MILBERG WEISS BERSHAD
HYNES & LERACH LLP
WILLIAM S. LERACH (68581)
KEITH F. PARK (54275)
KIRK B. HULETT (110726)
HENRY ROSEN (156963)
JAMES I. JACONETTE (179565)
600 West Broadway, Suite 1800
San Diego, CA 92101
Telephone: 619/231-1058
Attorneys for Plaintiffs
[Additional counsel appear on signature page.]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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ROBERT MISHELOW, et al., On Behalf of Plaintiffs, vs. DSP COMMUNICATIONS, INC., et al.,
Defendants. |
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No. C-98-0765-FMS CLASS ACTION DATE: April 9, 1999 |
I. INTRODUCTION
B. A Percentage Fee Of 25% Of The Fund Created Is Reasonable In This Case
C. Consideration Of Other Relevant Factors Justifies An Award Of A 25% Fee In This Case
IV. CONCLUSION
TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD
PLEASE TAKE NOTICE that, pursuant to an Order of the Court filed February 11, 1999, on April 9, 1999, at 10:00 a.m., or as soon thereafter as counsel may be heard, at the United States Courthouse, 450 Golden Gate Avenue, San Francisco, CA, before the Honorable Fern M. Smith, United States District Judge, Representative Plaintiffs will and hereby move for an order awarding Representative Plaintiffs' Counsel attorneys' fees of twenty-five percent of the Settlement Fund, plus reimbursement of expenses. Representative Plaintiffs' motion is based on their Memorandum of Points and Authorities in Support of Plaintiffs' Application for Attorneys' Fees and Reimbursement of Expenses, the declarations of counsel for the Representative Plaintiffs submitted in support thereof, the Stipulation of Settlement dated as of June 17, 1998, all other pleadings and matters of record, and such additional evidence or argument as may be presented at the hearing.
This class action has been settled for $3,000,000 in cash and, subject to Court approval, resolves this case with respect to all defendants. The settlement achieved here is the best result reasonably possible under the circumstances.
Plaintiffs' counsel have obtained this result through their diligent prosecution of the litigation. The efforts of Representative Plaintiffs' Counsel in achieving this result are set forth in the Declaration of Kirk B. Hulett in Support of Final Approval of the Proposed Class Settlement and in Support of Application for Attorneys' Fees and Reimbursement of Expenses and Plan of Allocation ("Hulett Decl."), filed herewith. These efforts included an extensive pre-filing investigation in this action and the two related actions filed in State Court of the potential claims, preparing highly detailed complaints, ongoing factual investigation, conducting informal discovery, interviewing potential witnesses, working with experts, and successfully negotiating this settlement with defense counsel.
Representative Plaintiffs' Counsel's efforts to date have been without compensation of any kind and our attorneys' fees have been wholly contingent upon the result achieved. As compensation for these efforts, we request this Court to award attorneys' fees of 25% of the Settlement Fund and $134,016.40 in expenses (plus interest on the award at the same rate and for the same period as that earned on the Settlement Fund). Ten years ago the Ninth Circuit established a 25% benchmark for attorneys' fees in common fund cases such as this. Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989). Thus, Representative Plaintiffs' Counsel's percentage fee request is in line with the decisions of the Ninth Circuit and is the proper method of compensating counsel for the result they have obtained for the class.
In addition to the above factors, the Court should consider class members' reactions to the attorneys' fees which counsel seek. Individual notices of settlement were mailed to over 10,000 potential members of the class,(1) which advised class members of this settlement and of their right to object to Representative Plaintiffs' Counsel's fee request. There has been but one objection to counsel's fee request filed to date.(2) That objection, which asserts that plaintiffs' counsel should not be paid because of an inadvertent error in the Notice regarding the date by which claim forms must be filed, is without merit. As set forth in the Janvrin Decl., that error has now been corrected and class members advised of the actual claims deadline via a supplemental mailing. The objection to the fee request should be overruled.
For the reasons set forth below and in the Hulett Decl., we submit that the requested attorneys' fees and the expenses for which reimbursement is sought are fair and reasonable under the applicable legal standards and, in light of the contingency risk undertaken and the result achieved, should be awarded by the Court.
For their efforts on behalf of the class, Representative Plaintiffs' Counsel seek a reasonable share of the common fund created. Fee awards representing a percentage of the fund recovered have become an accepted if not the prevailing method for awarding attorneys' fees in common fund cases in this circuit and throughout the United States. The percentage method most fairly correlates the fee with the interest of the class in achieving the maximum recovery in the shortest amount of time required under the circumstances.
It has long been recognized in equity that "a private plaintiff, or his attorney, whose efforts create, discover, increase or preserve a fund to which others also have a claim is entitled to recover from the fund the costs of his litigation, including attorneys' fees." Vincent v. Hughes Air West, Inc., 557 F.2d 759, 769 (9th Cir. 1977). The purpose of this doctrine is to avoid unjust enrichment and "to spread litigation costs proportionately among all the beneficiaries . . . ." Id. This rule, known as the common fund doctrine, is firmly rooted in American case law. See, e.g., Trustees v. Greenough, 105 U.S. 527 (1882); Central R. & Banking Co. v. Pettus, 113 U.S. 116 (1885).(4)
In Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984), the Supreme Court stated that the percentage method of computing fees was the proper approach in the "common fund" context where, as here, the fees are paid out of (not in addition to) the fund recovered:
Unlike the calculation of attorney's fees under the "common fund doctrine," where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under § 1988 reflects the amount of attorney time reasonably expended on the litigation.
Id. (emphasis added).
In In re Washington Pub. Power Supply System Sec. Litig. ("WPPSS"), 19 F.3d 1291 (9th Cir. 1994), the Ninth Circuit held that the district court has discretion to use either the lodestar/multiplier method or the percentage-of-the-fund method in common fund cases, and emphasized that "the district court should be guided by the fundamental principle that fee awards out of common funds be 'reasonable under the circumstances.'" Id. at 1296 (citation omitted).
In Paul, Johnson, 886 F.2d 268, Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990), and Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993), the Ninth Circuit expressly approved the use of the percentage method in common fund cases.
In fee awards in securities class actions since Paul, Johnson, district courts in this circuit have virtually uniformly shifted to the percentage method because it fosters judicial economy by eliminating the detailed and time-consuming lodestar analysis. In re Activision Sec. Litig., 723 F. Supp. 1373 (N.D. Cal. 1989).
Compensating counsel in common fund cases on a percentage basis makes eminently good sense. First, it is consistent with the practice in the private marketplace where contingent fee attorneys are customarily compensated on a percentage-of-the-recovery method.(5) Second, it provides plaintiffs' counsel with a strong incentive to effectuate the maximum possible recovery in the shortest amount of time necessary under the circumstances, which is precisely what occurred here.(6) Third, use of the percentage method decreases the burden imposed upon the court by the "lodestar" method and assures that class members do not experience undue delay in receiving their share of the settlement.(7)
In Paul, Johnson, the Ninth Circuit established 25% of the common fund as the "benchmark" award for attorneys' fees. 886 F.2d at 272. After noting that the percentage to be awarded is the district court's task and committed to its sound discretion, the Ninth Circuit cautioned against adjusting the benchmark fee without a reasonable basis:
Nevertheless, the district court should take note that 25 percent has been a proper benchmark figure, which it can then adjust upward or downward to fit the individual circumstances of this case. Such an adjustment, however, must be accompanied by a reasonable explanation of why the benchmark is unreasonable under the circumstances.
886 F.2d at 273. See also Torrisi, 8 F.3d at 1376. The guiding principle is that the fee award be "'reasonable under the circumstances.'" WPPSS, 19 F.3d at 1296 (citation omitted).
Virtually all district courts in this circuit award percentages between 25% and 30% in securities class actions. Some ten years ago, Judge Patel of this district critically analyzed securities class action "lodestar/multiplier" fee awards in Activision, 723 F. Supp. 1373. She concluded "that in class action common fund cases the better practice is to set a percentage fee and that, absent extraordinary circumstances that suggest reasons to lower or increase the percentage, the rate should be set at 30%." Id. at 1378. The court explained its rationale as follows:
The Ninth Circuit's opinion does not appear to foreclose, upon appropriate findings, the setting of a different benchmark, since it left "to the district court the task of determining what this reasonable percentage should be." Id. [Paul, Johnson, 886 F.2d at 271.] The 25% was given for guidance and the court indicated it would approve use of that figure. As documented by the lengthy list of cases below, this court finds that in most recent cases the benchmark is closer to 30%. Therefore, the court finds that a figure of approximately 30% is substantially justified.
This court's review of recent reported cases discloses that nearly all common fund awards range around 30% even after thorough application of either the lodestar or twelve-factor method.
Id. at 1377.
In line with the views expressed by the court in Activision, the overwhelming majority of district courts in this and other circuits have awarded percentage fees of 25% to 30% or more in securities class actions. This is demonstrated by the cases cited in Appendix A attached hereto.
Plaintiffs' counsel seek attorneys' fees of 25% of the settlement recovered for the class and submit that this percentage is reasonable under the circumstances of this case. Consideration of the factors discussed below confirms that a fee award of the 25% benchmark is appropriate here.
1. The favorable settlement achieved. Courts have consistently recognized that the result achieved is a major factor to be considered in making a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983) ("most critical factor is the degree of success obtained").
A settlement of $3,000,000 has been obtained solely through the efforts of Representative Plaintiffs' Counsel without the assistance of any regulatory agency or the necessity of trial. As a result of this settlement, class members will receive compensation for their losses in DSPC stock and have avoided the very substantial risk of no recovery in the absence of a settlement. Given the defenses raised to both liability and damages, the settlement obtained is possibly more than what could have been recovered had the case gone to verdict.
2. The risks both as to liability and damages. Numerous cases have recognized that risk is an important factor in determining the fee award. E.g., WPPSS, 19 F.3d at 1299-1301; Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974). Uncertainty that an ultimate recovery will be obtained is highly relevant in determining risk:
The litigation also involved unique and substantial issues of law in the technical area of SEC Rule 10b-5, . . . difficult, complex and oft-disputed class action questions, and difficult questions regarding computation of damages.
* * *
In evaluating the services rendered in this case, appropriate consideration must be given to the risks assumed by plaintiffs' counsel in undertaking the litigation. The prospects of success were by no means certain at the outset, and indeed, the chances of success were highly speculative and problematical.
In re King Resources Co. Sec. Litig., 420 F. Supp. 610, 632, 636-37 (D. Colo. 1976).
Here, the risk of no recovery was a very real possibility. As discussed in the Hulett Decl., substantial risks and uncertainties made it far from certain that an ultimate recovery would be obtained. While courts have always recognized that this type of case carries significant risks, post-PSLRA rulings in this district make it clear that the risk of no recovery has increased substantially.
Had this settlement not been achieved, plaintiffs faced years of costly and risky litigation against the defendants, with ultimate success far from certain. Defendants have vigorously denied any wrongdoing. It is possible that the case would never have reached a jury and, if it did, a jury could have found no liability or no damages. Therefore, the complexity and riskiness of this litigation plainly support the fee requested.
3. The skill required and the quality of the work. The successful prosecution of the complex claims in this litigation required the participation of highly skilled and specialized attorneys. A considerable effort on the part of plaintiffs' counsel was required to produce this settlement. In a period of months, plaintiffs' counsel demonstrated that they could develop the evidence to support their case. Representative Plaintiffs' Counsel spent numerous hours conducting investigations and informal discovery, mastering the relevant facts and dynamics of DSPC's business, and working with their experts in order to make effective arguments on the merits and conduct meaningful settlement discussions.
The quality and efficiency of plaintiffs' counsel should be rewarded. See J.N. Futia Co. v. Phelps Dodge Indus. Inc., 1982-2 Trade Cas. (CCH) ¶64,978 (S.D.N.Y 1982). The quality of plaintiffs' counsel's work on this case was excellent and is ultimately reflected in the result.
4. The complexity of this action's factual and legal questions. Courts have recognized that the novelty and difficulty of the issues in a case is a significant factor to be considered in making a fee award. E.g., Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). As that court stated:
Cases of first impression generally require more time and effort on the attorney's part. Although this greater expenditure of time in research and preparation is an investment by counsel in obtaining knowledge which can be used in similar later cases, he should not be penalized for undertaking a case which may "make new law." Instead, he should be appropriately compensated for accepting the challenge.
Id. at 718.
Because of the applicability of the PSLRA, numerous novel issues were potentially present in this case. There is no doubt that plaintiffs' counsel took on a challenge in pursuing class action litigation under the PSLRA. Had this settlement not been achieved, the factual and legal questions at issue would have been the subject of many hours of research and analysis.
Given the inherent complexities of a securities class action and the additional hurdles faced in bringing a case under the PSLRA, the fee requested is fair.
5. The contingent nature of the case and the financial burden carried by the plaintiffs. A determination of a fair fee must include consideration of the contingent nature of the fee and the difficulties which were overcome in obtaining the settlement.
It is an established practice in the private legal market to reward attorneys for taking the risk of non-payment by paying them a premium over their normal hourly rates for winning contingency cases. See Richard Posner, Economic Analysis of Law §21.9, at 534-35 (3d ed. 1986). Contingent fees that may far exceed the market value of the services if rendered on a non-contingent basis are accepted in the legal profession as a legitimate way of assuring competent representation for plaintiffs who could not afford to pay on an hourly basis regardless whether they win or lose.
WPPSS, 19 F.3d at 1299.
Representative Plaintiffs' Counsel have received no compensation during the course of this litigation and have incurred very significant expenses in litigating for the benefit of the class. Any fee award or expense reimbursement to Representative Plaintiffs' Counsel has always been at risk and completely contingent on the result achieved and on this Court's exercise of its discretion in making any award.
6. A 25% fee award reflects the market rate in similar complex, contingent litigation. As demonstrated by the decisions cited in Appendix A hereto, a 25% fee is a percentage at or below fees which have been repeatedly awarded by the courts in this circuit and throughout the country in numerous other similar cases.
Further, a Federal Judicial Center Study released in 1996, which covered all class actions in four selected federal district courts, including the Northern District of California, found that as to the size of attorneys' fees, "median rates ranged from 27% to 30%." Thomas E. Willging, Laurel L. Hooper, and Robert J. Niemic, An Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules (1996) at 69. This finding is in line with an analysis of fee awards in class actions conducted in 1995 and 1996 by National Economic Research Associates, an economics consulting firm. Using data from 433 shareholder class actions, the study reports on the central question of attorneys' fees: "Regardless of case size, fees average approximately 32 percent of the settlement." Denise N. Martin, Vinita M. Juneja, Todd S. Foster, Frederick C. Dunbar, Recent Trends IV: What Explains Filings and Settlements in Shareholder Class Actions? (NERA Nov. 1996) at 12-13.
In addition, the requested fees reflect the private marketplace, a result repeatedly encouraged by the courts. See Continental Illinois, 962 F.2d at 572. In private litigation, attorneys regularly contract for contingent fees between 30% and 40% directly with their clients. See Phemister, ¶66,234, at 66,995 ("Contingent fee arrangements in non-class action damage lawsuits use the simple method of paying the attorney a percentage of what is recovered for the client. The more the recovery, the more the fee. The percentages agreed on vary, with one-third being particularly common."); Kirchoff, 786 F.2d at 323 (observing that "40% is the customary fee in tort litigation" and noting, with approval, contract providing for one-third contingent fee if litigation settled prior to trial). These percentages are the prevailing market rates throughout the United States for contingent representation.
However, in class action common fund cases such as this, Representative Plaintiffs' Counsel's attorneys' fees can only be determined by this Court in the exercise of its discretion. Here, counsel request an award of 25%, consistent with numerous recent authorities from courts in this circuit and district. An award of the requested fee recognizes the substantial benefits conferred on the class and the circumstances under which this result was accomplished. It is fair to both counsel and the class and should be awarded by the Court.
Representative Plaintiffs' Counsel's efforts were performed on a wholly contingent basis, despite significant risk and in the face of determined opposition. Under these circumstances, it necessarily follows that we are justly entitled to the award of a reasonable percentage fee based on the benefit conferred and the common fund obtained. Under all of the circumstances present here, a 25% fee plus expenses is fair and reasonable.(8)
Representative Plaintiffs' Counsel have incurred out-of-pocket costs and expenses in an aggregate amount of $134,016.40 in prosecuting this litigation on behalf of the class. These expenses are categorized in the declarations of counsel and experts submitted to the Court herewith as Exhibits 1 through 6 to the Declaration of Keith F. Park in Support of (1) Final Approval of Settlement; (2) Award of Attorneys' Fees and Reimbursement of Expenses; and (3) Approval of Plan of Allocation of Settlement Proceeds ("Park Decl.").
The appropriate analysis to apply in deciding which expenses are compensable in a common fund case is whether the particular costs are of the type typically billed by attorneys to paying clients in the marketplace. Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) ("Harris may recover as part of the award of attorney's fees those out-of-pocket expenses that 'would normally be charged to a fee paying client.'") (citation omitted). Therefore, it is proper to reimburse reasonable expenses even though they are greater than taxable costs. Id. See also Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993) ("Attorneys may be compensated for reasonable out-of-pocket expenses incurred and customarily charged to their clients, as long as they 'were incidental and necessary to the representation' of those clients.") (citation omitted). The categories of expenses for which counsel seek reimbursement here are the type of expenses routinely charged to hourly clients and, therefore, should be reimbursed out of the common fund.
A large component of these expenses is the cost of our consultants who assisted us greatly, inter alia, in the areas of DSPC's products and markets and materiality and damages. These consultants were indispensable to us. Without their involvement, we could not have resolved the case as we did. Representative Plaintiffs' Counsel believe these expenses are reasonable and know that they were necessarily incurred in obtaining this result for the class.
Another significant component of Representative Plaintiffs' Counsel's expenses were the expenses of our paralegals. The effective, efficient prosecution of a securities class action in the modern era is a complex and expensive challenge. Everything that can be done to aid Representative Plaintiffs' Counsel in obtaining the best result for the class at the earliest possible point in the litigation should be encouraged. As demonstrated above, the percentage-of-recovery method in awarding fees is one such incentive. Second only in importance to that concept is the allowance as reimbursable expenses of those items which also encourage efficient, effective case prosecution and the maximum recovery in the minimum of time. Of these items, one of the most important are the charges of the highly skilled paralegals who work on these matters. They perform a myriad of tasks which increase the efficiency and effectiveness of the lawyers who prosecute the case; tasks which, if no paralegal was available to perform, would fall to the lawyers. Compensating firms for paralegals as recoverable expenses promotes their use. Judge Posner's thoughtful conclusion expresses the prevailing view:
But the more important point is that the market -- the paying, arm's length market -- reimburses [computerized research] expenses, just as it reimburses their paralegal expenses, rather than requiring that these items be folded into overhead. Markets know market values better than judges do. And as with paralegals, so with computerized research: if reimbursement at market rates is disallowed, the effect will be to induce lawyers to substitute their own, more expensive time for that of the paralegal or the computer.
Continental Illinois, 962 F.2d at 570. In recognition of this dynamic, the vast majority of courts in the Ninth Circuit reimburse paralegal charges as an expense of prosecution in securities class actions and we request the Court to do so here.
Without any guarantee of success, plaintiffs and their counsel pursued this risky litigation to an excellent conclusion. The settlement is a fair recovery for the class and is a testament to the skill of plaintiffs' counsel. Accordingly, plaintiffs' counsel respectfully request the Court to approve the fee and expense application and enter an order awarding them 25% of the Settlement Fund plus $134,016.40 in expenses, plus the interest earned thereon at the same rate and for the same period as that earned on the Settlement Fund until paid.
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DATED: April 7, 1999 |
Respectfully submitted, MILBERG WEISS BERSHAD ______________________________ 600 West Broadway, Suite 1800 CHITWOOD & HARLEY BERNSTEIN LITOWITZ BERGER & ABBEY, GARDY & SQUITIERI, LLP KIRBY, McINERNEY & SQUIRE, LLP LAW OFFICES OF KENNETH A. ELAN SAVETT FRUTKIN PODELL & LEVIN, FISHBEIN, SEDRAN & Attorneys for Plaintiffs |
DSPCOMM.SET\DLM14884.brf
1. See Declaration of D. Lee Janvrin Re (A) Mailing of the Notice of Pendency and Proposed Settlement of Class Actions and Proof of Claim and Release; and (B) Publication of Summary Notice, ¶¶3-6 ("Janvrin Decl.").
2. The deadline for objections to be filed was March 24, 1999.
3. We acknowledge the Court's complete familiarity with the principles of common fund fee jurisprudence. Those principles are set forth here for the purpose of making a record.
4. In Paul, Johnson, 886 F.2d 268, the Ninth Circuit explained the principle underlying fee awards in common fund cases:
Since the Supreme Court's 1885 decision in Central Railroad & Banking Co. of Ga. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885), it is well settled that the lawyer who creates a common fund is allowed an extra reward, beyond that which he has arranged with his client, so that he might share the wealth of those upon whom he has conferred a benefit. The amount of such a reward is that which is deemed "reasonable" under the circumstances.
Id. at 271 (citations omitted, emphasis in original).
5. Courts are encouraged to look to the private marketplace in setting a percentage fee:
The judicial task might be simplified if the judge and the lawyers bent their efforts on finding out what the market in fact pays not for the individual hours but for the ensemble of services rendered in a case of this character. This was a contingent fee suit that yielded a recovery for the "clients" (the class members) of $ 45 million. The class counsel are entitled to the fee they would have received had they handled a similar suit on a contingent fee basis, with a similar outcome, for a paying client. Suppose a large investor had sued Continental for securities fraud and won $ 45 million. What would its lawyers have gotten pursuant to their contingent fee contract?
In re Continental Illinois Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992). See also Phemister v. Harcourt Brace Jovanovich, Inc., 1984-2 Trade Cas. (CCH) ¶66,234, at 66,995 (N.D. Ill. 1984) ("Contingent fee arrangements in non-class action damage lawsuits use the simple method of paying the attorney a percentage of what is recovered for the client. The more the recovery, the more the fee. The percentages agreed on vary, with one-third being particularly common.").
6. The contingent fee uses private incentives rather than careful monitoring to align the interests of lawyer and client. The lawyer gains only to the extent his client gains. . . . The unscrupulous lawyer paid by the hour may be willing to settle for a lower recovery coupled with a payment for more hours. Contingent fees eliminate this incentive and also ensure a reasonable proportion between the recovery and the fees assessed to defendants. . . .
At the same time as it automatically aligns interests of lawyer and client, rewards exceptional success, and penalizes failure, the contingent fee automatically handles compensation for the uncertainty of litigation.
Kirchoff v. Flynn, 786 F.2d 320, 325-26 (7th Cir. 1986).
7. Professor Coffee argues that a percentage of the gross recovery is the only reasonable method of awarding fees in common fund cases:
If one wishes to economize on the judicial time that is today invested in monitoring class and derivative litigation, the highest priority should be given to those reforms that restrict collusion and are essentially self-policing. The percentage of the recovery award formula is such a "deregulatory" reform because it relies on incentives rather than costly monitoring. Ultimately, this "deregulatory" approach is the only alternative.
John C. Coffee, Jr., Understanding the Plaintiffs' Attorney: The Implications of Economic Theory for Private Enforcement of the Law Through Class and Derivative Actions, 86 Colum. L. Rev. 669, 724-25 (1986).
As former Chief Judge Brieant, of the Southern District of New York, commenting upon the Paul, Johnson decision succinctly stated:
Such an award is consistent with the new learning (old wine in a new bottle) announced by the Ninth Circuit in Paul, Johnson, supra, which new learning we believe will proceed from West to East and take us back to straight contingent fee awards bereft of largely judgmental and time-wasting computations of lodestars and multipliers. These latter computations, no matter how conscientious, often seem to take on the character of so much Mumbo Jumbo. They do not guarantee a more fair result or a more expeditious disposition of litigation.
In re Union Carbide Corp. Consumer Products Business Sec. Litig., 724 F. Supp. 160, 170 (S.D.N.Y. 1989).
8. Professor Conte acknowledged the propriety of good fees in common fund cases:
[C]ourts have been careful to award a fully compensable reasonable fee based on the underlying economic inducement for class action lawyers to pursue potentially expensive or complex common fund class litigation. These lawyers assume the risk of no compensation unless they successfully confer common fund benefits on the class, based on their reasonable expectation that they will share in the recovery in a fair proportion, in contrast to receiving a fee based initially on time-expended criteria that failed to give the results obtained factor primary consideration.
1 Alba Conte, Attorney Fee Awards §1.09, at 16 (2d ed. 1993) (footnotes omitted, emphasis in original).
I, the undersigned, declare:
1. That declarant is and was, at all times herein mentioned, a citizen of the United States and a resident of the County of San Diego, over the age of 18 years, and not a party to or interested in the within action; that declarant's business address is 600 West Broadway, Suite 1800, San Diego, California 92101.
2. That on April 1, 1999, declarant served the NOTICE OF MOTION AND MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS' APPLICATION FOR ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES by depositing a true copy thereof in a United States mailbox at San Diego, California in a sealed envelope with postage thereon fully prepaid and addressed to the parties listed on the attached Service List and that this document was forwarded to the following designated Internet site at:
3. That there is a regular communication by mail between the place of mailing and the places so addressed.
I declare under penalty of perjury that the foregoing is true and correct. Executed this 1st day of April, 1999, at San Diego, California.
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