Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 1 of 17 PageID #: 11312
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`THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
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`----------------------------------------------------------
`Chaim Lerman, individually and on behalf of
`others similarly situated,
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`Apple Inc.,
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`v.
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`Plaintiffs,
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`Defendant.
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`x
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`x
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`15-cv-07381 (SJ) (LB)
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`DEFENDANT APPLE INC.’S OPPOSITION TO PLAINTIFFS’ MOTION
`FOR AWARD OF ATTORNEYS’ FEES AND REIMBURSEMENT
`OF LITIGATION EXPENSES TO CLASS COUNSEL AND
`SERVICE AWARDS TO THE PLAINTIFFS
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 2 of 17 PageID #: 11313
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ........................................................................................................... i
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`PRELIMINARY STATEMENT .....................................................................................................1
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`BRIEF SUMMARY OF THE SETTLEMENT ...............................................................................3
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`ARGUMENT ...................................................................................................................................4
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`I.
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`The Court Should Reduce the Plaintiffs’ Request for Attorneys’ Fees to Thirty
`Percent..............................................................................................................................4
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`A.
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`B.
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`C.
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`II.
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`III.
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`A.
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`B.
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`C.
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`Thirty Percent is Reasonable Under This Circuit’s Precedent. ....................................4
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`Class Counsel and the Plaintiffs Agreed Thirty Percent is Reasonable. .....................5
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`Thirty Percent Recovery Provides More Money for the Settlement Class. .................5
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`Class Counsel Provides Insufficient Support for the Hours Expended. ..........................6
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`The Court Should Reduce the Award of Requested Costs. .............................................8
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`The Expert Fees Sought Are Unreasonable. ................................................................9
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`Meals and Taxi Charges Are Not Recoverable............................................................9
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`Online Research is Not Recoverable. ........................................................................10
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`IV.
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`The Court Should Reduce the Plaintiffs’ Request for Service Awards. ........................11
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`CONCLUSION ..............................................................................................................................11
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 3 of 17 PageID #: 11314
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`
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`Cases
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`TABLE OF AUTHORITIES
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`Page(s)
`
`Allied 100, LLC v. Chadha,
`2021 WL 7184241, at *12 (E.D.N.Y. July 26, 2021) ................................................................7
`
`Babcock v. C. Tech Collections, Inc.,
`2017 WL 1155767 (E.D.N.Y. Mar. 27, 2017) .........................................................................11
`
`Bannister v. Berkman Henoch Peterson Peddy & Fenchel, PC,
`2021 WL 4268139, at *3 (E.D.N.Y. July 23, 2021), report and
`recommendation adopted, 2021 WL 3578526 (E.D.N.Y. Aug. 12, 2021) ........................4, 7, 8
`
`Capital One, N.A. v. Auto Gallery Motors, LLC,
`2020 WL 423422 (E.D.N.Y. Jan. 27, 2020) ..............................................................................7
`
`Charles v. Opinion Access Corp.,
`2020 WL 9812930 (E.D.N.Y. Mar. 13, 2020) .........................................................................10
`
`DCH Auto Grp. (USA) Inc. v. Fit You Best Auto., Inc.,
`2006 U.S. Dist. LEXIS 4298 (E.D.N.Y. Jan. 10, 2006) ..........................................................10
`
`Faroque v. Park W. Exec. Servs.,
`2020 WL 9812905 (E.D.N.Y. Jan. 29, 2020) ..........................................................................10
`
`Fero v. Excellus Health Plan, Inc.,
`2022 WL 1292133 (W.D.N.Y. Apr. 29, 2022) ........................................................................10
`
`Grano v. Martin,
`2021 WL 3500164 (S.D.N.Y. Aug. 9, 2021) .............................................................................8
`
`Grottano v. City of New York,
`2022 WL 2763815 (S.D.N.Y. July 15, 2022) ........................................................................5, 7
`
`Gutierrez v. Taxi Club Mgmt., Inc.,
`2018 WL 3432786, at *14 (E.D.N.Y. June 25, 2018), report and
`recommendation adopted, 2018 WL 3429903 (E.D.N.Y. July 16, 2018) ...............................10
`
`Jander v. Ret. Plans Comm. of IBM,
`2021 WL 3115709 (S.D.N.Y. July 22, 2021) ............................................................................5
`
`M.F. v. Amida Care, Inc.,
`75 Misc. 3d 1209(A), 167 N.Y.S.3d 771 (N.Y. Sup. Ct. Kings Cnty. 2022) ............................5
`
`
`
`
`
`ii
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 4 of 17 PageID #: 11315
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`
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`Parker v. Time Warner Entm’t Co., L.P.,
`631 F. Supp. 2d 242 (E.D.N.Y. 2009), aff’d sub nom. Lobur v. Parker, 378 F.
`App’x 63 (2d Cir. 2010).............................................................................................................5
`
`Patti’s Pitas, LLC v. Wells Fargo Merch. Servs., LLC,
`2021 WL 5879167 (E.D.N.Y. July 22, 2021) ............................................................................5
`
`Pearlman v. Cablevision Sys. Corp.,
`2019 WL 3974358 (E.D.N.Y. Aug. 20, 2019) .......................................................................1, 4
`
`Perks v. TD Bank, N.A.,
`2022 WL 1451753 (S.D.N.Y. May 9, 2022) .........................................................................4, 9
`
`Rosen v. LJ Ross Assocs., Inc.,
`2022 WL 493728, at *8 (E.D.N.Y. Jan. 24, 2022), report and
`recommendation adopted, 2022 WL 493274 (E.D.N.Y. Feb. 17, 2022) ...................................8
`
`Stein v. 1-800-Flowers.com, Inc.,
`2019 U.S. Dist. LEXIS 37214 (E.D.N.Y. Mar. 7, 2019) .................................................7, 8, 10
`
`Torres v. Toback, Bernstein & Reiss LLP,
`2014 WL 1330957 (E.D.N.Y. Mar. 31, 2014) .....................................................................3, 11
`
`In re Visa Check/Mastermoney Antitrust Litig.,
`297 F. Supp. 2d 503 (E.D.N.Y. 2003), aff’d sub nom. Wal-Mart Stores, Inc. v.
`Visa U.S.A., Inc., 396 F.3d 96 (2d Cir. 2005) ............................................................................6
`
`Zaslavskiy v. Weltman, Weinberg & Reis Co., LPA,
`2022 WL 1003589 (E.D.N.Y. Jan. 5, 2022) report and recommendation
`adopted, (Jan. 25, 2022) ................................................................................................... passim
`
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`iii
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 5 of 17 PageID #: 11316
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`PRELIMINARY STATEMENT
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`Defendant Apple Inc. (“Apple”) agrees with the plaintiffs that the Proposed Settlement1 is
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`fair, reasonable, and adequate, and it respectfully requests that this Court approve it at the
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`upcoming fairness hearing. (See ECF No. 156.) For all of the reasons Apple previously explained,
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`while Apple vigorously denies that it did anything wrong, and it agreed to resolve this case solely
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`to avoid the expenses, uncertainties, delays, and other risks inherent in continued litigation, the
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`Proposed Settlement should be approved. (Id. at 3.) The Proposed Settlement is the product of
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`extensive, arms-length negotiations facilitated by an experienced mediator and former federal
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`Magistrate Judge, and the Proposed Settlement provides substantial, non-reversionary monetary
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`compensation to the plaintiffs and the putative class through a claims-made settlement structure.
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`Apple, however, is compelled to object to the plaintiffs’ Motion for Award of Attorneys’ Fees and
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`Reimbursement of Litigation Expenses to Class Counsel and Service Awards to the Plaintiffs (the
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`“Motion”) (ECF Nos. 161-1, 161-2) in certain respects, discussed below.
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`First, Apple respectfully requests that the Court award Class Counsel attorneys’ fees of
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`thirty percent of the Settlement Fund, rather than the 33 and 1/3 percent Class Counsel requested.
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`Courts in this Circuit have held thirty percent is appropriate where the settlement amount—like
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`here—is between $10 and $20 million. See, e.g, Pearlman v. Cablevision Sys. Corp., 2019 WL
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`3974358, at *3 (E.D.N.Y. Aug. 20, 2019) (stating that it is “common” to have a thirty percent
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`award where the settlement fund is between $10 million and $50 million). That thirty percent is
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`reasonable is clear: that is what Class Counsel and each named plaintiff agreed to in their
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`engagement letters. Without this reduction, Class Counsel’s windfall will be almost the same as
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`1 Capitalized terms not defined herein have the same meaning as in the Settlement Agreement and
`Release (the “Proposed Settlement,” ECF No. 155-3).
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 6 of 17 PageID #: 11317
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`the relief provided to Settlement Class Members, and Settlement Class Members will not be able
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`to receive the maximum relief afforded to them under the Settlement Agreement. (See Section I.)
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`Second, Class Counsel failed to submit any documentation that substantiates the over
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`10,000 hours that their more than 20 timekeepers billed. Without such documentation, this Court
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`and Apple cannot ascertain whether that time expenditure was reasonable, excessive, duplicative,
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`or otherwise inappropriate. (See Section II.)
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`Third, Apple objects to certain of Class Counsel’s requests for costs, for which they seek
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`$2,809,371.74. (See ECF Nos. 160-4 ¶ 7 and 160-5 ¶ 7.) As a preliminary matter, like their request
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`for attorneys’ fees, Class Counsel’s request is deficient because they submit only an internal
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`summary, with no detail about the tasks performed, in support of the reasonableness of the costs.
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`Their failure to produce underlying invoices is fatal to this portion of their request. See, e.g.,
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`Zaslavskiy v. Weltman, Weinberg & Reis Co., LPA, 2022 WL 1003589, at *16 (E.D.N.Y. Jan. 5,
`
`2022) report and recommendation adopted, (Jan. 25, 2022) (declining certain costs where no
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`documentary evidence was provided). Moreover, Class Counsel’s request for $2.5 million in
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`expert fees (including $1.2 million spent on data analysts who did not testify and were not deposed)
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`should be reduced, and costs spent for items that are simply the cost of doing business, such as
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`meal costs, taxis, and online legal research costs are not recoverable. (See Section III.)
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`Finally, a reduction in the requested service award of $15,000.00 for each named plaintiff
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`is appropriate. If awarded, the named plaintiffs would receive one hundred-times the maximum
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`payment afforded to other class members. Such an award is “grossly disproportionate” and
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`warrants a reduction. See, e.g., Torres v. Toback, Bernstein & Reiss LLP, 2014 WL 1330957, at
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`*4 (E.D.N.Y. Mar. 31, 2014) (reducing award). (See Section IV.)
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`2
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 7 of 17 PageID #: 11318
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`BRIEF SUMMARY OF THE SETTLEMENT
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`The plaintiffs allege that they upgraded their iPhone 4S devices to iOS 9 as a result of
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`Apple’s supposedly false representation that iOS 9 enhanced the performance of the iPhone 4S.
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`The plaintiffs assert that Apple’s conduct violated the New Jersey Consumer Fraud Act and New
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`York consumer protection statutes. Apple is confident that if this litigation were to continue, it
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`would prevail on its defense of all of the plaintiffs’ claims. Apple originally released the iPhone
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`4S in October 2011 running iOS 5. When Apple released iOS 9 four years later, Apple had stopped
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`selling the iPhone 4S in the U.S. a year earlier. Nevertheless, Apple did not want to leave iPhone
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`4S users without important enhancements, including security protections, an extra hour of battery
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`life, and numerous other improvements. As a result, in 2015, Apple delivered its customers a high-
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`quality, fifth upgrade to the iPhone 4S’s mobile operating system known as iOS 9—at a time when
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`no other smartphone manufacturer provided anything near five years of continuous software
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`support. Apple engineers worked very hard to deliver a great experience to iPhone 4S owners—
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`for free. And they did.
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`While Apple is confident that it would ultimately have been vindicated, it agreed to resolve
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`this case solely to avoid the expenses, uncertainties, delays, and other risks inherent in continued
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`litigation. The Proposed Settlement, reached after years of hard-fought litigation and reached only
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`with the assistance of an experienced mediator who is a former Federal Magistrate Judge, provides
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`a minimum of $15 to each Settlement Class Member who submits a valid claim. That $15 is the
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`secondary market price of an iPhone 4S before and after the release of iOS 9 and reflects the risk
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`that, had litigation continued, the class could have gotten nothing—as a litigation class could have
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`been decertified, or summary judgment could have been granted in Apple’s favor, or the plaintiffs
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`could have lost at trial. Depending on the volume of claims submitted, Settlement Class Members
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`3
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 8 of 17 PageID #: 11319
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`could claim as much as $150—a result that is more than fair and adequate in these circumstances.
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`While the Proposed Settlement is fair and reasonable, and Apple agrees that the plaintiffs’
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`counsel are entitled to an attorneys’ fee award as a result, their fees come out of the $20 million
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`Settlement Fund, and, as such, should be fair but not excessive, and not adversely affect the
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`recovery of the Settlement Class. For those reasons, Apple suggests the reductions below.
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`ARGUMENT
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`I.
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`The Court Should Reduce the Plaintiffs’ Request for Attorneys’ Fees to Thirty
`Percent.
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`“The Court has discretion to determine the amount of attorneys’ fees appropriate to satisfy
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`a fee award.” Bannister v. Berkman Henoch Peterson Peddy & Fenchel, PC, 2021 WL 4268139,
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`at *3 (E.D.N.Y. July 23, 2021), report and recommendation adopted, 2021 WL 3578526
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`(E.D.N.Y. Aug. 12, 2021) (citing Hensley v. Eckerhart, 431 U.S. 424, 437 (1983)). “This Court
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`uses a percentage of the fund method, but with a lodestar cross-check.” Perks v. TD Bank, N.A.,
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`2022 WL 1451753, at *2 (S.D.N.Y. May 9, 2022) (citing Goldberger v. Integrated Res., Inc., 209
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`F.3d 43, 50 (2d Cir. 2000)). Here, Class Counsel seek an award of one-third of the Settlement
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`Fund: $6,666,000.00. Apple respectfully submits that this amount should be reduced, and thirty
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`percent awarded, for three reasons, discussed below.
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`A.
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`Thirty Percent is Reasonable Under This Circuit’s Precedent.
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`Although courts in this Circuit have approved requests for attorneys’ fees of one-third the
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`settlement amount, thirty percent is more appropriate in light of the amount of the Settlement Fund:
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`$20,000,000.00. “‘[I]t is very common to see … 30% contingency fees in cases with funds between
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`$10 million and $50 million’”. Pearlman v. Cablevision Sys. Corp., 2019 WL 3974358. *3
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`(E.D.N.Y. Aug. 20, 2019) (quoting In re Payment Card Interchange Fee & Merch. Disc. Antitrust
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`Litig., 991 F. Supp. 2d 437, 445 (E.D.N.Y. 2013)); see also Patti’s Pitas, LLC v. Wells Fargo
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`4
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 9 of 17 PageID #: 11320
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`Merch. Servs., LLC, 2021 WL 5879167, at *4 (E.D.N.Y. July 22, 2021) (“the fee represents 30
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`percent of the $40 million settlement amount, which the Court finds to be reasonable and
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`consistent with awards in similar cases in this Circuit”); Jander v. Ret. Plans Comm. of IBM, 2021
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`WL 3115709, at *7 (S.D.N.Y. July 22, 2021) (“Class Counsel’s request for 30% of the gross
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`settlement fund is reasonable within this circuit.”) (collecting cases); Grottano v. City of New York,
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`2022 WL 2763815, at *4
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`(S.D.N.Y. July 15, 2022)
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`(awarding 20.8% of
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`the
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`$12.5 million Settlement Fund). Cf. M.F. v. Amida Care, Inc., 75 Misc. 3d 1209(A), 167 N.Y.S.3d
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`771 (N.Y. Sup. Ct. Kings Cnty. 2022) (when the settlement fund is less than $10 million, an award
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`of 1/3 may be reasonable).
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`Respectfully, the Court should follow this line of authority and reduce Class Counsel’s
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`request for attorneys’ fees from one-third to thirty percent.
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`B.
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`Class Counsel and the Plaintiffs Agreed Thirty Percent is Reasonable.
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`Class Counsel ostensibly agree that thirty percent is reasonable, because they agreed to
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`seek no more than that amount in their engagement letter with each named plaintiff. (See ECF
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`Nos. 160-7 ¶ 9, 160-8 ¶ 9, 160-9 ¶ 9.) The fact that Counsel and the plaintiffs believed that thirty
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`percent was reasonable speaks volumes.
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`C.
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`Thirty Percent Recovery Provides More Money for the Settlement Class.
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`An award of thirty percent of the Settlement Fund would provide an additional over
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`$600,000.00 in funds to Settlement Class Members. “As a matter of public policy, it would be
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`unseemly for the rewards to Class Counsel to exceed those to Class Members, the ones for whom
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`the litigation is ostensibly contested.” Parker v. Time Warner Entm’t Co., L.P., 631 F. Supp. 2d
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`242, 274 (E.D.N.Y. 2009), aff’d sub nom. Lobur v. Parker, 378 F. App’x 63 (2d Cir. 2010)
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`(collecting cases). If the plaintiffs are awarded their requested attorneys’ fees, service awards, and
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`5
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 10 of 17 PageID #: 11321
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`expenses in full ($9,520,371.74), they will retain almost the same amount of funds that will be
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`allocated for the Settlement Class Members.2 Settlement Class Members also would not be able
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`to receive maximum payment afforded to them under the Settlement Agreement. Under the
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`Settlement Agreement, Settlement Class Members who submit Approved Claims are entitled to
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`$15.00 per applicable device. (Settlement Agreement, § 5.1.) If the number of Approved Claims
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`submitted by Settlement Class Members does not reach the Net Settlement Amount, the payment
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`will be increased on a pro rata basis, not to exceed $150.00. (Id. § 5.3.) Even when using the
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`current number of claims submitted—which inevitably will continue to grow—each Settlement
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`Class Member would receive a payment of approximately $62.94—which is less than the
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`maximum payment of $150.00. (See ECF No. 163.) Reducing the award to thirty percent of the
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`Settlement Fund would provide an additional $600,000.00 to the class and each Settlement Class
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`Members would receive a payment of approximately $68.56.
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`II.
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`Class Counsel Provides Insufficient Support for the Hours Expended.
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`Class Counsel have not provided sufficient documentation to assure this Court that the
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`hours billed are reasonable. “Even when the percentage method is used … the Second Circuit
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`encourages the practice of requiring documentation of hours as a ‘cross-check’ on the
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`reasonableness of the requested percentage.” In re Visa Check/Mastermoney Antitrust Litig., 297
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`F. Supp. 2d 503, 520–21 (E.D.N.Y. 2003), aff’d sub nom. Wal-Mart Stores, Inc. v. Visa U.S.A.,
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`Inc., 396 F.3d 96 (2d Cir. 2005) (cleaned up). “The party seeking reimbursement of attorneys’ fees
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`must demonstrate the reasonableness and necessity of hours spent and rates charged.” Bannister,
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`2 When the amount of the plaintiffs’ sought fees of $6,666,000.00 is added to costs
`($2,809,371.74), plus $45,000.00 in service awards that equals $9,520,371.74 plus the estimated
`costs of Notice, $620,000.00, that equals $10,140,371.70, which leaves approximately $9.8 million
`left from the Settlement Fund to be distributed to the Settlement Class.
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`6
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 11 of 17 PageID #: 11322
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`2021 WL 4268139, at *4 (citation omitted).
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`“To recover fees, attorneys must submit contemporaneous time records that specify ‘the
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`date, the hours expended, and the nature of the work done.’” Stein v. 1-800-Flowers.com, Inc.,
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`2019 U.S. Dist. LEXIS 37214, at *6 (E.D.N.Y. Mar. 7, 2019) (quoting N.Y. State Ass’n for
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`Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d. Cir. 1983)); see also Grottano v. City
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`of New York, 2022 WL 2763815, at *4 (S.D.N.Y. July 15, 2022) (cutting lodestar; recognizing that
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`a “court ‘may reduce the [attorneys’] fees requested for billing entries that are vague and do not
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`sufficiently demonstrate what counsel did’”) (quoting Ryan v. Allied Interstate, Inc., 882 F. Supp.
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`2d 628, 636 (S.D.N.Y. 2012); Allied 100, LLC v. Chadha, 2021 WL 7184241, at *12 (E.D.N.Y.
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`July 26, 2021) (“[a]ttorneys must submit contemporaneous records with their fee applications to
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`document the hours reasonably billed”).
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`Here, Class Counsel have submitted no supporting documentation that articulates how they
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`spent the 10,172.48 hours they billed on this case. Class Counsel merely provide a chart listing
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`the names of billers, their requested hourly rate, and an aggregate number of hours each worked,
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`with no elucidation as to whom did what. (ECF Nos. 160-4 ¶ 5; 160-5 ¶ 5.) Without such an
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`explanation, the Court and Apple cannot ascertain whether these hours were reasonable, or
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`unnecessary, or duplicative, or administrative work billed as attorney work, or travel time, or work
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`that cannot be included in a fee request, or excessive time spent on specific tasks. See, e.g.,
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`Zaslavskiy, 2022 WL 1003589, at *15 (reduction of hours appropriate where excessing billing for
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`e-mail correspondence, billing for administrative work, and block billing).
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`This lack of documentary support is plainly insufficient and defeats Class Counsel’s
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`request. See, e.g., Capital One, N.A. v. Auto Gallery Motors, LLC, 2020 WL 423422, at *2
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`(E.D.N.Y. Jan. 27, 2020) (if the hours claimed are “insufficiently documented, the court may
`
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`7
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 12 of 17 PageID #: 11323
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`
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`decrease the award, either by eliminating compensation for unreasonable hours or by making
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`across-the-board percentage cuts in the total hours for which reimbursement is sought”) (internal
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`quotation marks & citation omitted); Grano v. Martin, 2021 WL 3500164, at *5 (S.D.N.Y. Aug.
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`9, 2021) (“Courts in this Circuit have levied various across-the-board reductions in the total
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`number of requested hours based on vague entries.”). In Stein, for example, the plaintiffs’ counsel
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`submitted, as here, only a table naming the attorneys who billed time on the case, the aggregate
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`number of hours worked, and their rates, but did not state the “hours attributable to each task” and
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`“describe[d] the nature of the work only in the most general sense.” 2019 U.S. Dist. LEXIS 37214,
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`at *5. As a result, the Court denied the plaintiffs’ fee application as deficient because it was unable
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`to perform its “proper review function.” Id. at *7. So too here.3
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`III. The Court Should Reduce the Award of Requested Costs.
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`“Courts typically award ‘those reasonable out-of-pocket expenses incurred by the attorney
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`and which are normally charged fee paying clients.’” Bannister, 2021 WL 4268139, at *6 (quoting
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`Reichman v. Bonsignore, Brignati & Mazzotta, P.C., 818 F.2d 278, 283 (2d Cir. 1987)). “However,
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`it is incumbent upon the party seeking reimbursement of its costs to provide the court adequate
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`substantiation in the form of receipts and other documents not only showing such costs were
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`incurred, but that they were paid.” Id. (collecting cases). Where, like here, “the only document
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`offered to support these costs is an internal record” (ECF No. 160-4, Ex. C),4 costs are not
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`recoverable. Zaslavskiy. 2022 WL 1003589, at *16; see also Stein, 2019 U.S. Dist. LEXIS 37214,
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`at *12 (“the Court [cannot] award costs without access to underlying invoices”) (collecting cases);
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`3 In the alternative, the Court should order Class Counsel to provide further information concerning
`the hours expended.
`4 Class Counsel from Bronstein, Gewirtz & Grossman, LLC did not submit any documentation in
`support of their requested costs. (See ECF No. 160-5.)
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`8
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 13 of 17 PageID #: 11324
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`Rosen v. LJ Ross Assocs., Inc., 2022 WL 493728, at *8 (E.D.N.Y. Jan. 24, 2022), report and
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`recommendation adopted, 2022 WL 493274 (E.D.N.Y. Feb. 17, 2022) (“In the absence of
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`documentation, costs may not be awarded.”). Even if the Court were to accept the contents of the
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`internal record (which it should not), there are at least three categories that warrant a reduction or
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`are simply not compensable.
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`A.
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`The Expert Fees Sought Are Unreasonable.
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`Class Counsel ask to be reimbursed for over $2.5 million for experts. (ECF No. 160-4, Ex.
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`C.) Particularly troublesome is that $1.2 million of this amount was spent on “iRunway,” which
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`included a team of individuals who assisted one of the plaintiffs’ experts with data work. These
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`individuals were not testifying experts, and they were not deposed. Class Counsel provides no
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`documentation as to what exactly these individuals did or how they assisted the plaintiffs’ expert.
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`Their failure to do so warrants an immediate reduction. See, e.g, Perks, 2022 WL 1451753, at *4
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`(reducing expert fees by 15%) (“The Court appreciates that there was a substantial amount of ‘data
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`crunching’ required, but Mr. Olsen’s total fee, for an expert who was never deposed, is on the high
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`side.”).5
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`B. Meals and Taxi Charges Are Not Recoverable.
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`Class Counsel ask to be reimbursed for approximately $8,000.00 for meals and taxis. (ECF
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`Nos. 160-4, Ex. C; 160-5 ¶ 7.) In some instances, counsel is asking for reimbursement of multiple
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`meals per week (see, e.g., ECF No. 160-4, Ex. C at 6/05/19 entries seeking reimbursement for
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`meals on May 20, 21, 22, and 23, 2019), and some of the entries appear to be duplicative, such as:
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`5 In the alternative, the Court should order Class Counsel to provide further information concerning
`the work iRunway performed and why it was so expensive.
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 14 of 17 PageID #: 11325
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`Id. Likewise, many of the taxi/car charges are on multiple days in a given week. Id.
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`Courts routinely reject reimbursement of attorney meals and taxi expenses. Faroque v.
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`Park W. Exec. Servs., 2020 WL 9812905, at *8 (E.D.N.Y. Jan. 29, 2020) (“the requests for attorney
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`meal and taxi expenses to be an inappropriate use of Class funds”); Charles v. Opinion Access
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`Corp., 2020 WL 9812930, at *8 (E.D.N.Y. Mar. 13, 2020) (“the meal and taxi bills the plaintiffs’
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`counsel have submitted are not a reliable measure of costs reasonably incurred on the plaintiffs’
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`behalf”). The Court should do the same here.
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`C.
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`Online Research is Not Recoverable.
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`Class Counsel ask to be reimbursed for $17,407.41 in legal “research costs.” (ECF Nos.
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`160-4, Ex. C; 160-5 ¶ 7.) “In the Eastern District of New York, however, courts routinely disallow
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`applications for electronic research costs.” DCH Auto Grp. (USA) Inc. v. Fit You Best Auto., Inc.,
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`2006 U.S. Dist. LEXIS 4298, at *10-11 (E.D.N.Y. Jan. 10, 2006) (citation omitted) (collecting
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`cases); accord Stein, 2019 U.S. Dist. LEXIS 37214, at *13. See also Gutierrez v. Taxi Club Mgmt.,
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`Inc., 2018 WL 3432786, at *14 (E.D.N.Y. June 25, 2018), report and recommendation adopted,
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`2018 WL 3429903 (E.D.N.Y. July 16, 2018) (“Plaintiff’s request for reimbursement of Westlaw
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`research costs is not reasonable given that such expenses should be part of a law office’s overhead
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`costs.”); Fero v. Excellus Health Plan, Inc., 2022 WL 1292133, at *3 (W.D.N.Y. Apr. 29, 2022)
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`(“The Court views such fees as the cost of doing business and accordingly is not persuaded that
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`they should be passed on to the class.”). The Court should follow this line of authority and decline
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`reimbursement.
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 15 of 17 PageID #: 11326
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`IV.
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`The Court Should Reduce the Plaintiffs’ Request for Service Awards.
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`The plaintiffs seek a service award of $15,000.00 for each named plaintiff, totaling
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`$45,000.00. Although “Courts often grant named plaintiffs in class cases an enhanced award,”
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`“service awards are discretionary.” Zaslavskiy, 2022 WL 1003589, at *7 (citations omitted). “[I]n
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`determining whether an award is justified, and, if so, in what amount,” the Court should consider
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`“the proportionality of the named Plaintiff’s service award in relation to the payment that the other
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`class members will receive.” Id. (citations omitted).
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`Where, like here, the named plaintiffs would receive an award one hundred-times greater
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`than the maximum recovery afforded to Settlement Class Members under the Settlement
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`Agreement, a reduction is warranted. See id. (reduction appropriate where it would amount to
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`fifty-three times the amount to be paid to other class members); Babcock v. C. Tech Collections,
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`Inc., 2017 WL 1155767, at *9 (E.D.N.Y. Mar. 27, 2017) (reducing award where the named
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`plaintiffs would receive “significantly more than the recovery afforded class members under the
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`settlement”) (collecting cases); Torres, 2014 WL 1330957, at *4 (reducing award of $8,500 when
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`class members would receive only $60 or $67).
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`Accordingly, Apple requests that the Court reduce the amount of the requested service
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`awards.
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`CONCLUSION
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`Apple agrees that the Proposed Settlement is fair, reasonable, and adequate and respectfully
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`joins in the request finally to approve the Proposed Settlement. Apple also does not dispute that
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`Class Counsel is entitled to some amount of attorneys’ fees and costs. An attorneys’ fee award of
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`thirty percent of the Settlement Fund, however, is more than reasonable, particularly given the lack
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`of any documentation supporting the more than 10,000 hours for which the plaintiffs’ counsel seek
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 16 of 17 PageID #: 11327
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`compensation. Apple also respectfully requests that the Court reject and/or reduce costs that are
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`excessive and not compensable and reduce the amount of the service awards to the named
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`plaintiffs.
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`Dated: August 25, 2022
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`DLA Piper LLP (US)
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`_/s/ Keara M. Gordon____________
`Keara M. Gordon
`keara.gordon@dlapiper.com
`1251 Avenue of the Americas
`New York, New York 10020
`Tel: (212) 335-4500
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`Raj N. Shah (pro hac vice)
`Eric Roberts (pro hac vice)
`raj.shah@dlapiper.com
`eric.roberts@dlapiper.com
`444 West Lake Street, Suite 900
`Chicago, Illinois 60606
`Tel: (312) 368-4000
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`Attorneys for Defendant Apple Inc.
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`Case 1:15-cv-07381-LB Document 164 Filed 08/25/22 Page 17 of 17 PageID #: 11328
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this, the 25th day of August, 2022, a true and correct copy of the
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`foregoing was filed electronically. Notice of this filing will be sent by e-mail to all parties by
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`operation of the Court’s electronic filing system. Parties may access this filing through the Court’s
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`CM/ECF System.
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`/s/Keara M. Gordon
`Keara M. Gordon
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