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In re Capacitors Antitrust Litigation

United States District Court, N.D. California, San Francisco Division

June 27, 2017

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

          James Donato Judge

         This 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.

         The 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 ago.

         Direct 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.

         Upon 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.

         I. LEGAL STANDARD

         A. Attorneys' Fees

         Attorneys 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.”).

         B. Costs Reimbursement

         Counsel 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).

         II. 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

         A. The Percentage-of-the-Fund Method for Calculating Fees Is Appropriate Here

         District 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).

         The 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 ...


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