Plaintiffs` Motion for Final Approval of Class Action Settlement and

Transcription

CASE 0:10-cv-04372-DWF-JJG Document 670 Filed 07/10/14 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
THE CITY OF FARMINGTON HILLS
EMPLOYEES RETIREMENT SYSTEM
AND THE BOARD OF TRUSTEES OF
THE ARIZONA STATE CARPENTERS
PENSION TRUST FUND AND THE
ARIZONA STATE CARPENTERS
DEFINED CONTRIBUTION TRUST
FUND, Individually and on Behalf of All
Others Similarly Situated,
Civil Action No. 0:10-cv-04372-DWF/JJG
PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES AND COSTS,
AND CLASS REPRESENTATIVE
SERVICE AWARDS
Plaintiffs,
vs.
WELLS FARGO BANK, N.A.
Defendant.
Plaintiffs, through their undersigned counsel, respectfully move the Court for an
Order granting Class Counsel attorneys’ fees in the amount of $20,833,333;
reimbursement of incurred costs and expenses in the amount of $2,064,548.45; and
awarding each of the two Class Representatives a Service Award in the amount of
$50,000.
Respectfully submitted,
Dated: July 10, 2014
THE MILLER LAW FIRM, P.C.
By:/s/ E. Powell Miller
E. Powell Miller (pro hac vice)
Sharon S. Almonrode (pro hac vice)
Jayson E. Blake (pro hac vice)
Christopher D. Kaye (pro hac vice)
950 West University Drive, Suite 300
Rochester, Michigan 48307
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
epm@millerlawpc.com
ssa@millerlawpc.com
jeb@millerlawpc.com
cdk@millerlawpc.com
GLANCY BINKOW & GOLDBERG LLP
Peter A. Binkow (pro hac vice)
Kevin F. Ruf (pro hac vice)
Kara M. Wolke (pro hac vice)
Casey E. Sadler (pro hac vice)
Leanne E. Heine (pro hac vice)
1925 Century Park East, Suite 2100
Los Angeles, California 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
pbinkow@glancylaw.com
kevinruff@gmail.com
kwolke@glancylaw.com
csadler@glancylaw.com
lheine@glancylaw.com
ZIMMERMAN REED, P.L.L.P
Carolyn G. Anderson (MN 275712)
David M. Cialkowski (MN. 306526)
Brian C. Gudmundson (MN. 336695)
June P. Hoidal (MN. 033330X)
1100 IDS Center, 80 South 8th Street
Minneapolis, Minnesota 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
Carolyn.Anderson@zimmreed.com
David.Cialkowski@zimmreed.com
Brian.Gudmundson@zimmreed.com
June.Hoidal@zimmreed.com
VanOVERBEKE MICHAUD &
TIMMONY P.C.
Thomas C. Michaud (pro hac vice)
79 Alfred Street
Detroit, Michigan 48201
Telephone: (313) 578-1200
Facsimile: (313) 578-1201
tmichaud@vmtlaw.com
Attorneys for Plaintiff and the Class
Plaintiffs,
vs.
Defendant.
MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
ATTORNEYS’ FEES AND COSTS,
AND CLASS REPRESENTATIVE
SERVICE AWARDS
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
I.
INTRODUCTION .................................................................................................................. 1
II.
AWARD OF ATTORNEYS’ FEES ....................................................................................... 4
A. Class Counsel Is Entitled to a Fee From the Traditional Common Fund They
Obtained .................................................................................................................... 4
B. The Court Should Award Attorney Fees Using the Percentage Approach .............. 5
C.The Requested Percentage is Appropriate When Compared to the Range of
Percentage-of-Fund Awards ....................................................................................... 7
D. Consideration of the Relevant Factors Justifies an Award of the Requested
Amount ....................................................................................................................... 7
1.
The Benefit Conferred on the Class .................................................................. 8
2.
The Risks of Litigation and the Contingent Nature of the Fee .......................... 9
3.
The Complexity of the Litigation .................................................................... 12
4.
The Skill of the Lawyers on Both Sides .......................................................... 15
5.
The Time and Labor Involved ......................................................................... 15
6. The Comparison Between the Requested Attorney Fee Percentage and
Percentages Awarded in Similar Cases................................................................. 17
E.Class Counsel’s Expenses are Reasonable and Were Necessarily Incurred to Achieve
the Benefit Obtained.................................................................................................. 18
F. The Class Representatives are Entitled to Service Awards ..................................... 21
III.
CONCLUSION .................................................................................................................. 25
TABLE OF AUTHORITIES
Cases
9-M Corp., Inc. v. Sprint Communications Co., No. 11-3401, 2012 WL 5495905, *3 (Dist. Minn.
Nov. 12, 2012) ................................................................................................................................ 6
Abrams v. Lightolier, Inc.,50 F.3d 1204 (3d Cir. 1995) ............................................................... 19
AFTRA v. JP Morgan, 2012 WL 2064907 ................................................................................... 21
Anixter v. Home-Stake Prod. Co.,77 F.3d 1215 (10th Cir. 1996)................................................. 11
Arenson v. Bd. of Trade,372 F. Supp. 1349 (N.D. Ill. 1974) ........................................................ 15
Backman v. Polaroid Corp.,910 F.2d 10 (1st Cir. 1990) .............................................................. 11
BCBS v. Wells Fargo, No. 11-2529 (D. Minn. August 9, 2013) .................................................... 9
Bd. of Trustees of the Birmingham Retirement System v. Comerica Bank, No. 09-cv-13201, Dkt.
No. 137 at 14 (E.D. Mich. Dec. 27, 2013) .................................................................................... 13
Berkey Photo, Inc. v. Eastman Kodak Co.,603 F.2d 263 (2d Cir. 1979) ...................................... 11
Blum v. Stenson,465 U.S. 886 n.16 (1984) ..................................................................................... 5
Boeing Co. v. Van Gemert,444 U.S. 472 (1980)............................................................................. 4
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42,8 F.3d 722 (10th Cir. 1993)............................. 19
Brown v. Phillips Petroleum Co.,838 F.2d 451 (10th Cir. 1988) ................................................... 6
Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768 (11th Cir. 1991) ................................................ 6
Carlson v. C.H. Robinson Worldwide, Inc., No. 02-3780, 2006 WL 2671105 (D. Minn. Sept. 18,
2006) ............................................................................................................................................. 18
Cent. R.R. & Banking Co. v. Pettus,113 U.S. 116 (1885) .............................................................. 5
CompSource Oklahoma v. BNY Mellon, N.A., No. CIV 08–469–KEW, 2012 WL 6864701, *7
(E.D. Okla. Oct. 25, 2012) ............................................................................................................ 21
Court Awarded Attorney Fees,108 F.R.D. 237 (October 8, 1985) ................................................. 6
EEOC v. Fairbault Foods, Inc., No. 07-3976, 2008 WL 879999 (D. Minn. Mar. 28, 2008)....... 18
Geffon v. Micrion Corp.,249 F.3d 29 (1st Cir. 2001) ................................................................... 11
Goldberger v. Integrated Res., Inc.,209 F.3d 43 (2d Cir. 2000)..................................................... 6
Gottlieb v. Barry,43 F.3d 474 (10th Cir. 1994) .............................................................................. 6
Greebel v. FTP Software, Inc.,194 F.3d 185 (1st Cir. 1999) ........................................................ 11
Green v. Nuveen Advisory Corp.,295 F.3d 738 (7th Cir. 2002) ................................................... 11
Harman v. Lyphomed, Inc.,945 F.2d 969 (7th Cir. 1991)............................................................... 6
Harris v. Marhoefer,24 F.3d 16 (9th Cir. 1994) ........................................................................... 19
Hensley v. Eckerhart,461 U.S. 424 (1983) ..................................................................................... 8
Hubbard v. BankAtlantic Bancorp, Inc.,688 F.3d 713 (11th Cir. 2012) ...................................... 11
In re Airline Ticket Commission Antitrust Litig., 953 F.Supp. 280, 285–86 (D. Minn. 1997) ..... 14
In re Comshare Inc. Sec. Litig.,183 F.3d 542 (6th Cir. 1999) ...................................................... 11
In re Flight Transp. Corp. Sec. Litig.¸685 F.Supp. 1092, 1094 (D.Minn.1987) ............................ 6
In re Prudential-Bache Energy Income P'ships Sec. Litig.,No. 888, 1994 WL 202394 (E.D. La.
May 18, 1994) ............................................................................................................................... 10
In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 307 n.17 (3d Cir. 2005)....................................... 16
In re U.S. Bancorp Litigation, 291 F.3d 1035, 1038 (8th Cir. 2002) ..................................... 17, 22
In re UnitedHealth Group Inc. PSLRA Litig., 643 F. Supp. 2d 1094, 4406 (D. Minn. 2009) ...... 16
In re Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation, No. 11–MD–2247
ADM/JJK, 2012 WL 2512750 at *11 (D. Minn. June 29, 2012) ................................................ 21
ii
In re Xcel Energy, Inc. Secs., Der. & “ERISA”, 364 F. Supp. 2d 980, 994 (D. Minn. 2005)passim
In re Zurn Pex Plumbing Products Liability Litigation, No. 08–MDL–1958 ADM/AJB, 2013
WL 716460 at *2 (D. Minn. Feb. 27, 2013) ................................................................................. 22
Jensen v. Minnesota Dept. of Human Servs., Civil No. 09–1775 (DWF/FLN), 2011 WL
6178845, at *2 (D. Minn. Dec. 5, 2011) ....................................................................................... 17
Levitin v. Painewebber, Inc.,159 F.3d 698 (2d Cir. 1998) ........................................................... 11
Longman v. Food Lion, Inc.,197 F.3d 675 (4th Cir. 1999)........................................................... 11
Mashburn v. Nat'l Healthcare, Inc.,684 F. Supp. 679 (M.D. Ala. 1988) ....................................... 4
Miller v. Woodmoor Corp.,Nos. 74-F-988, 76-F-567, 1978 WL 1146 (D. Colo. Sept. 28, 1978) 12
Miltland Raleigh-Durham v. Myers,840 F. Supp. 235 (S.D.N.Y. 1993) ...................................... 19
Missouri v. Jenkins,491 U.S. 274 (1989) ........................................................................................ 7
Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1157 (8th Cir. 1999) ............................................ 5, 16
Phillips v. LCI Int'l, Inc.,190 F.3d 609 (4th Cir. 1999) ................................................................ 11
Robbins v. Koger Props.,116 F.3d 1441 (11th Cir. 1997) ............................................................ 11
Silver v. H&R Block,105 F.3d 394 (8th Cir. 1997) ....................................................................... 11
Sprague v. Ticonic Nat'l Bank,307 U.S. 161 (1939) ....................................................................... 5
Swedish Hosp. Corp. v. Shalala,1 F.3d 1261 (D.C. Cir. 1993) ...................................................... 6
Trs. v.Greenough,105 U.S. 527 (1882) ...................................................................................... 4, 5
Ward v. Succession of Freeman,854 F.2d 780 (5th Cir. 1988) .................................................... 11
Wheeler v. Mo. Transp. Comm’n, 348 F.3d 744, 754 (8th Cir. 2003) ............................................ 8
Yarrington v. Solvay Pharms. Inc., 697 F. Supp. 2d 1057, 1062 (D. Minn. 2010) ............ 8, 17, 22
Zilhaver v. UnitedHealth Group, Inc., 646 F.Supp.2d 1075, 1085 (D. Minn. 2009) ................... 22
Treatisis
Richard Posner, Economic Analysis of Law §21.9, at 534-35 (3d ed. 1986) ................................ 10
iii
I.
INTRODUCTION
Counsel for Plaintiffs in this complex financial class action respectfully submit
this memorandum of law in support of their request for an award of attorney fees,
reimbursement of their litigation expenses, and a service award to each Class
Representative.
As discussed in detail below and in the accompanying briefs, the
Settlement 1 is the result of hard-fought litigation in the face of a highly complex case,
extensive briefing and discovery, pretrial preparation, and contentious settlement
negotiations. We are pleased to present this Settlement to the Court for its consideration.
The substantial and certain recovery obtained for the Class – recovery of
$62,500,000 in cash or cash-equivalent account credits – was achieved through the skill,
hard work, and effective advocacy of Class Counsel. Class Counsel accepted this matter
on a contingent basis, with the attendant risk that they would receive no fee or expense
reimbursement. Their efforts to date have been without compensation of any kind. They
therefore should be rewarded for overcoming the risks involved and bringing the case to a
successful resolution. By any standard the result is exceptional and Class Counsel should
be compensated for their efforts.
The requested fee is well within the range awarded in class actions in this Circuit
and by other courts throughout the country, and the percentage of the fund method is the
appropriate method of compensating counsel.
1
The amount requested is especially
Unless specified herein, terms have the same definitions as set forth in the Settlement
Agreement.
1
warranted in light of the substantial recovery secured for the Class, the efforts of Class
Counsel in obtaining this result on the eve of trial, and the significant continuing risks in
prosecuting the litigation. Indeed, absent this Settlement, the Class Members could have
gone without any recovery or, even if Plaintiffs secured a favorable judgment, appeals
after trial could have continued for several more years, or both.
The prosecution and settlement of this litigation required skill and extensive
efforts by Class Counsel. Class Counsel marshaled considerable resources and expended
substantial efforts in the prosecution of this litigation. Moreover, by taking this case and
litigating it to its advanced staged, Class Counsel gave up opportunities to litigate other
matters. The Settlement was only achieved upon the eve of trial after Class Counsel had
fully prepared for that trial, even in the face of the earlier Blue Cross trial in which the
plaintiffs recovered nothing. 2
Indeed, jury trial, inevitable appeals after any positive verdict, and continued
litigation posed real, significant risks for the Class, with ultimate success far from certain.
As discussed in greater detail in the Settlement Brief and the accompanying Joint
Declaration, continued litigation would be fraught with risks. As the Court well knows,
2
Submitted herewith in support of approval of the proposed settlement is Plaintiff’s
Motion for Final Approval of Class Action Settlement and Plan of Allocation of
Settlement Proceeds (the “Settlement Brief”), which more fully describes the history of
the litigation, the claims asserted, the investigation undertaken, the negotiation and
substance of the settlement, the risks of the litigation, and the reasonableness of the fee
request. Also submitted herewith is a Joint Declaration of E. Powell Miller and Peter
Binkow in support of this Motion, Ex. A, and as exhibits thereto, declarations from Class
Counsel’s individual law firms setting forth the time expended and expenses incurred in
prosecuting the litigation. See Exs. A(1-3).
2
Wells Fargo prevailed at trial in the similar Blue Cross action, wherein the same claims
and defenses were asserted based on similar evidence. Plaintiffs would face the risk that,
as in the Blue Cross case, the jury would react unfavorably to the evidence presented by
Plaintiffs and instead believe the testimony and arguments of Defendant and find in
Wells Fargo’s favor.
Class Counsel firmly believes that the Settlement obtained is an outstanding result
for the Class. Class Counsel developed a trial strategy that ultimately caused Wells
Fargo to rethink its settlement approach. In light of these factors, Class Counsel believe
that the percentage fee award requested is fair and reasonable.
In accordance with this Court’s June 5, 2014 Order Granting Preliminary
Approval of Class Action Settlement, Approving Form and Manner of Notice, and
Setting Date for Hearing on Final Approval of Settlement, to date an aggregate of 92
have been sent to potential Class Members. See Declaration re Notice Dissemination
(“GCG Decl.”), Ex. B. The Notice informed the Class that Class Counsel would make an
application for attorney fees not to exceed $20,833,333, which is 33-1/3% of the
Settlement Fund, plus reimbursement of expenses not to exceed $2.45 million, and
request a Service Award in the amount of $50,000 for each Class Representative.
For the reasons set forth herein, Class Counsel respectfully submit that the
attorney fees and expenses requested are fair and reasonable under the applicable legal
standards and in light of the contingency risk undertaken, the diligent efforts of counsel,
3
and the substantial monetary benefits obtained. Thus, Class Counsel respectfully request
that the Court award such fees and expenses.
II.
AWARD OF ATTORNEYS’ FEES
A.
Class Counsel Is Entitled to a Fee From the Traditional Common Fund
They Obtained
For over a century, the Supreme Court has recognized the “common fund”
exception to the general rule that a litigant bears his or her own attorneys’ fees. Trs. v.
Greenough, 105 U.S. 527 (1882). The rationale for the common fund principle was
explained in Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980), as follows:
[T]his Court has recognized consistently that a litigant or a lawyer who
recovers a common fund for the benefit of persons other than himself or his
client is entitled to a reasonable attorney’s fee from the fund as a whole. . . .
Jurisdiction over the fund involved in the litigation allows a court to prevent
. . . inequity by assessing attorney’s fees against the entire fund, thus
spreading fees proportionately among those benefited by the suit.
The common fund doctrine both prevents unjust enrichment and encourages
counsel to protect the rights of those who have relatively small claims. Federal courts,
therefore, have long recognized that fee awards in successful cases – such as the instant
one – encourage the prosecution of other actions on behalf of individuals with valid
claims, and thereby promote private enforcement of, and compliance with, important
areas of federal and state law. See, e.g., Mashburn v. Nat’l Healthcare, Inc., 684 F. Supp.
679, 687 (M.D. Ala. 1988) (it is “economic reality” that “a financial incentive is
necessary to entice capable attorneys, who otherwise could be paid regularly by hourly-
4
rate clients, to devote their time to complex, time-consuming cases for which they may
never be paid.”).
In complex financial class actions, competent counsel for plaintiffs can be retained
only on a contingent basis. Consequently, a large segment of the public – including, in
most cases, a critical mass of fiduciary investment vehicles such as pension funds –
would be denied a remedy for violations of investors’ rights if fees awarded by the courts
did not fairly and adequately compensate counsel for the services provided, the risks
undertaken, and the delay before any compensation is received.
B.
The Court Should Award Attorney Fees Using the Percentage
Approach
Courts generally favor awarding fees from a common fund based upon the
percentage-of-the-fund method. See Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984)
(stating that in common fund cases “a reasonable fee is based on a percentage of the fund
bestowed on the class”); Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 165-66 (1939);
Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 124-25 (1885); Greenough, 105 U.S.
at 532.
Consistent with Supreme Court authority, the Eighth Circuit has approved the use
of the percentage approach as a proper method for determining attorney fee awards in
common fund cases. See Petrovic v. Amoco Oil Co., 200 F.3d 1140, 1157 (8th Cir. 1999)
(“It is well established in this circuit that a district court may use the ‘percentage of the
fund’ methodology to evaluate attorney fees in a common-fund settlement.”)
Accordingly, this Court has approved this methodology in class action resolutions such as
5
this case. See, e.g., 9-M Corp., Inc. v. Sprint Communications Co., No. 11-3401, 2012
WL 5495905, *3 (Dist. Minn. Nov. 12, 2012) (Frank, J.) (“The Court adopts the
percentage-of-the-fund approach….”); In re Flight Transp. Corp. Sec. Litig.¸685 F.Supp.
1092, 1094 (D.Minn.1987) (“In a class action, the attorneys who create a settlement fund
are entitled to be compensated from that fund for their services to the class.”).
In fact, many courts nationwide recognize the propriety of percentage fee awards
in common fund cases and the shortcomings of the lodestar/multiplier method. For
example, the District of Columbia Circuit held:
We adopt a percentage-of-the-fund methodology . . . because it is
more efficient, easier to administer, and more closely reflects the
marketplace.
Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1270 (D.C. Cir. 1993). The Eleventh
Circuit rejected the lodestar approach in all common fund cases, making the percentage
method mandatory. In Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768 (11th Cir. 1991),
the court reversed a fee order that used the lodestar/multiplier method.
The court
concluded “that the percentage of the fund approach is the better reasoned in a common
fund case.” Id. at 774. 3
3
Other circuits and commentators have also expressly approved the use of the
percentage method. Gottlieb v. Barry, 43 F.3d 474 (10th Cir. 1994); Brown v. Phillips
Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988) (footnote 16 of Blum recognizes both
“implicitly” and “explicitly” that a percentage recovery is reasonable in common fund
cases); Rawlings v. Prudential Bache-Props., 9 F.3d 513, 515-16 (6th Cir. 1993);
Harman v. Lyphomed, Inc., 945 F.2d 969, 975 (7th Cir. 1991); Goldberger v. Integrated
Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000); Report of the Third Circuit Task Force, Court
Awarded Attorney Fees, 108 F.R.D. 237, 254 (October 8, 1985).
6
C.
The Requested Percentage is Appropriate When Compared to the
Range of Percentage-of-Fund Awards
In selecting an appropriate percentage award, the Supreme Court recognizes that
an appropriate fee is intended to approximate what counsel would receive if they were
bargaining for their services in the marketplace. Missouri v. Jenkins, 491 U.S. 274, 285
(1989). If this were a non-representative, private action, the customary fee arrangement
would be contingent, on a percentage basis, and in the range of 30% to 40% of the
recovery. Blum, 465 U.S. at 903 (“In tort suits, an attorney might receive one-third of
whatever amount the plaintiff recovers. In those cases, therefore, the fee is directly
proportional to the recovery.”).
D.
Consideration of the Relevant Factors Justifies an Award of the
Requested Amount
Class Counsel seeks an award from the fund that they created and submit that an
award in the requested amount (33-1/3%) is reasonable and appropriate under the
circumstances.
Although “[t]he Eighth Circuit has not laid out factors that a district court must
consider when determining whether a percentage of the common fund is reasonable,” the
Circuit has used several factors to guide inquiries into the reasonableness of requested
fees: “(1) the benefit conferred on the class, (2) the risk to which plaintiffs’ counsel was
exposed, (3) the difficulty and novelty of the legal and factual issues of the case, (4) the
skill of the lawyers, both plaintiffs’ and defendants’, (5) the time and labor involved, (6)
the reaction of the class, and (7) the comparison between the requested attorney fee
7
percentage and percentages awarded in similar cases.” Yarrington v. Solvay Pharms.
Inc., 697 F. Supp. 2d 1057, 1062 (D. Minn. 2010).
Consideration of the factors enumerated by the Eighth Circuit in determining the
fairness of an attorney fee request confirms that the requested fee award is justified under
the circumstances of this case, and the fee is fair and reasonable.
1. The Benefit Conferred on the Class
Class Counsel has secured a settlement that provides for a substantial and certain
cash or cash-equivalent payment of $62,500,000.00 for the benefit of the Class. 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”); see also Wheeler v. Mo. Transp. Comm’n, 348
F.3d 744, 754 (8th Cir. 2003); In re Xcel Energy, Inc. Secs., Der. & “ERISA”, 364 F.
Supp. 2d 980, 994 (D. Minn. 2005).
The $62,500,000.00 cash and cash-equivalent settlement here provides a
substantial and certain benefit to the Class. This favorable settlement was achieved as a
result of the intense and creative efforts of Class Counsel, including the contentious
motion practice, extensive discovery, tireless trial preparation (including mock jury
trials), and protracted settlement negotiations detailed in the Settlement Brief. The fact
that the settlement was secured only over the weekend before the scheduled Monday jury
selection further demonstrates that the settlement amount reflects the best possible figure
that could be achieved without the significant risks posed by a trial in this case. As a
8
result of this settlement, the Class Members will benefit and receive compensation for a
portion of their losses and avoid the very real risk of no recovery in the absence of a
settlement.
2. The Risks of Litigation and the Contingent Nature of the
Fee
This was an enormously risky case for Class Counsel. Any financial class action
claim is risky; given the novel issues at stake here, this case was especially so. These
risks were starkly illustrated by the outcome of the Blue Cross trial in this Court last year.
In that case, a jury in this Court heard a six-week trial in a case brought by several nonClass Member participants in Wells Fargo’s Securities Lending Program. That trial
raised many of the same issues as a trial in this case would have – and the jury granted
Wells Fargo a “no-cause” verdict. BCBS v. Wells Fargo, No. 11-2529 (D. Minn. August
9, 2013). Had the instant action proceeded to trial, it was very possible that the jury
could have rendered a verdict in Wells Fargo’s favor again, just as the jury did in the Blue
Cross case. Alternatively, had a jury verdict been obtained in Plaintiffs’ favor as to
Wells Fargo’s liability, Plaintiffs still would have faced substantial risks in the form of
the inevitable appeals that would have certainly followed, as well as further risks
associated with proving damages.
A determination of a fair fee must include consideration of the contingent nature
of the fee and the difficulties that 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
9
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.
In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). See
also In re Xcel Energy, 364 F. Supp. 2d at 994 (“Courts have recognized that the risk of
receiving little or no recovery is a major factor in awarding attorney fees.”).
Courts have frequently recognized the risks to counsel in pursuing class action
claims on investors’ behalf. In awarding counsel’s attorneys’ fees in In re PrudentialBache Energy Income P’ships Sec. Litig., No. 888, 1994 WL 202394 (E.D. La. May 18,
1994), the court noted the risks that plaintiffs’ counsel had taken:
Counsel’s contingent fee risk is an important factor in determining
the fee award. Success is never guaranteed and counsel faced
serious risks since both trial and judicial review are unpredictable.
Counsel advanced all of the costs of litigation, a not insubstantial
amount, and bore the additional risk of unsuccessful prosecution.
Id. at *6.
Class Counsel prosecuted this action on a wholly contingent basis. There are
numerous cases where plaintiffs’ counsel in contingent cases such as this – after the
expenditure of thousands of hours – have received no compensation. Class Counsel are
aware of many hard-fought lawsuits where excellent professional efforts of members of
the plaintiffs’ bar produced no fee for counsel. There are many appellate decisions
affirming summary judgment and directed verdicts for defendants in financial class
10
actions. 4 Even plaintiffs who succeed at trial may find their judgment overturned on
appeal. For example, plaintiffs’ counsel lost a substantial investment of time and money
in a large investor class action in Robbins v. Koger Props., 116 F.3d 1441 (11th Cir.
1997), when the Court of Appeals reversed a jury verdict of $81 million against an
accounting firm after a 19-day trial in Jacksonville, Florida. 5
The fact that Wells Fargo had prevailed in a “predecessor trial” in the same Court,
with a jury drawn from the same jury pool, was not the only risk that faced both Class
Counsel and the Class. Even had Plaintiffs prevailed on liability, the case would have
proceeded to a subsequent damages phase, raising potential uncertainty as to eventual
recovery. Moreover, the case was complex and highly-contested until the eve of trial. As
4
See, e.g., Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d 713 (11th Cir. 2012); Green
v. Nuveen Advisory Corp., 295 F.3d 738 (7th Cir. 2002); Geffon v. Micrion Corp., 249
F.3d 29 (1st Cir. 2001); Greebel v. FTP Software, Inc., 194 F.3d 185 (1st Cir. 1999);
Longman v. Food Lion, Inc., 197 F.3d 675 (4th Cir. 1999); Phillips v. LCI Int’l, Inc., 190
F.3d 609 (4th Cir. 1999); In re Comshare Inc. Sec. Litig., 183 F.3d 542 (6th Cir. 1999);
Levitin v. Painewebber, Inc., 159 F.3d 698 (2d Cir. 1998); Silver v. H&R Block, 105 F.3d
394 (8th Cir. 1997).
5
See also, e.g., Anixter v. Home-Stake Prod. Co., 77 F.3d 1215 (10th Cir. 1996) (Tenth
Circuit overturned securities fraud class action jury verdict for plaintiffs in case filed in
1973 and tried in 1988 on the basis of 1994 Supreme Court opinion); In re Apple
Computer Sec. Litig., No. C-84- 20148-(A)-JW, 1991 WL 238298 (N.D. Cal. Sept. 6,
1991) (verdict against two individual defendants, but court vacated judgment on motion
for judgment notwithstanding the verdict); Backman v. Polaroid Corp., 910 F.2d 10 (1st
Cir. 1990) (where the class won a substantial jury verdict and motion for judgment n.o.v.
was denied, on appeal the judgment was reversed and the case was dismissed – after 11
years of litigation); Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263 (2d Cir.
1979) (multimillion dollar judgment reversed after lengthy trial); Ward v. Succession of
Freeman, 854 F.2d 780 (5th Cir. 1988) (reversing plaintiffs’ jury verdict for securities
fraud).
11
a result, the Court had been compelled to make multiple rulings on several disputed
issues – which created a robust record from which Wells Fargo could have raised
appellate arguments in the event that Plaintiffs prevailed at trial.
3. The Complexity of the Litigation
Prosecution of any complex financial class action presents inherently complex and
novel issues. Even by the standards of financial class actions, this case was unusually
complex.
Courts have recognized the complexity of financial class actions in the context of
securities cases:
The benefit to the class must also be viewed in its relationship to the
complexity, magnitude, and novelty of the case. . . .
Despite years of litigation, the area of securities law has gained little
predictability. There are few “routine” or “simple” securities actions. Courts
are continually modifying and/or reversing prior decisions in an attempt to
interpret the securities law in such a way as to follow the spirit of the law
while adapting to new situations which arise. Indeed, many facets of
securities law have taken drastically new directions during the pendency of
this action. . . .
The complexity of a case is compounded when it is certified as a class
action. . . . Management of the case, in and of itself, is a monumental task
for counsel and the Court.
Miller v. Woodmoor Corp., Nos. 74-F-988, 76-F-567, 1978 WL 1146, at *4 (D. Colo.
Sept. 28, 1978); see also In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 632 (D. Colo.
1976) (securities litigation involves “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”).
12
The issues raised in this action were, if anything, more complex than in a
securities fraud case. Securities fraud plaintiffs have a wide body of reported law on
which to draw in prosecuting their claims, while there is only limited law addressing
securities lending claims.
This dynamic has been recognized in considering the
appropriate fee award: while “[t]he prosecution of any complex financial class action
presents inherently complex and novel legal issues…. counsel [in a securities lending
case] had only a limited body of law addressing securities lending claims to work with
here compared to the established corpus of securities fraud law, which is still considered
to be very intricate.” Bd. of Trustees of the Birmingham Retirement System v. Comerica
Bank, No. 09-cv-13201, Dkt. No. 137 at 14 (E.D. Mich. Dec. 27, 2013) (approving
plaintiffs’ counsel’s fee request in classwide settlement of securities lending claims.)
This case also posed unique questions relating to the financial markets as a whole
during the 2007-2008 time period. One of Wells Fargo’s primary defenses was that the
financial events of that time were unusual and unpredictable, while Plaintiffs argued that
Wells Fargo should have protected against the risk of a financial downturn and better
grasped the situation as it developed.
While Class Counsel believes it could have
challenged this defense, the body of law on these issues is limited and the historical
record remains fluid.
As a result, this case raised multiple specific, novel issues. These included, but
were not limited to, whether the jury would find that the 2007-2008 financial crisis was a
supervening event that caused Plaintiffs’ losses, the amount of risk appropriate for
13
securities lending cash collateral investments, the appropriate methods for managing such
risk, the point in time during 2007 at which prudent investment professionals should have
been aware of the risks to the structured finance market, the specific market for Lehman
notes during 2007 and 2008, and the appropriate measure of damages should a securities
lending program manager be found liable for the mismanagement of securities lending
cash collateral.
The case also required painstaking analysis of Wells Fargo’s own
complicated financial records.
Moreover, in its dogged efforts to secure the best result possible for the Class,
Class Counsel anticipated trying this complex case and was prepared to pursue the case
through trial and appeal. The preparations were undertaken with a full intention to
proceed to trial: jury selection was only days away when settlement talks resumed.
Presenting a lay jury with the legal and factual complexities present in this matter
compounded the challenges of trial preparation, requiring mock examinations, courtroom
assistants, jury consultants, visual presentations for the jury, and extensive pre-trial
motion practice. See Ex. A. These factors support the requested fee. See In re Airline
Ticket Commission Antitrust Litig., 953 F.Supp. 280, 285–86 (D. Minn. 1997) (one-third
fee warranted where counsel “retained nationally-known jury and courtroom
consultants…. outfitted the courtroom with computers and television and data
monitors…. appeared at more than 30 pretrial hearings, and underwent difficult and
protracted settlement negotiations while simultaneously preparing for trial.”)
In short, this factor weighs heavily in favor of Class Counsel’s request.
14
4. The Skill of the Lawyers on Both Sides
Class Counsel are nationally known leaders in the fields of investment class
actions and complex litigation. See Ex. A(1-3). The quality of the representation is
demonstrated by the substantial benefit achieved for the Class and the effective
prosecution and resolution of the action. It is also demonstrated by Class Counsel’s
willingness to pursue this case aggressively until settlement talks resulted in a settlement
literally the eve of a trial to which Counsel was prepared to proceed.
The quality of opposing counsel is also important when the court evaluates the
services rendered by plaintiffs’ counsel. Yarrington, supra. See also Warner Commc’ns,
618 F. Supp. at 749; King Res., 420 F. Supp. at 634; Arenson v. Bd. of Trade, 372 F.
Supp. 1349, 1351 (N.D. Ill. 1974). Defendant here was represented by Zelle, Hoffman,
Voelbel & Gette LLP and Munger, Tolles & Olson, LLP.
Both are well-known
throughout the United States, widely respected, and extremely capable counsel who
vigorously defended this action.
The ability of Class Counsel to obtain a favorable result for the Class in the face of
such formidable opposition further evidences the quality of their work.
5. The Time and Labor Involved
Class Counsel devoted significant time and effort to this case from its filing in
October 2010 in order to obtain the settlement for the benefit of the Class.
Class
Counsel’s efforts were intensive, carefully-coordinated, and efficient. Class Counsel and
other counsel for plaintiffs have committed over 81,262.75 attorney and professional
15
hours in the prosecution of this Litigation. The resulting “lodestar” is $35,463,665.45. 6
This exceeds the requested fee: 33-1/3% of $62,500,000 equals $20,833,333.
This lodestar cross-check further supports counsel’s request. The Eighth Circuit
has held that the review of the lodestar approach is “sometimes warranted to double
check the results of the percentage of the fund method.” Petrovic, 200 F.3d at 1157. At
the outset, such an analysis is done only as a cross-check, and “need entail neither
mathematical precision nor bean counting but instead is determined by considering the
unique circumstances of each case.” In re Xcel Energy, 364 F. Supp. 2d at 999. As part
of the cross-check, the lodestar is determined by multiplying the hours reasonably
expended on the case by a reasonable hourly rate. Petrovic, 200 F.3d at 1157. The
lodestar may then be increased by a multiplier, which “need not fall within any predefined range, as long as the court’s analysis justifies the award, such as when the
multiplier is in line with multipliers used in other cases.” In re Xcel Energy, 364 F. Supp.
2d at 999 (finding a multiplier of 4.7 reasonable (citing In re Rite Aid Corp. Sec. Litig.,
396 F.3d 294, 307 n.17 (3d Cir. 2005)); see, e.g., In re UnitedHealth Group Inc. PSLRA
Litig., 643 F. Supp. 2d 1094, 4406 (D. Minn. 2009) (retired Judge Rosenbaum found “a
multiplier of nearly 6.5 . . . appropriate under Grunin.”).
While a multiplier would be warranted here, no such analysis is necessary because
Counsel is requesting less than its lodestar, reflecting a fractional multiplier of .59. This
6
“Lodestar” equals the number of hours that each attorney worked on this litigation times
each attorney’s hourly rate. Each Class Counsel firm has submitted its lodestar, which
breaks the lodestar and hours down by each attorney in that firm. See Ex. A(1-3).
16
request is thus eminently reasonable. The reasonableness of Class Counsel’s fee request,
when considered with the risk of this litigation, its complexity, the benefits obtained for
the class in such a recovery, and the value of Class Counsel’s time, warrants approval of
Class Counsel’s request.
6. The Comparison Between the Requested Attorney Fee
Percentage and Percentages Awarded in Similar Cases
Class Counsel’s request for an award of attorneys’ fees is well within the range of
prior percentage awards made by many courts in this District and Circuit. “In the Eighth
Circuit, courts have routinely awarded attorney fees ranging from 25% to 36% of a
common fund under the percentage-of-the-fund method.” Yarrington, supra at 1061.
Where, as here, the case was complex and the recovery substantial, the requested fee is
especially merited. See, e.g., In re U.S. Bancorp Litig., 291 F.3d 1035, 1038 (8th
Cir.2002) (finding “no abuse of discretion in the district court's awarding 36% to class
counsel who obtained significant monetary relief on behalf of the class”); Jensen v.
Minnesota Dept. of Human Servs., Civil No. 09–1775 (DWF/FLN), 2011 WL 6178845,
at *2 (D. Minn. Dec. 5, 2011) (Frank, J.) (“The Court finds that a one-third contingent fee
is a fair and reasonable fee considering the complexity of the issues and the substantial
efforts of Settlement Class Counsel in this matter, and considering the significant benefits
the Settlement affords to the Class....”); In re Airline Ticket Commission Antitrust Litig.,
953 F.Supp. at 286 (one-third fees and costs awarded to plaintiffs’ counsel); Carlson v.
C.H. Robinson Worldwide, Inc., No. 02-3780, 2006 WL 2671105 (D. Minn. Sept. 18,
17
2006) (approving 35.5%); EEOC v. Fairbault Foods, Inc., No. 07-3976, 2008 WL
879999 (D. Minn. Mar. 28, 2008) (approving 36%).
E.
Class Counsel’s Expenses are Reasonable and Were Necessarily
Incurred to Achieve the Benefit Obtained
Class Counsel advanced significant unreimbursed expenses in the litigation. The
expenses incurred in this action were commercially reasonable and reflected on Class
Counsel’s books and records. These books and records are prepared from expense
vouchers, check records, and other source materials, and they represent an accurate
record of the expenses incurred.
Class Counsel are entitled to reimbursement for reasonable expenses advanced in
class litigation. Because the expenses here were incurred with no guarantee of recovery,
Class Counsel had a strong incentive to keep them at a reasonable level, and did so. The
expenses were essential to the successful development and prosecution of the case.
Accordingly, Class Counsel requests reimbursement of expenses incurred in connection
with the prosecution of this litigation.
Class Counsel have submitted separate
declarations in support of their expense request. See Exs. A(1-3). Class Counsel and
other counsel for plaintiffs have incurred expenses in the aggregate amount of
$2,064,548.45 in prosecuting this litigation. 7 The cash expenses incurred highlight the
high level of contingent risk faced by Class Counsel, with no assurance there would be a
recovery.
7
The Settlement Notice informed Class Members that Class Counsel would seek
reimbursement of expenses in an amount not to exceed $2.45 million. See Ex. B.
18
The appropriate analysis to apply in deciding which expenses are compensable in
a common fund case of this type 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 outof-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 Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8
F.3d 722, 725-26 (10th Cir. 1993) (expenses reimbursable if they would normally be
billed to client); Abrams v. Lightolier, Inc., 50 F.3d 1204, 1225 (3d Cir. 1995) (expenses
recoverable if customary to bill clients for them); 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.
Class Counsel incurred significant customary expenses
necessary to achieve the result obtained.
Class Counsel were required to travel
extensively in connection with this litigation, and thus incurred the related costs of meals,
lodging, and transportation. 8 Counsel in this case also traveled to appear before the
8
It is the policy of Class Counsel not to seek reimbursement for more than the cost of
coach fare tickets.
19
Court, for depositions spread across twelve states, to meet with experts, and to attend
mediation. Other expenses that were necessarily incurred in the prosecution of this
litigation include expenses for mediation fees, photocopying, filing and witness fees,
postage and overnight delivery, and telephone, computer, network, and telecopier
expenses.
A significant component of Class Counsel’s expenses is the cost of experts. Class
Counsel retained experts who consulted on structured finance, securities lending
collateral investment, and structured investment vehicles, as well as the appropriate
damage calculations. These experts included an eminent professor from Northwestern
University who was prepared to testify as to Defendant’s duties to the Class and its
management of the securities lending cash collateral, as well as one of the leading
financial industry structured finance professionals from the pre-2008 era. These experts
provided significant services on behalf of the Class and their expenses were necessarily
incurred for the successful prosecution of this litigation.
Expert testimony had the
potential to be especially salient in a case such as this, in which the jury would need to
consider complex financial issues regarding unique investments and market conditions.
Of course, a significant component of the costs in this case was the simple fact that
it proceeded until the eve of trial. This extended almost all of the customary expenses, as
the work on the case stretched over multiple years. Moreover, it imposed unique costs,
such as the expense of jury research and focus-group tested mock trial sessions under the
auspices of a well-respected jury consultant. It also required counsel to secure office
20
space for a trial “war room” adjacent to the courthouse, as well as housing for the nine
attorneys, in addition to staff, who relocated to St. Paul over the month preceding the
scheduled jury selection and who were prepared to remain throughout the duration of the
trial.
F. The Class Representatives are Entitled to Service Awards
Finally, Class Counsel notes the considerable efforts made by the two Class
Representatives – Farmington Hills and Arizona – on behalf of the Class. The Class
Representatives have been active, hands-on participants in this litigation, expending
significant amounts of their own time to benefit the Class. Accordingly, Class Counsel
seek a service award of $50,000 each for Farmington and Arizona (for a total of
$100,000) in recognition of their valuable service to the Class. “In the Eighth Circuit,
courts routinely approve service award payments to class representatives for their
assistance to a plaintiff class.” In re Uponor, Inc., F1807 Plumbing Fittings Products
Liability Litigation, No. 11–MD–2247 ADM/JJK, 2012 WL 2512750 at *11 (D. Minn.
June 29, 2012) (citing In re Xcel Energy, 364 F.Supp.2d at 1000) (awarding $100,000 for
eight lead plaintiffs in securities class action)) (additional citation omitted).
The
requested awards are consistent with those awarded in other securities lending cases.
See, e.g., AFTRA v. JP Morgan, 2012 WL 2064907, at *3 (awarding case contribution
awards of $50,000 to each named plaintiff in securities lending class action settlement
based on similar contributions); CompSource Oklahoma v. BNY Mellon, N.A., No. CIV
08–469–KEW, 2012 WL 6864701, *7 (E.D. Okla. Oct. 25, 2012) (same). They also are
21
in line with the awards in this Circuit and District. See, e.g., In re U.S. Bancorp
Litigation, 291 F.3d 1035, 1038 (8th Cir. 2002) ($10,000 award for $3.5 million
settlement, which as a proportion of the settlement exceeds request here); In re Zurn Pex
Plumbing Products Liability Litigation, No. 08–MDL–1958 ADM/AJB, 2013 WL
716460 at *2 (D. Minn. Feb. 27, 2013) (cases cited approve awards from $20,000 to
$102,000); In re Xcel Energy, 364 F.Supp.2d at 1000 ($100,000 award); Yarrington, 697
F.Supp.2d at 1069 (total service award of $20,000 from a $16,500,000 settlement is “at
the modest end of the spectrum…”); Zilhaver v. UnitedHealth Group, Inc., 646
F.Supp.2d 1075, 1085 (D. Minn. 2009) (total awards as a proportion of settlement exceed
proposed awards here).
This is not a case where the Class Representatives merely signed the Complaint
and then had little or no involvement. Rather, each Class Representative actively and
effectively fulfilled its obligations as a representative of the Class, complying with all
reasonable demands placed upon them during the prosecution and settlement of this
Action, and provided invaluable assistance to Class Counsel for over the course of their
respective involvement in the case.
The discovery obligations imposed on Class Representatives here were substantial.
Farmington Hills produced over approximately 100,000 pages of documents. These were
not centrally-located, but rather gleaned from the city’s extensive public records. A
30(b)(6) representative from Farmington Hills participated in extensive deposition
preparations and reviewed a broad range of documents before participating in a
22
deposition that lasted over two full days. Then, both Farmington’s outside advisor and
former plan administrator also were required to sit for depositions. Throughout this time,
the Farmington Board continued to actively monitor the litigation’s progress.
For
example, after the close of initial discovery, the Board met to consider settlement strategy
in advance of the July 2013 mediation session. Later, Farmington and its officials
became active participants in trial preparation, with one of its witnesses participating in
multiple testimony preparation sessions over several weeks, including a full mock cross
examination. Similarly, Farmington was required to coordinate with and prepare its
third-party service providers for the possibility that their representative would be called at
trial.
A Trustee from Farmington attended the March 2014 mediation session in
California, and Farmington board members remained closely involved in the final
settlement negotiations over the final week before the start of trial.
See Ex. C,
Declaration of Lauri Siskind; see also Ex. A.
Arizona’s involvement took place over a shorter period of time but was no less
intense – in fact, the strains imposed on Arizona were uniquely severe owing to their
condensed time period. As the Court is aware, Arizona’s participation in the case was
significant: on September 17, 2013, the Court partially decertified the case, removing
those class members governed by ERISA; Arizona’s involvement as a named plaintiff
was critical in that it allowed Plaintiffs to successfully move for the re-inclusion of these
program participants in the class.
23
Arizona’s officials formally initiated their case on October 11, 2013, having
consulted extensively with Class Counsel over the preceding weeks, and a motion for
leave to file the amended complaint adding Arizona as a named plaintiff having been
filed on October 4, 2013.
Since trial was only months away, Arizona engaged in
discovery in a condensed period, as it produced over 1,600 documents on an expedited
basis, and worked with its outside consultant, Marco Consulting, to provide additional
discovery. Over the next few weeks, its designee prepared for and sat for a 30(b)(6)
deposition, and its consultants at Marco—who had themselves produced over 3,200
documents – sat for a deposition as well. Then, as trial approached, Arizona remained
involved in critical strategic issues. For example, Arizona officials helped develop a
strategy for the March 2013 mediation session in advance of session, and communicated
with counsel throughout the day as the session proceeded. Arizona’s officials then
participated in trial preparation efforts, including intense discussions related to the
Plaintiffs’ requested trial plan – which could have resulted in an expedited presentation of
Arizona’s case. Finally, in the final week before the trial’s scheduled commencement,
Arizona officials were once again closely involved in the renewed settlement discussions
that ultimately resulted in the settlement on the eve of trial. See Ex. D, Declaration of
Mark Minter; see also Ex. A.
Finally, the Notice to the Class announced that Class Counsel would seek an
award for the Class Representatives. The Notice disseminated to the Class stated that the
Class Representatives may seek Case Contribution Awards of up to $50,000, to each
24
Farmington and Arizona, from the Settlement fund as compensation for the time and
expense they incurred. See GCG Affidavit at Exhibit B.
III.
CONCLUSION
For all of the foregoing reasons, Class Counsel respectfully request that the Court
approve Class Counsel’s application for attorneys’ fees and reimbursement of expenses
and request for Service Awards for Class Representatives.
Respectfully submitted,
By:/s/ E. Powell Miller
Telephone: (248) 841-2200
Facsimile: (248) 652-2852
epm@millerlawpc.com
ssa@millerlawpc.com
jeb@millerlawpc.com
cdk@millerlawpc.com
Kara M. Wolke (pro hac vice)
Leanne E. Heine (pro hac vice)
25
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
kevinruff@gmail.com
ZIMMERMAN REED, PLLP
Carolyn G. Anderson (MN 275712)
David M. Cialkowski (MN 306526)
Brian C. Gudmundson (MN 336695)
June P. Hoidal (MN 033330X)
Minneapolis, Minnesota 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
Carolyn.Anderson@zimmreed.com
David.Cialkowski@zimmreed.com
VanOVERBEKE MICHAUD &
TIMMONY P.C.
79 Alfred Street
Detroit, Michigan 48201
Telephone: (313) 578-1200
Facsimile: (313) 578-1201
tmichaud@vmtlaw.com
Attorneys for Plaintiff and the Class
26
CASE 0:10-cv-04372-DWF-JJG Document 672-1 Filed 07/10/14 Page 1 of 3
Plaintiffs,
vs.
Defendant.
L.R. 7.1 (f) WORD COUNT
COMPLIANCE CERTIFICATE
REGARDING PLAINTIFF’S MOTION
FOR ATTORNEYS’ FEES AND
COSTS AND CLASS
REPRESENTATIVE SERVICE
AWARDS
I, E. Powell Miller, hereby certify that, pursuant to D. Minn LR 7.1 (f), the abovereferenced Motion was prepared using Microsoft Word 2010 and that its text, exclusion
of the caption, signatures, tables, and certificates of counsel, if any, contains 6,619 words
according to the Microsoft Word automatic word count function, which has been
specifically applied to include all text, including headings, footnotes, and quotations.
I further certify that the above-referenced Motion has a typeface of 13 points in
Times New Roman and complies with D. Minn. LR 7.1(h).
/s/ E. Powell Miller
Telephone: (248) 841-2200
Fax: (248) 652-2852
epm@millerlawpc.com
ssa@millerlawpc.com
jeb@millerlawpc.com
cdk@millerlawpc.com
Kara Wolke (pro hac vice)
Leanne Heine (pro hac vice)
Los Angeles, CA 90067
Telephone: (310) 201 9150
Fax: (310) 201 9160
1
kevinruf@gmail.com
ZIMMERMAN REED, P.L.L.P.
David M. Cialkowski (State Bar No. 275712)
Carolyn G. Anderson (State Bar No. 275712)
Brian C. Gudmundson (State Bar No. 336695)
June Hoidal (State Bar No. 033330X)
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Fax: (612) 341-0844
David.cialkowski@zimmreed.com
Carolyn.anderson@zimmreed.com
VANOVERBEKE, MICHAUD & TIMMONY P.C.
79 Alfred Street
Detroit, MI 48201
Telephone: (313) 578-1200
Fax: (313) 578-1200
tmichaud@vmtlaw.com
THE WAGNER LAW FIRM
Avraham Noam Wagner (pro hac vice)
Telephone: (310) 491-7949
Fax: (310) 694-3967
avi@thewagnerfirm.com
ATTORNEYS FOR PLAINTIFFS AND THE
CLASS
2
DISTRICT OF MINNESOTA
Plaintiffs,
vs.
Court File No. 0:10-cv-04372-DWF-JJG
DECLARATION OF
CHRISTOPHER D. KAYE IN
SUPPORT OF PLAINTIFFS’
MOTION FOR ATTORNEYS’
FEES AND COSTS AND
CLASS REPRESENTATIVE
SERVICE AWARDS
WELLS FARGO BANK, N.A.,
Defendant.
I, Christopher D. Kaye, hereby declare:
1.
I am an attorney with The Miller Law Firm, P.C. in Rochester, Michigan,
counsel for Named Plaintiffs, The City of Farmington Hills Employees Retirement
System (“Farmington”) and The Board of Trustees of the Arizona State Carpenters
Pension Trust Fund and the Arizona State Carpenters Defined Contribution Trust Fund
(“Arizona Plaintiffs”), and the certified Class (collectively, “Plaintiffs”), and have been
admitted pro hac vice in this litigation.
2.
I submit this declaration in support of Plaintiffs’ Motion for Attorneys’ Fees
and Costs and Class Representative Service Awards. I have personal knowledge of the
facts herein, and if called to testify, could and would attest to their veracity.
3.
Attached are the following exhibits, which are referenced as Exhibits in the
above-referenced Motion and/or Memorandum of Law in Support thereof:
Exhibit A
Joint Declaration of E. Powell Miller and Peter Binkow
1
Declaration of The Miller Law Firm, P.C.
2
Declaration of Glancy Binkow & Goldberg LLP
3
Declaration of Zimmerman Reed, PLLP
Exhibit B
Declaration of Notice of Dissemination (“GCG Decl.”)
Exhibit C
Declaration of Lauri Siskind
Exhibit D
Declaration of Mark Minter
I declare under penalty of perjury under the laws of the United States of America
that the foregoing statements are true and correct. Executed this 10th day of July, 2014 in
Rochester, Michigan.
/s/ Christopher D. Kaye
EXHIBIT A
THE CITY OF FARMINGTON
HILLS EMPLOYEES
RETIREMENT SYSTEM AND THE
BOARD OF TRUSTEES OF THE
DEFINED CONTRIBUTION
TRUST FUND, Individually and on
Behalf of All Others Similarly
Situated,
Court File No. 0:10-cv-04372-DWF/JJG
Plaintiffs,
vs.
Defendant.
JOINT DECLARATION OF E. POWELL MILLER AND PETER A.
BINKOW IN SUPPORT OF THE FINAL APPROVAL OF THE
SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND
EXPENSES
We, E. POWELL MILLER and PETER A. BINKOW, do hereby state, under the
penalties of perjury, as follows:
1.
We are partners, respectively, in the law firms of The Miller Law Firm,
P.C. (“Miller Firm”), and Glancy Binkow & Goldberg, LLP (“Glancy Binkow”), which
together with the law firms of Zimmerman Reed, and VanOverbeke Michaud &
Timmony P.C., (“VanOverbeke”) serve as counsel (“Plaintiffs’ Counsel” or “Class
Counsel”) for Class Representatives, the City of Farmington Hills Employees Retirement
1
System (“Farmington”), the Board of Trustees of the Arizona Carpenters Pension Trust
Fund, and the Arizona Carpenters Defined Contribution Trust Fund (“Arizona”), and the
certified class (the “ Class”) in this case.
2.
This declaration is submitted (i) in support of final approval of the proposed
settlement (the “Settlement”) of this class action (the “Action”), resolving all of the
claims alleged against the Defendant Wells Fargo; and (ii) in support of Class Counsel’s
application for an award of fees in the amount of 33-1/3% of $62.5 million, expenses in
the amount of $2.45 million, and a service award of $50,000 to each of the Class
Representatives, Farmington and Arizona Carpenters, for a total of $100,000 in service
awards.
3.
We have personal knowledge of all material matters related to the Action 1
based upon our active supervision and participation in the prosecution of this Action
since its inception. Unless otherwise indicated, the statements in this declaration are
made based on our personal knowledge.
4.
Each of us has significant experience litigating class actions and other
complex litigation throughout the United States. In our opinion, we have achieved an
outstanding result on behalf of the Settlement Class. After almost three and a half years
of hard-fought litigation, two days of intensive, arms’-length negotiations in mediation
sessions before a retired federal judge, the Honorable Layn Phillips (“Judge Phillips”), as
well as substantial additional negotiations facilitated by Judge Phillips, on April 12, 2014,
1
Unless specified herein, terms have the same definitions as set forth in the Settlement
Agreement.
2
only two days before the Parties were scheduled to select the jury for trial in this Action,
Wells Fargo agreed to pay $62,500,000 to resolve the claims brought against it in this
litigation. Following the Court’s order granting preliminary approval of the Settlement,
Wells Fargo deposited $62,500,000 into the Settlement Escrow Account on June 24,
2014.
5.
This Settlement confers a guaranteed, immediate, and tangible benefit to
each Class Member and avoids the risks and expense of continued litigation. By contrast,
the risks of continued litigation are reflected in the jury verdict and Court ruling in favor
of Wells Fargo in Blue Cross last summer. Based upon our in-depth knowledge of the
strengths and weaknesses of the Class’ case that was gained through extensive litigation
and trial preparation, as detail herein, we believe that the Settlement confers a reasonable
compromise and outstanding result for the Class.
Moreover, both of the Class
Representatives have approved of and support both the Settlement, as well as Class
Counsel’s motion for attorneys’ fees.
6.
In addition to seeking final approval of the Settlement, Plaintiffs seek
approval of the proposed Plan of Allocation as fair and reasonable. To prepare the Plan of
Allocation and to apportion the Settlement Amount among Class Members, Class
Counsel consulted with their expert in the areas of economics and damages. The Plan
allocates different Recognized Losses to Class Members based on either (1) for Class
Members who have exited Wells Fargo’s Securities Lending Program (the “Program” or
“SLP”) prior to the Effective Date, their unrealized plus realized losses at the time of exit
augmented by 25% of their applicable Program fees; or (2) for Class members who
3
remain in Wells Fargo’s SLP as of the Effective Date, their realized plus unrealized
losses as of the Effective Date augmented by 25% of their applicable Program fees.
Pursuant to the Plan of Allocation, the Settlement Amount plus interest accrued (after
deduction of Court-approved expenses and attorneys’ fees) will be distributed on a pro
rata basis to members of the Settlement Class, pursuant to the terms set forth in the
Settlement Agreement.
7.
The Parties executed a Settlement Agreement on May 28, 2014. The Court
preliminarily approved the Settlement on June 5, 2014. Counsel for the Parties
subsequently caused notice of the proposed Settlement and its terms to be mailed to the
Class pursuant to the terms of the Preliminary Approval Order on June 12, 2014.
I. HISTORY OF THE LITIGATION
8.
On October 15, 2010, a putative class action captioned City of Farmington
Hills Employees Retirement System v. Wells Fargo Bank N.A. was filed in Minnesota
District Court for the Fourth Judicial District, Hennepin County, Minnesota. On October
10, 2015, Farmington served that Class Action Complaint on Wells Fargo. The complaint
asserted the following six claims against Wells Fargo: (1) breach of fiduciary duty; (2)
breach of contract; (3) violation of the Minnesota Consumer Fraud Act (“MCFA”); (4)
violation of the Minnesota Unlawful Trade Practices Act (“UTPA”); (5) violation of the
Minnesota Deceptive Trade Practices Act (“DTPA”); and (6) civil theft. On October 26,
2010, pursuant to 28 U.S.C. 1332(a),Wells Fargo removed the Action to the District of
Minnesota.
4
9.
The gravamen of this Action alleges that: Wells Fargo breached its
fiduciary and contractual duties to the Class by investing the Class’ collateral assets in
investments which were too risky in light of the SLP’s promised minimal risk profile. In
particular, Plaintiffs allege that by 2006, Wells Fargo was aware of the growing crisis in
the subprime mortgage sector and knew, or was negligent in not knowing, that many
SIVs, in particular Cheyne, Victoria, and Whistlejacket, had significant exposure to
subprime assets. Moreover, Plaintiffs allege that Wells Fargo should have divested of its
investments in Lehman and that Wells Fargo had numerous opportunities to divest in
Lehman at full price, or nearly full price, prior to Lehman’s bankruptcy in September
2008. Plaintiffs allege that, had Wells Fargo properly managed the SLP, then the Class
would not have suffered any losses.
10.
As detailed herein, after preparing the initial Rule 26 reports and the initial
pre-trial conference, Farmington initiated discovery in earnest and began to review the
transcripts from the WCRA trial.
11.
On September 23, 2011, Farmington filed a Motion for Class Certification.
Following extensive briefing, the Court held oral argument on January 20, 2012.
The
Court granted the motion on March 27, 2012, certifying a class to litigate the breach of
fiduciary duty, breach of contract and Minnesota Consumer Fraud Act claims, appointing
Farmington as the Class Representative, and appointing the Miller Firm, Glancy Binkow,
Zimmerman Reed, and VanOverbeke as Class Counsel. The certified Class was defined
as: “All participants in Defendant Wells Fargo Bank, N.A.’s securities lending program
(the ‘Program’) from any time in the period January 1, 2006 to the present who suffered
5
losses due to the Program’s purchase and maintenance of high risk, long-term securities,”
and the Court ordered notice be disseminated to the Class Members. Dkt No. 120.
12.
On April 10, 2012, Wells Fargo filed a petition in the Eighth Circuit for
permission pursuant to Federal Rules of Civil Procedure section 23(f) to appeal the Order
granting Class Certification. Plaintiffs filed their answer to the petition on April 20, 2012,
and the Eighth Circuit issued its Order denying the petition on May 7, 2012.
13.
After both sides briefed and argued to the Court the form of the Class
Notice, on May 25, 2012, the Court determined the form of Notice and ordered Notice to
be disseminated. Dkt No. 154. On June 1, 2012, the Garden City Group (“GCG”)
mailed Notice to approximately 137 potential Class members. Thereafter, Wells Fargo
identified approximately ten additional Class members and by Order dated September 11,
2012, the Court ordered Notice to be disseminated to those additional Class Members.
Dkt No. 225. See also Dkt. No. 221. GCG mailed Notice to those Class members on
September 20, 2012.
14.
Before and during the pendency of the action, counsel engaged in
substantial, aggressive, and labor-intensive investigation and discovery. Prior to filing
the complaint, Class Counsel engaged in a thorough investigation of material related to
Wells Fargo’s Securities Lending Program; securities lending in general; the nuances of
the types of investments that were problematic and at issue here, such as structured
investment vehicles (SIVs); and the specific securities at issue in the case.
15.
As the Court is well aware, the subject matter of this litigation focused, in
part, upon Wells Fargo’s investment of the Class’ collateral assets into securities issued
6
by SIVs, in particular Cheyne, Victoria and Whistlejacket. To understand this claim,
Class Counsel had to understand not only the structure of SIVs themselves, but also
understand the investment made by those SIVs into other categories of complex
investments, including Monoline Insurance, Residential Mortgage Backed Securities
(“RMBS”), Collateralized Debt Obligations (“CDOs”), and many others which had
exposure to subprime mortgages during 2006-2008. This inquiry required Class Counsel
to study sometimes difficult-to-access sources, including books, treatises, and articles
regarding these subjects and also to confer extensively with experts in these fields. Class
Counsel thoroughly analyzed and synthesized this information not only to conduct
discovery but also to prepare this case for trial. Indeed, as the Court and the Parties saw
during the Blue Cross trial during the summer of 2013, if this case proceeded to trial,
Class Counsel would face the significant challenge of explaining these concepts to a lay
jury.
16.
Starting in March of 2011, and continuing until just a month before the
scheduled trial start date, counsel aggressively sought discovery from Wells Fargo.
Documents from various sources continued being delivered until at least March 3, 2014.
As part of the process, Class Counsel propounded multiple sets of interrogatories, 91
requests for production, and 27 requests to admit.
17.
These came on top of the extensive body of discovery from the previous
Workers’ Compensation Reinsurance Association, Minnesota Medical Foundation, The
Minneapolis Foundation, and Robins Kaplan Miller & Ciresi Foundation for Children v.
Wells Fargo Bank, N.A., et al., 62-CV-08-10825 (“WCRA”) and COPIC Insurance
7
Company v. Wells Fargo & Company, et. al, 09-CV-00041 (“COPIC”), and the ongoing
(for much of the case) Blue Cross and Blue Shield of Minnesota, et. al. v. Wells Fargo
Bank, N.A., 11-CV-2529 (“Blue Cross”) and Securian Financial Group, Inc., Securian
Holding Company, and Minnesota Life Insurance Company v. Wells Fargo Bank, N.A.,
11-CV-02957 (“Securian”) cases, all of which required careful review.
18.
As a result, document review and production was unusually voluminous in
this case. By the time discovery was complete, Class Counsel had produced and/or
reviewed over approximately 7,000,000 pages of documents.
Including documents
related to previous cases and additional documents unique to this case, Wells Fargo
produced approximately 6,800,000 pages. Much of this consisted of complex financial
documentation, including extensive native-formatted data that required expert analysis.
Plaintiffs produced more than approximately 130,000 pages. Of course, countless more
documents required review in order to isolate responsive materials, which, in the case of
Farmington, required the painstaking hand-over-hand assessment of the municipality’s
extensive body of hard-copy public records and included extensive manual scanning. In
addition, third parties produced more than approximately 135,000 pages. Once again,
much of this consisted of information-dense financial records.
19.
depositions.
Class Counsel took, defended, and/or had access to more than 90
Counsel deposed at least twenty of Wells Fargo’s current or former
employees or third-party service providers and deposed Wells Fargo’s four proffered
experts. In addition, Counsel defended seventeen depositions. Three of these were of
Plaintiffs’ experts. Moreover, although Plaintiffs had argued strenuously against such
8
depositions, Wells Fargo was permitted to depose ten absent Class Members. In order to
defend these absent Class Member depositions, Class Counsel was required to become
familiar with the specifics of each deposed Class Member and to prepare a representative
of each Class Member for deposition. Moreover, the ten absent Class Members are
located in multiple states throughout the country, requiring depositions in Colorado,
Utah, Nebraska, Wisconsin, California, New York, Ohio, Montana, and Texas. All of
this was added to more than thirty depositions that Counsel reviewed from previous
litigations. In total, these depositions resulted in approximately 22,725 pages of recorded
testimony and the inclusion of approximately 2,399 exhibits.
20.
This deposition testimony came in addition to the extensive trial testimony
that required review. During the early preparation phase, Class Counsel reviewed the
5,677 page WCRA trial transcript.
21.
Class Counsel faced numerous discovery-related disputes. In total, the
Parties filed several discovery-related motions, including motions under the Court’s
Informal Dispute Resolution (“IDR”) process as well as formal motions.
Disputes
included the appropriate scope of Wells Fargo’s production regarding class-wide
damages and Plaintiffs’ efforts to protect absent class members from Wells Fargo’s
proposed discovery of them. Counsel attended numerous IDR conferences either in
chambers. In addition, each conference was preceded by often-extensive meet-and-confer
efforts.
22.
On November 2, 2012, Farmington filed a First Amended Class Action
Complaint (the “FAC”). The FAC asserted the same claims against Wells Fargo as the
9
Class Action Complaint but also asserted a claim for punitive damages pursuant to Minn.
Stat. §§ 549.191 and 549.20.
23.
Over the last several months of 2012, Class Counsel consulted extensively
with Plaintiffs’ three experts to continue to develop the case. Among these experts was
Professor Bernard Black, the Nicholas J. Chabraja Professor at Northwestern University.
Professor Black holds positions as Professor of Law in the Northwestern University
School of Law, Professor of Finance in the Kellogg School of Management, and Faculty
Associate at the Institute for Policy Research. Professor Black has taught courses on
several subjects, including corporations and capital market regulations, and is widelypublished on issues including the scope and nature of various fiduciary obligations.
Another retained expert was Fiachra O’Driscoll, a former managing director at Credit
Suisse with extensive industry knowledge of structured finance generally and structured
investment vehicles, or “SIVs,” specifically. Plaintiffs’ third expert was Frank Torchio,
who calculated and consulted on the amount of losses which each Class member suffered,
and what the appropriate measure of damages might be.
24.
Plaintiffs propounded three expert reports totaling 563 pages. Given the
complexity and scope of the issues and investments in this case, it was imperative that
Plaintiffs retain experts on investing, management of pooled investments, SIVs, fixed
income investments, and damages. Professor Black opined upon Wells Fargo’s breaches
of fiduciary duty in running its SLP. Mr. O’Driscoll opined upon Wells Fargo’s breaches
of fiduciary duty, in particular detailing Wells Fargo’s failure to recognize and properly
respond to events in the market relating to SIVs and Lehman. Mr. Torchio’s report
10
included
substantial
computation
of
Class-Member-by-Class-Member
losses,
painstakingly created from voluminous account information produced by Wells Fargo.
25.
Likewise, Defendant provided four expert reports with a total of 720 pages.
Myron Glucksman, a longtime financial professional with extensive Wall Street
experience, analyzed the investments at issue in the case and provided a generallyfavorable assessment of them. John Peavy, a financial consultant, former professor, and
fellow at Texas Christian University offered a favorable appraisal of Wells Fargo’s
collateral investment decisions.
Charles Porten, a professor at Purdue University,
favorably assessed the Program’s management and practices.
Economist John
McConnell provided a damages analysis under which the Class’s losses were minimal.
26.
Each side deposed each of the other side’s experts over the course of the
winter and spring of 2013. Defendant deposed Plaintiffs’ experts in New York, NY,
Rochester, NY and Chicago, IL. Plaintiffs deposed Defendant’s experts in New York,
NY, and Minneapolis, MN.
Preparation to depose Defendant’s experts required not
only careful review of Wells Fargo’s expert reports and the record, but also of related
materials, including articles and books, and consultation with Plaintiffs’ experts.
27.
On April 5, 2013, Wells Fargo moved for full decertification of the Class.
Wells Fargo attacked the class on many fronts, including that: (1) Farmington was not a
typical or adequate Class Representative; (2) recent Supreme Court precedent in Comcast
Corp. v. Behrend, 133 S.Ct. 1426 (2013) required decertification under Rule 23(b)(3); (3)
entities who participated in the Securities Lending Program outside of the Business Trust
should be excluded from the Class; and (4) the ERISA Class Members should be
11
decertified because the certified claims were preempted by ERISA, and that Farmington,
which is not governed by ERISA, lacked typicality and adequacy as to the ERISA Class
Members.
28.
Simultaneously with Wells Fargo’s Motion for decertification, the Parties
brought cross motions for summary judgment. Farmington moved for partial summary
judgment on a number of Wells Fargo’s Affirmative Defenses. In support of its motion
for summary judgment, Wells Fargo again argued ERISA preemption. Wells Fargo also
argued that Farmington could not establish the elements of its civil theft, DTPA, UTPA,
and MCFA claims. Finally, Wells Fargo argued that Farmington could not establish its
core claim: loss resulting from a breach of fiduciary duty. Significantly, and again after
substantial briefing and oral argument, the Court denied Wells Fargo’s motion for
summary judgment as to Farmington’s breach of fiduciary duty, MCFA, DTPA, and
UTPA claims.
29.
Also on April 5, 2013, Class Counsel filed a Motion to Exclude the Reports
and Testimony of Defendant’s Proposed Experts arguing that the experts’ reports and
exhibits did not meet the reliability requirements of the Federal Rules of Evidence. The
Parties argued their respective motions – for decertification, summary judgment, and
expert exclusion – on May 17, 2013.
30.
Over the summer of 2013, while the motions were pending, Class Counsel
continued its preparation for trial and exploration of settlement. During the then-pending
Blue Cross trial, Plaintiffs’ counsel attended the daily sessions over their five-week
duration. Counsel also carefully reviewed the 7,391 page transcript, both during the trial
12
as each day’s record became available, and after the trial’s conclusion (in Wells Fargo’s
favor) to ensure a thorough understanding of the strengths and weaknesses of both sides.
31.
On July 18, 2013, during the pendency of the Blue Cross trial, the Parties
participated in a full-day mediation session with Judge Phillips. Extensive preparations
were conducted by Counsel in the weeks before the mediation occurred, which included
providing Judge Phillips with a mediation brief demonstrating Plaintiffs’ litigation
positions, providing exhibits in support of those positions, and including a review of the
Blue Cross trial testimony. Although this session was conducted in earnest, it did not
result in a settlement.
32.
In the late summer of 2013, Class Counsel began to hold a series of
frequent, several-days-long trial preparation sessions. These sessions, held at various
locations across the United States, afforded counsel the opportunity to analyze the case’s
legal and factual issues in an intense, immersive environment, as well as plan trial
strategy, logistics, and tactics.
33.
On September 17, 2013, the Court issued its Memorandum Opinion and
Order on the cross Motions for Summary Judgment, Wells Fargo’s motion for
decertification, and Plaintiffs’ motion to exclude certain of Wells Fargo’s experts. The
Court granted Wells Fargo’s decertification motion with respect to ERISA entities, but
otherwise denied Wells Fargo’s motion for decertification. Additionally, the Court
partially granted and partially denied each side’s summary disposition motions, and
denied Plaintiff’s motion to exclude certain of Wells Fargo’s proposed experts. Dkt. No.
386.
13
34.
On October 4, 2013, in response to the ERISA Class Members’ exclusion
from the Class, Farmington moved to file a Second Amended Complaint and add an
additional Class Representative. The Second Amended Complaint (“SAC”) included the
same six counts as those in the FAC and added as a named Plaintiff the Arizona
Plaintiffs. All Named Plaintiffs asserted their claims on behalf of “all the ERISA entities
that were decertified by the Court.” Pursuant to the Parties’ agreement, the SAC was
filed on October 11, 2013.
35.
On November 5, 2013, Wells Fargo again contested the certification ruling
when it moved for reconsideration of the Court’s Decertification Order as it related to the
Class Members who participated in the Program through accounts outside the Business
Trust.
36.
On December 10, 2013, the Court heard oral argument on both pending
motions – Plaintiffs’ for Arizona’s addition as an ERISA class representative, and Wells
Fargo’s for reconsideration of the Court’s refusal to decertify as to the non-Business
Trust Class Members.
37.
After thorough briefing and oral argument, the Court denied the
reconsideration motion on January 14, 2014 and granted Plaintiffs’ motion to add
Arizona as a lass representative, adding it as a representative of an ERISA subclass.
38.
Arizona-related discovery, which had already begun, proceeded on an
expedited schedule. Arizona produced over 1,600 documents to Defendant. Class
Counsel received Wells Fargo’s Notice of Taking Deposition on January 16, 2014, and
through diligent effort defended Arizona’s deposition just 20 days later, on February 5,
14
2014. Also on January 16, 2014, Counsel received notice that Wells Fargo would depose
Arizona’s consultant Marco Consulting Group on February 18, 2014. Counsel was
therefore ready to defend Marco’s deposition on short notice as well.
39.
Class Counsel continued and intensified their considerable pre-trial efforts.
Over the months preceding the scheduled trial, counsel engaged in numerous mock
examinations and trial presentations, including several for mock jurors and focus group
participants. These included multiple sessions with over 30 mock Minnesota jurors under
the auspices of a well-respected local jury consultant.
40.
In advance of trial, Class Counsel also engaged in extensive pretrial written
and oral advocacy. Plaintiffs filed eleven motions in limine and opposed Wells Fargo’s
twelve motions in limine. Other pre-trial filings included briefing submitted by both
Parties regarding differing proposed damages methodologies, the structure of the classwide trial, the use of a trifurcated procedure, and Plaintiffs’ subsequent motion to modify
the trial plan. Substantial additional written advocacy was exchanged between and
negotiated by the Parties, including proposed jury instructions and the statements of the
case.
41.
Class Counsel also expended considerable efforts preparing for voir dire
and opening statements, performing mock percipient and expert witness testimony, and
preparing trial exhibits and demonstratives. Further, in mid-March 2014, nine attorneys
from Class Counsel’s out-of-town firms moved to St. Paul in anticipation of the April
14th trial start date, with the expectation of remaining on site for several months.
15
42.
On March 11, 2014, the Parties engaged in a second mediation session,
again with the assistance of Judge Phillips. Significant progress was made but no
resolution was reached. Plaintiffs opted to continue to trial instead of accepting an offer
that Class Counsel and the Class Representatives did not believe was in the Class’s best
interest at the time.
43.
Judge Phillips continued to negotiate through telephone and email. On
April 12, 2014, the Parties were offered a “double-blind” proposal. The Parties
considered the proposal confidentially, and reached an agreement consistent with the
proposal. The Parties agreed in principle to a settlement on the Saturday afternoon
preceding the scheduled Monday-morning jury selection.
44.
On May 28, 2014, Class Counsel filed a motion for preliminary approval of
the Settlement. The Court entered the Preliminary Approval Order on June 5, 2014: (i)
preliminarily approving the Settlement; (ii) setting August 14, 2014 for a final hearing for
purposes of considering final approval of the Settlement; (iii) approving the form of the
Notice of Pendency of Class Action, Stipulation of Settlement, Settlement hearing and
Right to Appear (the “Notice”); and (iv) ordering the Parties to disseminate the Notice to
the Class. Notice was subsequently disseminated pursuant to the Preliminary Approval
Order.
THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE
45.
Plaintiffs believe they could well have prevailed on the merits of their
claims against Defendant. Defendant was just as adamant that Plaintiffs would fail.
Having considered the foregoing, and evaluating Defendant’s defenses, it is the informed
16
judgment of Class Counsel, based upon all proceedings to date and their extensive
experience in litigating class actions, that the proposed $62.5 million Settlement is fair,
reasonable and adequate, and in the best interests of the Class. Indeed, Class Counsel
submit that the Settlement is exceptional under all the circumstances. At minimum, the
Settlement appropriately balances the risks, costs, and delay inherent in complex cases,
falls within the range of reasonableness, and warrants approval.
46.
Class Counsel’s endorsement of the Settlement is informed by the thorough
understanding of the strengths and weaknesses of the claims and defenses in the Action
gained through their extensive and rigorous prosecution of this matter, as described
above. Class Counsel additionally considered: (a) the tangible benefit to Class Members
under the terms of the Settlement; (b) the difficulties and risks involved in proving the
allegations of the Complaint; (c) the difficulties and risks involved in proving the
complex claims, such as the prudence of Wells Fargo’s investment decisions, and
whether the alleged breaches caused the Class’ losses; (e) the probability that if the Class
won a favorable verdict, that Wells Fargo would appeal any judgment; (f) the delays
inherent in such litigation, including appeals; and (g) the uncertainty in Plaintiffs’ theory
of damages, even assuming that Plaintiffs could establish Defendant’s liability.
47.
Financial class actions are by their nature legally and factually complex and
difficult. This case was exceedingly so. The financial companies and investments at the
heart of this lawsuit – SIVs and the securities which SIVs invested in – are complex and
esoteric. Defendant also raised a host of complex factual and legal challenges increasing
the uncertainty of a favorable outcome absent settlement.
17
48.
For example, Wells Fargo maintained that the global financial crisis was
the actual cause of all (if not most) of the losses suffered by Class. Specifically, Wells
Fargo argued that the complained-of losses in SIVs were the result of a sudden liquidity
freeze, which, Defendant maintains, no one predicted. Indeed, Wells Fargo argued that
the ratings agencies continued to rate SIV issued securities as AAA up until the point
when the SIV market froze.
49.
Similarly, Wells Fargo pointed out that analysts and well-known market
professionals believed that Lehman would not declare bankruptcy and would instead be
bought by another company, in the manner that Bear Stearns was purchased, or rescued
by the federal government.
50.
Inevitably, some of the disputed issues at trial may have come down to a
“battle of the experts.” This battle would be difficult for the jury to follow, as experts
would attempt to explain complex financial concepts and terms, and then to convince the
jury that Wells Fargo should have acted differently.
51.
In addition, as the Court is aware, Wells Fargo hotly disputed the
methodology of Plaintiffs’ calculation of the amount of damages suffered by the Class.
Wells Fargo claimed that many of the impaired securities actually paid off better than
expected, and therefore the Class suffered far lower damages than claimed by Plaintiffs.
Although Plaintiffs are confident that their method of calculating damages is more
appropriate and that Class Counsel could have convinced the jury to adopt Plaintiffs’
methodology, it remained possible that Plaintiffs could have won a favorable liability
18
verdict, but that the jury could have awarded much lower damages than sought by the
Class.
52.
In agreeing to the terms of the Settlement, Plaintiffs and Class Counsel
weighed the foregoing risks, expense, and delay, against the magnitude of the benefits –
the $62.5 million Settlement. In light of such risks, expense, and delay, Plaintiffs and
Class Counsel believe that this Settlement represents a truly outstanding and exceptional
recovery.
THE PLAN OF ALLOCATION IS FAIR AND SHOULD BE APPROVED
53.
The Parties have negotiated a Plan of Allocation of settlement proceeds that
reflects Plaintiffs’ damage theory of the case in a simple and straightforward manner, will
result in a fair distribution of the available proceeds among Class Members, and which
protects Defendant’s interest in the orderly conclusion of its Securities Lending Program,
the end of which is independent of this settlement.
54.
This Plan of Allocation was submitted to the Court at the time that
Plaintiffs moved for preliminary approval and was generally described in and attached to
the notice sent to each Class Member. In addition, each such notice included an estimate
of the respective Class Members’ gross allocation – i.e., its estimated proportional share
under the Plan of Allocation of the Gross Settlement Fund. Accordingly, the Plan of
Allocation and its estimated individual effect were made part of the Notice propounded to
the Class.
55.
Nearly all Class Members had suffered losses due to the securities lending
collateral that they effectively owned: some suffered losses stemming from individual
19
collateral accounts maintained throughout their participation in the program, and some
from their pro rata share of disaggregated commingled pools. These losses consisted of
realized and unrealized losses. These losses are calculated based upon Wells Fargo’s
books and records.
For Class Members who have exited the program prior to the
Effective Date, the losses are determined as of the time of their exit. For those Class
Members who remain in the Program as of the Effective Date, the losses are calculated as
of the Effective Date of the settlement. In addition, Plaintiffs had argued that all Class
Members were entitled to a return of at least a portion of the Program fees paid to Wells
Fargo during the Class Period.
56.
Each Class Member’s “Recognized Loss” under the Plan of Allocation is
the loss sustained at exit or the Effective Date, augmented by the equivalent of one
quarter of such fees paid to Wells Fargo. Each Class Member’s allocation from the Net
Settlement Fund with be in the same proportion as the ratio of its Recognized Loss to the
total Recognized Loss.
57.
Those Class Members who have already exited the Program paid their
collateral shortfall during the exit process and will therefore receive their allocation in
cash. Those Class Members who remain in the Securities Lending Program will be
required to cover the collateral shortfall upon the Program’s cessation, which is occurring
independently of this settlement. These Class Members’ distributions from the Net
Settlement Fund will function as an “account credit” to offset the amount of money they
must pay to exit the Program.
20
II. CLASS COUNSEL’S APPLICATION FOR ATTORNEYS’ FEES AND
EXPENSES
58.
The Notice mailed to the Class stated that Class Counsel would apply for
attorneys’ fees not to exceed the amount of $20,833,333, out of the $62.5 million
Settlement, and reimbursement of incurred expenses not to exceed $2.45 million
59.
As compensation for their efforts on behalf of the Class in achieving this
Settlement, Class Counsel has respectfully requested that this Court award counsel and
attorneys’ fees of $20,833,333.33, which is 33-1/3% of the $62,500,000 settlement, and
expenses in the amount of $2,064,548.45.
60.
In prosecuting this action for more than three and a half years, Class
Counsel collectively expended 81,262.75 hours of time, resulting in a lodestar of at least
$35,463,665.45. See Exhibits 1-3. The total requested fee, therefore is far less than Class
Counsel’s lodestar and yields a .59 multiplier with respect to Class Counsel’s lodestar.
Class Counsel also has incurred to date $2,064,548.45 in expenses in litigating this case.
See Exhibits 1-3.
61.
Class Counsel have extensive experience litigating complex securities fraud
actions, have achieved significant acclaim for their work, and maintain impeccable
professional credentials. See Exhibits 1-3.
62.
To date, Class Counsel has received no compensation for its efforts in this
action, which was undertaken on a wholly contingent basis.
63.
Counsel assumed tremendous risk in undertaking this litigation on a
contingent fee basis. Counsel funded the litigation and mediation, even though success
21
was far from certain and with the knowledge that counsel alone bore the risk of recovery
inherent in litigation. Counsel also personally advanced over $2 million to vindicate the
rights of the class as set forth above, vigorously advocating for the relief sought and
ultimately achieved.
III.
REQUEST FOR SERVICE AWARD FOR CLASS REPRESENTATIVES
64.
Class Counsel has also requested a Service Award in the amount of
$50,000 be awarded to each Farmington Hills and Arizona Carpenters (for a total of
$100,000) for their services as Class Representatives. The City of Farmington Hills and
Arizona Carpenters are the only named representatives in the Action, bearing in full the
attendant risks of service in that role, including the risk of lengthy and costly litigation
and the risk that, despite their time, effort, and initiative, no benefit would be achieved
for participants like themselves.
65.
Farmington Hills’s concerns spurred the filing of the Action, Arizona
Carpenters’ initiative was necessary for the ERISA-governed Class Members to share in
the Class’s recovery, and their diligence and commitment to securing the best possible
outcome for all Class Members ultimately resulted in the Settlement Agreement under
review here. Initially, Farmington was the only entity which sought to represent the
Class. Moreover, after the Court decertified the ERISA entities, if Arizona had not
stepped forward to represent the ERISA subclass, those ERISA Class Members would
not receive any recovery in this Action.
66.
Throughout the Action, the Class Representatives have consistently acted to
protect fellow participants and to address the concerns outlined in the Complaint. The
22
Class Representatives spent numerous hours reviewing case documents and consulting
with Counsel, and were involved in each step of the Action.
67.
Class Counsel worked extensively with Farmington to investigate this case
prior to the Complaint’s filing, and kept in frequent contact with Farmington’s officials
throughout the litigation. Class Counsel worked extensively with Farmington’s officials
to collect and analyze Farmington’s substantial body of hard-copy and electronic records
for potential production, and spent significant time preparing Farmington’s 30(b)(6)
designee, as well as other Farmington-related individuals, for their respective depositions.
Farmington officials remained closely involved in settlement negotiations, participating
in mediation and providing significant guidance during the final negotiations in April
2014. They also provided important input on trial presentation issues and took part in
trial preparation activities during the final lead-up to the scheduled April 14, 2014 trial.
68.
Class Counsel also worked closely and extensively with Arizona. Arizona,
its officials, and its outside advisors worked with Class Counsel to develop a strategy for
seeking to enter the case during the pendency of Wells Fargo’s motion to decertify the
ERISA members from the Class. Upon becoming involved in the case, Arizona began
the process of compiling documents for what would surely be an expedited discovery
process in light of the fast-approaching trial date. After the SAC’s filing, Class Counsel
began preparing prompt responses to Wells Fargo’s discovery requests, and in the early
months of 2014 completed document production, scheduled, prepared for, and defended
both a 30(b)(6) deposition of Arizona as well as the deposition of another Arizona
official. Class Counsel also worked with Arizona to facilitate production from, and the
23
deposition of, Arizona’s consultant, Marco Consulting Group. In the immediate pretrial
period, Class Counsel worked closely with Arizona to address ongoing strategic issues,
including Plaintiffs’ motion to adjust the trial plan to expedite the ERISA bench trial.
Arizona was also closely involved in settlement strategy during both the March 2014
mediation session and the final April 2014 negotiations.
IV.CONCLUSION
I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct.
Executed this 10th Day of July, 2014.
/s/ E. Powell Miller
950 W. University Dr., Suite 300
Rochester, MI 48307
248-841-2200
epm@millerlawpc.com
/s/ Peter A. Binkow
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
24
EXHIBIT 1 – A
The City of Farmington Hills Employees Retirement System v. Wells Fargo Bank, N.A.
THE MILLER LAW FIRM
A Professional Corporation
950 W. University Dr., Ste. 300
Rochester, MI 48307
(248) 841-2200
www.millerlawpc.com
The Miller Law Firm, P.C. (the “Firm”) is one of the premier litigation law firms in the
United States and Michigan’s leading financial class action firm. A recognized leader in the
area of complex commercial litigation, the Firm is ranked Tier 1 in Detroit by U.S. NewsBest Lawyers “Best Law Firms” for commercial litigation. Since the Firm’s founding in
1994, the Firm has developed a national reputation for successfully prosecuting securities
fraud and consumer class actions on behalf of its clients. As Lead Counsel or Co-Lead
Counsel appointed by judges throughout the United States in some of the Countries’ largest
and most complex cases, the Firm has achieved over $1 billion in settlements and/or verdicts
on behalf of injured class members.
Highlights of Results Obtained
2014
In re Refrigerant Compressors Antitrust Litigation
(United States District Court, Eastern District of Michigan)
(Case No. 09-md-02042) (Interim Co-Lead)
Result: $30,000,000 settlement
2013
The Board of Trustees of the City of Birmingham Employees et. al.
v. Comerica Bank et. al.
(Case No. 2:09-13201) (Co-Lead Counsel)
2013
In Re Caraco Pharmaceutical Laboratories, Ltd. Securities Litigation
(Case No. 2:09-cv-12830) (Co-Lead Counsel for the Class)
2013
In Re TechTeam Global Inc. Shareholder Litigation
(Oakland County Circuit Court, State of Michigan)
(Case No. 10-114863-CB) (Liaison Counsel)
2010
Epstein, et al v. Heartland Industrial Partners, L.P., et al
(Case No. 2:06-CV-13555) (Substantial role)
2010
In Re Skilled Healthcare Group, Inc. Securities Litigation
(United States District Court, Central District of California)
(Case No. 09-5416) (substantial role)
2009
In Re Proquest Company Securities Litigation
(Case No. 4:06-CV-11579) (Substantial role; argued Motion to Dismiss)
2009
In Re Collins & Aikman Corporation Securities Litigation
(United States District Court, Eastern District Michigan)
(Case No. 03-CV-71173) (Substantial role)
2009
In re IT Group Securities Litigation
(United States District Court, Western District of Pennsylvania)
(Civil Action No. 03-288) (Co-Lead)
2008
In re Mercury Interactive Securities Litigation
(United States District Court, Northern District of California)
(Civil Action No. 03:05-CV-3395-JF) (Substantial role)
2008
In Re General Motors Corporation Securities and Derivative Litigation
(Master Case No. 06-MD-1749) (Co-Lead)
Result: Obtained major corporate governance reforms to address accounting
deficiencies
2007
Wong v T-Mobile USA, Inc.
(Case No. 05-CV-73922) (Co-Lead)
Result: Settlement for 100% of damages.
2007
In re CMS Energy Corporation Securities Litigation
(Master File No. 2:02 CV 72004) (Substantial role)
2005
In re Comerica Securities Fraud Litigation
(Case No. 2:02-CV-60233) (Substantial role)
Result: $21,000,000, divided between related cases at $15,000,000 and
$6,000,000
2005
Street v Siemens
(Philadelphia State Court)
(Case No. 03-885) (Co-Lead)
Result: $14,400,000, including 100% recovery for more than 1,000 workers
wrongfully deprived of pay.
2005
Redmer v Tournament Players Club of Michigan
(Wayne County Circuit Court) (Case No. 02-224481-CK) (Co-Lead)
2004
Passucci v Airtouch Communications, Inc.
(Wayne County Circuit Court) (Case No. 01-131048-CP) (Co-Lead)
Result: Estimated settlement valued between: $30,900,000 to $40,300,000.
2004
Johnson v National Western Life Insurance
(Oakland County Circuit Court)
(Case No. 01-032012-CP) (Substantial role)
Result: $10,700,000 settlement on behalf of nation-wide class of purchasers.
2003
Felts v Starlight
Result: Starlight agrees to stop selling ephedrine as an ingredient in its weight
loss dietary supplement product.
2003
In re Lason Securities Litigation
(Case No. 99-CV-76079) (Co-Lead)
2001
Mario Gasperoni, et al v Metabolife International, Inc.
Result: Nationwide settlement approved mandating changes in advertising and
labeling on millions of bottles of dietary supplement, plus approximately
$8,500,000 in benefits.
1999
Pop v Art Van Furniture and Alexander Hamilton Insurance Company
(Wayne County Circuit Court)(Case No. 97-722003-CP) (Co-Lead)
Result: Changes in sales practices and $9,000,000 in merchandise.
1999
Schroff v Bombardier
Result: Recall of more than 20,000 defective Seadoos throughout North
America; repair of defect to reduce water ingestion problem; extended
warranties; and approximately $4,000,000 in merchandise.
1999
In re National Techteam Securities Litigation
(Master File No. 97-74587) (Substantial role)
1999
In Re F&M Distributors, Inc., Securities Litigation
(Case No. 95-CV-71778-DT) (Minor role)
1998
In Re Michigan National Corporation Securities Litigation
(Case No 95 CV 70647 DT) (Substantial role)
1995
In re Intel Pentium Processor Litigation
(Superior Court, Santa Clara County, California)(Master File No. 745729)
(Substantial role)
Result: Intel agreed to replace millions of defective Pentium chips on demand
without any cost to consumers.
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 epm@millerlawpc.com www.millerlawpc.com E. POWELL MILLER, CEO
E. Powell Miller has been named one of the Top 10 lawyers in Michigan for five
consecutive years, from 2009-2013, by Super Lawyers Magazine, and in 2010, he
was the sole recipient of the Best Lawyers - Lawyer of the Year in the category of
Bet-The-Company Litigation – Detroit Area for 2010. Previously, he was
recognized as one of the Top 100 lawyers in Michigan in 2006, 2007, and 2008, and
he has been named as one of the Best Lawyers in America every year since 2005.
Mr. Miller has earned Martindale-Hubbell’s highest rating, AV® Preeminent™ 5/5.0
for legal ethics and ability a 10/10 from AVVO a public rating system and is ranked
as only one of ten in Michigan in the top ten by Chairman USA.
Mr. Miller focuses his practice on all aspects of litigation. He has been retained by many Fortune 500 and other
clients to represent them in litigation throughout the United States, including in Michigan, New York, New
Jersey, Pennsylvania, Arkansas, Florida, Texas, Kentucky, Ohio, California, Colorado and Indiana.
Mr. Miller recently won a trial in a high profile, multi-million dollar lawsuit on behalf of a Fortune 100 automotive
supplier. In fact, he has never lost a trial – with eleven consecutive victories, including verdicts in excess of $5
million, $10 million and $23 million. Mr. Miller has also obtained in excess of $1 billion in settlements over the last
few years. These settlements are regularly among the top two or three in Michigan each year.
Mr. Miller currently serves on the Executive Committee for the Wayne State University Law School Board of
Visitors and has served a Co-Chair of the American Bar Association Procedures Subcommittee on class actions and
multi-district litigation. He lectures regularly on securities litigation at the University of Michigan School of
Law. He has also served as an Adjunct Professor at the University of Detroit Law School teaching trial practice. In
addition, Mr. Miller regularly speaks at continuing legal education seminars on securities fraud class actions. Mr.
Miller also serves as a Master member of The Oakland County Bar Association Inns of Court.
Mr. Miller graduated third in his class from Wayne State University Law School, magna cum laude, in 1986. He was
named to the honor society, Order of the Coif and he was an Editor of the Wayne Law Review. In 1986, Mr. Miller
joined the Detroit law firm of Honigman Miller Schwartz and Cohn, where he was elected partner in 1990. In 1994,
he formed his own firm.
Mr. Miller has been recognized as a top debater in the United States. He won first place at the Harvard University
National Debate Tournament as a freshman at Georgetown University. He also represented Georgetown in a special
international debating exhibition against the Oxford Debating Union of Great Britain.
Mr. Miller is a proud supporter of the Detroit Urban Debate League, a nonprofit that supports the creation of debate
programs in under-served high schools; the University of Detroit Jesuit High School and Academy; The Joe Niekro
Foundation, which is committed to aiding in the research and treatment of aneurysm patients and families; and
Charlotte’s Wings, a nonprofit that is dedicated to supporting ailing children in Southeast Michigan through
donations of new books to the children and their families in hospital and hospice care.
Georgetown University, B.A., 1983
Wayne State University Law School, J.D., 1986
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 mln@millerlawpc.com www.millerlawpc.com MARC L. NEWMAN, PARTNER
Marc L. Newman was named as one of the Top 100 Attorneys in Michigan
every year from 2008-2013 by Super Lawyers Magazine. In 2013, Mr.
Newman was named one of the Best Lawyers in America. Mr. Newman has
earned Martindale-Hubbell’s highest rating, AV® Preeminent™ 5/5.0 for legal
ethics and ability.
Mr. Newman concentrates his practice on complex business litigation of all
types, including contract cases, automotive supply chain disputes, shareholder and partnership litigation
and real estate litigation. He also focuses on securities fraud and shareholder derivative cases.
Marc has successfully tried numerous trials in both state and federal courts, and has litigated cases
throughout Michigan, New York, Arkansas, Colorado, Georgia, and Tennessee. In negotiating
settlements, Mr. Newman has obtained exceptional results, including several multi-million dollar
settlements in favor of his clients. One of his trials was featured in the "Article of the Week" in 2006 in
the Michigan Lawyers Weekly for his defense of a client which he obtained the involuntary dismissal of
the plaintiff's lawsuit and sanctions against the plaintiff in the amount of $750,000, by demonstrating that
the plaintiff and a material witness conspired to commit perjury. His cases are routinely featured in the
Michigan Lawyers Weekly among the top settlements in Michigan.
Mr. Newman graduated from the University of Michigan Law School in 1994. He is a 1991 graduate of
Michigan State University's James Madison College.
Mr. Newman has co-authored several articles in the Michigan Bar Journal, including Still Keeping The
Faith: The Duty of Good Faith, 76 Mich B.J. 1190 (Nov. 1997), dealing with various issues in contract
law. He is a Fellow of the Oakland County Bar Foundation, and he regularly serves as a judge at the
University of Michigan Law School Henry M. Campbell Moot Court Competition.
Michigan State University, B.A., 1991
(James Madison College)
University of Michigan Law School, J.D., 1994
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 ssa@millerlawpc.com www.millerlawpc.com SHARON S. ALMONRODE, PARTNER
Sharon S. Almonrode is a senior litigation attorney and a partner at The Miller
Law Firm. She has a complex litigation practice with an emphasis on
prosecuting large, high-risk, significant damage exposure cases on behalf of
public institutional funds. Her practice includes ERISA and pension fund
litigation, financial services and commercial litigation, including professional
liability and actuarial malpractice, and employment class action law. She has
also represented commercial clients in products liability and patent and
trademark related litigation. She has successfully represented clients in multimillion dollar cases, including the successful resolution of an actuarial claim for $110 million dollars.
A former Labor Relations Investigator, Personnel/Human Resources representative and Administrator for
two General Motors plants, Ms. Almonrode had several years of front-line experience overseeing benefit
programs and employment law issues including EEOC actions and discrimination charges. She also
negotiated labor contracts, grievances and employee disputes.
Ms. Almonrode was named a Michigan Super Lawyer in 2011, 2012 and 2013. In 2013, she was named to
the Top 50 Women Super Lawyers List. She received the special distinction of a Michigan Leader in the
Law, awarded by Michigan Lawyers Weekly in 2010. Ms. Almonrode has earned Martindale-Hubbell’s
highest rating, AV® -Preeminent™ 5/5.0, for legal ethics and ability.
Ms. Almonrode graduated from University of Detroit Mercy School of Law, Detroit, Michigan, 1981. She is
a 1978 graduate of Oakland University.
Ms. Almonrode was admitted to practice in the State of Michigan in 1982. She is also admitted to practice in
the U.S. District Court Eastern District of Michigan, U.S. District Court Western District of Michigan, U.S.
Bankruptcy Court Eastern District of Michigan, U.S. Bankruptcy Court Western District of Michigan, U.S.
District Court – Northern District of Illinois, U.S. Court of Appeals 6th Circuit, the State of New York, the
U.S. District Court for Southern District of New York, the U.S. District Court for the Eastern District of New
York, the U.S. Court of Appeals 2nd Circuit, and the U.S. Supreme Court.
Ms. Almonrode is a member of the State Bar of Michigan, American Bar Association Member (Committee
Member: Business Torts, Commercial Litigation, Securities Litigation, and Class Actions and Derivative
Suits), Federal Bar Association Member, Oakland County Bar Association Member, and International
Foundation of Employee Benefit Plans (IFEBP).
Before joining The Miller Law Firm, P.C. in 2012, Ms. Almonrode was a Partner at Sullivan, Ward, Asher &
Patton, P.C, and Supervisor-Salaried Personnel at General Motors Corp.
Ms. Almorode's pro bono activities have included working with the Detroit Institute of Arts and the Detroit
Film Theatre Board.
Oakland University, B.S., 1978
University of Detroit Mercy School of Law, J.D. 1981
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 alm@millerlawpc.com www.millerlawpc.com ANN L. MILLER, PARTNER
Ann L. Miller is a partner at The Miller Law Firm. Ms. Miller has been
recognized as a Michigan Super Lawyer by Super Lawyer Magazine in
2013. She graduated, magna cum laude, from Wayne State University Law
School in 1989. Ms. Miller graduated fifth in her class and was named to
the honor society, Order of the Coif. Ms. Miller received a Gold Key Award
for maintaining a perfect 4.0 grade point average in the 1987-1988 academic
years. She also earned American Jurisprudence Awards for attaining the
highest grade in the following courses: Torts, Constitutional Law, and
Conflicts of Law.
After law school, Ms. Miller worked as a pre-hearing attorney at the Michigan Court of Appeals and then
as an attorney specializing in labor-employment law and employment discrimination. Ms. Miller has coauthored several articles that have appeared in the Michigan Bar Journal and other publications.
Ms. Miller concentrates her practice on all types of business and commercial litigation, including laboremployment law, employment discrimination and overtime and minimum wage issues under the Fair
Labor Standards Act.
University of Michigan, BA, 1986
Wayne State University, JD, 1989
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 jeb@millerlawpc.com www.millerlawpc.com JAYSON E. BLAKE, PARTNER
Jayson E. Blake is a partner at The Miller Law Firm, P.C. Mr. Blake
concentrates his practice in complex litigation and business litigation of all
types, including contract and UCC cases, automotive supplier issues,
shareholder and partnership disputes, probate litigation, and securities class
actions. Mr. Blake has successfully represented clients ranging from large
publicly traded companies to closely held and family businesses, as well as
individuals.
Mr. Blake was recognized by Super Lawyers magazine as one of the top attorneys in Michigan for four
consecutive years, from 2011-2014.
Mr. Blake practices in state and federal courts throughout Michigan and other states, including New York,
California, Illinois, Minnesota and Delaware. He has successfully argued in the Michigan Court of
Appeals, represented clients at trial, and negotiated multi-million dollar settlements in favor of his
clients.
Mr. Blake received his law degree from the University of Michigan Law School in 1996. He previously
received his Bachelor of Arts degree from the University of Michigan with dual concentration in
psychology and sociology. After law school, Mr. Blake served as a law clerk for the Honorable J.
Richardson Johnson, Chief Judge of the Ninth Circuit Court of Michigan. He has also served as a judge at
the University of Michigan Law School Henry M. Campbell Moot Court Competition.
University of Michigan, B.A., 1993
University of Michigan Law School, JD, 1996
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 cdk@millerlawpc.com www.millerlawpc.com CHRISTOPHER D. KAYE, ASSOCIATE
Christopher D. Kaye is an associate at The Miller Law Firm. He received
his law degree in 2000 from the University of Michigan Law School,
where he served as an Associate Editor on the Michigan Journal of
International Law. He obtained his Bachelor of Arts Degree in Political
Science from the University of Michigan with distinction in 1997.
Mr. Kaye was recognized by Super Lawyers Magazine as a Rising Star in
2010DQGD6XSHU/DZ\HULQ&ODVV$FWLRQVLQ.
Mr. Kaye's practice has included work on several major class action lawsuits, commercial disputes, and
securities fraud litigation. Prior to joining The Miller Law Firm, Mr. Kaye served as an assistant township
attorney and municipal prosecutor.
He has practiced in state and federal courts throughout Michigan, and has conducted several trials as sole
counsel. He has also appeared before the Michigan Tax Tribunal in property valuation disputes, and
advised developers seeking land use approvals from government authorities. In addition, he has handled
several cases on appeal, successfully arguing before the Michigan Court of Appeals.
University of Michigan, B.A. 1997 with distinction
University of Michigan Law School, 2000
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 mwr@millerlawpc.com www.millerlawpc.com MELISSA D. WOJNAR-RAYCRAFT,
ASSOCIATE
Melissa D. Wojnar-Raycraft is an associate at The Miller Law Firm,
P.C. She concentrates her practice on complex business and commercial
litigation, contract cases, automotive supplier issues, class actions, as well
as family law and probate litigation. Ms. Wojnar-Raycraft was recognized
by Super Lawyers Magazine as a Rising Star in 2013.
Ms. Wojnar-Raycraft is admitted to practice in Michigan, the Eastern District of Michigan, and the Sixth
Circuit Court of Appeals.
Ms. Wojnar-Raycraft graduated from Wayne State University Law School in 2003. She was Editor-inChief of The Journal of Law in Society as well as a member of Moot Court. Ms. Wojnar-Raycraft’s
academic awards include: the Gold Key Certificate for maintaining a 3.9 grade point average; the George
and Phyllis Googsian Award for her academic performance in a course on products liability; the Cynthia
Faulhaber Scholarship for her work on The Journal; and the Raymond Krell Scholarship for her interest in
trial work. In 2002, Ms. Wojnar-Raycraft completed a judicial internship, by invitation, for the Hon.
Gerald E. Rosen, United States District Court for the Eastern District of Michigan. She also served as a
research assistant for the Internet Commerce: The Emerging Legal Framework textbook.
Ms. Wojnar-Raycraft is a member of the Alumni Board for the Journal of Law in Society at Wayne State
Law School. Ms. Wojnar-Raycraft also regularly serves as a judge at Wayne State Law School’s Legal
Research and writing Program.
Ms. Wojnar-Raycraft is a graduate of the University of Michigan, earning her Bachelor degree in 1991
and her Master of Social Work degree in 1992. Before beginning her legal career, Ms. Wojnar-Raycraft
practiced as a mental health counselor for seven years.
University of Michigan, BA, 1991
University of Michigan, MSW, 1992
Wayne State University Law School, J.D., 2003
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 eeh@millerlawpc.com www.millerlawpc.com EMILY E. HUGHES, ASSOCIATE
Emily E. Hughes is an associate at The Miller Law Firm. Ms. Hughes
currently practices in the areas of commercial litigation, complex litigation,
and bankruptcy adversary litigation, where she routinely manages complex
discovery matters.
Ms. Hughes has been recognized as a “Rising Star” in Michigan Super
Lawyers in the area of General Litigation for 2010-2013.
Ms. Hughes graduated cum laude from the University of Illinois College of Law in 2005, where she was
nominated for the Rickert Award for Excellence in Trial Advocacy. She began her law school career at
Syracuse University College of Law, where she received an award for Best Oralist in Appellate Advocacy
in her legal writing section. Ms. Hughes received her Bachelor of Arts Degree in Political Science from
the University of Michigan in 2001.
Prior to joining The Miller Law Firm, Ms. Hughes served as in-house counsel for a labor organization
from 2005 until 2007, where she conducted numerous arbitrations, handled matters involving the National
Labor Relations Board, and conducted several training seminars on a variety of labor-management issues.
Ms. Hughes is admitted to practice in Michigan, the U.S. District Court of the Eastern District of
Michigan and the Bankruptcy Court of the Eastern District of Michigan. She is currently a member of the
Women Lawyers Association of Michigan.
University of Illinois College of Law, J.D., 2005, cum laude
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 caf@millerlawpc.com www.millerlawpc.com CASEY A. FRY, 3$571(5
Casey A. Fry is a partner at The Miller Law Firm. Her practice is
concentrated in complex commercial and class action litigation, including
automotive, shareholder rights, securities fraud and antitrust matters. Ms.
Fry is admitted to practice in Michigan, Illinois, the District of Columbia, the
U.S. Court of International Trade, and the U.S. Court of Appeals for the
Federal Circuit.
Ms. Fry has been recognized by Super Lawyers Magazine as a Michigan
Rising Star for four consecutive years, from 2010-2013.
Prior to joining The Miller Law Firm, Ms. Fry gained significant legal experience working as an Attorney
at Honigman Miller Schwartz and Cohn, and as Associate Director of the Institute for Trade in the
Americas at Michigan State University College of Law.
Casey Fry graduated cum laude from Michigan State University College of Law in 2005. During law
school, Ms. Fry was President of the International Law Society, an Associate Editor of the Journal of
International Law, and participant in the Philip C. Jessup International Moot Court Competition. Ms. Fry
was recognized as the Most Distinguished First Year Law Student in 2003 and awarded the Jurisprudence
Award in Transnational Legal Research in 2004. Ms. Fry’s other accomplishments include being
highlighted as “One To Watch” by the ABA Journal in 2007 and being selected as a participant in the
Oakland County Bar Association Inns of Court Program for 2013-2014.
Casey Fry earned her Bachelor of Science Degree in Diplomacy and International Relations, graduating
magna cum laude from Seton Hall University in 2003. Ms. Fry also completed minors in Political
Science and German. While attending Seton Hall, Ms. Fry was a member of the Women’s NCAA
Division I Tennis Team and served as Captain her senior year.
Casey Fry is a member and active participant in the Oakland County Bar Association.
Seton Hall University, B.S., magna cum laude, 2003
Michigan State University College of Law, J.D., cum laude, 2005
* No longer at The Miller Law Firm, P.C.
950 West University Drive
Phone: 248-841-2200
www.millerlawpc.com
%$5726=.0,(&&2816(/*
Mr. Kmiec received his B.A. from Wayne State University with a
double major In French and Spanish Studies and received his J.D.
from Thomas Cooley Law School.
During law school, he
distinguished himself by being placed on the Dean's List and being
awarded the Certificate of Merit in Business Organizations.
Additionally, he was a member of the Mock Trial end Moot Court
organizations where he was recognized for his oral and written
advocacy skills. He is currently pursuing his LL.M. degree in
Taxation from Wayne State University Law School.
Mr. Kmiec previously held an Attorney position with the law firm of Parker, Roberts &
McGruder, PLLC, in Bloomfield Hills where he focused on corporate matters, contract disputes,
taxation, and criminal defense. During law school he was a Judicial Law Clerk at the Michigan
Tax Tribunal where he assisted with research and opinions on property tax disputes and appeals
from the Michigan Department of Treasury.
Mr. Kmiec is a member of the State Bar of Michigan, American Bar Association, Macomb
County Bar Association, and the Polish Advocates Bar Association.
:D\QH6WDWH8QLYHUVLW\%$
7KRPDV0&RROH\/DZ6FKRRO-'
* No longer at The Miller Law Firm, P.C.
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 bcm@millerlawpc.com www.millerlawpc.com BRIAN C. MARTIN, COUNSEL
Brian C. Martin is Counsel at The Miller Law Firm. His practice is
concentrated in complex commercial litigation and securities fraud. He also
has experience in antitrust litigation and medical device product
liability. Brian is admitted to practice in the State of Michigan.
Mr. Martin received his law degree from Wayne State University Law School. While at Wayne State, he
worked at Wayne County Corporation Counsel in the Nuisance Abatement Program. There, he assisted
in filing numerous lawsuits on vacant and abandoned homes throughout Wayne County. Mr. Martin
graduated cum laude from Central Michigan University, where he earned a Bachelor’s of Science degree
in Business Administration with a focus on Economics and Legal Studies. While at Central, Mr. Martin
was named to the National Dean’s List, the National Society of Collegiate Scholars, and the Gold Key
Honor Society.
Throughout his undergraduate and legal education, Mr. Martin also worked in his family parking lot
painting business which he and his twin brother started while in high school.
Central Michigan University, B.S. in Business Administration, 2004
Wayne State University Law School, J.D. 2008
Phone: 248-841-2200
jbv@millerlawpc.com
www.millerlawpc.com
JUSTIN B. VANDEPUTTE, ASSOCIATE
Justin B. Vandeputte is an associate at The Miller Law Firm who focuses
his practice on representing injured institutional investors in the litigation of
complex securities fraud class actions. His practice also includes
representing clients as both plaintiffs and defendants in a wide range of
substantive commercial and high-stakes executive employment disputes.
Mr. Vandeputte received a B.A. from the University of Michigan in 2005.
In 2008, he received a J.D. / M.B.A. from the University of Detroit Mercy,
where he was a member of the Beta Gamma Sigma and Alpha Iota Delta international honor societies and
served as a judicial extern to the Honorable Annette J. Berry of the Third Judicial Circuit Court of
Michigan.
Mr. Vandeputte is admitted to practice in Michigan and the United States District Court for the Eastern
District of Michigan. He is also a member of the Oakland County Bar Association.
University of Detroit Mercy, J.D. / M.B.A., 2008
Phone: 248-841-2200
lec@millerlawpc.com
www.millerlawpc.com
LAUREN E. CRUMMEL, COUNSEL
Lauren E. Crummel is Counsel at The Miller Law Firm. She concentrates
her practice in class action litigation, including securities litigation, antitrust,
environmental law, and products liability. Lauren is admitted to practice in
the State of Michigan and the United States District Court for the Eastern
District of Michigan. Her prior work experience includes Ionia County
Prosecutor’s Office, The Law Office of Norman Miller, and the Michigan
Chamber of Commerce.
Mrs. Crummel is a graduate of MSU College of Law where she was enrolled in the Trial Practice
Institute, a comprehensive two year litigation program that taught the intricacies of the trial process for
both criminal and civil litigation. She also completed the Chance at Childhood Certification Program and
Clinic which allowed her to work hands on with families regarding guardianship and custody
matters. Lauren was President of the Society for Mental Health Law where she advocated for students to
have access to counselors and mental health professionals on the law school’s campus. She received the
Research, Writing, and Advocacy Best Class Oralist honor and was a finalist in the All-School Moot
Court Competition.
Lauren received her Bachelor’s degree from Michigan State University where she graduated Cum Laude
with a degree in Business Administration/Pre-law. She has a love for music and is a classically trained
pianist and violinist.
Michigan State University, B.A. 2006
Michigan State University College of Law, J.D. 2009
1RORQJHUDW7KH0LOOHU/DZ)LUP3&
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 mrj@millerlawpc.com www.millerlawpc.com M. RYAN JARNAGIN, ASSOCIATE
M. Ryan Jarnagin is an associate at The Miller Law Firm. His practice is
concentrated in complex commercial litigation, class action, and securities
litigation. Mr. Jarnagin is admitted to practice in Michigan, Massachusetts,
and the Eastern District of Michigan.
Mr. Jarnagin was recognized by Super Lawyers Magazine as a Michigan
Rising Star in 2013.
Mr. Jarnagin graduated from the University of Michigan with a bachelor’s degree from the College of
Literature, Arts, and Sciences. He earned his Juris Doctor from the University of Toledo College of Law.
As an elected class representative and Chair of the Academic Affairs Committee, he implemented a
mentoring program to provide guidance to first year law students. Throughout law school, Mr. Jarnagin
worked at the law library as a night and weekend supervisor. Mr. Jarnagin participated and placed well in
several ABA arbitration competitions and the 2008 International Competition for Online Dispute
Resolution. He also represented the interests of the College of Law as a senator to the University’s student
senate. While in law school, he interned for Lucas County Ohio Common Pleas Presiding Judge Jack
Puffenberger. In 2009, Mr. Jarnagin earned a Master of Laws in Taxation from Boston University School
of Law. He focused his studies on corporate and international taxation.
He is a member of the 2013 Multiple Sclerosis Leadership Class for the MS Society, Michigan Chapter.
In 2008, he was a top 100 fundraiser in Michigan for the Multiple Sclerosis Society. In 2005, he received
the Outstanding Civilian Commendation Award from the Troy, MI Police Department. He is a member of
the Brother Rice Warrior Bar Association and the Oakland County Bar Association.
University of Michigan, B.G.S., 2005
University of Toledo College of Law, J.D., 2008
Boston University School of Law, LL.M. Taxation, 2009
Phone: 248-841-2200
mrm@millerlawpc.com
www.millerlawpc.com
MARIELL R. McLATCHER, COUNSEL
Mariell R. McLatcher is Counsel at The Miller Law Firm. She concentrates her
practice in complex commercial litigation and class action litigation. Ms.
McLatcher is admitted to practice in Michigan.
Ms. McLatcher graduated from the Thomas M. Cooley Law School in 2011 and
was on the Dean’s List for multiple semesters. She received her Bachelor of
Arts in Criminal Justice with a Pre-Law concentration from the University of Michigan, graduating with
honors, in 2005.
Ms. McLatcher is the managing member of a small general practice law firm and has provided services in
general civil litigation, family law, and criminal law. Prior to, and during law school, Ms. McLatcher
worked as a District Court Clerk at the 52-3 District Court in Rochester Hills, Michigan working in the
traffic division and criminal division as both a docket clerk and general clerk.
University of Michigan, B.A, 2005
Thomas M. Cooley Law School, J.D., 2011
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 rad@millerlawpc.com www.millerlawpc.com RICK A. DECKER, COUNSEL
Rick A. Decker is Counsel at The Miller Law Firm. He concentrates his
practice in complex commercial litigation, automotive supplier issues, as
well as class action litigation. Mr. Decker is admitted to practice in Michigan
and in the U. S. District Court for the Eastern District of Michigan.
Mr. Decker graduated cum laude from the Thomas M. Cooley Law School in
2007. He received his Bachelor of Arts in Legal Studies from the University
of Central Florida, graduating summa cum laude, in 2004; he is a member of the honor society of Phi
Kappa Phi.
During law school Mr. Decker competed internationally as a member of the law school's Negotiation
team, and nationally as a member of the school's Client Counseling team. Mr. Decker was active in Moot
Court, winning a Best Oral Argument award. In addition, he received a Certificate of Merit for the highest
grade in the class in Business Organizations and another for Children and the Law. Mr. Decker was also
on the Dean's List for five semesters.
Mr. Decker has experience at the trial court and appellate court level. He completed a judicial externship
at the Michigan Court of Appeals and, after gaining membership to the Michigan Bar, completed a twoyear term as a judicial law clerk in the 52-3 District Court. In addition, as the managing member of a
small general practice law firm, he has provided legal services in general civil litigation, small business
development, and criminal law. Before attending law school, Mr. Decker had a distinguished career in the
U.S. Navy; his final military assignment was as Program Manager and Fleet Liaison at Strategic Systems
Program, Flight Systems Detachment in Cape Canaveral, Florida. Mr. Decker is a member of the
Veterans of Foreign Wars.
University of Central Florida, B.A. summa cum laude, 2004
Thomas M. Cooley Law School, J.D., cum laude, 2007
950 West University Drive Rochester, Michigan 48307 Phone: 248‐841‐2200 smz@millerlawpc.com www.millerlawpc.com STEVEN M. ZEHNDER, COUNSEL
Steven M. Zehnder is Counsel at The Miller Law Firm. His areas of
practice include complex commercial litigation, securities fraud litigation,
and class action litigation. He also has experience with personal injury
litigation, contract disputes, antitrust cases, and criminal infractions.
Prior to joining the firm, Mr. Zehnder gained experience as an Associate Attorney at Flood, Lanctot,
Connor, and Stablein, PLLC. He has also served as a Casework Assistant for the Oakland County
Prosecutor’s Office. While with the Prosecutor’s Office, Mr. Zehnder worked in both the Appellate and
Juvenile Divisions where he drafted appellate briefs and reviewed petitions for criminal charges. Prior to
attending law school, Mr. Zehnder clerked for the Honorable Joan E. Young of the Oakland County Sixth
Circuit Court.
Mr. Zehnder graduated cum laude from Thomas M. Cooley Law School in 2010 where he served as a
Senior Associate Editor for Law Review. While attending law school, he also assisted the Michigan
Judges Association with drafting a proposed amendment to the Michigan Court Rules. Mr. Zehnder
earned his Bachelor of Arts Degree in Criminal Justice from Western Michigan University in 2002 and
earned his Master of Science Degree in Criminal Justice Administration from Boston University in 2004.
Mr. Zehnder is admitted to practice law in the State of Michigan. He is an active member of the Oakland
County Bar Association as well as the Brother Rice Warrior Bar Association.
Western Michigan University, B.A., 2002
Boston University, M.S., 2004
Thomas M. Cooley Law School, J.D., cum laude, 2010
EXHIBIT 1 – B
The Miller Law Firm, P.C. Lodestar Report
Staff
Attorneys
E. Powell Miller
Marc L. Newman
Sharon S. Almonrode
Ann L. Miller
Jayson E. Blake
Christopher D. Kaye
Melissa Wojnar-Raycraft
Emily E. Hughes
Casey A. Fry
Bartosz Kmiec
Brian C. Martin
Christiana M. Sayegh
Jane Gazman
Justin B. Vandeputte
Keith Treanor
Lauren E. Crummel
Lowell D. Johnson
M. Ryan Jarnagin
Mariell R. McLatcher
Mark Hermiz
Nancy Decker
Rick A. Decker
Steven Zehnder
Subtotal:
Law Clerks/Legal
Assistants
Shannon C. King
Amy S. Long
Amy A. Davis
Samantha S. Stenquist
Sarah Dahlin
Julia Moskwa
David Goodrich
Subtotal:
Grand Total:
Hours
Rate
2,668.75
285.75
3,094.40
217.50
2,380.00
3,001.50
12.50
41.25
74.50
544.25
560.75
322.25
117.50
658.75
200.50
478.50
369.00
1,041.00
923.58
12.50
292.25
2,231.80
1,283.75
20,812.53
$725.00
$695.00
$725.00
$680.00
$650.00
$575.00
$425.00
$525.00
$525.00
$425.00
$330.00
$295.00
$295.00
$465.00
$325.00
$355.00
$385.00
$465.00
$425.00
$330.00
$330.00
$425.00
$365.00
$1,934,843.75
$198,596.25
$2,243,440.00
$147,900.00
$1,547,000.00
$1,725,862.50
$5,312.50
$21,656.25
$39,112.50
$231,306.25
$185,047.50
$95,063.75
$34,662.50
$306,318.75
$65,162.50
$169,867.50
$142,065.00
$484,065.00
$392,521.50
$4,125.00
$96,442.50
$948,515.00
$468,568.75
$11,487,455.25
36.50
4.50
31.00
4.00
90.55
54.50
420.75
641.80
$275.00
$175.00
$175.00
$175.00
$175.00
$175.00
$175.00
$10,037.50
$787.50
$5,425.00
$700.00
$15,846.25
$9,537.50
$73,631.25
$115,965.00
21,454.33
Amount
$11,603,420.25
EXHIBIT 1 – C
The Miller Law Firm, P.C. Expense Report
From Inception through July 10, 2014
CATEGORIES
Conference Call Charges
Copy Charges
Deposition Charges
Expert Fees
Meal Charges
Messenger Fees
Motion Fees
Overnight Mail Charges
Parking
Postage
Supplies
Technology Charges
Travel charges
Westlaw Charges
TOTAL:
COST
$593.14
$69,567.09
$44,246.70
$5,926.12
$8,910.33
$257.50
$200.00
$7,077.19
$3,088.00
$65.89
$3,082.70
$12,475.83
$111,135.43
$3,684.93
$270,310.85
EXHIBIT 1
IN RE WELLSFARGOSL LITIGATION
FIRM LODESTAR CHART
FROM INCEPTION THROUGH 07/08/2014
Attorneys
Hours
Rate
Amount
P
Peter A. Binkow
4,392.00
750.00
3,294,000.00
P
Kevin F. Ruf
1,929.50
675.00
1,302,412.50
P
Kara Wolke
1,251.60
525.00
657,090.00
P
Andy Sohrn
1,442.50
475.00
685,187.50
A
Casey Sadler
3,188.85
425.00
1,355,261.25
A
Elizabeth Gonsiorowski
3,117.45
395.00
1,231,392.75
A
Leanne Heine
4,479.60
375.00
1,679,850.00
C
Avi Wagner
3,774.10
550.00
2,075,755.00
C
Melissa LeBlanc
2,241.20
295.00
661,154.00
C
Yungsheng Wang
2,181.00
295.00
643,395.00
C
Lauren Williams
2,460.75
325.00
799,743.75
C
Brian Lundin
2,814.20
350.00
984,970.00
C
David Choi
1,754.25
325.00
570,131.25
C
Jason Caperna
1,669.00
325.00
542,425.00
C
Jared Pitt
3,754.30
295.00
1,107,518.50
C
Claire Lim
1,409.75
295.00
415,876.25
C
Philip S. Gutierrez
2,194.00
275.00
603,350.00
C
Corey Glass
923.15
295.00
272,329.25
C
Lital Gilboa
108.90
275.00
29,947.50
C
Kelly Aviva Dorfman
583.50
275.00
160,462.50
C
Brian Wasser
464.40
295.00
136,998.00
C
Shane M. Cox
446.50
350.00
156,275.00
IN RE WELLSFARGOSL LODESTAR REPORT
X:\wp51\WELLSFARGOSL\SETTLEMENT\Final Approval\GBG dec\EXHIBIT 1 CASE TIME BILLING WELLSFARGOSL
OPERATIVE LODESTAR.wpd
Page 1 of 2
Attorneys
Hours
Rate
Amount
C
Nili Wexler
428.90
275.00
117,947.50
C
Mikouya Sargizian
404.30
275.00
111,182.50
C
Todd Garber
383.50
325.00
124,637.50
C
Brian Yeretzian
257.45
275.00
70,798.75
C
Adia Z. May
166.00
275.00
45,650.00
C
Christopher Habashy
151.20
275.00
41,580.00
C
Brendon Hansen
656.70
275.00
180,592.50
Attorneys
49,028.55
20,057,913.75
Paralegal
PL
Jack Ligman
1,162.50
195.00
226,687.50
PL
Erin Krikorian
1,385.65
175.00
242,488.75
PL
Devanshi Patel
273.82
165.00
45,180.30
PL
Ryan Wessels
199.50
165.00
32,917.50
Paralegals
TOTAL
P=
A=
OC =
PL =
3,021.47
547,274.05
52,050.02
20,605,187.80
Partner
Associate
Of Counsel
Paralegal
IN RE WELLSFARGOSL LODESTAR REPORT
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OPERATIVE LODESTAR.wpd
Page 2 of 2
EXHIBIT 2
IN RE WELLSFARGOSL
LITIGATION FUND (ONLY) EXPENSES
FROM INCEPTION THROUGH JULY 8, 2014
ITEM
AMOUNT
TRANSCRIPTS
86,693.86
COURT FILING FEES
432.00
MEDIATION
29,250.00
CLASS NOTICE
21,299.44
MISCELLANEOUS TRAVEL REIMBURSEMENTS
15,748.08
EXPERTS:
BERNARD BLACK
492,123.00
GREG JARRELL
5,362.50
FIACHRA O’DRISCOLL
245,440.76
FORENSIC ECONOMICS
302,461.35
GEOFFREY MILLER
20,000.00
TOTAL EXPERTS
1,065,387.61
1,065,387.61
MOCK JURY PROJECT/TRIAL PREPARATION
70,906.84
DOCUMENT PRODUCTION AND MANAGEMENT
EXPENSES (IT, HOSTING, SOFTWARE)
48,276.51
ACCOMMODATIONS FOR TRIAL PREPARATION
88,351.65
MEALS FOR TRIAL PREPARATION
TOTAL
3,533.71
1,429,879.70
IN RE WELLSFARGOSL LITIGATION EXPENSES
X:\wp51\WELLSFARGOSL\SETTLEMENT\Final Approval\GBG dec\EXHIBIT 2 WELLSFARGOSL OPERATIVE
TABLE OF LITIGATION FUND EX.wpd
Page 1 of 1
EXHIBIT 3
IN RE WELLSFARGOSL LITIGATION
EXPENSES FROM INCEPTION THROUGH 07/08/2014
ITEM
AMOUNT
IN-HOUSE PHOTOCOPIES
$
10,940.19
OUTSIDE PHOTOCOPYING
$
6,320.89
COURIERS: UPS & FEDERAL EXPRESS
$
6,013.43
ATTORNEY SERVICES
$
500.50
TRANSCRIPTS
$
5,729.51
COURT FILING FEES
$
1,056.50
ONLINE RESEARCH (PACER, LEXIS & WESTLAW)
$
30,112.39
DOCUMENT PRODUCTION AND MANAGEMENT EXPENSES
(IT, HOSTING, SOFTWARE)
$
65,092.54
TELEPHONE CONFERENCING/FACSIMILE
$
3,029.30
POSTAGE
$
163.36
159,167.55 $
159,167.55
$
288,126.16
TRAVEL COSTS
AIRFARE
$
76,174.68
AUTO $
12,909.19
HOTEL $
48,213.39
MEALS $
18,239.86
PARKING
$
TOTAL TRAVEL EXPENSES $
3,630.43
TOTAL
IN RE WELLSFARGOSL LITIGATION EXPENSES
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Page 1 of 1
ATTORNEYS AT LAW
New York Office
122 EAST 42ND STREET
SUITE 2920
NEW YORK, NY 10168
TELEPHONE (212) 682-5340
FACSIMILE (212) 884-0988
1925 CENTURY PARK EAST
SUITE 2100
LOS ANGELES, CALIFORNIA 90067
TELEPHONE (310) 201-9150
FACSIMILE (310) 201-9160
info@glancylaw.com
SAN FRANCISCO OFFICE
ONE EMBARCADERO CENTER
SUITE 760
SAN FRANCISCO, CA 94111
TELEPHONE (415) 972-8160
FACSIMILE (415) 972-8166
FIRM RESUME
Glancy Binkow & Goldberg LLP (the “Firm”) has represented investors, consumers and
employees for nearly 25 years. Based in Los Angeles with offices in New York City and San
Francisco, the Firm has successfully prosecuted class action cases and complex litigation in
federal and state courts throughout the country. As Lead Counsel or as a member of Plaintiffs'
Counsel Executive Committees, the Firm has recovered billions of dollars for parties wronged by
corporate fraud and malfeasance. Indeed, the Institutional Shareholder Services unit of
RiskMetrics Group has recognized the Firm as one of the top plaintiffs’ law firms in the United
States in its Securities Class Action Services report for every year since the inception of the
report in 2003. The Firm's efforts have been publicized in major newspapers such as the Wall
Street Journal, the New York Times, and the Los Angeles Times.
Glancy Binkow & Goldberg’s commitment to high quality and excellent personalized services
has boosted its national reputation, and we are now recognized as one of the premier plaintiffs’
firms in the country. The Firm works tenaciously on behalf of clients to produce significant
results and generate lasting corporate reform.
The Firm’s integrity and success originate from our attorneys, who are among the brightest and
most experienced in the field. Our distinguished litigators have an unparalleled track record of
investigating and prosecuting corporate wrongdoing. The Firm is respected for both the zealous
advocacy with which we represent our clients’ interests as well as the highly-professional and
ethical manner by which we achieve results. We are ideally positioned to interpret securities
litigation, consumer litigation, antitrust litigation, and derivative and corporate takeover
litigation. The Firm’s outstanding accomplishments are the direct result of the exceptional talents
of our attorneys and employees.
Appointed as Lead or Co-Lead Counsel by judges throughout the United States, Glancy Binkow
& Goldberg has achieved significant recoveries for class members, including:
280915.5
Page 1
In re Mercury Interactive Corporation Securities Litigation, USDC Northern District of
California, Case No. 05-3395, in which Glancy Binkow & Goldberg served as Co-Lead Counsel
and achieved a settlement valued at over $117 million.
In re Real Estate Associates Limited Partnership Litigation, USDC Central District of California,
Case No. 98-7035 DDP, in which the Firm served as local counsel and plaintiffs achieved a $184
million jury verdict after a complex six week trial in Los Angeles, California and later settled the
case for $83 million.
The City of Farmington Hills Employees Retirement System v. Wells Fargo Bank, N.A., USDC
District of Minnesota, Case No. 10-cv-04372-DWF/JJG, in which Glancy Binkow & Goldberg
served as Co-Lead Counsel and achieved a settlement valued at $62.5 million.
In re Lumenis, Ltd. Securities Litigation, USDC Southern District of New York, Case No.02CV-1989, in which Glancy Binkow & Goldberg served as Co-Lead Counsel and achieved a
settlement valued at over $20 million.
In re Heritage Bond Litigation, USDC Central District of California, Case No. 02-ML-1475-DT,
where as Co-Lead Counsel, Glancy Binkow & Goldberg recovered in excess of $28 million for
defrauded investors and continues to pursue additional defendants.
In re ECI Telecom Ltd. Securities Litigation, USDC Eastern District of Virginia, Case No. 01913-A, in which Glancy Binkow & Goldberg served as sole Lead Counsel and recovered almost
$22 million for defrauded ECI investors.
Jenson v. First Trust Corporation, USDC Central District of California, Case No. 05-cv-3124ABC, in which the Firm was appointed sole lead counsel and achieved an $8.5 million settlement
in a very difficult case involving a trustee’s potential liability for losses incurred by investors in a
Ponzi scheme. Kevin Ruf of the Firm also successfully defended in the 9th Circuit Court of
Appeals the trial court’s granting of class certification in this case.
Yaldo v. Airtouch Communications, State of Michigan, Wayne County, Case No. 99-909694CP, in which Glancy Binkow & Goldberg served as Co-Lead Counsel and achieved a settlement
valued at over $32 million for defrauded consumers.
In re Infonet Services Corporation Securities Litigation, USDC Central District of California,
Case No. CV 01-10456 NM, in which as Co-Lead Counsel, Glancy Binkow & Goldberg
achieved a settlement of $18 million.
In re Musicmaker.com Securities Litigation, USDC Central District of California, Case No. 0002018, a securities fraud class action in which Glancy Binkow & Goldberg was sole Lead
Counsel for the Class and recovered in excess of $13 million.
In re ESC Medical Systems, Ltd. Securities Litigation, USDC Southern District of New York,
Case No. 98 Civ. 7530, a securities fraud class action in which Glancy Binkow & Goldberg
served as sole Lead Counsel for the Class and achieved a settlement valued in excess of $17
million.
280915.5
Page 2
In re Lason, Inc. Securities Litigation, USDC Eastern District of Michigan, Case No. 99 76079,
in which Glancy Binkow & Goldberg was Co-Lead Counsel and recovered almost $13 million
for defrauded Lason stockholders.
In re Inso Corp. Securities Litigation, USDC District of Massachusetts, Case No. 99 10193, a
securities fraud class action in which Glancy Binkow & Goldberg served as Co-Lead Counsel for
the Class and achieved a settlement valued in excess of $12 million.
In re National TechTeam Securities Litigation, USDC Eastern District of Michigan, Case No.
97-74587, a securities fraud class action in which Glancy Binkow & Goldberg served as CoLead Counsel for the Class and achieved a settlement valued in excess of $11 million.
In re Ramp Networks, Inc. Securities Litigation, USDC Northern District of California, Case No.
C-00-3645 JCS, a securities fraud class action in which Glancy Binkow & Goldberg served as
Co-Lead Counsel for the Class and achieved a settlement of nearly $7 million.
In re Gilat Satellite Networks, Ltd. Securities Litigation, USDC Eastern District of New York,
Case No. 02-1510 CPS, a securities fraud class action in which Glancy Binkow & Goldberg
served as Co-Lead Counsel for the Class and achieved a settlement of $20 million.
Taft v. Ackermans (KPNQwest Securities Litigation), USDC Southern District of New York,
Case No. 02-CV-07951, a securities fraud class action in which Glancy Binkow & Goldberg
served as Co-Lead Counsel for the Class and achieved a settlement worth $11 million.
Ree v. Procom Technologies, Inc., USDC Southern District of New York, Case No. 02CV7613,
a securities fraud class action in which Glancy Binkow & Goldberg served as Co-Lead Counsel
for the Class and achieved a settlement of $2.7 million.
Capri v. Comerica, Inc., USDC Eastern District of Michigan, Case No. 02CV60211 MOB, a
the Class and achieved a settlement of $6.0 million.
Tatz v. Nanophase Technologies Corp., USDC Northern District of Illinois, Case No. 01C8440,
a securities fraud class action in which Glancy Binkow & Goldberg served as Co-Lead Counsel
for the Class and achieved a settlement of $2.5 million.
In re Livent, Inc. Noteholders Litigation, USDC Southern District of New York, Case No. 99 Civ
9425, a securities fraud class action in which Glancy Binkow & Goldberg served as Co-Lead
Counsel for the Class and achieved a settlement of over $27 million.
Plumbing Solutions Inc. v. Plug Power, Inc., USDC Eastern District of New York, Case No. CV
00 5553 (ERK) (RML), a securities fraud class action in which Glancy Binkow & Goldberg
served as Co-Lead Counsel for the Class and achieved a settlement of over $5 million.
280915.5
Page 3
Schleicher v. Wendt ,(Conseco Securities Litigation), USDC Southern District of Indiana, Case
No. 02-1332 SEB, a securities fraud class action in which Glancy Binkow & Goldberg served as
Lead Counsel for the Class and achieved a settlement of over $41 million.
Lapin v. Goldman Sachs, USDC Southern District of New York, Case No. 03-0850-KJD, a
the Class and achieved a settlement of $29 million.
Senn v. Sealed Air Corporation, USDC New Jersey, Case No. 03-cv4372, a securities fraud class
action, in which the Firm acted as co-lead counsel for the Class and achieved a settlement of $20
million.
Glancy Binkow & Goldberg filed the initial landmark antitrust lawsuit against all of the major
NASDAQ market makers and served on Plaintiffs’ Counsel’s Executive Committee in In re
Nasdaq Market-Makers Antitrust Litigation, USDC Southern District of New York, Case No. 94
C 3996 (RWS), MDL Docket No. 1023, which recovered $900 million for investors in numerous
heavily traded Nasdaq issues.
The Firm has also previously acted as Class Counsel in obtaining substantial benefits for
shareholders in a number of actions, including:
In re F & M Distributors Securities Litigation,
Eastern District of Michigan, Case No. 95 CV 71778 DT (Executive Committee Member)
($20.25 million settlement)
James F. Schofield v. McNeil Partners, L.P. Securities Litigation,
California Superior Court, County of Los Angeles, Case No. BC 133799
Resources High Equity Securities Litigation,
California Superior Court, County of Los Angeles, Case No. BC 080254
The Firm has served and currently serves as Class Counsel in a number of antitrust class actions,
including:
In re Nasdaq Market-Makers Antitrust Litigation,
USDC Southern District of New York, Case No. 94 C 3996 (RWS), MDL Docket No. 1023
In re Brand Name Prescription Drug Antitrust Litigation,
USDC Northern District of Illinois, Eastern Division, Case No. 94 C 897
Glancy Binkow & Goldberg LLP has been responsible for obtaining favorable appellate opinions
which have broken new ground in the class action or securities fields, or which have promoted
shareholder rights in prosecuting these actions. Glancy Binkow & Goldberg successfully argued
the appeals in a number of cases.
280915.5
Page 4
In Smith v. L’Oreal, 39 Cal.4th 77 (2006), Firm partner Kevin Ruf established ground-breaking
law when the California Supreme Court agreed with the Firm’s position that waiting penalties
under the California Labor Code are available to any employee after termination of employment,
regardless of the reason for that termination.
Other notable Firm cases are: Silber v. Mabon I, 957 F.2d 697 (9th Cir. 1992) and Silber v.
Mabon II, 18 F.3d 1449 (9th Cir. 1994), which are the leading decisions in the Ninth Circuit
regarding the rights of opt-outs in class action settlements. In Rothman v. Gregor, 220 F.3d 81
(2d Cir. 2000), Glancy Binkow & Goldberg won a seminal victory for investors before the
Second Circuit Court of Appeals, which adopted a more favorable pleading standard for
investors in reversing the District Court’s dismissal of the investors’ complaint. After this
successful appeal, Glancy Binkow & Goldberg then recovered millions of dollars for defrauded
investors of the GT Interactive Corporation. The Firm also argued Falkowski v. Imation Corp.,
309 F.3d 1123 (9th Cir. 2002), as amended, 320 F.3d 905 (9th Cir. 2003) and favorably obtained
the substantial reversal of a lower court’s dismissal of a cutting edge, complex class action
initiated to seek redress for a group of employees whose stock options were improperly forfeited
by a giant corporation in the course of its sale of the subsidiary at which they worked. The
revived action is currently proceeding in the California state court system.
The Firm is also involved in the representation of individual investors in court proceedings
throughout the United States and in arbitrations before the American Arbitration Association,
National Association of Securities Dealers, New York Stock Exchange, and Pacific Stock
Exchange. Mr. Glancy has successfully represented litigants in proceedings against such major
securities firms and insurance companies as A.G. Edwards & Sons, Bear Stearns, Merrill Lynch
& Co., Morgan Stanley, PaineWebber, Prudential, and Shearson Lehman Brothers.
One of the Firm’s unique skills is the use of “group litigation” - the representation of groups of
individuals who have been collectively victimized or defrauded by large institutions. This type
of litigation brought on behalf of individuals who have been similarly damaged often provides an
efficient and effective economic remedy that frequently has advantages over the class action or
individual action devices. The Firm has successfully achieved results for groups of individuals
in cases against major corporations such as Metropolitan Life Insurance Company, and
Occidental Petroleum Corporation.
Glancy Binkow & Goldberg LLP currently consists of the following attorneys:
PARTNERS
LEE ALBERT, a partner in the Firm's New York office, was admitted to the bars of the
Commonwealth of Pennsylvania, the State of New Jersey, and the United States District Courts
for the Eastern District of Pennsylvania and the District of New Jersey in 1986. He received his
B.S. and M.S. degrees from Temple University and Arcadia University in 1975 and 1980,
respectively, and received his J.D. degree from Widener University School of Law in 1986.
Upon graduation from law school, Mr. Albert spent several years working as a civil litigator in
Philadelphia, PA. Mr. Albert has extensive litigation and appellate practice experience having
argued before the Supreme and Superior Courts of Pennsylvania and has over fifteen years of
trial experience in both jury and non-jury cases and arbitrations. Mr. Albert has represented a
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national health care provider at trial obtaining injunctive relief in federal court to enforce a fiveyear contract not to compete on behalf of a national health care provider and injunctive relief on
behalf of an undergraduate university.
Currently, Mr. Albert represents clients in all types of complex litigation including matters
concerning violations of federal and state antitrust and securities laws, mass tort/product liability
and unfair and deceptive trade practices. Some of Mr. Albert’s current major cases include In Re
Automotive Wire Harness Systems Antitrust Litigation (E.D. Mich.); In Re Heater Control
Panels Antitrust Litigation (E.D. Mich.); Kleen Products, et al. v. Packaging Corp. of America
(N.D. Ill.); and In re Class 8 Transmission Indirect Purchaser Antitrust Litigation (D. Del.).
Previously, Mr. Albert had a significant role in Marine Products Antitrust Litigation (C.D. Cal.);
Baby Products Antitrust Litigation (E.D. Pa.); In re ATM Fee Litigation (N.D. Cal.); In re
Canadian Car Antitrust Litigation (D. Me.); In re Broadcom Securities Litigation (C.D. Cal.);
and has worked on In re Avandia Marketing, Sales Practices and Products Liability Litigation
(E.D. Pa.); In re Ortho Evra Birth Control Patch Litigation (N.J. Super. Ct., Middlesex County);
In re AOL Time Warner, Inc. Securities Litigation (S.D.N.Y.); In re WorldCom, Inc. Securities
Litigation (S.D.N.Y.); and In re Microsoft Corporation Massachusetts Consumer Protection
Litigation (Mass. Super. Ct.).
PETER A. BINKOW, a partner with the Firm, has prosecuted lawsuits on behalf of consumers
and investors in state and federal courts throughout the United States. He served as Lead or CoLead Counsel in many class action cases, including: In re Mercury Interactive Securities
Litigation ($117.5 million recovery); Schleicher v Wendt (Conseco Securities litigation - $41.5
million recovery); Lapin v Goldman Sachs ($29 million recovery); In re Heritage Bond
Litigation ($28 million recovery); In re National Techteam Securities Litigation ($11 million
recovery for investors); In re Lason Inc. Securities Litigation ($12.68 million recovery), In re
ESC Medical Systems, Ltd. Securities Litigation ($17 million recovery); and many others. In
Schleicher v Wendt, Mr. Binkow successfully argued the seminal Seventh Circuit case on class
certification, in an opinion authored by Chief Judge Frank Easterbrook. He has argued and/or
prepared appeals before the Ninth Circuit, Seventh Circuit, Sixth Circuit and Second Circuit
Courts of Appeals.
Mr. Binkow joined the Firm in 1994 and became a partner in 2002. He was born on August 16,
1965 in Detroit, Michigan. Mr. Binkow obtained a Bachelor of Arts degree from the University
of Michigan in 1988 and a Juris Doctor degree from the University of Southern California in
1994.
LOUIS BOYARSKY is a Partner in the Firm's Los Angeles office. Mr. Boyarsky supervises
the Firm’s Mergers & Acquisitions Practice and has served as lead, co-lead, and liaison counsel
in corporate takeover actions in state and federal courts throughout the country. Cases in which
Mr. Boyarsky has participated have achieved additional consideration for shareholders,
substantive changes to merger agreements, and critical disclosures regarding proposed
transactions. Mr. Boyarsky has also successfully prosecuted securities and derivative actions and
has provided commentary to national media outlets on high-profile cases.
Mr. Boyarsky’s recent litigation successes include In Rae Systems, Inc. Shareholder Litigation,
where his efforts as a member of the Plaintiffs’ Executive Committee helped lead to an increase
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of approximately $13.1 million in merger consideration received by Rae Systems shareholders.
As co-lead counsel in In re HQ Sustainable Maritime Indus., Inc., Derivative Litigation, Mr.
Boyarsky achieved a $2.75 million settlement on behalf of HQ’s shareholders arising out of
claims that HQ’s board of directors breached their fiduciary duties to the company’s
shareholders by failing to maintain adequate internal controls. In Susan Forbush v. Suffolk
Bancorp et al. Mr. Boyarsky’s efforts achieved comprehensive corporate governance reform at
the Company and the pendency of the litigation led to a near reconstitution of the Suffolk
Bancorp’s entire executive management team. Additionally, Mr. Boyarsky successfully argued
before the Ninth Circuit Court of Appeals in Ronald Dennis v. Pico Holdings Inc. et al 724 F.3d
1249 a novel issue with respect to whether the Dodd Frank Wall Street Reform and Consumer
Reform Act creates federal jurisdiction over state law breach of fiduciary duty claims where
there has been a failed shareholder say-on-pay vote.
Mr. Boyarsky received his JD/MBA from Loyola Law School, Los Angeles and Loyola
Marymount University’s Graduate School of Business. While in law school, Mr. Boyarsky
published his article Stealth Celebrity Testimonials of Prescription Drugs: Placing the Consumer
in Harm’s Way and How the FDA has Dropped the Ball. Additionally, while in law school Mr.
Boyarsky externed for the Honorable Suzanne H. Segal, magistrate judge for the Central District
of California. Mr. Boyarsky is a member of the St. Thomas More Legal Honor Society, the
Alpha Sigma Nu National Jesuit Honor Society and the Beta Gamma Sigma Business Honor
Society. Mr. Boyarsky is admitted to the State Bar of California, the Ninth Circuit Court of
Appeals, and the United States District Courts for the Northern, Southern, and Central Districts
of California.
In his free time, Mr. Boyarsky is active in his community and is currently a member of the AntiDefamation League’s Glass Leadership Institute.
JOSHUA L. CROWELL, a partner in the firm’s Los Angeles office, concentrates his practice
on prosecuting complex securities cases on behalf of investors. Recently he helped achieve a
successful resolution of the Hansen Medical, Inc., securities action, No. C 09-5094 CW (N.D.
Cal.), resulting in a settlement of $8.5 million for the shareholder class.
Prior to joining Glancy Binkow & Goldberg LLP, Joshua was an Associate at Labaton Sucharow
LLP in New York, where he helped secure several large federal securities class settlements in
cases such as In re Countrywide Financial Corporation Securities Litigation, No. CV 07-05295
MRP (MANx) (C.D. Cal.) ($624 million), and the Oppenheimer Champion Fund and Core Bond
Fund actions, Nos. 09-cv-525-JLK-KMT and 09-cv-1186-JLK-KMT (D. Colo.) ($100 million
combined). He began his legal career as an Associate at Paul, Hastings, Janofsky & Walker LLP
in New York, primarily representing financial services clients in commercial litigation.
Prior to attending law school, Joshua was a Senior Economics Consultant at Ernst & Young
LLP, where he priced intercompany transactions and calculated the value of intellectual property.
Joshua received a J.D., cum laude, from The George Washington University Law School. During
law school, he was an Associate of The George Washington Law Review and a member of the
Mock Trial Board. He was also a law intern for Chief Judge Edward J. Damich of the United
States Court of Federal Claims. Joshua earned a B.A. in International Relations from Carleton
College.
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LIONEL Z. GLANCY, a graduate of University of Michigan Law School, is the founding
partner of the Firm. After serving as a law clerk for United States District Judge Howard
McKibben, he began his career as an associate at a New York law firm concentrating in
securities litigation. Thereafter, he started a boutique law firm specializing in securities
litigation, and other complex litigation, from the Plaintiff’s perspective. Mr. Glancy has
established a distinguished career in the field of securities litigation over the last fifteen years,
having appeared and been appointed lead counsel on behalf of aggrieved investors in securities
class action cases throughout the country. He has appeared and argued before dozen of district
courts and a number of appellate courts. His efforts have resulted in the recovery of hundreds of
millions of dollars in settlement proceeds for huge classes of shareholders. Well known in
securities law, he has lectured on its developments and practice, including having lectured before
Continuing Legal Education seminars and law schools.
Mr. Glancy was born in Windsor, Canada, on April 4, 1962. Mr. Glancy earned his
undergraduate degree in political science in 1984 and his Juris Doctor degree in 1986, both from
the University of Michigan. He was admitted to practice in California in 1988, and in Nevada
and before the U.S. Court of Appeals, Ninth Circuit, in 1989.
MARC L. GODINO has extensive experience successfully litigating complex, class action
lawsuits as a plaintiffs’ lawyer. Mr. Godino has played a primary role in cases resulting in
settlements of more than $100 million. He has prosecuted securities, derivative, merger &
acquisition, and consumer cases throughout the country in both state and federal court, as well as
represented defrauded investors at FINRA arbitrations. Mr. Godino manages the Firm’s
consumer class action department.
While an associate with Stull Stull & Brody, Mr. Godino was one of the two primary attorneys
involved in Small v. Fritz Co., 30 Cal. 4th 167 (April 7, 2003), in which the California Supreme
Court created new law in the State of California for shareholders that held shares in detrimental
reliance on false statements made by corporate officers. The decision was widely covered by
national media including The National Law Journal, the Los Angeles Times, the New York
Times, and the New York Law Journal, among others, and was heralded as a significant victory
for shareholders.
Recent successes with the Firm include: In re Magma Design Automation, Inc. Securities
Litigation, Case No. 05-2394 (N.D. Cal.) ($13,500,000.00 cash settlement for shareholders); In
re Hovnanian Enterprises, Inc. Securities Litigation, Case No. 08-cv-0099 (D.N.J.)
($4,000,000.00 cash settlement for shareholders); In re Skilled Healthcare Group, Inc. Securities
Litigation, Case No. 09-5416 (C.D. Cal.) ($3,000,000.00 cash settlement for shareholders); In re
Youbet.com, Inc. Shareholder Litigation, Case No. BC426144 (L.A. Sup. Ct.) (settlement
provided supplemental disclosures to shareholders in this merger action); Burth v. MSC Software
Corp., et al., Case No. 30-2009-00282743 (Orange Cty. Sup. Ct.) (settlement provided
supplemental disclosures to shareholders in this merger action); Kelly v. Phiten USA, Inc., Case
No. 11-67 (S.D. Iowa) ($3.2 million dollar cash settlement in addition to injunctive relief); (Shin
et al., v. BMW of North America, 2009 WL 2163509 (C.D. Cal. July 16, 2009) (after defeating a
motion to dismiss, the case settled on very favorable terms for class members including free
replacement of cracked wheels); Payday Advance Plus, Inc. v. MIVA, Inc., Case No. 06-1923
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(S.D.N.Y.) ($3,936,812 cash settlement for class members); Villefranche v. HSBC Bank Nevada,
N.A., Case No. 09-3693 (C.D.Cal.) (after defeating a motion to dismiss, the case resulted in
100% recovery to class members); Esslinger, et al. v. HSBC Bank Nevada, N.A., Case No. 1003213 (E.D. Pa.) ($23.5 million settlement pending final approval); In re Discover Payment
Protection Plan Marketing and Sales Practices Litigation, Case No. 10-06994 ($10.5 million
settlement pending final approval).
Other published decisions include: In re 2TheMart.com Securities Litigation, 114 F. Supp. 2d
955 (C.D. Cal. 2002) (motion to dismiss denied); In re Irvine Sensors Securities Litigation, 2003
U.S. Dist. LEXIS 18397 (C.D. Cal. 2003) (motion to dismiss denied); Shin v. BMW of North
America, 2009 WL 2163509 (C.D. Cal. July 16, 2009) (motion to dismiss denied); In re Toyota
Motor Corp. Hybrid Brake Marketing, Sales, Practices and Products Liability Litigation, 2011
WL 6189467 (C.D. Cal. Dec. 13, 2011) (motion to compel arbitration denied).
The following represent just a few of the more than two dozen cases Mr. Godino is currently
litigating in a leadership position: In re Toyota Motor Corp. Hybrid Brake Marketing, Sales
Practices and Products Liability Litigation, MDL 02172 (C.D. Cal.), Co-Lead Counsel; In re
Stec, Inc. Derivative Litigation, Case No. 10-00667 (C.D. Cal.), Co-Lead Counsel; Thompson v.
Brett Bros. Sports Intl., Inc., Case No. 12-55 (S.D. Iowa), Co-Lead Counsel.
Mr. Godino received his undergraduate degree from Susquehanna University with a Bachelor of
Science degree in Business Management. He received his Juris Doctor degree from Whittier Law
School in 1995.
Mr. Godino is admitted to practice before the State of California, the United States District
Courts for the Central, Northern, and Southern Districts of California, the District of Colorado,
and the Ninth Circuit Court of Appeals.
MICHAEL M. GOLDBERG specializes in federal securities, federal and state antitrust, and
consumer fraud class action lawsuits. He has successfully litigated numerous cases which
resulted in multi-million dollar recoveries for investors, consumers and businesses.
Mr. Goldberg was born in New York on April 27, 1966. He earned his Bachelor of Arts degree
in 1989 from Pitzer College of The Claremont Colleges, and his Juris Doctor degree in 1996
from Thomas M. Cooley Law School. After graduating from law school, Mr. Goldberg joined
the Firm and became a partner in 2003. He was admitted to both the California and Florida bars
in 1997 and is admitted to practice in numerous courts.
ROBIN BRONZAFT HOWALD, a native of Brooklyn, New York, returned home in 2001,
after practicing for 18 years in Los Angeles, to open the Firm’s New York City office.
Prior to joining the Firm in 2000, Mrs. Howald’s diverse civil litigation practice included
commercial disputes, professional malpractice, wrongful termination, bankruptcy, patent, public
contract and construction matters. As outside counsel for the City of Torrance, California, she
also handled a number of civil rights and land use matters, as well as a ground-breaking
environmental action concerning Mobil Oil’s Torrance refinery. She co-authored “Potential Tort
Liability in Business Takeovers” (California Lawyer, September 1986), was a speaker and
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contributing author at the Eighth Annual Current Environmental and Natural Resources Issues
Seminar at the University of Kentucky College of Law (April 1991), and served as a Judge Pro
Tem for the Los Angeles County Small Claims Court (1996-1997).
Mrs. Howald became a partner in the Firm in 2004 and has prosecuted both class action and
individual cases which have recovered hundreds of millions of dollars for injured investors and
consumers, including:
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Schleicher, et al. v. Wendt, et al. (Conseco), Case No. 02-cv-1332 (S.D. Ind.) ($41.5 million
settlement);
Lapin v. Goldman Sachs, Case No. 03-850 (S.D.N.Y.) ($29 million settlement);
In Re: Mannkind Corporation Securities Litigation, Case No. 11-929 (C.D. Cal)
(approximately $22 million settlement - $16 million in cash plus stock);
In re ECI Telecom Ltd. Securities Litigation, Case No. 01-913 (E.D. Va.) ($21.75 million
settlement);
In re Gilat Satellite Networks, Ltd., Case No. 02-1510 (E.D.N.Y.) ($20 million settlement);
In re Infonet Services Corporation Securities Litigation, Case No. 01-10456 (C.D. Cal.) ($18
million settlement);
HCL Partners Limited Partnership, et al. v. Leap Wireless International, Inc. , et al., Case
No. 07-2245 (S.D. Cal.) ($13.75 million settlement);
In re Musicmaker.com Securities Litigation, Case No. 00-2018 (C.D. Cal.) ($13 million
settlement);
Taft v. Ackermans (KPNQuest), Case No. 02-7951 (S.D.N.Y.) ($11 million settlement);
Jenson v. First Trust Corporation, Case No. 05-3124 (C.D. Cal.) ($8.5 million settlement);
In re Ramp Networks, Inc. Securities Litigation, Case No. 00-3645 (N.D. Cal) ($6.9 million
settlement);
Childs, et al., v. Applied Digital Solutions, Inc., et al., Case No. 02-80468 (S.D. Fla.) ($5.6
In re TTI Securities Litigation, Case No. 04-4305 (D.N.J.) ($4.3 million settlement);
In re Hovnanian Enterprises, Inc. Securities Litigation, Case No. 08-0099 (D.N.J.) ($4
Yanek, et al. v. STAAR Surgical Company, et al., Case No. 04-8007 (C.D. Cal.) ($3.7 million
settlement);
Wayne Szymborski, et al. v. Ormat Technologies, Inc., et al., Case No. 10-132 (D. Nev.)
($3.1 million settlement);
Steve Crotteau, et al. v. Addus HomeCare Corporation, et al., Case No. 10-1937 (N.D. Ill)
($3 million settlement);
Ree, et al v. Pinckert, et al (Cholestech), Case No. 99-562 (N.D. Cal.) ($3 million
settlement);
In re Skilled Healthcare Group, Inc. Securities Litigation, Case No. 09-5416 (C.D. Cal.) ($3
In re Atricure, Inc. Securities Litigation, Case No. 08-867 (S.D. Ohio) ($2.75 million
settlement);
Ree v. Procom Technologies, Inc., Case No. 02-7613 (S.D.N.Y.) ($2.7 million settlement);
Tatz v. Nanophase Technologies Corp., Case No. 01-8440 (N.D. Ill.) ($2.5 million
settlement);
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In re Focus Enhancements, Inc. Securities Litigation, Case No. 99-12344 (D. Mass.) ($1.4
million settlement); and
In Re Allot Communications Ltd. Securities Litigation, Case No. 07-03455 (S.D.N.Y.) ($1.3
million settlement).
Married in 1985, Mrs. Howald and her husband have two sons. An avid distance runner since
1999, Mrs. Howald has run the Boston Marathon four times and completed 27 additional
marathons.
SUSAN G. KUPFER is the founding partner of the Firm's San Francisco office and head of the
Firm’s Antitrust Practice Group. Ms Kupfer joined the Firm in 2003. She is a native of New
York City, and received her A.B. degree from Mount Holyoke College in 1969 and her Juris
Doctor degree from Boston University School of Law in 1973. She did graduate work at
Harvard Law School and, in 1977, was named Assistant Dean and Director of Clinical Programs
at Harvard, supervising and teaching in that program of legal practice and related academic
components.
For much of her legal career, Ms. Kupfer has been a professor of law. Her areas of academic
expertise are Civil Procedure, Federal Courts, Conflict of Laws, Constitutional Law, Legal
Ethics, and Jurisprudence. She has taught at Harvard Law School, Hastings College of the Law,
Boston University School of Law, Golden Gate University School of Law, and Northeastern
University School of Law. From 1991 through 2002, she was a lecturer on law at the University
of California, Berkeley, Boalt Hall, teaching Civil Procedure and Conflict of Laws. Her
publications include articles on federal civil rights litigation, legal ethics, and jurisprudence. She
has also taught various aspects of practical legal and ethical training, including trial advocacy,
negotiation and legal ethics, to both law students and practicing attorneys.
Ms. Kupfer previously served as corporate counsel to The Architects Collaborative in Cambridge
and San Francisco, and was the Executive Director of the Massachusetts Commission on Judicial
Conduct. She returned to the practice of law in San Francisco with Morgenstein & Jubelirer and
Berman DeValerio LLP before joining the Firm.
Ms. Kupfer’s practice is concentrated in complex antitrust litigation. She currently serves, or has
served, as Co-Lead Counsel in several multidistrict antitrust cases: In re Photochromic Lens
Antitrust Litig. (MDL 2173, M.D. Fla. 2010); In re Fresh and Process Potatoes Antitrust Litig.
(D. ID. 2011); In re Korean Air Lines Antitrust Litig. (MDL No. 1891, C.D. Cal. 2007); In re
Urethane Antitrust Litigation (MDL 1616, D. Kan. 2004); In re Western States Wholesale
Natural Gas Litigation (MDL 1566, D. Nev. 2005); and Sullivan et al v. DB Investments et al (D.
N.J. 2004). She has been a member of the lead counsel teams that achieved significant
settlements in: In re Sorbates Antitrust Litigation ($96.5 million settlement); In re Pillar Point
Partners Antitrust Litigation ($50 million settlement); and In re Critical Path Securities
Litigation ($17.5 million settlement).
Ms. Kupfer is a member of the bar of Massachusetts and California, and is admitted to practice
before the United States District Courts for the Northern, Central, Eastern and Southern Districts
of California, the District of Massachusetts, the Courts of Appeals for the First and Ninth
Circuits, and the U.S. Supreme Court.
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BRIAN MURRAY, a partner, was admitted to the bars of Connecticut in 1990, New York and
the United States District Courts for the Southern and Eastern Districts of New York in 1991, the
Second Circuit in 1997, the First and Fifth Circuits in 2000, the Ninth Circuit in 2002, and the
Eastern and Western Districts of Arkansas in 2011. He received Bachelor of Arts and Master of
Arts degrees from the University of Notre Dame in 1983 and 1986, respectively. He received a
Juris Doctor degree, cum laude, from St. John’s University School of Law in 1990. At St.
John’s, he was the Articles Editor of the ST. JOHN’S LAW REVIEW. Mr. Murray co-wrote:
Jurisdição Estrangeira Tem Papel Relevante Na De Fiesa De Investidores Brasileiros, ESPAÇA
JURÍDICO BOVESPA (August 2008); The Proportionate Trading Model: Real Science or Junk
Science?, 52 CLEVELAND ST. L. REV. 391 (2004-05); The Accident of Efficiency: Foreign
Exchanges, American Depository Receipts, and Space Arbitrage, 51 BUFFALO L. REV. 383
(2003); You Shouldn’t Be Required To Plead More Than You Have To Prove, 53 BAYLOR L.
REV. 783 (2001); He Lies, You Die: Criminal Trials, Truth, Perjury, and Fairness, 27 NEW
ENGLAND J. ON CIVIL AND CRIMINAL CONFINEMENT 1 (2001); Subject Matter
Jurisdiction Under the Federal Securities Laws: The State of Affairs After Itoba, 20
MARYLAND J. OF INT’L L. AND TRADE 235 (1996); Determining Excessive Trading in
Option Accounts: A Synthetic Valuation Approach, 23 U. DAYTON L. REV. 316 (1997); Loss
Causation Pleading Standard, NEW YORK LAW JOURNAL (Feb. 25, 2005); The PSLRA
‘Automatic Stay’ of Discovery, NEW YORK LAW JOURNAL (March 3, 2003); and Inherent
Risk In Securities Cases In The Second Circuit, NEW YORK LAW JOURNAL (Aug. 26, 2004).
He also authored Protecting The Rights of International Clients in U.S. Securities Class Action
Litigation, INTERNATIONAL LITIGATION NEWS (Sept. 2007); Lifting the PSLRA
“Automatic Stay” of Discovery, 80 N. DAK. L. REV. 405 (2004); Aftermarket Purchaser
Standing Under § 11 of the Securities Act of 1933, 73 ST. JOHN’S L. REV.633 (1999); Recent
Rulings Allow Section 11 Suits By Aftermarket Securities Purchasers, NEW YORK LAW
JOURNAL (Sept. 24, 1998); and Comment, Weissmann v. Freeman: The Second Circuit Errs in
its Analysis of Derivative Copy-rights by Joint Authors, 63 ST. JOHN’S L. REV. 771 (1989).
Mr. Murray was on the trial team that prosecuted a securities fraud case under Section 10(b) of
the Securities Exchange Act of 1934 against Microdyne Corporation in the Eastern District of
Virginia and he was also on the trial team that presented a claim under Section 14 of the
Securities Exchange Act of 1934 against Artek Systems Corporation and Dynatach Group which
settled midway through the trial.
Mr. Murray’s major cases include In re Eagle Bldg. Tech. Sec. Litig., 221 F.R.D. 582 (S.D. Fla.
2004), 319 F. Supp. 2d 1318 (S.D. Fla. 2004) (complaint against auditor sustained due to
magnitude and nature of fraud; no allegations of a “tip-off” were necessary); In re Turkcell
Iletisim A.S. Sec. Litig., 209 F.R.D. 353 (S.D.N.Y. 2002) (defining standards by which
investment advisors have standing to sue); In re Turkcell Iletisim A.S. Sec. Litig., 202 F. Supp. 2d
8 (S.D.N.Y. 2001) (liability found for false statements in prospectus concerning churn rates);
Feiner v. SS&C Tech., Inc., 11 F. Supp. 2d 204 (D. Conn. 1998) (qualified independent
underwriters held liable for pricing of offering); Malone v. Microdyne Corp., 26 F.3d 471 (4th
Cir. 1994) (reversal of directed verdict for defendants); and Adair v. Bristol Tech. Systems, Inc.,
179 F.R.D. 126 (S.D.N.Y. 1998) (aftermarket purchasers have standing under section 11 of the
Securities Act of 1933). Mr. Murray also prevailed on an issue of first impression in the
Superior Court of Massachusetts, in Cambridge Biotech Corp. v. Deloitte and Touche LLP, in
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which the court applied the doctrine of continuous representation for statute of limitations
purposes to accountants for the first time in Massachusetts. 6 Mass. L. Rptr. 367 (Mass. Super.
Jan. 28, 1997). In addition, in Adair v. Microfield Graphics, Inc. (D. Or.), Mr. Murray settled the
case for 47% of estimated damages. In the Qiao Xing Universal Telephone case, claimants
received 120% of their recognized losses.
Among his current cases, Mr. Murray represents the West Virginia Investments Management
Board in a major litigation against ResidentialAccredit Loans, Deustche Bank, and Credit Suisse.
Mr. Murray is also currently co-lead counsel in Avenarius, et al., v. Eaton Corp., et al. (D. Del.),
an antitrust class action against the world’s largest commercial truck and transmission
manufactures.
Mr. Murray served as a Trustee of the Incorporated Village of Garden City (2000-2002);
Commissioner of Police for Garden City (2000-2001); Co-Chairman, Derivative Suits
Subcommittee, American Bar Association Class Action and Derivative Suits Committee, (2007Present); Member, Sports Law Committee, Association of the Bar for the City of New York,
1994-1997; Member, Litigation Committee, Association of the Bar for the City of New York,
2003-2007; Member, New York State Bar Association Committee on Federal Constitution and
Legislation, 2005-2008; Member, Federal Bar Council, Second Circuit Committee, 2007-present.
Mr. Murray has been a panelist at CLEs sponsored by the Federal Bar Council and the Institute
for Law and Economic Policy, at the German-American Lawyers Association Annual Meeting in
Frankfurt, Germany, and is a frequent lecturer before institutional investors in Europe and South
America on the topic of class actions.
ROBERT V. PRONGAY is a partner in the Firm’s Los Angeles office where he focuses on the
investigation, initiation, and prosecution of complex securities cases on behalf of institutional
and individual investors. Mr. Prongay’s practice concentrates on actions to recover investment
losses resulting from violations of the federal securities laws and various actions to vindicate
shareholder rights in response to corporate and fiduciary misconduct.
Mr. Prongay has extensive experience litigating complex cases in state and federal courts
nationwide. Since joining the Firm, Mr. Prongay has successfully recovered millions of dollars
for investors victimized by securities fraud and has negotiated the implementation of significant
corporate governance reforms aimed at preventing the recurrence of corporate wrongdoing.
Some recent cases in which the Firm was appointed as lead counsel that Mr. Prongay has worked
on include:
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Representation of the lead plaintiffs in Fuller v. Imperial Holdings et al., a putative
securities class action on behalf of investors alleging violations of the Securities Act of
1933 in connection with the company’s $189 million initial public offering. The lawsuit
related to misrepresentations and omissions about the company’s business practices and
involvement in illegal stranger-originated life insurance transactions. The case settled
for $12 million and the issuance of warrants to purchase two million shares of the
company’s common stock;
Representation of the lead plaintiffs in Curry v. Hansen Medical, Inc., et al., a putative
securities class action on behalf investors alleging violations of the Securities Exchange
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Act of 1934. The case related to the company’s restatement of several quarters of
financial statements as a result of, among others, improper revenue recognition and
accounting irregularities. The case settled for $8.5 million;
Representation of the lead plaintiffs in Ho v. Duoyuan Global Water, Inc., et al., a
putative securities class action on behalf of investors alleging violations of the Securities
Act of 1933 and the Securities Exchange Act of 1934. The case related to
misrepresentations and omissions about the financial condition and operations of a
Chinese company publicly traded in the United States. The case settled for $5.15 million;
Representation of the lead plaintiff in Crotteau v. Addus Homecare Corporation, et al., a
securities class action on behalf of investors alleging violations of the Securities Act of
1933 in connection with the company’s initial public offering. The case settled for $3
million;
Representation of the lead plaintiff in Murdeshwar v. Search Media Holdings Ltd., et al.,
a securities class action alleging violations of the Securities Exchange Act of 1934.
During the course of the litigation, the court found that the lead plaintiff had adequately
alleged that the proxy materials provided to the investors of the special-purpose
acquisition company contained misstatements and omissions about the company being
acquired. The case settled for $2.75 million; and
Representation of the lead plaintiffs in Mishkin v. Zynex Inc., et al., a securities class
action on behalf of investors alleging violations of the Securities Exchange Act of 1934.
The case related to the company’s restatement of its financial results and involved
allegations that the company had engaged in a systematic scheme to over-bill insurance
companies from which the company had routinely sought payment for the sale and rental
of its products. The case settled for $2.5 million.
Several of Mr. Prongay’s cases have received national and regional press coverage. Mr. Prongay
has been interviewed by journalists and writers for national and industry publications, ranging
from The Wall Street Journal to the Los Angeles Daily Journal. Mr. Prongay recently appeared
as a guest on Bloomberg Television where he was interviewed about the securities litigation
stemming from the high-profile initial public offering of Facebook, Inc.
Mr. Prongay received his Bachelor of Arts degree in Economics from the University of Southern
California and his Juris Doctor degree from Seton Hall University School of Law. Mr. Prongay
is also an alumnus of the Lawrenceville School.
KEVIN F. RUF graduated from the University of California at Berkeley in 1984 with a
Bachelor of Arts in Economics and earned his Juris Doctor degree from the University of
Michigan in 1987. Mr. Ruf was admitted to the State Bar of California in 1988. Mr. Ruf was an
associate at the Los Angeles firm Manatt Phelps and Phillips from 1988 until 1992, where he
specialized in commercial litigation and was a leading trial lawyer among the associates there.
In 1993, he joined the firm Corbin & Fitzgerald in order to gain experience in criminal law.
There, he specialized in white collar criminal defense work, including matters related to National
Medical Enterprises, Cynergy Film Productions and the Estate of Doris Duke. Mr. Ruf joined
the Firm in 2001 and has taken a lead trial lawyer role in many of the Firm's cases. In 2006, Mr.
Ruf argued before the California Supreme Court in the case Smith v. L'Oreal and achieved a
unanimous reversal of the lower court rulings; the case established a fundamental right of all
California workers to immediate payment of all earnings at the conclusion of employment. In
280915.5
Page 14
2007, Mr. Ruf took an important case before the Ninth Circuit Court of Appeals, convincing the
Court to affirm the lower court's certification of a class action in a fraud case (fraud cases have
traditionally faced difficulty as class actions because of the requirement of individual reliance).
Mr. Ruf has extensive trial experience, including jury trials, and considers his courtroom and oral
advocacy skills to be his strongest asset as a litigator. Mr. Ruf currently acts as the Head of the
Firm's Labor and Consumer Practice, and has extensive experience in securities cases as well.
Mr. Ruf also has experience in real estate law and has been a Licensed California Real Estate
Broker since 1999.
EX KANO S. SAMS II earned his Bachelor of Arts degree in Political Science from the
University of California Los Angeles. Mr. Sams earned his Juris Doctor degree from the
University of California Los Angeles School of Law, where he served as a member of the UCLA
Law Review. After law school, Mr. Sams practiced class action civil rights litigation on behalf
of plaintiffs. Subsequently, Mr. Sams was a partner at Coughlin Stoia Geller Rudman &
Robbins LLP (currently Robbins Geller Rudman & Dowd LLP) – the largest plaintiffs’ class
action firm in the country – where his practice focused on securities and consumer class actions
on behalf of investors and consumers.
Mr. Sams has served as lead counsel in dozens of securities class actions, shareholder derivative
actions, and complex litigation cases throughout the United States. In conjunction with the
efforts of co-counsel, Mr. Sams briefed and successfully obtained the reversal in the Ninth
Circuit of an order dismissing class action claims brought pursuant to Sections 11 and 15 of the
Securities Act of 1933. Hemmer Grp. v. SouthWest Water Co., No 11-56154, 2013 WL
2460197 (9th Cir. June 7, 2013). In another securities case that he actively litigated, Mr. Sams
assisted in a successful appeal before a Fifth Circuit panel that included former United States
Supreme Court Justice Sandra Day O’Connor sitting by designation, in which the court
unanimously vacated the lower court’s denial of class certification, reversed the lower court’s
grant of summary judgment, and issued an important decision on the issue of loss causation in
securities litigation: Alaska Electrical Pension Fund v. Flowserve Corp., 572 F.3d 221 (5th Cir.
2009). The case settled for $55 million.
Mr. Sams has also obtained other significant results. Notable examples include: Forbush v.
Goodale, No. 33538/2011, 2013 WL 582255 (N.Y. Sup. Feb. 4, 2013) (denying motions to
dismiss in a shareholder derivative action); Curry v. Hansen Med., Inc., No. C 09-5094 CW,
2012 WL 3242447 (N.D. Cal. Aug. 10, 2012) (upholding securities fraud complaint; case settled
for $8.5 million); Wilkof v. Caraco Pharm. Labs., Ltd., 280 F.R.D. 332 (E.D. Mich. 2012)
(granting class certification); Puskala v. Koss Corp., 799 F. Supp. 2d 941 (E.D. Wis. 2011)
(upholding securities fraud complaint); Mishkin v. Zynex Inc., Civil Action No. 09-cv-00780REB-KLM, 2011 WL 1158715 (D. Colo. Mar. 30, 2011) (denying defendants’ motion to dismiss
securities fraud complaint); Wilkof v. Caraco Pharm. Labs., Ltd., No. 09-12830, 2010 WL
4184465 (E.D. Mich. Oct. 21, 2010) (upholding securities fraud complaint and cited favorably
by the Eighth Circuit in Public Pension Fund Grp. v. KV Pharm. Co., 679 F.3d 972, 981-82 (8th
Cir. 2012)); and Tsirekidze v. Syntax-Brillian Corp., No. CV-07-02204-PHX-FJM, 2009 WL
2151838 (D. Ariz. July 17, 2009) (granting class certification; case settled for $10 million).
Additionally, Mr. Sams has successfully represented consumers in class action litigation. Mr.
Sams worked on nationwide litigation and a trial against major tobacco companies, and in
280915.5
Page 15
statewide tobacco litigation that resulted in a $12.5 billion recovery for California cities and
counties in a landmark settlement. He also was a principal attorney in a consumer class action
against one of the largest banks in the country that resulted in a substantial recovery and a
change in the company’s business practices. Mr. Sams also participated in settlement
negotiations on behalf of environmental organizations along with the United States Department
of Justice and the Ohio Attorney General’s Office that resulted in a consent decree requiring a
company to perform remediation measures to address the effects of air and water pollution.
Mr. Sams is a member of the John M. Langston Bar Association, as well as other local and
business bar associations. Additionally, Mr. Sams has volunteered at community legal clinics to
provide pro bono legal services to low-income and underrepresented individuals in South Central
Los Angeles. Mr. Sams also serves as a mentor to law students through the John M. Langston
Bar Association.
KARA M. WOLKE's practice spans consumer, labor, securities, and other areas of complex
class action prosecution. She has extensive experience in written appellate advocacy in both
State and Federal Circuit Courts of Appeals, and has successfully argued before the Court of
Appeals for the State of California.
Ms. Wolke graduated summa cum laude with a B.S.B.A. in Economics from The Ohio State
University in 2001, and subsequently earned her J.D. (with honors) from Ohio State, where she
was active in Moot Court and received the Dean’s Award for Excellence during each of her three
years. In 2005, she was a finalist in a national writing competition co-sponsored by the American
Bar Association and the Grammy® Foundation. Her article, regarding United States Copyright
Law’s failure to provide a public performance right in sound recordings, is published at 7 Vand.
J. Ent. L. & Prac. 411.
Since joining the firm in 2005, and becoming a partner in 2014, Ms. Wolke has aided in the
prosecution of class action cases which have recovered hundreds of millions of dollars for
injured investors, consumers, and employees, including: Schleicher, et al. v. Wendt, et al.
(Conseco), Case No. 02-cv-1332 (S.D. Ind.) ($41.5 million securities class action settlement);
Lapin v. Goldman Sachs, Case No. 03-850 (S.D.N.Y.) ($29 million securities class action
settlement); In Re: Mannkind Corporation Securities Litigation, Case No. 11-929 (C.D. Cal)
(approximately $22 million settlement - $16 million in cash plus stock); Jenson v. First Trust
Corporation, Case No. 05-3124 (C.D. Cal.) ($8.5 million settlement of class action alleging
breach of fiduciary duty and breach of contract); and Pappas v. Naked Juice Co., Case No. 1108276 (C.D. Cal.) ($9 million settlement in consumer class action alleging misleading labeling of
juice products as “All Natural”). With a background in intellectual property, Ms. Wolke is
currently prosecuting a class action seeking to have a large music publisher’s claim of copyright
ownership over the song “Happy Birthday to You” declared invalid.
Ms. Wolke is admitted to the State Bar of California, the Ninth Circuit Court of Appeals, as well
as the United States District Courts for the Northern, Southern, and Central Districts of
California.
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SENIOR COUNSEL
JOSEPH M. BARTON has represented plaintiffs in securities, antitrust, and consumer class
action litigation since 1997. Prior to joining the Firm, Mr. Barton practiced at Gold Bennett Cera
& Sidener LLP in San Francisco.
During his career, Mr. Barton has successfully litigated many notable class actions throughout
the United States while serving on the Lead or Co-Lead counsel team, including: HPL
Technologies Securities Litigation, ($25.5 million settlement); CBT Group PLC Securities
Litigation ($32 million settlement); Rubber Chemicals Antitrust Litigation, ($320 million
settlement); EPDM Antitrust Litigation ($106 million settlement); Carbon Black Antitrust
Litigation ($20 million settlement); Organic Peroxides Antitrust Litigation, ($37 million
settlement); CR Antitrust Litigation ($62 million settlement); MCAA Antitrust Litigation, ($15.6
million settlement); Plastics Additives Antitrust Litigation ($30.4 million partial settlement);
Laminates Antitrust Litigation ($40.5 million settlement); NBR Antitrust Litigation ($35 million
settlement); Methionine Antitrust Litigation ($107 million settlement); and Polyester Staple
Antitrust Litigation ($63.5 million settlement).
Mr. Barton earned his undergraduate degree in political science from the California Polytechnic
State University, San Luis Obispo, in 1984 and his Juris Doctor from Golden Gate University
School of Law in San Francisco in 1996. He was admitted to practice law in California in 1997.
He is admitted to practice before the Courts for the State of California, the United States District
Courts for the Central, Northern, and Eastern Districts of California and the Ninth Circuit Court
of Appeals.
GREGORY B. LINKH works out of the New York office, where he specializes in securities,
shareholder derivative, antitrust, and consumer litigation. Greg graduated from the State
University of New York at Binghamton in 1996 and from the University of Michigan Law
School in 1999. While in law school, Greg externed with United States District Judge Gerald E.
Rosen of the Eastern District of Michigan. Greg was previously associated with the law firms
Dewey Ballantine LLP, Pomerantz Haudek Block Grossman & Gross LLP, and Murray Frank
LLP.
Greg is the co-author of Inherent Risk In Securities Cases In The Second Circuit, NEW YORK
LAW JOURNAL (Aug. 26, 2004); Staying Derivative Action Pursuant to PSLRA and SLUSA,
NEW YORK LAW JOURNAL, P. 4, COL. 4 (Oct. 21, 2005) and the SECURITIES REFORM
ACT LITIGATION REPORTER, Vol. 20, No. 3 (Dec. 2005).
ASSOCIATES
RAYO A. ANTONIO is a native of the San Francisco Bay Area. He graduated magna cum
laude from the University of California, Los Angeles with a B.A. in Business Economics in
2001. Prior to law school, Mr. Antonio worked as a courthouse legal assistant and a patent
litigation paralegal at a prominent firm in Silicon Valley.
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Mr. Antonio received his Juris Doctor degree from the University of Washington, School of Law
in 2009. While attending law school, he studied European legal systems in Toulouse and
Strasbourg, France, and he served as an extern to the Honorable Simeon R. Acoba, Jr., Associate
Justice of the Supreme Court of Hawaii. Mr. Antonio also received an LL.M. degree in
Intellectual Property Law from the Santa Clara University, School of Law, and he worked as a
television production legal intern at NBCUniversal.
Mr. Antonio is an associate in the Los Angeles office of Glancy Binkow & Goldberg LLP, where
he specializes in consumer litigation. He is admitted to the State Bar of California.
ELAINE CHANG graduated from the University of California, Berkeley with a Bachelor of
Science degree in Business Administration and a Bachelor of Arts degree in Economics. Ms.
Chang received her Juris Doctor degree from the UCLA School of Law, where she was on the
editorial board of the UCLA Journal of Law and Technology and the Asian Pacific American
Law Journal, as well as a member of the UCLA Moot Court Honors Board. While in law
school, Ms. Chang also externed for the Honorable Gary A. Feess in the Central District of
California.
Prior to law school, Ms. Chang worked on a number of financial reporting and securities fraud
investigations at a big four accounting firm. Ms. Chang also worked in the marketing and
product management department at an investment management firm in New York.
PHILIP S. GUTIERREZ joined Glancy Binkow & Goldberg LLP in 2012. He is an associate
at the Firm's Los Angeles office, and he specializes in securities, consumer, and anti-trust
litigation. Prior to joining the firm, Mr. Gutierrez was an attorney at the Alliance for Children's
Rights and worked in the Office of the General Counsel at Children's Hospital Los Angeles. Mr.
Gutierrez also worked at AIG SunAmerica for 3 years as a Regional Marketing Specialist.
Mr. Gutierrez graduated magna cum laude from the University of Southern California with a
B.A. in Psychology and a minor in Law. He received his J.D. from the University of Southern
California Gould School of Law. While attending law school, Mr. Gutierrez was a Content
Editor for the Southern California Review of Law and Social Justice. His article You Have the
Right to [Plead Guilty]: How We Can Stop Police Interrogations from Inducing False
Confessions was published in the journal.
Mr. Gutierrez is a Los Angeles native.
LEANNE E. HEINE joined Glancy Binkow & Goldberg LLP in 2012. Leanne graduated
summa cum laude from Tulane University with a B.S.M. in Accounting and Finance in 2007,
and she received her J.D. from the University of Texas School of Law in 2011. While attending
law school, Leanne was an editor for the Texas International Law Journal, a student attorney for
the Immigration and Worker Rights Clinics, and she externed with MALDEF and the Texas
Civil Rights Project. Leanne is a member of the Beta Gamma Sigma Business Honors Society.
She is a registered CPA in Illinois, and was admitted to the California State Bar in 2011.
THOMAS J. KENNEDY works out of the New York office, where he specializes in securities,
antitrust, and consumer litigation. He received a Juris Doctor degree from St. John’s University
280915.5
Page 18
School of Law in 1995. At St. John’s, he was a member of the ST. JOHN’S JOURNAL OF
LEGAL COMMENTARY. Tom graduated from Miami University in 1992 with a Bachelor of
Science degree in Accounting and has passed the CPA exam. Tom was previously associated
with the law firm Murray Frank LLP.
DALE MACDIARMID is a native of Los Angeles, California. He holds a Bachelor of Arts
degree in Journalism (with Distinction) from the University of Hawaii, and a Juris Doctor degree
from Southwestern University School of Law, where he was a member of the Board of
Governors of the Trial Advocacy Honors Program. He is admitted to practice in California,
before the United States District Courts for the Southern, Central and Northern Districts of
California and the District of Colorado. Mr. MacDiarmid is a member of Kappa Tau Alpha, the
national journalism honor society, and before joining the Firm he was a writer and editor for
newspapers and magazines in Honolulu and Los Angeles.
JARED F. PITT joined Glancy Binkow & Goldberg LLP in 2012 specializing in securities,
consumer, and anti-trust litigation. Prior to joining the firm, Jared was an associate at
Willoughby Doyle LLP and was a senior financial statement auditor for KMPG LLP where he
earned his CPA license.
Jared earned his J.D. from Loyola Law School in 2010. Prior to attending law school he
graduated with honors from both the University of Michigan’s Ross School of Business and
USC’s Marshall School of Business where he received a Masters of Accounting.
CASEY E. SADLER is a native of New York, New York. After graduating from the University
of Southern California, Gould School of Law, Mr. Sadler joined the Firm in 2010. While
attending law school, Mr. Sadler externed for the Enforcement Division of the Securities and
Exchange Commission, spent a summer working for P.H. Parekh & Co. -- one of the leading
appellate law firms in New Delhi, India -- and was a member of USC's Hale Moot Court Honors
Program.
Mr. Sadler is an associate in the Firm's Los Angeles office and he specializes in securities and
consumer litigation. Mr. Sadler is admitted to the State Bar of California, and the United States
District Courts for the Northern, Southern, and Central Districts of California.
BRIAN SCHALL joined Glancy Binkow & Goldberg LLP in 2013. While attending law school,
Mr. Schall externed for the Honorable Patrick J. Walsh, magistrate judge for the Central District
of California. He also served as an in-house Summer Associate for American Funds, one of the
world’s largest mutual funds. After graduating from the University of the Pacific, McGeorge
School of Law (Dean’s List), Mr. Schall worked for the in-house legal department of Beach
Point Capital Management, a multi-billion dollar investment manager.
280915.5
Page 19
DECLARATION OF CAROLYN G.
ANDERSON IN SUPPORT OF
MOTION FOR AWARD OF
ATTORNEYS’ FEES, COSTS,
AND EXPENSES
Plaintiffs,
vs.
Defendant.
I, Carolyn G. Anderson, declare as follows:
1.
I am a Managing Partner at the law firm of Zimmerman Reed, PLLP, one of the
firms appointed Class Counsel in this litigation, representing The City of Farmington Hills
Employees Retirement System, The Board of Trustees of the Arizona State Carpenters Pension
Trust Fund and the Arizona State Carpenters Defined Contribution Trust Fund, and the certified
Class (collectively, “Plaintiffs”).
2.
I submit this Declaration in support of the application for an award of attorneys’
fees for services rendered to Plaintiffs in this litigation, and for reimbursement of costs and
expenses reasonably incurred in the course of such representation.
3.
Zimmerman Reed has substantial experience litigating and serving in leadership
roles in complex cases in district courts across the country. Specifically, in this District, our firm
has been appointed lead or co-lead counsel, or served as a plaintiffs’ steering committee member
in the following matters: Adedipe v. U.S. Bank, N.A., No. 13-cv-2687; In re Baycol Products
Litigation, MDL 1431; Dryer v. National Football League, MDL 09-2182; In re Guidant
Implantable Defibrillators Products Liability Litigation, MDL 1708; In re Medtronic
Implantable Defibrillators Products Liability Litigation, MDL 1726; In re Medtronic, Inc.,
Sprint Fidelis Leads Products Liability Litigation, MDL 1905; In re Stryker Rejuvenate and ABG
II Hip Implant Products Liability Litigation, MDL 2441; and In re Target Corp. Customer Data
Security Breach Litigation (financial institution cases), MDL 14-2522. Other cases in which my
firm has served in leadership roles are described in the Firm Resume, attached as Exhibit A.
4.
Zimmerman
Reed’s
experience
also
includes
representing
institutions,
individuals, and governmental and public entities in securities, investment fraud, corporate
governance, and breach of fiduciary duty cases for over a decade, and recovering millions of
dollars lost due to such violations. As described in the Firm Resume, we currently serve as CoCounsel in In re Regions Morgan Keegan Open-End Mutual Fund Litigation, No. 07-cv-2784
(W.D. Tenn.), an action alleging violations of federal securities laws that resulted in substantial
losses sustained by several Morgan Keegan open-end bond funds that invested in subprimerelated investments. The firm also currently serves as Co-Lead Counsel in Adedipe v. U.S. Bank,
N.A., No. 13-cv-2687 (D. Minn.), an action on behalf of participants of a defined benefit
contribution plan that suffered substantial losses as a result of ERISA violations. The firm’s
experience in other investor protection and breach of fiduciary duty cases is described in the
attached Firm Resume.
2
Costs and Expenses
5.
Zimmerman Reed devoted significant time and effort to this case since its filing.
Class Counsel’s efforts were intensive, carefully coordinated, and efficient. In assigning work in
this case, my firm and our co-counsel team exercised billing judgment and avoided duplication
of the various litigation tasks.
6.
To date, Zimmerman Reed expended a total of $76,231.74 in un-reimbursed costs
and expenses in connection with the prosecution of this litigation. These expenses are broken
down as follows:
DESCRIPTION
Internal Reproduction/Copies
External Reproduction/Copies
Telephone/Facsimile
Computer Research (Westlaw, PACER, etc.)
Delivery/Courier
Postage/Federal Express
Court Fees
Deposition/Trial Transcripts
Travel & Transportation
Hotel & Meals
Mocks/Jury Research
Trial Preparation Supplies & Accommodations
Miscellaneous
TOTAL:
7.
AMOUNT
$15,298.70
$196.55
$243.98
$7,028.05
$1,356.90
$3,006.44
$1,222.00
$9,863.20
$12,681.28
$12,671.88
$3,910.37
$7,630.45
$1,121.94
$76,231.74
Zimmerman Reed recorded these costs and expenses as they were incurred and
has maintained records of the same. The records are prepared from expense vouchers, invoices,
billing statements, check records, and other source material.
Lodestar
8.
Zimmerman Reed performed substantial work in connection with the prosecution
of this litigation. To date, the firm devoted more than 7,758.40 hours of work in connection with
this litigation. The hours worked were incurred by, among other things, investigating the claims
3
against Wells Fargo; reviewing and analyzing case documents and information; conducting
necessary legal research and analysis; retaining and working with experts; completing discovery;
preparing materials for class certification; briefing and preparing for arguments on the motion to
dismiss; briefing and preparing for arguments on the motion for class certification; briefing and
preparing for arguments on the motions for summary judgment; assisting with the formulation of
case strategy; preparing the filing of complaints, motions, and other documents; assisting in
deposition preparation; and assisting with other aspects of the discovery process. Our firm also
made significant contributions in the preparation for trial, including, but not limited to:
developing a trial plan; preparing demonstrative exhibits; working with various vendors and trial
consultants; assisting with and participating in pretrial hearings; preparing for the examination of
potential witnesses; coordinating and participating in various mock trials and focus groups; and
drafting and filing pretrial submissions. Additionally, the firm participated in the settlement
negotiation process and worked with co-counsel and opposing counsel to finalize the settlement
papers.
9.
I worked with a senior attorney and paralegal in gathering and reviewing the time
and expense reports from Zimmerman Reed. Based upon the current hourly rates charged by
Zimmerman Reed for this kind of work, the lodestar value of the time is $3,255,057.25.
10.
Since the inception of this case, in accordance with our normal business practices,
Zimmerman Reed maintained detailed and contemporaneous records of the time spent by its
lawyers, law clerks, paralegals, and certain other personnel on this action. Our timekeepers have
been and are required to keep daily time-records, both noting amounts of time spent on projects
and providing descriptions of that work. These records then are computerized, checked, and
4
maintained in databases. These systems allow us to be confident that the hours reported for this
case are accurate.
11.
Below is a true and correct summary by individual timekeepers of the hours,
billing rate, and lodestar for each timekeeper’s work in this matter. These rates reflect the usual
and customary hourly rates that our firm charges for work performed in complex litigation based
on the firm’s current billing rates from the inception of the case through July 8, 2014.
TIMEKEEPERS
HOURLY RATES
HOURS
LODESTAR
Partners
Carolyn Anderson
Patricia Bloodgood
David Cialkowski
Brian Gudmundson
Anne Regan
J. Gordon Rudd
Charles Zimmerman
$695.00
$695.00
$595.00
$555.00
$555.00
$695.00
$775.00
2,276.75
35.25
488.45
8.00
51.15
4.00
22.00
$1,582,341.25
$24,498.75
$290,627.75
$4,440.00
$28,388.25
$2,780.00
$17,050.00
Of Counsel
Andre LaBerge
$595.00
228.25
$135,808.75
Associates
Kirsten Hedberg
June Hoidal
Jacqueline Olson
Behdad Sadeghi
$395.00
$450.00
$300.00
$400.00
23.50
1,554.80
8.00
16.00
$9,282.50
$699,660.00
$2,400.00
$6,400.00
Law Clerk
Aalok Sharma
$150.00
9.50
$1,425.00
Paralegals
Karen Colt
Heidi Cuppy
Leslie Harms
Julianne VanNorman
$175.00
$150.00
$160.00
$175.00
1,737.50
26.75
33.00
40.75
$304,062.50
$4,012.50
$5,280.00
$7,131.25
5
TIMEKEEPERS
HOURLY RATES
HOURS
LODESTAR
Administrative
Assistants
Mary Burns-Klinger
Adam Hill
Amanda Klinger
$150.00
$100.00
$100.00
61.00
913.50
22.50
$9,150.00
$91,350.00
$2,250.00
Professional Staff
Lindsey Carr
Jillian Donabauer
Samantha Garretto
Monica Smith
$175.00
$100.00
$150.00
$100.00
14.25
5.00
117.50
31.75
$2,493.75
$500.00
$17,625.00
$3,175.00
$100.00
$100.00
$100.00
$100.00
$100.00
6.25
5.50
2.50
7.00
8.00
7,758.40
$625.00
$550.00
$250.00
$700.00
$800.00
$3,255,057.25
Case Clerks
LaNette Bies
Carolyn Bussey
Kate Cowley
Thomas Dolan
Erin McGee
TOTALS:
12.
Additional detailed itemizations of the services rendered during this period for
which fees are sought are available for the Court’s review upon request. The time expended in
preparing this Declaration is not included.
13.
The attorneys who worked on this case have active litigation practices. By taking
this case and litigating it to its advanced stages due to their commitment to Plaintiffs and their
claims, the attorneys gave up opportunities to litigate other matters.
Zimmerman Reed’s
compensation for the services rendered on behalf of Plaintiffs is wholly contingent. Any fees
and reimbursement of expenses will be limited to such amounts as approved by this Court.
s/ Carolyn G. Anderson
Carolyn G. Anderson
6
Exhibit A
MINNEAPOLIS
SCOTTSDALE
Zimmerman Reed, PLLP
t: 612.341.0400
f: 612.341.0844
zimmreed.com
Zimmerman Reed, PLLP
14646 North Kierland Blvd., Suite 145
Scottsdale, Arizona 85254
t: 480.348.6400
f: 480.348.6415
zimmreed.com
TABLE OF CONTENTS
ZIMMERMAN REED PARTNERS.......................................................................................................... 1
Charles S. Zimmerman.......................................................................................................................... 1
J. Gordon Rudd, Jr.................................................................................................................................. 2
Carolyn G. Anderson............................................................................................................................. 3
Hart L. Robinovitch ............................................................................................................................... 4
David M. Cialkowski............................................................................................................................. 5
Anne T. Regan ........................................................................................................................................ 5
Genevieve M. Zimmerman................................................................................................................... 6
Brian C. Gudmundson .......................................................................................................................... 7
Patricia A. Bloodgood............................................................................................................................ 8
ZIMMERMAN REED ASSOCIATES ...................................................................................................... 8
Jason P. Johnston.................................................................................................................................... 8
June P. Hoidal......................................................................................................................................... 9
Bradley C. Buhrow............................................................................................................................... 10
Behdad C. Sadeghi ............................................................................................................................... 10
Jacqueline A. Olson.............................................................................................................................. 10
ZIMMERMAN REED OF COUNSEL ................................................................................................... 11
Andre S. LaBerge.................................................................................................................................. 11
CASE RESUME: RECENT LEADERSHIP POSITIONS..................................................................... 11
i
FIRM PRACTICE AND ACHIEVEMENTS
Zimmerman Reed is a nationally recognized leader in complex and class action litigation and
has been appointed as lead counsel in some of the largest and most complex cases in federal
and state courts across the country. The firm was founded in 1983 and has successfully
represented thousands of consumers and injured individuals nationwide in significant and
demanding cases. The firm’s practice includes a wide range of legal issues and complex cases
involving consumer fraud, ERISA, shareholder actions, environmental torts, pharmaceutical
drugs, dangerous or defective products, human rights violations, and privacy litigation. Since
2010, Zimmerman Reed has earned a first-tier “Best Law Firm” ranking released by U.S. News
& World Report.
ZIMMERMAN REED PARTNERS
Charles S. Zimmerman, founding partner of Zimmerman Reed, is a nationally recognized
leader in complex and class action litigation. He frequently speaks at industry conferences and
CLEs, and is the author of a newly published book on complex litigation. During more than 30
years of practice, Bucky has successfully represented thousands of clients through individual
actions and nationwide class actions. His cases have involved the tobacco industry,
pharmaceutical companies, and corporate officers. Bucky has served as lead counsel, PSC
member, and liaison counsel in numerous major pharmaceutical and medical device cases over
the last 15 years. He served as Co-Lead Plaintiffs’ Counsel in the National Arbitration Forum
MDL 2122, Guidant MDL 1708, Medtronic MDL 1726, Zicam MDL 2096, and Baycol MDL 1431,
served as Chairman in the Medtronic MDL 1905, and was appointed to the Plaintiffs’ Steering
Committee in the NFL Players’ Concussion Injury Litigation. Through his leadership in these
and other groundbreaking cases, Bucky continues to advance the interests of his clients and the
legal profession.
In addition to his case work, Bucky continues to lecture and periodically teach courses on
complex litigation and working with the media in high profile cases for a variety of
organizations including the Minnesota State Bar Association, Minnesota Continuing Legal
Education, the University of Minnesota Law School, William Mitchell College of Law, the
Minnesota Association for Justice, and Mealey’s Publications. In 2006, Bucky authored
“Pharmaceutical and Medical Device Litigation,” a mass tort manual published by
Thompson/West.
Through his solid leadership and abilities as a litigator and negotiator, Bucky continues to serve
and advance the interests of the firm’s clients and the legal profession. He has been recognized
by his peers in Minnesota as a “Super Lawyer” from 2000 - 2007, 2011, 2012, 2013, and 2014. He
was also selected as the 2013 Minneapolis Mass Tort Litigation / Class Actions - Plaintiffs
Lawyer of the Year by The Best Lawyers in America.
Bucky is a graduate of the University of Minnesota Law School. He also received his
undergraduate degree from the University of Minnesota and was a three letter winner,
Williams Scholar, and captain of the varsity U of M tennis team his junior and senior years.
Bucky is a member of the United States Professional Tennis Association obtaining national
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ranking, and has won gold and silver medals at the world Maccabiah and Pan American
Maccabiah games.
Bucky is licensed to practice law in the States of Minnesota and Arizona, and is admitted to the
United States District Court for the District of Minnesota, District of Colorado, and District of
North Dakota, and the United States Supreme Court. He is also admitted to the Third, Fifth,
Sixth, and Eighth United States Circuit Courts of Appeals.
Bucky has been a lecturer and selected to teach courses for the Minnesota State Bar Association,
University of Minnesota School of Law, William Mitchell College of Law, Minnesota
Association for Justice, American Association for Justice, American Conference Institute, and
Mealey’s Publications. In September 2000, Bucky served as co-chairman of the Advisory
Committee for Mealey’s Propulsid Litigation Conference and he chaired the faculty of a
Minnesota Institute for Legal Education seminar, “Dealing with Complex Litigation.” Bucky
has also lectured and served as a member of the faculty at Mealey’s “Norplant Conference,”
Mealey’s “Breast Implant Conferences,” Andrew’s Publications’ “Medical Devices Litigation
Conference,” as well as numerous conferences on the subject of Tobacco Litigation and “Youth
and Addiction.” Additionally, he was a guest lecturer on the subject of Complex Litigation at
the University of Minnesota School of Law in conjunction with course work prepared by
Professor Robert J. Levy, and the William Mitchell College of Law in conjunction with course
work prepared by the Honorable Thomas Carey.
Bucky’s memberships include the Minnesota Association for Justice, American Association for
Justice, the Federal Bar, the Minnesota State Bar Association, the Hennepin County Bar
Association, and the Bar Associations of the Fifth and Eighth Federal District Courts.
J. Gordon Rudd, Jr. is a partner with Zimmerman Reed, representing individuals in the areas of
mass tort, consumer fraud, and employment law. He is a member of the firm’s Managing
Partner Committee and is responsible for the Minneapolis office operations.
Gordon has been appointed class counsel in cases venued in both state and federal courts across
the country. Recently, he was part of the team that achieved a $50 million settlement in the
complicated court fight over publicity rights for retired NFL players. Gordon also represented
thousands of individuals injured by the largest release of anhydrous ammonia in U.S. history.
Two of those individuals were awarded $1.2 million by a jury. Eventually, these trials led to a
settlement on behalf of other residents of Minot, North Dakota injured by the derailment.
Gordon currently serves on the Plaintiffs’ Steering Committee in In re FedEx Ground Package
System, Inc., MDL 1700 and In re Zurn Pex Plumbing Products Liability Litigation, MDL 1958.
Gordon was a contributor to the 1999 Report on Mass Tort Litigation presented to Honorable
William Rehnquist, Chief Justice of the U.S. Supreme Court. Since 2006, Gordon has been
selected as a “Super Lawyer” by his peers in Minnesota.
Gordon graduated from Connecticut College, where he received a Bachelor of Arts degree in
English Literature & Government. He received his law degree from the University of
Cincinnati College of Law where he was a recipient of the American Jurisprudence Award in
Legal Research and Writing.
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Gordon is licensed to practice before, and is a member in good standing of, the Bar of the State
of Minnesota and the United States District Court for the District of Minnesota. Gordon is
admitted to the United States Court of Appeals for the Eighth Circuit. He has been admitted to
appear pro hac vice in cases pending in the states of California, Oregon, Arizona, New Mexico,
Texas, North Dakota, Ohio, Florida, Georgia, Tennessee, and Michigan.
Carolyn G. Anderson is a Managing Partner at Zimmerman Reed and leads the firm’s Investor
Protection, Antitrust, and ERISA practice groups.
Carolyn has successfully represented small investors, institutional clients, and states in
individual and nationwide securities fraud, ERISA, and antitrust actions. She has served in a
leadership role in obtaining numerous significant awards in both individual actions and multistate actions.
Carolyn is Co-Counsel on behalf of investors in Morgan Keegan open end mutual funds in a
case proceeding in the Western District of Tennessee. She is also counsel in an antitrust action,
working with a coalition of four Attorneys General, representing the State of Mississippi and its
respective citizens in an action against manufacturers of LCD displays. During the course of
litigation, the State’s claims were removed to federal court. After opposing this removal at the
district court and the Fifth Circuit, the State petitioned the U.S. Supreme Court. The Supreme
Court ruled unanimously in favor of Mississippi, reversing the Fifth Circuit’s decision that the
attorney general’s case belonged in federal court. Mississippi ex rel. Hood v. AU Optronics, 134 S.
Ct. 736 (2014). Carolyn is also Co-Lead Counsel on behalf of investors alleging losses due to
Wells Fargo’s securities lending program. The case was settled on April 12, 2014, two days
before trial was set to commence. She serves as Interim Co-Lead Counsel in an action, pending
in the District of Minnesota, against fiduciaries of U.S. Bancorp Pension Plan for violations of
ERISA.
In prior representation of investors, Carolyn worked in significant cases involving Merrill
Lynch, AIG, Boston Scientific, and Lehman Brothers. Carolyn also led a legal team in a case
brought by investors against American Express Financial Advisors, challenging that company’s
practices and breaches of fiduciary duty with its investing customers. The case was brought
under the Investment Advisor Act and resulted in a $100 million settlement. Carolyn also
successfully represented Midwest farmers/shareholders who challenged an ethanol plant’s
merger with Archer Daniels Midland; she was appointed Class Counsel in that matter. The case
was successfully resolved weeks prior to trial. Carolyn was also appointed Lead Counsel in a
securities fraud lawsuit involving Boston Scientific, representing a public pension fund and a
certified class.
In addition to serving in positions of leadership in investor protection litigation, Carolyn
currently represents pro bono one hundred faith-based not-for-profit organizations related to
their losses from the $3.6 billion Petters Ponzi scheme. She was appointed by the federal judge
to serve as Assistant Liquidating Trustee under the supervision of the Court and the
Liquidating Trustee for assets being distributed to some of those investors. In United States v.
Petters, No. 08-cv-05348 (D. Minn.), the Firm worked with the Department of Justice and the
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court-appointed receiver, to successfully recover and distribute millions of dollars to these
victims pursuant to a settlement with Petters financier, Frank Vennes.
Carolyn maintains strong ties with the National Association of Attorneys General, individual
state Attorneys General, state pension fund officers, and other institutional investors. She is a
frequent lecturer at colleges and law schools, and has served as a legal education faculty
member on the topics of complex litigation, legal ethics, and securities law.
Carolyn graduated from Trinity College, where she received a Bachelor of Arts degree, cum
laude, in Psychology. She received her law degree cum laude from Hamline University School
of Law where she was a Dean’s Scholar, received the Cali Award for Excellence in
Constitutional Law, and served on Hamline Law Review, where her case note article was
selected for publication. Carolyn also studied law at Hebrew University in Jerusalem, Israel in
course-work focusing on Law, Religion, & Ethics. Carolyn was previously honored as Rising
Star of Law and, in 2014, was recognized as a Super Lawyer by her peers in Minnesota.
Carolyn is admitted to practice before, and is a member in good standing of, the Bar of the State
of Minnesota, the United States District Court for the District of Minnesota, the Court of
Appeals for the Eighth Circuit and the First Circuit, and the U.S. Supreme Court. In addition to
these courts, Carolyn works on cases with local counsel nationwide. She is a member of the
National Association of Shareholder and Consumer Attorneys (NASCAT), the Federal Bar
Association, the American Association for Justice, the Minnesota Bar Association, and the
Hennepin County Bar Association.
Hart L. Robinovitch is a partner with Zimmerman Reed, working in the firm’s Scottsdale,
Arizona office. Hart is a strong and effective consumer advocate, focusing his practice in the
areas of mortgage banking, shareholder actions, and general civil and business litigation.
For the past decade, Hart has represented clients in a series of class action lawsuits contesting
mortgage lenders’ excessive billing and deposits practices for mortgage escrow accounts. Hart
is now involved in numerous federal court lawsuits around the country alleging that mortgage
banks and lenders have violated federal and state laws. These cases allege payment of
kickbacks and/or illegal and unearned referral fees by the banks and lenders to mortgage
brokers who refer mortgage clients who are then charged inflated interest rates on the
mortgages. In addition, he represents consumers in other actions contesting the imposition of
overcharges and improper fees or other contractual violations in various mortgage transactions.
He has worked with co-counsel in state and federal courts across the country.
Hart is now involved in numerous state and federal court lawsuits around the country
challenging the misclassification of entertainers as independent contractors opposed to
employees in the nightclub industry. He also represents consumers in other actions alleging
deceptive and unlawful business conduct towards customers including, but not limited to, false
advertising practices, “bait and switch” tactics, altering contractual terms without valid
consideration, and retailers’ requests and/or requirements that their customers provide
personal identification information when they complete a transaction using their credit card, in
violation of state and/or federal statutes. In addition, Hart represents residents of various
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skilled nursing facilities alleging pervasive and intentional failure to provide sufficient direct
nursing care staffing resulting in harm to the residents.
Hart, a native of Canada, earned his degree from the University of Toronto Law School in 1992
where he served as an Associate Editor on the University of Toronto Faculty of Law Review.
He received his Bachelor of Science degree in 1989 from the University of Wisconsin-Madison.
Hart is admitted to practice before, and is a member in good standing of, the Bars of the States
of Arizona and Minnesota and the United States District Court for the Districts of Arizona,
Minnesota, and the Eastern District of Michigan. Hart is also licensed to practice law before the
United States Courts of Appeals for the Sixth, Eighth, Ninth, and Eleventh Circuits, and the
United States Supreme Court. Hart’s memberships include the National Association of
Consumer Advocates and Canadian American Bar Association.
David M. Cialkowski is a partner at Zimmerman Reed, and dedicates a substantial portion of
his practice to the area of complex and mass tort litigation, with a primary focus on consumer
protection, antitrust, and products liability litigation.
David served as a member of the Plaintiffs’ Steering Committee in In re Apple iPHONE 3G and
3GS “MMS” Marketing and Sales Practices Litigation, a consumer protection class action, MDL
2116, based in New Orleans, Louisiana. He also served as court-appointed co-lead counsel in In
re Dockers Roundtrip Airfare Promotion Sales Practices Litigation, a consumer protection class
action based in the U.S. District Court for the District of California. David has worked
extensively in In re Levaquin Products Liability Litigation, MDL 1943, and In re St. Jude Silzone
Heart Valves Product Liability Litigation, MDL 1396. He has also contributed substantially to In
re FedEx Ground Package Systems, Inc., MDL 1700, on behalf of plaintiffs in several states.
David represented residents of Minot, North Dakota, in In re Soo Line Railroad Company
Derailment of January 18, 2002 in Minot, N.D., who were affected by the toxic spill caused by
the derailment of a Canadian Pacific Railway train, and helped draft federal legislation
clarifying the scope of railroad preemption.
In 1995, David earned his undergraduate degree from the University of Illinois’s College of
Liberal Arts and Sciences cum laude with High Distinction in the Department of English.
Additionally, he participated in the honors program as a James Scholar, received the Elizabeth
and Charles Ellis Merit Scholarship, and is a member of Phi Beta Kappa. David graduated in
1998 from the University of Illinois College of Law, where he participated in the civil litigation
clinic, was an editor for the Poetic Justice literary magazine, and was voted one of the top ten
percent of university teaching assistants.
David is licensed to practice and a member in good standing, for the Bars of the State of
Minnesota and the State of Illinois. His professional associations include membership in the
Minnesota State Bar Association and Hennepin County Bar Association. David has been
recognized as a Rising Star of Law from 2006–2008 and 2010-2013.
Anne T. Regan is a partner practicing in the areas of antitrust, securities fraud, consumer, and
employee rights and benefits, focusing on collective and class actions and Multi-District
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Litigation. At heart, she seeks economic justice for her clients, whether they are businesses or
individuals.
Anne represents businesses and individuals as plaintiffs pursuing their antitrust claims under
the Sherman and Clayton Acts and state antitrust laws. In her antitrust work, Anne has been
appointed to the Executive Committee of the plaintiff’s leadership team in the antitrust
litigation alleging a scheme to keep generic opiate addiction treatments off the market (In re
Suboxone Antirust Litig., MDL 2445). She is also litigating antitrust claims in direct and indirect
purchasers actions involving the prescription drug, Lipitor (In re Lipitor Antitrust Litig. MDL
2332), anticompetitive actions in the pool products market (In re Pool Products Distribution
Market Antitrust Litig. MDL 2328), Most Favored Nations (MFN) clauses (The Shane Group,
Inc., et al. v. Blue Cross Blue Shield of Michigan, No. 10-14360 (E.D. Mi.), and illegal collusion in
the building industry (In re Domestic Drywall MDL 2437).
In securities fraud litigation, Anne works on behalf of small investors and public and private
institutional clients, such as the Mississippi Public Employees’ Retirement System. Among her
notable cases, Anne represented Midwest farmers who challenged an ethanol plant’s merger
with Archer Daniels Midland, and was an integral part of the legal team that recovered
meaningful refunds of financial planning fees paid to an institutional investment advisor that
used financial plans to steer customers to proprietary investment funds.
Her employment cases include resolving thousands of meat processing workers’ claims against
companies such as Butterball and Gold’n Plump, representation of misclassified FedEx drivers
nationwide, and a trial and successful defense of an appeal in the Farmers Insurance claims
adjuster misclassification case.
Anne graduated from the University of Minnesota Law School. She has contributed as a
Minnesota Federal Bar Association Pro Se Project Attorney and has taught legal writing at the
University of Minnesota Law School. She serves on the Board of the Minnesota affiliate of
NELA. Anne has been recognized as a Rising Star of Law from 2012-2013, and in 2014, as a
Super Lawyer.
Anne is licensed in Minnesota and Illinois, and is admitted to practice in multiple federal
district and appellate courts. She is a member of the Federal Bar Association, Minnesota State
Bar Association and the Hennepin County Bar Association, as well as the Antitrust and Labor &
Employment Divisions of the American Bar Association.
Genevieve M. Zimmerman is a partner at Zimmerman Reed working out of the firm’s
Minneapolis office. Her practice focuses exclusively on representing individuals injured by
pharmaceutical drugs with undisclosed and dangerous side effects and individuals injured or
killed by defective medical devices. Genevieve has a broad understanding of the science and the
law that is critical to successfully litigating these claims. She has both first and second chair trial
experience, and has successfully resolved hundreds of clients’ claims in settlement –
demonstrating her commitment to taking whatever strategy necessary to obtain meaningful
resolution for those injured by these products.
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Among her notable cases, Genevieve represented heart defibrillator patients after Guidant
announced the recall of nearly 50,000 heart defibrillators that could short circuit without
warning.
Additionally, she successfully prosecuted claims of serious injuries and death
following reports of an increased risk of heart attack and stroke from the popular pain
prescription drug Vioxx, manufactured and marketed by Merck. Prior to joining Zimmerman
Reed, Genevieve also spent significant time providing pro bono legal services to the survivors
and families who lost loved ones as a result of the I-35W Bridge Collapse, resulting in recoveries
exceeding $75 million.
Of note, the JPML recently assigned the Stryker Rejuvenate and ABG II hip cases to Judge Frank
in the U.S. District Court for the District of Minnesota. On November 5th, Judge Frank
appointed Genevieve to the Lead Counsel Committee for the plaintiffs. Genevieve also
currently serves on the Plaintiffs’ Steering Committee in In re Biomet Hip Implant Products
Liability MDL in the Northern District of Indiana. Genevieve is also actively involved in the
Zimmer NexGen MDL representing patients who have experienced knee replacement failure,
loosening, and other complications following their knee implant. She also represents clients in
individual and nation-wide litigation related to injuries from Transvaginal Mesh, Yaz Birth
Control, Metal-on-Metal Hip Implants, St. Jude Riata Leads, Actos, and Propecia.
Genevieve graduated from Hamline University School of Law, where she was the Production
Editor of the Hamline Journal of Public Law and Policy. She also was a member of the William
McGee Civil Rights Moot Court Team. She has been selected as a Rising Star of Law in 2012 and
2014. Genevieve is licensed to practice law in Minnesota and North Dakota, and is admitted to
the U.S. District Court for the District of Minnesota and the Eighth Circuit Court of Appeals.
Genevieve was recently selected to the American Association for Justice Leadership Academy.
Brian C. Gudmundson concentrates his practice on complex litigation and commercial class
actions, including the areas of Consumer, Antitrust, Securities, Intellectual Property, and Sports
and Entertainment Litigation. Brian represents individuals, businesses, and public and private
institutional clients in a variety of complex cases.
Brian is a member of the lead counsel team that achieved a $50 million settlement on behalf of
retired National Football League players in a class action against the League for the
unauthorized use of former players’ identities to generate revenue. He represents hundreds of
individual retired NFL players in claims arising from concussive head injuries suffered while
NFL players. Presently, Brian represents MoneyGram Payment Systems, Inc. in claims against
several Wall Street banks alleging over $400 million of losses due to the fraudulent sale of
securities containing undisclosed, toxic mortgage-based assets. He also specializes in claims
under the RICO Act and currently represents multiple non-profit and faith-based investors pro
bono in RICO claims arising from the $3.5 billion Petters Ponzi scheme
Brian recently served as court-appointed co-lead counsel in In Re: Dockers Roundtrip Airfare
Promotion Sales Practices Litigation (C.D. Cal.), which culminated in a multimillion dollar
settlement on behalf of a nationwide class of consumers. In 2005, Brian was part of a securities
litigation team that achieved a $2.5 billion settlement against AOL-Time Warner on behalf of
investors.
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Brian received his BA from the University of Minnesota and his JD, cum laude, from the
University of Minnesota Law School. Brian is admitted to the state courts of Minnesota, the U.S.
District Courts for the District of Minnesota and the Northern District of Illinois, and the Tenth
Circuit Court of Appeals. Brian has been recognized as a Rising Star of Law every year since
2010.
Patricia A. Bloodgood is a partner at Zimmerman Reed and brings two decades of experience
in complex commercial litigation, particularly class actions. She has served as lead counsel on a
number of class actions, including the Lutheran Brotherhood Sales Practices Litigation. More
recently, she has been working with law firms around the country on the FedEx Ground
Drivers Lawsuit, a multi-district consolidated proceeding involving 40 different state class
actions challenging FedEx Grounds’ independent contractor model.
Patricia is a frequent lecturer at litigation strategy seminars on the topics of securities law,
expert witnesses, and class actions and is also a past President of the Minnesota Chapter of the
Federal Bar Association. At Zimmerman Reed, Patricia focuses her practice on complex
litigation, including securities fraud, consumer fraud, and employment practices. Patricia was
selected as a Super Lawyer in 2014.
Patricia is a graduate of the University of Minnesota and a graduate of the University of
Wisconsin Law School. Patricia is licensed to practice law in both Minnesota and Wisconsin.
ZIMMERMAN REED ASSOCIATES
Jason P. Johnston is an associate at our Minneapolis office, focusing primarily on complex cases
involving individuals injured by defective drugs and faulty medical devices, advocating for
clients both locally and nationally. Jason’s personal engagement, resolute view of the law, and
solid practice style make him a strong voice for his clients and an integral part of our firm.
Jason represents clients injured from defective orthopedic hip devices manufactured by DePuy,
Biomet, Stryker, and Smith & Nephew. In the Stryker litigation, Jason helps patients who
experienced serious health complications as a result of a modular hip that was recalled from the
market, and was part of the team that first moved the Judicial Panel on Multidistrict Litigation
(JPML) to consolidate all Stryker hip claims in the District of Minnesota. During the Biomet
M2a hip litigation, Jason was an active member of the Plaintiffs’ Science Committee where he
reviewed technical documents and participated in key depositions involving design and
development of the hip implant systems. Jason also represents clients injured by other
orthopedic medical devices, including knee replacement systems manufactured by Zimmer. In
the Zimmer NexGen knee litigation, Jason has taken depositions of key witnesses and works
closely with experts.
Jason’s medical device litigation experience extends beyond orthopedic devices, including,
actively pursuing litigation for clients injured by St. Jude’s Riata heart defibrillator leads and he
is a member of the Claims Review Committee following a mass settlement involving
Medtronic’s Sprint Fidelis heart defibrillator leads. He also represents plaintiffs injured by
various pharmaceutical drugs, including, Avandia, Aredia/Zometa, and Levaquin. Currently,
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Jason represents clients who have suffered severe cardiovascular injuries after taking
testosterone therapy supplements, such as Androgel.
He recently accepted a case from the District of Minnesota’s Federal Pro Se Project, a program
that provides pro se plaintiffs with volunteer counsel to improve access to justice in the Federal
Courts, ultimately securing a settlement against the plaintiff’s employer for racial
discrimination in violation of Title VII. Jason had previous experience in civil rights litigation
when he assisted nearly 100 clients in recovering almost $1 million in a class action litigation
involving various constitutional and civil rights violations.
A graduate of the University of St. Thomas School of Law, he was recognized by the Minnesota
Justice Foundation for his pro bono service work and also received a Dean’s Award in both
Adoption and Consumer Law. He maintains close ties with the University of St. Thomas School
of Law as a participant in their mentor program, where he is paired with a law student each
year to act as a resource in navigating the legal field. Prior to law school, Jason attended
Winona State University earning his Bachelor of Science degree, magna cum laude, in
Marketing. Jason is admitted to the state courts of Minnesota and U.S. District Court for the
District of Minnesota. In 2014, Jason was recognized as a Rising Star of Law.
June P. Hoidal is an associate representing individuals and businesses who experienced losses
as a result of securities and consumer fraud and antitrust violations. She is a member of the
legal team representing the State of Mississippi in an antitrust action against manufacturers of
LCD screens. Her work included assisting with briefing before the U.S. Supreme Court, which
unanimously ruled in favor of Mississippi by finding the State’s parens patriae action was not
removable to federal court. Mississippi ex rel. Hood v. AU Optronics, 134 S. Ct. 736 (2014). June’s
ongoing litigation includes, representing investors alleging losses due to Wells Fargo’s
securities lending program, representing participants of the U.S. Bancorp Pension Plan alleging
violations of ERISA and representing investors in Morgan Keegan open end mutual funds.
Prior to joining the firm, June served as a judicial law clerk to the Honorable Arthur J. Boylan on
the United States District Court for the District of Minnesota. She gained substantial experience
following law school at two law firms in Washington, D.C. and Minneapolis, practicing in
diverse subject areas, including contract disputes, franchise, products liability, insurance, and
employment law.
June serves on the Publications Committee for the Bench & Bar of Minnesota. She also currently
serves as Co-Chair of the Legal Aid Associates’ Campaign, and previously served as a
Commissioner for the City of Saint Anthony Parks Commission and is a member of the
Diversity Committee and the Women in the Legal Profession Committee of the Minnesota State
Bar Association. In addition, June volunteered as an assistant debate coach for the Minnesota
Urban Debate League and worked pro bono for Legal Assistance of Dakota County, Volunteer
Lawyers Network, and The Advocates for Human Rights.
June graduated cum laude from the University of Minnesota Law School in 2003, where she was
the Lead Managing Editor for the Minnesota Law Review and a member of the Dean’s List. She
is admitted to the state courts of Minnesota and the U.S. District Courts for the District of
Minnesota.
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Bradley C. Buhrow represents clients in consumer protection litigation. Brad currently works
on behalf of consumers in a class action lawsuit against Research in Motion after a massive
Blackberry service outage occurred, that spanned the United States and abroad, leaving
customers unable to access e-mails and text messages on their mobile smartphone devices. He is
also part of the team of lawyers who represent purchasers of Hebrew National hot dogs in a
class action lawsuit alleging that Hebrew National mislabeled its hot dogs as kosher. Brad is
also counsel on another mislabeling case against General Mills, on behalf of customers who
paid a premium price for Yoplait Greek yogurt; the Complaint alleges that the product is
neither Greek nor, technically, even yogurt. Brad also represents former NFL players
supporting their claims that the NFL concealed the chronic cumulative effects of concussions
and implemented a common policy to deny or minimize the seriousness of those injuries and to
return players to the game after sustaining concussions.
Brad graduated cum laude from California Western School of Law, where he served as an
Associate Writer for the California Western Law Review and an Associate Editor for both the
California Western Law Review and the California Western International Law Journal. He was
also a recipient of the Trial Practice Academic Award and the Academic Merit Scholarship.
Prior to law school Brad attended the University of Arizona, earning his Bachelor of Science
degree in Business Administration and Management. Brad is licensed to practice law in the
State of California.
Behdad C. Sadeghi focuses his practice on complex cases involving securities fraud and
consumer protection. Behdad currently works on the team that represents investors who
sustained significant financial losses in their savings and retirement as a result of alleged federal
securities law violations by Morgan Keegan and its affiliates. In consumer litigation, he
supports the firm’s efforts in representing clients in a class action on behalf of customers across
the country affected by H&R Block’s alleged failure to accurately submit certain 2012 tax
returns.
Behdad graduated magna cum laude from William Mitchell College of Law, where he was a
member of the William Mitchell Journal of Law and Practice and the Niagara International
Moot Court Team; he also participated in the school’s Civil Advocacy Clinic. His academic
honors include a CALI Excellence for the Future Award, four Dean’s List honors, and a Burton
Award Nomination for Excellence in Legal Writing. Behdad is licensed to practice law in
Minnesota.
Jacqueline A. Olson focuses her practice primarily representing clients injured by
pharmaceutical drugs and recalled or defective medical devices on cases including Mirena IUD,
Stryker Hip Replacements, and Transvaginal Mesh implants. Prior to joining the firm, she
worked in almost every department of a law firm - from paralegal, to marketing, to law clerk, to
lawyer. During this time, she gained valuable insight about the inner workings of a firm giving
her a unique and compassionate perspective in advocating for her clients.
A graduate of Hamline University School of Law, Jacqueline served as the Associate and
Primary Editor of the Hamline Journal of Public Law & Policy and also served as an intern
assisting law clerks to the Honorable Richard H. Kyle. Her academic honors include the Dean’s
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Honor Roll, and a CALI Award in Commercial Law, Sales and, Leases of Goods. She was the
recipient of the Best Brief Award in Legal Research and Writing Course. Jacqueline is licensed to
practice law in Minnesota.
ZIMMERMAN REED OF COUNSEL
Andre S. LaBerge brings over twenty years of professional experience – as an attorney and as a
business executive – in his advocacy for the rights of investors and consumers, providing
counsel to several of the firm’s practice areas. He presently is involved in litigation
representing participants in Wells Fargo’s securities lending program, investors with losses in
Morgan Keegan open end bond funds, and the LCD antitrust litigation on behalf of the State of
Mississippi.
Andre has practiced law in Chicago and Minneapolis, and has represented clients at all court
levels and in various regulatory forums. He has also served as Vice President, Chief
Compliance Officer, General Counsel, and FINRA Registered Principal and Designated
Supervisor in the financial services industry with companies that supervised and supported
large numbers of securities brokers, financial planners, and insurance agents.
Andre is a graduate of DePaul University College of Law, where he was a Senior Editor for the
Journal of Health and Hospital Law, and worked as a Mansfield Foundation Fellowship intern
at Southern Minnesota Regional Legal Services. He is a member of the Minnesota State Bar
Association and the Hennepin County Bar Association.
CASE RESUME: RECENT LEADERSHIP POSITIONS
Representative cases in which Zimmerman Reed has served as Class or Lead Counsel:
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Adams, et al. v. DPC Enterprises, LP, et al., Jefferson County Circuit Court, State of
Missouri
Adepipe, et al. v. U.S. Bank, Nat’l Ass’n, et al., United States District Court, District of
Minnesota
AI Plus, Inc. and IOC Distribution, Inc. v. Petters Group Worldwide, et al., United States
District Court, District of Minnesota
Atkinson v. Morgan Keegan & Co., United States District Court, Western District of
Tennessee
City of Farmington Hills Employees Retirement System v. Wells Fargo Bank, N.A., United
States District Court, District of Minnesota
City of Tallahassee Pension Plan v. Insight Enterprises, Inc., et al., Superior Court of
Maricopa County, State of Arizona
Cooksey v. Hawkins Chemical Company, Hennepin County District Court File No. 95-3603
Cuff, et al. v. Brenntag North America, Inc., et al. United States District Court, Northern
District of Georgia Atlanta Division
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Daud, et al. v. Gold’n Plump Poultry, Inc., United States District Court, District of
Minnesota
DeKeyser, et al. v. ThyssenKrupp Waupaca, Inc., United States District Court, Eastern
District of Wisconsin
Doe v. Cin-Lan, Inc., et al., United States District Court, Eastern District of Michigan
DeGrise, et al. v. Ensign Group, Inc., et al., Superior Court of Sonoma County, State of
California
DeLillo, et al. v. NCS Pearson, et al., United States District Court, District of Minnesota
In Re: Dockers Roundtrip Airfare Promotion Sales Practices Litigation, United States District
Court, Central District of California
Dryer v. National Football League, United States District Court, District of Minnesota
Fastrip, Inc., et al. v. CSX Corporation, United States District Court, Western District of
Kentucky
Frank, et al. v. Gold‘n Plump Poultry, Inc., United States District Court, District of
Minnesota
Gaither v. Computer Network Technology Corporation, et al., Fourth Judicial District, State of
Minnesota
Garner, et al v. Butterball, LLC, United States District Court, Eastern District of Arkansas
Haritos, et al. v. American Express Financial Advisors, United States District Court, District
of Arizona
Helmert, et al. v Butterball, LLC, United States District Court, Eastern District of Arkansas
In re Avandia Pharmaceutical Litigation, United States District Court, District of Arizona
In re Castano Tobacco Litigation, United States District Court, Eastern District of Louisiana
In re Consolidated Zicam Product Liability Cases, Superior Court of Arizona, Maricopa
County
In re Dry Max Pampers Litigation, United States District Court, Southern District of Ohio
In re Soo Line Railroad Company Derailment of January 18, 2002 in Minot, N.D., Fourth
Judicial District, State of Minnesota
In re Region Morgan Keegan Securities, Derivative and ERISA Litigation [Landers v. Morgan
Asset Management], United States District Court, Western District of Tennessee
Kurvers, et al. v. National Computer Systems, Inc., Fourth Judicial District, State of
Minnesota
Larkin et al. v. CPI Corp, et al., United States District Court, Western District of Wisconsin
Martin, et al. v. BioLab, Inc., et al., United States District Court, Northern District of
Georgia Atlanta Division
McGruder, et al. v. DPC Enterprises, LP, et al., Maricopa County Superior Court, State of
Arizona
Mehl, et al. v. Canadian Pacific Railway, et al., United States District Court, District of
North Dakota
Milner, et al. v. Farmers Insurance Exchange, United States District Court, District of
Minnesota
Mississippi v. Boston Scientific, United States District Court, District of Massachusetts
Ponce, et al. v. Pima County, et al., Maricopa County Superior Court, State of Arizona
12






Russo, et al. v. NCS Pearson, Inc., et al., United States District Court, District of Minnesota
Sanders, et al. v. Norfolk Southern Corporation, et al., United States District Court, District of
South Carolina
Scott v. American Tobacco Co., Inc., et al., Court File No.: 96-8461, Civil District Court for the
Parish of New Orleans, Louisiana
State of Mississippi v. AU Optronics Corp., United States District Court, Southern District
of Mississippi
Trauth v. Spearmint Rhino Companies Worldwide, Inc., et al., United States District Court,
Central District of California
Weincke, et al. v. Metropolitan Airports Commission, Fourth Judicial District, State of
Minnesota
Zimmerman Reed has been appointed Lead or Liaison Counsel in the following MDLs:














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In re Mortgage Escrow Deposit Litigation, MDL 899
In re Temporomandibular Joint (TMJ) Implants Products Liability Litigation, MDL 1001
In re St. Jude Medical, Inc. Silzone Heart Valves Products Liability Litigation, MDL 1396
In re Baycol Products Liability Litigation, MDL 1431
In re Medco Health Solutions, Inc., Pharmacy Benefits Management Litigation, MDL 1508
In re Guidant Corp. Implantable Defibrillators Products Liability Litigation, MDL 1708
In re Viagra Products Liability Litigation, MDL 1724
In re Medtronic Implantable Defibrillators Products Liability Litigation, MDL 1726
In re Medtronic, Inc. Sprint Fidelis Leads Products Liability Litigation, MDL 1905
In re Levaquin Products Liability Litigation, MDL 1943
In re Zurn Pex Plumbing Products Liability Litigation, MDL 1958
In re Northstar Education Finance, Inc. Contract Litigation, MDL 1990
In re Zicam Cold Remedy Marketing, Sales Practices, and Products Liability Litigation, MDL
2096
In re National Arbitration Forum Trade Practices Litigation, MDL 2122
In re Stryker Rejuvenate and ABG II Hip Implant Products Liability Litigation, MDL 2441
Zimmerman Reed has been appointed to the Plaintiffs’ Steering Committee or subcommittees in the following MDLs:








In re Silicone Gel Breast Implant Products Liability Litigation, MDL 926
In re Orthopedic Bone Screw Products Liability Litigation, MDL 1014
In re Norplant Contraceptive Products Liability Litigation, MDL 1038
In re Telectronics Pacing Systems, Inc. Accufix Atrial "J" Lead Products Liability Litigation,
MDL 1057
In re Diet Drugs Products Liability Litigation , MDL 1203
In re Rezulin Products Liability Litigation, MDL 1348
In re Propulsid Products Liability Litigation, MDL 1355
In re Sulzer Inter-Op Orthopedic Hip Implant Litigation, MDL 1401
13

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














In re Serzone Products Liability Litigation, MDL 1477
In re Meridia Products Liability Litigation, MDL 1481
In re Welding Rods Products Liability Litigation, MDL 1535
In re Zyprexa Products Liability Litigation, MDL 1596
In re Neurontin “Off-Label” Marketing Litigation, MDL 1629
In re Vioxx Products Liability Litigation, MDL 1657
In re Bextra and Celebrex Marketing Sales Practices and Product Liability Litigation, MDL 1699
In re Fedex Ground Package System, Inc., Employment Practices Litigation, MDL 1700
In re Celebrex and Bextra Products Liability Litigation, MDL 1694
In re Digitek Products Liability Litigation, MDL 1968
In re Apple iPhone “MMS” Sales Practices Litigation, MDL 2116
In re DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation, MDL 2197
In re Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation, MDL 2247
In re Zimmer NexGen Knee Implant Products Liability Litigation, MDL 2272
In re Building Materials Corp. of America Asphalt Roofing Shingle Products Litigation, MDL
2283
In re National Football League Players’ Concussion Injury Litigation, MDL 2323
In re Biomet M2A Magnum Hip Implant Products Liability Litigation, MDL 2391
14
EXHIBIT B
FUND, Individually And on Behalf of All
Civil No. 10-4372 (DWF/JJG)
DECLARATION OF JENNIFER M.
KEOUGH RE NOTICE
DISSEMINATION
Plaintiffs,
v.
Defendant.
JENNIFER M. KEOUGH, declares and states as follows:
1.
I am Chief Operating Officer of The Garden City Group, Inc. (“GCG”).
Pursuant to the Court’s June 5, 2014 Order Granting Preliminary Approval of Class Action
Settlement, Approving Form and Manner of Notice, and Setting Date for Hearing on Final
Approval of Settlement (the “Preliminary Approval Order”), GCG was authorized to act as the
Settlement Administrator in connection with the Settlement in the above-captioned Action. 1
The following statements are based on my personal knowledge and information provided by
1
Unless otherwise defined herein, all capitalized terms shall have the same meaning as set forth
in the Settlement Agreement and/or Preliminary Approval Order.
other GCG employees working under my supervision, and if called on to do so, I could and
would testify competently thereto.
MAILING OF THE NOTICE
2.
Paragraph 11.a of the Preliminary Approval Order provided that the Notice be
disseminated no later than seven (7) calendar days after the Preliminary Approval Order to the
last known address of each member of the Class by first-class mail, postage prepaid and placed
on the dedicated website for this Action. A list of the 92 Class Members was appended to the
Settlement Agreement as Exhibit D(1).
3.
In preparation of the mailing, Class Counsel requested that GCG reach out to
Class Members to confirm the last known address. GCG used email and telephone contact
information loaded in the database previously established for this Action to locate Class
Members in an effort to confirm the address on record or to obtain an address update. As a
result of this outreach and internet search verification, GCG was able to confirm or update the
address of eighty-three Class Members.
4.
GCG was directed to format the Notice for Class Members who have exited
Wells Fargo Securities Lending Program and for Class Members who have not exited its
Securities Lending Program. GCG was further directed to personalize the Notice for each Class
Member with an estimated recognized loss and estimated share of the Gross Settlement Fund,
information contained in Exhibits D(3) and D(4) appended to the Settlement Agreement.
5.
In accordance with the Preliminary Approval Order, the Notice was
disseminated by first-class mail to the 92 Class Members on June 12, 2014. Non-personalized
copies of the two versions of the Notice are attached hereto as Exhibit A.
2
6.
Pursuant to paragraph 26 of the Settlement Agreement, in the event that any
Class Member’s Notice was returned, GCG would use all reasonable secondary efforts to
deliver the Notice. Since the initial mailing, one (1) of the 92 Notices has been returned to
GCG. GCG has successfully remailed the returned Notice.
7.
In addition to the Notices mailed as described above, GCG was asked to mail
duplicate copies of the Notices to the attorneys or other agents of certain Class Members. In
total, GCG mailed 23 duplicate copies of the Notice to Class Member representatives.
TOLL-FREE INFORMATION LINE
8.
In the Notice, Class Members were provided with GCG’s toll-free telephone
number and informed that they could use it if they had any questions. GCG will continue to
maintain the toll-free telephone number throughout the claims administration process.
WEBSITE
9.
GCG
is
maintaining
a
website
dedicated
to
the
Settlement
(www.WellsFargoSecuritiesLendingLitigation.com) to assist Class Members. As stated above,
paragraph 11.a of the Preliminary Approval Order dictated that the Notice be placed on this
website. In addition to the Notice, copies of the Second Amended Class Action Complaint and
Jury Trial Demand, the Settlement Agreement, and the Preliminary Approval Order are all
posted on the website and may be downloaded by Class Members. Further, the website lists the
objection deadline, as well as the date, time and location of the Court’s Final Approval Hearing.
The settlement website is accessible 24 hours a day, 7 days a week.
OBJECTIONS
10.
Paragraph 13 of the Preliminary Approval Order provides that Class Members
wishing to object to the Settlement must do so in writing so that the objection is filed with the
3
Court and received by counsel no later than July 24, 2014. As of the date of this Declaration,
GCG has not received any objections from Class Members.
I declare, under penalty of perjury, under the laws of the United States of America, that
the foregoing is true and correct.
Executed in Seattle, Washington on July 10, 2014.
____________________________________
Jennifer M. Keough
4
EXHIBIT A CASE 0:10-cv-04372-DWF-JJG Document 673-2 Filed 07/10/14 Page 7 of 28
EMPLOYEES RETIREMENT SYSTEM AND
THE BOARD OF TRUSTEES OF THE
ARIZONA STATE CARPENTERS PENSION
TRUST FUND AND THE ARIZONA STATE
CARPENTERS DEFINED CONTRIBUTION
TRUST FUND, Individually and on Behalf of
All Others Similarly Situated,
Plaintiffs,
vs.
Defendant.
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LITIGATION, FINAL APPROVAL
HEARING, AND MOTION FOR ATTORNEYS’ FEES, REIMBURSEMENT OF
EXPENSES AND NAMED PLAINTIFFS’ SERVICE AWARDS
PLEASE READ THIS NOTICE CAREFULLY. A FEDERAL COURT AUTHORIZED THIS NOTICE.
THIS IS NOT A SOLICITATION. YOU HAVE NOT BEEN SUED.
This notice (“Notice”) advises you of a settlement (the “Settlement”) of a class action lawsuit brought by Named Plaintiffs
The City of Farmington Hills Employees Retirement System, The Board of Trustees of the Arizona State Carpenters
Pension Trust Fund and The Arizona State Carpenters Defined Contribution Trust Fund (collectively, “Named
Plaintiffs”), on behalf of themselves, and as representatives of the class described herein (the “Class”) against the
Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) in connection with Wells Fargo’s Securities Lending Program. The
Named Plaintiffs and Wells Fargo are referred to herein as the “Settling Parties.” The litigation is referred to as the
“Action.” The United States District Court for the District of Minnesota (the “Court”) has preliminarily approved the
Settlement, and has scheduled a hearing to evaluate the fairness and adequacy of the Settlement at which the Court will
consider the Named Plaintiffs’ motion for final approval of the Settlement, motion for approval of a proposed Plan of
Allocation, and motion for an award of attorneys’ fees, Litigation Expenses and Service Awards to the Named Plaintiffs.
That hearing, before the Honorable Donovan W. Frank, has been scheduled for August 14, 2014, at 9:00 a.m. in
Courtroom 7C, United States District Court for the District of Minnesota, at the Warren E. Burger Federal Building and
United States Courthouse, St. Paul, Minnesota 55101. The terms of the Settlement are contained in a Settlement
Agreement (the “Settlement”), a copy of which is available at www.wellsfargosecuritieslendinglitigation.com or by
contacting Class Counsel identified below. Capitalized terms used in this Notice and not defined herein have the meanings
assigned to them in the Settlement.
The Settlement will provide for cash payments directly to, or for the benefit of, members of the Class as defined below.
The Settlement is summarized below.
Any questions regarding the Settlement should be directed to Class Counsel: Peter A. Binkow, Glancy Binkow &
Goldberg LLP, 1925 Century Park East, Suite 2100, Los Angeles, CA 90067 or E. Powell Miller, 950 W. University Dr.,
Ste. 300, Rochester, MI 48307, settlements@millerlawpc.com. Class Counsel have also established a toll-free phone
number, 1-888-404-8013, which you can use if you have any questions. Please do not contact the Court. The Court’s
personnel will not be able to answer your questions.
FOR MORE INFORMATION: 1-888-404-8013
www.wellsfargosecuritieslendinglitigation.com
1
PLEASE READ THIS NOTICE CAREFULLY AND COMPLETELY. IF YOU ARE A MEMBER OF THE
CLASS TO WHOM THIS NOTICE IS ADDRESSED, THE SETTLEMENT WILL AFFECT YOUR RIGHTS.
YOU ARE NOT BEING SUED IN THIS MATTER. YOU DO NOT HAVE TO APPEAR IN COURT, AND YOU
DO NOT HAVE TO HIRE AN ATTORNEY. IF YOU ARE IN FAVOR OF THE SETTLEMENT, YOU NEED
NOT DO ANYTHING TO APPROVE OF THE SETTLEMENT.
YOUR LEGAL RIGHTS AND OPTIONS UNDER THE SETTLEMENT
IF YOU HAVE ALREADY EXITED THE
WELLS FARGO SECURITIES LENDING
PROGRAM, YOU DO NOT NEED TO
TAKE
FURTHER
ACTION
TO
PARTICIPATE IN THE SETTLEMENT
AND RECEIVE A PAYMENT
If you have already exited the Wells Fargo Securities Lending
Program and the Settlement is approved, you do not need to take
any further action to receive your payment. You will receive a
payment in the form of cash from the Net Settlement Fund. The
portion of the Net Settlement Fund to which you are entitled
will be calculated as part of the administration of the Settlement.
WELLS FARGO IS EXERCISING ITS
RIGHT
TO
TERMINATE
THE
SECURITIES LENDING PROGRAM. IF
YOU HAVE NOT ALREADY EXITED
THE WELLS FARGO SECURITIES
LENDING PROGRAM, YOU WILL
RECEIVE AN OFFSET AGAINST THE
CAPITAL CONTRIBUTION YOU ARE
REQUIRED TO MAKE UPON EXITING
THE PROGRAM
Regardless of whether the Settlement is approved, Wells Fargo
intends to terminate the Securities Lending Program in 2015.
Therefore, if you have not already exited the Wells Fargo
Securities Lending Program, through the Settlement you will
receive a benefit in the form of an offset against the amount you
would otherwise be required to pay to exit the Program. The
Settlement Agreement sets forth the procedures for exiting the
Wells Fargo Securities Lending Program, and requires that you
exit the Program within six months after Final Approval. For
Class Members who have not previously exited the Wells Fargo
Securities Lending Program, the amount of the Net Settlement
Fund to which you are entitled shall be applied to offset the
amount of your required capital contribution to exit Wells
Fargo’s Securities Lending Program. If you are entitled to an
amount of the Net Settlement Fund that exceeds the amount of
your required capital contribution to exit Wells Fargo’s
Securities Lending Program, you will receive that excess amount
in the form of a cash payment.
YOU CAN OBJECT (WHICH MUST BE
FILED NO LATER THAN JULY 24, 2014)
If you wish to object to any part of the Settlement, you can write
to the Court and counsel and explain why you do not like the
Settlement.
YOU CAN GO TO THE HEARING
(AUGUST 14, 2014 AT 9:00 A.M.)
If you have submitted a timely, written objection to the Court
and counsel, as explained below, you can ask to speak in Court
about the fairness of the Settlement.
IF YOU DO NOTHING
If you do nothing and the Court approves the Settlement, you
will be subject to and bound by all applicable terms of the
Settlement.
2
WHAT THIS NOTICE CONTAINS
BASIC INFORMATION..................................................................................................................................................... 4
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Why did I get this Notice package? .......................................................................................................................... 4
What is the lawsuit about? What has happened so far? ............................................................................................ 5
Why is this case a class action? ................................................................................................................................ 5
Why is there a Settlement? ....................................................................................................................................... 5
How do I know whether I am part of the Class? ....................................................................................................... 6
What does the Settlement provide? ........................................................................................................................... 6
What will be my share of the Settlement Fund? ....................................................................................................... 7
How can I get my portion of the recovery? .............................................................................................................. 7
When would I receive my payment?......................................................................................................................... 7
Can I exclude myself from the Settlement? .............................................................................................................. 7
THE LAWYERS REPRESENTING YOU ........................................................................................................................ 8
11. Do I have a lawyer in the case?................................................................................................................................. 8
12. How will the lawyers be paid? .................................................................................................................................. 8
OBJECTIONS ...................................................................................................................................................................... 8
13. How do I tell the Court if I don’t like the Settlement?.............................................................................................. 8
THE COURT’S FAIRNESS/FINAL APPROVAL HEARING ....................................................................................... 9
14. When and where will the Court decide whether to approve the Settlement? ........................................................... 9
15. Do I have to come to the hearing? .......................................................................................................................... 10
16. May I speak at the hearing? .................................................................................................................................... 10
EXHIBIT 1 – PROPOSED PLAN OF ALLOCATION OF THE NET SETTLEMENT FUND…………………….11
SUMMARY OF SETTLEMENT
This Action is a class action filed in federal district court against Wells Fargo. As described in more detail below, and in
the Complaint itself, the Named Plaintiffs allege that Wells Fargo breached its contractual agreements with and fiduciary
duties to the Class and violated the Minnesota Prevention of Consumer Fraud Act. Copies of the operative Complaint, as
well as other documents filed in this Action, are available at www.wellsfargosecuritieslendinglitigation.com.
A Gross Settlement Fund will be established consisting of a deposit of $62,500,000 (sixty-two million five-hundred
thousand dollars). Your actual recovery will be based upon the Net Settlement Fund, which will consist of the Gross
Settlement Fund plus any interest earned thereon, less certain amounts described in the Settlement. Those amounts
which will come out of the Gross Settlement Fund include expenses associated with providing Notice to the Class, Courtapproved attorneys’ fees, expenses and Service Awards, taxes and other costs related to the administration of the Gross
Settlement Fund and implementation of the Plan of Allocation, which will be allocated among the Class in accordance
with the Plan of Allocation to be approved by the Court. (See Sections 6 and 7 below and Exhibit 1 hereto for details of
the Plan of Allocation).
The Class consists of the following:
“All participants in Defendant Wells Fargo Bank, N.A.’s securities lending program (the “Program”), excluding Wells
Fargo Bank, N.A., from any time in the period January 1, 2006 to the present who suffered losses due to the Program’s
purchase and maintenance of high risk, long-term securities.”
As with any litigation, the Settling Parties would face an uncertain outcome if this Action were to continue. Continued
litigation of this Action against Wells Fargo at trial could result in a judgment or verdict greater or less than the recovery
under the Settlement, or in no recovery at all. This litigation has been hotly contested from the outset. Throughout this
litigation, the Named Plaintiffs and Wells Fargo have disagreed on both liability and damages, and they do not agree on
the amount that would be recoverable even if the Named Plaintiffs were to prevail at trial. Wells Fargo, among other
3
things: (1) has denied, and continues to deny, the material allegations of the Complaint; (2) has denied, and continues to
deny, any wrongdoing or liability whatsoever; (3) has contested and would continue to contest the propriety of class
certification; (4) believes that it acted at all times reasonably and prudently and in accordance with applicable law with
respect to its investment of cash collateral on behalf of the Class; (5) would assert certain other defenses if this Settlement
is not consummated; and (6) is entering into the Settlement solely to avoid the cost, disruption, and uncertainty of
continued litigation. The Settling Parties have taken into account the uncertainty and risks inherent in this litigation,
particularly its complex nature, and have concluded that it is desirable that this Action be fully and finally settled on the
terms and conditions set forth in the Settlement.
Class Counsel, on behalf of Plaintiffs’ Counsel in this Action, will apply to the Court for an order awarding attorneys’
fees not in excess of 33.3% of the Gross Settlement Fund (equal to $20,833,333), which is exclusive of costs and
expenses. In addition, Class Counsel will seek reimbursement of out-of-pocket costs and expenses incurred in this Action
in an amount not exceeding $2,450,000). The City of Farmington Hills Employees Retirement System, The Board of
Trustees of the Arizona State Carpenters Pension Trust Fund and The Arizona State Carpenters Defined Contribution
Trust Fund, the Named Plaintiffs in this Action, will share in the allocation of the money paid to the current and former
Wells Fargo securities lending participants on the same basis and to the same extent as all other members of the Class,
except that, in addition thereto, the Named Plaintiffs may apply to the Court for a Service Award of up to $100,000,
($50,000.00 to each Farmington and Arizona). Any Service Award granted to the Named Plaintiffs by the Court will be
payable from the Gross Settlement Fund.
BASIC INFORMATION
1.
Why did I get this Notice package?
The Court has directed that this Notice be sent to you because you have a right to know about the proposed Settlement
with Wells Fargo before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and
any related objections and appeals are favorably resolved, the net amount of the Settlement Fund will be allocated among
Class Members according to a Court-approved Plan of Allocation and the Class Member Releasees and the Wells Fargo
Releasees (the “Released Parties” for purposes of this Notice) will be released from all Settled Claims, as set forth in the
Settlement.
This Notice explains the Action, the Settlement, your legal rights, what benefits are available, who is eligible for them,
and how you will receive your portion of the benefits. The purpose of this Notice is to inform you of a hearing (the “Final
Approval Hearing”) to be held by the Court to consider the fairness, reasonableness and adequacy of the proposed
Settlement and to consider the application of Class Counsel (on behalf of Plaintiffs’ Counsel) for an award of attorneys’
fees and reimbursement of Litigation Expenses, as well as an application for Service Awards to The City of Farmington
Hills Employees Retirement System, and The Board of Trustees of the Arizona State Carpenters Pension Trust Fund, and
The Arizona State Carpenters Defined Contribution Trust Fund (the Named Plaintiffs).
The Final Approval Hearing will be held at 9:00 a.m. on August 14, 2014, in Courtroom 7C before the Honorable
Donovan W. Frank in the United States District Court for the District of Minnesota, at the Warren E. Burger Federal
Building and United States Courthouse, St. Paul, Minnesota 55101 to determine:
(a) whether the Settlement should be approved as fair, reasonable and adequate;
(b) whether the Complaint should be dismissed with prejudice pursuant to the terms of the Settlement;
(c) whether the Notice and the means of dissemination thereof pursuant to the Settlement: (i) are appropriate and
reasonable and constituted due, adequate, and sufficient notice to all persons entitled to notice; and (ii) meet
all applicable requirements of the Federal Rules of Civil Procedure, and any other applicable law;
(d) whether the application for attorneys’ fees and reimbursement of expenses filed by Class Counsel (on behalf
of Plaintiffs’ Counsel) should be approved; and
(e) whether the application for Service Awards for the Named Plaintiffs should be approved.
The issuance of this Notice is not an expression of the Court’s opinion on the merits of any claim in this Action, and the
Court still has to decide whether to approve the Settlement. If the Court approves the Settlement, payment to Class
Members will be made after all related appeals, if any, are favorably resolved. It is always uncertain whether such appeals
can be favorably resolved, and resolving them can take time, perhaps more than a year. Please be patient.
4
2.
What is the lawsuit about? What has happened so far?
The lawsuit alleges that through its administration of its Securities Lending Program, Wells Fargo breached its contractual
agreements with and fiduciary duties to the Class and violated the Minnesota Prevention of Consumer Fraud Act. The
Court has made no determination with respect to the validity of these claims and Wells Fargo contends that it breached no
duties to the Named Plaintiffs or any members of the Class.
Specifically, the Action alleges that Named Plaintiffs and other Class Members entered into securities lending agreements
with Wells Fargo. Pursuant to such agreements, Wells Fargo loaned Named Plaintiffs’ and Class Members’ securities to
third party borrowers in return for cash collateral. In their Complaint, Named Plaintiffs alleged that Wells Fargo acted
imprudently by investing and maintaining the securities lending collateral in high risk, long-term securities on behalf of
members of the Class, which violated the express terms and principal objectives of the securities lending agreements. The
alleged high risk, long-term securities included, but were not limited to, securities issued by structured investment
vehicles, including Cheyne and Victoria, mortgage-backed securities, other asset-backed securities, and corporate bonds
for such companies as Lehman Brothers and Bear Stearns. Finally, Named Plaintiffs allege that Wells Fargo’s improper
conduct as the fiduciary of the Securities Lending Program caused substantial losses to Named Plaintiffs and members of
the Class.
During discovery in this case, Plaintiffs’ Counsel produced and/or reviewed over 7,087,500 pages of documents: in total,
approximately 6,817,281 pages were produced by Wells Fargo, approximately 133,661 by Named Plaintiffs, and
approximately 136,564 by third parties. Plaintiffs’ Counsel took, defended, and/or had access to more than 90 depositions.
Those depositions resulted in approximately 22,725 pages of recorded testimony and the inclusion of approximately 2,399
exhibits. The parties filed various motions, including motions for partial summary judgment.
Counsel for the Settling Parties aggressively litigated this case for more than three years and the parties settled less than
two days before the trial was scheduled to commence. The Settlement is the product of hard-fought, arm’s-length
negotiations between Plaintiffs’ Counsel and Wells Fargo’s Counsel spanning multiple mediation sessions, facilitated by
nationally recognized mediator, Layn Phillips, a former United States Federal Judge and United States Attorney with
substantial experience mediating complex litigations of this type. Counsel for the Settling Parties agreed to this Settlement
only after its terms were thoroughly and extensively negotiated.
3.
Why is this case a class action?
In a class action, one or more plaintiffs, called “named plaintiffs,” sue on behalf of people who have similar claims. All
of the individuals on whose behalf the Named Plaintiffs in this Action are suing are members of a “class” referred to in
this Notice as Class Members or members of the Class. Because Named Plaintiffs believe that the wrongful conduct
alleged in this case affected a large number of participants in Wells Fargo’s Securities Lending Program in a highly
similar way, the Named Plaintiffs filed this case as a putative class action. United States Judge Donovan W. Frank is
presiding over this case.
4.
Why is there a Settlement?
The Court has not expressed any opinions or reached any decisions on the ultimate merits of the Named Plaintiffs’ claims
against Wells Fargo. Instead, the Named Plaintiffs and Wells Fargo have agreed to a Settlement to resolve the Action. In
reaching the Settlement, they have avoided the cost and time of proceeding to trial, as well as an appeal of the Court’s
certification ruling or trial outcome. As with any litigation, the Named Plaintiffs would face an uncertain outcome if this
case proceeded further. Pursuing the case against Wells Fargo could result in a verdict offering relief greater than this
Settlement, a verdict for less money than the Named Plaintiffs have obtained in this Settlement, or no recovery at all.
Based on these risks and an evaluation of other unique risks presented by this case, the Named Plaintiffs and Plaintiffs’
Counsel believe the Settlement is in the best interests of all members of the Class. Additional information concerning the
Settlement and these factors is available in the motion for preliminary approval of the Settlement, which may be obtained
at www.wellsfargosecuritieslendinglitigation.com.
As stated above, this Settlement is the product of extensive arm’s-length negotiations between Plaintiffs’ Counsel and
Wells Fargo’s Counsel, all of whom are very experienced with respect to complex litigation of this type. Plaintiffs’
Counsel believe the proposed Settlement is fair, reasonable and adequate and in the best interest of the Class.
5
5.
How do I know whether I am part of the Class?
United States Judge Donovan W. Frank certified the following Class:
If you are a member of the above Class, and have not previously submitted an Exclusion Request Form, your share of the
Net Settlement Fund will be determined by the Court-approved Plan of Allocation.
6.
What does the Settlement provide?
A Gross Settlement Fund consisting of $62,500,000 (sixty-two million five-hundred thousand dollars) in cash, plus
interest that accrues on this amount, is being established in this Action. Your actual recovery will depend upon the net
amount in the Gross Settlement Fund (after disbursements and reserves for certain amounts as described in the Settlement,
including expenses associated with Notice to the Class, Court-approved attorneys’ fees, expenses and Named Plaintiffs’
Service Awards, taxes and other costs related to the administration of the Gross Settlement Fund and implementation of
the Plan of Allocation (the “Net Settlement Fund”)), which will be allocated and paid to Class Members according to a
Plan of Allocation to be approved by the Court.
The Settlement will provide for either (i) cash payments to Class Members who have already exited Wells Fargo’s
Securities Lending Program, or (ii) credit toward the payment of cash due to third-party borrowers for those Class
Members who have not previously exited Wells Fargo’s Securities Lending Program. The treatment of any distribution or
credit varies based upon the recipient’s tax status and treatment of his, her or its investments. The tax treatment of any
distributions from the Net Settlement Fund, whether in the form of cash, or credit toward the payment of cash due to thirdparty borrowers for those Class Members who have not previously exited Wells Fargo’s Securities Lending Program, is
the responsibility of each recipient. You should consult your tax advisor to determine the tax consequences, if any, of any
distribution or credit to you.
In exchange for the Settlement payment, all Authorized Recipients and anyone claiming through them are deemed to fully
release the Settled Claims, and are forever enjoined from bringing any of the Settled Claims against any of the Wells
Fargo Releasees. The Wells Fargo Releasees are defined in the Settlement; generally, they are Wells Fargo and certain
affiliated or otherwise related persons and entities. The Settled Claims, also defined in the Settlement, generally include,
subject to certain limitations set forth in the Settlement, all claims asserted in this Action, as well as any claims that could
have been asserted in any forum by or on behalf of the members of the Class which arise out of or are based on the
allegations, transactions, facts, matters or occurrences, or alleged representations or omissions out of which the claims in
this Action arose. This means that Authorized Recipients will not have the right to sue the Wells Fargo Releasees for any
such claims if the Settlement is approved.
The description of the Settlement in this Notice is only a summary. The complete terms, including the definitions of the
Wells Fargo Releasees and Settled Claims, are set forth in the Settlement (including its exhibits), which may be obtained
at a dedicated Settlement Internet site, www.wellsfargosecuritieslendinglitigation.com, or by contacting Class Counsel
listed below.
6
7.
What will be my share of the Settlement Fund?
At the Final Approval Hearing, Plaintiffs’ Counsel will request the Court approve the Plan of Allocation attached hereto
as Exhibit 1. The Plan of Allocation describes the manner by which the Net Settlement Fund will be distributed to
Authorized Recipients. In general terms, the Net Settlement Fund will be allocated to Authorized Recipients in
accordance with the Plan of Allocation attached hereto as Exhibit 1. Because the Net Settlement Fund will be less than the
total losses alleged to have been suffered in the Action, each Authorized Recipient’s proportionate recovery will be less
than its, his or her alleged loss. You are not responsible for calculating the amount you may be entitled to receive under
the Settlement. This calculation will be done as part of the implementation of the Settlement, and will be based on
reasonably available information.
Many factors will affect the ultimate amount of your share of the Net Settlement Fund. However, as of now, your
estimated Recognized Loss under the attached Plan of Allocation is __________________. The Total Recognized Losses
under the Plan of Allocation are estimated to be $510,868,360.65. Accordingly, under the Plan of Allocation, your
estimated share of the Gross Settlement Fund is estimated to be _______________% or $_____________. These
numbers are estimates: the estimated amount may change depending upon the further proceedings in this matter and will
not become final until Court approval. Moreover, the aforementioned estimated share is your gross recovery, before such
items as: any Taxes on the Settlement Fund itself (as opposed to any taxes on your distribution, for which you will be
responsible), Notice and Administration Costs, Litigation Expenses awarded by the Court, Service Awards awarded by
the Court, attorneys’ fees awarded by the Court, and other Court-approved deductions.
No Authorized Recipient whose pro rata share of the Net Settlement Fund is less than $5.00 shall receive a distribution
from the Net Settlement Fund. Rather, that Authorized Recipient’s pro rata share of the Net Settlement Fund shall be
redistributed among all remaining Authorized Recipients.
8.
How can I get my portion of the recovery?
You do not need to take any further action to receive your portion of the recovery either in the form of cash or as a credit
toward the payment of cash due to third-party borrowers for those Class Members who have not previously exited Wells
Fargo’s Securities Lending Program, as set forth in the Plan of Allocation attached hereto as Exhibit 1. However, it is
recommended that you contact the Settlement Administrator to ensure that your contact information is up to date.
9.
When would I receive my payment?
Payment is conditioned on several matters, including the Court’s approval of the Settlement and that approval becoming
Final and no longer subject to any appeals. Upon satisfaction of various conditions, the Net Settlement Fund will be
distributed to Authorized Recipients in the form of cash, or used for their benefit as a credit toward the payment of cash
due to third-party borrowers for those Class Members who have not previously exited Wells Fargo’s Securities Lending
Program. These payments and credits will occur pursuant to the terms of the Plan of Allocation (attached hereto as Exhibit
1) as soon as practicable after Final Approval has been obtained for the Settlement, including the exhaustion of any
appeals. Any appeal of the Final Approval could take more than a year. Interest accrued on the Gross Settlement Fund
will be included in the amount allocated and paid to the eligible Authorized Recipients. The Settlement may be
terminated on several grounds, including if the Court does not approve or otherwise materially modifies the terms of the
Settlement. If the Settlement is terminated, the Action will proceed as if the Settlement had not been reached.
10.
Can I exclude myself from the Settlement?
No. If you did not previously submit an Exclusion Request Form, you are unable to exclude yourself from the Settlement.
You do, however, have an opportunity object to the Settlement as discussed in section 13, below.
7
THE LAWYERS REPRESENTING YOU
11.
Do I have a lawyer in the case?
The Court has appointed Glancy Binkow & Goldberg LLP, The Miller Law Firm P.C., VanOverbeke Michaud &
Timmony P.C., and Zimmerman Reed PLLP as Class Counsel for the Named Plaintiffs and the Class. You will not be
charged directly by these firms or the other firms representing the Named Plaintiffs in this case. If you want to be
represented by your own lawyer, you may hire one at your own expense.
12.
How will the lawyers be paid?
Class Counsel will apply to the Court for an award of attorneys’ fees and reimbursement of expenses for their work. The
application for attorneys’ fees will not exceed 33.3% of the Gross Settlement Fund (equal to $20,833,333), exclusive of
costs and expenses incurred in connection with the prosecution of this Action. Class Counsel’s request for reimbursement
of expenses will not exceed $2,450,000. Any award of fees and expenses incurred by Class Counsel in prosecuting the
Action on behalf of the Class will be paid from the Gross Settlement Fund prior to allocation and payment to Authorized
Recipients. The written application for fees and expenses, together with the application for Service Awards to the Named
Plaintiffs, will be filed by July 10, 2014, and the Court will consider this application at the Final Approval Hearing. A
copy of the application will be available at www.wellsfargosecuritieslendinglitigation.com or by a requesting a copy from
Class Counsel.
To date, Class Counsel have not received any payment for their services in prosecuting this Action on behalf of the Class,
nor have counsel been reimbursed for their out-of-pocket expenses incurred in connection with litigating this Action. The
fee requested by Class Counsel would compensate appointed counsel for their efforts in achieving the Settlement for the
benefit of the Class and for their risk in undertaking this representation on a contingency basis. The Court will determine
the actual amount of the award.
Objecting to the Attorneys’ Fees
By following the procedures described in the answer to Question 13, you can tell the Court that you do not agree with the
fees and expenses the attorneys intend to seek and ask the Court to deny their motion or limit the award.
OBJECTIONS
13.
How do I tell the Court if I don’t like the Settlement?
Any Authorized Recipient may appear at the Final Approval Hearing and explain why he or she thinks the Settlement of
the Action against Wells Fargo as embodied in the Settlement Agreement should not be approved as fair, reasonable and
adequate and why a judgment should not be entered thereon, why the attorneys’ fees and expenses should not be awarded,
in whole or in part, or why the Named Plaintiffs should not be awarded a Service Award, in whole or in part. However, no
Authorized Recipient shall be heard or entitled to contest these matters unless such Authorized Recipient has filed with
the Court written objections (which state all supporting bases and reasons for the objection, set forth proof of their
membership in the Class, clearly identify any and all witnesses, documents and other evidence of any kind that are to be
presented at the Final Approval Hearing in connection with such objections, and further describe the substance of any
testimony to be given by themselves as well as by any supporting witnesses).
To object, you must send a letter or other written statement saying that you object to the Settlement, the attorneys’ fee
award, expenses, and/or the Service Awards in The City of Farmington Hills Employees Retirement System, et al. v.
Wells Fargo Bank, N.A., Case No. CIV 10-4372-DWF-JJG. Be sure to include your name, address, telephone number,
signature, and a full explanation of all reasons why you object to the Settlement. Your written objection must be filed
with the Court, and served upon the counsel listed below, by no later than July 24, 2014:
8
File with the Clerk of the Court:
Clerk of the Court
District of Minnesota
Warren E. Burger Federal Building and United States Courthouse, Suite 100
St. Paul, Minnesota 55101
Re: The City of Farmington Hills Employees Retirement System, et al. v. Wells Fargo Bank, N.A., Case No. CIV 104372-DWF-JJG
And, by the same date, serve copies of all such papers by mail to each of the following:
Class Counsel:
Peter A. Binkow
Glancy Binkow & Goldberg LLP
Wells Fargo’s Counsel:
Dan Millea
Zelle Hofmann Voelbel & Mason LLP
500 Washington Avenue South, Suite 4000
E. Powell Miller
The Miller Law Firm, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
UNLESS OTHERWISE ORDERED BY THE COURT, ANY CLASS MEMBER WHO DOES NOT OBJECT IN
THE MANNER DESCRIBED HEREIN WILL BE DEEMED TO HAVE WAIVED ANY OBJECTION AND
SHALL BE FOREVER FORECLOSED FROM MAKING ANY OBJECTION TO THE PROPOSED
SETTLEMENT AND THE APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES AND SERVICE
AWARDS.
THE COURT’S FAIRNESS HEARING
14.
When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Approval Hearing at 9:00 a.m. on August 14, 2014, in Courtroom 7C before the Honorable
Donovan W. Frank in the United States District Court for the District of Minnesota, Warren E. Burger Federal Building
and United States Courthouse, St. Paul, Minnesota 55101.
IF YOU DO NOT WISH TO OBJECT TO THE PROPOSED SETTLEMENT OR THE APPLICATION FOR
ATTORNEYS’ FEES AND EXPENSES AND SERVICE AWARDS, YOU NEED NOT ATTEND
THE FINAL APPROVAL HEARING.
At the hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections,
the Court will consider them. After the Final Approval Hearing, the Court will decide whether to approve the
Settlement. The Court will also consider the motions for attorneys’ fees, expenses and Service Awards to the Named
Plaintiffs, as well as the proposed Plan of Allocation. We do not know how long these decisions will take.
9
15.
Do I have to come to the hearing?
Class Counsel will answer any questions that the Court may have about the Settlement at the Final Approval Hearing.
You are not required to attend the Final Approval Hearing but are welcome to come at your own expense. If you send
an objection, you do not have to come to Court to discuss it. As long as you filed your written objection on time, it will
be before the Court when the Court considers whether to approve the Settlement as fair, reasonable and adequate. You
may also have your own lawyer attend the Final Approval Hearing at your expense, but such attendance is not
mandatory.
16.
May I speak at the hearing?
If you are a Class Member and you have filed a timely objection, if you wish to speak, present evidence or present
testimony at the Final Approval Hearing, you must state in your objection your intention to do so, and must identify any
witnesses you intend to call or evidence you intend to present.
The Final Approval Hearing may be rescheduled by the Court without further notice to the Class. If you wish to attend the
Final Approval Hearing, you should confirm the date and time with Class Counsel
.
10
EXHIBIT 1
Proposed Plan of Allocation of the Net Settlement Fund
1.
The Net Settlement Fund will be allocated among Authorized Recipients pursuant to the method
described below.
2.
The amount of the Net Settlement Fund to which each Authorized Recipient will be entitled will be
determined as a pro rata share based on that Authorized Recipient’s Recognized Loss, and will be calculated as follows:
(a)
For Authorized Recipients who have exited the Program.
The Recognized Claim of each Authorized Recipient who has exited the Program as of the
Effective Date will be determined as the Authorized Recipient’s pro rata share of the Net Settlement
Fund, calculated in accordance with the following formula:
Recognized Loss = the Authorized Recipient’s total combined Realized Losses + Unrealized
Losses as of the date of exit from the Program + (.25 x Securities Lending Earnings)
Total Recognized Losses = the sum of all Authorized Recipients’ Recognized Losses
Each Authorized Recipient’s Recognized Claim = (Recognized Loss / Total Recognized Losses)
x Net Settlement Fund.
(b)
For Authorized Recipients who have not exited the Program.
The Recognized Claim of each Authorized Recipient who has not exited the Program as of the
Losses as of the Effective Date of the Settlement + (.25 x Securities Lending Earnings)
3.
No Authorized Recipient whose pro rata share of the Net Settlement Fund is less than $5.00 shall receive
a distribution from the Net Settlement Fund. Rather, that Authorized Recipient’s pro rata share of the Net Settlement Fund
shall be redistributed among all remaining Authorized Recipients.
4.
Prior to the Effective Date of the Settlement, the Gross Settlement Fund shall remain in an interestbearing Settlement Escrow Account, except as otherwise provided in the Settlement Agreement.
11
EMPLOYEES RETIREMENT SYSTEM AND
THE BOARD OF TRUSTEES OF THE
ARIZONA STATE CARPENTERS PENSION
TRUST FUND AND THE ARIZONA STATE
CARPENTERS DEFINED CONTRIBUTION
TRUST FUND, Individually and on Behalf of
All Others Similarly Situated,
Plaintiffs,
vs.
Defendant.
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION LITIGATION, FINAL APPROVAL
HEARING, AND MOTION FOR ATTORNEYS’ FEES, REIMBURSEMENT OF
EXPENSES AND NAMED PLAINTIFFS’ SERVICE AWARDS
PLEASE READ THIS NOTICE CAREFULLY. A FEDERAL COURT AUTHORIZED THIS NOTICE.
THIS IS NOT A SOLICITATION. YOU HAVE NOT BEEN SUED.
This notice (“Notice”) advises you of a settlement (the “Settlement”) of a class action lawsuit brought by Named Plaintiffs
The City of Farmington Hills Employees Retirement System, The Board of Trustees of the Arizona State Carpenters
Pension Trust Fund and The Arizona State Carpenters Defined Contribution Trust Fund (collectively, “Named
Plaintiffs”), on behalf of themselves, and as representatives of the class described herein (the “Class”) against the
Defendant Wells Fargo Bank, N.A. (“Wells Fargo”) in connection with Wells Fargo’s Securities Lending Program. The
Named Plaintiffs and Wells Fargo are referred to herein as the “Settling Parties.” The litigation is referred to as the
“Action.” The United States District Court for the District of Minnesota (the “Court”) has preliminarily approved the
Settlement, and has scheduled a hearing to evaluate the fairness and adequacy of the Settlement at which the Court will
consider the Named Plaintiffs’ motion for final approval of the Settlement, motion for approval of a proposed Plan of
Allocation, and motion for an award of attorneys’ fees, Litigation Expenses and Service Awards to the Named Plaintiffs.
That hearing, before the Honorable Donovan W. Frank, has been scheduled for August 14, 2014, at 9:00 a.m. in
Courtroom 7C, United States District Court for the District of Minnesota, at the Warren E. Burger Federal Building and
United States Courthouse, St. Paul, Minnesota 55101. The terms of the Settlement are contained in a Settlement
Agreement (the “Settlement”), a copy of which is available at www.wellsfargosecuritieslendinglitigation.com or by
contacting Class Counsel identified below. Capitalized terms used in this Notice and not defined herein have the meanings
assigned to them in the Settlement.
The Settlement will provide for cash payments directly to, or for the benefit of, members of the Class as defined below.
The Settlement is summarized below.
Any questions regarding the Settlement should be directed to Class Counsel: Peter A. Binkow, Glancy Binkow &
Goldberg LLP, 1925 Century Park East, Suite 2100, Los Angeles, CA 90067 or E. Powell Miller, 950 W. University Dr.,
Ste. 300, Rochester, MI 48307, settlements@millerlawpc.com. Class Counsel have also established a toll-free phone
number, 1-888-404-8013, which you can use if you have any questions. Please do not contact the Court. The Court’s
personnel will not be able to answer your questions.
1
PLEASE READ THIS NOTICE CAREFULLY AND COMPLETELY. IF YOU ARE A MEMBER OF THE
CLASS TO WHOM THIS NOTICE IS ADDRESSED, THE SETTLEMENT WILL AFFECT YOUR RIGHTS.
YOU ARE NOT BEING SUED IN THIS MATTER. YOU DO NOT HAVE TO APPEAR IN COURT, AND YOU
DO NOT HAVE TO HIRE AN ATTORNEY. IF YOU ARE IN FAVOR OF THE SETTLEMENT, YOU NEED
NOT DO ANYTHING TO APPROVE OF THE SETTLEMENT.
YOUR LEGAL RIGHTS AND OPTIONS UNDER THE SETTLEMENT
IF YOU HAVE ALREADY EXITED THE
WELLS FARGO SECURITIES LENDING
PROGRAM, YOU DO NOT NEED TO
TAKE
FURTHER
ACTION
TO
PARTICIPATE IN THE SETTLEMENT
AND RECEIVE A PAYMENT
If you have already exited the Wells Fargo Securities Lending
Program and the Settlement is approved, you do not need to take
any further action to receive your payment. You will receive a
payment in the form of cash from the Net Settlement Fund. The
portion of the Net Settlement Fund to which you are entitled
will be calculated as part of the administration of the Settlement.
WELLS FARGO IS EXERCISING ITS
RIGHT
TO
TERMINATE
THE
SECURITIES LENDING PROGRAM. IF
YOU HAVE NOT ALREADY EXITED
THE WELLS FARGO SECURITIES
LENDING PROGRAM, YOU WILL
RECEIVE AN OFFSET AGAINST THE
CAPITAL CONTRIBUTION YOU ARE
REQUIRED TO MAKE UPON EXITING
THE PROGRAM
Regardless of whether the Settlement is approved, Wells Fargo
intends to terminate the Securities Lending Program in 2015.
Therefore, if you have not already exited the Wells Fargo
Securities Lending Program, through the Settlement you will
receive a benefit in the form of an offset against the amount you
would otherwise be required to pay to exit the Program. The
Settlement Agreement sets forth the procedures for exiting the
Wells Fargo Securities Lending Program, and requires that you
exit the Program within six months after Final Approval. For
Class Members who have not previously exited the Wells Fargo
Securities Lending Program, the amount of the Net Settlement
Fund to which you are entitled shall be applied to offset the
amount of your required capital contribution to exit Wells
Fargo’s Securities Lending Program. If you are entitled to an
amount of the Net Settlement Fund that exceeds the amount of
your required capital contribution to exit Wells Fargo’s
Securities Lending Program, you will receive that excess amount
in the form of a cash payment.
YOU CAN OBJECT (WHICH MUST BE
FILED NO LATER THAN JULY 24, 2014)
If you wish to object to any part of the Settlement, you can write
to the Court and counsel and explain why you do not like the
Settlement.
YOU CAN GO TO THE HEARING
(AUGUST 14, 2014 AT 9:00 A.M.)
If you have submitted a timely, written objection to the Court
and counsel, as explained below, you can ask to speak in Court
about the fairness of the Settlement.
IF YOU DO NOTHING
If you do nothing and the Court approves the Settlement, you
will be subject to and bound by all applicable terms of the
Settlement.
2
WHAT THIS NOTICE CONTAINS
BASIC INFORMATION..................................................................................................................................................... 4
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Why did I get this Notice package? .......................................................................................................................... 4
What is the lawsuit about? What has happened so far? ............................................................................................ 5
Why is this case a class action? ................................................................................................................................ 5
Why is there a Settlement? ....................................................................................................................................... 5
How do I know whether I am part of the Class? ....................................................................................................... 6
What does the Settlement provide? ........................................................................................................................... 6
What will be my share of the Settlement Fund? ....................................................................................................... 7
How can I get my portion of the recovery? .............................................................................................................. 7
When would I receive my payment?......................................................................................................................... 7
Can I exclude myself from the Settlement? .............................................................................................................. 8
THE LAWYERS REPRESENTING YOU ........................................................................................................................ 8
11. Do I have a lawyer in the case?................................................................................................................................. 8
12. How will the lawyers be paid? .................................................................................................................................. 8
OBJECTIONS ...................................................................................................................................................................... 8
13. How do I tell the Court if I don’t like the Settlement?.............................................................................................. 8
THE COURT’S FAIRNESS/FINAL APPROVAL HEARING ....................................................................................... 9
14. When and where will the Court decide whether to approve the Settlement? ........................................................... 9
15. Do I have to come to the hearing? .......................................................................................................................... 10
16. May I speak at the hearing? .................................................................................................................................... 10
EXHIBIT 1 – PROPOSED PLAN OF ALLOCATION OF THE NET SETTLEMENT FUND ................................... 11
SUMMARY OF SETTLEMENT
This Action is a class action filed in federal district court against Wells Fargo. As described in more detail below, and in
the Complaint itself, the Named Plaintiffs allege that Wells Fargo breached its contractual agreements with and fiduciary
duties to the Class and violated the Minnesota Prevention of Consumer Fraud Act. Copies of the operative Complaint, as
well as other documents filed in this Action, are available at www.wellsfargosecuritieslendinglitigation.com.
A Gross Settlement Fund will be established consisting of a deposit of $62,500,000 (sixty-two million five-hundred
thousand dollars). Your actual recovery will be based upon the Net Settlement Fund, which will consist of the Gross
Settlement Fund plus any interest earned thereon, less certain amounts described in the Settlement. Those amounts
which will come out of the Gross Settlement Fund include expenses associated with providing Notice to the Class, Courtapproved attorneys’ fees, expenses and Service Awards, taxes and other costs related to the administration of the Gross
Settlement Fund and implementation of the Plan of Allocation, which will be allocated among the Class in accordance
with the Plan of Allocation to be approved by the Court. (See Sections 6 and 7 below and Exhibit 1 hereto for details of
the Plan of Allocation).
The Class consists of the following:
As with any litigation, the Settling Parties would face an uncertain outcome if this Action were to continue. Continued
litigation of this Action against Wells Fargo at trial could result in a judgment or verdict greater or less than the recovery
under the Settlement, or in no recovery at all. This litigation has been hotly contested from the outset. Throughout this
litigation, the Named Plaintiffs and Wells Fargo have disagreed on both liability and damages, and they do not agree on
the amount that would be recoverable even if the Named Plaintiffs were to prevail at trial. Wells Fargo, among other
3
things: (1) has denied, and continues to deny, the material allegations of the Complaint; (2) has denied, and continues to
deny, any wrongdoing or liability whatsoever; (3) has contested and would continue to contest the propriety of class
certification; (4) believes that it acted at all times reasonably and prudently and in accordance with applicable law with
respect to its investment of cash collateral on behalf of the Class; (5) would assert certain other defenses if this Settlement
is not consummated; and (6) is entering into the Settlement solely to avoid the cost, disruption, and uncertainty of
continued litigation. The Settling Parties have taken into account the uncertainty and risks inherent in this litigation,
particularly its complex nature, and have concluded that it is desirable that this Action be fully and finally settled on the
terms and conditions set forth in the Settlement.
Class Counsel, on behalf of Plaintiffs’ Counsel in this Action, will apply to the Court for an order awarding attorneys’
fees not in excess of 33.3% of the Gross Settlement Fund (equal to $20,833,333), which is exclusive of costs and
expenses. In addition, Class Counsel will seek reimbursement of out-of-pocket costs and expenses incurred in this Action
in an amount not exceeding $2,450,000). The City of Farmington Hills Employees Retirement System, The Board of
Trustees of the Arizona State Carpenters Pension Trust Fund and The Arizona State Carpenters Defined Contribution
Trust Fund, the Named Plaintiffs in this Action, will share in the allocation of the money paid to the current and former
Wells Fargo securities lending participants on the same basis and to the same extent as all other members of the Class,
except that, in addition thereto, the Named Plaintiffs may apply to the Court for a Service Award of up to $100,000,
($50,000.00 to each Farmington and Arizona). Any Service Award granted to the Named Plaintiffs by the Court will be
payable from the Gross Settlement Fund.
BASIC INFORMATION
1.
Why did I get this Notice package?
The Court has directed that this Notice be sent to you because you have a right to know about the proposed Settlement
with Wells Fargo before the Court decides whether to approve the Settlement. If the Court approves the Settlement, and
any related objections and appeals are favorably resolved, the net amount of the Settlement Fund will be allocated among
Class Members according to a Court-approved Plan of Allocation and the Class Member Releasees and the Wells Fargo
Releasees (the “Released Parties” for purposes of this Notice) will be released from all Settled Claims, as set forth in the
Settlement.
This Notice explains the Action, the Settlement, your legal rights, what benefits are available, who is eligible for them,
and how you will receive your portion of the benefits. The purpose of this Notice is to inform you of a hearing (the “Final
Approval Hearing”) to be held by the Court to consider the fairness, reasonableness and adequacy of the proposed
Settlement and to consider the application of Class Counsel (on behalf of Plaintiffs’ Counsel) for an award of attorneys’
fees and reimbursement of Litigation Expenses, as well as an application for Service Awards to The City of Farmington
Hills Employees Retirement System, and The Board of Trustees of the Arizona State Carpenters Pension Trust Fund, and
The Arizona State Carpenters Defined Contribution Trust Fund (the Named Plaintiffs).
The Final Approval Hearing will be held at 9:00 a.m. on August 14, 2014, in Courtroom 7C before the Honorable
Donovan W. Frank in the United States District Court for the District of Minnesota, at the Warren E. Burger Federal
Building and United States Courthouse, St. Paul, Minnesota 55101 to determine:
(a) whether the Settlement should be approved as fair, reasonable and adequate;
(b) whether the Complaint should be dismissed with prejudice pursuant to the terms of the Settlement;
(c) whether the Notice and the means of dissemination thereof pursuant to the Settlement: (i) are appropriate and
reasonable and constituted due, adequate, and sufficient notice to all persons entitled to notice; and (ii) meet
all applicable requirements of the Federal Rules of Civil Procedure, and any other applicable law;
(d) whether the application for attorneys’ fees and reimbursement of expenses filed by Class Counsel (on behalf
of Plaintiffs’ Counsel) should be approved; and
(e) whether the application for Service Awards for the Named Plaintiffs should be approved.
The issuance of this Notice is not an expression of the Court’s opinion on the merits of any claim in this Action, and the
Court still has to decide whether to approve the Settlement. If the Court approves the Settlement, payment to Class
Members will be made after all related appeals, if any, are favorably resolved. It is always uncertain whether such appeals
can be favorably resolved, and resolving them can take time, perhaps more than a year. Please be patient.
4
2.
What is the lawsuit about? What has happened so far?
The lawsuit alleges that through its administration of its Securities Lending Program, Wells Fargo breached its contractual
agreements with and fiduciary duties to the Class and violated the Minnesota Prevention of Consumer Fraud Act. The
Court has made no determination with respect to the validity of these claims and Wells Fargo contends that it breached no
duties to the Named Plaintiffs or any members of the Class.
Specifically, the Action alleges that Named Plaintiffs and other Class Members entered into securities lending agreements
with Wells Fargo. Pursuant to such agreements, Wells Fargo loaned Named Plaintiffs’ and Class Members’ securities to
third party borrowers in return for cash collateral. In their Complaint, Named Plaintiffs alleged that Wells Fargo acted
imprudently by investing and maintaining the securities lending collateral in high risk, long-term securities on behalf of
members of the Class, which violated the express terms and principal objectives of the securities lending agreements. The
alleged high risk, long-term securities included, but were not limited to, securities issued by structured investment
vehicles, including Cheyne and Victoria, mortgage-backed securities, other asset-backed securities, and corporate bonds
for such companies as Lehman Brothers and Bear Stearns. Finally, Named Plaintiffs allege that Wells Fargo’s improper
conduct as the fiduciary of the Securities Lending Program caused substantial losses to Named Plaintiffs and members of
the Class.
During discovery in this case, Plaintiffs’ Counsel produced and/or reviewed over 7,087,500 pages of documents: in total,
approximately 6,817,281 pages were produced by Wells Fargo, approximately 133,661 by Named Plaintiffs, and
approximately 136,564 by third parties. Plaintiffs’ Counsel took, defended, and/or had access to more than 90 depositions.
Those depositions resulted in approximately 22,725 pages of recorded testimony and the inclusion of approximately 2,399
exhibits. The parties filed various motions, including motions for partial summary judgment.
Counsel for the Settling Parties aggressively litigated this case for more than three years and the parties settled less than
two days before the trial was scheduled to commence. The Settlement is the product of hard-fought, arm’s-length
negotiations between Plaintiffs’ Counsel and Wells Fargo’s Counsel spanning multiple mediation sessions, facilitated by
nationally recognized mediator, Layn Phillips, a former United States Federal Judge and United States Attorney with
substantial experience mediating complex litigations of this type. Counsel for the Settling Parties agreed to this Settlement
only after its terms were thoroughly and extensively negotiated.
3.
Why is this case a class action?
In a class action, one or more plaintiffs, called “named plaintiffs,” sue on behalf of people who have similar claims. All
of the individuals on whose behalf the Named Plaintiffs in this Action are suing are members of a “class” referred to in
this Notice as Class Members or members of the Class. Because Named Plaintiffs believe that the wrongful conduct
alleged in this case affected a large number of participants in Wells Fargo’s Securities Lending Program in a highly
similar way, the Named Plaintiffs filed this case as a putative class action. United States Judge Donovan W. Frank is
presiding over this case.
4.
Why is there a Settlement?
The Court has not expressed any opinions or reached any decisions on the ultimate merits of the Named Plaintiffs’ claims
against Wells Fargo. Instead, the Named Plaintiffs and Wells Fargo have agreed to a Settlement to resolve the Action. In
reaching the Settlement, they have avoided the cost and time of proceeding to trial, as well as an appeal of the Court’s
certification ruling or trial outcome. As with any litigation, the Named Plaintiffs would face an uncertain outcome if this
case proceeded further. Pursuing the case against Wells Fargo could result in a verdict offering relief greater than this
Settlement, a verdict for less money than the Named Plaintiffs have obtained in this Settlement, or no recovery at all.
Based on these risks and an evaluation of other unique risks presented by this case, the Named Plaintiffs and Plaintiffs’
Counsel believe the Settlement is in the best interests of all members of the Class. Additional information concerning the
Settlement and these factors is available in the motion for preliminary approval of the Settlement, which may be obtained
at www.wellsfargosecuritieslendinglitigation.com.
As stated above, this Settlement is the product of extensive arm’s-length negotiations between Plaintiffs’ Counsel and
Wells Fargo’s Counsel, all of whom are very experienced with respect to complex litigation of this type. Plaintiffs’
Counsel believe the proposed Settlement is fair, reasonable and adequate and in the best interest of the Class.
5
5.
How do I know whether I am part of the Class?
United States Judge Donovan W. Frank certified the following Class:
If you are a member of the above Class, and have not previously submitted an Exclusion Request Form, your share of the
Net Settlement Fund will be determined by the Court-approved Plan of Allocation.
6.
What does the Settlement provide?
A Gross Settlement Fund consisting of $62,500,000 (sixty-two million five-hundred thousand dollars) in cash, plus
interest that accrues on this amount, is being established in this Action. Your actual recovery will depend upon the net
amount in the Gross Settlement Fund (after disbursements and reserves for certain amounts as described in the Settlement,
including expenses associated with Notice to the Class, Court-approved attorneys’ fees, expenses and Named Plaintiffs’
Service Awards, taxes and other costs related to the administration of the Gross Settlement Fund and implementation of
the Plan of Allocation (the “Net Settlement Fund”)), which will be allocated and paid to Class Members according to a
Plan of Allocation to be approved by the Court.
The Settlement will provide for either (i) cash payments to Class Members who have already exited Wells Fargo’s
Securities Lending Program, or (ii) credit toward the payment of cash due to third-party borrowers for those Class
Members who have not previously exited Wells Fargo’s Securities Lending Program. The treatment of any distribution or
credit varies based upon the recipient’s tax status and treatment of his, her or its investments. The tax treatment of any
distributions from the Net Settlement Fund, whether in the form of cash, or credit toward the payment of cash due to thirdparty borrowers for those Class Members who have not previously exited Wells Fargo’s Securities Lending Program, is
the responsibility of each recipient. You should consult your tax advisor to determine the tax consequences, if any, of any
distribution or credit to you.
In exchange for the Settlement payment, all Authorized Recipients and anyone claiming through them are deemed to fully
release the Settled Claims, and are forever enjoined from bringing any of the Settled Claims against any of the Wells
Fargo Releasees. The Wells Fargo Releasees are defined in the Settlement; generally, they are Wells Fargo and certain
affiliated or otherwise related persons and entities. The Settled Claims, also defined in the Settlement, generally include,
subject to certain limitations set forth in the Settlement, all claims asserted in this Action, as well as any claims that could
have been asserted in any forum by or on behalf of the members of the Class which arise out of or are based on the
allegations, transactions, facts, matters or occurrences, or alleged representations or omissions out of which the claims in
this Action arose. This means that Authorized Recipients will not have the right to sue the Wells Fargo Releasees for any
such claims if the Settlement is approved.
Wells Fargo’s records indicate that you have not exited its Securities Lending Program. Class Members that have
not previously exited Wells Fargo’s Securities Lending Program should be aware that Wells Fargo will be terminating its
Securities Lending Program on the following terms. Within six months after Final Approval, each such Class Member
will be required to make a capital contribution. The capital contribution will be equal to:
• the then-current Realized Loss figure; plus
• the Current Cost Basis of any Non-Cash-Equivalent Collateral Portfolio Assets, adjusted for rebates, if any, due
to third-party borrowers;
• less the amount of the Net Settlement Fund to which the Class Member is entitled under this Settlement.
The Realized Loss figure, Current Cost Basis, and rebates due will be determined by Wells Fargo in good faith. Following
Wells Fargo’s receipt of the required capital contribution from the Class Member, Wells Fargo will:
(a) transfer the remaining Non-Cash-Equivalent Collateral Portfolio Assets out of the Class Member’s securities
lending collateral account and into a new account, which must be designated by the Class Member at or before the
time of making the capital contribution;
(b) complete the recall process for all outstanding securities on loan to third-party borrowers;
6
(c) if instructed by a Class Member, within a reasonable time, dispose of all collateral portfolio assets in the Class
Member’s designated account; and
(d) use its best judgment in determining the precise manner and timing of the sale of the collateral portfolio assets,
and that judgment will be final and conclusive.
Wells Fargo will offer an optional bulk sale opportunity for the disposition of collateral portfolio assets in which such
Class Members may, but need not, participate. The Settlement does not release any Class Member’s obligation to make
the required cash contribution or return any collateral due to third-party borrowers, or require Wells Fargo to continue
operating its Securities Lending Program beyond six months after Final Approval.
The description of the Settlement in this Notice is only a summary. The complete terms, including the definitions of the
Wells Fargo Releasees and Settled Claims, are set forth in the Settlement (including its exhibits), which may be obtained
at a dedicated Settlement Internet site, www.wellsfargosecuritieslendinglitigation.com, or by contacting Class Counsel
listed below.
7.
What will be my share of the Settlement Fund?
At the Final Approval Hearing, Plaintiffs’ Counsel will request the Court approve the Plan of Allocation attached hereto
as Exhibit 1. The Plan of Allocation describes the manner by which the Net Settlement Fund will be distributed to
Authorized Recipients. In general terms, the Net Settlement Fund will be allocated to Authorized Recipients in
accordance with the Plan of Allocation attached hereto as Exhibit 1. Because the Net Settlement Fund will be less than the
total losses alleged to have been suffered in the Action, each Authorized Recipient’s proportionate recovery will be less
than its, his or her alleged loss. You are not responsible for calculating the amount you may be entitled to receive under
the Settlement. This calculation will be done as part of the implementation of the Settlement, and will be based on
reasonably available information.
Many factors will affect the ultimate amount of your share of the Net Settlement Fund. However, as of now, your
estimated Recognized Loss under the attached Plan of Allocation is __________________. The Total Recognized Losses
under the Plan of Allocation are estimated to be $510,868,360.65. Accordingly, under the Plan of Allocation, your
estimated share of the Gross Settlement Fund is estimated to be _______________% or $_____________. These
numbers are estimates: the estimated amount may change depending upon the further proceedings in this matter and will
not become final until Court approval. Moreover, the aforementioned estimated share is your gross recovery, before such
items as: any Taxes on the Settlement Fund itself (as opposed to any taxes on your distribution, for which you will be
responsible), Notice and Administration Costs, Litigation Expenses awarded by the Court, Service Awards awarded by
the Court, attorneys’ fees awarded by the Court, and other Court-approved deductions.
No Authorized Recipient whose pro rata share of the Net Settlement Fund is less than $5.00 shall receive a distribution
from the Net Settlement Fund. Rather, that Authorized Recipient’s pro rata share of the Net Settlement Fund shall be
redistributed among all remaining Authorized Recipients.
8.
How can I get my portion of the recovery?
You do not need to take any further action to receive your portion of the recovery either in the form of cash or as a credit
toward the payment of cash due to third-party borrowers for those Class Members who have not previously exited Wells
Fargo’s Securities Lending Program, as set forth in the Plan of Allocation attached hereto as Exhibit 1. However, it is
recommended that you contact the Settlement Administrator to ensure that your contact information is up to date.
9.
When would I receive my payment?
Payment is conditioned on several matters, including the Court’s approval of the Settlement and that approval becoming
Final and no longer subject to any appeals. Upon satisfaction of various conditions, the Net Settlement Fund will be
distributed to Authorized Recipients in the form of cash, or used for their benefit as a credit toward the payment of cash
due to third-party borrowers for those Class Members who have not previously exited Wells Fargo’s Securities Lending
Program. These payments and credits will occur pursuant to the terms of the Plan of Allocation (attached hereto as Exhibit
1) as soon as practicable after Final Approval has been obtained for the Settlement, including the exhaustion of any
appeals. Any appeal of the Final Approval could take more than a year. Interest accrued on the Gross Settlement Fund
7
will be included in the amount allocated and paid to the eligible Authorized Recipients. The Settlement may be
terminated on several grounds, including if the Court does not approve or otherwise materially modifies the terms of the
Settlement. If the Settlement is terminated, the Action will proceed as if the Settlement had not been reached.
10.
Can I exclude myself from the Settlement?
No. If you did not previously submit an Exclusion Request Form, you are unable to exclude yourself from the Settlement.
You do, however, have an opportunity object to the Settlement as discussed in section 13, below.
THE LAWYERS REPRESENTING YOU
11.
Do I have a lawyer in the case?
The Court has appointed Glancy Binkow & Goldberg LLP, The Miller Law Firm P.C., VanOverbeke Michaud &
Timmony P.C., and Zimmerman Reed PLLP as Class Counsel for the Named Plaintiffs and the Class. You will not be
charged directly by these firms or the other firms representing the Named Plaintiffs in this case. If you want to be
represented by your own lawyer, you may hire one at your own expense.
12.
How will the lawyers be paid?
Class Counsel will apply to the Court for an award of attorneys’ fees and reimbursement of expenses for their work. The
application for attorneys’ fees will not exceed 33.3% of the Gross Settlement Fund (equal to $20,833,333), exclusive of
costs and expenses incurred in connection with the prosecution of this Action. Class Counsel’s request for reimbursement
of expenses will not exceed $2,450,000. Any award of fees and expenses incurred by Class Counsel in prosecuting the
Action on behalf of the Class will be paid from the Gross Settlement Fund prior to allocation and payment to Authorized
Recipients. The written application for fees and expenses, together with the application for Service Awards to the Named
Plaintiffs, will be filed by July 10, 2014, and the Court will consider this application at the Final Approval Hearing. A
copy of the application will be available at www.wellsfargosecuritieslendinglitigation.com or by a requesting a copy from
Class Counsel.
To date, Class Counsel have not received any payment for their services in prosecuting this Action on behalf of the Class,
nor have counsel been reimbursed for their out-of-pocket expenses incurred in connection with litigating this Action. The
fee requested by Class Counsel would compensate appointed counsel for their efforts in achieving the Settlement for the
benefit of the Class and for their risk in undertaking this representation on a contingency basis. The Court will determine
the actual amount of the award.
Objecting to the Attorneys’ Fees
By following the procedures described in the answer to Question 13, you can tell the Court that you do not agree with the
fees and expenses the attorneys intend to seek and ask the Court to deny their motion or limit the award.
OBJECTIONS
13.
How do I tell the Court if I don’t like the Settlement?
Any Authorized Recipient may appear at the Final Approval Hearing and explain why he or she thinks the Settlement of
the Action against Wells Fargo as embodied in the Settlement Agreement should not be approved as fair, reasonable and
adequate and why a judgment should not be entered thereon, why the attorneys’ fees and expenses should not be awarded,
in whole or in part, or why the Named Plaintiffs should not be awarded a Service Award, in whole or in part. However, no
Authorized Recipient shall be heard or entitled to contest these matters unless such Authorized Recipient has filed with
the Court written objections (which state all supporting bases and reasons for the objection, set forth proof of their
membership in the Class, clearly identify any and all witnesses, documents and other evidence of any kind that are to be
presented at the Final Approval Hearing in connection with such objections, and further describe the substance of any
testimony to be given by themselves as well as by any supporting witnesses).
8
To object, you must send a letter or other written statement saying that you object to the Settlement, the attorneys’ fee
award, expenses, and/or the Service Awards in The City of Farmington Hills Employees Retirement System, et al. v.
Wells Fargo Bank, N.A., Case No. CIV 10-4372-DWF-JJG. Be sure to include your name, address, telephone number,
signature, and a full explanation of all reasons why you object to the Settlement. Your written objection must be filed
with the Court, and served upon the counsel listed below, by no later than July 24, 2014:
File with the Clerk of the Court:
Clerk of the Court
District of Minnesota
Warren E. Burger Federal Building and United States Courthouse, Suite 100
St. Paul, Minnesota 55101
Re: The City of Farmington Hills Employees Retirement System, et al. v. Wells Fargo Bank, N.A., Case No. CIV 104372-DWF-JJG
And, by the same date, serve copies of all such papers by mail to each of the following:
Class Counsel:
Peter A. Binkow
Glancy Binkow & Goldberg LLP
Wells Fargo’s Counsel:
Dan Millea
Zelle Hofmann Voelbel & Mason LLP
500 Washington Avenue South, Suite 4000
E. Powell Miller
The Miller Law Firm, P.C.
950 W. University Drive, Suite 300
Rochester, MI 48307
UNLESS OTHERWISE ORDERED BY THE COURT, ANY CLASS MEMBER WHO DOES NOT OBJECT IN
THE MANNER DESCRIBED HEREIN WILL BE DEEMED TO HAVE WAIVED ANY OBJECTION AND
SHALL BE FOREVER FORECLOSED FROM MAKING ANY OBJECTION TO THE PROPOSED
SETTLEMENT AND THE APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES AND SERVICE
AWARDS.
THE COURT’S FAIRNESS HEARING
14.
When and where will the Court decide whether to approve the Settlement?
The Court will hold a Final Approval Hearing at 9:00 a.m. on August 14, 2014, in Courtroom 7C before the Honorable
Donovan W. Frank in the United States District Court for the District of Minnesota, Warren E. Burger Federal Building
and United States Courthouse, St. Paul, Minnesota 55101.
IF YOU DO NOT WISH TO OBJECT TO THE PROPOSED SETTLEMENT OR THE APPLICATION FOR
ATTORNEYS’ FEES AND EXPENSES AND SERVICE AWARDS, YOU NEED NOT ATTEND
THE FINAL APPROVAL HEARING.
At the hearing, the Court will consider whether the Settlement is fair, reasonable and adequate. If there are objections,
the Court will consider them. After the Final Approval Hearing, the Court will decide whether to approve the
Settlement. The Court will also consider the motions for attorneys’ fees, expenses and Service Awards to the Named
Plaintiffs, as well as the proposed Plan of Allocation. We do not know how long these decisions will take.
9
15.
Do I have to come to the hearing?
Class Counsel will answer any questions that the Court may have about the Settlement at the Final Approval Hearing.
You are not required to attend the Final Approval Hearing but are welcome to come at your own expense. If you send
an objection, you do not have to come to Court to discuss it. As long as you filed your written objection on time, it will
be before the Court when the Court considers whether to approve the Settlement as fair, reasonable and adequate. You
may also have your own lawyer attend the Final Approval Hearing at your expense, but such attendance is not
mandatory.
16.
May I speak at the hearing?
If you are a Class Member and you have filed a timely objection, if you wish to speak, present evidence or present
testimony at the Final Approval Hearing, you must state in your objection your intention to do so, and must identify any
witnesses you intend to call or evidence you intend to present.
The Final Approval Hearing may be rescheduled by the Court without further notice to the Class. If you wish to attend the
Final Approval Hearing, you should confirm the date and time with Class Counsel
.
10
EXHIBIT 1
Proposed Plan of Allocation of the Net Settlement Fund
1.
The Net Settlement Fund will be allocated among Authorized Recipients pursuant to the method
described below.
2.
The amount of the Net Settlement Fund to which each Authorized Recipient will be entitled will be
determined as a pro rata share based on that Authorized Recipient’s Recognized Loss, and will be calculated as follows:
(a)
For Authorized Recipients who have exited the Program.
The Recognized Claim of each Authorized Recipient who has exited the Program as of the
Losses as of the date of exit from the Program + (.25 x Securities Lending Earnings)
(b)
For Authorized Recipients who have not exited the Program.
The Recognized Claim of each Authorized Recipient who has not exited the Program as of the
Losses as of the Effective Date of the Settlement + (.25 x Securities Lending Earnings)
3.
No Authorized Recipient whose pro rata share of the Net Settlement Fund is less than $5.00 shall receive
a distribution from the Net Settlement Fund. Rather, that Authorized Recipient’s pro rata share of the Net Settlement Fund
shall be redistributed among all remaining Authorized Recipients.
4.
Prior to the Effective Date of the Settlement, the Gross Settlement Fund shall remain in an interestbearing Settlement Escrow Account, except as otherwise provided in the Settlement Agreement.
11
EXHIBIT C
EXHIBIT D

Plaintiffs` Motion for Final Approval of Class Action Settlement and

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