Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 1 of 52
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`DONALD R. CAMERON, ET. AL.,
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`Plaintiffs,
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`v.
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`APPLE INC.,
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`Defendant.
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`CASE NO. 19-cv-3074-YGR
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`ORDER:
`GRANTING MOTION FOR FINAL APPROVAL OF
`CLASS ACTION SETTLEMENT;
`GRANTING IN PART AND DENYING IN PART
`MOTION FOR ATTORNEY’S FEES, COSTS, AND
`SERVICE AWARD; AND
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`JUDGMENT
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`Re: Dkt. Nos. 465 and 471
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`The Court previously granted plaintiffs’ Motion for Preliminary Approval of the Class
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`Action Settlement in this matter on November 16, 2021. (Order Granting Preliminary Approval of
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`Class Action Settlement (“Preliminary Approval Order”), Dkt. No 453.) As directed by the
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`Preliminary Approval Order, on February 14, 2022, plaintiffs filed their Motion for Attorney’s
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`Fees, Costs, and Service Award. (Dkt. No. 465.) Two weeks later, on February 28, 2022, Apple
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`filed a response to plaintiffs’ motion, objecting to the amount of attorney fee’s as high. (Dkt. No.
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`467.)
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`On March 25, 2022, Steven Wytyshyn, a U.S. Developer, Founder, & CEO of Cosmosent
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`Labs, Inc., filed an objection to the settlement. (DKt. No. 469.) On April 29, 2022, plaintiffs filed
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`their Motion for Final Settlement Approval and a response to Mr. Wytyshyn’s objection. (Dkt.
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`No. 471.) The Court held a hearing on June 7, 2022 on the pending motions.
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`Having considered the motion briefing, the terms of the Settlement Agreement, the
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`arguments of counsel, and the other matters on file in this action, the Court GRANTS the Motion
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`for Final Approval. In general, the Court finds the settlement fair, adequate, and reasonable. The
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`provisional appointments of the class representatives and class counsel are confirmed. The
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`Motion for Attorney’s fees, Costs, and Service Award is GRANTED IN PART AND DENIED IN
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`PART. The Court ORDERS that class counsel shall be paid $26,000,000 in attorney’s fees and
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 2 of 52
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`$3,500,000 in litigation costs and that named plaintiffs Donald Cameron and Pure Sweat
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`Basketball, Inc., shall each be paid a $5,000 incentive award.
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`I.
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`BACKGROUND
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`Plaintiffs filed their initial class action complaint on June 4, 2019, and their consolidated
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`amended complaint on September 30, 2019, against defendant Apple, Inc. alleging that Apple
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`willfully acquired and maintained monopoly power, or attempted to gain monopoly power, by
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`refusing to allow iOS device users to purchase iOS apps and in-app products other than through its
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`own App Store. Plaintiffs’ amended complaint alleges the following claims against Apple: (1)
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`violation of the Sherman Act –Monopolization/ Monopsonization (15 U.S.C. § 2); (2) violation of
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`the Sherman Act-Attempted Monopolization/ Monopsonization (15 U.S.C. § 2); (3) unlawful
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`business practices and violations under California Business and Professions Code, § 17200, et seq.
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`(“UCL”); and (4) unfair competition under California Business and Professions Code, § 17200, et
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`seq. (“UCL”).
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`Following class and merits-based discovery, plaintiffs moved for class certification on
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`June 1, 2021. On August 11, 2021, Apple filed its opposition to class certification. After extensive
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`negotiations, the parties reached a settlement, and plaintiffs moved for preliminary approval of the
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`class settlement on August 26, 2021. On November 16, 2021, the Court granted plaintiffs’ Motion
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`for Preliminary Approval of the Class Settlement.
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`II.
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`TERMS OF THE SETTLEMENT AGREEMENT
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`A. Monetary and Structural Relief
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`The settlement provides $100,000,000 in monetary relief and structural relief in six areas
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`of particular concern to the iOS developer community. (See Ex. A, Settlement Agreement). The
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`Settlement Agreement appears to have been the product of arm’s length and informed negotiations
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`with the assistance of an experienced mediator. The relief provided for the Class appears to be
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`adequate, taking into account:
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`(i) the costs and risks associated with trial and appeal;
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`(ii) the effectiveness of any proposed method of distributing relief to the class, including
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`the method of processing class-member claims;
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 3 of 52
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`(iii) the terms of any proposed award of attorney’s fees, including timing of payment; and
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`(iv) any agreements required to be identified under Rule 23(e)(3) (in this case, none).
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`Moreover, the Settlement Agreement appears to treat class members equitably relative to
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`each other. The Court notes that it is particularly aware of the risks of trial in this case having
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`tried and written a 185-page decision in Epic Games v. Apple, Case No. 4:20-cv-5640-YGR.
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`In terms of structural relief, under the Settlement, Apple has agreed to maintain the 15-
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`percent commission tier for U.S. developers enrolled in the Small Business Program for at least
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`three years after Final Approval. (See Ex. A § 5.1.1.) Next, Apple has agreed to revise its App
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`Store Guidelines to permit developers of all app categories to communicate with consenting
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`customers outside their app, including via email and other communication services, about
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`purchasing methods other than in-app purchase. (See id. § 5.1.3.) Third, for at least three years
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`after Final Approval, Apple will continue to “conduct robust experimentation to drive continuous
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`improvement” in App discoverability, including in ways that will “give new and high-quality apps
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`a chance to be found.” (See id. § 5.1.2.) Fourth, Apple will expand its pricing tiers from 100 to 500
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`(by March 31, 2023),1 and maintain those tiers for at least three years from Final Approval. (See
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`id. § 5.1.4.) This enhanced pricing freedom will allow iOS developers to more carefully calibrate
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`their prices to compete and enhance revenues. Fifth, Apple will create an appeal process, which
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`will be available to any developer who “believes that there has been unfair treatment by Apple in
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`the review of any of the U.S. developer’s apps, or in-app products, or updates.” (See id. 5.1.5.)
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`Apple will be required under the Settlement to maintain this appeal process, and the website
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`callout, for at least three years. (See id.) Finally, in terms of transparency, for at least three years
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`from Final Approval, Apple will publish an annual “transparency report” that (at a minimum) will
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`provide (a) meaningful statistics on the number of apps rejected and reasons why, (b) the number
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`of customer and developer accounts deactivated, and (c) objective data regarding search queries
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`and results, and the number of apps removed from the App Store. (See id. § 5.1.6.) The Court
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`finds these structural benefits are valuable to the settlement class.
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`1 See Dkt. No. 478, Order Granting Joint Stipulation for Extension of Time Relating to
`Settlement Agreement Provision 5.1.4.
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 4 of 52
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`B.
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`Attorney’s Fees and Costs
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`Under the Settlement Agreement, class counsel agreed to seek attorney’s fees plus
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`reimbursement of class counsel’s costs and expenses. The parties also agreed that Apple shall pay
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`named plaintiffs up to $5,000 each as an incentive award in exchange for a general release of all
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`claims against Apple.
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`C.
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`Class Member Release
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`Settlement Class Members and their respective heirs, executors, administrators,
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`representatives, agents, partners, successors, and assigns shall have fully, finally, and forever
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`released, relinquished, and discharged any and all past, present, and future claims, actions,
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`demands, causes of action, suits, debts, obligations, damages, rights and liabilities, that were
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`brought, could have been brought, or arise from the same facts underlying the claims asserted in
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`the action, known or unknown, recognized now or hereafter, existing or preexisting, expected or
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`unexpected, pursuant to any theory of recovery (including, but not limited to, those based in
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`contract or tort, common law or equity, federal, state, territorial, or local law, statute, ordinance, or
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`regulation), against Apple, Inc. for any type of relief that can be released as a matter of law,
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`including. without limitation, claims for monetary relief, damages (whether compensatory,
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`consequential, punitive, exemplary, liquidated, and/or statutory), costs, penalties, interest,
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`attorneys’ fees, litigation costs, restitution, or equitable relief.
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`D.
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`Class Notice and Claims Administration
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`Pursuant to the Settlement Agreement, the Court appointed Angeion Group to administer the
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`settlement and to contact the class members in the manner set forth therein and including the
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`attachments contained within the Preliminary Approval Order. Class members were given until
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`March 21, 2022, to object to or exclude themselves from the Settlement Agreement. Only thirteen
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`of the total class members opted out and only one member objected to the class settlement.
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`III.
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`FINAL APPROVAL OF SETTLEMENT
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`A.
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`Legal Standard
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`A court may approve a proposed class action settlement of a class proposed to be certified
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`only “after a hearing and on finding that it is fair, reasonable, and adequate,” and that it meets the
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 5 of 52
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`requirements for class certification. Fed. R. Civ. P. 23(e)(2). In reviewing the proposed settlement,
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`a court need not address whether the settlement is ideal or the best outcome, but only whether the
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`settlement is fair, free of collusion, and consistent with plaintiff’s fiduciary obligations to the class.
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`See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998), overruled on other grounds by
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`Dukes, 564 U.S. at 131. The Hanlon court identified the following factors as relevant to assessing a
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`settlement proposal: (1) the strength of the plaintiff’s case; (2) the risk, expense, complexity, and
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`likely duration of further litigation; (3) the risk of maintaining class action status throughout the trial;
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`(4) the amount offered in settlement; (5) the extent of discovery completed and the stage of the
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`proceeding; (6) the experience and views of counsel; (7) the presence of a government participant;
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`and (8) the reaction of class members to the proposed settlement. Id. at 1026 (citation omitted); see
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`also Churchill Vill., L.L.C. v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004). In reviewing such
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`settlements, in addition to considering the above factors, a court also must ensure that “the
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`settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset
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`Prods. Liab. Litig., 654 F.3d 935, 946–47 (9th Cir. 2011).
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`Settlements that occur before formal class certification also “require a higher standard of
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`fairness.” In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2000). In reviewing such
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`settlements, in addition to considering the above factors, a court also must ensure that “the
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`settlement is not the product of collusion among the negotiating parties.” In re Bluetooth Headset
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`Prods. Liab. Litig., 654 F.3d at 946–47.
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`B.
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`Class Definition and Basis for Certification
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`The Settlement Agreement, attached hereto as Exhibit A, defines the class as:
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`All former or current U.S. developers of any Apple IOS application
`or in-app product (including subscriptions) sold for a non-zero price
`via Apple’s IOS App Store that earned, through all Associated
`Developer Accounts, proceeds equal to or less than $1,000,000
`through the App Store U.S. storefront in every calendar year in
`which the U.S. developer had a developer account between June 4,
`2015 to the date of the Agreement (August 24, 2021). For class
`definition purposes, the 2015 calendar year consist of June 4, 2015
`through December 31, 2015. The 2021 calendar year shall consist
`of January 1, 2021 through April 26, 2021. Additionally, excluded
`from the Settlement Class are (a) directors, officers, and employees
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 6 of 52
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`of Apple or its subsidiaries and affiliated companies, as well as
`Apple’s legal representatives, heirs, successors, or assigns, (b) the
`Court, the Court staff, as well as any appellate court to which this
`matter is ever assigned and its staff, (c) Defense Counsel, as well as
`their immediate family members, legal representatives, heirs,
`successors, or assigns, (d) any Developers who validly request
`exclusion (“opt out”) from the Settlement Class, and (e) any other
`individuals whose claims already have been adjudicated to a final
`judgment.
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`The Court finds that, for purposes of settlement, plaintiffs have satisfied the requirements
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`of Rule 23(a) as well as the requirements for certification under one or more subsections of Rule
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`23(b). With respect to numerosity under Rule 23(a)(1), the settlement class includes
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`approximately 67,000 members, making it so numerous that joinder of all members is
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`impracticable.
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`Rule 23(a)(2) commonality requires “questions of fact or law common to the class,”
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`though all questions of fact and law need not be in common. See Hanlon, 150 F.3d at 1026.
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`Plaintiffs brought the following causes of action: (i) Violation of the Sherman Act –
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`Monopolization/ Monopsonization (15 U.S.C. § 2); (ii) Violation of the Sherman Act-Attempted
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`Monopolization/ Monopsonization (15 U.S.C. § 2); (iii) Unlawful business practices and
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`violations under California Business and Professions Code, § 17200, et seq. (“UCL”); and (iv)
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`Unfair competition under California Business and Professions Code, § 17200, et seq. (“UCL”).
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`(See Dkt. No. 53) (“Consolidated Class Complaint”). The focus of this action—whether Apple
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`willfully acquired and maintained monopoly power, or attempted to gain monopoly power, by
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`refusing to allow iOS device users to purchase iOS apps and in-app products other than through its
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`own App Store—is common to all class members. Antitrust actions are particularly appropriate
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`for class treatment as the allegations regarding the defendant’s conduct, and the evidence of the
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`same, which typically is expert heavy, impacts the class generally.
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`Rule 23(a)(3) requires that the plaintiffs show that the claims or defenses of the
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`representative parties are typical of the claims or defenses of the class. Plaintiffs’ and members of
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`the settlement class claims all stem from the same alleged conduct, i.e. antitrust injury, making
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`plaintiffs’ claims typical of class members. Here, while the settlement class is narrower than that
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`alleged in the consolidated complaint, the class representatives themselves are typical of those
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`members represented herein, namely the subgroup of 99% of the developers.
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`With respect to Rule 23(a)(4), the Court finds the representative parties and class counsel
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`have fairly and adequately represented the interests of the class. No conflicts of interest appear as
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`between plaintiffs and the members of the settlement class. Class counsel are deeply versed in this
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`area of the law and have routinely demonstrated that they are qualified and have experience with
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`prosecuting class actions of this kind and therefore adequate to represent the settlement class as
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`well. The parties engaged in extensive discovery during the almost 2.5-year course of this
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`litigation. More than 5 million documents and 20 million pages have been produced in this
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`litigation. Dkt. No. 465-1, Declaration of Steve Berman, ¶ 17. Apple has produced 13 terabytes of
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`transactional data that plaintiffs and their experts have analyzed. Id.
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`The settlement class further satisfies Rule 23(b)(3) in that common issues predominate and
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`“a class action is superior to other available methods for fairly and efficiently adjudicating” the
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`claims here.
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`Based on the foregoing, the proposed settlement class is certified pursuant to Rule 23(c).
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`C.
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`Adequacy of Notice
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`A court must “direct notice [of a proposed class settlement] in a reasonable manner to all
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`class members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(1). “The class must
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`be notified of a proposed settlement in a manner that does not systematically leave any group
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`without notice.” Officers for Justice v. Civil Serv. Comm'n, 688 F.2d 615, 624 (9th Cir. 1982).
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`Adequate notice requires: (i) the best notice practicable; (ii) reasonably calculated, under the
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`circumstances, to apprise the Class members of the proposed settlement and of their right to object
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`or to exclude themselves as provided in the settlement agreement; (iii) reasonable and constitute
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`due, adequate, and sufficient notice to all persons entitled to receive notice; and (iv) meet all
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`applicable requirements of due process and any other applicable requirements under federal law.
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`Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985). Due process requires “notice
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`reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of
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`the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover
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`Bank & Tr. Co., 339 U.S. 306, 314 (1950).
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 8 of 52
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`The Court approved the parties’ proposed notice procedures when it granted preliminary
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`approval. Pursuant to those procedures, the class administrator provided class members with
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`individual direct notice via both email and mail. The class administrator also utilized a targeted
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`social media campaign, using Facebook, Instagram, and LinkedIn, and an online class settlement
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`website to provide notice to the class and engaged in numerous actions to follow-up and find missing
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`class members, where able. Apple also posted a message to its developer news website on April 25,
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`2022, directing developers to the settlement website.
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`Based upon the foregoing, the Court finds that the settlement class has been provided
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`adequate notice.
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`D.
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`Settlement Agreement Appears Fair and Reasonable
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`As to the Hanlon factors, the Court finds that they indicate the settlement here is fair and
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`reasonable. Absent the settlement, plaintiffs would have been required to show that Apple
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`willfully acquired and maintained monopoly power, or attempted to gain monopoly power, by
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`refusing to allow iOS device users to purchase iOS apps and in-app products other than through its
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`own App Store. Antitrust cases such as this one are “particularly risky, challenging, and widely
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`acknowledge[d] to be among the most complex actions to prosecute.” In re Lithium Ion Batteries
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`Antitrust Litig., 2020 WL 7264559, at *15 (N.D. Cal. Dec. 10, 2020). Further, proceeding to trial
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`would have been costly; recovery was not guaranteed; and there was the possibility of protracted
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`appeals.
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`The Settlement Agreement appears to have been the product of arm’s length and informed
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`negotiations. The settlement occurred only after extensive litigation including: the exchange of
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`more than 5 million documents and 20 million page, more than fifty depositions, including
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`depositions of Apple’s senior management. Following protracted negotiations, and motion
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`practice, Apple produced a 13-terabyte transactional dataset that plaintiffs and their experts have
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`extensively analyzed. Thus, the parties have vetted their claims and know the strengths and
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`weaknesses of their case. Further, they settled after monitoring the trial in Epic Games v. Apple
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`but before the Court issued its final decision.
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 9 of 52
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`In addition, the parties engaged in four mediation sessions conducted by the Honorable
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`Layn Phillips which demonstrates that the settlement reached by the parties was a result of serious,
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`informed, non-collusive, and arms-length negotiation. Counsel for both parties are highly
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`experienced. Accordingly, the Court finds that the record does not indicate collusion or self-
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`dealing. See In re Bluetooth, 654 F.3d at 946-47.
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`The relief provided for the Class appears to be adequate, taking into account: (i) the costs,
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`risks, and delay of trial and appeal; (ii) the effectiveness of any proposed method of distributing
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`relief to the class; (iii) the terms of any proposed award of attorney's fees, including timing of
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`payment; and (iv) any agreements required to be identified under Rule 23(e)(3). Moreover, the
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`Settlement Agreement appears to treat Class members equitably relative to each other.
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`The reaction of the class was entirely positive. As noted, the Court received thirteen opt-
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`outs and one objection after a vigorous notice plan. Given the press regarding the settlement, the
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`Court is confident that the class had adequate notice and would have advised the Court had
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`significant objections existed. “[T]he absence of a large number of objections to a proposed class
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`action settlement raises a strong presumption that the terms of a proposed class settlement action
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`are favorable to the class members.” In re Omnivision Techs., Inc., 559 F.Supp.2d 1036, 1043
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`(N.D. Cal. 2008) (citation omitted); see also Churchill Vill., 361 F.3d at 577 (holding that
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`approval of a settlement that received 45 objections (0.05%) and 500 opt-outs (0.56%) out of
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`90,000 class members was proper).
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`E.
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`Objection to Settlement
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`With respect to the one objection from Steven Wytyshyn, a U.S. Developer, Founder, &
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`CEO of Cosmosent Labs, Inc. (Dkt. 469), the Court notes that the objection does not argue that the
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`settlement is necessarily unfair, unreasonable, or inadequate. Rather, Mr. Wytyshyn criticizes
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`certain aspects of the App Store and suggests improvements that he would have liked to see
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`addressed as part of the settlement. Specifically, the objection criticizes Apple’s suppression of
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`certain apps on the App Store, Apple’s control of app ratings, and the desire to have Apple
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`disclose per-category revenue numbers on a weekly basis.
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 10 of 52
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`The Ninth Circuit has made clear that the fairness of a proposed settlement “is not to be
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`judged against a hypothetical or speculative measure of what might have been achieved by the
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`negotiators” explaining that “the very essence of a settlement is compromise, ‘a yielding of
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`absolutes and an abandoning of highest hopes.’ ” Linney v. Cellular Alaska P’ship, 151 F.3d 1234,
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`1242 (9th Cir. 1998). Thus, while the Court understands Mr. Wytyshyn’s concerns and desire for
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`additional relief, the objection itself does not provide a basis to deny final approval.
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`F.
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`Other Findings
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`Notice to Government Agencies: The settlement administrator provided the required notice
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`to federal and state attorneys general under the Class Action Fairness Act (“CAFA”). 28 U.S.C. §
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`1715(b). (Dkt. No. 471-2 ¶ 6.) Notice occurred more than 90 days before the date of this order, as
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`required by 28 U.S.C. § 1715(d).
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`G.
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`Certification is Granted and the Settlement is Approved
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`After reviewing all of the required factors, the Court finds the Settlement Agreement to be
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`fair, reasonable, and adequate, and certification of the settlement class as defined therein to be
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`proper. Accordingly, the Court grants class certification to the following settlement class:
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`All former or current U.S. developers of any Apple IOS application
`or in-app product (including subscriptions) sold for a non-zero price
`via Apple’s IOS App Store that earned, through all Associated
`Developer Accounts, proceeds equal to or less than $1,000,000
`through the App Store U.S. storefront in every calendar year in
`which the U.S. developer had a developer account between June 4,
`2015 to the date of the Agreement (August 24, 2021). For class
`definition purposes, the 2015 calendar year consist of June 4, 2015
`through December 31, 2015. The 2021 calendar year shall consist
`of January 1, 2021 through April 26, 2021. Additionally, excluded
`from the Settlement Class are (a) directors, officers, and employees
`of Apple or its subsidiaries and affiliated companies, as well as
`Apple’s legal representatives, heirs, successors, or assigns, (b) the
`Court, the Court staff, as well as any appellate court to which this
`matter is ever assigned and its staff, (c) Defense Counsel, as well as
`their immediate family members, legal representatives, heirs,
`successors, or assigns, (d) any Developers who validly request
`exclusion (“opt out”) from the Settlement Class, and (e) any other
`individuals whose claims already have been adjudicated to a final
`judgment.
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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 11 of 52
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`IV. MOTION FOR ATTORNEY’S FEES, COSTS, AND CLASS REPRESENTATIVE AWARDS
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`A.
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`Attorney’s Fees
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`Attorney’s fees and costs may be awarded in a certified class action under Federal Rule of
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`Civil Procedure 23(h). Such fees must be found “fair, reasonable, and adequate” in order to be
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`approved. Fed. R. Civ. P. 23(e); Staton v. Boeing Co., 327 F.3d 938, 963 (9th Cir. 2003). To
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`“avoid abdicating its responsibility to review the agreement for the protection of the class, a
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`district court must carefully assess the reasonableness of a fee amount spelled out in a class action
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`settlement agreement.” Id. “[T]he members of the class retain an interest in assuring that the fees
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`to be paid class counsel are not unreasonably high,” since unreasonably high fees are a likely
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`indicator that the class has obtained less monetary or injunctive relief than they might otherwise.
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`Id. at 964.
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`The Court analyzes an attorney’s fee request based on either the “lodestar” method or a
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`percentage of the total settlement fund made available to the class, including costs, fees, and
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`injunctive relief. Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). The Ninth
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`Circuit encourages courts to use another method as a cross-check in order to avoid a “mechanical
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`or formulaic approach that results in an unreasonable reward.” In re Bluetooth, 654 F.3d at 944–
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`45 (citing Vizcaino, 290 F.3d at 1050–51.)
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`Under the lodestar approach, a court multiplies the number of hours reasonably expended
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`by the reasonable hourly rate. Kelly v. Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016) (“[A] court
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`calculates the lodestar figure by multiplying the number of hours reasonably expended on a case
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`by a reasonable hourly rate. A reasonable hourly rate is ordinarily the ‘prevailing market rate [] in
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`the relevant community.’”). Under the percentage-of-the-fund method, courts in the Ninth Circuit
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`“typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing
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`adequate explanation in the record of any ‘special circumstances’ justifying a departure.” In re
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`Bluetooth, 654 F.3d at 942 (citing Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d
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`1301, 1311 (9th Cir. 1990)). The benchmark should be adjusted when the percentage recovery
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`would be “either too small or too large in light of the hours devoted to the case or other relevant
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`factors.” Six (6) Mexican Workers, 904 F.2d at 1311. When using the percentage-of-recovery
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`

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`Case 4:19-cv-03074-YGR Document 491 Filed 06/10/22 Page 12 of 52
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`method, courts consider a number of factors, including whether class counsel “‘achieved
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`exceptional results for the class,’ whether the case was risky for class counsel, whether counsel’s
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`performance ‘generated benefits beyond the cash settlement fund,’ the market rate for the
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`particular field of law (in some circumstances), the burdens class counsel experienced while
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`litigating the case (e.g., cost, duration, foregoing other work), and whether the case was handled
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`on a contingency basis.” In re Online DVD-Rental Antitrust Litig., 779 F.3d 934, 954-55 (9th Cir.
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`2015) (quoting Vizcaino, 290 F.3d at 1047-50. “[T]he most critical factor [in determining
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`appropriate attorney’s fee awards] is the degree of success obtained.” Hensley v. Eckerhart, 461
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`U.S. 424, 436 (1983). The Ninth Circuit has made clear that in “megafund” cases, courts may
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`“employ the lodestar method instead” of the percentage-of-recovery method if rote application of
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`the 25% benchmark “would yield windfall profits for class counsel in light of the hours spent on
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`the case.” In re Bluetooth, 654 F.3d at 942.
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`Here, class counsel advocates applying the percentage-of-the-fund method. Class counsel
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`requests $27 million which is 27 percent of the $100 million class cash fund. The attorney’s fees
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`sought reflect a multiplier of 2.47 of the actual lodestar totaling $10,923,265. Class counsel
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`argues that the Court should award the requested fees because the requested amount is only 19.9
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`percent of the $135.44 million in quantifiable relief when you factor in the $35.44 million in
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`savings to the class by way of the structural relief that is part of the settlement.
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`Here, the Court applies the percentage-of-the-fund method. As a starting point, the Court
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`finds that 25% of the cash fund method is inherently reasonable. See, e.g., In re Bluetooth Headset
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`Prod. Liab. Litig., 654 F.3d at 941–42 (“[C]ourts typically calculate 25% of the fund as the
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`‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any
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`‘special circumstances’ justifying a departure.”). However, the Court maintains its discretion to
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`adjust upward or downward. Haralson v. U.S. Aviation Servs. Corp., 2021 WL 5033832, at *7
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`(N.D. Cal. Feb. 3, 2021).
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`In applying the percentage-of-the-fund method, the Court finds that an award of $26
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`million is appropriate. This amount constitutes 26% of the common fund or roughly 19.2 percent
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`of the settlement if you include the $35.44 million in value of the structural relief. A 1% increase
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`

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