United States District Court, N.D. California, San Francisco Division
IN RE CAPACITORS ANTITRUST LITIGATION THIS DOCUMENT RELATES TO ALL DIRECT PURCHASER ACTIONS
[PROPOSED] ORDER GRANTING
COUNSEL'S MOTION FOR ATTORNEYS' FEES AND
REIMBURSEMENT OF EXPENSES
matter is before the Court on Direct Purchaser Class
Counsel's application for Attorneys' Fees and
Reimbursement of Expenses (“Motion”) (Dkt. 1458)
made in connection with DPPs' Motion for Final Approval
of Settlements with Fujitsu Limited, NEC TOKIN Corporation,
NEC TOKIN America, Inc., Nitsuko Electronics Corporation,
Okaya Electric Industries Co., Ltd. and Okaya Electric
America, Inc., ROHM Co., Ltd., and ROHM Semiconductor U.S.A.,
LLC (the “Settling Defendants”) (Dkt. 1461). On
March 30, 2017, Direct Purchaser Class Counsel filed a
Supplemental Report renewing the Motion (Dkt. 1586). On April
6, 2017, the Court held a hearing on the Motion.
Settlements total $32, 600, 000 in cash and secure agreements
by each of the five Settling Defendants to cooperate in
DPPs' continued prosecution of their claims against the
non-settling Defendants. The Settlements are the first in
this litigation since its filing over two and a half years
Purchaser Class Counsel submit this Motion for attorneys'
fees seeking an award in the amounts of $8, 150, 000 for fees
accrued as of September 30, 2016, and $3, 000, 000 for costs
advanced on behalf of the Class during the same period. As
reflected in Counsel's submission, their cumulative
lodestar and costs as of September 30, 2016 greatly exceed
the compensation they seek in this Motion.
consideration of Direct Purchaser Plaintiff Counsel's
Motion, Lead Class Counsel's supporting declaration
concurrently filed therewith, all other papers in the
Court's files, and the argument at the March 2, 2017
hearing, the Court finds the following and grants Direct
Purchaser Plaintiff Counsel's Motion.
may recover reasonable attorneys' fees from a common fund
settlement they secure on behalf of a class. The Supreme
Court has explained that “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.” Boeing Co. v. Van
Gemert, 444 U.S. 472, 478 (1980); see also Mills v.
Elec. Auto-Lite Co., 396 U.S. 375, 393 (1970);
Central R.R. & Banking Co. v. Pettus, 113 U.S.
116, 123 (1885) (“where one or more of many parties
having a common interest in a trust fund takes, at his own
expense, proper proceedings to save it from destruction and
to restore it to the purposes of the trust, he is entitled to
reimbursement either out of the fund itself or by a
proportional contribution from those who accept the benefit
of his efforts”). “The rationale behind awarding
a percentage of the fund to counsel in common fund cases is
the same that justifies permitting contingency fee
arrangements in general. . . . The underlying premise is the
existence of risk-the contingent risk of
non-payment.” In re Quantum Health Resources, Inc.
Sec. Litig., 962 F.Supp. 1254, 1257 (C.D. Cal. 1997)
(emphasis in original). In addition, attorneys' fees are
awarded as a means of ensuring the beneficiaries of a common
fund share with those whose labors created the fund. See
In re Washington Pub. Power Supply Sys. Sec. Litig., 19
F.3d 1291, 1300 (9th Cir. 1994)
(“WPPSS”) (“those who benefit from
the creation of the fund should share the wealth with the
lawyers whose skill and efort helped create it.”).
may also obtain reimbursement for costs from a common fund
settlement. In re Media Vision Tech. Sec. Litig.,
913 F.Supp. 1362, 1366 (N.D. Cal. 1995) (“Reasonable
costs and expenses incurred by an attorney who creates or
preserves a common fund are reimbursed proportionately by
those class members who benefit by the settlement.”)
(citing, inter alia, Mills v. Electric Auto-Lite
Co., 396 U.S. 375, 391-92 (1970)); see also Wolph v.
Acer Am. Corp., 2013 U.S. Dist. LEXIS 151180, at *18
(N.D. Cal. Oct. 21, 2013) (“Counsel are entitled to
reimbursement of their reasonable out-of-pocket
expenses.”). “The prevailing view is that
expenses are awarded in addition to the fee
percentage.” Williams v. Super Shuttle Int'l,
Inc., No. 12-CV-06493-WHO, 2015 U.S. Dist. LEXIS 19341,
at *6 (N.D. Cal. Feb. 12, 2015) (citations omitted).
THE COURT AWARDS DPPS' COUNSEL $8, 150, 000-25 PERCENT OF
THE FUND-AS PARTIAL PAYMENT OF THEIR FEES ACCRUED AS OF
SEPTEMBER 30, 2016
The Percentage-of-the-Fund Method for Calculating Fees Is
courts in the Ninth Circuit use either the
“percentage-of-the-fund” or the
“lodestar” method in calculating fees in common
fund settlements. Fischel v. Equitable Life Assur.
Soc'y, 307 F.3d 997, 1006 (9th Cir. 2002) (“In
a common fund case, the district court has discretion to
apply either the lodestar method or the
percentage-of-the-fund method in calculating a fee
award.”). Using either method, the ultimate inquiry is
whether the end result is reasonable. Powers v.
Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000).
percentage-of-the-fund method is preferred when counsel's
eforts have created a common fund for the benefit of the
class. “The use of the percentage-of-the-fund method in
common-fund cases is the prevailing practice in the Ninth
Circuit for awarding attorneys' fees and permits the
Court to focus on a showing that a fund conferring benefits
on a class was created through the efforts of plaintiffs'
counsel.” In re Korean Air Lines Co., Antitrust
Litig., 2013 U.S. Dist. LEXIS 186262, at *3 (C.D. Cal.
Dec. 23, 2013); see also Bellinghausen v. Tractor Supply
Co., 2015 U.S. Dist. LEXIS 35266, at *33 (N.D. Cal. Mar.
19, 2015) (“Because this case involves a common
settlement fund with an easily quantifiablebenefit
to the ...