Admitted Pro Hac Vice - terrellmarshall.comterrellmarshall.com/wp-content/uploads/2012/08/... ·...
Transcript of Admitted Pro Hac Vice - terrellmarshall.comterrellmarshall.com/wp-content/uploads/2012/08/... ·...
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 1 CASE NO. 3:12-CV-00012-PK
Michael J. Estok, OSB #090748 Email: [email protected] LINDSAY HART, LLP 1300 SW Fifth Avenue, Suite 3400 Portland, Oregon 97201-5640 Telephone: (503) 226-7677 Facsimile: (503) 226-7697 Toby J. Marshall, Admitted Pro Hac Vice Email: [email protected] Jennifer R. Murray, OSB #100389 Email: [email protected] TERRELL MARSHALL DAUDT & WILLIE PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528 Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DONNA DICKERSON and GERALD MITTIG, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
CABLE COMMUNICATIONS, INCORPORATED, a Nevada corporation, and WILLIAM KEVIN TOUCHTON, an individual, Defendants.
NO. 3:12-cv-00012-PK
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT
CLASS ACTION ALLEGATION
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 1 of 110 Page ID#: 681
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 2 CASE NO. 3:12-CV-00012-PK
I, Toby J. Marshall, declare as follows:
1. I am a member of Terrell Marshall Daudt & Willie PLLC (“TMDW”),
co-counsel for Plaintiffs and proposed class members in this matter. I have been the primary
attorney from my firm working on this case. I have personal knowledge of the following facts
and if called to testify could and would competently do so. I am submitting this declaration in
support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement.
2. Since the commencement of this action, my firm has incurred more than
$153,300 in fees and expended over $5,701.37 in litigation expenses related to the prosecution
of this action. I estimate we will incur an additional $5,000 in fees and $350 in costs to finalize
the final approval motion and prosecute the case through final settlement approval. In all, my
firm devoted more than 670 hours to the investigation, development, litigation and resolution of
this case. This includes time spend investigating the claims of the Settlement Class members,
conducting discovery, researching and analyzing legal issues, responding to two motions to
dismiss, preparing a draft motion for class certification, communicating with proposed Class
Members, and engaging in settlement negotiations. After mediation, I worked extensively with
counsel for the Defendants to iron out a written settlement agreement. We also worked to draft
the class notice form. My firm then prepared the motion for preliminary approval along with
supporting declarations.
3. Our lodestar calculations are based on reasonable hourly rates. We set these
rates for attorneys and staff members based on a variety of factors, including among others: the
experience, skill and sophistication required for the types of legal services typically performed;
the rates customarily charged in the markets where the legal services are typically performed;
and the experience, reputation and ability of the attorneys and staff members. The rates
charged for attorneys and staff members working on this matter range from $50 to $375.
Courts recently have approved rates that were significantly higher than the request made here.
Attached hereto as Exhibits 1 through 5 are true and correct copies of orders from state and
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 2 of 110 Page ID#: 682
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 3 CASE NO. 3:12-CV-00012-PK
federal courts in Washington approving such rates. Ex. 1 (granting attorneys’ fees award based
on rates ranging from $100 to $600, including a rate of $575 for Mr. Marshall and $450 for Ms.
Murray); Ex. 2 (Judge Robart approving as reasonable rates ranging from $175 to $600,
including Ms. Murray at $450); Ex. 3 (Judge Spector approving fee request based on rates
ranging from $100 to $760); Ex. 4 (Judge Washington approving fee request based on rates
ranging from $100 to $760); Ex. 5 (Judge Lasnik approving Plaintiffs’ counsel’s fee request
based on rates ranging from $180 to $650). The schedule contained in Paragraph 4 was
prepared from contemporaneous, daily time records regularly prepared and maintained by the
firm in the regular course of business.
4. The following table identifies the attorneys and staff members from my firm
who worked on this case, a general description of the work performed, the hourly rate charged
for each individual, the number of hours worked by individual, the amount of fees for each
individual, and the total hours and fees for the firm.
NAME AND POSITION DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
ATTORNEYS
Toby J. Marshall
Partner at Terrell Marshall Daudt & Willie PLLC
J.D. from Univ. of Washington School of Law, 2002
Researched and analyzed various legal and factual issues; worked on pleadings and correspondence; worked on discovery matters; analyzed document production; participated in conferences with co‐counsel, opposing counsel, and clients; interviewed potential class members; worked on motion to dismiss counterclaims and motion to compel discovery; worked on class certification issues; engaged in settlement discussions; prepared for and attended mediation; worked on settlement issues and settlement agreement; worked on preliminary approval motion; worked on motion for final approval.
$375 161 $60,375
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 3 of 110 Page ID#: 683
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 4 CASE NO. 3:12-CV-00012-PK
NAME AND POSITION DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
Jennifer Rust Murray
Partner at Terrell Marshall Daudt & Willie PLLC
J.D. from Univ. of Washington School of Law, 2005
Researched and analyzed various legal and factual issues; worked on amended complaint; worked on discovery matters; reviewed document production; worked on class certification motion; worked on mediation submission; worked on settlement issues.
$285 111.1 $31,646
Michael D. Daudt
Partner at Terrell Marshall Daudt & Willie PLLC
J.D. from Univ. of California, Berkley, Boalt Hall School of Law
Analyzed insurance coverage and settlement issues.
$375 .9 $337.50
Erika L. Nusser
Associate at Terrell Marshall Daudt & Willie PLLC
J.D. from Univ. of San Francisco School of Law, 2008
Researched and analyzed various legal issues; worked on class member declarations; worked on motions for preliminary approval and final approval of settlement.
$225 47 $10,575
Marc. C. Cote
Associate at Terrell Marshall Daudt & Willie PLLC
J.D. from Univ. of Washington School of Law, Order of the Coif, 2007
Researched and analyzed legal issues. $265 2.2 $583
LAW CLERKS
Samuel J. Strauss
Law Clerk at Terrell Marshall Daudt & Willie PLLC from June 2012 – present.
J.D. from Univ. of Washington School of Law, 2013
Researched various legal and factual issues; worked on motion to compel discovery and supporting documents; interviewed potential class members; worked on class member declarations.
$150 152 $22,800
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 4 of 110 Page ID#: 684
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 5 CASE NO. 3:12-CV-00012-PK
NAME AND POSITION DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
Charlotte S. Sanders
Law Clerk at Terrell Marshall Daudt & Willie PLLC from May 2010 to June 2011
J.D. from Univ. of Washington School of Law, 2011
Interviewed potential class members; worked on class member declarations.
$160 85.9 $13,744
Aurora Wilson
Law Clerk at Terrell Marshall Daudt & Willie from Jan. 2012 to May 2012
Researched various legal issues $150 2.9 $435
PARALEGALS/LEGAL ASSISTANTS
Jennifer J. Boschen
Senior Paralegal at Terrell Marshall Daudt & Willie PLLC from May 2008 to Jan. 2009 and March 2010 to present.
B.A. from Rutgers
Worked on document management; analyzed documents produced in discovery; worked on class member declarations; worked on issues relating to consents to join; worked on mediation submission and damages issues.
$150 10 $1,500
Eden B. Nordby
Paralegal at Terrell Marshall Daudt & Willie PLLC since June 2008
B.A. from Sarah Lawrence College, 2005
Interviewed potential class members regarding claims; created and maintained class member contact spreadsheet and call notes; worked on public records requests; worked on issues relating to consents to join; worked on class member declarations; worked on mediation submission.
$125 35.1 $4,387.50
Bradford Kinsey
Legal Assistant at Terrell Marshall Daudt & Willie PLLC since Oct. 2009
A.A. from Edmonds Community College as Legal Assistant, 1989
Worked on pleadings and correspondence; worked on court filings and service; worked on consents to join; worked on amended complaint.
$100 20.6 $2,060
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 5 of 110 Page ID#: 685
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 6 CASE NO. 3:12-CV-00012-PK
NAME AND POSITION DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
Janelle Chase
Legal Assistant at Terrell Marshall Daudt & Willie PLLC since 2012
B.A. from Mills College and Washington State Certified Spanish‐English Interpreter
Interviewed class members and worked on class member declarations; worked on issues relating to consents to join; worked on court filings.
$100 42.4 $4,240
Torrie Marshall
Legal Assistant at Terrell Marshall Daudt & Willie PLLC since 2011
Worked on docketing. $100 3 $300
Cassandra Bohannon
Legal Assistant at Terrell Marshall Daudt & Willie PLLC from Sept. 2011 – July 2012.
Worked on court filings. $100 2.7 $270
Hannah Buckendorf
Legal Assistant at Terrell Marshall Daudt & Willie PLLC since 2012
B.A. from College of Idaho, 2011
Worked on court filings. $50 1 $50
TOTAL: 677.8 $153,303
5. The following table identifies the expenses my firm has expended to date in the
prosecution of this matter. These expenses were necessary to secure the resolution of this
litigation.
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 6 of 110 Page ID#: 686
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 7 CASE NO. 3:12-CV-00012-PK
6. Based on my professional experience, I expect that attorneys and staff at
TMDW will devote approximately 20 additional hours finalizing the final approval motion,
addressing final approval issues and preparing for and attending the final approval hearing.
7. I was the attorney primarily responsible for reviewing the work of all other
attorneys, law clerks, paralegals, and document clerks listed in the schedule set forth in
paragraph four. I supervised all work to avoid duplication of effort and to encourage
efficiency. I reviewed the billing records and reduced or eliminated time where necessary. The
work performed by the law clerks, paralegals, and document clerks was work that required
sufficient knowledge of legal concepts and that I or another attorney would have had to
perform absent such assistance. The paralegals and document clerks identified were all
qualified to perform substantive legal work based on their training and past experience working
for attorneys, including attorneys outside of TMDW’s offices.
8. As of September 3, 2013, Plaintiffs’ counsel have received no exclusion
requests and no objections to the Settlement.
9. When only timely claims forms are considered, the average individual payment
is $1,696.21 and the range of payments is from a low of $19.48 (for one week of work) to a
high of $7,072.01. When the three untimely claims are added, the average individual payment
Computer Research (Westlaw, Pacer, Accurint)
$4,797.25
Court Fees
$100
Postage
$149.89
Meals
$58.73
Reproductions (Scanning and copying)
$250.55
Travel
$344.95
Total $5,701.37
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 7 of 110 Page ID#: 687
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 8 CASE NO. 3:12-CV-00012-PK
is $1,672.87, and the range of payments is from a low of $19.27 (again, for only one week of
work) to a high of $6,993.55.
10. We proposed modifying the definition of Qualified Claimant to include the three
untimely claimants, but Defendant CCI will not consent to this.
11. TMDW has incurred $6,726.91 in notice administration expenses, which include
the time and costs incurred in distributing notice to all Settlement Class Members, handling
claims, and responding to inquiries regarding settlement administration. TMDW estimates it
will incur an additional $1,229.81 in time and costs for distributing Class Member checks and
handling other settlement administration matters. Class Counsel, however, are requesting just
$7,553.11 in claims administration costs, as that is the amount estimated in Plaintiffs’ Motion
for Preliminary Approval.
I declare under penalty of perjury under the laws of the United States of America that
the foregoing is true and correct.
EXECUTED at Seattle, Washington, on this 4th day of June, 2013.
/s/ Toby J. Marshall, Admitted Pro Hac Vice Toby J. Marshall, Admitted Pro Hac Vice
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 8 of 110 Page ID#: 688
DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 9 CASE NO. 3:12-CV-00012-PK
CERTIFICATE OF SERVICE
I, Toby J. Marshall, hereby certify that on September 3, 2013, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send notification of
such filing to the following:
Mitchell C. Baker, OSB #981358 Email: [email protected] Erin O. Sweeney, OSB #106632 Email: [email protected] FISHER & PHILLIPS LLP 111 SW 5th Avenue, Suite 1250 Portland, Oregon 97204 Telephone: (503) 242-4262 Facsimile: (503) 242-4263 Attorneys for Defendant Cable Communications, Incorporated
DATED this 3rd day of September, 2013.
TERRELL MARSHALL DAUDT & WILLIE PLLC
By: /s/ Toby J. Marshall, Admitted Pro Hac Vice Toby J. Marshall, Admitted Pro Hac Vice Email: [email protected] 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528
Attorney for Plaintiffs
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 9 of 110 Page ID#: 689
EXHIBIT 1
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 10
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 10 of 110 Page ID#: 690
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 1CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
THE HONORABLE JOHN C. COUGHENOUR
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
ANTHONY FREY, individually, and on behalf of all others similarly situated, and JAMES HEWETT, individually and on behalf of all others similarly situated,
Plaintiffs and Counter-Defendants,
v.
3PD, INC., a Georgia corporation,
Defendant and Counter-Plaintiff._______________________________________
3PD, INC., a Georgia corporation,
Third-Party Plaintiff,
v.
OUTBACK DELIVERY, LLC, a Washington Limited Liability company, and JAMBO TRANSIT, LLC, a Washington Limited Liability company,
Third-Party Defendants.
NO. C08-0630 JCC
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 1 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 11
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 11 of 110 Page ID#: 691
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 2CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
I, Beth E. Terrell, declare as follows:
1. I am a member of the law firm of Terrell Marshall & Daudt PLLC (“TMD”),
counsel of record for Plaintiffs in this matter. I am admitted to practice before this Court and
am a member in good standing of the bars of the States of Washington and California.
I respectfully submit this declaration in support of Plaintiffs’ motion for final approval of the
above-captioned class action. Except as otherwise noted, I have personal knowledge of the
facts set forth in this declaration, and could testify competently to them if called upon to do so.
2. TMD is a law firm in Seattle, Washington, that focuses on complex civil and
commercial litigation with an emphasis on employment, consumer protection, product liability,
real estate, and personal injury matters. The attorneys of TMD have extensive experience in
class actions, collective actions, and other complex matters. They have been appointed lead or
co-lead class counsel in numerous cases at both the state and federal level. With respect to
employment, the attorneys of TMD (including Jennifer Murray, Toby Marshall and me) have
represented both employees and employers on a broad range of employment issues, including
wage and hour issues, noncompete issues, and employment discrimination issues.
3. A founding member of TMD, I concentrate my practice in complex litigation,
including the prosecution of consumer, defective product, anti-trust, and wage and hour class
actions. I have served as co-lead counsel on numerous multi-state and nationwide class actions.
I also handle a variety of employment issues including employment discrimination, restrictive
covenant litigation, and pre-litigation counseling and advice. I received a B.A., magna cum
laude, from Gonzaga University in 1990. In 1995, I received my J.D. from the University of
California, Davis School of Law, Order of the Coif. Prior to forming TMD in May 2008, I was
a member of Tousley Brain Stephens PLLC.
4. Jennifer Rust Murray is also a founding member of TMD. Ms. Murray
graduated from the University of Washington School of Law in 2005 where she was a member
of the Washington Law Review. Prior to law school, Ms. Murray earned her Ph.D. in
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 2 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 12
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 12 of 110 Page ID#: 692
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 3CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Philosophy from Emory University. Ms. Murray has been an active member of the
Washington State Bar Association since her admission to the bar in 2005. In 2010, Ms. Murray
was admitted to the Oregon State Bar. Ms. Murray focuses her practice on complex
commercial litigation with an emphasis on consumer and employment issues and has
represented both plaintiffs and defendants in many class and collective actions including
Khadera v. ABM Industries, Inc., Ramirez v. Precision Drywall, Inc., Lettic v. Spectrum Glass,
Inc., Kirkpatrick v. Ironwood Communications, Inc., Morden v. T-Mobile, McGinnity v.
AutoNation, Inc., Godfrey v. Chelan County P.U.D., and Barnett v. Wal-Mart.
5. In addition to the instant litigation, TMD’s attorneys have served as co-lead
counsel in several employment class actions, including the following:
� Barnett et al. v. Wal-Mart Stores, Inc., in which we represented a certified class of more than 88,000 employees alleging wage and hour violations. After more than seven years of litigation, we obtained a $35,000,000 settlement on behalf of the class. That settlement was approved in July 2009.
� McGinnity et al. v. AutoNation, Inc. et al., in which we represented a certified class of more than 500 employees who were denied vacation benefits they had earned. After nearly two years of litigation before an arbitrator, we obtained an award of $2.34 million on behalf of the class. We successfully defended the award on appeal, and the Washington Supreme Court denied defendants’ petition for review. A judgment in excess of $2,600,000 was satisfied in September 2009.
� Telecommunications Company Lawsuit II, in which we represented a certified class of more than 2,400 current and former employees in Washington and Oregon who alleged wage and hour violations. We obtained a $3,000,000 settlement after nearly four years of intense litigation, and the court granted final approval of the settlement in March 2009.
� Godfrey et al. v. Chelan County Public Utility District, in which we represented a class of 81 employees who were denied pay for all hours worked. The case settled in 2008, and the settlement was approved by the U.S. District Court for the Eastern District of Washington.
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 3 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 13
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 13 of 110 Page ID#: 693
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 4CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
� Telecommunications Company Lawsuit I, in which we represented a certified class of 300 employees who alleged wage and hour violations. The case settled in 2007, and the settlement was approved by the U.S. District Court for the Western District of Washington.
� Ramirez et al. v. Precision Drywall, Inc., in which we represented class of workers who alleged they were not paid for all hours worked, and were not provided with proper rest and meal breaks. TMD obtained a jury verdict in favor of the Plaintiffs after a five week trial in March – April 2010. The Court entered a judgment against the Defendants in excess of $2 million.
� Martinez, et al. v. 24 Hr. Professional Janitorial Services, in which we represented a class of janitorial workers who alleged wage and hour violations. The case settled in 2009 and King County Superior Court approved the settlement in April 2010.
� Lettic v. Spectrum Glass, Inc., in which we represented a class of workers who alleged they were not paid for all hours worked and were not provided with proper rest and meal breaks. The case settled in 2010 and King County Superior Court approved the settlement later that year.
� Reese, et al. v. Dycom Industries, Inc., in which we represented a class of telecommunications workers who alleged they were not paid for all hours worked and were not provided with proper rest and meal breaks. The case settled in 2010 and Judge Pechman of the U.S. District Court for the Western District of Washington approved the settlement.
5. The TMD attorneys also have extensive experience with other complex
litigation. We have played a key role in class actions involving consumer fraud, securities
fraud, and product liability, and we are currently acting as lead counsel many such cases.
6. Throughout the litigation, the attorneys and paralegals at my firm spent a
considerable amount of time interviewing current and former 3PD contractors. These
interviews proved helpful in allowing counsel to assess the strengths and weaknesses of the
class claims. We also spent many hours reviewing the thousands of pages of documents
produced by 3PD.
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 4 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 14
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 14 of 110 Page ID#: 694
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 5CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7. The total number of hours expended on this litigation by TMD is 948.9 hours.
The total lodestar for TMD through February 8, 2011, calculated at the billing rates charged in
similar cases is $339,906. The following table lists the TMD attorneys and professional
personnel and summarizes their work on the case that is included in the lodestar figure for
TMD, as well as the current hourly rates. I supervised each of the professionals listed on the
table. The hourly rate shown for any attorney or paralegal who is no longer employed with
TMD reflects the last rate that applied at the time of their employment:
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
ATTORNEYS
Beth E. TerrellPartner at Terrell Marshall & Daudt PLLCJ.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995
Researched and analyzed various legal and factual issues; worked on case strategy; worked on memoranda, correspondence and pleadings; analyzed and worked on damages issues; analyzed and worked on discovery issues and document production;participated in discovery conferences;worked on settlement issues; prepared for and defended depositions.
$600 144.2 $86,520
Jennifer Rust MurrayPartner at Terrell Marshall & Daudt PLLCJ.D. from Univ. of Washington School of Law, 2005
Researched and analyzed various legal and factual issues; worked on case strategy; worked on memoranda, correspondence and pleadings; analyzed and worked on damages issues; analyzed and worked on discovery issues; participated in discoveryconferences; worked on settlement issues;prepared for and defended depositions of class representatives and class members;worked on document review issues; interviewed class members and worked on class member declarations.
$450 304.1 $136,845
Toby J. MarshallPartner at Terrell Marshall & Daudt PLLCJ.D. from Univ. of Washington School of Law, 2004
Researched and analyzed various legal issues; worked on case strategy issues; worked on motion for class certification.
$575 3.1 $1,782.50
Erika L. NusserAssociate at Terrell Marshall & Daudt PLLC
Researched and analyzed various legal and factual issues; worked on pleadings and memoranda; interviewed class members; worked on class member declarations;
$325 43.7 $14,202.50
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 5 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 15
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 15 of 110 Page ID#: 695
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 6CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
J.D. from University of San Francisco School of Law, 2008.
reviewed document production.
Iris K. TilleyAssociate at Terrell Marshall & Daudt PLLCJ.D. from Univ. of Washington School of Law, 2007
Worked on pleadings, correspondence and memoranda; interviewed class members; worked on class member declarations; reviewed document production.
$275 55.6 $15,290
Courtney K. ElamLaw Clerk at Terrell Marshall & Daudt PLLC
Translated class member interview questionnaire into Spanish; conducted class member interviews; worked on declaration.
$265 20.9 $5,538.50
Sam J. WolfLaw Clerk at Terrell Marshall & Daudt PLLC
Worked on memoranda and correspondence; researched legal issues; interviewed class members.
$265 17.5 $4,637.50
Jessica FritzLaw Clerk at Terrell Marshall & Daudt PLLC
Researched various legal issues; worked on memoranda and pleadings.
$265 13.5 $3,577.50
PARALEGALSEden B. NordbyParalegal at Terrell Marshall & Daudt PLLC since June 2008 BA. Sarah Lawrence College, 2005.
Worked on correspondence, pleadings and discovery responses; worked on court filings; reviewed document production; created database of class member information and production index; worked on document production; interviewed class members; worked on class member declarations; worked on discovery matters.
$225 246.7 55,507.50
Bradford KinseyLegal Secretary at Terrell Marshall & Daudt PLLC since October 2009.AA as a legal assistant from Edmonds Community College, 1989.21 years of experience working in civil litigation representing both plaintiffs and defendants.
Worked on correspondence and pleadings; worked on court filings; served pleadings and other documents; coordinated hearing scheduling with Court.
$200 12.9 $2,580.00
Jennifer J. BoschenParalegal at Terrell Marshall & Daudt PLLC
Reviewed and analyzed document production; worked on document production issues; worked on subpoena
$250 4.9 $1,225
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 6 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 16
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 16 of 110 Page ID#: 696
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 7CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURS BILLED
TOTAL
from May 2008 – Jan 2009 & March 2010 -present.BA from Rutgers University, 1998
duces tecum to third party.
Tova MacLennan Paralegal at Terrell Marshall & Daudt PLLC from January 2009 –March 2010.BA from Seattle Univ.
Worked on pleadings and correspondence; reviewed document production and index of same; researched class member information; researched various legal and factual issues; worked on Court filings; worked on production issues; worked on deposition preparation.
$200 40.2 $8,040
LEGAL ASSISTANTSKait HeacockLegal Assistant at Terrell Marshall & Daudt PLLCBA from Seattle Pacific Univ., 2009.
Reviewed document production; workedon production issues; worked on pleadings and correspondence.
$100 41.6 $4,160
TOTAL: 948.9 $339,906
8. TMD sets their rates for attorneys and staff members based on a variety of
factors, including among others: the experience, skill and sophistication required for the types
of legal services typically performed; the rates customarily charged in similar matters; and the
experience, reputation and ability of the attorneys and staff members. For personnel who are
no longer employed by the firm, the lodestar calculation is based upon the billing rates for such
personnel in his or her final year of employment by the firms. The schedule contained in
paragraphs 7 were prepared from contemporaneous, daily time records regularly prepared and
maintained by the firm in the regular course of business.
9. I was the attorney primarily responsible for reviewing the work of all other
attorneys, law clerks, paralegals, and document clerks listed in the schedule set forth in
paragraph 7. I supervised all work to avoid duplication of effort and to encourage efficiency. I
reviewed the billing records and reduced or eliminated time where necessary. The work
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 7 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 17
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 17 of 110 Page ID#: 697
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 8CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
performed by the law clerks, paralegals, and document clerks was work that required sufficient
knowledge of legal concepts and that I or another attorney would have had to perform absent
such assistance. The law clerks identified above were all students currently enrolled in or
recently graduated from an accredited law school. The paralegals and document clerks
identified were all qualified to perform substantive legal work based on their training and past
experience working for attorneys, including attorneys outside of TMD’s offices.
10. A sample of the federal and state courts since 2008 that have approved TMD’s
standard billing rates and reimbursement of costs as reasonable are:
� December 2010, in Carideo, et al. v. Dell, Inc., Case No. C06-1772 JLR (W.D. Wash.)
� July 2009, in Barnett, et al. v. Wal-Mart Stores, Inc., Case No. 01-2-24553-8SEA (Wash. Sup. Ct. King County);
� September 2010, in Odom v. Microsoft Corp., Case No. 04-2-10618-4 SEA (Wash. Sup. Ct. King County);
� July 2009, in Splater v. Thermal Ease Hydronic Systems, Inc., Case No. 03-2-33553-3 SEA (Wash. Sup. Ct. King County); and
11. The $3,309.89 in expenses and cost liabilities TMD reasonably incurred in the
prosecution of this matter are set forth in the table attached hereto as Exhibit 1
12. The named Plaintiffs should be recognized for their substantial service to and
efforts on behalf of the proposed settlement class. The named Plaintiffs greatly assisted Class
Counsel in investigating the claims, preparing the complaint, contacting additional witnesses,
and understanding the factual background of the lawsuit. Both were ready and willing to testify
at trial and were consulted throughout the case and during mediation. Both named Plaintiffs
responded to written discovery requests and had their depositions taken by Defendants.
.
13. Based on my professional experience, and taking into consideration the risks of
continued litigation versus the certain and substantial relief afforded by the Settlement, it is my
opinion that the Settlement is fair, adequate and reasonable, and in the best interests of the
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 8 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 18
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 18 of 110 Page ID#: 698
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 9CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Class, and merits final approval. It is also my view that, in light of the time and costs expended
by Class Counsel, the legal standards governing the award of fees and costs in class actions,
and the results obtained, the fees and costs requested by Class Counsel are modest, and well-
warranted.
I declare under penalty of perjury under the laws of the State of Washington and the
United States that the foregoing is true and correct.
EXECUTED at Seattle, Washington this 11th day of February, 2011.
Beth E. Terrell, WSBA #26759/s/ Beth E. Terrell, WSBA #26759
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 9 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 19
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 19 of 110 Page ID#: 699
EXHIBIT 1
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 10 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 20
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 20 of 110 Page ID#: 700
Terrell Marshall & Daudt PLLC
Frey and Hewett, et al. v. 3 PD, Inc. Class Action Case No. C08-0630 JCC
COSTS
Meals $ 8.11 Messenger $ 110.50 Postage $ 39.43 Reproductions $ 494.80 Research $ 1576.51 Document Production $ 266.38 Travel $ 814.16 Total $ 3,309.89
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 11 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 21
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 21 of 110 Page ID#: 701
DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 10CASE NO. C08-0630 JCC
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.
Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
CERTIFICATE OF SERVICE
I, Jennifer Rust Murray, hereby certify that on February 11, 2011, I electronically filed
the foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following:
John R. Ruhl, WSBA #[email protected], SWANSON & CLEVELAND, PLLC1201 Third Avenue, Suite 3400Seattle, Washington 98101
James H. [email protected] D. [email protected] J. [email protected], GARVIN, LIGHT, HANSON & FEARY, P.C.10 West Market Street, Suite 1500Indianapolis, Indiana 46204
Adam C. [email protected], GARVIN, LIGHT, HANSON & FEARY, P.C.30 West Monroe Street, Suite 600Chicago, Illinois 60603
Attorneys for Defendant
DATED this 11th day of February, 2011.
TERRELL MARSHALL & DAUDT PLLC
By: /s/ Jennifer Rust Murray, WSBA #36983Beth E. Terrell, WSBA #26759Email: [email protected] Rust Murray, WSBA #36983Email: [email protected] Fremont Avenue NorthSeattle, Washington 98103Telephone: 206.816.6603
Attorneys for Plaintiffs
Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 12 of 12
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 22
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 22 of 110 Page ID#: 702
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 1
THE HONORABLE JOHN C. COUGHENOUR
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
ANTHONY FREY, individually, and on behalf of all others similarly situated, and JAMES HEWETT, individually and on behalf of all others similarly situated,
Plaintiff,
v.
3PD, Inc., a Georgia corporation,
Defendant.
CASE NO. C08-0630
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT
Plaintiffs’ Motion for Final Approval of Class Action Settlement (Dkt. No. 127) came
on for hearing before this Court bon April 12, 2011. The Court, having considered the papers
submitted in support of the motion and having heard oral argument of the parties, and the
Defendant having stated its non-opposition and consent to the Motion, hereby orders as
follows:
The parties, Anthony Frey and James Hewett (“Plaintiffs”) and Defendant 3PD, Inc., on
behalf of itself and its past or present officers, directors, shareholders, employees, agents,
principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers, and
its and their respective successors and predecessors in interest, subsidiaries, affiliates, parents
and attorneys (“Defendant”) have submitted their proposed Stipulation and Settlement
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 1 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 23
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 23 of 110 Page ID#: 703
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 2
Agreement of Class Action Settlement (“Settlement Agreement”) to settle the above-captioned
class action subject to the Court’s approval. The Court granted preliminarily approval of the
Settlement on October 25, 2010. In accordance with the Preliminary Approval Order,
Settlement Class Members have been given Notice of the terms of the Settlement and an
opportunity to object to it or to exclude themselves from the Settlement Class. Having
considered the proposed Settlement, the papers submitted by the parties in support of final
approval of the Settlement, and the argument at the Final Approval Hearing held on April 12,
2011, the Court, pursuant to Rule 54 of the Federal Rules of Civil Procedure, hereby grants
final approval to the Settlement Agreement.
PROCEDURAL HISTORY
This action was originally filed by plaintiff Anthony Frey on April 23, 2008. Plaintiff
alleged that Defendant purposefully misclassified him and a putative class of similarly situated
individuals who provided home delivery services for Defendant by making deliveries to
customers of The Home Depot, Inc. (“Home Depot”) in the State of Washington during the
period April 24, 2005 through the present. Plaintiff brought claims on behalf of himself and the
putative class under RCW 49.46.130 (failure to pay overtime wages), RCW 49.12.450 (illegal
deductions for uniform expenses), RCW 49.52.050, RCW 49.52.060, and WAC 296-126-028
(illegal deductions from ongoing wages), RCW 49.48.010 and WAC 296-126-025 (failure to
pay wages due upon termination), RCW 49.52.050 (willful refusal to pay wages), as well as
claims for unjust enrichment/restitution, rescission, injunctive and declaratory relief, and fraud.
On May 27, 2008, Defendant answered the complaint, filed a counterclaim against
plaintiff Anthony Frey, and filed a third party complaint against Outback Delivery, LLC, a
corporation formed by plaintiff Anthony Frey. Plaintiff Anthony Frey and Outback Delivery,
LLC moved to dismiss the counterclaim and third party complaint, and on July 21, 2008 the
Court dismissed the counterclaim and upheld Defendant’s third party complaint for
indemnification against Outback Delivery, LLC. Outback Delivery, LLC answered
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 2 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 24
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 24 of 110 Page ID#: 704
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 3
Defendant’s third party complaint on July 31, 2008. Plaintiff amended the Complaint on May
1, 2009, adding James Hewett as an additional plaintiff.
On May 14, 2009, Defendant answered the amended complaint, filed a counterclaim
against plaintiff James Hewett, and added a third party complaint against Jambo Transit, LLC.
Outback Delivery answered the amended third party complaint on July 2, 2009. On August 16,
2009, plaintiff James Hewett moved to dismiss the counterclaim, and that motion was granted
on November 3, 2009.
On October 9, 2009, Plaintiffs filed a motion to certify the Class, consisting of: all
individuals who (1) entered into a contract with 3PD to perform delivery services for 3PD,
either on his or her own behalf or on behalf of an entity, and (2) personally performed such
home delivery services for 3PD in the State of Washington during the period April 24, 2005
through the present (the “Class Period”) by making deliveries to customers of The Home
Depot, Inc. (“Home Depot”). The Court heard oral arguments on the motion on February 17,
2010.
On January 20, 2010, the parties attended mediation before Eric B. Lindauer, Esq..
Although the mediation was not successful, the parties continued negotiations with the help of
Mr. Lindauer and ultimately reached agreement on a settlement terms sheet, which has been
supplemented and memorialized in the Settlement Agreement.
The parties conducted significant investigation of the facts and law during the
prosecution of this Action and prior to entering into settlement negotiations and ultimately
reaching a resolution. Such discovery and investigations included, inter alia, the exchange and
analysis of information pursuant to formal and informal discovery, meetings and conferences,
interviews of potential witnesses, and numerous depositions. Counsel for the parties further
investigated the applicable law as applied to the facts discovered regarding Plaintiffs’ claims,
the defenses thereto, and the damages claimed by Plaintiffs.
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 3 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 25
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 25 of 110 Page ID#: 705
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 4
Plaintiffs recognize the expense and length of continued proceedings necessary to
continue the litigation against Defendant through trial and any possible appeals. Plaintiffs have
also taken into account the uncertainty and risk of the outcome of further litigation, and the
difficulties and delays inherent in such litigation. Plaintiffs are also aware of the burdens of
proof necessary to establish liability for the claims asserted in the Action, Defendant’s defenses
thereto, and the difficulties in establishing damages for themselves and the Class. Plaintiffs
have also taken into account the settlement negotiations conducted by the Parties. Based on the
foregoing, Plaintiffs have determined that the settlement is fair, adequate and reasonable, and is
in the best interests of all Class Members.
The Settlement Class Members are all individuals who (1) entered into a contract with
Defendant to provide home delivery services either on his or her own behalf or on behalf of an
entity; (2) provided such services for Defendant by making or arranging deliveries to Home
Depot customers in the State of Washington during the period April 24, 2005 through October
25, 2010; and (3) who did not exclude themselves from the Settlement Class by submitting a
Request for Exclusion to Rust Consulting, Inc. on or before March 18, 2011.
Plaintiffs have claimed and continue to claim that the Released Claims (as defined
below) have merit and give rise to liability on the part of Defendant. Neither the Settlement
Agreement nor any documents referred to therein, nor any action taken to carry out the
Settlement Agreement is, or may be construed as or may be used as, an admission by or against
Plaintiffs or Class Counsel as to the merits or lack thereof of the claims asserted.
Defendant contends that all of the Class Members were properly categorized as
independent contractors, and have been compensated in compliance with the law, and that its
conduct was not willful or improper with respect to any alleged failure to pay any
compensation (including but not limited to final compensation, overtime, or otherwise).
Defendant has denied and continues to deny each of the claims and contentions alleged by
Plaintiffs in the Action. Defendant denies any wrongdoing or legal liability arising out of any
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 4 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 26
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 26 of 110 Page ID#: 706
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 5
of the facts or conduct alleged in the Action and believes that it has valid defenses to the claims
asserted in the Action. Neither the Settlement Agreement, nor any document referred to or
contemplated herein, nor any action taken to carry out the Settlement Agreement, may be
construed as, or may be used as an admission, concession or indication by or against Defendant
of any fault, wrongdoing or liability whatsoever.
Pursuant to the Order Preliminarily Approving Class Action Settlement, Conditionally
Certifying Settlement Class, and Approving Form and Method of Class Notice (the
“Preliminary Approval Order”), dated October 25, 2010, this Court granted preliminary
approval to the Settlement Agreement and conditionally certified the Class. The Preliminary
Approval Order also approved the proposed form of Notice and the Notice plan. The Court
entered the Preliminary Approval Order after review and consideration of all of the papers filed
in connection herewith, and the oral presentations made by counsel at the hearing.
In compliance with the Preliminary Approval Order, Notice was sent to all Class
Members via first class mail. The Notice process was timely completed.
This matter is now before the Court on Plaintiffs’ Motion for Final Approval of the
Class Action Settlement, including approval of the Incentive Award for the two named
Plaintiffs and Class Counsel’s Application for an Award of Attorneys’ Fees and Expenses. The
Court has read, heard, and considered all the pleadings and documents submitted, and the
presentations made in connection with the motion and application which came on for hearing
on April 12, 2011.
This Court finds that the proposed Settlement Agreement was the product of serious,
informed, non-collusive negotiations, has no obvious deficiencies, and does not improperly
grant preferential treatment to any individuals. The Court further finds that the settlement is
fair, reasonable, and adequate and that Plaintiffs have satisfied the standards for final approval
of a class action settlement under federal law.
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 5 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 27
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 27 of 110 Page ID#: 707
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 6
The Court has determined that certification of a settlement class is appropriate under
these circumstances.
Based on the foregoing, IT IS HEREBY ORDERED THAT:
This Court has jurisdiction over the claims of the Settlement Class Members asserted in
this proceeding and over all parties to the action. This action is a civil action of which this
Court has original jurisdiction under 28 U.S.C. § 1332 in that it is a civil action between
citizens of different states and the matter in controversy exceeds the sum of $75,000, exclusive
of interest and costs, and the Settlement Class Members’ claims collectively exceed the sum of
$5,000,000, exclusive of interest and costs. Venue is proper in the Western District of
Washington.
For the reasons set forth in the Preliminary Approval Order and in the transcripts of the
proceedings of the Preliminary Approval Hearing and the Final Approval Hearing, which are
adopted and incorporated herein by reference, this Court finds that the applicable requirements
of Federal Rule of Civil Procedure 23 have been satisfied with respect to the Settlement Class
and the proposed settlement. For the purposes of settlement and final approval of the
Settlement Agreement, the Court hereby makes final its earlier provisional certification of the
Settlement Class defined as “all individuals who (i) entered into a contract with 3PD, Inc. to
provide delivery services for 3PD, Inc. either on his or her own behalf or on behalf of an entity;
and (ii) provided such home delivery services for 3PD, Inc. by making or arranging deliveries
to customers of The Home Depot, Inc. in the State of Washington during the period April 24,
2005 through the date of this order.”
The Notice given to the Settlement Class Members fully and accurately informed the
Class Members of all material elements of the proposed Settlement Agreement and of their
opportunity to object thereto or to exclude themselves from the Settlement Class; was the best
Notice practicable under the circumstances; was valid, due, and sufficient notice to all
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 6 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 28
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 28 of 110 Page ID#: 708
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 7
Settlement Class Members; and complied fully with the laws of the State of Washington, the
Federal Rules of Civil Procedure, the United States Constitution, due process, and other
applicable law. A full opportunity has been afforded to the Settlement Class Members to
participate in this hearing, and all Settlement Class Members and other persons wishing to be
heard have been heard. Accordingly, the Court determines that all Settlement Class Members
who did not timely and properly execute a Request for Exclusion (“Settlement Class
Members”) are bound by this Order.
The Court has reviewed the Settlement Agreement and finds that the settlement is fair,
adequate, and reasonable when balanced against the possible outcome of further litigation
relating to the alleged misclassification of the Settlement Class Members, liability and
damages. The Court finds further that extensive investigation, informal discovery, and research
have been conducted such that counsel for all parties are able to reasonably evaluate their
respective positions. The Court finds that the Settlement Agreement has been reached after
intensive, serious, and non-collusive, arms-length negotiations.
Following Notice, no Settlement Class Member objected to the terms of the Settlement
Agreement. Having considered the papers submitted in support of and in response to the
objections, and having heard oral argument of the parties, the Court hereby finds that none of
the objections raised call into question the settlement's fairness, adequacy, and reasonableness
under all of the circumstances.
Pursuant to Federal Rule of Civil Procedure 23(e), the Court hereby grants final
approval to the Settlement Agreement and finds it fair, reasonable and adequate, and in the best
interests of the Settlement Class. Accordingly, the Court hereby directs that the settlement be
effected in accordance with the Settlement Agreement and the following terms and conditions.
With this final approval of the proposed Settlement Agreement, it is hereby ordered that
any and any and all charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 7 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 29
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 29 of 110 Page ID#: 709
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 8
and expenses (including attorney fees and costs), known or unknown, at law or in equity, which
the Settlement Class Members may now have against the Released Parties, as defined in the
Settlement Agreement arising out of or in any way connected with their provision or
performance of deliveries to customers of The Home Depot, Inc. in the State of Washington for
Defendant prior to the date of the Settlement Agreement, including but not limited to (a) any
facts, transactions, events, policies, occurrences, acts, disclosures, statements, omissions or
failures to act, which are or could be the basis of claims that Defendant improperly classified
the Settlement Class Members as independent contractors, and (b) any and all claims for
Washington wage and hour law violations; illegal deductions from wages; unjust
enrichment/quantum meruit; employee benefits; rescission and restitution; fraud;
misrepresentation; injunctive relief; and penalties; the Fair Labor Standards Act, as amended;
the Employee Retirement Income Security Act, as amended; and any and all federal, state and
local statutes, ordinances, regulations, rules and other laws, and any and all claims based on
constitutional, statutory, common law or regulatory grounds as well as any other claims based
on theories of wrongful or constructive discharge, breach of contract or implied contract,
promissory estoppel, or damages under any other federal, state or local statutes, ordinances,
regulations, rules or laws are hereby released. This release is for any and all relief, no matter
how denominated, including, but not limited to, back pay, front pay, employee benefits,
restitution, vacation pay, bonuses, compensatory damages, tortious damages, punitive damages,
interest, penalties, attorney fees, and costs.
The Court finds that payment of an incentive award of $15,000 to each of the named
Plaintiffs is fair and reasonable in light of the benefits they provided to the Settlement Class
and Class Counsel. Payment of such Incentive Award is hereby ordered.
The Court awards to Class Counsel attorneys' fees in the amount of $337,500,
constituting 30% of the total Settlement Fund, and expenses of $47,613, for all past and
remaining work until the completion of this matter. Such awards, made in accordance with the
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 8 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 30
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 30 of 110 Page ID#: 710
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 9
terms of the Settlement Agreement, are fair and reasonable under the circumstances. In making
its award of attorneys' fees and costs, the Court has considered the following factors: (a) the
contingent nature of this action; (b) the time and expense incurred by Class Counsel; (c) the
experience, reputation and ability of Class Counsel and the skill they displayed in litigation;
and (d) the results achieved under the Settlement Agreement.
The Court orders the following schedule of dates for further proceedings: Payment of Settlement Fund to Settlement Administrator:
Within five (5) days of the later of the following: (1) thirty-three (33) days have passed after service of notice of entry of the Settlement Order on the Parties to the Action and all objectors to the Settlement Agreement, if any, without any appeals being taken; or (2) if appeals or requests for review have been taken, the date upon which any orders affirming the Settlement Order or denying review after exhaustion of all appellate remedies have been entered (the “Effective Date”), Defendant shall pay the entire $1,125,000 Settlement Fund to the Settlement Administrator.
Payment of Attorneys’ Fees and Expenses to Plaintiffs’ Counsel:
Within eight (8) business days of the Effective Date.
Payment of Incentive Award to Plaintiffs:
Within eight (8) business days of the Effective Date.
Calculation and Distribution of the remaining Settlement Funds to the Authorized Claimants in Accordance With the terms of the Settlement Agreement:
Within thirty (30) calendar days of the Effective Date.
Distribution of any cy presaward:
Within two hundred and ten (210) calendar days of the Effective Date.
Class Counsel files certification of completion of administration of Settlement:
Within two hundred and forty (240) days of Effective Date.
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 9 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 31
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 31 of 110 Page ID#: 711
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 10
Following payment in full of all amounts awarded in this Final Order, and Class
Counsel’s filing of its certification of completion of administration of Settlement Agreement,
the Court shall enter an order closing the case.
Without affecting the finality of this Final Order, the Court reserves continuing and
exclusive jurisdiction over the parties to the Settlement Agreement to administer, supervise,
construe, and enforce the Settlement Agreement in accordance with its terms for the mutual
benefit of the parties. Under Federal Rule of Civil Procedure 54, there being no just reason for
delay, the Court, in the interests of justice, expressly directs the Clerk of the Court to enter this
Final Order, and hereby decrees that, upon entry, it be deemed final.
In the manner articulated above, Plaintiffs’ Motion for Final Approval of Class Action
Settlement is GRANTED. (Dkt. No. 127.) The Clerk is DIRECTED to close the case.
DATED this 4th day of May 2011.
A John C. Coughenour UNITED STATES DISTRICT JUDGE
Case 2:08-cv-00630-JCC Document 140 Filed 05/04/11 Page 10 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 32
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 32 of 110 Page ID#: 712
EXHIBIT 2
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 33
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 33 of 110 Page ID#: 713
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 1 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
THE HONORABLE JAMES L. ROBART
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
KRISTIN CARIDEO, MICHAEL OMSTEAD, MELISSA MALLOY, LISA SMITH, and CATHERINE CANDLER, individually and on behalf of all others similarly situated,
Plaintiffs,
v.
DELL, INC., a Delaware Corporation,
Defendant.
No. C06-1772 JLR
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS
I, Beth E. Terrell, declare as follows:
1. I am a member of the law firm of Terrell Marshall & Daudt PLLC (“TMD”),
counsel of record for Plaintiffs in this matter. I am admitted to practice before this Court and
am a member in good standing of the bars of the States of Washington and California.
I respectfully submit this declaration in support of Plaintiffs’ motion for preliminary approval
of the above-captioned class action. Except as otherwise noted, I have personal knowledge of
the facts set forth in this declaration, and could testify competently to them if called upon to do
so.
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 1 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 34
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 34 of 110 Page ID#: 714
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 2 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1. TMD is a law firm in Seattle, Washington, that focuses on complex civil and
commercial litigation with an emphasis on consumer protection, product liability, employment,
real estate, and personal injury matters. The attorneys of TMD have extensive experience in
class actions, collective actions, and other complex matters. They have been appointed lead or
co-lead class counsel in numerous cases at both the state and federal level. They have
prosecuted and defended a variety of multi-million-dollar disputes involving consumer fraud,
securities fraud, product defect, and anti-trust issues. The defendants in these cases have
included companies such as Walmart, Microsoft, Best Buy, Toyota, Sallie Mae, Comcast,
ABM Industries, Inc., AT&T, T- Mobile, Weyerhaeuser, Behr Products, and American
Cemwood.
2. A founding member of TMD, I concentrate my practice in complex litigation,
including the prosecution of consumer, defective product, anti-trust, and wage and hour class
actions. I have served as co-lead counsel on numerous multi-state and nationwide class actions.
I also handle a variety of employment issues including employment discrimination, restrictive
covenant litigation, and pre-litigation counseling and advice. I received a B.A., magna cum
laude, from Gonzaga University in 1990. In 1995, I received my J.D. from the University of
California, Davis School of Law, Order of the Coif. Prior to forming TMD in May 2008, I was
a member of Tousley Brain Stephens PLLC.
3. TMD is currently involved in litigating the following consumer protection class
actions:
� Cooper, et al. v. American Honda Motor Co., Inc., filed in 2010 on behalf of owners of 2006–2010 Honda Civics containing defective visors which cause them to split and dangle in the face of drivers and passengers.
� Mlejnecky v. Olympus Imaging Am. Inc., filed in 2010 on behalf of owners of cameras containing defects that cause the cameras to fail or malfunction when underwater or when dropped, despite Olympus’s representations that the cameras were waterproof and shockproof.
�
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 2 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 35
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 35 of 110 Page ID#: 715
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 3 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
� Brown v. U.S. Bank, N.A., filed in 2010 on behalf of Washington consumers who from October 13, 2006 through the present incurred overdraft fees on debit card transactions as a result of U.S. Bank’s practice of re-sequencing transactions from highest to lowest.
� Milligan, et al. v. Toyota Motor Sales, Inc., filed in 2009 on behalf of owners of 2001 – 2003 Toyota RAV4s containing defective Electronic Computer Modules (“ECM”) which cause harsh shifting conditions and permanent damage to the transmissions.
� Arthur v. Sallie Mae, filed in 2009 on behalf of consumers who received automated, pre-recorded phone calls on their personal cell phones in violation of the TCPA.
� Kitec Consolidated Cases, in which TMD serves as co-counsel in a national class action lawsuit against the manufacturers of defective hydronic heating and plumbing systems.
� Seraphin v. AT&T Internet Services, Inc., et al. is a multi-state class action filed in 2009 on behalf of AT&T internet customers who paid $20 a month or less for internet service and were assessed and Early Termination Fee (“ETF”) when they cancelled service.
� Qwest Price for Life and ETF Class Actions, filed on behalf of consumers whose rates for high speed internet service were increased despite a “Price for Life” contract agreement, or who were charged an Early Termination Fee (“ETF”) for cancelling their high speed internet service prior to the end of their term commitment, even if they did not knowingly agree to a term commitment and were not told about the ETF prior to cancelling service.
� Comcast Robocalling Class Actions, two consolidated cases filed on behalf of consumers who received automated, pre-recorded solicitation phone calls from Defendants in violation of the Washington Consumer Protection Act.
� Fine v. T-Mobile USA, Inc., a class action brought on behalf of consumers who participated in a promotional program known as “FLY FREE in ’08.” Despite having satisfied the terms of the offer, Plaintiff and other members of the class never received the free round-trip flight that T-Mobile promised.
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 3 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 36
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 36 of 110 Page ID#: 716
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 4 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
� In re General Motors OnStar Litigation, a consolidated group of lawsuits consumers brought against multiple auto manufacturers due to the failure of analog OnStar equipment in their vehicles and the resulting termination of OnStar service.
4. In the fall of 2006, I began investigating problems that Dell’s Washington
customers were experiencing with their Dell Inspiron 1100, 1150, 5100, and 5160 laptops. I
knew that Dell had recently settled a California-only case in which consumers alleged that the
Dell Inspiron 5150 model contained design defects. I believed that the 1100, 1150, 5100, and
5160 models contained the same defect as the 5150 model. We prepared and filed a complaint
on behalf of a Washington-only class. After the complaint was filed, Dell promptly moved to
compel arbitration.
5. In November 2009, Plaintiffs commenced merits-related discovery, propounding
eleven interrogatories and forty-five requests for production to Dell. Plaintiffs also propounded
fifteen interrogatories and fifteen requests for production targeted at Dell’s document-retention
policies and procedures for maintaining electronically-stored information. In response, Dell
produced thousands of pages of documents, including but not limited to advertisements,
internal research and development information, repair manuals, owner’s manuals, and product
guides. Dell also produced databases containing sales and customer service information. Over
the course of several weeks, staff at TMD carefully reviewed the documentary evidence
produced by Dell and engaged in related investigations. The information learned through this
investigation was invaluable during settlement negotiations.
6. Throughout the litigation, the attorneys and paralegals at my firm and at my
former firm, Tousley Brain Stephens PLLC (“TBS”), spent a considerable amount of time
interviewing current and former Dell customers affected by the alleged defects. These
interviews proved helpful in allowing counsel to assess the strengths and weaknesses of the
class claims.
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 4 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 37
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 37 of 110 Page ID#: 717
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 5 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7. Following preliminary communications regarding settlement, the parties agreed
to mediate the Plaintiffs’ claims with well-respected mediator Teresa Wakeen. During the
course of the mediation, which was held on June 16, 2010, the parties engaged in negotiations
that were at all times adversarial, non-collusive, and at arm’s length. Throughout the
negotiation process, Dell steadfastly maintained that the Inspiron models at issue do not contain
inherent defects and Plaintiffs’ counsel adamantly disagreed. With the assistance of Ms.
Wakeen, we ultimately reached an agreement in principle on all substantive terms, culminating
in a nationwide settlement agreement.
8. After the parties had reached agreement on relief for the class, the parties began
arm’s-length negotiations related to attorneys’ fees and costs and stipends for the named
Plaintiffs, again with the assistance of Ms. Wakeen, and those negotiations resulted in an
agreement in principle regarding attorneys’ fees and costs.
9. TMD had primary responsibility for preparing Plaintiffs’ motion for final
approval of class action settlement.
10. As of today’s date, TMD has received one objection to the settlement.
However, on November 11, 2010 TMD received a letter from the objector stating that the
objection had been withdrawn.
11. The total number of hours expended on this litigation by TMD is 548.8 hours.
The total lodestar for TMD through November 12, 2010, calculated at the billing rates charged
in similar cases is $218,805.50. The following table lists the TMD attorneys and professional
personnel and summarizes their work on the case that is included in the lodestar figure for
TMD, as well as the current hourly rates. I supervised each of the professionals listed on the
table. The hourly rate shown for any attorney or paralegal who is no longer employed with
TMD reflects the last rate that applied at the time of their employment:
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 5 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 38
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 38 of 110 Page ID#: 718
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 6 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
ATTORNEYS
Beth E. Terrell Partner at Terrell Marshall & Daudt PLLC J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995
Researched and analyzed various legal and factual issues; worked on case strategy; worked on memoranda, correspondence and pleadings; prepared for hearings before Court of Appeals; argued before Court of Appeals; prepared for mediation; attended mediation sessions; analyzed and worked on damages issues; analyzed and worked on discovery issues; participated in discovery conferences; worked on settlement issues; prepared for and defended deposition of class representative; worked on expert witness matters; worked on document review issues.
$600 146.9 $88,140
Jennifer Rust Murray Partner at Terrell Marshall & Daudt PLLC J.D. from Univ. of Washington School of Law, 2005
Worked on mediation brief and preliminary approval motion and supporting papers; worked on amended complaint; prepared final approval motion and supporting papers.
$450 40.9 $18,405
Kimberlee L. Gunning Partner at Terrell Marshall & Daudt PLLC J.D. from Univ. of Washington School of Law, 2004
Worked on pleadings and memoranda; worked on expert witness issues; researched and analyzed various legal issues; worked on discovery matters; worked on settlement issues; worked on amended complaint; prepared for mediation.
$425 57.3 $24,352.50
Erika L. Nusser Associate at Terrell Marshall & Daudt PLLC J.D. from University of San Francisco School of Law, 2008.
Analyzed and researched various legal and factual issues; worked on pleadings and memoranda.
$275 29.7 $8,167.50
Marc C. Cote Associate at Terrell Marshall & Daudt PLLC J.D. from Univ. of Washington School of Law, 2007
Worked on discovery matters; worked on initial disclosures; worked on pleadings and memoranda.
$295 12.9 $3,805.50
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 6 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 39
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 39 of 110 Page ID#: 719
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 7 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
Lorraine Lewis Phillips Contract Attorney at Terrell Marshall & Daudt PLLC
Researched and analyzed legal issues; worked on memoranda and pleadings.
$425 39.4 $16,745
Lisa Vanderford Anderson Contract Attorney at Terrell Marshall & Daudt PLLC
Researched various legal issues; worked on memoranda and pleadings.
$425 31.4 $13,345
PARALEGALS Eden B. Nordby Paralegal at Terrell Marshall & Daudt PLLC since June 2008 BA. Sarah Lawrence College, 2005.
Responded to class member inquiries; worked with claims administrator on class member issues and responses to common questions regarding claims process; worked on correspondence, pleadings and discovery responses; coordinated scheduling of depositions with Plaintiffs; worked on court filings; reviewed client documents; worked on document production; worked on settlement issues; worked on deposition preparation; worked on motion for preliminary approval of settlement.
$275 43.3 $11,907.50
Bradford Kinsey Legal Secretary at Terrell Marshall & Daudt PLLC since October 2009. AA as a legal assistant from Edmonds Community College, 1989. 21 years of experience working in civil litigation representing both plaintiffs and defendants.
Worked on correspondence, pleadings and discovery responses; assisted with mediation preparation; worked on court filings; served pleadings and other documents; coordinated hearing scheduling with Court.
$225 62.1 $13,972.50
Jennifer J. Boschen Paralegal at Terrell Marshall & Daudt PLLC from May 2008 – Jan 2009 & March 2010 - present. BA from Rutgers
Reviewed and analyzed document production; worked on document production issues; worked on memoranda and correspondence; prepared for mediation; researched various factual issues;
$250 64.6 $16,150
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 7 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 40
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 40 of 110 Page ID#: 720
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 8 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
University, 1998
Tova MacLennan�Paralegal at Terrell Marshall & Daudt PLLC from January 2009 – March 2010. B.A. from Seattle Univ.
Worked on pleadings; served documents. $200 10.5 $2,100
LEGAL ASSISTANTS Kait Heacock Legal Assistant at Terrell Marshall & Daudt PLLC B.A. from Seattle Pacific Univ., 2009.
Worked on pleadings and correspondence; worked on expert witness issues; worked on court filings; worked on production.
$175 9.8 $1,715
TOTAL: 548.8 $218,805.50
12. Some of the work accomplished on this case was performed when I was an
attorney at Tousley Brain Stephens, PLLC (“TBS”). The total number of hours expended on
this litigation by TBS is 659.4 hours. The total lodestar for TBS through November 12, 2010,
calculated at the billing rates charged in similar cases is $232,500. The following table lists the
TBS attorneys and professional personnel and summarizes their work on the case that is
included in the lodestar figure for TBS, as well as the current hourly rates. I supervised each of
the professionals listed on the chart while I was a partner at TBS. The hourly rate shown for
any attorney or paralegal who is no longer employed with TBS reflects the last rate that applied
at the time of their employment:
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
ATTORNEYS
Beth E. Terrell Member of Tousley Brain Stephens
Researched and analyzed various legal and factual issues; worked on discovery matters; worked on pleadings, correspondence and
$560 70.8 $39,648.00
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 8 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 41
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 41 of 110 Page ID#: 721
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 9 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
PLLC from 1996 – 2008. J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995.
memoranda; prepared for and attended hearing; reviewed documents; met and conferred with co-counsel and opposing counsel on various matters; worked on third party subpoenas and document production issues; worked on scheduling issues and case strategy; worked on expert issues.
Mary B. Reiten Member of Tousley Brain Stephens PLLC.J.D. from the University of California Hastings College of Law, 1998.
Worked on discovery matters; researched various legal and factual issues; worked on pleadings, memoranda and correspondence; reviewed document production; interviewed class members; prepared for and participated in conferences; prepared for and attended hearing; worked on third party subpoenas and document production issues.
$465 236.7 $110,065.50
Jennifer Rust Murray Associate at Tousley Brain Stephens from 2005 – 2008. J.D. from Univ. of Washington School of Law, 2005.
Researched various legal and factual issues; worked on pleadings and memoranda.
$310 10.7 $3,317.00
Kimberlee L. Gunning Associate at Tousley Brain Stephens from 2003 – 2008. J.D. from University of Washington School of Law, 2004.
Researched various legal and factual issues; worked on pleadings and memoranda; prepared for hearing before Court of Appeals.
$325 85.5 $27,787.50
Michael J. Estok Associate at Tousley Brain Stephens PLLC from 2003 – 2009. J.D. from University of Washington School of Law in 2004.
Researched various legal and factual issues; worked on pleadings and memoranda.
$325 16.8 $5,460.00
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 9 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 42
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 42 of 110 Page ID#: 722
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 10 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
A. Janay Ferguson Associate at Tousley Brain Stephens PLLC.J.D. from Seattle University School of Law, magna cum laude, 2000.
Reviewed documents; worked on pleadings, correspondence and memoranda; researched and analyzed various legal and factual issues; interviewed class members.
$375 15.0 $5,625.00
Cheryl D. Kringle Associate at Tousley Brain Stephens PLLC.
Researched and analyzed various legal and factual issues; worked on pleadings.
$325 6.9 $2,242.50
PARALEGALS Carol D. Bonifaci Senior Paralegal at Tousley Brain Stephens PLLC. B.A. from University of Washington, 1971.
Reviewed documents produced by Attorney General in response to public disclosure request.
$265 15.6 $4,134.00
Amy E. Stanton. Litigation Paralegal at Tousley Brain Stephens PLLC from 2000 to 2007. B.A. from St. John’s College. Second B.A. from the University of Montana, and Paralegal Certificate from the University of Washington.
Worked on public disclosure request to Attorney General; researched factual issues.
$250 2.5 $625.00
Jennifer J. Boschen Litigation Paralegal at Tousley Brain Stephens from June 2001 – May 2008. BA from Rutgers University, 1998
Telephone conferences with class members. $250 0.7 $175.00
Gayle L. Neligan. Litigation Paralegal at Tousley Brain
Worked on pleadings; worked on court filings; worked on service of subpoena.
$180 7.5 $1,350.00
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 10 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 43
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 43 of 110 Page ID#: 723
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 11 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
Stephens PLLC from 1995 to 2007.
DOCUMENT CLERKS Eden B. Nordby Legal assistant and litigation clerk at Tousley Brain Stephens PLLC from February 2006 – May 2008. BA from Sarah Lawrence College, 2005.
Requested additional documents from Attorney General; reviewed document production; worked on third party subpoenas; interviewed potential class members; maintained class member database; worked on pleadings, memoranda and correspondence; worked on court filings; researched consumer complaints.
$180 156 $28,080.00
Brittany Millay Document clerk at Tousley Brain Stephens PLLC.
Reviewed and indexed document production. $115 34.7 $3,990.50
TOTAL: 659.4 $232,500.00
13. TMD and TBS set their rates for attorneys and staff members based on a variety
of factors, including among others: the experience, skill and sophistication required for the
types of legal services typically performed; the rates customarily charged in similar matters;
and the experience, reputation and ability of the attorneys and staff members. For personnel
who are no longer employed by the firm, the lodestar calculation is based upon the billing rates
for such personnel in his or her final year of employment by the firms. The schedules
contained in paragraphs 11–12 were prepared from contemporaneous, daily time records
regularly prepared and maintained by the firms in the regular course of business.
14. I was the attorney primarily responsible for reviewing the work of all other
attorneys, law clerks, paralegals, and document clerks listed in the schedules set forth in
paragraphs 11–12. I supervised all work to avoid duplication of effort and to encourage
efficiency. I reviewed the billing records and reduced or eliminated time where necessary. The
work performed by the law clerks, paralegals, and document clerks was work that required
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 11 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 44
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 44 of 110 Page ID#: 724
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 12 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
sufficient knowledge of legal concepts and that I or another attorney would have had to
perform absent such assistance. The law clerks identified above were all students currently
enrolled in or recently graduated from an accredited law school. The paralegals and document
clerks identified were all qualified to perform substantive legal work based on their training and
past experience working for attorneys, including attorneys outside of TMD and TBS’s offices.
15. A sample of the federal and state courts since 2008 that have approved TMD
and TBS’s standard billing rates and reimbursement of costs as reasonable are:
� July 2009, in Barnett, et al. v. Wal-Mart Stores, Inc., Case No. 01-2-24553-8 SEA (Wash. Sup. Ct. King County);
� October 2008, in Cole v. Wells Fargo Bank, N.A., No. 07-0916 RSL (W.D. Wash.);
� April 2008, in Grays Harbor Adventist Christian School v. Carrier Corp.,No. 05-5437 RBL (W.D. Wash.);
� September 2010, in Odom v. Microsoft Corp., Case No. 04-2-10618-4 SEA (Wash. Sup. Ct. King County);
� July 2009, in Splater v. Thermal Ease Hydronic Systems, Inc., Case No. 03-2-33553-3 SEA (Wash. Sup. Ct. King County); and
� November 2008, in Zwicker v. General Motors Corp., No. C07-0291 JCC (W.D. Wash.).
16. The $9,980.08 in expenses and cost liabilities TMD reasonably incurred in the
prosecution of this matter are set forth in the table attached hereto as Exhibit 1.
17. The $7,283.36 in expenses and cost liabilities TBS reasonably incurred in the
prosecution of this matter are set forth in the table attached hereto as Exhibit 2.
18. TMD’s commitment of time and labor to this case will continue beyond the end
of the claims period on April 5, 2011.
19. The named Plaintiffs should be recognized for their substantial service to and
efforts on behalf of the proposed settlement class. The named Plaintiffs greatly assisted Class
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 12 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 45
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 45 of 110 Page ID#: 725
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 13 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Counsel in investigating the claims, preparing the complaint, contacting additional witnesses,
and understanding the factual background of the lawsuit. Kristin Carideo and Catherine
Candler responded to written discovery and Ms. Carideo sat for a deposition. Both were ready
and willing to testify at trial and were consulted throughout the case and during mediation
20. Attached hereto as Exhibit 3 is a true and correct copy of the Settlement
Agreement reached between the parties. Based�on my professional experience, and taking into
consideration the risks of continued litigation versus the certain and substantial relief afforded
by the Settlement, it is my opinion that the Settlement is fair, adequate and reasonable, and in
the best interests of the Class, and merits final approval. It is also my view that, in light of the
time and costs expended by Class Counsel, the legal standards governing the award of fees and
costs in class actions, and the results obtained, the fees and costs requested by Class Counsel
are modest, and well-warranted.
I declare under penalty of perjury under the laws of the State of Washington and the
United States that the foregoing is true and correct.
EXECUTED at Seattle, Washington this 15th day of November, 2010.
/s/ Beth E. Terrell, WSBA #26759 Beth E. Terrell, WSBA #26759
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 13 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 46
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 46 of 110 Page ID#: 726
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 14 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
CERTIFICATE OF SERVICE
I, Beth E. Terrell, hereby certify that on November 15, 2010, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send notification of
such filing to the following:
Jeffrey I. Tilden, WSBA #12219 [email protected] Rosenberger, WSBA #17730 [email protected] TILDEN THOMAS & CORDELL LLP1001 Fourth Avenue, Suite 4000 Seattle, Washington 98154-1007 Telephone: (206) 467-6477 Facsimile: (206) 467-6292
Paul Schlaud [email protected] Brightwell [email protected] G. Reeves [email protected] O’Carroll [email protected] Pierce [email protected] & BRIGHTWELL, LLP221 West Sixth Street, Suite 1000 Austin, Texas 78701-3410 Telephone: (512) 334-4500 Facsimile: (512) 334-4492
Attorneys for Defendant
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 14 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 47
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 47 of 110 Page ID#: 727
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 15 CASE NO. C06-1772 JLR
TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
DATED this 15th day of November, 2010.
TERRELL MARSHALL & DAUDT PLLC
By: /s/ Beth E. Terrell, WSBA #26759Beth E. Terrell, WSBA #26759 Email: [email protected] Fremont Avenue North Seattle, Washington 98103 Telephone: (206) 816-6603 Facsimile: (206) 350-3528
Attorneys for Plaintiffs
Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 15 of 84
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 48
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 48 of 110 Page ID#: 728
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 1 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 49
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 49 of 110 Page ID#: 729
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 2 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 50
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 50 of 110 Page ID#: 730
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 3 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 51
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 51 of 110 Page ID#: 731
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 4 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 52
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 52 of 110 Page ID#: 732
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 5 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 53
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 53 of 110 Page ID#: 733
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 6 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 54
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 54 of 110 Page ID#: 734
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 7 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 55
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 55 of 110 Page ID#: 735
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 8 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 56
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 56 of 110 Page ID#: 736
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 9 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 57
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 57 of 110 Page ID#: 737
Case 2:06-cv-01772-JLR Document 162 Filed 12/17/10 Page 10 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 58
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 58 of 110 Page ID#: 738
EXHIBIT 3
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 59
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 59 of 110 Page ID#: 739
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 1 CASE NO. 01-2-24553-8 SEA3775/001/127012.1
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
THE HONORABLE JULIE SPECTOR Department 3
Noted for hearing: July 20, 2009 at 9:00 am With Oral Argument
IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR KING COUNTY
DEBRA BARNETT, GEORGIE KNOLES, and BELLA BLAUBERGS, on their own behalf and on behalf of all others similarly situated,
Plaintiffs,
v.
WAL-MART STORES, INC., a Delaware corporation, d/b/a WAL-MART, d/b/a SAM’S CLUB, d/b/a SUPERCENTER,
Defendant.
No. 01-2-24553-8 SEA
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
I, Beth E. Terrell, declare as follows:
1. I make this declaration based on my own personal knowledge. If called upon to
testify, I could and would testify competently to the truth of the matters stated herein.
2. I am a member of Terrell Marshall & Daudt, PLLC (“TMD”) located in Seattle,
Washington. I am Co-Lead Class Counsel representing Plaintiffs Debra Barnett, Georgie
Knoles, Bella Blaubergs, and the Class in this matter.
3. I am the lead attorney from TMD in the instant case. My qualifications are set
forth in the declaration I submitted in support of Plaintiffs’ Motion for Preliminary Approval of
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 60
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 60 of 110 Page ID#: 740
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 2 CASE NO. 01-2-24553-8 SEA3775/001/127012.1
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Class Action Settlement, (Dkt. No. 778).
4. TMD has incurred additional fees and costs in this matter since Plaintiffs
submitted their Motion for Preliminary Approval. The additional time has been spent working
with the claims administrator and notice provider, as well as responding to calls and emails
from class members about the terms of the Settlement. To date, TMD has incurred a total of
$1,009,765.50 in attorneys’ fees and $128,371.34 in costs in this matter. We anticipate that our
firm will incur additional fees and costs in the amount of approximately $20,000 after the date
of this submission, including time spent communicating with class members and preparing for
and attending the Final Fairness Hearing. Attached hereto as Exhibit A is a breakdown of our
total fees and costs to date.
5. TMD personnel have spoken with at least 100 Class Members about the terms of
the Settlement. I have personally spoken to around a dozen Class Members. The Class
Members with whom I have spoken have all been very happy to hear that the case settled.
They have also expressed gratitude for the work done by Plaintiffs’ counsel and have been
satisfied with the amount of the settlement.
I declare under penalty of perjury under the laws of the State of Washington that the
foregoing is true and correct.
Executed this 10th day of July, 2009, in Seattle, Washington.
S/BETH E. TERRELLSTATE BAR NUMBER 26759TERRELL MARSHALL & DAUDT PLLC 3600 FREMONT AVENUE N.SEATTLE, WA 98103TELEPHONE: (206) 816-6603FAX: (206) 350-3528E-MAIL: [email protected]
By:Beth E. Terrell, WSBA #26759
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 61
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 61 of 110 Page ID#: 741
EXHIBIT A
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 62
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 62 of 110 Page ID#: 742
Wal�Mart�Stores,�Inc.�—�3775�001�Class�Action�Against�
(05/23/2008�through�07/10/2009)���
COSTS��������
Reproductions� �$������������������������������2,175.75��Postage/Delivery/Notice� �$������������������������������1,756.81��Messenger� �$������������������������������������43.00��Outside�Professional�Services/Advances �$��������������������������120,000.00��Computer�Research� �$�������������������������������1,763.70��Meals� �$����������������������������������262.33��Travel�Expenses� �$�������������������������������2,259.27��Witness�Fees/Expenses� �$������������������������������������25.00��Miscellaneous� �$������������������������������������85.48��
Total� �$�������������������������128,371.34��
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 63
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 63 of 110 Page ID#: 743
Wal�Mart�Stores,�Inc.�—�3775�001�Class�Action�Against�
(05/23/2008�through�07/10/2009)���
FEES1��
Name� Level� Hours Rate/Hour Total�Fees�
Beth�E.�Terrell� Partner� 694.4 560� �$�����������������388,864.00��Toby�J.�Marshall� Partner� 265.8 475� �$�����������������126,255.00��Jennifer�R.�Murray� Partner� 140.6 310� �$�������������������43,586.00��Michael�D.�Daudt� Partner� 0.3 560� �$�������������������������168.00��Erika�L.�Nusser� Associate� 2.8 275� �$�������������������������770.00�Jessica�Fritz� Law�Clerk� 335.8 265� �$�������������������88,987.00��Brian�Howe� Law�Clerk� 278.6 265� �$�������������������73,829.00��Natalie�D.�Findley� Law�Clerk� 7.5 265� �$����������������������1,987.50��Jennifer�J.�Boschen� Paralegal� 971.8 205� �$�����������������199,219.00��Eden�B.�Nordby� Paralegal� 613.6 125� �$�������������������76,700.00�Anne�W.�Herman� Doc.�Clerk 92.5 100� �$����������������������9,250.00��Luke�R.�Greenway� Doc.�Clerk 1.5 100� �$�����������������������150.00�
Total� 3405.9 �$����������������1,009,765.50����
������������������������������������������������������������1�The�fees�and�costs�represented�here�are�for�work�performed�from�May�2008�to�July�2009�by�the�attorneys�and�staff�of�Terrell�Marshall�&�Daudt�PLLC.��As�noted�in�the�declaration�of�Beth�E.�Terrell,�several�of�these�attorneys�and�paralegals�also�performed�extensive�work�on�the�case�while�associated�with�Tousley�Brain�Stephens�PLLC.��The�fees�and�costs�for�that�work,�which�was�performed�from�2001�to�2008,�are�detailed�in�the�declaration�of�Kim�D.�Stephens.�
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 64
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 64 of 110 Page ID#: 744
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 65
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 65 of 110 Page ID#: 745
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 66
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 66 of 110 Page ID#: 746
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 67
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 67 of 110 Page ID#: 747
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 68
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 68 of 110 Page ID#: 748
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 69
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 69 of 110 Page ID#: 749
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 70
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 70 of 110 Page ID#: 750
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 71
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 71 of 110 Page ID#: 751
EXHIBIT 4
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 72
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 72 of 110 Page ID#: 752
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 1 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
THE HONORABLE CHRIS WASHINGTON Noted for Hearing: July 31, 2009 at 10:00 a.m.
With Oral Argument
IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR KING COUNTY
DURAND “DEE” SPLATER and RUTH DUNN, on their own behalf and on behalf of others similarly situated,
Plaintiffs,
vs.
THERMAL EASE HYDRONIC SYSTEMS, INC., a Washington corporation; PLASCO MANUFACTURING LTD., n/k/a UPONOR CANADA, INC., a Canadian corporation; and HOT WATER SYSTEMS NORTH AMERICA, INC., a Delaware corporation,
Defendants.
CLASS ACTION
NO. 03-2-33553-3 SEA
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
I, Beth E. Terrell, declare as follows:
1. I am a member of Terrell Marshall & Daudt PLLC, co-counsel for Plaintiffs in the
matter of Splater et al. v. Thermal Ease Hydronic Systems, Inc. et al. I have personal knowledge
of the following facts and if called to testify could and would competently do so. I am submitting
this declaration in support of Plaintiff’s Motion for Final Approval of Class Action Settlement.
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 73
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 73 of 110 Page ID#: 753
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 2 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
2. Terrell Marshall & Daudt PLLC is a law firm in Seattle, Washington that focuses
on complex civil and commercial litigation with an emphasis on employment, consumer
protection, product liability, real estate, and personal injury matters.
3. I am the lead attorney from Terrell Marshall & Daudt PLLC in the instant
litigation. Prior to forming Terrell Marshall & Daudt PLLC in May 2008, I was the lead attorney
on this matter from Tousley Brain Stephens PLLC. I graduated Order of the Coif from the
University of California at Davis King Hall School of Law.
4. I have extensive experience litigating class actions, and have served as co-lead
counsel for numerous multi-state and nationwide product defect class actions against companies
such as Weyerhaeuser, American Cemwood, Behr, and Hurd Windows, resulting in settlements
worth hundreds of millions of dollars to consumers.
5. Currently, I serve as co-lead class counsel in Odom et al. v. Microsoft, Inc. and
Best Buy Stores, Inc. (King County Super. Ct.), representing a nationwide class of more than
300,000 consumers alleging that defendants violated the Washington State Consumer Protection
Act when they charged consumers for MSN internet services they never used. I also served as
co-lead class counsel in Godoy et al. v. AT&T wireless Services, Inc., representing a class
comprised of 5 million AT&T Wireless customers alleging that AT&T Wireless engaged in
consumer fraud when it failed to pro-rate customers’ bills when they terminated their accounts.
The class claims ultimately settled for $47 million.
6. In addition to the product defects and consumer fraud actions discussed above, I
have extensive experience litigating wage and hour class actions. For example, I serve as co-lead
class counsel in Kirkpatrick v. Ironwood Communications, Inc. (W.D. Wash.), representing a
class of more than 2,400 current and former Washington and Oregon Ironwood employees who
allege wage and hour violations. After nearly four years of litigation, a settlement has been
reached in that consolidated case, and the court has granted final approval. I also serve as co-lead
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 74
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 74 of 110 Page ID#: 754
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 3 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
class counsel in McGinnity v. AutoNation, Inc. (Arbitration; Spokane County Super. Ct.),
representing a class of more than 500 current and former Washington employees of AutoNation
who were deprived of the paid vacation time to which they were entitled. The plaintiffs in that
case prevailed at arbitration, recovering on behalf of the class a judgment that is currently valued
at more than $2.5 million. The Court of Appeals recently affirmed that judgment. I also serve as
co-lead class counsel in Ramirez v. Precision Drywall, Inc. (King County Superior Court),
representing a class of more than 300 current and former Washington employees of Precision
Drywall who allege wage and hour violations.
7. I have served as co-lead class counsel in Morden v. T-Mobile, Inc. (W.D. Wash.),
representing a nationwide class of more than 300 current and former T-Mobile employees who
alleged wage and hour violations under the FLSA and various state laws. I have also served as
co-lead class counsel in Godfrey v. Chelan County P.U.D. (E.D. Wash.), representing a class of
approximately 80 current and former employees who alleged the PUD violated state and federal
law by failing to pay them for “shift turnover” time. Both cases resulted in court-approved
settlements.
8. I have represented numerous plaintiffs with race and gender discrimination claims,
allegations of equal pay act violations, and disability discrimination claims. Although most cases
resolve prior to trial, I tried a disability discrimination case in federal court in 2004 against Fred
Meyer Stores, Inc., resulting in a substantial monetary award for my client.
9. Over the past 6 years, I have spent more than 500 hours prosecuting the claims
against Plasco. Among other things, I conducted the pre-filing investigation and research of
potential claims; worked on case management and litigation strategy issues; presented arguments
at hearings; drafted and worked on pleadings, briefing, memoranda, discovery requests, and
correspondence; researched and analyzed various legal and factual issues; worked on factual
investigations; worked on various discovery and litigation issues; participated in meetings and
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 75
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 75 of 110 Page ID#: 755
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 4 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
conferences; took and defended depositions; reviewed and coded documents; interviewed class
members and witnesses; worked on damages analyses; worked on trial plan and expert issues;
participated in extensive mediation and settlement discussions; worked on drafting the settlement
agreement and exhibits; and worked on the motions for preliminary and final approval of
settlement. As noted above, much of my work on this case occurred while I was a partner.
10. Toby J. Marshall is also a member of Terrell Marshall & Daudt PLLC. A graduate
of the University of Washington School of Law, Mr. Marshall concentrates his practice on
complex civil litigation and has represented clients in a wide variety of class actions, including
wage and hour, securities fraud, product defect, and consumer fraud cases. He has been actively
involved in the prosecution of numerous class actions, including Kirkpatrick v. Ironwood
Communications, Inc., Godfrey v. Chelan County PUD, McGinnity v. AutoNation, Inc, and
Ramirez v. Precision Drywall, Inc. In the McGinnity matter, Mr. Marshall served as co-lead
counsel throughout the arbitration, securing a judgment that is currently valued at more than $2.5
million. Mr. Marshall has tried and won other cases in state and federal courts and has also
successfully briefed and argued cases before the Washington State Court of Appeals and the
Ninth Circuit Court of Appeals. He has been named a “Rising Star” in 2005, 2006, 2007 and
2009 by Washington Law & Politics. Prior to forming Terrell Marshall & Daudt PLLC in May
2008, Mr. Marshall was a member of Tousley Brain Stephens and worked extensively on this
action.
11. Over the past 6 years, Mr. Marshall has spent more than 950 hours prosecuting the
claims against Plasco. Among other things, Mr. Marshall has worked on case management and
litigation strategy issues; presented arguments at hearings; drafted and worked on pleadings,
briefing, memoranda, discovery requests, and correspondence; researched and analyzed various
legal and factual issues; worked on factual investigations; worked on various discovery issues;
took and defended depositions; reviewed and coded documents; interviewed class members and
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 76
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 76 of 110 Page ID#: 756
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 5 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
witnesses; worked on class member declarations; worked on damages analyses; worked on trial
plan and expert issues; worked on mediation and settlement issues; and worked on the motions
for preliminary and final approval of settlement.
12. Jennifer Rust Murray is also a member of Terrell Marshall & Daudt PLLC. Ms.
Murray graduated from the University of Washington School of Law in 2005 where she was a
member of the Washington Law Review. Her law review article entitled “Proving Cause in Fact
under Washington’s Consumer Protection Act: The Case for a Rebuttable Presumption of
Reliance” won the Carkeek prize for best submission by a student author. Prior to law school,
Ms. Murray earned her Ph.D. in Philosophy from Emory University. Prior to joining Terrell
Marshall & Daudt PLLC, Ms. Murray was an associate at Tousley Brain Stephens PLLC where
she represented both plaintiffs and defendants in many class and collective actions including
Kirkpatrick v. Ironwood Communications, Inc., Morden v. T-Mobile, McGinnity v. AutoNation,
Inc., Godfrey v. Chelan County P.U.D., and Carroll v. Nuprecon. Prior to forming Terrell
Marshall & Daudt PLLC in May 2008, Ms. Murray was an associate of Tousley Brain Stephens
and worked extensively on this action.
13. Over the past 6 years, Ms. Murray has spent more than 80 hours prosecuting the
claims against Plasco. Among other things, Ms. Murray has drafted and worked on pleadings,
briefing, memoranda, discovery requests, and correspondence; researched and analyzed various
legal issues; worked on factual investigations discovery issues; and reviewed documents.
14. Until February 2009, Jennifer J. Boschen worked as a paralegal for Terrell
Marshall & Daudt PLLC. Prior to the formation of Terrell Marshall & Daudt PLLC, Ms.
Boschen worked for approximately seven years as a paralegal for Tousley Brain Stephens PLLC.
She earned her B.A. from Rutgers University in 1998. Ms. Boschen was extensively involved in
the prosecution of numerous class actions, including the employment cases of Kirkpatrick v.
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 77
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 77 of 110 Page ID#: 757
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 6 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
Ironwood Communications, Inc., Morden v. T-Mobile, McGinnity v. AutoNation, Inc., and
Godfrey v. Chelan County P.U.D.
15. Over the past 6 years, Ms. Boschen spent more than 545 hours prosecuting the
claims against Plasco. Among other things, Ms. Boschen has done extensive document review
and analysis; worked on litigation strategy and discovery issues; drafted discovery requests;
drafted correspondence; prepared attorneys for depositions and hearings; provided support for
extensive motion practice; worked on factual investigations; worked on damages analyses;
interviewed class members; worked on class member declarations; reviewed and coded
documents; managed document databases and issues regarding production; managed e-discovery
issues; researched class member and witness contact information; and provided information to
class members.
16. The attorneys of Terrell Marshall & Daudt PLLC have extensive experience in
class actions, collective actions, and other complex matters. They have been appointed lead or
co-lead class counsel in numerous cases at both the state and federal level. They have prosecuted
and defended a variety of multi-million-dollar disputes.
17. Terrell Marshall & Daudt PLLC supports the proposed settlement in this action as
fair, reasonable, adequate, and in the best interests of the Class as a whole.
18. Attached hereto as Exhibit A is a breakdown of the fees and costs incurred by
Terrell Marshall & Daudt in the prosecution of this action.
19. On August 14, 2003, Plaintiffs filed a complaint against Plasco Manufacturing
Ltd., n/k/a Uponor Canada, Inc., a Canadian corporation, and Hot Water Systems North America,
Inc., and all affiliated, associated and/or subsidiary entities (collectively, “Defendants” or
“Plasco”) in King County Superior Court. Plaintiffs claim Plasco’s cross-linked polyethylene
tubing (“UltraPEX Tubing”) is inadequately designed to handle the constant flow of hot,
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 78
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 78 of 110 Page ID#: 758
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 7 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
chlorinated water and is therefore inherently defective, and Plaintiffs sought damages and
injunctive relief on behalf of themselves and all others similarly situated.
20. The parties engaged in extensive discovery leading up to and during the briefing
regarding class certification. Class Counsel reviewed more than 54,000 pages of production
documents from Plasco, along with numerous electronic files, including multiple databases each
with thousands of records. In addition, the parties have conducted 10 depositions, including class
representatives, Plasco engineers and business personnel, experts, and Plasco’s Rule 30(b)(6)
designees in all areas of sales, marketing and product design. Likewise the named Plaintiffs
responded to multiple rounds of discovery and made their structures and UltraPEX Tubing
available for inspection. Each side has engaged and worked extensively with multiple experts to
inspect the structures and UltraPEX Tubing, conduct testing and analysis, and to opine on the
existence and the severity of the alleged defect, and conduct statistical analysis of Plasco’s
warranty records. These experts have also produced reports and most have been deposed.
21. On March 15, 2006, the Court granted in part Plaintiffs’ motion for class
certification, defining the class as follows:
All individuals and entities that own or owned homes or other structures in the state of Washington in which hydronic heating systems incorporating PEX tubing manufactured by Plasco Manufacturing Ltd., now known as Uponor Canada, Inc., using AT Plastics materials are or have been installed since January 1, 1996.
Excluded from the Class are Defendants, any entity in which Defendants have a controlling interest of Defendants, and Defendants’ legal representatives, assigns and successors, any judge to whom the case is assigned and his or her immediate family, and any person who timely and validly excuses himself or herself from the class.
22. At the time of Settlement, Class Counsel had retained and were working
extensively with experts in order to prove liability and damages, and Class Counsel were
beginning to marshal the many documents that would be used to support the Class claims at trial.
23. Meaningful settlement discussions began in early 2007 and culminated in a two-
day, in-person, arm’s-length negotiation on December 3 and 4, 2007. During that time the
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 79
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 79 of 110 Page ID#: 759
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 8 CASE NO. 03-2-3355-3781776.2
TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103
TEL. 206.816.6603 � FAX 206.350.3528
mediator urged the parties to settle the case and get a resolution for the class. The parties finally
reached tentative agreement on the substantive terms of the Settlement and signed a CR 2A
Memorandum of Understanding memorializing those terms.
24. After mediation, Class Counsel worked extensively with Plasco’s counsel to iron
out a written settlement agreement. Class Counsel also assisted with drafting the exhibits to the
agreement, including the settlement notice and proof of claim form. Counsel then prepared the
motion for preliminary approval and the motion for final approval, along with a supporting
declaration.
25. The parties then spent many months drafting and revising a complete written
agreement, negotiating the numerous terms of that agreement, and working through a variety of
complex issues. These settlement efforts finally resulted in the parties signing a Settlement
Agreement containing all material terms in February 2008.
I declare under penalty of perjury of the laws of the state of Washington that the foregoing
is true and correct, and that this declaration was executed in Seattle, Washington, on the 21st day
of July, 2009.
S/BETH E. TERRELLSTATE BAR NUMBER 26759TERRELL MARSHALL & DAUDT PLLC 3600 FREMONT AVENUE N.SEATTLE, WA 98103TELEPHONE: (206) 816-6603FAX: (206) 350-3528E-MAIL: [email protected]____________________________Beth E. Terrell
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 80
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 80 of 110 Page ID#: 760
EXHIBIT A
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 81
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 81 of 110 Page ID#: 761
UltraPex�Class�Action�–�3957�001�Splater,�et�al.�v.�Thermal�Hydronic�Systems,�Inc.,�et�al.�
(05/23/2008�through�07/17/2009)���
COSTS������
��
�
�
�
�
�
�
�
�
�
�
�
�
�
�
� �
�
�
Messenger� �$������������������������������������22.00��Computer�Research� �$��������������������������������������0.27��
Total� �$������������������������������������22.27��
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 82
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 82 of 110 Page ID#: 762
UltraPex�Class�Action�–�3957�001�Splater,�et�al.�v.�Thermal�Hydronic�Systems,�Inc.,�et�al.�
(05/23/2008�through�07/17/2009)���
FEES1��
Name� Level� Hours Rate/Hour Total�Fees�
Beth�E.�Terrell� Partner� 12.3 560� �$����������������������6,888.00�Toby�J.�Marshall� Partner� 55.2 475� �$��������������������26,220.00��Michael�D.�Daudt� Partner� 1.0 560� �$�������������������������560.00��Erika�L.�Nusser� Associate 13.2 275� �$����������������������3,630.00�Jennifer�J.�Boschen� Paralegal� 15.5 205� �$����������������������3,177.50��Eden�B.�Nordby� Paralegal� 20.7 125� �$����������������������2,587.50�Tova�C.�MacLennan� Paralegal� 2.9 115� �$�������������������������333.50�
Total� 120.8 �$������������������43,396.50����
������������������������������������������������������������1�The�fees�and�costs�represented�here�are�for�work�performed�from�May�2008�to�July�2009�by�the�attorneys�and�staff�of�Terrell�Marshall�&�Daudt�PLLC.��As�noted�in�the�declaration�of�Beth�E.�Terrell,�several�of�these�attorneys�and�paralegals�also�performed�extensive�work�on�the�case�while�associated�with�Tousley�Brain�Stephens�PLLC.��The�fees�and�costs�for�that�work,�which�was�performed�from�2001�to�2008,�are�detailed�in�the�declaration�of�Kim�D.�Stephens.�
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 83
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 83 of 110 Page ID#: 763
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 84
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 84 of 110 Page ID#: 764
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 85
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 85 of 110 Page ID#: 765
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 86
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 86 of 110 Page ID#: 766
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 87
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 87 of 110 Page ID#: 767
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 88
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 88 of 110 Page ID#: 768
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 89
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 89 of 110 Page ID#: 769
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 90
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 90 of 110 Page ID#: 770
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 91
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 91 of 110 Page ID#: 771
EXHIBIT 5
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 92
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 92 of 110 Page ID#: 772
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 1 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
THE HONORABLE ROBERT S. LASNIK
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
ED HARTMAN, a sole proprietorship doing business as OLYMPIC MARIMBA RECORDS, ED HARTMAN PERCUSSION STUDIO and THE DRUM EXCHANGE; JANET HODGIN and MICHAEL HODGIN, a partnership doing business as KIDS NORTHWEST; and MICHAEL A. SPAFFORD, a sole proprietorship doing business as “SPIKE” MAFFORD PHOTOGRAPHY, individually and on behalf of a class of Washington residents similarly situated,
Plaintiffs,
v.
COMCAST BUSINESS COMMUNICATIONS, LLC, a Pennsylvania corporation, COMCAST CORPORATION, a Pennsylvania corporation and its subsidiaries and affiliates, MARKETOUCH MEDIA, INC., a Texas corporation,
Defendants.
NO. C10-00413 RSL
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS
I, Beth E. Terrell, declare as follows:
1. I am a member of Terrell Marshall Daudt & Willie PLLC (“TMDW”), co-
counsel for Plaintiffs and proposed class members in this matter. I am a member in good
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 1 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 93
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 93 of 110 Page ID#: 773
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 2 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
standing of the bars of the States of Washington and California. I respectfully submit this
declaration in support of Plaintiffs’ counsels’ motion for award of attorneys’ fees, costs and
expenses of the above-captioned class action. Except as otherwise noted, I have personal
knowledge of the facts set forth in this declaration, and could testify competently to them if
called upon to do so.
2. On August 1, 2010, after the parties completely briefed two motions to dismiss,
the Court stayed the case pending an interlocutory appeal of another matter originating in this
District on an issue related to this case. The stay was lifted on December 7, 2010. On January
19, 2011, the parties stipulated to another stay so they could submit to mediation. The parties
participated in mediation in Seattle, Washington before the Honorable Terry Lukens (Ret.) of
JAMS on March 24, 2011 (the “Mediation”). The Settlement Agreement was not reached at
the end of the mediation. After several weeks of continued negotiations with the assistance of
Judge Lukens, the case was settled, subject to Court approval. The negotiations resulting in the
Settlement Agreement were lengthy, adversarial, non-collusive, and at arms’ length. The terms
of the Settlement Agreement included confirmatory discovery as to the number of calls and
confirmation that the calls were placed by Marketouch on behalf of Comcast and that
Marketouch was the only vendor Comcast used to deliver commercial solicitation ADAD calls
to Washington businesses during the Class period.
3. Plaintiffs submitted their Unopposed Motion for Preliminary Approval on July
25, 2011. This Court granted preliminary approval orders dated August 1, 2011 and August 4,
2011. Thereafter, Notice was distributed to the Class via direct mail notice according to the
plan adopted by the Parties in the Settlement Agreement and approved by the Court.
4. TMDW is a law firm in Seattle, Washington, that focuses on complex civil and
commercial litigation with an emphasis on consumer protection, product liability, employment,
real estate, and personal injury matters. The attorneys of TMDW have extensive experience in
class actions, collective actions, and other complex matters. They have been appointed lead or
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 2 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 94
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 94 of 110 Page ID#: 774
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 3 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
co-lead class counsel in numerous cases at both the state and federal level. They have
prosecuted and defended a variety of multi-million-dollar disputes involving consumer fraud,
securities fraud, product defect, and anti-trust issues. The defendants in these cases have
included companies such as Walmart, Microsoft, Best Buy, Toyota, Sallie Mae, Comcast,
ABM Industries, Inc., Dell, Inc., and T-Mobile.
5. A founding member of TMDW, I concentrate my practice in complex litigation,
including the prosecution of consumer, defective product, anti-trust, and wage and hour class
actions. I have served as co-lead counsel on numerous multi-state and nationwide class actions.
I also handle a variety of employment issues including employment discrimination, restrictive
covenant litigation, and pre-litigation counseling and advice. I received a B.A., magna cum
laude, from Gonzaga University in 1990. In 1995, I received my J.D. from the University of
California, Davis School of Law, Order of the Coif. Prior to forming TMD in May 2008, I was
a member of Tousley Brain Stephens PLLC. I have litigated numerous consumer class actions
involving California consumer laws (including cases in state and federal court in California)
and have been admitted to practice in California since graduating from law school.
6. Kimberlee L. Gunning is the newest member of TMDW. Ms. Gunning focuses
her practice in complex litigation, including the prosecution of consumer class actions. Ms.
Gunning received her B.A., magna cum laude and Phi Beta Kappa, from Macalester College in
1991, an M.A. from Rutgers, The State University of New Jersey, in 1998 and graduated from
the University of Washington School of Law in 2004. Before joining the firm, Ms. Gunning
had a solo practice focused on consumer class actions, employment law and appeals in all areas
of civil and administrative law and was also an associate at Tousley Brain Stephens for 4 years.
Ms. Gunning has extensive experience in complex civil litigation and has represented plaintiffs
in several consumer class actions, including Spafford v. EchoStar; Hartman, et al. v. Comcast;
Boucher v. First American Title; Vernon, et al. v. Qwest, Grosvenor v. Qwest, Chesbro v. Best
Buy, L.P. and Godoy v. AT&T Wireless.
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 3 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 95
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 95 of 110 Page ID#: 775
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 4 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7. TMDW is currently involved in litigating the following consumer protection
class actions:
� Mlejnecky et al. v. Olympus Imaging Am. Inc., filed in 2010 on behalf of owners of cameras containing defects that cause the cameras to fail or malfunction when underwater or when dropped, despite Olympus’s representations that the cameras were waterproof and shockproof.
� Brown v. U.S. Bank, N.A., filed in 2010 on behalf of Washington consumers who from October 13, 2006 through the present incurred overdraft fees on debit card transactions as a result of U.S. Bank’s practice of re-sequencing transactions from highest to lowest.
� Cooper et al. v. American Honda Motor Co., Inc., filed in 2010 on behalf of owners of 2006–2010 Honda Civics containing defective visors that cause them to split and hang in the face of drivers and passengers.
� Milligan et al. v. Toyota Motor Sales, Inc., filed in 2009 on behalf of owners of 2001 – 2003 Toyota RAV4s containing defective Electronic Computer Modules (“ECM”) which cause harsh shifting conditions and permanent damage to the transmissions.
� Arthur et al. v. Sallie Mae, filed in 2009 on behalf of consumers who received automated, pre-recorded phone calls on their personal cell phones in violation of the TCPA.
� Kitec Consolidated Cases, in which TMD serves as co-counsel in a national class action lawsuit against the manufacturers of defective hydronic heating and plumbing systems.
� Boucher v. First American Title Ins. Co. is a class action filed on behalf of title insurance customers who were overcharged for title insurance when they refinanced their mortgages.
� Qwest Price for Life and ETF Class Actions, filed on behalf of consumers whose rates for high speed internet service were increased despite a “Price for Life” contract agreement, or who were charged an Early Termination Fee (“ETF”) for cancelling their high speed internet service prior to the end of their term commitment, even if they did not knowingly agree to a term commitment and were not told about the ETF prior to cancelling service.
� Chesbro v. Best Buy Co., L.P., filed on behalf of consumers who received automated, pre-recorded solicitation phone calls from the
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 4 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 96
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 96 of 110 Page ID#: 776
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 5 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
defendant in violation of the TCPA, the WADAD and the Washington Consumer Protection Act.
� In re General Motors OnStar Litigation, a consolidated group of lawsuits consumers brought against multiple auto manufacturers due to the failure of analog OnStar equipment in their vehicles and the resulting termination of OnStar service.
8. The total number of hours expended on this litigation by TMDW is 310.5 hours.
The total lodestar for TMDW through September 26, 2011, calculated at the billing rates
charged in similar cases is $152,073.50. The following table lists the TMDW attorneys and
professional personnel and summarizes their work on the case that is included in the lodestar
figure for TMDW, as well as the current hourly rates. The hourly rate shown for any attorney
or paralegal who is no longer employed with TMDW reflects the last rate that applied at the
time of their employment:
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
ATTORNEYS
Beth E. Terrell Partner at Terrell Marshall Daudt & Willie PLLC J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995
Investigated factual issues and claims; researched legal issues; worked on litigation strategy; worked on complaint; worked on motion to dismiss and preliminary approval briefing; worked on discovery matters; worked on joint status report; attended hearing; worked on correspondence; worked on mediation issues; prepared for mediation; attended mediation; worked on settlement issues; worked on class notice issues.
$650 127.6 $82,940
Kimberlee L. Gunning Partner at Terrell Marshall Daudt & Willie PLLC J.D. from Univ. of Washington School of Law, 2004
Analyzed various legal and factual issues; worked on complaint; worked on discovery matters; researched legal issues; worked on briefing motion to dismiss; worked on pleadings and correspondence; worked on mediation brief; attended mediation; worked on settlement issues; worked on motion for preliminary approval; worked on class notice issues; worked on litigation strategy.
$475 115.9 $55,052.50
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 5 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 97
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 97 of 110 Page ID#: 777
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 6 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
NAME AND POSITION
DESCRIPTION OF WORK PERFORMED
RATE HOURSBILLED
TOTAL
LAW CLERKS
Charlotte Sanders Law Clerk at Terrell Marshall Daudt & Willie PLLC from May 2010 – June 2011 J.D. from Univ. of Washington School of Law, 2011
Researched legal issues; worked on response to motion to dismiss; worked on memorandum; worked on preparation for mediation.
$265 16.2 $4,293
PARALEGALS
Eden B. Nordby Paralegal at Terrell Marshall Daudt & Willie PLLC since June 2008 BA. Sarah Lawrence College, 2005.
Worked on pleadings and correspondence; finalized and served discovery requests; worked on document production issues; worked on motions for preliminary approval and supporting documents.
$250 9.2 $2,300
Bradford Kinsey Paralegal at Terrell Marshall Daudt & Willie PLLC since October 2009. AA as a legal assistant from Edmonds Community College, 1989. 21 years of experience working in civil litigation representing both plaintiffs and defendants.
Worked on pleadings and correspondence; worked on court filings; served correspondence and pleadings; worked on mediation brief.
$180 41.6 $7,488
TOTAL: 310.5 $152,073.50
9. TMDW sets its rates for attorneys and staff members based on a variety of
factors, including among others: the experience, skill and sophistication required for the types
of legal services typically performed; the rates customarily charged in similar matters; and the
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 6 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 98
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 98 of 110 Page ID#: 778
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 7 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
experience, reputation and ability of the attorneys and staff members. The schedule contained
in paragraph 8 was prepared from contemporaneous, daily time records regularly prepared and
maintained by the firms in the regular course of business.
10. I was the attorney primarily responsible for reviewing the work of all other
attorneys, law clerks, paralegals, and document clerks listed in the schedule set forth in
paragraph 8. I supervised all work to avoid duplication of effort and to encourage efficiency. I
reviewed the billing records and reduced or eliminated time where necessary. The work
performed by the law clerks, paralegals, and document clerks was work that required sufficient
knowledge of legal concepts and that I or another attorney would have had to perform absent
such assistance. The law clerks identified above were all students currently enrolled in or
recently graduated from an accredited law school. The paralegals and document clerks
identified were all qualified to perform substantive legal work based on their training and past
experience working for attorneys, including attorneys outside of TMDW’s offices.
11. A sample of the federal and state courts since 2008 that have approved
TMDW’s standard billing rates and reimbursement of costs as reasonable are:
� July 2009, in Barnett, et al. v. Wal-Mart Stores, Inc., Case No. 01-2-24553-8 SEA (Wash. Sup. Ct. King County);
� September 2010, in Odom v. Microsoft Corp., Case No. 04-2-10618-4 SEA (Wash. Sup. Ct. King County);
� July 2009, in Splater v. Thermal Ease Hydronic Systems, Inc., Case No. 03-2-33553-3 SEA (Wash. Sup. Ct. King County);
� December 2010, in Carideo v. Dell Inc., No. CV-01772-JLR (W.D. Wash.);
� May 2011, in Fine v. T-Mobile USA, Inc., No. CV-00973-TSZ (W.D. Wash.);
� May 2011, in Frey v. 3PD, Inc., No. C08-630-JCC (W.D. Wash.); and
� September 2011 in Cooper v. Am. Honda Motor Co., No. BC448670 (Cal. Sup. Ct., Los Angeles County)
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 7 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 99
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 99 of 110 Page ID#: 779
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 8 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
12. The $2,769.34 in expenses and cost liabilities TMDW reasonably incurred in the
prosecution of this matter are set forth in the table attached hereto as Exhibit 1.
13. TMDW undertook this case entirely on a contingency basis, meaning that if
Plaintiffs did not achieve a settlement or succeed at trial, the firm would not have recovered
any of the costs incurred in litigating this action and would not have been paid anything for the
310.5 hours it has devoted to the litigation. Because my firm is small, our work on this case has
affected my ability to accept and devote time to other potentially-profitable work.
14. Based on my professional experience, and taking into consideration the risks of
continued litigation versus the certain and substantial relief afforded by the settlement, it is my
opinion that the settlement is fair, adequate and reasonable, and in the best interests of the
settlement class, and merits approval. Because this is not a common fund settlement and
because there is no limit on the amount of claims paid, each eligible class member is
guaranteed to receive the full amount of his or her claim. It is also my view that, in light of the
time and costs expended by Class Counsel, the legal standards governing the award of fees and
costs in class actions, and the results obtained, the fees and costs requested by Class Counsel
are modest, and well-warranted. I wholly support the settlement.
I declare under penalty of perjury under the laws of the State of Washington and the
United States that the foregoing is true and correct.
EXECUTED at Seattle, Washington, this 26th day of September, 2011.
/s/ Beth E. Terrell, WSBA #26759 Beth E. Terrell, WSBA #26759
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 8 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 100
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 100 of 110 Page ID#: 780
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 9 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
CERTIFICATE OF SERVICE
I, Beth E. Terrell, hereby certify that on September 26, 2011, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send notification of
such filing to the following:
Peter Ehrlichman, WSBA #6591 Email: [email protected] Jessica Andrade, WSBA #39297 Email: [email protected] DORSEY & WHITNEY LLP 701 Fifth Avenue, Suite 6100 Seattle, Washington 98104 Telephone: (206) 903-8800 Facsimile: (206) 903-8820
Attorneys for Defendants Comcast Business Communications, LLC and Comcast Corporation
Michael R. Scott, WSBA #12822 Email: [email protected] HILLIS CLARK MARTIN & PETERSON, P.S.1221 Second Avenue, Suite 500 Seattle Washington 98101-2925 Telephone: (206) 623-1745 Facsimile: (206) 623-7789
Edward Correia, Admitted Pro Hac ViceEmail: [email protected] CORREIA & ASSOCIATES, P.C.1101 - 30th Street NW, Suite 500 Washington, DC 20007 Telephone: (202) 380-3595
Attorneys for Defendant Marketouch, Media, Inc.
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 9 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 101
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 101 of 110 Page ID#: 781
DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 10 CASE NO. C10-00413 RSL
TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869
TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
DATED this 26th day of September, 2011.
TERRELL MARSHALL DAUDT & WILLIE PLLC
By: /s/ Beth E. Terrell, WSBA # 26759Beth E. Terrell, WSBA # 26759 Email: [email protected] 936 North 34th Street, Suite 400 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528
Attorneys for Plaintiffs
Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 10 of 10
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 102
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 102 of 110 Page ID#: 782
EXHIBIT 1
Case 2:10-cv-00413-RSL Document 92-1 Filed 09/26/11 Page 1 of 2
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 103
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 103 of 110 Page ID#: 783
Terrell�Marshall�Daudt�&�Willie�PLLC��
Hartman,�et�al.�v.�Comcast�Corporation,�et�al.�Case�No.�C10�00413�RSL�
�COSTS�
�������
�
Filing�Fees� $������������������������232.49�����Courier/Process�Service� $�������������������������632.50�����Reproductions� $��������������������������35.65�����Computer�Research�������� $���������������������1,840.70�Travel�(Parking)� $��������������������������28.00�����Total� $���������������������2,769.34�
Case 2:10-cv-00413-RSL Document 92-1 Filed 09/26/11 Page 2 of 2
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 104
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 104 of 110 Page ID#: 784
Final Order and Judgment Case No. C10-413 RSL
THE HONORABLE ROBERT S. LASNIK
UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON
AT SEATTLE
ED HARTMAN, a sole proprietorship doing business as OLYMPIC MARIMBA RECORDS, ED HARTMAN PERCUSSION STUDIO and THE DRUM EXCHANGE; JANET HODGINand MICHAEL HODGIN, a partnership doing business as KIDS NORTHWEST; and MICHAEL A. SPAFFORD, a sole proprietorship doing business as “SPIKE” MAFFORD PHOTOGRAPHY, individually and on behalf of a class of Washington residents similarly situated,
Plaintiffs,
v.
COMCAST BUSINESS COMMUNICATIONS, LLC, a Pennsylvania corporation, COMCAST CORPORATION, a Pennsylvania corporation and its subsidiaries and affiliates; MARKETOUCH MEDIA, INC., a Texas corporation,
Defendants.
CIVIL ACTION NO. C10-0413RSL
FINAL ORDER AND JUDGMENT
Case 2:10-cv-00413-RSL Document 106 Filed 12/08/11 Page 1 of 6
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 105
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 105 of 110 Page ID#: 785
Final Order and Judgment Case No. C10-413 RSL
On December 1, 2011, a hearing was held on the motion of plaintiffs for final approval
of the Release and Settlement Agreement dated July 21, 2011 reached in the above-referenced
matter (the “Settlement Agreement”) (Attached to Declaration of Rob Williamson and Kim
Williams, Dkt. #76) and seeking entry of a final judgment concluding this Action. The Court,
having considered the arguments of the parties, the papers submitted in support thereof, and
all other matters properly before the Court, hereby ORDERS as follows:
1. Except as specifically noted below, the Court for purposes of this Final Order
and Judgment adopts the definitions set forth in the Settlement Agreement, unless otherwise
defined below.
2. The Court finds that the prerequisites for a class action under Rule 23(a) and
(b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the number of
Class Members is so numerous that joinder of all members thereof is impracticable; (b) there
are questions of law and fact common to the Settlement Class; (c) the claims of the Class
Representatives are typical of the claims of the Settlement Class they seek to represent; (d)
Class Representatives fairly and adequately represent the interests of the Class; (e) the
questions of law and fact common to the members of the Settlement Class predominate over
any questions affecting only individual members of the Settlement Class; and (f) a class
action is superior to other available methods for the fair and efficient adjudication of the
controversy.
All Washington businesses, including businesses operated out of residences, who received one or more commercial solicitations from Comcast directly or through its agents through the use of an automatic dialing and announcing device during the period of February 19, 2006, through the entry of the Preliminary Approval Order.
A list of those Persons who have timely and properly requested exclusion from the Class is
appended to this Final Approval Order as Attachment 1.
Case 2:10-cv-00413-RSL Document 106 Filed 12/08/11 Page 2 of 6
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 106
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 106 of 110 Page ID#: 786
Final Order and Judgment Case No. C10-413 RSL
3. This Court has jurisdiction over the subject matter of this Action and over all
parties to the Settlement Agreement, including all Class Members.
4. The Class Notice delivered pursuant to the Court’s preliminary order of
approval, dated August 4, 2011 (the “Amended Preliminary Approval Order”) (Dkt. #84)
constituted the best notice practicable under the circumstances to all potential members of the
Class and fully complied with Fed. R. Civ. Proc. 23(e)(1). The Notice provided due and
adequate notice of these proceedings and the matters set forth herein, including the Settlement
Agreement and allocation of the Settlement Fund, to all persons and entities entitled to such
notice, and the Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil
Procedure and any other applicable law. A full opportunity has been offered to the Class
Members to object to the proposed Settlement and to participate in the hearing thereon. Thus,
it is hereby determined that all Class Members who did not timely elect to exclude themselves
by written communication are bound by this Order and Final Judgment.
5. The settlement set forth in the Settlement Agreement is hereby finally
approved as fair, reasonable and adequate to all parties and Class Members pursuant to Fed.
R. Civ. Proc. 23(e)(2).
6. All Class Members: (1) are bound by this Final Judgment; (2) are forever
barred from instituting, maintaining, or prosecuting any of the Released Claims; and (3) have
released and discharged defendants from any and all liability with respect to such Released
Claims, including but not limited to claims for attorneys’ fees, costs, and expenses. The
Released Claims are set forth in Paragraph 13.1 of the Settlement Agreement, which states:
Upon final approval of the terms of this Settlement Agreement by the Court, the Class Members, on behalf of themselves, their descendants, ancestors, dependents, heirs, executors, and administrators, and on behalf of each of their past and present predecessors, successors, assigns, subsidiaries, affiliates, parents, operating entities, employees, officers, directors, attorneys, agents, shareholders, partners, joint venturers, insurers and sureties, jointly and severally, fully and forever release Comcast and Marketouch, and each of their past and present predecessors, successors, assigns, subsidiaries, affiliates,
Case 2:10-cv-00413-RSL Document 106 Filed 12/08/11 Page 3 of 6
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 107
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 107 of 110 Page ID#: 787
Final Order and Judgment Case No. C10-413 RSL
and operating entities, and each of their respective past and present employees, officers, directors, attorneys, agents, shareholders, partners, joint venturers, insurers and sureties, of and from any claim, duty, obligation, lien, demand, damage, cause of action, or liability of any nature whatsoever, whether or not now known, suspected, pled, or claimed, whether raised by claim, counterclaim, setoff or otherwise, that any of them ever had, now has, or may claim to have had, that relates to, or otherwise arises from the Action or any allegations or claims raised therein (the “Released Claims”). Released Claims do not include (1) claims arising from the delivery of pre-recorded messages that were not delivered by or on behalf of Comcast; or (2) claims that do not arise as a result of Comcast directly or indirectly using an automatic dialing and announcing device for business to business solicitation calls.
7. Neither the Settlement Agreement, nor any of its terms or provisions, nor any
document executed pursuant to it, nor any other act taken to negotiate it or carry it out, shall
be construed as or raise any presumption or inference of any concession or admission, or any
waiver of any right, claim or defense of any party or any Class Member, except insofar as
such rights, claims or defenses are expressly released or discharged by this Final Judgment.
8. Neither this Final Order and Judgment, the Settlement Agreement, nor any of
the negotiations, documents or proceedings connected with them shall be:
(a)offered or received against the defendants Comcast and Marketouch
(the “Defendant(s)”)as evidence of or construed as or deemed to be evidence of any
presumption, concession, or admission by any of the defendants with respect to the truth of
any fact alleged by any of the Plaintiffs or the validity of any claim that has been or could
have been asserted in the Action or in any litigation, or the deficiency of any defense that has
been or could have been asserted in the Action or in any litigation, or of any liability,
negligence, fault, or wrongdoing of any Defendant;
(b)offered or received against any defendant as evidence of a presumption,
concession or admission of any fault, misrepresentation or omission with respect to any
statements or written document approved or made by any Defendant;
(c)offered or received against Defendants as evidence of a presumption,
Case 2:10-cv-00413-RSL Document 106 Filed 12/08/11 Page 4 of 6
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 108
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 108 of 110 Page ID#: 788
Final Order and Judgment Case No. C10-413 RSL
concession or admission with respect to any liability, negligence, fault or wrongdoing, or in
any way referred to or for any other reason as against the Defendants, in any other civil,
criminal or administrative action or proceeding, other than such proceedings as may be
necessary to effectuate the provisions of the Settlement Agreement; provided, however, that if
the Settlement Agreement is approved by the Court, Released Parties (as defined in the
Settlement Agreement) may refer to it to effectuate the liability protection granted them
hereunder including to support a defense of res judicata, collateral estoppel, release, good
faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue
preclusion or similar defense or counterclaim;
(d)construed against Defendants or the Class Members as an admission or
concession that the consideration to be given hereunder represents the amount which could be
or would have been recovered after trial; or
9. (e) construed as, or received in evidence as, an admission,
concession or presumption against the Plaintiffs or the Class Members that any of their claims
are without merit or that damages recoverable under any of the complaints filed in the Action
would not have exceeded the Settlement Amount. The Court reserves jurisdiction over the
Parties, including all Class Members, for purposes of supervising the implementation,
enforcement, construction, and interpretation of the Settlement Agreement.
10. The Court approves and directs that all Class Members who have submitted
valid claims (a total of 1521 Class Members) be paid $100 per call received. This amount
totals $159,500.00.
11. The Court further directs Comcast to pay two hundred eighty-five thousand
dollars and no cents ($285,000.00) to the Legal Foundation of Washington and two hundred
eighty-five thousand dollars and no cents ($285,000.00)), in equal shares, to El Centro de la
Raza and Neighborhood House.
12. The Court orders Comcast to pay up to two hundred-and-fifty thousand dollars
Case 2:10-cv-00413-RSL Document 106 Filed 12/08/11 Page 5 of 6
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 109
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 109 of 110 Page ID#: 789
Final Order and Judgment Case No. C10-413 RSL
and no cents ($250,000.00) to the Claims Administrator for claims administration costs. The
Court orders Comcast to pay any claims administration costs in excess thereof, if any, to the
Claims Administrator, and if claims administration costs are less, the excess funds will be
retained by Comcast.
13. The Court hereby approves an award of Class Counsel attorneys’ fees and
costs of Eight Hundred Seventy Thousand Dollars ($870,000.00) to be paid by Comcast in the
manner provided in the Settlement Agreement.
14. None of the payments specified in Paragraphs 10-13, supra are the liability of
Comcast except as provided in the Settlement Agreement.
15. The Court further hereby approves an incentive payment of $10,000 to each
Lead Plaintiff to be paid as provided in the Settlement Agreement. This payment is not a
liability of Comcast except as provided in the Settlement Agreement.
16. Plaintiffs’ claims against Comcast and Marketouch are hereby dismissed with
prejudice and with all parties to bear their own costs and fees.
IT IS SO ORDERED.
Dated: December 1, 2011.
A Hon. Robert S. LasnikUnited States District Court Judge
Case 2:10-cv-00413-RSL Document 106 Filed 12/08/11 Page 6 of 6
DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 110
Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 110 of 110 Page ID#: 790