Todd D. Carpenter (CA 234464)...Todd D. Carpenter (CA 234464) [email protected] 2 Brittany...

Todd D. Carpenter (CA 234464) [email protected]

2 Brittany C. Casola (CA 306561) [email protected]

3 CARLSON LYNCH LLP 1350 Columbia Street, Suite 603

4 San Diego, California 92101 Telephone: ( 619) 762-1900

5 Facsimile: (619) 756-6991

6 James A. Tabb (CA 208188) [email protected]

7 Deval R. Zaveri (CA 213501) [email protected]

8 ZA VERI TABB, APC 402 West Broadway, Suite 1950

9 San Diego, CA 92101 Tel: (619) 831-6987

Io Fax: (619) 239-7800

11 Attorneys for Plaintiff and the Settlement Class

12 [ Additional Counsel on Signature Page]

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO

16 COURTNEY DENNIS, on behalf of herself and

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all others similarly situated,

Plaintiff,

V.

RALPH LAUREN CORPORATION, a Delaware corporation, RALPH LAUREN RETAIL, INC., a Delaware corporation, and DOES 1-20, inclusive,

Defendants.

Case No: 37-2018-00058462-CU-MC-CTL

[E-FILEI

CLASS ACTION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE AW ARD

Date: July 12, 2019 Time: 8:30 a.m. Dept.: C-65

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF·s UNOPPOSED MOTION FOR ATTORNEvs· FEES. COSTS. AND INCENTIVE AWARD

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I.

II.

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TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................ I

SUMMARY OF CLASS COUNSEL'S WORK ........................................................ !

SUMMARY OF SETTLEMENT TERMS ............................................................... 2

CLASS COUNSEL'S REQUEST FORAN AWARD OF REASONABLE ATTORNEYS'

FEES AND COSTS AS SET FORTH IN THE SETTLEMENT SHOULD BE APPROVED .. .4

A. Class Counsel Is Entitled To Fees Based Upon the Released Claims ........................ .4

B. Class Counsel Is Also Entitled To An Award Of Reasonable Attorneys· Fees Pursuant To

The Private Attorney General Doctrine (C.C.P. § 1021.5) .................................... .4

I. Plain ti ff is the Successful Party ............................................................... 5

2. The Litigation Enforced an Important Right Affecting the Public Interest. ............. 5

3. This Action Conferred Benefits on a Large Class of Consumers ........................... 6

4. The Necessity and Financial Burden of Private Enforcement. ............................ 7

CLASS COUNSEL SEEKS REASONABLE ATTORNEYS' FEES AND COSTS ................ 8

A. The Requested Fee Award is Reasonable Under the Percentage or Lodestar-Multiplier

Method of Determining Reasonable Attorneys' Fees ........................................... 9

1. Class Counsel's Hourly Rates are Reasonable ............................................. 10

2. Class Counsel Hours are Reasonable ........................................................ 11

3. The Multiplier Confirms the Reasonableness of the Requested Fee ..................... 11

a. The Novelty and Difficulty of the Questions Involved ...................... 12

b. The Skills Displayed by Class Counsel and the Exceptional Results

Obtained ........................................................................... 12

c. The Contingent Nature of the Fee Award Warrants an Enhanced

Multiplier .......................................................................... 15

d. Additional Factors Justify Applying A Multiplier. .......................... 16

B. A Cross-Check of the Requested Fee Under the Percentage of Recovery Confirms That

The Requested Fee Is Reasonable ............................................................... 17

C. The Requested Litigation Costs are Reasonable ............................................... 17

PLAINTIFF IS ENTITLED TO A REASONABLE CLASS REPRESENTATIVE AWARD ... 18

CONCLUSION ............................................................................................... 19

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES. COSTS. AND INCENTIVE A WARD

TABLE OF AUTHORITIES

Cases 2

Page

Arenson v. Board of Trade of City of Chicago, 3 372 F. Supp. 1349 (N.D. Ill. 1974) ..................................................................... 16

4 Baggett v. Gates,

5 32 Cal. 3d 128, 142 (1982) .............................................................................. .4

6 Beasley v. Wells Fargo Bank, 235 Cal. App. 3d 1407 (1991) ................................................................ 5, 6, 17, 18

7 Bovvling v. Pfizer, Inc.,

8 922 F. Supp. 1261 (S.D. Ohio 1996) ................................................................... 16

9 Bussey v. Affleck,

10 225 Cal. App. 3d 1162 (1990) ........................................................................... 9

11 Cal[fornia Common Cause v. Diiffy,

12 200 Cal. App. 3d 730 (1987) ............................................................................ .4

13 Carr v. Tad in, Inc.,

51 F. Supp. 3d 970 (S.D. Cal. 2014) .................................................................. 10, 19

14 Cellphone Termination Fee Cases,

15 186 Cal. App. 4th 1380 (2010) ........................................................................ 18, 19

16 Chavez v. Net/lix, Inc.,

17 162 Cal. App. 4th 43 (2008) ........................................................................... 12, 17

18 Children ·s Ho.sp. & 1\;Jed. Ctr. v. Bonta. 97 Cal. App. 4th 740 (2002) .............................................................................. 10

19 Chowning v. Kohl ·s Dep 't Stores. Inc.,

20 2016 WL 1072129 (C.D. Cal. Mar. 15, 2016) ........................................................... 8

21 Chowning v. Kohl ·s Dept. Stores. Inc ..

22 733 Fed. Appx. 404 (9th Cir. 2018) ...................................................................... 13

23 Colgan v. Leatherman Tool Group. Inc.,

24 13 5 Cal. App. 4th 663 (2006) .............................................................................. 6

25 Committee to Defend Reproductive Rights v. A Free Pregnancy Center, 229 Cal. App. 3d 633 (1991) ............................................................................... 7

26 Concepcion v. Amscan Holdings, Inc.,

27 223 Cal. App. 4th 1309 (2014) ............................................................................ l l

28

11

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS" FEES. COSTS. AND INCENTIVE A WARD

Consumer Privacy Cases, 175 Cal. App. 4th 545 (2009) ........................................................................ 9, 12

2 Daniels v. McKinney,

3 l46Cal.App.3d42(1983) .............................................................................. 7

4 Davis v. City of San Diego,

5 106 Cal. App. 4th 893 (2003 ) ........................................................................... 10

6 Dennis v. Kellogg Co.,

7

8

9

2013 WL 6055326 (S.D. Cal. Nov. 14, 2013) ........................................................ 19

Dovvney Cares v. Downey Community Dev. Comm 'n., 196 Cal. App. 3d 983 ( 1987) ............................................................................ 16

Earley v. Superior Court, 10 79 Cal. App. 4th 1420 (2000) ........................................................................... 18

11 Families Unafraid to Uphold Rural El Dorado County v. Board a/Supervisors,

12 79 Cal. App. 4th 505 (2000) .............................................................................. 7

13 Folsom v. Butte County Assn. of Governments,

32 Cal. 3d 668 ( 1982) ..................................................................................... 5

14 Graham v. DaimlerChrysler Corp.,

15 34 Cal. 4th 553 (2004) ................................................................................. 6. 15

16 Graciano v. Robinson Ford Sales.

17 144 Cal. App. 4th 140 (2006) ........................................................................... .4

18 Guinn v. Dotson, 23 Cal. App. 4th 262 ( 1994) .............................................................................. 9

19

Harris v. Marhoefer, 20 24F.3d 16(9thCir.1994) ................................................................................ 17

21

22

Ha::lin v. Botanical Labs, Inc., 2015 WL 11237634 (S.D. Cal. May 20. 2015) ........................................................ 10

23 Hensley v. Eckerhart,

24 461 U.S.424(1983) ....................................................................................... ll

25 Hinojos v. Kohl's Corp .. 718 F.3d 1098 (9th Cir. 2013) ............................................................................ 6

26 In re Tobacco Cases II,

27 2015 WL 5673070 (Cal. App. Sept. 28, 2015) ...................................................... 7, 18

28

111

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS" FEES. COSTS. AND INCENTIVE A WARD

In re Washington Public Pavi:er Supply System Sec. Litig., 19 F.3d 1291 (9th Cir. 1994) ............................................................................ 12

2 Jacobo v. Ross Stores. Inc.,

3 2017 WL 3382053 (C.D. Cal. Aug. 2, 2017) .......................................................... 8

4 Keep Our Mountains Quiet v. Cnty. ofSanta Clara,

5 2 3 6 Cal. A pp. 4th 714 ( 2 0 1 5) ............................................................................ 6

6 Ketchum v. Moses, 24 Cal. 4th 1122 (2001 ) ................................................................................. 9

7 Lealao v. Beneficial California, Inc.,

8 82 Cal. App. 4th 19 (2000) ........................................................................ .. supra

9 Linney v. Cellular Alaska Partnership,

1 o 151 F.3d 1234 (9th Cir. 1998) .......................................................................... 7

11 Maria P. v. Riles,

12 43 Cal. 3d 1281 (1987) ................................................................................... 9

13 Merola v. Atlantic Richfield Co.,

515 F.2d 165 (3d Cir. 1975) ........................................................................... 16

14 Morey v. Louis Vuitton North America, Inc.,

1 5 2 0 14 W L 1 091 94 ( S. D. Cal. 2 0 14) ............................................................... 1 0, 1 9

16 Munoz v. BC! Coca-Cola Bottling Co. o/L.A.,

17 186 Cal. App. 4th 399 (2010) ........................................................................... 18

18 Northington v. Davis, 23 Cal. 3d 955 (1979) ...................................................................................... 5

19

Olson v. Auto Club ofS. Cal., 20 42 Cal. 4th 1142 (2008) ................................................................................. 6, 17

21

22

Press v. Lucky Stores, Inc., 34 Cal. 3d 311 (1983) ..................................................................................... 12

23 Rader v. Thrasher,

24 57 Cal. 2d 244 ( 1962) ..................................................................................... 15

25 Robertson v. Fleetvrnod Travel Trailers ofCal(fornia, Inc., 144 Cal. App. 4th 785 (2006) ............................................................................. 9

26 Rodrigue::: v. West Publishing Corp.,

27 63 F.3d 948 (9th Cir. 2009) .............................................................................. 18

28

IV

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES, COSTS, AND INCENTIVE A WARD

Roos v. Honeywell Int'/, 241 Cal.App.4th 1472(2015) ........................................................................ 17

2 San Bernardino Valley Audubon Society v. County of"San Bernardino,

3 155 Cal. App. 3d 738 (1984) .......................................................................... 9, 12

4 Serrano v. Priest,

5 20 Cal. 3d 25 ( 1977) ...................................................................................... 9

6 Serrano v. Unruh, 32 Cal. 3d 621 ( 1982) .................................................................................... 9

7 Spann v. J.C. Penney Corp.,

8 314 F.R.D. 312 (C.D. Cal. 2016) ....................................................................... 7

9 Stathakos v. Columbia Sportswear Co.,

10 2017 WL 1957063 (N.D. Cal. May 11, 2017) ...................................................... 8, 13

11 Sutter Health Insured Pricing Cases,

12 171 Cal. App.4th 495 (2009) ............................................................................ 12

13 Urbaniak v. Newton,

19 Cal. App. 4th 1837 (1993) ............................................................................ 5

14 Van Vranken v. At!. Richfield,

15 901 F. Supp. 294 (N.D. Cal. 1995) ..................................................................... 18

16 Vasquez v. Superior Court,

17 4 Cal. 3d 800 (1971) ....................................................................................... 6

18 Vo v. Las Virgenes Muncipal Water District, 79 Cal. App. 4th 440 (2000) .............................................................................. 9

19 Webb v. Board of"Educ.,

20 471 U.S.234(1985) ....................................................................................... ll

21 Westside Community for Independent Living v. Obledo,

22 33 Cal. 3d 348 (1983) ...................................................................................... 5

23 Wershba v. Apple Computer Inc.,

24 91 Cal.App.4th224(2001) ........................................................................ 9, 11, 17

25 Whiteway v. Fedex Kinkos Office & Print Servs .. 2009 WL 725152 (N.D. Cal. 2007) ..................................................................... 19

26 Williams v. Costco Wholesale Corp.,

27 2010 WL 2721452 (S.D. Cal. Jul. 7, 2010) ............................................................ 19

28

V

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES, COSTS. AND INCENTIVE A WARD

Wilson v. San Luis Obispo County Democratic Cent. Com., 192 Cal. App. 4th 918 (2011) ............................................................................ 7

2 Woodland Hills Residents Assn., Inc. v. City Council,

3 23 Cal. 3d 917 (1979) .............................................................................. 5, 6, 7, 8

4 Statutes

5 Cal. Civ. Code. § l 780(d) ........................................................................................ 17

6 Cal. Civ. Code§ l 780(e) .......................................................................................... 4

7 Cal. Civ. Proc. § l 021.5 .................................................................................... . supra

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VI

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES. COSTS. AND INCENTIVE AWARD

I. INTRODUCTION

2 Class Counsel vigorously prosecuted this action and achieved an excellent result without

3 expending unnecessary time or resources. Under the settlement, Defendants Ralph Lauren Corporation

4 and Ralph Lauren Retail, Inc. ('·Ralph Lauren'· or ··Defendants'') agreed to distribute to Class Members

5 up to $12,600,000 (and a minimum of $4,000,000) in Merchandise Certificates in the amount of $7.00 for

6 use in Ralph Lauren Polo ·s Factory Outlet Store located in California. (First Amended Settlement

7 Agreement and Release ('·Settlement Agreement") §§ 1.24, 2.2-2.3.) Ralph Lauren will distribute the

8 certificates directly to those Class Members for whom it already maintains valid email addresses or who

9 submitted claim forms upon receiving publication notice. (Id.) As tallied by the Claims Administrator,

l O over 1.3 million Class Members will receive a $7.00 Merchandise Certificate - over $9,000,000 in relief.

11 (Declaration of Orlando Castillejos Regarding Notice and Settlement Administration ("Castillejos Deel.'')

12 at ,r,r 7, 12.) 1 Defendants have also agreed to injunctive relief. (Settlement Agreement§ 2.4.)

13 After reaching agreement on the material terms of the Settlement, the Parties negotiated an

14 agreement on attorneys' fees, costs, and an incentive award that Ralph Lauren will pay separate and apart

15 from its payment to the Class. (Settlement Agreement § 2.6; Declaration of Todd D. Carpenter,

16 ( .. Carpenter Deel.'') at ,r 4.) Per this agreement, Class Counsel respectfully requests an award of $920,000

17 in attorneys· fees and costs, and an incentive award in the amount of $5,000 to Plaintiff Courtney Dennis

18 for her commitment in serving as Class Representative.

19 II.

20

SUMMARY OF CLASS COUNSEL'S WORK

Before commencing this action, Class Counsel spent a substantial number of hours investigating

21 Plaintiffs claims. (Carpenter Deel. ,i,i 2, 6.) Class Counsel conducted a factual and legal investigation

22 that included gathering information about Ralph Lauren ·s pricing practices for merchandise in its Factory

23 Outlet Stores and the impact the pricing policies had on Plaintiff and other consumers. (Id. at ,i 6.) Class

24 Counsel obtained information relating to Ralph Lauren ·s pricing practices in various locations to confirm

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26 1 The Claims Administrator·s Declaration is submitted with the concurrently-filed Motion for Final 27 Approval of Class Action Settlement. This brief incorporates that motion and its supporting papers, and

specifically incorporates the statement of facts and procedural history from the brief submitted with that 28 motion. The Proposed Order submitted herewith addresses both motions.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS. FEES. COSTS. AND INCENTIVE A WARD

that the pricing practices were systematic and applied to all of the merchandise sold in the Factory Outlet

2 Stores. (Id.) Class Counsel further retained an expert to develop and support the damages alleged by

3 Plaintiff. (Id.) This information was essential to Class Counsers ability to understand the nature of the

4 conduct, language on the price tags at issue, and potential relief and remedies. (Id.) Class Counsel also

5 expended significant resources researching and developing the legal claims at issue. (Id.)

6 Class Counsel filed a complaint and amended complaints seeking monetary damages, restitution,

7 and equitable relief Class Counsel conducted further legal research and drafted oppositions to two rounds

8 of Ralph Lauren's motions to dismiss that sought to dismiss all of Plaintiffs claims, as well as a contested

9 motion for leave to file a Second Amended Complaint. (Id.) Following the Court's denial of Ralph

10 Lauren·s motion to dismiss the Second Amended Complaint, Class Counsel identified and worked with a

11 damages expert and drafted document requests and interrogatories to serve on Ralph Lauren. (Id.) Class

12 Counsel also worked with Plaintiff to respond to discovery requests served by Ralph Lauren. (Id.)

13 While the Parties were negotiating their discovery responses, they decided - before incurring the

14 time and expense of even more extensive discovery, motion practice, and a trial - to stay the action to

15 facilitate private mediation. In connection with the mediation, Plaintiff gathered information relating to

16 Plaintiffs purchase and to Class Counsers factual investigation and provided it to Ralph Lauren. (Id.)

1 7 Class Counsel thereafter reviewed sales and marketing data from Ralph Lauren regarding the merchandise

18 at issue and the labeling of Ralph Lauren ·s Factory Outlet Store merchandise. Class Counsel then worked

19 with the damages expert in preparing a confidential mediation and expert report (both were submitted to

20 Mediator Robert A. Meyer, Esq.); participated in an informal meeting with the mediator and Defendants·

21 counsel; and attended a full-day mediation. (Id.) In the days after the mediation, and through Mr. Meyer·s

22 continued involvement, the Parties agreed to the settlement terms discussed below. (Id.) Class Counsel

23 then began the process of drafting the settlement terms and notice plan and engaged in arm· s-length

24 negotiations over the structure of the Settlement Agreement, which was ultimately agreed to and executed

25 on November 12, 2018.

26 III.

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SUMMARY OF SETTLEMENT TERMS

On April 25. 2019, the Court preliminarily approved, for settlement, the following Class:

2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS. FEES. COSTS. AND INCENTIVE AW ARD

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All Ralph Lauren customers who from May 2, 2012 to the date the Court enters the Preliminary Approval Order purchased at any Ralph Lauren Factory Outlet store located in the State of California one or more Polo Ralph Lauren branded items at a purported discount from a "Value Was,"' ··our Price.'' or any other reference price. Excluded from the Class are Ralph Lauren's Counsel. Ralph Lauren's officers, directors and employees, and the judge presiding over the Action. (Settlement Agreement§ 1.8.)

The Settlement calls for Ralph Lauren to distribute to Class Members a maximum total value of

6 $12,600,000 (and a minimum total value of $4,000,000) of Merchandise Certificates. For each Class

7 Member for whom Defendants maintain a valid and current email address, and who does not validly

8 request exclusion from the Class, Defendants will automatically email one (I) Merchandise Certificate

9 in the amount of $7.00, which may be applied toward the pre-tax purchase price of any single item in

10 Defendants· Ralph Lauren Factory Stores located in California. (Settlement Agreement§§ 1.24, 2.1-2.2.)

11 All other Class Members who receive notice via publication must submit a Claim Form to receive a

12 Merchandise Certificate. (Id.) The Merchandise Certificates are redeemable for a six-month period from

13 date of issuance and may be used on items that are on sale/discounted. Id. at § 1.24. The Merchandise

14 Certificates are transferrable, but will not be replaced if lost, stolen, or damaged. Id. They are not

15 redeemable for cash, not stackable, nor can they be combined with any other coupon or promotional offer.

16 As tallied by the Claims Administrator, over 1,300,000 Class Members will be automatically emailed a

17 $7.00 Merchandise Certificate - over $9 million in relief. (Castillejos Deel., ,r,r 7, 12.)

18 Class Counsel also negotiated for, and Ralph Lauren agreed, to post notice in each of its California

19 Factory Stores clarifying and explaining to shoppers the meaning of ··Value Was" and '·Our Price'' prices

20 ( or alternatively, cease using those terms in its California Factory Outlet stores altogether, which would

21 also be relief prompted by this lawsuit). (Settlement Agreement at § 2.4.)

22 Class Members who do not submit a timely and valid exclusion request will fully release Ralph

23 Lauren and the other Released Parties. (Settlement Agreement§§ 1.10, 1.30, 2.10.) Moreover, Plaintiff

24 Dennis agreed to waive all rights and benefits afforded by Cal. Civ. Code Section 1542. (Id. at § 2.11.)

25 After negotiating the key terms of the settlement, Defendants agreed to pay Class Counsel's

26 attorneys· fees and costs in the total amount of $920,000, and to pay Plaintiff an incentive award in the

27 amount of $5,000. (Id. at§§ 2.5, 2.6.) Unless otherwise ordered by the Court, Defendants will make such

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PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES. COSTS. AND INCENTIVE AWARD

Court-approved payments within 30 days after the Final Settlement Date and upon receiving Plaintiffs

2 and Class Counsels' W-9 forms. (/d.)2 If the Court does not award $920,000.00 in fees and costs, it shall

3 not affect any of the Parties' other rights and obligations under the Settlement Agreement. (Id. at§ 2.7.)

4 IV. CLASS COUNSEL'S REQUEST FOR AN AWARD OF REASONABLE ATTORNEYS'

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FEES AND COSTS AS SET FORTH IN THE SETTLEMENT SHOULD BE APPROVED

A. Class Counsel Is Entitled To Fees Based Upon the Released Claims

Under the terms of the Settlement, and more specifically, the release of claims, Ralph Lauren

shall receive a release of all claims that were, or that could have been, alleged in the action. This release

includes violations of the CLRA that entitle Class Counsel to recover attorneys· fees and costs as the

prevailing party. See Cal. Civ. Code§ l 780(e) ("The court shall award court costs and attorney's fees to

a prevailing plaintiff in litigation filed pursuant to this section"). While the CLRA does not define

.. prevailing plaintiff~" the trend is toward a ·'pragmatic approach'' that determines prevailing party status

"based on which party succeeded on a practical level." Graciano v. Robinson Ford Sales, 144 Cal. App.

4th 140, 150 (2006). Based upon the Settlement, which has already been preliminarily approved,

Plaintiff qualifies as ··prevailing plaintiff' under the CLRA and is entitled to fees pursuant to that statute.

B. Class Counsel Is Also Entitled To An Award Of Reasonable Attorneys' Fees 16 Pursuant To The Private Attorney General Doctrine (C.C.P. § 1021.5)

17 Under the private attorney general doctrine, codified at California Code of Civil Procedure section

18 I 021.5, attorneys' fees are awarded in cases that enforce rights affecting public policies:

19 The fundamental objective of section I 021.5 is to encourage suits effectuating a strong public policy by awarding substantial attorney·s fees

20 to those who successfully bring such suits. The statute is based on the recognition that privately initiated lawsuits are often essential to the

21 effectuation of the fundamental public policies embodied in constitutional or statutory provisions.

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California Common Cause v. Duffy, 200 Cal. App. 3d 730, 741 (1987). Successful litigants are entitled to

2 The Proposed Order submitted herewith states that: ··Class Counsel may elect to have a portion of the 25 Court Approved Attorneys· Fees and Costs paid in periodic payments through a structured settlement

26 entered into prior to payment of any such fees and costs to Class Counsel. The Settlement Administrator and Qualified Settlement Fund are authorized to execute and issue all documents necessary to effectuate

27 any such structured settlement, including W-9 form(s) for any portion of Fees and Costs that are paid through a structured settlement fund. Any Class Counsel who make this election shall be solely and

28 legally responsible to pay all applicable taxes on any payment made pursuant to this Paragraph ...

4 MEMORANDUM OF POrNTS AND AUTHORITIES rN SUPPORT OF

PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS' FEES. COSTS. AND INCENTIVE A WARD

fees when they have: ( 1) enforced an important right affecting the public interest; (2) conferred a

2 significant benefit on the public or a large class of persons; and (3) imposed a financial burden on the

3 plaintiff out of proportion to his individual stake. Baggett v. Gates, 32 Cal. 3d 128, 142 (1982).

4 While trial courts do have discretion to determine appropriate fee awards, they are also urged to

5 recognize that class action settlements should be approved in the absence of evidence of collusion between

6 the class representative and defendant, and that attorneys' fees are an integral part of a class action

7 settlement. Lealao v. Beneficial California, Inc., 82 Cal. App. 4th 19, 33 (2000) ('·The award to the class

8 and the agreement on attorney fees represent a package deal. Even if the fees are paid directly to the

9 attorneys, those fees are still best viewed as an aspect of the class· recovery.").

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1. Plaintiff is the Succes!')f ul Party

··A plaintiff will be considered a successful party where an important right is vindicated by activating

12 defendants to modify their behavior." Westside Community_for Independent Living v. Obledo, 33 Cal. 3d

13 348. 353 (1983) ... [T]o be a ·successful party,' a plaintiff need not achieve a favorable final judgment."

14 Urbaniak v. Newton, 19 Cal. App. 4th 1837, 1842 ( 1993). Thus, fees are awarded where a plaintiff obtains

15 relief through corrective action by the defendants caused by litigation. Folsom v. Butte County Assn. of

16 Governments. 32 Cal. 3d 668, 685-686 ( 1982) c·The critical fact is the impact of the action, not the manner

17 of its resolution."): Northington v. Davis, 23 Cal. 3d 955, 960, n.2 ( 1979) ('·voluntary'' corrective action.

18 induced by litigation, is a benefit of the litigation). This action resulted in corrective action as Defendants

19 have agreed to post notice in each of their California Ralph Lauren Factory Outlet Stores explaining the

20 meaning of the ··Value Was" and ··our Price" pricing provided they are still using these terms as of the

21 Final Settlement Date (and if they are not still using these terms, it is fair to conclude that it is as a result

22 of Plaintiff challenging these terms). Moreover, the resolution of the action resulted in significant financial

23 relief to the Class. Neither result would have occurred without Plaintiffs and Class Counsel's efforts.

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2. The Litigation Enforced an Important Right Affecting the Public Interest

In examining the ··important right"" criterion. courts assess the ··strength" and .. societal importance"

26 of the right by its relationship to the achievement of fundamental legislative goals. Woodland Hills

27 Residents Assn., Inc. v. City Council, 23 Cal. 3d 917, 938 (1979). This tests whether the "subject matter

28



of the action implicated the public interest." Beasley v. Wells Fargo Bank, 235 Cal. App. 3d 1407, 1418

2 ( 1991), disapproved on other grounds in Olson v. Auto Club ofS. Cal., 42 Cal. 4th 1142, 1153 n.6 (2008).

3 Consumer protection litigation has ""long been judicially recognized to be vital to the public interest." Id.

4 at 1418, citing Vasquez v. Superior Court, 4 Cal. 3d 800, 808 (1971 ); see also Colgan v. Leatherman Tool

5 Group, Inc., 135 Cal. App. 4th 663, 703 (2006) (enforcement of California consumer protection laws as

6 an important right affecting the public interest).

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The Ninth Circuit has held that ""price advertisements matter.,. Hinojos v. Kohl ·s Corp .. 718 F .3d

1098, 1107 (9th Cir. 2013 ).

Most consumers have, at some point, purchased merchandise that was marketed as being ··on sale" because the proffered discount seemed too good to pass up. Retailers, well aware of consumers' susceptibility to a bargain, therefore have an incentive to lie to their customers by falsely claiming that their products have previously sold at a far higher ""original" price in order to induce customers to purchase merchandise at a purportedly marked-down ""sale" price. Because such practices are misleading-and effective-the California legislature has prohibited them.

Id. at 110 l. Thus, the Settlement is tethered to enforcing an important right affecting the public interest.

3. This Action Conferred Benefits on a Large Class of Consumers

A significant benefit is conferred if the litigation benefits the public as a whole. Beasley, 235 Cal.

App. 3d at 1417. ·'[T]he ·significant benefit' that will justify an attorney fee award [ under section l 021.5)

need not represent a ·tangible· asset or a ·concrete· gain but. in some cases, may be recognized simply

from the effectuation of a fundamental ... statutory policy.'' Keep Our Mountains Quiet v. Cnty. of'Santa

Clara, 236 Cal. App. 4th 714, 737 (2015), citing Woodland Hills, 23 Cal.3d at 939. Here, Ralph Lauren

will directly and automatically provide a Merchandise Certificate to all persons for whom Defendants

have a valid email address as well as to all other persons who received publication notice and submitted a

valid claim form. Over 1,300,000 Class Members will automatically and directly receive a $7.00

Merchandise Certificate - over $9 million in relief. (Castillejos Deel., ,r,r 7, 12.) This shows that Plaintiff

and Class Counsel have satisfied the ··large persons" element set forth in Section 1021.5. See Graham v.

DaimlerChrysler Corp., 34 Cal. 4th 553, 561 (2004) (only 1,000 subject vehicles sold to California

consumers satisfied the ""large persons" requirement of Section 1021.5 ).

Moreover. the financial benefits of this action go far beyond the Class·s compensation. The multi-



million dollar ··penalty'· should deter Defendants and other retailers from engaging in false and deceptive

2 sale discounting practices in violation of California's consumer protection laws. which confers a

3 substantial benefit on the general public. Lastly, future Ralph Lauren customers will have the benefit of

4 fair notice of the meaning of Defendants' pricing terminology should they continue to use it.

5

6

4. The Necessity and Financial Burden of Private Enforcement

The ··necessity and financial burden" requirement for private attorney general fees examines

7 ·'whether private enforcement was necessary and whether the financial burden of private enforcement

8 warrants subsidizing the successful party's attorneys." Wilson v. San Luis Obispo County Democratic

9 Cent. Com., 192 Cal. App. 4th 918, 926 (2011) (citation omitted.) The theoretical possibility that a

10 governmental agency could have sued does not foreclose a fee award; fees are appropriate when the

11 government has failed to act. Daniels v. McKinney, 146 Cal. App .3d 42, 52 (1983); see also Committee

12 to Defend Reproductive Rights v. A Free Pregnancy Center, 229 Cal. App. 3d 633, 641 ( 1991) (plaintiff

13 need not obtain approval from the district attorney to be eligible for Section 1021.5 fees). The .. financial

14 burden'' criterion is met when ·'the cost of the claimant's legal victory transcends his or her personal

15 interest, that is, when the necessity of pursuing the lawsuit placed a burden on the plaintiff out of

16 proportion to his or her individual stake in the matter." Woodland Hills Residents Assn., Inc. v. City

17 Council, 23 Cal. 3d 917, 941 (1979); accord Families Unafraid to Uphold Rural El Dorado County v.

18 Board of'Supervisors, 79 Cal. App. 4th 505, 519 (2000).

19 From its inception, this case has been prosecuted as a class action-it was not brought for the

20 exclusive benefit of an individual plaintiff, but for the benefit of hundreds thousands of individuals. The

21 burden of prosecuting this action was wholly out of proportion to Plaintiffs miniscule financial stake.

22 .. Even if plaintiff were to prevail at trial. there is a very real risk that plaintiff could recover nothing.''

23 Spann v. J.C. Penney Corp., 314 F.R.D. 312,326 (C.D. Cal. 2016); see e.g., In re Tobacco Cases II, 2015

24 WL 5673070, at *5-9 (Cal. App. Sept. 28, 2015) (declining to award restitution because plaintiffs failed

25 to establish a price/value differential despite prevailing on liability under the UCL and F AL); Linney v.

26 Cellular Alaska Partnership, 151 F.3d 1234, 1242 (9th Cir. 1998) ( .. The fact that a proposed settlement

27 may only amount to a fraction of the potential recovery does not, in and of itself, mean that the proposed

28 settlement is grossly inadequate and should be disapproved.") (internal quotation marks omitted). While


PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS" FEES. COSTS. AND INCENTIVE A WARD

Plaintiff feels confident about the merits of her case, the state of the law regarding the appropriate method

2 for calculating damages or restitution in these type of false pricing cases is in flux. See e.g., Stathakos v.

3 Columbia Sportswear Co., No. 15-cv-4543-YGR, 2017 WL 1957063 (N.D. Cal. May 11, 2017) (granting

4 summary judgment in favor of defendants with regard to plaintiffs' three proposed measures of

5 restitution); accord Jacobo v. Ross Stores, Inc., 2017 WL 3382053, at * 1 (C.D. Cal. Aug. 2, 2017);

6 Chowning v. Kohl's Dep 't Stores, Inc., 2016 WL 1072129, at* 12 (C.D. Cal. Mar. 15, 2016). Thus, claims

7 are efficiently brought on a class-wide basis, and the financial burden of taking on a class-wide claim,

8 along with the benefit gained for the entire class, justifies an award of attorneys· fees pursuant to the

9 private attorney general doctrine.

l O Accordingly, each of the factors for a fee award under Section 102 l.5 is satisfied here and the Court

11 should grant Plaintiff's unopposed motion for attorneys' fees and costs.

12 V.

13

CLASS COUNSEL SEEKS REASONABLE ATTORNEYS' FEES AND COSTS

The amount of $920,000 in attorneys· fees and costs is fair and reasonable given Class Counsels'

14 efforts in this case. The parties negotiated the agreed-upon fees and costs only after negotiating and

15 agreeing to all other material terms of the settlement. See, e.g., Manual.for Complex Litigation (4th ed.

16 2004) at ,r 21. 7 ("Separate negotiation of the class settlement before an agreement on fees is generally

17 preferable."). By deferring the fee negotiation until that time, Class Counsel aligned their interests with

18 the interests of the Class, and Defendants had every incentive to negotiate as low a fee as possible to

19 decrease its overall costs. The resulting agreed-upon attorneys· fees and costs proposed by Mediator

20 Robert A. Meyer, Esq. are the product of a non-collusive adversarial negotiation considering Class

21 Counsels· prior and future efforts and the excellent results achieved. In agreeing to pay $920.000 in the

22 aggregate for fees and costs, Defendants also considered the possibility that Class Counsel might apply

23 for and receive a much larger award, especially in the event of any objection or appeal of the settlement,

24 which would necessarily lead to additional protracted litigation and efforts by Class Counsel to defend the

25 Settlement. Rather than take these risks. Defendants agreed to pay $920,000 (the amount proposed by

26 Mediator Roberts) subject to Court approval. This amount is fair and reasonable and should be approved.

27 To accomplish the objective set forth in Woodland Hills Residents Ass'n, Inc., courts are in

28 agreement that the fee award must be large enough "to entice competent counsel to undertake difficult



public interest cases." San Bernardino Valley Audubon Society v. County of San Bernardino, 155 Cal.

2 App. 3d 738, 755 (1984). Given the risks and delays in contingent class action litigation, California courts

3 ··recognize two methods for calculating attorneys· fees in civil class actions: the lodestar/multiplier method

4 and the percentage of the recovery method." Wershba v. Apple Computer Inc .. 91 Cal. App. 4th 224,254

5 (2001 ). The method to be used depends on whether the case involves ·'fee shifting'' or "fee spreading."

6 Fee shifting cases are those in which the obligation to pay attorneys' fees is statutorily or otherwise

7 transferred from the plaintiff or class to the defendant and is paid separate from the class recovery. In fee

8 spreading cases, a separate or "common fund'' is established for the benefit of the class; attorneys' fees

9 are paid out of the common fund and are calculated as a percentage of the class recovery. Lealao, 82 Cal.

10 App. 4th at 26-27.

11 Where. as here, Defendants will pay attorneys' fees separately from the Class's relief, California

12 provides that the lodestar-multiplier method is appropriate. See Ketchum v. Moses, 24 Cal. 4th 1122, 1137

13 (2001); Consumer Privacy Cases, 175 Cal. App. 4th 545, 556-57 (affirming the lodestar approach in

14 consumer privacy cases); Robertson v. Fleetvi:ood Travel Trailers of Calffornia, Inc., 144 Cal. App. 4th

15 785, 818-19 (2006) (holding that the lodestar method, as the prevailing rule for calculation of statutory

16 attorneys· fees. apply to cases under the Song-Beverly Consumer Warranty Act); Wershba, 91 Cal. App.

17 4th at 254. Under the lodestar-multiplier method, the lodestar is calculated by multiplying the reasonable hours

18 expended by a reasonable hourly rate, which is then enhanced by an appropriate multiplier. Id.

19

20

21

A. The Requested Fee Award is Reasonable Under the Percentage or LodestarMultiplier Method of Determining Reasonable Attorneys' Fees

The "lodestar" is calculated by multiplying the time spent by the reasonable hourly compensation

for the attorney involved in the presentation of the case. Serrano v. Priest, 20 Cal. 3d 25, 48 n.23 ( 1977); 22

see also Maria P. v. Riles, 43 Cal. 3d 1281, 1294 ( 1987); Vo v. Las Virgenes Muncipal Water District, 79 23

Cal. App. 4th 440,445 (2000). The "lodestar" should normally include out-of-pocket expenses of the type 24

normally billed by an attorney to a fee-paying client. Bussey v. Affleck. 225 Cal. App. 3d 1162, 1166 25

( 1990); Guinn v. Dotson, 23 Cal. App. 4th 262, 271 ( 1994 ). It should also include time spent on the fee 26

application itself. Serrano v. Unruh, 32 Cal. 3d 621, 632-638 ( 1982). 27

28



Class Counsel have expended a total of 735.2 hours plus 577.1 hours of paralegal time and

2 $48,587.22 in costs to date on the investigation and prosecution of this action, and expect to spend another

3 3.5 hours through the conclusion of the action. (See Carpenter Deel. at ,r 5; Declaration of Deval R. Zaveri

4 (""Zaveri Deel.'') at ,r,r 4-5.) Todd Carpenter, a shareholder in the law firm of Carlson Lynch LLP, has

5 expended a total of 170.4 hours on the case to date. (Carpenter Deel. at ,r 5.) Mr. Carpenter's hourly rate

6 for complex class action litigation is $750. (Id.) Brittany Casola is an associate with Carlson Lynch LLP,

7 has expended a total of 156.3 hours on the case to date. (Casola Deel. at ,r 3.) Ms. Casola's hourly rate for

8 complex class action litigation is $395. Id. Deval Zaveri and James Tabb, shareholders in the law firm of

9 Zaveri Tabb, APC, have expended a total of 408.5 hours on the case to date. (Zaveri Deel. at ,r,r 4-5.)

10 Their hourly rate for complex class action litigation is $750. (/d.) The hourly rates for these attorneys are

11 reasonable for consumer class action attorneys with similar experience and have been approved by various

12 California State and Federal Courts. (See Carpenter Deel., ,r 5; Zaveri Deel. at ,r,r 8-12.)

13 Based on Class Counsel's hourly rates and the number of hours expended to date, Class Counsels'

14 current fee lodestar is $568,051. An additional $48,587.22 was spent on costs and expenses. (Carpenter

15 Deel., ,r 5; Zaveri Deel., ,r 4.) Accordingly, total fees and costs incurred to date are $616,638.22.

16

17

1. Class Counsel's Hourly Rates are Reasonable

The reasonable market value of the attorneys· services sets the standard measure of a reasonable

18 hourly rate. See Ketchum, 24 Cal. 4th 1122. Courts determine the reasonable market value by examining

19 whether the rates are ··within the range of reasonable rates charged by and judicially awarded comparable

20 attorneys for comparable work." Children ·s Hosp. & l'vfed. Ctr. v. Bonta. 97 Cal. App. 4th 740, 783 (2002).

21 Rates awarded to Class Counsel in previous actions and rates awarded to other attorneys practicing

22 complex class action litigation in California are appropriate guides for establishing reasonable market

23 rates. Davis v. City of'San Diego, 106 Cal. App. 4th 893, 904 (2003 ). See e.g., Carr v. Tadin, Inc., 51 F.

24 Supp. 3d 970, 978-80 (S.D. Cal. 2014) (awarding rates of $650 for partner and $335-375 for associates

25 in 2014 consumer class action); Ha::.lin v. Botanical Labs. Inc., No. l 3cv06 l 8-KSC, 2015 WL 1123 7634,

26 at *7 (S.D. Cal. May 20, 2015) (approving rate of $750 in 2015 consumer class action); and Morey v.

27 Louis Vuitton North America, Inc .. No. l lcv1517, 2014 WL 109194, at *10 (S.D. Cal. 2014) (awarding

28


PLAINTIFF"S UNOPPOSED MOTION FOR ATTORNEYS. FEES. COSTS. AND INCENTIVE A WARD

rates of $650-675 for partners and $350-500 for associates in 2014 Song-Beverly class action).

2 Class Counsel specialize in complex consumer class actions and regularly litigate cases in federal

3 and state courts. (Carpenter Deel., ,r,r I 0-13; Zaveri Deel. ,r,r 8-12.) Moreover, their lodestars are calculated

4 using rates that have been accepted in other class action cases. (Id.)

5

6

2. Class Counsel Hours are Reasonable

Class Counsel must demonstrate that their hours were reasonable and necessary to the litigation.

7 Concepcion v. Amscan Holdings, Inc., 223 Cal. App. 4th 1309, 1320 (2014) (internal citations omitted).

8 Hours are reasonable if they were '"reasonably expended in pursuit of the ultimate result achieved in the

9 same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably

10 expended on a matter. Hensley v. Eckerhart. 461 U.S. 424, 431 ( 1983 ). In addition to time spent during

11 litigation, reasonable hours include time spent before the action was filed, including to interview clients,

12 investigate facts and the law, and prepare the initial pleadings. Webb v. Board of Educ., 471 U.S. 234

13 (1985). The fee award should also include time spent to prepare and litigate the attorneys' fee claim.

14 Serrano, 32 Cal. 3d at 639.

15 Class Counsel spent approximately 735.2 hours litigating this case to date. (Carpenter Deel., ,r 5;

16 Casola Deel., ,r 3; Zaveri Deel. ,r,r 4-5.) Class Counsels' declarations outline the work they performed,

17 which included substantial pre-suit investigation; drafting complaints; briefing multiple rounds of

18 oppositions to motions to dismiss; briefing a motion for leave to amend the pleadings; conducting

19 research; drafting discovery requests, drafting an early neutral evaluation statement and a mediation brief;

20 preparing for and attending the early neutral evaluation and subsequent private mediation; meeting and

21 conferring on settlement terms; drafting and finalizing a settlement agreement, claim forms, and notices;

22 working with a retained economist expert regarding viable damages theories; drafting a motion for

23 preliminary approval; and drafting a motion for final approval and this motion for fees and costs, among

24 other things. (Carpenter Deel., ,r 2, 6; Casola Deel., ,r 4; Zaveri Deel. ,r,r 2-5.)

25

26

3. The Multiplier Confirms the Reasonableness of the Requested Fee

Once the lodestar is calculated, it may be enhanced with a multiplier. Wershba. 91 Cal. App. 4th

27 at 254. The objective of any multiplier is to provide lawyers involved in public interest litigation with a

28


PLAINTIFF"S UNOPPOSED MOTION FOR ATTORNEYS" FEES. COSTS. AND INCENTIVE AWARD

financial incentive. Ketchum, 24 Cal. 4th at 1123; see also Press v. Lucky Stores, Inc., 34 Cal. 3d 311, 322

2 (1983) (the purpose of the multiplier is to ·'reflect the broad impact of the results obtained and to

3 compensate for the high quality of work performed and the contingencies involved in undertaking this

4 litigation.'') ... If this 'bonus' methodology did not exist, very few lawyers could take on the representation

5 of a class client given the investment of substantial time, effort, and money, especially in light of the risks

6 of recovering nothing.'· In re Washington Public Power Supply System Sec. Litig., 19 F.3d 1291, 1300

7 (9th Cir. 1994). Only when courts properly compensate experienced counsel for successful results can

8 they assure the continuing effectiveness of class actions. To accomplish this objective, the fee award must

9 be large enough "to entice counsel to undertake difficult public interest cases:· San Bernardino Valley

10 Audubon Society v. County of San Bernardino, 155 Cal. App. 3d 738, 755 (1984).

11 The fee amount requested here represents a multiplier of approximately 1.49 - an amount well

12 within the accepted range for class action cases. See, e.g., Chavez v. Netflix, Inc., 162 Cal. App. 4th 43,

13 60 (2008) (multiplier of 2.5); Consumer Privacy Cases, 175 Cal. App. 4th 545, 558 (2009) (multiplier of

14 1. 75); Sutter Health Insured Pricing Cases. 171 Cal. App.4th 495, 512 (2009) (multiplier of 2.52).

15 When determining the multiplier, courts should consider all factors relevant to a given case.

16 Serrano, 20 Cal. 3d at 49. Plaintiffs action supports the public interest outlined in California's consumer

1 7 protection laws and federal regulations regarding deceptive and misleading price discount advertising.

18 The Settlement effectively provides a significant financial benefit to Class Members and creates a real

19 deterrence against future violations. This result justifies the requested multiplier.

20 Courts also considers additional factors, such as ( 1) the novelty and difficulty of the questions

21 involved; (2) the skills displayed by Class Counsel and the results obtained; and (3) the contingent nature

22 of the fee award. Ketchum, 24 Cal. 4th at 1132. These factors also support the requested multiplier.

23

24

a. The Novelty and Difficulty of the Questions Involved

This action presented novel and difficult questions regarding liability under California's consumer

25 protection laws and corresponding federal regulations regarding transparency in discount price

26 advertising. This case was one of a relatively small collection filed in California related to the UCL, F AL,

27 and CLRA ·s prohibition against deceptive reference pricing. Plaintiff alleged that Defendants engaged in

28



fraudulent pricing practices at their Ralph Lauren Polo Factory Outlet stores in California by utilizing

2 price tags attached to merchandise listing two prices (a higher, ··Value Was'' price and a lower ··our Price'·

3 price). Plaintiff alleged that Class Counsel's investigation revealed both of these prices are phantom

4 prices, as the items were never offered for sale at either price. Plaintiff alleged these pricing practices are

5 fraudulent and mislead consumers into believing they are receiving a significant discount on merchandise

6 they might not have purchased absent the purported discount.

7 These allegations presented difficult and novel legal issues as related to proving liability and

8 remedial measures to address the alleged harm. Plaintiff would need to prove that Defendant's price

9 advertisements were deceptive and material to reasonable consumers and then establish viable damages

10 theories that calculated the amount that customers were overcharged as a result of that deception. To do

1 1 so, Class Counsel consulted an expert to review and determine the impact of false reference prices on

12 consumer behavior. Class Counsel also retained Dr. Hamilton to assess the economic remedies related to

13 the prices paid by consumers for the mislabeled products. Dr. Hamilton identified at least four damages

14 methodologies that can be used to measure the extent that class members were overcharged. Class Counsel

15 analyzed these potential damages theories against recent case law rejecting restitution-based damages

16 theories in similar deceptive discount pricing cases. See e.g., Chowning v. Kohl's Dept. Stores. Inc .. 733

17 Fed. Appx. 404 (9th Cir. 2018) (afiirming district court·s grant of summary judgment that rejected each

18 of plaintiffs proposed measures of restitution); Stathakos, 2017 WL 1957063 (N.D. Cal. May 11, 2017)

19 (granting summary judgment and rejecting each of plaintiff's proposed measures of restitution).

20

21

22

23

Accordingly, the legal questions involved in the instant litigation were novel and difficult.

b. The Skills Displayed by Class Counsel and the Exceptional Results Obtained

Class Counsel specialize in complex class actions and regularly litigate cases in California federal

24 and state courts. (See generally Carpenter Deel. and Zaveri Deel.) Historically, Class Counsel have

25 achieved excellent results for cumulatively hundreds of thousands of consumers in contested consumer

26 class actions. Importantly, the amount of fees and costs to be paid in this case is separate and apart from

27 the Class benefits and does not diminish the Class benefits received by Class Members in any way.

28 Equipped with a significant background in successful consumer class litigation, Class Counsel



worked efficiently and effectively toward a resolution of the action. Class Counsel investigated the case

2 to assess its value, and weigh it against the risks, expenses, and uncertainties arising from protracted

3 litigation. Prior to filing the case, Class Counsel expended a substantial amount of time and resources in

4 overseeing the investigation into several locations of Defendants' Ralph Lauren retail and outlet stores of

5 their pricing practices and sales transactions. (See generally Carpenter Deel.) Class Counsel utilized the

6 investigation to acquire pricing data and engage in a comparative analysis between outlet store items sold

7 and stand-alone retail channel department stores. (Id.) Class Counsel oversaw the investigation of market

8 pricing practices for 32 SKU items identified at 19 outlet channel stores for fourteen (14) months prior to

9 suit and four ( 4) subsequent months during the pending litigation preceding mediation. (Id.)

10 Upon filing the case, Class Counsel engaged in formal and informal discovery and substantial

11 motion practice such that they were adequately informed of the strengths and weaknesses of the case.

12 Defendants vigorously challenged the legal sufficiency of Plaintiffs claims through two (2) motions to

13 dismiss. specifically targeting Plaintiffs standing to represent class members who purchased merchandise

14 different from the polo shirt that Plaintiff purchased and Plaintiffs ability to demonstrate that the ·'Value

15 Was·· price and ·'Our Price'' price had not been the prevailing price in the market during the 90-day "look

16 back'' period under California· s False Advertising Law ("F AL"). The Court rejected these substantive

17 issues in Defendants' second motion to dismiss, and Plaintiffs Second Amended Complaint for monetary

18 claims (for which Plaintiff had to file a contested motion for leave) ultimately prevailed at the pleading

19 stage. The Parties then engaged in a case management and early neutral evaluation conference with the

20 Court, exchanged initial disclosures, and served written discovery upon each other.

21 Class Counsel spent a significant amount of time working with experts concerning consumer

22 behavior and damages. Plaintiff retained a damages expert, Stephen Hamilton, Ph.D., an economist who

23 is the Director of Graduate Studies in the Department of Economics at California Polytechnic State

24 University, San Luis Obispo, and principle at OnPoint Analytics. Dr. Hamilton evaluated whether feasible

25 methodologies exist to calculate damages and provided a preliminary damages analysis for the purposes

26 of mediation. In assessing the economic remedies related to the prices paid by consumers for the

27 mislabeled products, Dr. Hamilton identified at least four damages methodologies that Plaintiff intended

28


PLAINTIFF'S UNOPPOSED MOTION FOR A TTORNEYs· FEES. COSTS. AND INCENTIVE A WARD

to use to measure the extent to which she contends class members were overcharged. According to Dr.

2 Hamilton, each methodology resulted in several millions of dollars in damages.

3 Class Counsel often encouraged settlement discussions and eventually took part in a mediation

4 with a highly-regarded mediator, Robert A. Meyer, Esq. of JAMS. Following a productive and successful

5 arm ·s-length mediation, the parties were able to agree upon the terms and execute a final Settlement

6 Agreement and class notice plan after hosting several additional lengthy meet-and-confer discussions.

7 The Merchandise Certificate Fund- which had a floor of$4,000,000 and a ceiling of $12,600,000,

8 and is expected to be over $9,000,000- gives each Class Member a valuable benefit in the form of a $7.00

9 Merchandise Certificate. Importantly, the fees and costs paid in this case are separate from the Class

10 benefits, and do not in any way diminish the Class benefits received by Class Members. Moreover, this

11 action resulted in corrective action, as discussed above. Thus, diligent efforts displayed by Class Counsel

12 and the exceptional results obtained for the Class and consumers in the general public justifies a multiplier.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

c. The Contingent Nature of the Fee Award Warrants an Enhanced Multiplier

"The risk that an attorney takes in the underlying public interest litigation has two components:

the risk of not being a ·successful party,' i.e., not prevailing on the merits, and the risk of not establishing

eligibility for an attorney fee award.'' Graham, 34 Cal. 4th at 583. "[A] contingent fee contract, since it

involves a gamble on the result, may properly provide for a larger compensation than would otherwise be

reasonable:' Rader v. Thrasher, 57 Cal. 2d 244, 253 ( 1962) ( citations omitted).)

Class Counsel agreed to represent Plaintiff and the putative Class on a contingency fee basis.

(Carpenter Deel., ,r 8; Zaveri Deel., ,r 7.) Accordingly, Class Counsel bore all of the risk, not only for the

time spent investigating and litigating, but also the costs incurred. Given that there was no guarantee of

success, the contingent nature of this action lends favor to the application of a positive multiplier to the

lodestar, as indicated by California Supreme Court precedence:

Under our precedents, the unadorned lodestar reflects the general local hourly rate for a fee-bearing case; it does not include any compensation for contingent risk .... The adjustment to the lodestar figure, e.g., to provide a fee enhancement reflecting the risk that the attorney will not receive payment if the suit does not succeed, constitutes earned compensation; unlike a windfall, it is neither unexpected nor fortuitous. Rather, it is intended to approximate market-level compensation for such services, which typically



includes premium for the risk of nonpayment or delay in payment of attorneys fees.

Ketchum. 24 Cal. 4th at 1138 (emphasis in original); see also Posner, Economic Analysis of Law (4th ed. 2

3 1992) at 534. 567) ("A contingent fee must be higher than a fee for the same legal services paid as they

are performed. The contingent fee compensates the lawyer not only for the legal services he renders but 4

for the loan of those services from the time counsel began investigating and litigating the claims until 5

Counsel actually gets paid. This 'loan for services' is properly rewarded with a positive multiplier. The 6

implicit interest rate on such a loan is higher because the risk of default (the loss of the case, which cancels 7

the debt of the client to the lawyer) is much higher than that of conventional loans."). 8

9 The contingent fee compensates the lawyer not only for the legal services he renders but also for

the loan of those services. The implicit interest rate on such a loan is higher because the risk of default 10

(the loss of the case, which cancels the debt of the client to the lawyer) is much higher than conventional 1 I

loans. Ketchum, 24 Cal. 4th at 1132-33; see also Serrano, 20 Cal. 3d at 49; Downey Cares v. Downey 12

Community Dev. Comm 'n., 196 Cal. App. 3d 983, 997 (1987) ( enhanced fees in contingent fee cases 13

recognize the delay in receipt of full payment of fees.). 14

15 Class Counsel assumed substantial risk in agreeing to litigate Plaintiffs case on a pure contingency

basis. Thus, the multiplier, and the resulting unopposed $920,000 fee and cost request, should be granted. 16

17

18

19

20

21

22

23

24

25

26

27

28

d. Additional Factors Justify Applying A Multiplier

Class Counsel secured a settlement instead of engaging in additional years of protracted litigation

through trial and certain appeal. Accordingly, the requested positive multiplier is warranted. ··Considering

that our Supreme Court has placed an extraordinarily high value on settlement, it would seem counsel

should be rewarded. not punished, for helping to achieve that goal." Lealao, 82 Cal. App. 4th at 52 (citing

Merola v. Atlantic Richfield Co., 515 F.2d 165, 168 (3d Cir. 1975) (Courts should reward attorney who

secures a substantial benefit for his clients with a minimum of time invested); Bowling v. Pfizer. Inc .. 922

F. Supp. 1261, 1282-1283 (S.D. Ohio 1996) (Courts should reward attorney in case settled .. in swift and

efficient fashion''): Arenson v. Board o,f Trade o,fCity of Chicago, 372 F. Supp. 1349, 1358 (N.D. Ill.

1974) (awarding a fee four times the normal hourly rate on ground that, if the case had not settled and

gone to verdict .. there is no doubt that the number of hours of lawyer's time expended would be more

than quadruple the number of hours expended to date.'').


PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS" FEES. COSTS. AND INCENTIVE A WARD

Class Counsel litigated this matter diligently for over three years and took an enormous risk that

2 they might never be compensated for their time or reimbursed for their costs (including substantial costs

3 to pay for an all-day mediation and to retain a damages expert to identify viable damages theories and

4 draft a report accordingly). Based on this work, Class Counsel achieved an excellent result for the Class.

5

6

7

B. A Cross-Check of the Requested Fee Under the Percentage of Recovery Confirms That The Requested Fee Is Reasonable

Alternatively, an attorney fee award may be calculated as a percentage of the total recovery for the

8 Class. Courts generally utilize this method to determine the reasonableness of an attorneys' fee request

9 when there is an established common fund from which the attorneys' fees are deducted prior to the

lo distribution of the Class Member· s benefits. This method is not suitable here, but a court may use this

11 method as a ·'cross-check" on the reasonableness of the result from the lodestar method. See Wershba. 91

12 Cal. App. 4th 224; Lealao. 82 Cal. App. 4th 19.

13 The benchmark for ·'reasonableness"' of an attorney"s fee award is 33 1/3% of the common fund.

14 See Chavez. 162 Cal. App. 4th at 66. n.11 ("·fee awards in class actions average around one-third of the

15 recovery.""). A review of class action settlements over the past IO years shows that courts have historically

16 awarded fees in the range of33% to 40%. See e.g .. Roos v. Honeyv.:ell Int 'l. 241 Cal. App. 4th 1472(2015)

17 (affirming award of 37.5% of settlement fund). Here. Class Counsel's requested fees and costs award of

18 $920,000 amounts to only 10% of the expected value of the Merchandise Certificates to be delivered to

19 each known Class Member (1,320,008 x $7.00 = $9,240,056), and thus, is already well below the

20 benchmark. Based on this ··cross-check."" Class Counsel's attorneys· fee and costs request is reasonable.

21

22

C. The Requested Litigation Costs are Reasonable

Out-of-pocket expenses are compensable under Cal. Code Civ. P. § I 021.5 if they would normally

23 be billed to a fee-paying client. See Beasle.v v. Wells Fargo. 235 Cal. App. 3d 1407, 1419 ( 1991 ), overruled

24 in part. Olson v. Automobile Club of Southern Calzfornia. 42 Cal. 4th 1142 (2008); see also Harris v.

25 Marhoefer. 24 F.3d 16, 19 (9th Cir. 1994 ). Moreover, the CLRA explicitly allows for an award of

26 attorneys· fees and costs to the prevailing plaintiff in the litigation. See Cal. Civ. Code. § l 780(d).

27 Class Counsel is requesting reimbursement of $48,587.22 in litigation costs incurred to date, which

28 is included within the total requested award of $920,000. As set forth in the Carpenter Declaration and



Zaveri Declaration, these expenses were necessary for conducting litigation and are reasonable and modest

2 in amount. (Carpenter Deel. ,-i 5; Zaveri Deel. ,-i 4.) Class Counsel's costs include (1) mediation fees, (2)

3 court fees, (3) electronic legal research fees, ( 4) scanning, photocopying, printing, and extraneous office-

4 related expenses, and (5) costs to retain an expert report. Id. These types of costs are typical to those billed

5 by attorneys to fee-paying clients. See Beasley, 235 Cal. App. 3d at 1421.

6 VI.

7

PLAINTIFF IS ENTITLED TO A REASONABLE CLASS REPRESENTATIVE AWARD

Class Counsel requests a reasonable service award for Plaintiff Dennis in the amount of $5,000.00.

8 .. [I]ncentive awards are fairly typical in class action cases" and are ··designed'' to compensate class

9 representatives for work done on behalf of the class, to make up for financial or reputational risk

10 undertaken in bringing the action, and sometimes, to recognize their willingness to act as a private attorney

11 general." Rodriguez v. West Publishing Corp., 563 F.3d 948, 958-59 (9th Cir. 2009); see also Munoz v.

12 BC! Coca-Cola Bottling Co. o/LA., 186 Cal. App. 4th 399. 412 (2010) C-[I]t is established that named

13 plaintiffs are eligible for reasonable incentive payments to compensate them for the expense or risk that

14 they have incurred in conferring a benefit on other members to the class.''). Courts may also consider the

15 notoriety and personal difficulties encountered, as well as the personal benefit, or lack thereof, enjoyed by

16 the class representative. See Van Vranken v. At!. Richfield, 901 F. Supp. 294, 299 (N.D. Cal. 1995). An

17 incentive award is appropriate .. if it is necessary to induce an individual to participate in the suit."

18 Cellphone Termination Fee Cases. 186 Cal. App. 4th 1380, 1395 (20 l 0).

19 Plaintiff maintained continued involvement in the litigation, including reviewing initial pleadings

20 and communicating with Class Counsel on the status of the action. (Declaration of Plaintiff Courtney

21 Dennis ( .. Dennis Deel.''. ,-i 2.) In agreeing to serve as a class representative, Plaintiff undertook a

22 substantial risk by placing her reputation in the public domain and thrusting herself into active litigation

23 to enforce an important public policy for the benefit of the general public. (Id., ,-i 5.) Moreover, Plaintiff

24 risked potential judgment against her if this case had been unsuccessful. (Id., ,-i 4.) In class action losses,

25 class representatives are deemed the losing party liable for the prevailing party's costs. Earley v. Superior

26 Court, 79 Cal. App. 4th 1420, 1433-1434 (2000). Few individuals are willing to undertake that risk,

27 particularly since courts have entered judgments against class representatives. See In re Tobacco Cases

28


PLAINTIFF'S UNOPPOSED MOTION FOR ATTORNEYS. FEES. COSTS. AND INCENTIVE A WARD

II, 240 Cal. App. 4th 779, 805-07 (2015) (upholding cost award in favor of defendant against class

2 representative in her personal capacity in the amount of$764,552.73); see also Whitevvay v. Fedex Kinkos

3 Office & Print Servs., 2009 WL 725152 (N.D. Cal. 2007) (imposing costs of $56,788.68 against class

4 representative in unsuccessful class action) (reversed on other grounds.)

5 Lastly, the incentive award sought by Plaintiff Dennis is reasonable in companson to

6 enhancements in other consumer class action settlements. See e.g., Morey, 2014 WL 109194 ( approving

7 $5,000 incentive award in Song-Beverly settlement); Williams v. Costco Wholesale Corp., 2010 WL

8 2721452, at *7 (S.D. Cal. Jul. 7, 2010) (approving a $5,000 incentive award in antitrust case settling for

9 $440,000); Cellphone Termination Fee Cases, 186 Cal. App. 4th at 1393-94 (approving $10,000 incentive

10 awards to each of the four class representatives); Carr, 51 F.Supp.3d at 986 (granting $1,500 incentive

11 award in consumer class action); and Dennis v. Kellogg Co., No. 09CV1786-L (WMc), 2013 WL

12 6055326, at *9 (S.D. Cal. Nov. 14, 2013) (noting that a request for a $5,000 incentive payment ·'is well

13 within if not below the range awarded in similar cases.").

14 VII. CONCLUSION

15 For the foregoing reasons, Plaintiff asks that the Court grant Plaintiffs unopposed motion for

16 attorneys· fees and costs in the amount of $920.000 and an incentive award to Plaintiff of $5,000.

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18 Date: July 2, 2019

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Respectfully submitted,

CARLSON LYNCH LLP Todd D. Carpenter (CA 234464) Brittany C. Casola (CA 306561) 1350 Columbia Street, Suite 603 San Diego, California 9210 I Telephone: (619) 762-1900 Facsimile: (619) 756-6991 [email protected] [email protected]

ZA VERI TABB, APC Deval R. Zaveri (CA 213501)



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James A. Tabb (CA 208188) 402 West Broadway, Suite 1950 San Diego, CA 9210 l Telephone: ( 619) 831-6988 Facsimile: (619) 239-7800 [email protected] [email protected]

Attorneys for Plaintiff and the Settlement Class

20 MEMORANDUM OF POrNTS AND AUTHORITIES IN SUPPORT OF


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