Contract
1 WESTERN WASHINGTON LAW GROUP PLLC XXXXXX X. XXXXXXXXX (#28177)
2 XXXXXX X. XXXXXXXXX (41773)
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P.O. Box 468 Snohomish, WA 98291 Tel: 425/000-0000, ext. 4 xxxxxx@xxxxxxxxx.xxx xxxxxx@xxxxxxxxx.xxx
BLOOD XXXXX & X’XXXXXXX, LLP
6 XXXXXXX X. BLOOD (pro hac vice) XXXXXX X. X’XXXXXXX XX (pro hac vice)
0 XXXXX X. XXXXX (254142) 000 Xxxx Xxxxxxxx, Xxxxx 0000
Blood Xxxxx & X‘ Xxxxxxx, LLP
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8 San Diego, CA 92101 Tel: 619/000-0000 000/000-0000 (fax) xxxxxx@xxxxxx.xxx xxxxxxxxx@xxxxxx.xxx xxxxxx@xxxxxx.xxx
11 Attorneys for Plaintiffs
12 UNITED STATES DISTRICT COURT
13 EASTERN DISTRICT OF WASHINGTON
XXXX XXXXXXXXX, individually and on behalf of all others similarly situated, and JUN DAM, individually, Plaintiffs, x. XXXXXXX COIE, LLP, a Washington limited liability partnership; XXXXXXX COIE CALIFORNIA, P.C., a California corporation; XXXXXXX COIE U.S., P.C.; and XXXXXX XXXX, individually, Defendants. | Case No: 2:20-cv-00464-SAB CLASS ACTION PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND REQUEST FOR ATTORNEY’S FEES, EXPENSES AND SERVICE AWARD; MEMORANDUM IN SUPPORT THEREOF DATE: May 21, 2024 TIME; 1:30 p.m. JUDGE: Xxxxxxx X. Xxxxxxx COURTROOM: By ZOOM Video With Oral Argument Chief Judge Xxxxxxx X. Xxxxxxx Complaint Filed: December 16, 2020 |
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00171603
MEMORANDUM ISO MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 Plaintiff Xxxx Xxxxxxxxx (“Plaintiff”) submits this memorandum in support
2 of the Motion for Final Approval of Class Action Settlement, Request for
3 Attorney’s Fees and Costs, and Class Representative Service Award to fully
4 resolve all claims brought individually and on behalf of a class against
5 Defendants Xxxxxxx Coie, LLC, Xxxxxxx Coie California, P.C., Xxxxxxx Xxxx U.S.,
6 P.C., and Xxxxxx Xxxx (collectively, “Xxxxxxx Coie”).1
7 I. INTRODUCTION
8 This settlement is the product of a protracted arm’s-length and often
9 contentious series of negotiations where Perkins Coie sought to resolve two
Blood Xxxxx & X’ Xxxxxxx, LLP
10 separate actions pending against it, while Plaintiff fended off an aggressive effort
11 by the Bankruptcy Trustee in In re Giga Watt Inc., No. 18-03197-FPC7 (Bankr.
12 E.D. Wash.) to bring these class claims into bankruptcy court. Had the Trustee
13 been successful, the Class would have received nothing or next to nothing.
14 Instead, because of this class action settlement, Class Members will recover most
15 of their losses.
16 Meanwhile, Perkins Coie and the Bankruptcy Trustee have separately
17 settled the estate’s claims against Perkins Coie for xxxxx alleged by the Trustee
18 on behalf of the debtor. Most of the money from the bankruptcy settlement will
19 save the bankruptcy from administrative insolvency, leaving the class settlement
20 as the primary source of recovery for the holders of the Tokens (“Tokens”) at
21 issue. The class and Trustee settlements are separate—Xxxxxxx Coie provides
22 separate consideration for the settlements and the settlements have separate
23 approval processes. However, neither settlement will take effect until both are 24
25
1 Throughout this memorandum, all capitalized terms have the same
26 meaning as defined in the Stipulation of Settlement. (ECF 61-4).
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NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 1
Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
approved by their respective courts: the class settlement by this Court and the Trustee settlement by the bankruptcy court.
The settlement provides a non-reversionary fund of $4.5 million that provides Class Members pro-rata payments based on the number of Tokens each Class Members owned divided by the total number of Tokens owned by all Class Members who submit valid Claims. Claimants will share all money available to Class Members, other than any de minimis amount, if any, remaining that is economically infeasible to distribute to the Claimants. The amount that cannot be economically distributed to Claimants it will be donated to the non-profit organization Blockchain Association, whose mission is to further the use of blockchain technology.
On February 2, 2022, the Court preliminarily approved the proposed Settlement. See ECF No. 67. The Class has been notified in accordance with the Court-approved notice plan. The Class Members have reacted favorably to the settlement, as shown by the number of claims made, with no Class Members opting out of the Settlement Class and no Class Members objecting to the Settlement. See Xxxxxxx Decl., ¶¶ 20, 21. The Parties now seek final approval of the settlement, an award of attorneys’ fees, costs, and expenses, approval of a service award for the Class Representative, and entry of judgment.
The Settlement accomplishes Plaintiff’s litigation goals and represents a fair, reasonable, and adequate recovery for the Class. The attorneys’ fees, costs, and expenses requested by Class Counsel readily meet the Ninth Circuit standards. Under the Settlement, Class Counsel seek $1,125,000.00 in attorneys’ fees, which amounts to 25% of the Settlement Fund, plus reimbursement of expenses of $9,760.65. The requested Class Representative service award of
$5,000 is well within the acceptable range of service awards.
NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 2
Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
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1 The proposed Settlement is fair, reasonable, and adequate. Therefore,
2 Plaintiff respectfully requests an order granting final approval of the Settlement
3 and awarding the requested attorneys’ fees, costs, and expenses, and the Class
4 Representative’s service award.
5 II. PROCEDURAL HISTORY
6 The Motion for Preliminary Approval and Declaration of Xxxxxxx X.
7 Blood in Support of Motion for Preliminary Approval (“Blood Preliminary
8 Approval Decl.”) described in detail the lengthy procedural history of this matter
9 and the extensive settlement negotiations that culminated in the Settlement
Blood Xxxxx & X’ Xxxxxxx, LLP
10 Agreement. See ECF 61-2 (“Blood Preliminary Approval Decl.”). Rather than
11 repeat those details here, they are incorporated by this reference and summarized
12 below.
13 Plaintiff alleges Defendants breached their fiduciary duty to Plaintiff and
14 the Class, breached their contracts with Plaintiff and the other Class Members,
15 and violated Washington’s Consumer Protection Act (“CPA”), RCW 19.86.020,
16 and Escrow Agent Registration Act (“WERA”), RCW 18:44 by releasing the
17 Class Members’ money held in escrow improperly, in violation of the terms of
18 the escrow agreement.
19 Prior to this class action, bankruptcy proceedings involving Xxxx Xxxx,
20 Inc. were ongoing. The bankruptcy case began as a Chapter 11 reorganization in
21 2018. After almost two years of failed reorganization efforts and when the estate
22 was close to insolvency, on September 30, 2020, the bankruptcy case was
23 converted to a Chapter 7 liquidation. See Blood Preliminary Approval Decl., ¶ 6.
24 After the bankruptcy case was converted to Chapter 7 liquidation, the
25 Trustee filed an adversary proceeding, Case No. 20-80031, against Perkins Coie
26 and others, alleging that the debtor had been damaged by Xxxxxxx Xxxx’s
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NOTICE OF MOTION AND MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 3
Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 improper release of Class Members’ money from escrow, even though evidence
2 showed the debtor received almost all the escrowed funds. Id., ¶ 7.
3 Prior to this settlement, the Parties were litigating both in this Court and in
4 the bankruptcy court. However, after protracted negotiations between the Parties,
5 most of which was mediated by the Xxxxxxxxx Xxxxxxxx X. Xxxxx, this
6 settlement was reached. Id., ¶ 19.
7 III. THE PRELIMINARY APPROVAL ORDER
8 On February 2, 2024, the Court entered the Preliminary Approval Order.
9 (ECF No. 67). The Court analyzed the requirements of Fed. R. Civ. P. 23(a) and
Blood Xxxxx & X’ Xxxxxxx, LLP
10 23(b)(3), found the requirements to be satisfied, certified the Class for Settlement
11 purposes, and approved the Notice Program. (Id.)
12 IV. THE SETTLEMENT AGREEMENT
13 A. The Settlement Class Definition
14 As set forth in the Settlement Agreement and the Court’s Preliminary
15 Approval Order (ECF Nos. 61-4, 67), the Class is defined as all persons or
16 entities who owned one or more Tokens on November 19, 2018. November 19,
17 2018, is the date Xxxx Xxxx declared bankruptcy and therefore the date by which
18 Token purchasers would reasonably have known their Tokens would not result in
19 access to Giga Watt’s defunct cryptocurrency mining facilities.
20 B. Settlement Benefits
21 As detailed in the Preliminary Approval Motion, the Settlement provides
22 for a $4,500,000 non-reversionary Common Fund (Settlement Agreement
23 (“SA”), § II.14) that will be used to pay attorneys’ fees and expenses as approved
24 by the Court, Class Notice and administration costs, a Class Representative
25 service award as approved by the Court, and Cash Payments to Class Members.
26 To receive a Cash Payment, Class Members must complete and timely return a
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Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 Claim Form. SA, §§ IV.1–2. The last day to submit a claim is April 15, 2024. As
2 of April 8, 2024, 471 Claims have been submitted, representing holders of about
3 21 million tokens. See Xxxxxxx Declaration, ¶ 22.
4 C. The Court-Approved Class Notice Program Was Successful
5 As the claims rate suggests, the Class Notice Program was successful.
6 Tokens were held by a wide range of people located throughout the United State
7 and in many other counties. The Tokens were actively traded before November
8 19, 2018. With some significant exceptions, it was largely unknown who owned
9 Tokens as of November 19, 2018. Therefore, notice was overinclusive. Notice
Blood Xxxxx & X’ Xxxxxxx, LLP
10 was sent by mail or email to approximately 6,400 people who at some point held
11 Tokens. Class Notice was also provided through targeted publication and an
12 online advertising campaign. See Xxxxxxx Decl., ¶ 2.
13 Emails were subsequently sent to remind people to file claims if they
14 believed they owned Tokens on November 19, 2018. Id, ¶ 9. Class Counsel also
15 cross-checked creditor claims filed in the bankruptcy court and correspondence
16 with Class Members to ensure that those who were most likely to be Class
17 Members have filed a Claim. If they had not filed a Claim, Class Counsel
18 contacted likely Class Members by phone and email to remind them of the
19 Settlement and encourage claim submission. See Declaration of Xxxxxxx X.
20 Blood in Support of Final Approval (“Blood Final Approval Decl.”)., ¶¶ 3-5.
21 V. THE STANDARDS FOR FINAL APPROVAL
22 “The claims, issues, or defenses of a certified class – or a class proposed to
23 be certified for purposes of settlement – may be settled ... only with the court’s
24 approval.” Fed. R. Civ. P. 23(e). A district court may approve a settlement
25 agreement “after a hearing and only on finding that it is fair, reasonable, and
26 adequate ” Fed. R. Civ. P. 23(e)(2).
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Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 In making this decision, Rule 23(e)(2) states that district courts must
2 consider whether:
3 (A) the class representatives and class counsel have adequately
4 represented the class;
5 (B) the proposal was negotiated at arm’s length;
6 (C) the relief provided for the class is adequate, taking into account:
7 (i) the costs, risks, and delay of trial and appeal;
8 (ii) the effectiveness of any proposed method of distributing relief
9 to the class, including the method of processing class-member
Blood Xxxxx & X’ Xxxxxxx, LLP
10 claims;
11 (iii) the terms of any proposed award of attorney’s fees, including
12 timing of payment; and
13 (iv) any agreement required to be identified under Rule 23(e)(3);
14 and
15 (D) the proposal treats class members equitably relative to each other. 16 Fed. R. Civ. P. 23(e)(2).
17 Rule 23(e) largely overlaps with the factors the Ninth Circuit has long
18 considered for settlement approval: “(1) the strength of the plaintiff’s case;
19 (2) the risk, expense, complexity, and likely duration of further litigation; (3) the
20 risk of maintaining class action status throughout the trial; (4) the amount offered
21 in settlement; (5) the extent of discovery completed and the stage of the
22 proceedings; (6) the experience and views of counsel; (7) the presence of a
23 governmental participant; and (8) the reaction of the class members to the
24 proposed settlement.” In re Bluetooth Headseat Prods. Liab. Litig., 654 F.3d 25 935, 946 (9th Cir. 2011).
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Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 Judicial policy strongly favors the settlement of class actions. Class
2 Plaintiffs v. Seattle, 955 F.2d 1268, 1276 (9th Cir. 1992). “[V]oluntary
3 conciliation and settlement are the preferred means of dispute resolution.”
4 Officers for Justice, 688 F.2d at 625. Class actions particularly lend themselves
5 to compromise because of difficulties of proof, uncertainties of the outcome, and
6 the typical length and size of the litigation. Xxx Xxxxxxxxxx v. Safeco Corp., 529
7 F.2d 943, 950 (9th Cir. 1976) (“[T]here is an overriding public interest in settling
8 and quieting litigation. This is particularly true in class action suits ….”).
9 VI. THE SETTLEMENT MERITS FINAL APPROVAL
Blood Xxxxx & X’ Xxxxxxx, LLP
10 As part of the preliminary approval process, the Court considered the non-
11 exhaustive factors to determine whether a proposed settlement is “fair, adequate
12 and reasonable.” See ECF No. 67, at 2. The Motion for Preliminary Approval
13 and supporting declarations and documents detail the factors and the reasons the
14 settlement should be approved. See ECF Nos. 61, 61-2.
15 Notice has now been disseminated and information about the claims rate,
16 opt outs, and objections are known, and no other facts detailed in the preliminary
17 approval briefing has changed. Rather than repeat that briefing (ECF Nos. 61,
18 61-2), each fairness factor is summarized below, and the very positive reaction of
19 the Class is discussed. See Xxxxxx x. E-3 Sys., No. 19-cv-01453-HSG, 2021 U.S.
20 Dist. LEXIS 107399, at 14 (N.D. Cal. June 8, 2021) (granting final approval and
21 noting “no facts have changed that would affect the Court’s previous finding in
22 its preliminary approval order”).
23 A. Certification of the Settlement Class
24 The Court’s Preliminary Approval Order analyzed the requirements of
25 Fed. R. Civ. P. 23(a) and 23(b)(3), found the requirements to be satisfied, and 26
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Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 certified the Settlement Class for settlement purposes only. See ECF No. 67 at 2-
2 3. Nothing has changed that would affect the Court’s ruling on class certification.
3 B. The Strength of Plaintiff’s Case
4 Plaintiff believes he has a strong case for liability based on Xxxxxxx Xxxx’s
5 alleged wrongful distribution of funds from the escrow account and would be
6 able to recover money on behalf of the Class. See ECF No. 59 (First Amended
7 Complaint), ¶¶ 36–80. However, there are numerous contested issues regarding
8 damages and whether the Class’s damages analyses would be accepted. Plaintiff
9 and Xxxxxxx Xxxx had widely divergent estimates of the damages potentially
Blood Xxxxx & X’ Xxxxxxx, LLP
10 owed to the Class and disagreements regarding the information from which
11 damages could be derived and ascertained. The records are not clear and are
12 often inconsistent. Information about how much of the Giga Watt facilities
13 became operational, the extent they were operation, who was afforded access to
14 operational facilities and what constituted an operational facility within the
15 meaning of the applicable documents was unclear and hotly disputed. Even the
16 terms of the escrow agreement lacked clarity.
17 Meanwhile, the Trustee continued to maintain that all of the Class
18 Members’ escrowed money belonged to the bankruptcy estate. This claim was
19 partially backed by the bankruptcy court and was on appeal to this Court.
20 However, even while on appeal, the Trustee attempted to stay this litigation and
21 the bankruptcy court signaled an openness to doing so. Doing so would have
22 effectively ended the litigation and prevented any meaningful recovery for the
23 Class. Meanwhile, more appeals would likely have followed.
24 Given the very real risks and uncertainty, the $4.5 million non-
25 reversionary common fund is an excellent result for the Class and weighs in
26 favor of final approval.
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Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 C. The Settlement Provides Significant Relief When Taking Into
2 Account the Inherent Risks of Continued Litigation
3 The relief is fair and adequate considering the costs, risk, complexity and
4 likely duration of further litigation. Litigation and trial carry inherent risk. This is
5 particularly true given the record-keeping problems and the Giga Watt
6 bankruptcy proceedings.
7 Here, the complexity, risk and delay came from multiple fronts. First, the
8 Class had to prevail on the consolidated appeal regarding “ownership” of three of
9 the Class claims and, even on the two claims “owned” by the Class, it had to
Blood Xxxxx & X’ Xxxxxxx, LLP
10 prevail in reversing the bankruptcy court’s preliminary injunction covering those
11 two claims. While the Class’s position on appeal is very strong, appeals take
12 time. Particularly here because the losing party in the appeal to the district court
13 can further appeal to the Ninth Circuit, thereby building in additional years of
14 delay, risk, and expense.
15 Additional risk, expense, and delay would await the Class after the appeal.
16 Perkins Coie had stated its intention to challenge the pleadings followed by
17 formal discovery, class certification, dispositive motions, and trial. Perkins
18 Xxxx’s purported defenses were significant and included that (i) there was no
19 escrow agreement signed by the parties (only statements regarding an escrow in
20 marketing documents), (ii) if there was an escrow agreement, Xxxxxxx Xxxx
21 abided by its terms in releasing escrow funds in accordance with the issuance of
22 Tokens (as opposed to the operational status of the Giga Watt Project),
23 (iii) Xxxxxxx Xxxx had no duty to determine the operational status of the Giga
24 Watt Project prior to releasing escrow funds, (iv) any attempt to impose such a
25 duty was unenforceable due to lack of adequate instructions regarding how the
26 operational status of the Giga Watt Project was to be measured, and (v) even if
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Western Washington Law Group PLLC
P.O. Box 468, Snohomish, WA 98291
(000) 000-0000, ext. 4
1 Xxxxxxx Xxxx had a duty to determine the mine’s operational status prior to
2 releasing escrow funds, Perkins had evidence that the operational status of the
3 Giga Watt Project meant its maximum liability to the Class was $4.2 million. See
4 Blood Preliminary Approval Decl., ¶ 33.
5 Additional risk, expense and delay would come from the Trustee’s
6 aggressive litigation tactics which have been a substantial factor in driving up
7 litigation costs and protracting litigation and settlement. For instance, the Trustee
8 stated his intention to renew his efforts to intervene in the class action and seek
9 to dismiss those claims, leaving nothing for the Class. Although Class Counsel
Blood Xxxxx & X’ Xxxxxxx, LLP
10 believes the Trustee’s intervention and standing to seek dismissal of the claims to
11 which it is not a party would be baseless, it would significantly increase the costs
12 and time needed to resolve this case. Id., ¶ 34.
13 Given all this, the settlement, which provides timely relief to Class
14 Members, establishes a common fund greater than Perkins’ estimated liability to
15 the Class and avoids the risk of non-recovery is an excellent result.
16 D. The Extent of Discovery and Stage of Proceedings
17 Plaintiff’s Counsel obtained significant amounts of information from
18 Defendants, their own investigation, including work with class members, and
19 information gleaned from the bankruptcy to make an informed decision. The
20 information was used to establish, inter alia, facts relevant to Class Members’
21 purchase of Tokens during the initial token offering, Xxxxxxx Xxxx’s premature
22 release of funds from the escrow account, and the estimated damages suffered by
23 the Class. See Blood Preliminary Approval Decl., ¶¶ 5, 15, 17.
24 The information exchanged and confirmatory discovery meant Xxxxxxx’s
25 knowledge of the relevant facts was well developed before settlement was
26 reached and allowed counsel to verify the fairness of the settlement. Id., ¶ 17.
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1 Counsel’s verification of facts of this case, and knowledge of the practice area
2 more broadly also informed their clear view of the strength and weaknesses of
3 the case, and the decision to strongly recommend that the Court grant
4 preliminary approval to the settlement. Id., ¶ 18.
5 E. The Experience and Views of Counsel
6 Class Counsel have substantial experience serving as class counsel and
7 believe the Settlement is fair, reasonable, and adequate. See Blood Preliminary
8 Approval Decl., ¶ 31, and Ex. 1 thereto (Class Counsel’s Firm Resume); In re
9 Omnivision Techs., 559 F. Supp. 2d 1036, 1043 (N.D. Cal. 2007) (noting the
Blood Xxxxx & X’ Xxxxxxx, LLP
10 experience of plaintiffs’ counsel and that “[t]he recommendations of plaintiffs’
11 counsel should be given a presumption of reasonableness”).
12 F. The Reaction of Settlement Class Members Favor Final
13 Approval
14 A favorable reaction by class members to the proposed settlement supports
15 final approval. In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 459 (9th Cir.
16 2000). “It is established that the absence of a large number of objections to a
17 proposed class action settlement raises a strong presumption that the terms of a
18 proposed class settlement action are favorable to the class members.” Nat’l Rural
19 Telecomms. Coop. v. DIRECTV, Inc., 221 F.R.D. 523, 529 (C.D. Cal. 2004).
20 The terms of the Settlement were provided to Class Members in the Court-
21 approved Class Notice, including in the Class Notice sent by mail and email to
22 potential Class Members and published on the Settlement Website. See Xxxxxxx
23 Decl., ¶ 17. The last day to object or opt-out of the Settlement is April 30, 2024.
24 To date, there have been no opt-outs or objections to the Settlement. See Blood
25 Final Approval Decl., ¶ 26; see also Xxxxxxx Decl., ¶¶ 20, 21. As described
26 above, based on a preliminary analysis, Claims representing most of the Tokens
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1 held as of November 19, 2018, have been submitted. See Xxxxxxx Decl., ¶ 22.
2 The deadline to submit claims is April 15, 2024.
3 The lack of objections or opt-outs and the high claims rate indicates a
4 positive reaction to the Settlement. See, e.g., In re Mego, 213 F.3d at 459 (where
5 just a “handful objected, “[t]he reaction of the class members to the proposed
6 settlement further support the conclusion that…the Settlement was fair, adequate
7 and reasonable”); Xxxxxxxxx Village, LLC v. Gen. Elec., 361 F.3d 566, 577 (9th
8 Cir. 2004)(affirming approval of a class action settlement where forty-five
9 objections were received out of 90,000 notices); In re Omnivision, 559 F.Supp.2d
Blood Xxxxx & X’ Xxxxxxx, LLP
10 at 1042 (“objections from only 3 out of 5,630 Class Members who received the
11 notice” shows the class favors the settlement); Xxxxxx v. State Farm Mut. Auto.
12 Ins. Co., No. CV 08 1356 CW (EMC), 2010 U.S. Dist. LEXIS 49477, at *40
13 (N.D. Cal. Apr. 22, 2010) (“only 101 out of the over 23,000 who received notice
14 have elected to opt out of the Settlement Class…which is a further indication of
15 the fairness of the Settlement.”); Xxxxxx v. Toyota Motor Sales, U.S.A., Inc., No. 16 CV 12-2171 FMO (FFMx), 2017 U.S. Dist. LEXIS 77576, at * 25 (C.D. Cal.
17 May 21, 2017)(22 objections out of 2.6 million noticed class members found to
18 be “extremely low”). By any standard, the lack of objection of the Class
19 Members here favors approval of the Settlement. Id.
20 Any objections that may be submitted will be addressed after the close of
21 the opt out and objection period in Plaintiff’s reply brief.
22 VII. PLAINTIFF’S FEE AND EXPENSE REQUEST SHOULD BE
23 APPROVED
24 Plaintiff seeks an award of attorneys’ fees equal to 25% of the Common
25 Fund, plus reimbursement of expenses of $9,760.65 in expenses incurred to date. 26
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Western Washington Law Group PLLC
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(000) 000-0000, ext. 4
1 In common fund settlements like this one, the Ninth Circuit approves the
2 “percentage of recovery” method. In re Hyundai & Kia Fuel Econ. Litig., 926 3 F.3d 539, 570 (9th Cir. 2019); Xxxxxxx v. Chrysler Corp., 150 F.3d 1011, 1029
4 (9th Cir. 1998); See also Hall v. L-3 Communs. Corp., 2019 U.S. Dist. LEXIS
5 137490, at *12 (E.D. Wash. Jan. 25, 2019). In diversity cases, state law typically
6 governs the method for calculating attorneys’ fees. Jordan v. Nationtar Mortg.
7 LLC, 2019 U.S. Dist. LEXIS 74833, at *21 (E.D. Wash. May 2, 2019); citing
8 Xxxxxxx v. California Pub. Utilities Comm’n, 67 F.2d 1470, 1478 (9th Cir.
9 1995). Under Washington law, the percentage-of-the-fund method is used to
Blood Xxxxx & X’ Xxxxxxx, LLP
10 calculate class action attorneys’ fees in common fund cases. Vizcano v. Microsoft
11 Corp., 290 F.3d 1043, 1047 (9th Cir. 2002); Xxxxxx v. Dep’t of Ret. Sys., 121
12 Wn. 2d 52, 72, 847 P.2d 440, 451 (1993)(holding that in a common fund case,
13 “the size of the recovery constitutes a suitable measure of the attorneys’
14 performance”).
15 The requested fee award is less than the lodestar incurred by Plaintiff’s
16 Counsel, further indicating that the fee request is reasonable. See Blood Final
17 Approval Decl. ¶ 24.
18 A. A Benchmark Fee Award of 25% of the Common Fund Is Fair
19 and Reasonable
20 The requested fees are reasonable under the percentage of recovery
21 method of fee calculation. Under the percentage method, “the court simply
22 awards the attorneys a percentage of the fund sufficient to provide class counsel
23 with a reasonable fee.” Xxxxxx, 150 F.3d at 1029. In the Ninth Circuit, a fee of
24 25% of a common fund is a presumptively reasonable. Id.; Six (6) Mexican
25 Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 1990) (the Ninth
26 Circuit has “established 25 percent of the fund as the ‘benchmark’ award that
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1 should be given in common fund cases”); Xxxxxxxxxx v. Bank of Am., No. 3:15- 2 cv-6344-RS, 2017 U.S. Dist. LEXIS 107243, at *13-14 (N.D. Cal. July 11, 2017)
3 (citing Bluetooth, 654 F.3d at 942); Xxxxxxx v. Farmers Ins. Exch., No. 3:14-cv- 4 00574-WHO, 2017 U.S. Dist. LEXIS 119128, at *6 (N.D. Cal. Jan. 17, 2017)
5 (“In the Ninth Circuit, attorneys’ fees constituting 25% of a common fund are
6 considered presumptively reasonable.”). However, “the 25% benchmark can be
7 adjusted upward or downward, depending on the circumstances.” Hyundai, 926
8 F.3d at 570. In the state of Washington, the benchmark for an attorney fee award
9 in a common fund settlement is 25% of the fund. Xxxxxxx x. Fedex Ground
Blood Xxxxx & X’ Xxxxxxx, LLP
10 Package Syst., 2016 LEXIS 12083, at * 4 (Wash. Super. Ct. December 2, 2016);
11 citing Xxxxxx 847 P.2d 440, 451
12 In determining whether the percentage requested is fair and reasonable,
13 courts may consider a range of factors, including: (1) the results achieved; (2) the
14 risk of litigation; (3) the skill required; (4) the quality of work; and (5) the
15 contingent nature of the fee and the financial burden. Xxxxxxxx, 290 F.3d 1043,
16 1048-50 (9th Cir. 2002); see also Xxxxxxxx, 1 Cal. 5th at 504 (same). Based on
17 these factors, the Ninth Circuit has affirmed fee awards “far greater” than 25%.
18 Hyundai, 926 F.3d at 571 (citing Xxxxxxxx, 290 F.3d at 1047-48 (affirming fees
19 totaling 28% of class recovery) and In re Pac. Enters. Sec. Litig., 47 F.3d 373,
20 379 (9th Cir. 1995) (affirming 33% of class recovery)). In fact, “[a]s a court in
21 this District recognized, ‘in most common fund cases, the award exceeds the
22 [25%] benchmark.’” In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig., No. 23 4:14-md-2541-CW, 2017 U.S. Dist. LEXIS 201108, at *5 (N.D. Cal. Dec. 6,
24 2017) (quoting De Xxxx x. Heartland Emp’t Serv., No. 12-CV-04092 LHK, 2014
25 U.S. Dist. LEXIS 33685, at *2 (N.D. Cal. Mar. 13, 2014)); see also In re Xxxx
26 Fin. Corp. Sec. Litig., 213 F.3d 454, 457, 463 (9th Cir. 2000) (affirming fee
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1 award of 33 1/3% of fund); Xxxxxx x. Lifescan, Inc., 54 Fed. Appx. 663, 664 (9th
2 Cir. 2003) (affirming fee award of 33% of fund); Xxxxxxxxxx x. Tata
3 Consultancy Servs., Ltd., No. C 06-0963 CW, 2013 U.S. Dist. LEXIS 100796
4 (N.D. Cal. July 18, 2013) (collecting cases awarding 30% or more); Xxxxxxx v.
5 Gen. Xxxxx, Inc., No. SACV 10-00061-CJC(ANx), 2013 U.S. Dist. LEXIS
6 90338, at *18-20 (C.D. Cal. June 17, 2013) (approving fee award of 30% of
7 fund); Xxxxxxx x. PetSmart, Inc., No. 1:18-cv-00535-DAD-SKO, 2019 U.S. Dist. 8 LEXIS 187530, at *29 (E.D. Cal. Oct. 29, 2019) (awarding 33.3% of fund).
9 Here, Class Counsel requests a benchmark fee award of 25% of the
Blood Xxxxx & X’ Xxxxxxx, LLP
10 Common Fund. Given the applicable factors, this request is reasonable.
11 1. Plaintiff’s Counsel Achieved an Excellent Result for the
12 Class
13 In determining the reasonableness of a fee request, the “most critical factor
14 is the degree of success obtained.” Xxxxxxx v. Xxxxxxxxx, 461 U.S. 424, 436
15 (1983), see also Xxxxxxxxx x. Xxxxxx, No. C15-5143 RSM, 2016 U.S. Dist. 16 LEXIS 51085, at *5 (W.D. Wash. Apr. 14, 2016).
17 Here, the settlement achieves Plaintiff’s primary goal of providing
18 monetary damages to Class Members for the alleged violations of the WCPA, the
19 WEARA, as well as the breach allegations. As to monetary damages, Claimants
20 will receive cash payments representing about 30% to 150% of their loss,
21 depending on the claims rate and whether Plaintiffs’ or Defendants’ damage
22 calculation is assumed or interpretation of the escrow agreement. See Blood Final
23 Approval Decl., ¶ 25.
24 The results strongly support the fees and costs requested by Class Counsel. 25
26
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1 2. Plaintiff’s Counsel Assumed Significant Risks in This
2 Complex Litigation
3 The risk, expense, and complexity of the Action also supports the
4 reasonableness of the fee award.
5 The consideration of significant risks assumed by Class Counsel is
6 discussed above in Section VI.C. Based on the substantial risk incurred, the
7 requested fee award is very reasonable.
8 3. Counsel Provided High-Quality Work
9 Class Counsel are experienced in complex litigation and have substantial
Blood Xxxxx & X’ Xxxxxxx, LLP
10 experience prosecuting consumer class actions. See Blood Preliminary Approval
11 Decl. ¶ 31 and Ex. 1 thereto. Class Counsel have a thorough understanding of the
12 issues presented in by this type of case and through their skill and reputation,
13 were able to obtain a settlement that provides an excellent outcome for the Class.
14 Litigating this case has been challenging. Counsel conducted a detailed
15 investigation and obtained discovery about the escrow, the sale of the Tokens,
16 and the construction of the cryptocurrency mining facilities. See Blood
17 Preliminary Approval Decl., ¶ 14. For months, Xxxxxxx worked closely with
18 Judge Xxxxx to reach a settlement, which involved lengthy briefing, a full day
19 mediation, and many phone calls. Id., ¶ 20.
20 Counsel not only had to concern itself with opposing counsel, but the
21 Trustee in the Giga Watt bankruptcy, as well. See Blood Preliminary Approval
22 Decl., ¶¶ 7, 22. Counsel carefully navigated both attempts to bring the Class
23 claims to bankruptcy court and attempts to halt the instant litigation altogether.
24 Id., ¶¶ 7-13. Xxxxxxx fought this battle for the Class on multiple fronts and in
25 doing so, helped bring both matters to their eventual settlements. 26
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1 The skill and tenacity of Plaintiff’s Counsel was put to the test throughout
2 this litigation, but it resulted in an excellent Settlement for the Class and justifies
3 the requested attorneys’ fee award.
4 4. Plaintiff’s Counsel Took the Case on a Contingency Basis
5 “[W]hen counsel takes cases on a contingency fee basis, and litigation is
6 protracted, the risk of non-payment after years of litigation justifies a significant
7 fee award.” Xxxxxxxxxxxxx v. Tractor Supply Co., 306 F.R.D. 245, 261 (N.D. Cal.
8 2015).” “It is an established practice in the private legal [world] to reward
9 attorneys for taking the risk of non-payment by paying them a premium over
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10 their normal hourly rates for winning contingency cases.” In re Wash. Pub.
11 Power Supply Sys. Secs. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). Thus, an
12 attorney whose compensation is dependent on success – who takes a significant
13 risk of no compensation – may receive a fee that “far exceed[s] the market value
14 of the services if rendered on a non-contingent basis.” Id.; see also Monterrubio
15 v. Best Buy Stores, L.P., 291 F.R.D. 443, 457 (E.D. Cal. 2013) (same); Xxxxxxx
16 x. Xxxxx, 24 Cal. 4th 1122, 1132-33 (2001) (discussing and approving “[t]he
17 economic rationale for fee enhancement in contingency cases”). Plaintiff’s
18 Xxxxxxx undertook the litigation solely on a contingent basis, with no guarantee
19 of recovery. See Blood Final Approval Decl., ¶ 5. Despite such a challenge, and
20 through protracted litigation lasting several years, Plaintiff’s Counsel was able to
21 demonstrate to Defendants that it faced significant exposure such that it entered
22 into this settlement agreement.
23 5. No Members Have Objected to the Requested Fees
24 “[T]he existence or absence of objectors to the requested attorneys’ fee is a
25 factor in determining the appropriate fee award.” Bellinghausen, 206 F.R.D. at
26 261; See also In re Northwest Biotherapeutics Inc. Sec. Litig., No. 07 Civ. 1254,
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1 2009 U.S. Dist. LEXIS 138300, at *3 (W.D. Wash. July 10, 2009) (A positive
2 reaction from the Class supports requested fee from the common fund.). To date,
3 no one has objected to the Requested fees. See Blood Final Approval Decl., ¶ 26.
4 B. A Lodestar Cross Check Confirms the Fee Request Is
5 Reasonable
6 Courts often employ a lodestar cross-check to confirm the reasonableness
7 of a percentage-based fee. See Xxxxxxxx, 290 F.3d at 1050 (lodestar method
8 “provides a check on the reasonableness of the percentage award”). In
9 conducting this lodestar cross-check, courts compare the requested fee to class
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10 counsel’s lodestar, and courts regularly approve fee awards that are several times
11 class counsel’s lodestar. See, e.g., Xxxxxxxx, 290 F.3d at 1051 (3.65x “within the
12 range of multipliers applied in common fund cases”); Xxxxxxx v. Am. Broad. Co.,
13 248 F. App’x 780, 783 (9th Cir. 2007) (6.85x “well within the range” of
14 permissible multipliers); In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-
15 Aid Cap Antitrust Litig., No. 14 Civ. 2541, 2017 U.S. Dist. LEXIS 201108, at *3
16 (N.D. Cal. Dec. 6, 2017) (3.66x was reasonable); Xxxxxxxxx x. Xxxxx Fargo Bank,
17 N.A., No. 07 Civ. 05923, 2015 U.S. Dist. LEXIS 67298, at *23 (N.D. Cal. May
18 21, 2015) (approving “multiplier of 5.5” based on results achieved, quality of
19 work, and delayed payment).
20 Here, the Plaintiff’s Counsel’s lodestar is greater than the requested fee
21 award. See Blood Final Approval Decl., ¶¶ 16, 24; XxXxxxxxx Decl., ¶ 28. This
22 further demonstrates the reasonableness of the requested fee award.
23 C. Plaintiff’s Counsel’s Expenses Are Reasonable and
24 Compensable
25 “Attorneys who create a common fund for the benefit of a class are
26 entitled to be reimbursed for their out-of-pocket expenses incurred in creating the
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1 fund so long as the submitted expenses are reasonable, necessary and directly
2 related to the prosecution of the action.” In re Optical Disk Drive Prods.
3 Antitrust Litig., No. 10 Civ. 2143, 2016 U.S. Dist. LEXIS 175515, at *63 (N.D.
4 Cal. Dec. 19, 2016) (citing Xxxxxxx x. Xxxxxx Air W., Inc., 557 F.2d 759, 769 5 (9th Cir. 1977)); see also Xxxx x. M-I, L.L.C., No. 12 Civ. 01718, 2017 U.S. Dist. 6 LEXIS 118064, at *23 (E.D. Cal. July 26, 2017).
7 The types of reasonable litigation costs “can include reimbursements for:
8 “(1) meals, hotels, and transportation; (2) photocopies; (3) postage, telephone,
9 and fax; (4) filing fees; (5) messenger and overnight delivery; (6) online legal
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10 research; (7) class action notices; (8) experts, consultants, and investigators; and
11 (9) mediation fees.” Xxxx, 2017 LEXIS 118064, at *23 (citation omitted); see
12 also Xxxxxxxxx v. Zynga, Inc., No. 12 Civ. 04007, 2016 U.S. Dist. LEXIS 17196,
13 at *73 (N.D. Cal. Feb. 11, 2016). In addition, the Settlement authorizes the Court
14 to award costs to Class Counsel. Settlement § VIII.B.
15 To date, Class Counsel collectively have incurred $9,760.65 in litigation
16 costs and expenses. See Blood Final Approval Decl., ¶ 23; see also XxXxxxxxx
17 Decl., ¶ 32. These costs include payments for filing fees, travel and lodging
18 related to the mediation, legal research, electronic document management,
19 transcripts, telephone conference calls, and other reasonable litigation related
20 costs. See Blood Final Approval Decl., ¶ 22. All these costs were necessary to
21 prosecute this action and were incurred for the benefit of the Class. Id., ¶ 20;
22 XxXxxxxxx Decl., ¶ 32. Thus, the Court should award Class Counsel $9,760.65 in
23 litigation expenses. 24
25
26
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1 D. The Requested Class Representative Service (or Incentive)
2 Award Should Be Approved
3 “Incentive awards are fairly common in class action cases.” Hill v. Garda
4 CL Northwest, Inc., No. 00-0-00000, 2015 LEXIS 179, at *26 [Wash. Super. Ct.
5 December 10, 2015]; see also Xxxxxxxxx v. W. Publ’g Corp., 563 F.3d 948, 958
6 (9th Cir. 2009) (citing Xxxxxxx on Class Actions § 11:38 (4th ed. 2008)); China
7 Agritech, Inc. x. Xxxx, 138 S. Ct. 1800, 1811 n.7 (2018). Service awards “are
8 intended to compensate class representatives for work done on behalf of the
9 class, to make up for financial or reputational risk undertaken in bringing the
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10 action, and, sometimes, to recognize their willingness to act as a private attorney
11 general.” Xxxxxxxxx, 563 F.3d at 958-59; see also Xxxxxxx v. Nat’l Milk
12 Producers Fed’n, No. 11-cv-04766-JSW, 2017 U.S. Dist. LEXIS 145214, at *42
13 (N.D. Cal. June 26, 2017) (“Service awards for class representatives are provided
14 to encourage individuals to undertake the responsibilities of representing the
15 class and to recognize the time and effort spent on the case.”). Service awards are
16 committed to the sound discretion of the trial court and should be awarded based
17 upon the court’s consideration of, inter alia, the amount of time and effort spent
18 on the litigation, the duration of the litigation and the degree of personal gain
19 obtained by the class representative as a result of the litigation. Van Vranken v.
20 Atl. Richfield Co., 901 F. Supp. 294, 299 (N.D. Cal. 1995).
21 Here, Class Counsel respectfully request that the Court approve the service
22 award of $5,000 to Class Representative Xxxx Xxxxxxxxx. Xx. Xxxxxxxxx has
23 devoted time and effort to this case, including providing Class Counsel with all
24 necessary information upon request, reviewed of the Settlement, and stayed
25 informed of the status of litigation and settlement discussion. Most importantly,
26 he was willing to step forward to represent the Class despite a history by the
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1 Trustee of repeatedly attacking and seeking sanctions (unsuccessfully) against
2 the previous class representative. See Blood Final Approval Decl., ¶ 4; see also
3 Declaration of Xxxx Xxxxxxxxx in Support of Application For a Service Award
4 (“Xxxxxxxxx Declaration”), ¶¶ 5-7.
5 The requested service award falls squarely in line with amounts awarded
6 in comparable cases. See, e.g., China Agritech, 138 S. Ct. at 1811 n.7 (service
7 award of up to $25,000); In re Online DVD-Rental Antitrust Litig., 779 F.3d 934,
8 943 (9th Cir. 2015) (affirming $5,000 award); Galeener v. Source Refrigeration
9 & HVAC, Inc., No. 3:13-cv-04960-VC, 2015 U.S. Dist. LEXIS 193096, at *7-8
Blood Xxxxx & X’ Xxxxxxx, LLP
10 (N.D. Cal. Aug. 21, 2015) (collecting cases that service awards of $27,000,
11 $25,000, $15,000, and $2,000 were “fair and reasonable”); Xxxxxx x.
12 Doubledown Interactive, LLC, No. 18-cv-0525-RSL, 2023 U.S. Dist. LEXIS
13 97758, at *9 (W.D. Wash. June 1, 2023) (service awards of $7,500 were fair and
14 reasonable); Xxxxxx x. Fpi Mgmt., No. 2:19-CV-0128-TOR, 2022 U.S. Dist.
15 LEXIS 137522, at *20 (E.D. Wash. Feb. 3, 2022) ($10,000 service award).
16 VIII. CONCLUSION
17 For all the foregoing reasons, Plaintiff respectfully requests that the Court
18 confirm certification of the Class, grant final approval of the Settlement, and
19 approve Class Counsel’s request for attorneys’ fees and expenses and service
20 award for the Class Representative.
21 Respectfully submitted,
22 Dated: April 9, 2024 WESTERN WASHINGTON LAW GROUP PLLC
23 XXXXXX X. XXXXXXXXX (#28177)
XXXXXX X. XXXXXXXXX (41773)
24
25 By: s/ Xxxxxx X. XxXxxxxxx
XXXXXX X. XXXXXXXXX
26 P.O. Box 468
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Snohomish, WA 98291 Tel: 425/000-0000, ext. 4 xxxxxx@xxxxxxxxx.xxx xxxxxx@xxxxxxxxx.xxx xxxx@xxxxxxxxx.xxx |
BLOOD XXXXX & X’XXXXXXX, LLP XXXXXXX X. BLOOD (pro hac vice) XXXXXX X. X’XXXXXXX XX (pro hac vice) XXXXX X. XXXXX (254142) 000 Xxxx Xxxxxxxx, Xxxxx 0000 Xxx Xxxxx, XX 00000 Tel: 619/000-0000 000/000-0000 (fax) |
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