Case 3:15-cv-02077-JD Document 316 Filed 03/20/20 Page 1 of 4
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`Patrick J. Perotti (Ohio Bar No. 0005481)
`Frank A. Bartela (Ohio Bar No. 0088128)
`DWORKEN & BERNSTEIN CO., L.P.A.
`60 South Park Place
`Painesville, OH 44077
`Telephone: (440) 352-3391/Fax: (440) 352-3469
`Email: pperotti@dworkenlaw.com
`fbartela@dworkenlaw.com
`Appearance pro hac vice
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`John A. Kithas (California Bar No. 64284)
`Christopher Land (California Bar No. 238261)
`LAW OFFICES OF JOHN A. KITHAS
`One Embarcadero Center, Suite 1020
`San Francisco, CA 94111
`Telephone: (415) 788-8100
`Facsimile: (415) 788-8001
`Email: john@kithas.com
`chris@kithas.com
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`Ronald A. Margolis (Ohio Bar No. 0031241)
`BONEZZI, SWITZER, POLITO AND HUPP
`1300 E. 9th Street, Suite 1950
`Cleveland, OH 44114
`Telephone: (216)875-2068/Fax: (216)875-1570
`Email: rmargolis@bsphlaw.com
`Appearance pro hac vice
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`Attorneys for Plaintiffs
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`JAMES P. BRICKMAN, individually and as a
`representative of all others similarly situated,
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`Case No. 3:15-cv-2077-JD
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`Plaintiff,
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`v.
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`FITBIT, INC.,
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`[PROPOSED] ORDER GRANTING
`PLAINTIFFS’ MOTION FOR AN
`AWARD OF ATTORNEYS’ FEES,
`COSTS, AND INCENTIVE
`COMPENSATION
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`Defendant.
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`
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`[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR AN AWARD OF
`ATTORNEYS’ FEES, COSTS, AND INCENTIVE COMPENSATION
`Case No. 3:15-cv-2077-JD
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`Case 3:15-cv-02077-JD Document 316 Filed 03/20/20 Page 2 of 4
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`ORDER GRANTING PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’
`FEES, COSTS, AND INCENTIVE COMPENSATION
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`The matter before the Court is Class Counsel’s request for attorneys’ fees and costs.
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`A. The lodestar.
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`In moving for an award of fees, Class Counsel submitted a lodestar of $3,851,425. In
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`response, Defendants asked for the following reductions:
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`• $518,979.50 for excessive conference and internal emailing;
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`• $139,758.50 for block billing;
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`• $279,278.75 for vague entries;
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`• $213,590.00 for travel between Ohio and California;
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`• $39,232.50 for clerical work billed by attorneys; and
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`• additional reductions for unreasonable billing in .1 hour increments.
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`The total reduction in Class Counsel’s lodestar sought by Defendant is $1,218,942.25.
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`At the hearing on attorneys’ fees, the Court offered to have Class Counsel’s lodestar
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`subjected to a forensic accounting, or the parties could to agree to a certain percentage of reductions
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`sought by Defendant. Both sides waived the forensic accounting, Plaintiffs elected for a reduction
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`by approximately 90% of the amount sought by Defendant, so that Class Counsel’s lodestar is
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`hereby reduced by $1,085,692.95 to $2,765,732.05 (Dkt. Nos. 299, 302), and Defendant did not
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`object (Dkt. No. 301).
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`B. The multiplier.
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`Class Counsel requests a multiplier on their lodestar. The Court finds that a multiplier of
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`2.5 is appropriate. The predicted maximum value of the individual claims was $15 per class
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`member. Class Counsel recovered $12.50 for every Class Member who filed a claim. In the Court’s
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`experience, this was an unusually good recovery for class members in a settlement, all the more so
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`in that the claim relating to devices intended to measure sleep was novel, legally and factually. In
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`addition, Class Counsel structured the settlement so that the claimants’ recoveries were not reduced
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`by attorneys’ fees or costs. Class Counsel voluntarily offered to bear a significant amount of the
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`costs for additional notice to increase the claims rate. The result achieved by Class Counsel was
`[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND
`INCENTIVE COMPENSATION
`Case No. 3:15-cv-2077
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`Case 3:15-cv-02077-JD Document 316 Filed 03/20/20 Page 3 of 4
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`substantial and weighs favorably in determining the multiplier, which is largely driven by assessing
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`“the benefit obtained for the class.” In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 942
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`(9th Cir. 2011). An increase in the multiplier for risk is also appropriate. Rodriguez v. West Pub.
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`Corp., 563 F.3d 948, 967 (9th Cir. 2009).
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`A multiplier of 2.5 is well within the range that has been approved in similar cases by this
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`Court and the Ninth Circuit. See Vizcaino v. Microsoft Corp., 290 F.3d 1043 (9th Cir. 2002)
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`(approving award that resulted in multiplier of 3.65); In re Capacitors Antitrust Litig., Master File
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`No. 14-cv-03264-JD, 2017 WL 9613950, at *6 (N.D. Cal. June 27, 2017) (noticing that a “lodestar
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`multiple of around 4 times has frequently been awarded”). Defendant had previously objected to
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`application of common fund case multipliers to this case because of a sub-5% class participation
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`rate (Dkt. No. 284 at 1). However, after the Court-approved reminder campaign, the claims rate is
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`somewhere between 7.69% and 9.11%, depending on how class size is estimated (Dkt. No. 309 at
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`p. 18). Accordingly, common fund precedents are applicable here and applying a percentage of
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`recovery cross-check, the resulting awarding, after application of the 2.5 multiplier is 25.5% (Dkt.
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`No. 282 at p. 19 for minimum value of constructive common fund). This is practically
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`indistinguishable from the Ninth Circuit’s “benchmark” of 25% under the percentage-of-recovery
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`method. In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 570 (9th Cir. 2019). This confirms
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`that a multiplier of 2.5 is appropriate in this case.
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`C. Costs.
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`In reviewing Class Counsel’s requests for costs, the Court finds that Class Counsel should
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`not be reimbursed for expert witness fees, jury consultants, a mock trial, and any deposition travel
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`D. Incentive compensation.
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`The Court disfavors incentive payments to representative plaintiffs for reasons discussed at
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`length in prior orders. In this case, the proposed incentive compensation is de minimis and will not
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`reduce the funds available to Class Members because the incentive compensation is not paid from
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`a common fund. It is awarded in the amount discussed below.
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`[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND
`INCENTIVE COMPENSATION
`Case No. 3:15-cv-2077
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`Case 3:15-cv-02077-JD Document 316 Filed 03/20/20 Page 4 of 4
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`E. Conclusion.
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`After a searching review of Plaintiffs’ Motion for an Award of Attorneys’ Fees, Costs, and
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`Incentive Compensation (“Motion”), Dkt. No. 282, Class Counsel’s agreement on August 9, 2019
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`(Dkt. No. 302) to the fee option proposed on August 1, 2019 (Final Approval Hearing Transcript,
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`August 1, 2019, at pp. 8, 10 and 14) of a reduction in lodestar awarded from $3,851,425 to
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`$2,765,732.05, with a multiplier of 2.5, and Class Counsel’s agreement on August 7, 2019 (Dkt.
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`No. 300) to reduce costs from $366,944.48 to $151,610.80, the following amounts shall be paid by
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`Defendant:
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`1.
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`The Court awards $6,914,330.13 in attorneys’ fees and $151,610.80 in costs to Class
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`Counsel for a total award to Class Counsel of $7,065,940.93.
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`2.
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`25% of the $7,065,940.93 awarded to Class Counsel will be paid promptly after
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`counsel have filed the Post-Distribution Accounting paperwork required by the N.D. Cal.
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`Procedural Guidance for Class Action Settlements.
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`3.
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`The Court awards $5,000 in incentive compensation to Plaintiffs Brickman and
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`Clingman, each, for their efforts in litigating and settling this Action for the Settlement Class
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`Members. Fitbit shall pay these sums pursuant to the terms and conditions and at the time set forth
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`in the Agreement.
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`4.
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`The Court awards $500 in incentive compensation to Plaintiffs Carissa Ray,
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`Stephanie Curtis, Michael Landis, Carolyn Ciavarella, Erica Wathey, James E. Gau, II, and
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`Amanda Samy, each, for their efforts in litigating and settling this Action for the Settlement
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`Class Members. These sums shall be paid by Fitbit pursuant to the terms and conditions
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`and at the time set forth in the Agreement.
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`March 20
`Dated: ________________, 2020
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`____________________________________
`JAMES DONATO
`United States District Judge
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`[PROPOSED] ORDER GRANTING PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES, COSTS, AND
`INCENTIVE COMPENSATION
`Case No. 3:15-cv-2077
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`3
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