification issues, which was fully briefed before the Court; and the Court then certified a class in this case. At that time there were 785 members of the class. Ten, if the Court will recall, chose to opt out at that time. So, the class that's at issue in this case that the Court has already certified is 775 individual class members. After class certification through discovery and back and forth and the mediation sessions, a settlement was ultimately reached in this case. To give a thumbnail sketch, as the Court remembers, we did discuss this at preliminary approval -- it was in the papers -- but the payment amount was $2.1 million total to the class which represents individual payments to each one of the -Nicole M. Warren, CSR, RMR, CRR
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THE COURT: this matter, did we? MR. STRANCH: your Honor. THE COURT: Go ahead. MR. STRANCH:
We didn't have a preliminary hearing in
I believe we did it all on the papers,
I think we did it all on the papers, too.
But the individual payouts to the class
members, as I believe it was Exhibit 1 to the settlement agreement that was filed along with the preliminary approval, ranged from just under $2,000 to just over $15,000 per plaintiff; and that amount depends upon their pay rate and other issues. THE COURT: attorney fees are withheld. MR. STRANCH: THE COURT: MR. STRANCH: Yes, your Honor; that is correct. Okay. Go ahead. And as the Court ordered in the Well, that number is a number before
preliminary approval, notice was given to the class. The sworn statement of Mr. Vance McCrary was filed with the Court. We have heard during the notice period from numerous class members, your Honor. Even today we've heard from class members. All the class members that we have spoken with so far have been wholeheartedly in support of the settlement. In fact, the most common question that we've received was: Can we pick up our check at the Fairness Hearing; or can Nicole M. Warren, CSR, RMR, CRR
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you do direct deposit for us, please? THE COURT: MR. STRANCH: I'm not surprised by that question. And, your Honor, I am happy to report
that no objections have been received to the settlement whatsoever. So, we stand before the Court today requesting final approval of settlement. We have an agreed order, form of an order, for final approval, if the Court would like to take a look at that that we can hand up. THE COURT: Well, pass it up. Thank you.
COURTROOM DEPUTY: THE COURT: MR. STRANCH:
What else do you want to tell me? Well, I was going to say we can either
do a full presentation, your Honor, or if you have specific questions, we did address them. We would submit to the Court that with no objections and the monetary amounts that are involved in this case that this is a relatively straightforward Fairness Hearing, and we believe that the settlement should be approved in its entirety. So, unless the Court has any specific questions for me or for Mr. McCrary, we would submit it to the Court. THE COURT: Mr. McCrary? MR. McCRARY: No, your Honor, not at this time. I'm Is there anything you want to add to this,
happy to answer whatever questions the Court may have. Nicole M. Warren, CSR, RMR, CRR
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 coastline. today.
THE COURT: MR. IRELAND:
All right. How about you, Mr. Ireland? Not too much, your Honor.
Just to let you know that we join the plaintiffs in submitting this to the Court and this defendant has also received no objections to this settlement and we believe it it's a fair settlement. THE COURT: All right. Thank you very much.
How many -- Mr. McCrary, you're my source of information, right? MR. McCRARY: THE COURT: MR. McCRARY: THE COURT: MR. McCRARY: Yes, your Honor. How many -- where are you from? Alabama? I'm from Mobile, Alabama, your Honor. I thought that. Thank you for the opportunity to appear
THE COURT: are going well down there. MR. McCRARY: now, your Honor. THE COURT: MR. McCRARY:
You're from Mobile itself. I hope things
Well, the -- they're mired in oil right
In the Bay and everywhere? It is in the Bay, all along the Alabama
THE COURT:
Well, that's a shame. Tough situation. I
was in Gulfport last month and they'd been spared most of it, but I think no longer. Nicole M. Warren, CSR, RMR, CRR
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MR. McCRARY: THE COURT:
I think no longer. No. That's a tough situation all around.
How many of these notices were returned? Who's in charge of mailing those? Do they go from your office? MR. McCRARY: THE COURT: MR. McCRARY: They went from my office, your Honor. And how many were returned undeliverable? I don't have a precise number, your
Honor, and I'm sorry for that, but I believe that the number was less than two dozen. We have -- in my office we subscribe to a national database that is offered through the Lexis company which seems to offer everything these days. THE COURT: MR. McCRARY: Right. When we get a return envelope back, then
we mail to folks again and see if we can get them. It was a very small number, relative to the size of the class. THE COURT: MR. McCRARY: THE COURT: those; is that right? MR. McCRARY: THE COURT: There was, your Honor. Did you mail to the same addresses that You think less than two dozen. I do, your Honor. And there was an attempt to follow up on
you had? Did you try to find new addresses for them through the carrier? How did you handle that part? MR. McCRARY: We have had a good relationship with the
defendants, and they have worked with us to help find Nicole M. Warren, CSR, RMR, CRR
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information regarding class members. We did that in some instances. In some instances we found multiple addresses that might perhaps be the address of the class member, and we would mail to all of those. In some cases we would find information about a telephone number, and we would call to find that person at a telephone number and then mail to them. We used every resource that we had. THE COURT: So, in responding to these less than two
dozen returned undeliverable, you feel that you were able to actually reach most of those people as well through subsequent efforts. Is that a fair statement? MR. McCRARY: THE COURT: That's a fair statement, your Honor. All right. That's my principal concern
initially is that notice has been delivered. It appears that it has been. Tell me: You've made not an affidavit but a declaration that's filed under Document 49 in this cause, and you've discussed the attorney fees at some length. What are the hourly rates that we're talking about for these various lawyers? MR. McCRARY: The hourly rates vary, as your Honor can
see. There were a number of lawyers who worked on the case, Nicole M. Warren, CSR, RMR, CRR
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and all of those are outlined. Starting with, I think, the lowest paid attorney on the list, that would be Mr. Tufts. His rate ranges at 300 and those then range to a rate of $500 an hour for Mr. Stranch and myself and for Mary Olsen. THE COURT: Let me ask you. Are those the hourly
rates you would ordinarily charge if you billed by the hour, or are those the effective hourly rates based on the return for the fee that you proposed? MR. McCRARY: Those are the rates that we would
normally charge on an hourly basis. THE COURT: All right. And those rates are based not
on the rate in Mobile or Nashville or Memphis but on -- let's put it this way. They're based on the fact that the lawyers for the plaintiff and the lawyers for the defendant are practicing nationwide. Is that a fair statement? MR. McCRARY: THE COURT: MR. McCRARY: THE COURT: That's a fair statement, your Honor. So, all of you are travelers. We're very familiar with our suitcase. You're charging what the market will bear
on an hourly basis when you get out, what you're charging hourly rates. Is that a fair statement? MR. McCRARY: That's correct, your Honor.
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THE COURT:
And the market will bear the rates of $300
to $500 an hour for matters in the areas in which you have expertise. Is that fair? MR. McCRARY: That's correct, your Honor.
As a matter of full candor to the Court, to finish describing the categories of the lawyers, Mr. Stranch's rate and mine were at 500; and there are two lawyers at 550. There's one lawyer in that mix whose hourly rate was at 695. That's Mr. Miller. THE COURT: Mr. Miller is a main partner in what I
take to be one of the principle "Warn" litigation firms in the country; and that's what he gets for his time, I suppose. Is that what you're telling me? MR. McCRARY: That's what he gets for his time, your
Honor. His time in this case was less than 30 hours. THE COURT: MR. McCRARY: THE COURT: His hourly rate you say is $675. 695, your Honor. 695. Now I know not only should I have
stayed in practice but I should have brought "Warn Act" suits. All right. So, it's fair to say -- let me be sure I've got it right. The rate runs $300 to $550 for the people who principally worked on the case. To the extent Mr. Miller was involved, his rate was $695; and your total fees, at least on an hourly basis, are $256,000. Nicole M. Warren, CSR, RMR, CRR
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to know? Honor.
MR. McCRARY: THE COURT:
That's correct, your Honor. A little more than $256,000. Most of that
is going to your lawfirm and The Gardner Firm. MR. McCRARY: THE COURT: third of the recovery. MR. McCRARY: That's what we're requesting, your That's correct, your Honor. All right. And we're talking about one
THE COURT:
So, it comes out of the settlement amount.
That reduces the settlement amount accordingly. Is that a fair statement? MR. McCRARY: THE COURT: Yes, your Honor. All right. Is there anything else I need
MR. McCRARY:
The only attorneys fee issue, your
Honor, and I think you already know this but just to highlight it, there are things to be done on the case still before it's wrapped up. There will be time incurred going forward, and all the other factors that are mentioned in the paper I won't bother to repeat to your Honor. I'm sure you're aware of those, the fact that we litigate these cases very frequently to a point that even where we're successful where there's no recovery at all for us. THE COURT: All right. Thank you very much.
Do you want to make up some questions for me, Nicole M. Warren, CSR, RMR, CRR
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Mr. Ireland? MR. IRELAND: Honor. THE COURT: Well, what's the question you would least I can't think of any right now, your
like to be asked about this settlement? You don't have to answer that, Mr. Ireland. Ms. -- well, I want to call you Ms. Bean but, Ms. Thurston, do you have anything you want to say about this settlement matter? MS. THURSTON: THE COURT: No, sir.
How about you, Mr. Owens? Do you want to
address the Court about this settlement matter? MR. OWENS: I'll just briefly state that it was a
learning experience for me personally. I'm glad I took the initiative to get involved and get the case going. It was a pleasure working with the lawfirms that represented me. They did a good job. THE COURT: You feel they did a good job for you.
Do you think their fee is reasonable? MR. OWENS: THE COURT: I most certainly do. Okay. We have an open court here today.
We have a number of people who are members of the class who are present. Thank you for being here. Is there anyone here who wishes to speak in favor of this settlement, the settlement as a whole or any aspect of it? Nicole M. Warren, CSR, RMR, CRR
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Is there anyone who wants to be heard in favor of this settlement? Yes, sir, Mr. Rhodes. Do you want to come forward where we can see and hear you? MR. RHODES: Good afternoon, Judge.
I think the settlement is a fair settlement. I think they did a absolutely good job by them getting rid of this case 'cause we've been waiting for a long time, and I think they did a good job. THE COURT: MR. RHODES: THE COURT: the settlement? MR. RHODES: THE COURT: MR. RHODES: THE COURT: MR. RHODES: THE COURT: informed about the case? MR. RHODES: I talked to Mr. Isaac Pace (ph) on the I'm satisfied with the settlement. Do you think it's fair to you? Yes, sir, it's fair to me. Do you think it's fair to your coworkers? Yes, sir. Did the lawyers in this case keep you You feel they did a good job. Yes, sir. Are you pleased? Are you satisfied with
basic, like, every two weeks; and he was letting me know what was going on with the case. He told me he sent somebody down here, a good representative to represent us; and I think he did a good job by doing that today. Nicole M. Warren, CSR, RMR, CRR
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THE COURT:
So, if somebody had a similar case, you'd
recommend them; is that right? MR. RHODES: THE COURT: MR. RHODES: THE COURT: Yes, sir, I would. Okay. Thank you very much, Mr. Rhodes. Thank you. Is there anybody else who wants to be
heard in favor of this settlement? THE AUDIENCE: THE COURT: to this settlement? THE AUDIENCE: THE COURT: (No response.) (No response.)
Is there anybody here who is in opposition
Is there anyone here who thinks the
settlement is not good as a total settlement or that the parts of the settlement are not good? THE AUDIENCE: THE COURT: (No response.)
Is there anybody who thinks that you
haven't gotten what you deserved out of this settlement? THE AUDIENCE: THE COURT: (No response.)
All right. Thank you very much.
Is there anything else you want to tell me, Mr. Stranch? MR. STRANCH: The only thing I might add to it, your
Honor, is as part of the negotiations of the settlement the plaintiffs agreed not to seek a separate award of expense and cost in this case and instead that that would be taken and Nicole M. Warren, CSR, RMR, CRR
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eaten out of our fee. THE COURT: Well, that's quite a word, "eaten out of
our fee." You have a sensitive view about giving that up, do you, Mr. Stranch? MR. STRANCH: pound a week, your Honor. THE COURT: I've got news for you. When you get to be I have a 3 year old that's gaining a
my age, you can gain a pound a week, too; and I've been working on it for sometime. Anything else, Mr. Ireland? MR. IRELAND: THE COURT: I don't believe so, your Honor. As I said, this is a Fairness Hearing in
this case. This is an action brought to enforce the Worker Adjustment and Retraining Notification Act, sometimes called the "Warn Act." I initially certified the class in this case. The parties engaged in good faith arm's length negotiations and reached a settlement agreement. I reviewed the proposed settlement and the notice to be given in this case, and I decided that preliminary approval of the settlement agreement was appropriate and that the form and manner of notice to the class were appropriate. I did not feel that we needed to have a hearing, an initial hearing, or a preliminary review hearing or the initial approval because I believe the matter can be relatively Nicole M. Warren, CSR, RMR, CRR
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straightforward and the matter didn't ring any alarm bells when I reviewed it. There are approximately 775 class members. Only ten potential members of the class have opted out. That doesn't necessarily tell me a whole lot, except that it's easier to stay in than opt out in most of these cases in my experience because if you want to opt out, you have to do something. As to the case itself, it arises from a reduction in force, as I recollect it, at the Carrier plant. Carrier is in in the heating and air conditioning business, if I remember correctly; and the notice was sudden. There was a significant dispute between the parties about this matter. I think there's no factual dispute about the failure of the defendant to give the notice required under the "Warn Act." The issue instead turned on whether there was a reason not to have to give the issue -- the notice required because of exigent circumstances. That's my phrase, not the statute's phrase. It was in my opinion a real dispute. I don't know how it would have been resolved, and the parties obviously weren't quite confident about how it would have been resolved. The potential, of course, was for Carrier to wind up with almost $5 million in liability in this case and for the defendant -- rather, for the plaintiffs to have to take nothing, assuming Carrier's position were upheld. Nicole M. Warren, CSR, RMR, CRR
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The parties have negotiated at some length, have reached a settlement. The settlement provides on a gross amount I think something like 80 percent to members of Subclass A and 41 percent to members of Subclass B. Members of Subclass A were actually terminated without notice and the parties' reason, which I accept, was that those individuals were much more likely to recover and, therefore, they should have a higher percentage of recovery. The reasoning was that the other individuals who actually received some notice were, you know, less likely to recover; and I think that also is a reasonable interpretation of the facts and the law. So, I've already said that I -- let me say preliminarily that I think the settlement overall is a good settlement. I say that because it actually results in money for the people who alleged that they were wronged. It's not a case where you have to be concerned about coupons, for example, where the recovery by the individuals could be elusory. Individuals may not use the coupons. The coupons may turn out to be worth very little. It's not a case where there are opportunities offered in the future. It's not a case, a typical case, that you often see a consumer class action where the recoveries are pro forma relative to the legal fees where someone gets $25, for example. Nicole M. Warren, CSR, RMR, CRR
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This is real money paid to real people. It's also not a case where we have to advertise and we don't know the exact boundaries of the class. We know the identities of all the individuals in the class; we know the addresses of almost all the individuals in the class; and, in fact, they've been contacted and given actual notice. So, it hasn't been some vague class definition. There's a specific class of individuals, known individuals. There's not an advertising process. There's direct mail notice, and it appears that actual notice has been given to almost all of the class members. Counsel as officers of the Court has represented that less than two dozen of these notices were returned undeliverable, and most of those were followed up in various ways so that the individuals received actual notice. I reviewed the form of the notice, and the notice is clear. In other words, it's short and relatively simple. I'm not saying that everybody in the world could understand it; but within the constraints of notice and class actions, I thought there was clarity in the notice. Ordinary lay people who paid attention could read it, understand it. So, I think the notice was appropriately given. In other words, the manner of notice was appropriate. I think the form of the notice was appropriate, even in retrospect; and we see that in the results of the notice process. Nicole M. Warren, CSR, RMR, CRR
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And, as I say, in looking over Document 45, which is a sealed document in this case and reveals the net settlement amounts to these individual parties, those amounts all are at least in four figures. So, we do have real payment to these individuals. I can't, I suspect, say that often enough. As far as the responses, my sense of the case is that most of the people are very satisfied with their result. I've heard it here today. I've heard it from the class representatives. I've heard it from Mr. Rhodes. I've heard it from counsel who has gotten a favorable response. I've forgotten the numbers, but it seems to me about 50 percent of the time nobody objects. So, it's not uncommon to have a class action where nobody objects to the settlement and there's not much you can necessarily infer from that but my sense of this case is it's not a passive response but there is a positive response to the settlement and that's consistent with what I think is the payment of real dollars to the members of the class. So, then the question is: What about the overall quality of the settlement? I've talked about some of what we call the hot-button issues, the possibility of coupons, so-called negative options with which I'm sure we're all familiar which don't apply to this case. And then, of course, one looks for collusion. Well, collusion usually is suggested by the amount of the attorney Nicole M. Warren, CSR, RMR, CRR
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fees relative to the dollar value of the settlement. I'm going to talk in a minute about the relationship between the attorney fees and the cash that's paid to the members of the class. Most often you find collusion in a situation where you have coupons or something, elusory value, to the class. This is not a case where collusion would be an issue. As I said earlier, it's apparent that it was a good faith negotiation among the parties, between the parties. They were all represented by competent counsel. I've reviewed with care the declaration that Mr. McCrary filed in this case -- it's Document 49 -- and I've looked at the qualifications of plaintiffs' counsel. They're obviously very highly qualified people who have handled many of these cases before. In fact, it's their specialty, if you will. I'm sure some of them have other specialties and that's pointed out in the declaration but both in the Lankenau & Miller case, in the case of the Gibson -- the Gardner lawfirm, rather, and in the case of Mr. Stranch's firm, they're individual who have handled many of these cases, although The Gardner Firm appears to have been -- had the laboring oar, has had access to Mr. Miller, who is certainly one of the nation's leading authorities in this area, and his lawfirm has handled an extraordinary number of these cases. I've got a list of 160 "Warn Act" cases in which right now the Miller firm represented the plaintiffs in the class. Nicole M. Warren, CSR, RMR, CRR
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Likewise, defense counsel is highly qualified. I've known Mr. Lewis for many years and have also had the pleasure of having Mr. Ireland in my court. Mr. Lewis is certainly one of the most respected members of the bar in this community and now has a nationwide class where he's old enough to have learned a lot. So, there's no collusion here. The settlement itself speaks against that. Looking at some of the other factors here, the principal thing that always raises a concern, I think, in and among the parties is the legal fees; and those have been addressed at some length by Mr. McCrary in his declaration. In this Circuit perhaps as a matter of false consciousness, the Court of Appeals has deferred considerably to the District Court in trying to come to a conclusion about the appropriateness of legal fees. We tend not to have to choose between a percentage and a loan star. I tend to analyze a fee request using both to some extent. This fee request is on a percentage basis. The reason to operate down several paths is they reinforce. In other words, one gives you a test for the other. The factors that I consider have been set out at some length in the opinions of the Court of Appeals of this Circuit and specifically in Bowling against Pfizer. The first one is: What's the value of the benefit to Nicole M. Warren, CSR, RMR, CRR
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the plaintiff class? I've already addressed that. I think the benefit to the class here is substantial both collectively and individually. It's a sizable recovery, not a huge recovery; but it's a significant recovery, given the relative smallness to the class. The benefits to the individuals are substantial. I've looked at the hourly rates based on the representations here. The hourly rates are, the dollars as taken as a whole are substantially less than the fee requested; but, of course, one has to take into account the factors. Also, the hourly rates are high relative to what I remember about private practice but I will say that even ten years ago when I left the practice, when I was -- eight years ago when I actually left it, $500 an hour would not have been an excessive fee in this market. So, the actual dollar amount for the hourly work is within the realm of reason. The question is: Is there a market that's appropriate? Of course, the beginning point is that this case was undertaken on a contingent fee basis. So, there's built into it a substantial risk factor. It's hard for me to tell what the risk factor is in a case of this type but in looking at the nature of this case and similar cases, I'll simply observe that in a "Warn Act" matter, oftentimes the decision is made suddenly, sometimes involuntarily, and to the extent the decision is sudden and involuntary, which is why the notice isn't given, you may be drilling a dry hole. Nicole M. Warren, CSR, RMR, CRR
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In other words, you may be filing a claim in bankruptcy rather than trying to proceed against an insolvent defendant or you may not be proceeding at all and, of course, the risk is that you proceed against what you take to be a solvent defendant and you discover that the solvent defendant is not solvent. In this case there is a solvent defendant, as it happens; but that's the risk. It's that in this sort of a case not only do you risk not recovering -- in other words, not prevailing -- but you risk prevailing and finding nothing as a reward for your effort. So, it is a significant factor. Risk is a more significant factor here than it might otherwise be. I observed that this was an agreed percentage which is probably another reason we don't have an objection to it, because the parties agreed to this percentage at the outset. It was a contractual matter. Society has a substantial stake, I think, in rewarding people who do bring matters of this sort, particularly when they prevail, even though they may prevail on a settlement basis. It's essential that people like these plaintiffs or the members of this class have their day in court when they are in a position to lose an amount of money like this. So, if there are no attorneys around who will bring cases like this, frankly, those people's rights will never be Nicole M. Warren, CSR, RMR, CRR
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vindicated. So, that's an important consideration in this case. It's a public policy consideration. The Court doesn't often get to consider public policy. It's usually inappropriate. So, it's a big day for me. But I do believe that public policy strongly favors the opportunity for people, working people, to have their day in court; and they couldn't afford a lawyer otherwise. In other words, this is a case that vindicates the contingent fee. We hear a lot about, bad things about contingent fee; but I think this case vindicates contingent fees. Is this litigation complex? Well, it's not so complex, I think; but it is specialized. In other words, it's not so hard to get your mind around the legal concepts. The facts aren't terribly complicated, but it does require people who know their business. If you don't have qualified lawyers, if you just go out and try to find the ordinary lawyer to bring this case or, frankly, to defend this case, you're going to have a nightmare and probably not get a good result for the client. So, it's not complex in the way we mostly think of complexity. It's not an antitrust matter, an abstruse tax question, but it is specialized and we're fortunate that both sides were represented by specialists. Just as a selfish matter, of course, I as the judge Nicole M. Warren, CSR, RMR, CRR
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always like to have really good lawyers in my court; and I feel I have really good lawyers in this case. So, all of the factors weigh toward awarding a fee. A third is not something -- well, some of these cases go above it. To me, a third is about the maximum that I would award in a case like this; and a third I also observed in similar cases is the sort of fee that's regularly awarded by courts when they consider contingent fees in similar matters. So, that, I think, supports the fee; and of course as Mr. Stranch has already observed, the plaintiffs' counsel have agreed to bear the expenses of the matter which I take it, Mr. Stranch, includes the expense of the notice. Is that correct? MR. STRANCH: THE COURT: That's correct, your Honor. And I might also say that by bearing that
cost, plaintiffs' counsel have eliminated the need for a class administrator who would ordinarily handle such matters. Of course, in this case you really don't need an administrator with only 775 class members but the other side of it is an administrator would probably be approved if requested and taking that work on is both expensive and time consuming. So, for all those reasons it seems to me that the fee in this matter, the requested fee, is appropriate. It's a reasonable fee. I note that nobody is opposed to the fee. My experience in Fairness Hearings is if there's going to be any Nicole M. Warren, CSR, RMR, CRR
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opposition, written or personal, it's to the legal fee. Rarely do people -- sometimes people come in and say it's not enough, meaning their recovery's not enough, the individual class member. Usually what you hear is, "Well, we're okay; but I don't think those lawyers are entitled to all that money." We haven't had any opposition to the fee. So, I think that's most of what I want to say about this matter. I should also say that I think this is not an appointed matter. The plaintiffs chose their counsel. So, that also goes toward justifying the fee. Not only did the plaintiffs agree to the amount but they chose the lawyers they wanted to represent them, and I must say the result demonstrates that they chose well. For all those reasons it's the Court's opinion that the settlement is fair, reasonable, and adequate to the class; that the attorney fee request is appropriate and fair, considering the factors mandated by the Court of Appeals in this Circuit. I'm going to award $10,000 to Mr. Owens and $10,000 to Ms. Thurston as the class representatives for their efforts in bringing this matter. The settlement is approved in its terms, and it's also approved in its amount. The claims of the Subclass A claimants and the Subclass B claimants are approved as set forth in Nicole M. Warren, CSR, RMR, CRR
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Sealed Document 45 filed with the Court on April 28th, 2010. I might say that's a sealed document because it contains personal information about the individuals, not because the Court has any concern about publication of the details of the settlement. The fund under that calculation is $2,080,000. Plaintiffs' counsel would be entitled to one third of that fund allocable to the firms involved. What have I left out so far, Mr. Stranch? MR. STRANCH: everything. THE COURT: Is there anything, any issue I haven't Your Honor, I think you've covered about
addressed that's of concern? MR. STRANCH: No, your Honor. I believe you've
covered everything wonderfully. THE COURT: MR. IRELAND: Honor. THE COURT: I may have to reconsider that other issue, What do you have to say, Mr. Ireland? I'm in agreement with Mr. Stranch, your
if there's such agreement here. MR. STRANCH: THE COURT: That makes three times, your Honor. Well, I had an old friend who was in the
State -- I had two old friends who were in the State Senate and they didn't get along and one of them decided to retire but they never agreed on anything. They were constantly fighting and bickering, and the one who decided to retire one day caught Nicole M. Warren, CSR, RMR, CRR
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his opponent agreeing with him. It was Bob Rochelle. You might remember Bob. Wonderful guy. He recorded his opponent saying, "You're right again, Senator Rochelle." On the day of his retirement, he stood among the Senate and played that over and over and over. I've gotten to the point in life where I'm going to start recording lawyers when they agree with me so I can play it back to them. In any event, the settlement is approved. The motion is granted. The settlement's fair, reasonable, and adequate and approved in all respects. I will retain jurisdiction with respect to matters arising from or relating to the implementation of the order, but I will be entering the appropriate order. Anything else? MR. STRANCH: THE COURT: MR. STRANCH: THE COURT: No. If not, thank you very much. Thank you, your Honor. Thank you, those of you who are here
today. It's been a pleasure to have you in court. I hope you get your money soon. If you don't get it, just call Mr. Stranch. He's only a phone call away. (Whereupon the proceedings adjourned.)
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CERTIFICATE
I, Nicole M. Warren, do hereby certify that the foregoing pages are, to the best of my knowledge, skill, and ability, a true and accurate transcript from my stenotype notes in the matter of:
SEAN OWENS AND MELINDA BEAN, ET AL V. CARRIER CORPORATION
Dated this 15th day of July, 2010.
Nicole M. Warren, CSR, RMR, CRR Official Court Reporter United States District Court Western District of Tennessee

2012-09-14 (WDTN) (37) - LLF, Et Al. V DNPUSA, Et Al. Defendants Petition For Reasonable Attorney Fee (00265887)

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2012-09-14 (WDTN) (37) - LLF, Et Al. V DNPUSA, Et Al. Defendants Petition For Reasonable Attorney Fee (00265887)

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Case 2:12-cv-02143-STA-cgc Document 37 Filed 09/14/12 Page 1 of 12

Case No. 2:12-cv-02143-cgc

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Total Time 135.4 16.8 14.8 167.0

Total Sanctionable Time 48.0 9.1 4.2 61.3

Billable Rate $ 300 $ 600 $ 700

Total Sanction Fee $ 14,400 $ 5,460 $ 2,940 $ 22,800

A copy of this declaration is attached as Attachment 1. 3

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A copy of this declaration is attached as Attachment 2. 4

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A copy of this declaration is attached as Attachment 3. 5

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It is my understanding Mr. Benjamin A. Gastel has approximately 5 years

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The point estimates in paragraph 11 are conservative in that average

Executed on September 11, 2012.

__________________________________ Charles L. Baum, Ph.D. Date

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Charles L. Baum II Curriculum Vitae 2012

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Charles L. Baum II Curriculum Vitae 2012

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Charles L. Baum II Curriculum Vitae 2012

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Charles L. Baum II Curriculum Vitae 2012

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Charles L. Baum II Curriculum Vitae 2012

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Charles L. Baum II Curriculum Vitae 2012

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410 275 384.5294118

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