Case3:14-cv-03264-JD Document319 Filed10/31/14 Page1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`Master File No. 14-cv-03264-JD
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`ORDER APPOINTING INTERIM
`LEAD CLASS COUNSEL
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`IN RE CAPACITORS ANTITRUST
`LITIGATION.
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`In this consolidated antitrust class action, the Court has reviewed the motions of counsel to
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`be appointed interim lead class counsel for the putative classes. Based on those submissions and
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`counsel’s arguments at the hearing on those motions, the Court orders as follows pursuant to
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`Federal Rule of Civil Procedure 23(g)(3).
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`I. PUTATIVE DIRECT PURCHASER PLAINTIFF CLASS
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`While the Court acknowledges and appreciates the submissions by all of the firms and
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`individuals seeking to represent the putative class of direct purchaser plaintiffs, the Court appoints
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`the Joseph Saveri Law Firm, Inc. as interim lead class counsel. The Joseph Saveri Law Firm
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`invested a great deal of time and effort to investigate and develop the potential claims in this
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`action, and it filed the first complaint in this case as a result (although the Court does not find the
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`first filing to be a dispositive factor for purposes of lead counsel appointment). The Joseph Saveri
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`Law Firm also has the support of many of the plaintiffs’ counsel, which the Court does find to be a
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`significant factor in the Saveri Firm’s favor.
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`As discussed at the hearing, the Court finds that it would be the most efficient to appoint a
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`single lead counsel for the putative class, and consequently appoints only the Joseph Saveri Law
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`Firm as the interim lead class counsel for the putative direct purchaser plaintiff class. Mr. Saveri
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`may assemble a steering committee if he so chooses. In that event, the Court expects that the
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`Case3:14-cv-03264-JD Document319 Filed10/31/14 Page2 of 5
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`Pearson, Simon & Warshaw firm will be included and given a prominent role. The Court finds
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`that Mr. Simon made many good points in his papers and at the hearing, and believes the putative
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`class would be well served if Mr. Simon were also to be included in the leadership of this
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`litigation.
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`II. PUTATIVE INDIRECT PURCHASER PLAINTIFF CLASS
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`As discussed at the hearing, the Court declines to separate out the first-level indirect
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`purchaser plaintiffs from the rest of the indirect purchaser plaintiffs at this stage of the litigation.
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`The Court will appoint interim lead class counsel for a single putative indirect purchaser plaintiff
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`class, and again finds that it would be most efficient to appoint a single firm to serve in that role.
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`For the putative class of indirect purchaser plaintiffs, too, the Court acknowledges and
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`appreciates the work and qualifications of all counsel who have moved for lead counsel
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`appointment, and the Court especially appreciates the competing groups of counsel’s efforts to
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`work together, as evidenced by the joint submission filed on October 30, 2014. Dkt. No. 310.
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`The Court appoints Cotchett, Pitre & McCarthy to serve as the interim lead counsel for the
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`putative class of indirect purchasers. The Cotchett firm has significant experience in handling
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`complex class actions, including cases involving antitrust claims of the type at issue here. The
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`fact that the Cotchett firm is located here in the San Francisco area also supports their appointment
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`as lead counsel, as that will eliminate the need for liaison/local counsel, resulting in greater
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`efficiency. The Cotchett firm, too, may assemble a steering committee if it so chooses, and the
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`Court expects that if it does so, it will include the Duncan Firm in a significant leadership role.
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`To be perfectly clear, pending further order of the Court, the Cotchett firm is charged with
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`representing and speaking on behalf of all indirect purchasers in this case, including purchasers
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`beyond first-level buyers to the extent alleged in the pleadings. The Court does not approve
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`delegation of that representation beyond the Cotchett firm. If Cotchett determines down the road,
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`based on hard evidence, that a conflict may exist on recovery issues between various indirect
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`purchasers, it may raise the issue with the Court at that time.
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`III. STEERING COMMITTEES
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`If interim lead counsel for the direct and indirect purchaser putative classes decide to create
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`steering committees, they should be structured and populated to best represent the interests of the
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`putative class members and to effectuate the fair and efficient administration of justice. All
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`allocations of work should be based on the abilities and professional resources of counsel.
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`The Court will not look favorably on bloated committees. Lead counsel should spare no
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`effort to staff the committees and manage this litigation in the most efficient and cost-effective
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`manner possible, and will be held accountable for meeting this standard.
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`IV. AUTHORITY AND RESPONSIBILITIES
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`Interim lead counsel for both the direct and indirect purchaser classes have complete
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`authority to conduct all pretrial and trial work, including settlement discussions, for their putative
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`classes, and to bind all counsel and parties in their respective putative class. For the sake of
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`illustration (and not limitation), lead counsel have the final word on and responsibility for all
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`common discovery issues, service of pleadings and filings, stipulations, briefs and arguments,
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`court hearings and appearances, communications with opposing counsel and the Court, expert
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`retention and reports, trial and appeals arising in the course of litigation before this Court (e.g.,
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`class certification decisions), as well as work assignments within their class groups, billing records
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`and fee issues, and overall case strategy, scheduling and management for their putative class.
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`Opposing counsel may rely on the conduct and representations of lead counsel on behalf of their
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`respective putative class for any issue in the litigation.
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`V. FEES, COSTS AND EXPENSES
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`The Court’s goal is that any party seeking fees at the end of this litigation will be able to
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`present to the Court clear and definitive records that were prepared as the fees and costs were
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`incurred. A forensic accounting exercise should not become necessary under any circumstance.
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`To that end, the Court issues these guidelines. The interim lead counsel appointed in this order are
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`responsible for ensuring that the following guidelines are adhered to by all counsel who perform
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`work on behalf of the lead counsel’s respective putative class:
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`1.
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`At the close of each calendar month, lead counsel will make sure that all time has
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`been entered by all timekeepers in final form. By 14 days after each month’s end, lead counsel
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`will ensure that a “bill” for the prior month is finalized, reflecting lead counsel’s review of the
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`billing records and any write-downs or write-offs by lead counsel for inefficiencies, duplication of
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`effort, misjudgments in staffing, and the like. These final “bills” for each month will be
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`segregated and kept by lead counsel, and may not be altered.
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`2.
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`3.
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`Time will be recorded in one-tenths of an hour.
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`Block-billing time records are not permitted. Time must instead be recorded by
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`task. For example, an attorney may not record “7.8 hours” for “work on motion to dismiss
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`opposition.” Instead, the attorney must break out the 7.8 hours specifying the amount of time
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`spent for each specific task performed, e.g., “review and analyze motion to dismiss brief (1.3);
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`team meeting regarding arguments for opposition (.8); legal research re X argument (3.3); draft X
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`section of opposition brief (2.4).”
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`4.
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`Lead counsel are free to make staffing decisions as they deem appropriate, but the
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`Court will not permit fees to be recovered for multiple attorneys performing duplicative work. For
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`example, barring an unusual circumstance, only one lawyer should attend a deposition when
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`defending it, and no more than two lawyers should attend when taking a deposition. Further, the
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`Court will not permit the recovery of fees for every attorney from every firm to review each
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`discovery request and response, motion, letter, e-mail, etc. in the case. While each attorney has an
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`obligation to keep themselves informed about the litigation so that they can best represent their
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`clients, only those attorneys designated by interim lead counsel to review or summarize pleadings,
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`orders and communications are working for the common benefit of the putative class, and only
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`their time will be considered for possible payment at the conclusion of this case.
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`5.
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`All flights of less than six hours should be travelled in coach class. Travel
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`exceeding six hours of flight time may be booked on business class. In all cases, flights should be
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`booked at the lowest available fare.
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`6.
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`When overnight travel is necessary, counsel should be mindful in selecting
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`reasonable hotel accommodations and restaurants. Per diem expenses for travel days should not
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`Case3:14-cv-03264-JD Document319 Filed10/31/14 Page5 of 5
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`exceed $75 per person exclusive of lodging and transportation.
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`Any failure to adhere to these guidelines -- and to the general spirit behind them -- will
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`result in the exclusion of consideration for the relevant fee or cost request. The Court will under
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`no circumstance permit plaintiffs’ attorneys to recover excessive fees and costs at the expense of
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`the putative class members.
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`This order resolves docket numbers 102, 193, 253, 296 and 310 in Case No. 14-3264, and
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`docket number 34 in Case No. 14-3815.
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`IT IS SO ORDERED.
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`Dated: October 31, 2014
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`______________________________________
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`JAMES DONATO
`United States District Judge
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