COTCHETT, PITRE & McCARTHY, LLP JOSEPH W. COTCHETT …...e. Hester H. Cheng, Associate:...

DECLARATION OF MARK C. MOLUMPHY IN SUPPORT OF CLASS COUNSEL’S MOTION FOR

ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES; Lead Case No. SA-10-ML-02145 DOC (RNBx)

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COTCHETT, PITRE

& MCCARTHY, LLP

COTCHETT, PITRE & McCARTHY, LLP JOSEPH W. COTCHETT (36324) jcotchett@cpmlegal.com MARK C. MOLUMPHY (168009) mmolumphy@cpmlegal.com BRYAN M. PAYNE (272971) bpayne@cpmlegal.com 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Fax: (650) 697-0577 Co-Lead Counsel for the Class

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

IN RE MEDICAL CAPITAL SEC. LITIG. This document relates to: Case No: SA-CV-09-01048 DOC (RNBx)

) ) ) ) ) ) ) ) ) ) ) ) ) )

LEAD CASE NO. SA-10-ML-02145 DOC (RNBx) DECLARATION OF MARK C. MOLUMPHY IN SUPPORT OF CLASS COUNSEL’S MOTION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF LITIGATION EXPENSES DATE: June 24, 2013 TIME: 10:00 a.m. CTRM: 9D JUDGE: Hon. David O. Carter

Case 8:10-ml-02145-DOC-RNB Document 597 Filed 04/18/13 Page 1 of 95 Page ID #:28028

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COTCHETT, PITRE

& MCCARTHY, LLP

I, Mark C. Molumphy, declare as follows:

1. I am a partner with the firm of Cotchett, Pitre & McCarthy,

LLP, one of the Co-Lead Counsel appointed by the Court to represent Plaintiffs

and the Class in Masonek, et al. v. Wells Fargo Bank, N.A., et al., Case No. SA-

CV-09-01048 DOC (RNBx). I have personal knowledge of the facts stated in this

declaration and, if called upon as a witness, I could and would testify competently

thereto. I make this declaration pursuant to 28 U.S.C. § 1746.

2. I submit this declaration in support of Class Counsel’s Motion

for Award of Attorneys’ Fees and Reimbursement of Expenses, as set forth in the

Stipulation of Settlement (the “Stipulation”), filed February 21, 2013, between

Plaintiffs and Bank of New York Mellon (“BNYM”), as fair, reasonable and

adequate (the “Settlement”).

3. I am separately submitting a declaration describing the nature

of the claims asserted in this case, a summary of the proceedings, including the

extensive work performed by Class Counsel, the settlement negotiations, and why I

believe that the Settlement is fair, reasonable, and adequate. For the reasons

described therein, I approve of the negotiated Settlement and believe it represents a

fair, reasonable and adequate resolution under the circumstances and is in the best

interest of the Class.

Background of Firm

4. The identification and background of my firm, including the

attorneys who worked on this case, is attached hereto as Exhibit A. More

information about my firm can be found at www.cpmlegal.com.

Attorney Time and Fees

5. Attached hereto as Exhibit B is a schedule of the time spent by

the partners, attorneys and other professional support staff of my firm on this

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COTCHETT, PITRE

& MCCARTHY, LLP

litigation, through April 5, 2013. The time is broken down by categories of

activity, and includes the lodestar calculation based on my firm’s current billing

rates from inception of the case through the present. For personnel who are no

longer employed by my firm, the lodestar calculation is based upon the billing

rates for such personnel in his or her final year of employment by my firm. The

schedule was prepared from contemporaneous, daily time records prepared and

maintained by my firm in the ordinary course of business.

6. I am the partner who oversaw and conducted the day-to-day

activities in the litigation and I have reviewed these printouts (and backup

documentation where necessary or appropriate) to confirm both the accuracy of the

entries on the printouts as well as the necessity for and reasonableness of the time

and expenses committed to the litigation. As a result of these reviews, I believe

that the time reflected in the firm’s lodestar calculation is reasonable in amount and

necessary for the effective and efficient prosecution and resolution of the litigation.

7. The total number of hours expended on this litigation by my

firm from inception through April 5, 2013 is 20,458.00. The total lodestar for my

firm is $8,539,212.00.

8. The current hourly rates charged by my firm in this matter are

reasonable in amount and are the same as the usual and customary hourly rates

charged for services in other actions. As demonstrated in the firm resume attached

as Exhibit A hereto, my firm has extensive experience representing plaintiffs in

complex class actions in courts nationwide, including against highly respected and

experienced counsel, as retained by BYNM in this matter.

9. Set forth below is a general description of the services rendered

for each person for whom fees are requested:

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COTCHETT, PITRE

& MCCARTHY, LLP

a. Joseph W. Cotchett, Senior Partner: Responsibilities

included attending and participating in strategy meetings and calls, reviewing and

performing analysis of court orders, and providing oversight and management of

litigation strategy from case inception to settlement.

b. Mark C. Molumphy, Partner: Managing partner over all

aspects of litigation with responsibilities including, attending conferences and

hearings, defending and taking depositions, participating in strategy meetings and

calls, significant communication with clients, class counsel, opposing counsel and

the Receiver, reviewing, analyzing and drafting briefs and pleadings, extensive

legal research, reviewing and analyzing court orders, preparation, appearance, and

oral argument at hearings, working with expert consultants regarding liability and

damages analysis, attending and participating in mediation, attending and

participating in settlement negotiations, drafting settlement papers.

c. Jordanna G. Thigpen, Senior Associate: Senior associate

working case with responsibilities including, attending and participating in strategy

meetings and calls, reviewing, analyzing and drafting briefs and pleadings,

extensive legal research, propounding and responding to written discovery,

extensive document review, taking and defending depositions, significant

communications with clients, class counsel, other plaintiffs’ counsel, opposing

counsel and the Receiver, preparation and attendance at hearings, and attending

and participating in mediation.

d. Matthew K. Edling, Senior Associate: Responsibilities

included reviewing, analyzing and drafting briefs and pleadings, propounding and

responding to written discovery, document review, and legal research.

e. Hester H. Cheng, Associate: Responsibilities included

client communications, performing legal research, propounding and responding to

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COTCHETT, PITRE

& MCCARTHY, LLP

written discovery, extensive document review, drafting written correspondence to

parties and third-parties, preparing for hearings and depositions, reviewing and

editing law and motion papers, and participating in strategy calls.

f. Bryan M. Payne, Associate: Responsibilities included

document review, legal research, reviewing, analyzing and drafting law and motion

briefs, attending hearings, attended and participated in mediation, preparing

settlement papers.

g. Ona Bacigalupi, Senior Paralegal: Responsibilities

included client communications, maintaining all court and other scheduled

deadlines, document review, document preparation and organization for trial,

hearings conferences and other matters, organization and preparation of all case-

related internal documents, and litigation support and coordinating with outside

vendors.

h. Nirav Engineer, Senior Paralegal: Responsibilities

included preliminary investigation and factual research.

i. Mark Grafilo, Senior Paralegal: Responsibilities included

client communications, document review, preparing draft discovery requests,

coordinating and liaising with class members, document preparation and

organization for trial, hearings, conferences and other matters, organization and

preparation for depositions, hearings, and conferences, and litigation support and

coordinating with outside vendors.

j. Patrick M. Menzel, Senior Paralegal: Responsibilities

included factual research and review of related cases, damages models for

mediation.

k. Mayce Keilo, Paralegal: Responsibilities included

organization of case related internal documents and assisting with filings.

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COTCHETT, PITRE

& MCCARTHY, LLP

l. Briana Goldman, Paralegal: Responsibilities included

monitoring and maintaining court filings, setting and calendaring deadlines, and

compiling and organizing court orders and correspondence.

m. C.J. Kodani, Paralegal: Responsibilities included

monitoring and maintaining court filings, monitoring the court’s docket,

monitoring related actions, setting and calendaring deadlines, document

preparation and organization for trial, hearings and conferences, organization and

preparation of case-related internal documents, detailed comparison and evaluation

of NISA provisions at issue.

n. Marybeth Marcelino, Paralegal: Responsibilities included

document review, document organization, and preparing draft written discovery

requests.

o. Rachel Fishetti, Law Clerk: Responsibilities included

document review and legal research re corporate trust practices and standard of

p. Sean Wilkenson, Law Clerk: Responsibilities included

document review, factual research and drafting internal memorandums re liability

and pleading issues, receiver standing.

Firm and Common Fund Expenses

10. My firm advanced expenses on behalf of the Class relating to

the prosecution of this lawsuit. In addition, in my capacity as Co-Lead Counsel,

my firm established a separate, joint litigation account to pay expenses incurred for

the common benefit of the Class as well as the two related mass actions, Abbate

and Bain, such as costs for depositions, mediation, and experts. To help defray the

Class expenses, and achieve maximum efficiency, I negotiated with counsel in

Abbate and Bain for their agreement to contribute a pro rata amount of the

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COTCHETT, PITRE

& MCCARTHY, LLP

common fund expenses, based on their estimated proportion of the total losses. As

a result, the Class payment of common fund expenses was reduced by

approximately 20%.

11. Attached hereto as Exhibit C is a summary of all unreimbursed

expenses incurred by my firm in connection with this litigation through April 5,

2013, totaling $176,818.01, followed by a detailed accounting of these expenses.

The expenses incurred in this action are reflected on the books and records of my

firm, including expense vouchers, check records and other source materials, and

represent an accurate recordation of the expenses incurred.

12. Attached hereto as Exhibit D is a summary of all unreimbursed

expenses incurred by the Joint Litigation Account in connection with this litigation

through April 5, 2013, totaling $542,776.92, followed by a detailed accounting of

these expenses. The expenses incurred in this action are reflected on the books and

records of the Joint Litigation Account, separately maintained by my firm. These

books and records are prepared from expense vouchers, check records and other

source materials and represent an accurate recordation of the expenses incurred.

I declare under penalty of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on April 18, 2013 in Burlingame, California.

/S/ MARK C. MOLUMPHY MARK C. MOLUMPHY

COTCHETT, PITRE & McCARTHY, LLP JOSEPH W. COTCHETT …...e. Hester H. Cheng, Associate:...

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