Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 1 of 21
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`IN RE: APPLE INC. DEVICE
`PERFORMANCE LITIGATION
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`This Document Relates to:
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` ALL ACTIONS
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`Case No. 5:18-md-02827-EJD
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`ORDER GRANTING IN PART
`PLAINTIFFS’ MOTION FOR
`ATTORNEYS’ FEES, EXPENSES, AND
`SERVICE AWARDS
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`Re: Dkt. No. 468
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`This multi-district consumer class action settled. The $310 million settlement is among the
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`largest class action settlements in this Circuit, and one of the largest class action settlements under
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`the California Data Access and Fraud Act (“CDAFA”), California Penal Code § 502, and the
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`federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. Pending before the Court is
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`Named Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and Service Awards (“Mot.”). Dkt. No.
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`468. Named Plaintiffs seek (i) attorneys’ fees in the amount of $87,730,000, which is 28.3% of
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`the $310,000,000 non-reversionary Minimum Class Settlement Amount; (ii) unreimbursed
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`expenses totaling $995,244.93 that Class Counsel and JCCP Counsel incurred in furtherance of the
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`prosecution of this Action; and (iii) Service Awards for Named Plaintiffs in the amount of $3,500
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`to each of the nine Named Plaintiffs who were deposed and $1,500 to each of the remaining
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`Named Plaintiffs. On October 6, 2020, Defendant Apple Inc. (“Defendant” or “Apple”) filed an
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`Opposition to Plaintiffs’ Motion for Attorneys’ Fees, Expenses, and Service Awards (“Opp’n”).
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 2 of 21
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`Dkt. No. 522. On November 20, 2020, Named Plaintiffs filed a Reply in Further Support of
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`Motion for Attorneys’ Fees, Expenses, and Service Awards (“Reply”). Dkt. No. 550. The Court
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`has also received approximately seventy-five objections. The Court conducted a hearing on
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`February 17, 2021. Based on all pleadings filed to date, as well as the comments of counsel and
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`objectors, the Court grants in part Plaintiffs’ Motion as explained below.
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`I.
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`ATTORNEYS’ FEES
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`The background of the case is set forth in the Court’s Order Granting Named Plaintiffs’
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`Motion for Final Approval of Class Action Settlement (Dkt. No. 608) filed concurrently with this
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`Order, and will not be restated herein.
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`In approving a settlement, “courts have an independent obligation to ensure that the award
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`[of attorneys’ fees], like the settlement itself, is reasonable.” In re Bluetooth Headset Prod. Liab.
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`Litig., 654 F.3d 935, 941 (9th Cir. 2011). The Ninth Circuit has approved two different methods
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`for calculating a reasonable attorneys’ fee depending on the circumstances: the lodestar method or
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`the percentage-of-recovery method. Id. at 942. The lodestar method “is appropriate in class
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`actions brought under fee-shifting statutes (such as federal civil rights, securities, antitrust,
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`copyright, and patent acts), where the relief sought—and obtained—is often primarily injunctive
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`in nature and thus not easily monetized.” Id. The lodestar method is also appropriate for “claims-
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`made” settlements.” Gray v. BMW of N. Am., LLC, 2017 WL 3638771, at *5 (D.N.J. Aug. 24,
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`2017).
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`In contrast, “[w]here a settlement produces a common fund for the benefit of the entire
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`class, courts have discretion to employ either the lodestar method or the percentage-of-recovery
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`method.” Id. (citing In re Mercury Interactive Corp., 618 F.3d 988, 992 (9th Cir. 2010)).
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`“Because the benefit to the class is easily quantified in common-fund settlements, we have
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`allowed courts to award attorneys a percentage of the common fund in lieu of the often more time-
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`consuming task of calculating the lodestar.” Id. Although courts have discretion to choose which
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`methodology to use, “their discretion must be exercised in a way that achieves a reasonable
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 3 of 21
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`result.” Id. (citing In re Coordinated Pretrial Proceedings, 109 F.3d 602, 607 (9th Cir. 1997)).
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`Thus, the first question is whether to employ the lodestar or percentage-of-recovery method.
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`A. Method of Fee Calculation
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`Named Plaintiffs and almost all of the objectors assert that this case involves a common
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`fund. Apple, however, argues that the parties negotiated a claims-made settlement and that there
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`is no common fund. Opp’n at 3. Accordingly, Apple urges the Court to focus on a reasonable
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`lodestar.1 The Court finds that the Settlement involves a common fund as explained below, and
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`therefore the Court will award fees based on a percentage of the $310 million Settlement amount.
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`For purposes of awarding attorneys’ fees, a common fund is generally understood as one
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`where “each member of a certified class has an undisputed and mathematically ascertainable claim
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`to part of a lump-sum judgment recovered on his behalf.” Id. at 479; see also Bodon v. Domino’s
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`Pizza, LLC, 2015 WL 3889577, at *3 (E.D.N.Y. June 4, 2015) (“A common fund is a settlement
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`‘fund from which members of a class are compensated for a common injury inflicted on the
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`class.’”).
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` Here, the Settlement provides for a minimum lump-sum of $310 million. Under no
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`circumstances will any of the $310 million revert to Apple. Thus, the Settlement has the
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`characteristics of a common fund insofar as the $310 million is fixed, certain, and non-
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`reversionary.
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`There is an additional provision in the Settlement that requires Apple to pay up to $500
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`million depending on the number of valid claims submitted. Thus, each class member’s claim to
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`the Settlement is not mathematically ascertainable until after the claims process has been
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`1 Named Plaintiffs assert that Apple lacks standing to object to the proposed award of fees. Reply
`at 3. In general, “a settling defendant in a class action has no interest in the amount of attorney
`fees awarded when the fees are to be paid from the class recovery rather than the defendant’s
`coffers.” Tennille v. Western Union Co., 809 F.3d 555, 559 (10th Cir. 2015) (citing Boeing Co. v.
`Van Gemert, 444 U.S. 472, 481, n. 7 (1980)). The Court agrees that Apple lacks standing because
`the fees are to be paid from the class recovery, not from Apple’s coffers. Nevertheless, the Court
`finds it appropriate to consider whether there is a common fund, consistent with the Court’s
`discretion to decide which methodology should be applied in calculating the award of attorneys’
`fees in this case.
`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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` 3
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`Northern District of California
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`United States District Court
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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 4 of 21
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`completed. The inclusion of this additional provision in the Settlement lends some support to the
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`argument that the Settlement should be characterized as a claims-made settlement rather than a
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`common fund settlement.
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`Nevertheless, the Court finds that the Settlement is more appropriately characterized as a
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`common fund for purposes of the instant motion. That Named Plaintiffs’ fee request is based on
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`the fixed, certain, and non-reversionary minimum Settlement amount of $310 million, rather than
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`the potential but uncertain $500 million amount, supports application of the percentage-of-the-
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`fund method. Destefano v. Zynga, Inc., 2016 WL 537946, at *17 (N.D. Cal. Feb. 11, 2016)
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`(“Because this case involves a common settlement fund with an easily quantifiable benefit to the
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`Class, the Court will primarily determine attorneys’ fees using the percentage method . . .”); see
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`also Thomas v. MagnaChip Semiconductor Corp., 2018 WL 2234598, at *3 (N.D. Cal. May 15,
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`2018). Further, “[t]he use of the percentage-of-the-fund method in common-fund cases is the
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`prevailing practice in the Ninth Circuit for awarding attorneys’ fees and permits the Court to focus
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`on showing that a fund conferring benefits on a class was created through the efforts of plaintiffs’
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`counsel.” In re Korean Air Lines Co., Ltd. Antitrust Litig., 2013 WL 7985367, at *1 (C.D. Cal.
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`Dec. 23, 2013). The percentage-of-the-fund method confers “significant benefits . . . including
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`consistency with contingency fee calculations in the private market, aligning the lawyers’ interests
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`with achieving the highest award for the class members, and reducing the burden on the courts that
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`a complex lodestar calculation requires.” Tait v. BSH Home Appliances Corp., 2015 WL
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`4537463, at *11 (C.D. Cal. July 27, 2015).
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`The cases relied upon by Apple do not dictate a different result. In Brazil v. Dell Inc.,
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`2012 WL 1144303, at *1 (N.D. Cal. Apr. 4, 2012), the parties’ settlement provided for a $50 per
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`claimant monetary award, with no class-wide cap or ceiling on recovery, and the court awarded
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`fees using the lodestar method. Unlike the settlement in Brazil, the Settlement in this case has an
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`established minimum of $310 million as well as a $500 million cap or ceiling on recovery.
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`In Create-A-Card, Inc. v. Intuit, Inc., 2009 WL 3073920, at *1 (N.D. Cal. Sept. 22, 2009),
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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`Northern District of California
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`the settlement did not create a common fund, the attorneys’ fees and costs were to be paid directly
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`from defendant as opposed to the fund, and the amount of attorneys’ fees awarded did not have
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`any impact on the recovery available to the class. Because there was no common fund, the
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`Create-A-Card court concluded that the percentage-of-the-fund was not available as a way to
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`calculate attorneys’ fees. Id. Unlike in Create-A-Card, the Settlement in this case provides a
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`minimum fund of $310 million from which attorneys are to be paid and which can be used to
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`calculate a percentage-of-the-fund award.
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`Apple also relies on Gray v. BMW of N. Am., LLC. In Gray, plaintiffs alleged certain
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`BMW vehicles were produced with defects that prevented the convertible top from functioning
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`properly. 2017 WL 3638771, at *1. The settlement provided three forms of relief: software
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`updates for class vehicles; (2) a one-year unlimited-mileage extended warranty; and (3)
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`reimbursement for out-of-pocket expenses. Id. The parties agreed that attorneys’ fees and costs
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`would be paid separate and apart from any relief provided to the settlement class. Id. at *4. The
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`Gray court held that the settlement was not a common fund because no specific monetary figure
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`was set aside to provide relief to the class. Id. at *5. Unlike in Gray, the Settlement in this case
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`provides a specific monetary figure to provide relief to the class.
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`In Bodon, also relied on by Apple, the parties’ settlement of the wage and hour suit called
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`for monetary relief on a claims-made basis. The settlement did not include a fixed total sum to be
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`allocated to the class, nor did the settlement require that defendant pay a minimum amount into a
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`settlement fund. 2015 WL 3889577, at *2. Further, the settlement did not provide for the
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`payment of attorneys’ fees and costs. Id. Instead, the parties agreed that attorneys’ fees and costs
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`would be separately negotiated. Id. The parties were unable to resolve their dispute, and
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`ultimately, the Bodon court applied a “modified lodestar method.” Id. at *6. Unlike in Bodon, the
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`Settlement in this case includes a fixed minimum amount for the Class, without regard to the
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`number of claims.
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`The Court finds that all of the above supports applying the percentage-of-the-fund method
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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`Northern District of California
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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 6 of 21
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`in this case.
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`B.
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`The 25% Benchmark
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`In applying the percentage-of-the-fund method, the Ninth Circuit has established 25% as a
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`“benchmark” percentage, which may be adjusted depending on the circumstances of a case.
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`Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); Hanlon v. Chrysler Corp., 150
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`F.3d 1011, 1029 (9th Cir. 1998). The 25% benchmark rate is a starting point. Id. at 1048.
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`“Selection of the benchmark or any other rate must be supported by findings that take into account
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`all of the circumstances of the case.” Id. In determining whether and in what way to depart from
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`the 25% benchmark, courts consider: “(1) the results achieved; (2) the risk of litigation; (3) the
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`skill required and the quality of work; (4) the contingent nature of the fee and the financial burden
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`carried by the plaintiffs; and (5) awards made in similar cases.” In re Lenovo Adware Litig., 2019
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`WL 1791420, at *8 (N.D. Cal. Apr. 24, 2019) (citing Vizcaino, 290 F.3d at 1050-51). The “most
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`critical factor” in determining appropriate attorneys’ fee awards “is the degree of success
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`obtained.” Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).
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`1.
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`The Results Achieved
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`The $310 million Settlement floor, with a maximum Settlement amount of $500 million, is
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`a substantial result. According to Named Plaintiffs’ damages calculations, the anticipated
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`damages if Named Plaintiffs had fully prevailed on every one of their claims would have
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`amounted to between $18 to $46 per device. Mot. at 7. A $25 per device recovery “represents
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`approximately between 54% and 137% recovery” per device. Id. Named Plaintiffs argue that the
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`enormity and complex facts of this case required substantial and creative investigation, preparation
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`and legal work that resulted in a substantial result for the class. Named Plaintiffs argue that their
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`efforts and the result achieved support an upward adjustment to the benchmark.
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`Named Plaintiffs rely on Larsen v. Trader Joe’s Co., 2014 WL 3404531, at *4 (N.D. Cal.
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`July 11, 2014), to support their request for an upward adjustment of the benchmark to 28.3%. In
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`Larsen, the court concluded that an award of attorneys’ fees equal to 28% of the settlement fund
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 7 of 21
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`was warranted because, among other things, the amount offered in settlement was “50% of the
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`recovery plaintiffs’ could have received had the case gone to trial.” Id. at *4. Named Plaintiffs
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`assert that Larsen supports their requested fees because the results achieved in this case, i.e., a
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`cash payment equal to between 54% and 137% of the estimated damages, is comparable to the
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`50% of estimated damages achieved in Larsen. Mot. at 7.
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`The settlement in Larsen, however, included additional forms of relief: class members with
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`proof of purchase received a full reimbursement for each product purchased during the class
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`period; each class member without a proof of purchase was “remunerated up to 10 products with a
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`maximum claim range from $27.00 to $39.90”; and any amounts left in the fund were distributed
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`in the form of products to class members at Trader Joe’s retail locations throughout the United
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`States. Id. at *4. The settlement in Larsen also provided equitable relief.
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`The Settlement in this case, while substantial in amount, does not provide comparable
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`comprehensive benefits to the Class. Benefits to the Class in this case are limited, albeit fairly and
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`reasonably, to claimants able to provide a serial number (or other identification) for their devices
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`and to provide the required attestation. Therefore the comparison to Larsen, although helpful, is
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`not dispositive.
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`Based on the current claims information from the Claims Administrator, each claimant is
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`likely to receive more than $25 per device, and therefore is likely to receive more than 54% of the
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`estimated damages per device.2 While this recovery is significant and facially comparable to the
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`result in Larsen, this increase in recovery is a result of the response rate3; it was not guaranteed to
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`the Class.
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`2 There are class members who are dissatisfied with the amount of recovery, as evidenced by
`numerous objections. Those objections are addressed in the Court’s Order Granting Named
`Plaintiffs’ Motion for Final Approval of Class Action Settlement.
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` Pursuant to the terms of the Settlement, “if the aggregate value of the valid claims submitted falls
`below $310 million (which is now very likely), Apple will increase each claimant’s payment on a
`pro rata basis to ensure a minimum settlement amount of $310 million, after deducting the costs
`of notice and settlement administration and any award of attorneys’ fees, costs, and service
`awards.” Apple’s Opp’n at 6.
`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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`2.
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`The Risks of Litigation
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`The risk of the litigation was significant in this case. Named Plaintiffs’ original complaint
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`was expansive. Apple vigorously challenged the sufficiency of the complaints and succeeded in
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`substantially narrowing the scope of case. After repeated challenges to the pleadings, only claims
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`for trespass to chattels and claims under the CDAFA and CFAA survived. If the litigation
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`continued beyond the pleading stage, Named Plaintiffs faced risks attendant to prosecuting a case
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`with relatively unique subject matter involving application of statutory computer intrusion and
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`common law trespass to chattels to iPhone devices. There was also a serious risk that a class
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`would not be certified because the parties dispute whether the iOS systems at issue impacted all
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`users, and even if it did, whether users were impacted in the same way. According to Apple, not
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`all devices were used in a way that would have activated the performance management feature.
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`Apple also contends that even if the feature was activated, users may not have noticed any
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`differences in their device performance. Without a settlement, Named Plaintiffs would also have
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`faced risks at the summary judgment stage, at trial, and potentially on appeal. See Bower v. Cycle
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`Gear, Inc., 2016 WL 4439875, at *7 (N.D. Cal. Aug. 23, 2016) (noting risks of litigation were
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`substantial); see also Destefano, 2016 WL 537946, at *17 (noting “substantial” risk of “obtaining
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`[and maintaining] class certification”). If litigation had continued, the Settlement Class also faced
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`the prospect of receiving little to no recovery whatsoever.
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`Some objectors argue that there is always a risk when litigating against well-resourced
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`companies such as Apple, but that Apple’s willingness to settle and the number of firms desiring
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`to be lead counsel suggest that the risk of the litigation was likely low. Obj. of Class Members
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`Sarah Feldman and Hondo Jan to Class Pls.’ Motion for Final Approval of Proposed Settlement
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`(“Feldman Obj.”) at 14-15, Dkt. No. 512; Obj. of Anna St. John (Corrected) (“Center for Class
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`Action Fairness (“CCAF”) Obj.”) at 12, Dkt. No. 523 (citing In re Anthem Inc. Data Breach Litig.,
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`2018 WL 3960068, at *27 (N.D. Cal. Aug. 17, 2018). Neither argument is persuasive. Apple
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`explained the reasons it was willing to settle. Specifically, Apple stated: “While Apple remains
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
`
` 8
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`Northern District of California
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`United States District Court
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`

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`confident that it would have prevailed on its defense of all of Plaintiffs’ claims if this litigation had
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`continued, Apple agreed to resolve this case to avoid the expenses, uncertainties, delays and other
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`risks inherent in continued litigation of the MDL.” Apple’s Statement In Support of Final
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`Approval and Response to Settlement Objections at 7, Dkt. No. 555. Not one of Apple’s stated
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`reasons suggests Named Plaintiffs’ risks were likely low if the litigation had continued.
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` Objectors’ second argument takes the court’s comments in Anthem out of context. In
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`Anthem, the court concluded “there were substantial risks of litigation.” Anthem, 2018 WL
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`3960068, at *12. Further, the Anthem court concluded that the risks were “compounded by the
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`robust opposition from Defendants.” Id. at 13. The Anthem court observed that “[g]iven the
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`massive size of the putative class, Defendants had a powerful incentive to devote considerable
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`resources to this litigation and have zealously litigated the action since its inception.” Id. The
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`same could be said of Apple’s defense of the instant lawsuit. The objectors are correct that the
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`Anthem court observed that the eighteen (18) separate motions to serve as lead counsel in the case
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`suggested the litigation was not as risky as the plaintiffs suggested. The Anthem court “would not
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`expect to have such intense competition among experienced lawyers to undertake the case on a
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`contingency-fee basis if the case did not hold a sufficiently certain prospect of a sizeable
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`recovery.” Id. Importantly, however, the Anthem court concluded that “the risks attendant to
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`maintaining [the] litigation” weighed in favor of granting counsel’s request for a fee award “of
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`more than 25% but less than Plaintiffs suggest.” Id.
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`Here, as in Anthem, countless attorneys filed suits against Apple, which led to multi-
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`district consolidation. Ultimately however, only three motions to serve as lead counsel were filed.
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`See Order Appointing Interim Co-Lead Counsel, Dkt. No. 99. Moreover, here, as in Anthem,
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`Named Plaintiffs have identified other risks in the case that would have had to be overcome to
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`reach a favorable result in this litigation.
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`3.
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`Skill and Quality of Work
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`Class Counsel’s skill and the quality of their work also favor a fee award. The Settlement
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
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` 9
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`Northern District of California
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`United States District Court
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`

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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 10 of 21
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`Class benefitted from Class Counsel’s significant expertise in the prosecution of consumer class
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`action litigation. That the case withstood two motions to dismiss is “some testament to [Class]
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`Counsel’s skill.” In re Nexus 6P Products Liab. Litig., 2019 WL 6622842, at *12 (N.D. Cal. Nov.
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`12, 2019) (quoting In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 2008)).
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`Further, during the three years the case was pending, Class Counsel diligently developed the facts,
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`propounded discovery, took depositions, and engaged a damages consultant, all of which was of
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`great benefit to the Class. See Wallace v. Countrywide Home Loans, Inc., 2015 WL 13284517, at
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`*9 (C.D. Cal. Apr. 17, 2015) (noting factors reflecting counsel’s skill, such as developing the facts
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`and legal claims, conducting discovery, reviewing documents, retaining experts, motion practice,
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`and negotiating and drafting the settlement). The high quality of Class Counsel’s representation is
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`also reflected in the favorable settlement achieved relatively early in the life of the case. The
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`Settlement in this case “was not reached lightly.” Moreyra v. Fresenius Med. Care Holdings, Inc.
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`2013 WL 12248139, at *3 (C.D. Cal. Aug. 7, 2013).
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`Courts also consider “the quality of opposing counsel as a measure of the skill required to
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`litigate the case successfully.” In re American Apparel, Inc. S’holder Litig., 2014 WL 10212865,
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`at *22 (C.D. Cal. 2014); see also Wing v. Asarco, 114 F.3d 986, 989 (9th Cir. 1997) (noting the
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`district court’s evaluation of class counsel’s “first-rate job”). Here, Class Counsel faced a
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`company with significant financial and legal resources. As multiple objectors recognize, “[Apple]
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`has the largest market cap of any corporation in the world. Apple’s attorneys are highly qualified,
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`litigation savvy, and aggressive.” See, e.g., Feldman Obj. at 14. Apple was represented in this
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`case by two national, highly respected law firms, Gibson, Dunn & Crutcher LLP and Covington
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`and Burling LLP, which weighs in favor of a fee award. In re Heritage Bond Litig., 2005 WL
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`1594403, at *20 (C.D. Cal. June 10, 2005) (noting that quality of opposing counsel is important in
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`evaluating the quality of plaintiff’s counsel’s work, and stating “[t]here is also no dispute that the
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`plaintiffs in this litigation were opposed by highly skilled and respected counsel with well-
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`deserved local and nationwide reputations for vigorous advocacy in the defense of their clients.”).
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
`
` 10
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`Northern District of California
`
`United States District Court
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`

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`4.
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`The Contingent Nature of the Representation
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`The contingent nature of representation in this case supports an award of attorneys’ fees.
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`Class Counsel took the matter on a contingency basis and advanced all necessary professional
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`time and expenses for approximately three years. Mot. at 9. “When counsel takes cases on a
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`contingency fee basis, and litigation is protracted, the risk of non-payment after years of litigation
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`justifies a significant fee award.” Bellinghausen v. Tractor Supply Co., 306 F.R.D. 245, 261 (N.D.
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`Cal. 2015) (applying 25% benchmark). “It is an established practice in the private legal market to
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`reward attorneys for taking the risk of non-payment by paying them a premium over their normal
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`hourly rates for winning contingency cases.” In re Washington Pub. Power Supply Sys. Sec.
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`Litig., 19 F.3d 1291, 1299 (9th Cir. 1994).
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`Courts differ on the adjustment to the benchmark that is warranted, if any, based on the
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`contingent nature of representation. See, e.g., Luna v. Universal City Studios, LLC, 2016 WL
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`10646310, at *7 (C.D. Cal. Sept. 13, 2016) (awarding attorneys’ fees in the amount of 29.6% of
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`$1.8 million settlement in light of the results achieved, the risk of litigation, the contingent nature
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`of the fee, and the financial burden carried by class counsel); Nexus 6P, 2019 WL 6622842, at *13
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`(approving award of attorneys’ fees in the amount of 30% of $9,750,000 common fund);
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`Omnivision Techs., 559 F. Supp. 2d at 1047 (awarding attorneys’ fees in the amount of 28% of
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`$13.75 million settlement); Ching v. Siemens Indus. Inc., 2014 WL 2926210, at *8 (N.D. Cal. June
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`27, 2014) (awarding attorneys’ fees in the amount of 30% of $425,000 settlement). Here, Named
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`Plaintiffs’ request for attorneys’ fees equal to 28.3% of the $310,000,000 non-reversionary portion
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`of the Settlement is within the range of the cases cited above. Nevertheless, the Court finds that an
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`upward adjustment of the benchmark to 28.3% is not warranted for reasons discussed below.
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`5.
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`Awards in Similar Cases
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`That this case resolved with a “megafund” settlement is an important factor in assessing
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`the reasonableness of attorneys’ fees. Named Plaintiffs assert that an extraordinarily large
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`settlement warrants an award of attorneys’ fees above the 25% benchmark, citing numerous cases
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES,
`EXPENSES, AND SERVICE AWARDS
`
` 11
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`Northern District of California
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`United States District Court
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`

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`Case 5:18-md-02827-EJD Document 609 Filed 03/17/21 Page 12 of 21
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`awarding between 27%-36% of settlements ranging from $105 million to $1.075 billion. Mot. at
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`11-12. Although the cases cited by Named Plaintiffs provide some guidance, as the CCAF points
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`out, the cases cited are arguably “outlier megafund settlements” and most are from outside this
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`Circuit. CCAF Obj. at 12. Further, the CCAF asserts that the few cases Named Plaintiffs cite
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`from within this Circuit “are readily distinguished because of the fact that they involved
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`significantly lower lodestar multipliers than that proposed here.” Id. By CCAF’s calculations,
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`Named Plaintiffs are requesting a 2.41 multiplier—substantially above the 1.0 to 1.37 multiplier
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`range in Named Plaintiffs’ cited cases. Id. To emphasize its point, CCAF cites “an equally
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`lengthy list of cases on the other side, counseling a much lower award.” CCAF Obj. at 13, n.11
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`(citing a string of 8 cases awarding between 7%-25.5% of settlements ranging from $100 million
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`to $346 million).
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`The better approach is to look to empirical research on megafund cases. In Alexander v.
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`FedEx Ground Package Sys., Judge Chen took this approach. 2016 WL 3351017, at *2 (N.D. Cal.
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`June 15, 2016). Judge Chen began by observing that fee awards in megafund cases present
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`difficult questions because application of a benchmark or standard percentage may result in a fee
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`that is unreasonably large relative to the benefits conferred. Id. at *1. This is because in many
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`cases, the size of the settlement is merely a factor of the size of the class and has no direct
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`relationship to the efforts of counsel. Id. (quoting In re Prudential Ins. Co. Am. Sales Practice
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`Litig. Agent Actions, 148 F.3d 283, 339 (3d Cir. 1998). Next, Judge Chen found that “[a]lthough a
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`percentage award in a megafund case can be 25% or even as high as 30-40%, typically the
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`percentage award in such a case is substantially less than the 25% benchmark applicable to typical
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`class settlements in this Circuit.” Id. Judge Chen also cited to Judge Koh’s finding that there is
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`“persuasive evidence that the median attorney’s fee award in a sample of 68 ‘megafund’ class
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`action settlements over a 16-year period was 10.2%.” Id. (quoting In re High-Tech Emp. Antitrust
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`Litig., 2015 WL 5158730, at *13 (N.D. Cal. Sept. 2, 2015)). Judge Koh relied on an Eisenberg &
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`Miller study spanning sixteen (16) years of 68 “megafund” cases that found the median attorneys’
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`CASE NO.: 5:18-MD-02827-EJD
`ORDER GRANTING IN PART PLAINTIFF