united states district court district of ......case no. 1:15-cv-10599-pbs plaintiffs’ memorandum...

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ASHBY HENDERSON and THOMAS HERSHENSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BANK OF NEW YORK MELLON, NATIONAL ASSOCIATION, Defendant.

Case No. 1:15-cv-10599-PBS

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR AWARD OF

ATTORNEYS’ FEES, COSTS, AND INCENTIVE PAYMENTS

Case 1:15-cv-10599-PBS Document 590 Filed 08/23/19 of 26

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TABLE OF CONTENTS

Page

I. INTRODUCTION .............................................................................................................. 1 II. BACKGROUND ................................................................................................................ 2

III. ARGUMENT ...................................................................................................................... 4

1. Class Counsel Achieved An Excellent Result That Will Benefit Thousands Of Class Members .................................................................... 7

2. Class Counsel Assumed A Significant Risk of Non-Recovery Because Of The Complexity And Novelty Of The Issues Presented ........................ 8

3. Class Counsel’s Skill And The Quality Of Their Work Led To An Excellent Recovery For The Class .............................................................. 9

4. Class Counsel Expended Significant Time And Resources ..................... 10 5. There Are No Objections .......................................................................... 11 6. Fee Awards In Similar Cases Support Class Counsel’s Request .............. 12

IV. CONCLUSION ................................................................................................................. 18


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TABLE OF AUTHORITIES

Page(s)

Cases

Applegate v. Formed Fiber Techs., LLC, No. CIV.A. 2:10-00473, 2013 WL 6162596 (D. Me. Nov. 21, 2013) ......................................5

Bacchi v. Massachusetts Mut. Life Ins. Co., 2017 WL 5177610 (D. Mass. 2017) ..........................................................................................4

Bezdek v. Vibram USA Inc., 79 F. Supp. 3d 234 (D. Mass. 2015) ..........................................................................................7

Bilewicz v. FMR LLC, Inc., No. CIV.A. 13-10636-DJC, 2014 WL 8332137 (D. Mass. Oct. 16, 2014) ...................6, 12, 13

In re Biopure Corp. Sec. Litig., C.A. No. 03-12628-NG (D. Mass. Sept. 24, 2007) ...................................................................6

Branch v. F.D.I.C., No. Civ. A. 91-CV-13270-RGS, 1998 WL 151249 (D. Mass. Mar. 24, 1998) .......................16

Strougo ex rel. Brazilian Equity Fund, Inc. v. Bassini, 258 F. Supp. 2d 254 (S.D.N.Y. 2003)......................................................................................12

Brundle v. Wilmington Trust N.A., 1:15-cv-01494-LMB-IDD (E.D. Va. 2017) .............................................................................15

Bussie v. Allmerica Financial Corp., 50 F.Supp.2d 59 (D.Mass. 1999) .............................................................................................11

In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001).......................................................................................................8

In re Cendant Corp. Prides Litig., 243 F.3d 722 (3d Cir. 2001).....................................................................................................13

Conley v. Sears, Roebuck and Co., 222 B.R. 181 (D. Mass. 1998) .................................................................................................13

In re Crazy Eddie Sec. Litig., 824 F. Supp. 320 (E.D.N.Y. 1993) ............................................................................................7

Davis v. Footbridge Engineering Services, LLC, 2011 WL 3678928 (D. Mass. Aug. 22, 2011) .........................................................................14


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In re Dun & Bradstreet Credit Services Customer Litigation, 130 F.R.D. 366 (S.D. Ohio 1990) ............................................................................................17

In re Fidelity/Micron Securities Litig., 167 F.3d 735 (1st Cir. 1999) ....................................................................................................11

In re Gen. Instruments Sec. Litig., 209 F. Supp. 2d 423 (E.D. Pa. 2001) .........................................................................................7

Glass Dimensions, Inc. v. State Street Bank and Trust, No. 10-10588 (D. Mass. May 12, 2014) ..............................................................................6, 12

Glover, et al. v. Bank of America, N.A., et al., Case No. 4:13-cv-40042-TSH (May 26, 2015) .......................................................................15

Hankins v. Alarm.com Inc., 4:15-cv-06314-YGR (N.D. Cal. 2018) ....................................................................................15

In re Heritage Bond Litig., No. 02-ML-1475 DT, 2005 WL 1594403 (C.D. Cal. June 10, 2005) .......................................7

Hill v. State St. Corp., No. CIV.A. 09-12146-GAO, 2015 WL 127728 (D. Mass. Jan. 8, 2015) ..........................11, 14

In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467 (S.D.N.Y.2009).......................................................................................14

Krakauer v. Dish Network, L.L.C., 1:14-cv-00333-CCF-JEP (M.D.N.C. 2018) .............................................................................15

Krueger v. Ameriprise Fin., No. 11-2781, 2015 WL 4246879 (D. Minn. July 13, 2015) ....................................................12

Leber v. Citigroup 401(k) Plan Inv. Comm., No. 07-9329 (S.D.N.Y. 2018) ..................................................................................................12

Leber v. The Citigroup 401(k) Plan Investment Committee, 1:07-cv-09329-SHS-DCF (S.D.N.Y. 2018) .............................................................................15

In re Lupron, No. 01-cv-10861-RGS, 2005 WL 2006833 (D. Mass. Aug. 17, 2005) .............................4, 5, 6

Martin v. Caterpillar Inc., No. 07-CV-1009, 2010 WL 11614985 (C.D. Ill. Sept. 10, 2010) ...........................................12

Mazola v. May Dept. Stores Co., No. 97-cv-10872-NG, 1999 WL 1261312 (D. Mass. Jan. 27, 1999).........................................5


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In re Neurontin Marketing and Sales Practices Litig., 58 F. Supp. 3d 167 (D. Mass. 2014) ..........................................................................................5

Nickel v. Bank of America, Case No. C 94-2716 (N.D. Cal. Apr. 30, 2009) .......................................................................12

Nolte v. Cigna Corp., No. 07-2046, 2013 WL 12242015 (C.D. Ill. Oct. 15, 2013)....................................................12

In re Nx Networks Sec. Litig., C.A. No. 00-11850-JLT (D. Mass. Nov. 22, 2004) ...................................................................6

Pavlidis v. New England Patriots Football Club, 675 F. Supp. 707 (D. Mass. 1987) .............................................................................................6

Powers v. Santander Consumer USA, Inc., Case No. 4:12-cv-11932-TSH (Dec. 17, 2014) .......................................................................15

In re Puerto Rican Cabotage Antitrust Litig. 815 F. Supp. 2d 448 (D.P.R. 2011) ..........................................................................................13

In re Relafen Antitrust Litig., 231 F.R.D. 52 (D. Mass. 2005) ..................................................................................5, 6, 13, 16

In re Rite Aid Corp. Sec. Litig., 396 F.3d 294 (3d Cir. 2005).....................................................................................................14

Roberts v. TJX Companies, Inc., No. 13-cv-13142-ADB, 2016 WL 8677312 (D. Mass. Sept. 30, 2016) ................................5, 6

Schultz v. Edward D. Jones & Co., L.P., No. 16-1346 (E.D. Mo. Dec. 11, 2018) ...................................................................................12

In re Solodyn Antitrust Litig., No. 1:14-md-2503-DJC, 2018 WL 7075881 (D. Mass. July 18, 2018) ..................................16

Spano v. The Boeing Co., No. 06-CV-743-NJR-DGW, 2016 WL 3791123 (S.D. Ill. Mar. 31, 2016) .............................12

Spence v. Cavalry Portfolio, No. 1:14-cv-12655-PBS (D. Mass. May 2, 2016) ...............................................................5, 15

Stein v. Smith, C.A. No. 01-10500-WGY (D. Mass. Oct. 18, 2005) .................................................................6

In re StockerYale, Inc. Sec. Litig., No. 1:05cv00177-SM, 2007 WL 4589772 (D.N.H. Dec. 18, 2007) ..........................................5


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In re Summit Tech. Sec. Litig., C.A. No. 96-11589-JLT (D. Mass. Apr. 25, 2001) ....................................................................6

The Real Estate Bar Ass’n for Mass., Inc. v. Nat’l Real Estate Info. Servs., 642 F. Supp. 2d 58 (D. Mass. 2009) ........................................................................................14

In re Thirteen Appeals, 56 F.3d 295 (1st Cir. 1995) ....................................................................................................4, 5

Tuli v. Brigham & Women’s Hosp., Inc. No. 07CV12338-NG, 2009 WL 10693567 (D. Mass. June 8, 2009) ......................................14

In re Tyco Intern., Ltd. Multidistrict Litig., 535 F. Supp. 2d 249 (D.N.H. 2007) .................................................................................6, 7, 13

In re V-Mark Software, Inc. Sec. Litig., C.A. No. 95-12249-EFH (D. Mass. Nov. 24, 1998) ..................................................................6

Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294 (N.D.Cal. 1995) ............................................................................................16

Wilensky v. Digital Equip. Corp., C.A. No. 94-10752-JLT (D. Mass. July 11, 2001) ....................................................................6

Will v. Gen. Dynamics Corp., No. 06-698, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) .......................................................12

Rules

Fed. R. Civ. P. 23 .............................................................................................................................9

Fed. R. Civ. P. 23(f) ...................................................................................................................9, 10


I. INTRODUCTION

This class action settled just three days before it was scheduled to go to trial. The

litigation was hard fought, contentious, and spanned more than four and a half years. By the time

the case settled the parties had attended three mediation sessions, Plaintiffs had successfully

moved for class certification, the Court had denied both parties’ motions for summary judgment,

and had ruled on motions in limine to exclude expert testimony and other evidence. The

Plaintiffs submitted their trial exhibit and witness lists, and filed pretrial statements and proposed

findings of fact and conclusions of law. Witnesses were prepared.

The proposed Settlement provides substantial benefits to Settlement Class Members.

BNY Mellon has established a $10,000,000 non-reversionary Cash Settlement Fund which will

be distributed to Settlement Class Members and pay the costs of litigation, attorneys’ fees,

incentive payments, and administration. BNY Mellon has also agreed that for the approximately

500 Class Trusts that are still charged a line-item tax preparation fee, the bank will pay for tax

preparation, but will waive the fee to the trust, a benefit valued at $621,350.

To compensate them for their efforts, Class Counsel request a fee of 1/3 of the

$10,000,000 Settlement Fund, or $3,333,333, which recognizes the results they obtained for the

Class, the serious risks they faced, and the quality of their work. The amount requested is less

than their lodestar, confirming the reasonableness of the requested fee. Class Counsel also

request reimbursement of $404,234 in litigation costs, and incentive payments of $50,000 to each

Plaintiff for their efforts on behalf of the Settlement Class. Without their sustained commitment

to this case, the Class would receive nothing.


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II. BACKGROUND

Plaintiffs And Their Counsel Vigorously Litigated On Behalf Of The Class For More Than Four Years

A detailed description of the lengthy history of this litigation is contained in Plaintiffs’

Memorandum in Support of Motion for Final Approval, at Section II. That description makes

clear that throughout this litigation, Class Counsel did what was required to effectively advance

the positions of the Class. These efforts included the following:

• Factual investigation, legal research and preparation of initial and amended complaints (ECF ## 1, 97, 232);

• Briefing, research and preparation for argument in connection with defeating motions to dismiss (ECF ## 24, 26, 32, 33, 42, 45);

• Briefing and research in connection with defeating BNY Mellon’s motion for certification for appeal of the Court’s motion to dismiss ruling (ECF ## 88, 91);

• Briefing and research in connection with multiple motions for judicial notice concerning motions to dismiss and summary judgment (ECF # 35);

• Written discovery of BNY Mellon’s practices, including preparation of multiple requests for production, interrogatories, requests for admission and third-party subpoenas as well as motions to compel regarding the same (ECF ## 252, 514, 522);

• Review and analysis of BNY Mellon’s tens of thousands of pages of document production and discovery responses;

• Depositions of BNY Mellon employees and third parties, including preparation of corporate deposition notices and conducting 14 depositions;

• Responding to discovery, including responding to interrogatories and requests for production, collecting and producing documents and preparing for and defending Ms. Henderson’s and Mr. Hershenson’s depositions, and of experts Clifford Kupperberg, Samuel Halpern, and Steve Pomerantz;

• Preparation of confidentiality and ESI orders, and motions practice (ECF ## 66, 67, 74, 82, 83, 100, 106, 110, 248, 283);

• Numerous meet and confer conferences and communications with defense counsel and third-party counsel regarding discovery, pleadings, class notice, scheduling and other case matters;


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• Preparation of multiple status reports and joint stipulations on scheduling and other case issues (ECF ## 62, 196, 202, 223, 313, 442, 487);

• Briefing, research and oral argument in connection with successful motion for class certification (ECF ## 286, 323, 336, 349, 456, 465, 482);

• Briefing, research and successful opposition to BNY Mellon’s appeal of the certification ruling, and of its request to stay the case pending that petition for appeal (ECF ## 506, 507);

• Preparation and delivery of class notices and investigation related thereto (ECF # 494);

• Communication with class members regarding class notice and case developments;

• Briefing, research and oral argument in connection with motions for summary judgment (ECF ## 316, 354, 366, 373, 384, 402, 455);

• Preparation of settlement correspondence and follow-up discussions with defense counsel in an effort to resolve matter short of litigation;

• Preparation for and participation in three separate mediations, as well as follow-up negotiations with BNY Mellon and discussions with the mediator regarding prospective settlement;

• Preparing for trial by preparing and filing joint pretrial memorandum (ECF # 560), with proposed exhibit lists, stipulations of fact, and objections; filing motions in limine (ECF ## 540, 542), opposing Defendants’ motions in limine (ECF ## 537, 534); filing proposed findings of fact (ECF # 559);

• Preparing settlement documents, and motions for preliminary (ECF # 578) and final approval.

Plaintiffs And Their Counsel Negotiated And Obtained An Excellent Settlement For

The Class

On March 8, 2019, just three days before trial was to begin, and after prolonged

negotiations, the parties agreed to a binding settlement and signed a term sheet. By that time the

parties were fully aware of every strength and weakness of the claims and defenses.

Under the Settlement, BNY Mellon will fund a non-reversionary $10,000,000 Cash

Settlement Fund, and will waive for ten years tax preparation fees for the approximately 500


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Class Trusts still charged a line-item fee, a benefit valued at $621,350.1 If approved, the

Settlement Fund will be used to make payments directly to Open Class Trusts, and to

beneficiaries of Closed Class Trusts who submitted simple Verification Forms.

Class Notice was mailed to 14,978 Settlement Class Members. Declaration of Sharon

Witas on Behalf of Settlement Administrator, at ¶ 6, filed with Plaintiffs’ Memorandum in

Support of Final Approval. Those with Closed Class Trusts also received a simple Verification

Form. Of those class members with Closed Trusts, 1,691 have timely submitted Verification

Forms so far, representing approximately 38.9% of the Closed Trusts. Id., ¶ 11. If the Settlement

is approved, after deduction for administrative costs, and the fees, expenses and incentive

payments are approved at the amounts requested, Plaintiffs estimate that on average, each Class

Trust will be entitled to a payment or deposit of approximately $1,100, based on current totals.2

The amounts of the actual payments and deposits will depend on the amount of tax preparation

fees paid by the trust.

III. ARGUMENT

A. The Percentage Of The Fund Is The Appropriate Method For Determining A Reasonable Attorneys’ Fee In This Case

The First Circuit has recognized the “distinct advantages” of the percentage of fund

approach in determining a reasonable fee award in a common fund case. In re Thirteen Appeals,

56 F.3d 295, 307 (1st Cir. 1995); see also In re Lupron, No. 01-cv-10861-RGS, 2005 WL

2006833, at *6 (D. Mass. Aug. 17, 2005); Bacchi v. Massachusetts Mut. Life Ins. Co., 2017 WL

5177610, at *4 (D. Mass. 2017). In common fund cases, the percentage of fund approach “is less

burdensome to administer, it reduces the possibility of collateral disputes, it enhances efficiency

1 Affidavit of Lynne Morra, at ¶ 7, attached to Plaintiffs’ Motion for Final Approval as Exhibit 2. 2 See Memorandum in Support of Final Approval regarding additional Verification Forms to be sent, at page 8.


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throughout the litigation, it is less taxing on judicial resources, and it better approximates the

workings of the marketplace.” In re Lupron Marketing and Sales Practices Litig., 2005 WL

2006833, at *3(citing In Re Thirteen Appeals, 56 F. 3d at 307).

Here, the benefit to the class is easily quantified. Class Counsel’s efforts resulted in a

$10,000,000 common fund, all of which will be distributed to Settlement Class Members after

notice and administration expenses, Court approved fees and costs, and incentive payments are

deducted. And this is a not a case where, because of an early settlement, Class Counsel will

receive a windfall. Rather, the case has been pending for more than four years, and they are

seeking less than their lodestar.

While the First Circuit has not established a benchmark percentage for common fund

awards, other courts in the Circuit have approved percentage based fees that range from twenty

to thirty-five percent. See Mazola v. May Dept. Stores Co., No. 97-cv-10872-NG, 1999 WL

1261312, at *4 (D. Mass. Jan. 27, 1999) (“[I]n this circuit, percentage fee awards range from

20% to 35% of the fund. This approach mirrors that taken by the federal courts in other

jurisdictions”); In re Neurontin Marketing and Sales Practices Litig., 58 F. Supp. 3d 167, 172

(D. Mass. 2014) (nearly two-thirds of percentage based class action fees were between 25% and

35% of the common fund; First Circuit mean was 27% and median was 25%); In re Relafen

Antitrust Litig., 231 F.R.D. 52 (D. Mass. 2005) (awarding fee of one-third of fund); Roberts v.

TJX Companies, Inc., No. 13-cv-13142-ADB, 2016 WL 8677312, at *13 (D. Mass. Sept. 30,

2016) (same); In re StockerYale, Inc. Sec. Litig., No. 1:05cv00177-SM, 2007 WL 4589772, at *6

(D.N.H. Dec. 18, 2007) (same); Applegate v. Formed Fiber Techs., LLC, No. CIV.A. 2:10-

00473, 2013 WL 6162596, at *1 (D. Me. Nov. 21, 2013) (one-third of settlement fund); Spence

v. Cavalry Portfolio Services, No. 1:14-cv-12655-PBS, Final Order and Judgment, ECF # 90, ¶


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13 (May 2, 2016) (approving fee of one-third of cash fund in case litigated by Plaintiffs’

counsel); Glass Dimensions, Inc. v. State Street Bank and Trust, No. 10-10588, Final Order and

Judgment Approving Class Action Settlement, ECF # 409, ¶12 (D. Mass. May 12, 2014)

(approving one third fee in case litigated by plaintiffs’ counsel); Bilewicz v. FMR LLC, Inc., No.

CIV.A. 13-10636-DJC, 2014 WL 8332137, at *6 (D. Mass. Oct. 16, 2014) (approving a one-

third fee from a $12 million recovery, in case brought by plaintiffs’ counsel); see also Pavlidis v.

New England Patriots Football Club, 675 F. Supp. 707, 709, 712 (D. Mass. 1987) (observing

that fees in the 20%-50% range in common fund class actions are not uncommon; approving fee

agreement for fees ranging from 33% to 20%).3

Factors considered by district courts in this Circuit when determining the reasonableness

of a fee award include: (1) the size of the fund created and the number of persons benefitted; (2)

the presence or absence of substantial objections by members of the class to the settlement terms

or attorneys’ fees; (3) the skill and efficiency of the attorneys involved; (4) the complexity and

duration of the litigation; (5) the risk of nonpayment; (6) the amount of time devoted to the case

by plaintiffs’ counsel; (7) the awards in similar cases; and (8) public policy considerations.

Roberts, 2016 WL 8677312, at *10; Relafen., 231 F.R.D. at 79; In re Tyco Intern., Ltd.

Multidistrict Litig., 535 F. Supp. 2d 249, 266 (D.N.H. 2007); In re Lupron, 2005 WL 2006833, at

*3. Courts in this district also have discretion to use the lodestar as a “cross check” to gauge the

reasonableness of a percentage based fee. In re Lupron, 2005 WL 2006833, at *6.

3 See also In re Biopure Corp. Sec. Litig., C.A. No. 03-12628-NG (D. Mass. Sept. 24, 2007) (33 1/3% award); Stein v. Smith, C.A. No. 01-10500-WGY (D. Mass. Oct. 18, 2005) (33% award in ERISA action); In re Nx Networks Sec. Litig., C.A. No. 00-11850-JLT (D. Mass. Nov. 22, 2004) (33% award); Wilensky v. Digital Equip. Corp., C.A. No. 94-10752-JLT (D. Mass. July 11, 2001) (33% award); In re Summit Tech. Sec. Litig., C.A. No. 96-11589-JLT (D. Mass. Apr. 25, 2001) (33% award); In re V-Mark Software, Inc. Sec. Litig., C.A. No. 95-12249-EFH (D. Mass. Nov. 24, 1998) (33% award).


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Each of the relevant factors supports the requested fee here.

1. Class Counsel Achieved An Excellent Result That Will Benefit Thousands Of Class Members

The Settlement Agreement will, if approved, provide an immediate common fund of $10

million. The Settlement Fund represents 67% of the total class damages under Plaintiffs’ model,

which does not take into account the alleged value of any tax related services performed by BNY

Mellon. Memorandum in Support of Final Approval, at 12. A recovery in that range is in line

with and in fact superior to many class actions. See Bezdek v. Vibram USA Inc., 79 F. Supp. 3d

324, 345 (D. Mass. 2015) (settlement that provided reimbursement of 9% of purchase price

reasonable; worst case scenario was no recovery, best case was 100% of purchase price); In re

Tyco, 535 F. Supp. 2d at 261 (settlement that provides approximately 27% of the alleged

damages to the class is “outstanding” result); see also In re Heritage Bond Litig., No. 02-ML-

1475 DT, 2005 WL 1594403, at *19 (C.D. Cal. June 10, 2005) (awarding fee of one-third where

plaintiffs recovered 36% of the class’s total net loss, a result described by court as exceptional)

(citing In re Med. X–Ray Film Antitrust Litig., No. CV-93-5904, 1998 WL 661515, at *7–*8

(E.D.N.Y. Aug. 7, 1998) (approving settlement and 1/3 fee where counsel recovered 17% of

damages); In re Crazy Eddie Sec. Litig., 824 F. Supp. 320, 326 (E.D.N.Y. 1993) (fee of 33.8%

where counsel recovered 10% of damages); In re Gen. Instruments Sec. Litig., 209 F. Supp. 2d

423, 431, 434 (E.D. Pa. 2001) (awarding 1/3 fee from $48M settlement fund that was 11% of the

plaintiffs’ estimated damages).

As Judge Woodlock wrote in Bezdek, “[s]ettlement is, of course, ‘a compromise, a

yielding of the highest hopes in exchange for certainty and resolution,’ Gen. Motors, 55 F.3d at

806, and the benefit to both parties is that they will avoid the outcome embodying their worst

nightmares after taking the case to trial.” 79 F. Supp. 3d at 346.


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2. Class Counsel Assumed A Significant Risk of Non-Recovery Because Of The Complexity And Novelty Of The Issues Presented

While plaintiffs are confident in their claims, trial is inherently risky, further litigation

expensive and time consuming, and the outcome is always uncertain. See In re Cendant Corp.

Litig., 264 F.3d 201, 233 (3d Cir. 2001). Class Counsel represented Plaintiffs and the class

entirely on a contingent basis. When they filed this case in February of 2015 there was no

assurance that any fees or expenses would be recovered. Then, and now, few nationwide breach

of trust class actions have been litigated to conclusion. No reported decision has fully addressed

the legality of marked up tax preparation fees by a trustee. There was no established roadmap for

this case. These unknowns created great uncertainty and risk. Declaration of Elizabeth Ryan in

Support of Motion for Award of Attorneys’ Fees, at ¶¶ 10-14.

And, as the Court is aware, this case is both legally and factually complex for many other

reasons. For example, Plaintiffs claim that BNY Mellon did not perform any compensable tax

return services, that all compensable tax return work was done by PwC, and therefore that there

can be no markup at all. ECF # 560 at 2-3. BNY Mellon however, has steadfastly maintained

throughout the litigation that it performed other tax related work that justified the tax fee

charged. Id., 3-6. Documents produced in discovery identified certain services retained by BNY

Mellon, but the difficult questions of the value of those services, if any, and whether they were in

fact separately compensable or even performed were not conclusively established by the

documents. Id., at 10. The parties even disagreed as to whether BNY Mellon was required to

keep detailed records of any such tax work. See ECF # 560, at 4-5.

The Court underscored the uncertainty surrounding this issue in its Order on Summary

Judgment, when it stated that BNY Mellon’s claim that the markup of PwC fees represented

reasonable compensation for the bank’s tax-related work, “could be supported by admissible


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evidence in the summary judgment record and would lead to the colorable conclusion that the

bank did not impose an illegal markup via the line-item tax-preparation fee.” ECF # 479, at 28. If

the Court had found at trial that some or all of BNY Mellon’s alleged tax services were

compensable, Plaintiffs risked recovering nothing at all, or at a minimum, being presented with

challenging issues of proof. Ryan Decl., ¶ 10.

In addition, Plaintiffs’ legal theory of the case was not fully tested in this context, and

determining damages would possibly have required valuation of BNY Mellon’s retained

services, and whether the case could have been manageably tried in the aggregate opened up the

possibility of decertification.4 Class Counsel faced the risk throughout the litigation that they

would lose on liability, or be unable to prove damages, or be unable to maintain certification.

And even if they had prevailed in all respects, BNY Mellon would no doubt have appealed any

adverse ruling, as it has during the course of this litigation. See ECF # 87, Request For

Immediate Review of Denial of Motion to Dismiss; Rule 23(f) petition for review of class

certification, Case No. 18-8018 (1st Cir. Sept. 28, 2018).

3. Class Counsel’s Skill And The Quality Of Their Work Led To An Excellent Recovery For The Class

Class Counsel were able to litigate and resolve this case successfully because as a group

they brought together experience: in litigating class actions, in breach of fiduciary duty claims,

and in conducting trials. Ryan Decl., ¶¶ 15, 16. Among them Class Counsel have litigated dozens

of class actions in federal courts throughout the country. See Declarations of Elizabeth Ryan and

Derek Howard in Support of Plaintiffs’ Motion for Preliminary Approval, ECF # 578.2, ¶ 14;

ECF # 578.3, ¶¶ 4-19. The depth of their experience with Rule 23 litigation allowed Counsel to

4 These factors are fully described at pages 11-14 of the brief in support of final approval and so are not reiterated here.


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clear several procedural hurdles, including class certification, and the challenges to certification

— the Rule 23(f) petition, multiple motions to strike the class representative, a motion to limit

the scope of the class, and opposition to the class notice process —that followed.

Derek Howard and Greg Porter both have focused their practices on litigating breach of

fiduciary duty claims in the ERISA context and under trust law. See Ryan Decl. ¶ 16; Howard

Decl. in Support of Preliminary Approval, ECF # 578.3, ¶¶ 4 - 9. Experience and expertise in

litigating these uncommon claims was critical to the successful resolution achieved in this case.

Bailey & Glasser partner Brian Glasser is an experienced trial lawyer who has tried cases in ten

states, including class action jury trials. Ryan Decl. ¶ 16. The combination of skills and

experience Class Counsel brought to this litigation was critical to the outcome achieved.

4. Class Counsel Expended Significant Time And Resources

The summaries of hours and rates contained in the attached declarations of counsel show

that to date, Class Counsel have spent over 7,000 hours litigating this case for more than four

years. See Ryan Decl. ¶ 22 (4,469.27 hours); Howard Decl. Exhibits A and B (2,838.55 hours).5

This time was necessary because of the duration, complexity and contentiousness of the

litigation, as summarized in Section II above. During the past four and one-half years Class

Counsel filed or responded to over 26 motions, including motions to dismiss, a motion for class

certification, a motion to modify the class definition, motions for summary judgment, motions in

limine, motions to compel, two motions to strike the class representative, and a motion to strike

their expert. Ryan Decl. ¶¶ 4-8. Counsel also successfully opposed two requests for appellate

review. Id. ¶ 5.

5 Class Counsel expects to spend additional hours over the next several months responding to Class Member inquiries and communicating and resolving issues with the Settlement Administrator.


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Discovery was also extensive and included fourteen depositions, six of them expert

depositions, and written discovery that resulted in the production of over 30,000 pages of

documents. Id. ¶ 4. Class Counsel obtained third party discovery from PwC, including a 30(b)(6)

deposition. Id. Class Counsel prepared for and attended three separate mediations in New York.

Id. ¶ 7. Finally, counsel prepared for trial, filing motions in limine, witness and exhibit lists, a

joint pretrial statement, and proposed findings of fact and conclusions of law. Id. ¶ 6.

In addition to their time in the case, Class Counsel has advanced amounts for expert

witnesses, deposition transcripts, e-discovery, mediation, travel, and other expenses..

Breakdowns of the expenses by category contained in the attached declarations of counsel show

that, combined, these expenses total $404,234. Ryan Decl. at ¶ 30; Howard Decl. at Exhibits A

and C. Reimbursement of litigation costs from a common fund is warranted for the same reasons

as the payment of attorney’s fees — to ensure that the beneficiaries of the fund share in the cost

of the achieving the benefits. In re Fidelity/Micron Securities Litig., 167 F.3d 735, 737 (1st Cir.

1999) (lawyers responsible for creating a common fund for the benefit of a class are entitled to

reasonable expenses necessary to bring the case to conclusion as well as attorney’s fees).

5. There Are No Objections

The Class was advised in the Notice, at paragraph 5, that Class Counsel would seek

approval of reasonable attorney’s fees to be paid from the Settlement Fund, not to exceed one-

third of the Settlement Fund, and litigation expenses that were estimated at the time to be

$390,000, as well as incentive payments of $100,000 total. They were also advised of the

opportunity to object to the Settlement, and the process and deadline by which they could do so.

No Class Members have objected to these requests, or to any aspect of the Settlement. Witas

Decl., ¶¶ 9, 10. The Class’s lack of objection to the fees supports approval. See Bussie v.

Allmerica Financial Corp., 50 F.Supp.2d 59, 77 (D.Mass. 1999); Hill v. State St. Corp., No.


12

CIV.A. 09-12146-GAO, 2015 WL 127728, at *18 (D. Mass. Jan. 8, 2015), appeal dismissed, 794

F.3d 227 (1st Cir. 2015).

6. Fee Awards In Similar Cases Support Class Counsel’s Request

There are few, if any, nationwide class actions in federal court involving the settlement of

breach of trust claims with cash payments to the class. In Nickel v. Bank of America, Case No. C

94-2716 (N.D. Cal.), a class action involving a breach of trust claim, the court awarded fees of

35% of the first settlement fund and 28% of the second. See Declaration of Settlement

Administrator, ECF # 972 (Apr. 30, 2009), attached as Exhibit A.

In analogous class actions under ERISA, or in state court, alleging breach of fiduciary

duty claims, fees of one-third have been approved. In this district, in two cases brought by Class

Counsel, courts awarded fees of one-third. Bilewicz, 2014 WL 8332137, at *6 (approving a one-

third fee from a $12 million recovery); Glass Dimensions, Inc. v. State Street Bank & Trust Co.,

No. 10-10588, Doc. 408 (D. Mass. May 12, 2014) (Saylor, J.) (approving a one-third fee from a

$10 million class recovery). Other district courts have as well. See also Strougo ex rel. Brazilian

Equity Fund, Inc. v. Bassini, 258 F. Supp. 2d 254, 261 (S.D.N.Y. 2003) (awarding fees of 1/3 in

breach of fiduciary duty and Investment Company Act case); Martin v. Caterpillar Inc., No. 07-

CV-1009, 2010 WL 11614985, at *3-4 (C.D. Ill. Sept. 10, 2010) (awarding fees of one-third);

Schultz v. Edward D. Jones & Co., L.P., No. 16-1346 (E.D. Mo. Dec. 11, 2018) (awarding fees

of one-third); Spano v. The Boeing Co., No. 06-CV-743-NJR-DGW, 2016 WL 3791123 (S.D. Ill.

Mar. 31, 2016) (awarding fees of one-third); Krueger v. Ameriprise Fin., No. 11-2781, 2015 WL

4246879 (D. Minn. July 13, 2015) (awarding fees of one-third); Leber v. Citigroup 401(k) Plan

Inv. Comm., No. 07-9329 (S.D.N.Y. 2018) (awarding fees of one-third); Nolte v. Cigna Corp.,

No. 07-2046, 2013 WL 12242015 (C.D. Ill. Oct. 15, 2013) (awarding fees of one-third); Will v.

Gen. Dynamics Corp., No. 06-698, 2010 WL 4818174 (S.D. Ill. Nov. 22, 2010) (awarding fees


13

of one-third).

The Requested Fee Is More Than Reasonable Using The Lodestar Cross-Check

The First Circuit does not require that district courts engage in calculating the lodestar

when awarding fees based upon the percentage of the fund method. In re Puerto Rican Cabotage

Antitrust Litig.815 F. Supp. 2d 448, 464 (D.P.R. 2011) (citing In re Thirteen Appeals, 56 F.3d at

307). Nevertheless, many courts engage in a lodestar “cross-check” to ensure that the fees are

reasonable in light of the actual amount of work performed. Id.; In re Tyco, 535 F. Supp. 2d at

265 (citing Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1050 (9th Cir. 2002)). When the lodestar

is used as a cross-check, “the focus is not on the ‘necessity and reasonableness of every hour’ of

the lodestar, but on the broader question of whether the fee award appropriately reflects the

degree of time and effort expended by the attorneys.” In re Tyco, 535 F. Supp. 2d at 270, citing

Thirteen Appeals, 56 F.3d at 307.

For outstanding results, courts using the lodestar method often award a lodestar

multiplier. See Relafen, 231 F.R.D. at 82 (generally, multipliers range from 1.6 to as high as

19.6) (citing In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 298–99, 303–04 (3d Cir. 2005)) (no

abuse of discretion where district court approved attorney’s fees with lodestar multiplier of 4.07);

see also Conley v. Sears, Roebuck and Co., 222 B.R. 181 (D. Mass. 1998) (awarding multiplier

of 8.9); Bilewicz v. FMR LLC, C.A. No. 13-10636-DJC (D. Mass. Oct. 16, 2014) (approving

attorneys’ fee award with multiplier of 3.3); In re Cendant Corp. Prides Litig., 243 F.3d 722, 742

(3d Cir. 2001) (suggesting a multiplier of 3 as the ceiling for a case that was “neither legally nor

factually complex”).

Here, although the results are excellent, Class Counsel seek less than their lodestar, a

negative multiplier. The fee requested is reasonable using the lodestar cross-check, as it

represents less than Class Counsel’s combined lodestar, which is more than $4.5 million.


14

Summaries of their time are contained in the Ryan Decl., ¶ 22, and the Howard Decl. Exhibits A

and B; see In re Rite Aid Corp. Sec. Litig., 396 F.3d 294 (3d Cir. 2005) (in performing lodestar

cross check, courts may rely on summaries submitted by the attorneys). Counsel’s request for

$3,333,333 represents approximately 74% of their lodestar thus far. That the requested fee is less

than the lodestar supports a finding of reasonableness. See Hill, 2015 WL 127728, at *18, citing

In re FUG Telecom Holdings, Ltd. Sec. Litig., No. 02–CV–3400 (CM)(PED), 2010 WL

4537550, at *26 (S.D.N.Y. Nov. 8, 2010) (“Lead Counsel’s request for a percentage fee

representing a significant discount from their lodestar provides additional support for the

reasonableness of the fee request.”); In re Initial Pub. Offering Sec. Litig., 671 F. Supp. 2d 467,

515 (S.D.N.Y.2009) (“no real danger of overcompensation” given that the requested fee

represented a discount to counsel’s lodestar).

Additionally, the rates used by Class Counsel are reasonable given their experience and

expertise, and are comparable to rates charged by attorneys with similar experience. Ryan Decl.,

¶¶ 21, 24-25; Howard Decl. ¶¶ 25-29. See, e.g., Tuli v. Brigham & Women’s Hosp., Inc. No.

07CV12338-NG, 2009 WL 10693567, at *2-4 (D. Mass. June 8, 2009), aff'd sub nom. Tuli v.

Brigham & Women's Hosp., 656 F.3d 33 (1st Cir. 2011) (approving rates for Boston partners in

the range of $600 to $700 per hour five years ago); The Real Estate Bar Ass’n for Mass., Inc. v.

Nat’l Real Estate Info. Servs., 642 F. Supp. 2d 58, 67 (D. Mass. 2009), vacated on other

grounds, 608 F.3d 110 (1st Cir. 2010) (approving hourly rates in a range up to $700 six years

ago; for example, up to $625 for a 1987 law graduate); Davis v. Footbridge Engineering

Services, LLC, 2011 WL 3678928, 4-5 (D. Mass. Aug. 22, 2011) ($650 per hour for an attorney

who had been practicing over ten years).

Bailey & Glasser’s rates have been consistently approved by other federal and state


15

courts considering petitions for fee awards in which the firm has served as class counsel. See,

e.g., Hankins v. Alarm.com Inc., 4:15-cv-06314-YGR (N.D. Cal. 2018) (approving $750 rate for

Brian Glasser, $760 rate for Elizabeth Ryan); Krakauer v. Dish Network, L.L.C., 1:14-cv-00333-

CCF-JEP (M.D.N.C. 2018) (approving $750 rate for Brian Glasser, $760 rate for John Roddy,

Elizabeth Ryan); Brundle v. Wilmington Trust N.A., 1:15-cv-01494-LMB-IDD (E.D. Va. 2017)

(approving $750 rate for Brian Glasser & Gregory Porter); Leber v. The Citigroup 401(k) Plan

Investment Committee, 1:07-cv-09329-SHS-DCF (S.D.N.Y. 2018) (approving $750 rate for

Brian Glasser). See additional cases cited in Ryan Decl., ¶ 28.6 Howard Law’s rates submitted as

a cross-check have uniformly been approved in class actions in federal and state courts. Howard

Decl., ¶¶ 25-29.

The lodestar calculation described above does not include any time spent by the McTigue

Law firm. The McTigue firm’s time is excluded from the lodestar because it did not benefit the

class, but rather caused disruption, delay, and confusion. The Court is aware of these

circumstances, took measures to rectify them, and ultimately instructed the McTigue firm to

cease its role in this case. See Order, ECF 192 at 1-3; July 31, 2018 Hearing Transcript at 70-71;

August 20, 2018 Hearing Transcript at 9-10. For these reasons, Class Counsel are not submitting

any McTigue Law time. Class Counsel further request that the Court’s order in this case direct

that any attorneys' fees awarded be allocated only to Class Counsel and that any contest of such

6 This court approved Bailey & Glasser’s application for attorneys’ fees in the full amount requested from a common fund, which was supported by declarations attesting to rates of $650 per hour in 2014 in Spence v. Cavalry Portfolio, No. 1:14-cv-12655-PBS, Final Order and Judgment, ECF # 90, ¶ 13 (May 2, 2016); and in Glover, et al. v. Bank of America, N.A., et al., Case No. 4:13-cv-40042-TSH, Final Order Approving Settlement, ECF # 68, ¶ 10 (May 26, 2015)(attesting to rates of $625 - 700); and in Powers v. Santander Consumer USA, Inc., Case No. 4:12-cv-11932-TSH, Final Order Approving Class Action Settlement, ECF # 97, ¶ 13 (Dec. 17, 2014) (attesting to rates of $650 per hour).


16

an order be adjudicated solely before the Court. Class Counsel informed Mr. McTigue that we

would take this approach and he has informed us that he will file a separate fee petition.7 We

have served him with a copy of this brief and understand that he intends to appear at the final

approval hearing regarding his separate fee petition.

The requested fees and costs are reasonable in light of all of the relevant considerations.

Ultimately, the question at the heart of all attorneys’ fee determinations is whether the proposed

fee fairly and reasonably compensates counsel for what they have accomplished, and in light of

the contingency related risks, not which method, percentage, or multiplier to apply. See Branch

v. F.D.I.C., No. Civ. A. 91-CV-13270-RGS, 1998 WL 151249, at *4 (D. Mass. Mar. 24, 1998).

In view of the results obtained for the Settlement Class, the undersigned respectfully submit that

the Court should approve their request.

The Requested Incentive Awards Are Also Reasonable

Finally, Plaintiffs seek approval of incentive awards of $50,000 each. The rationale for

awarding incentive payments to named plaintiffs is that they should be compensated for the

expenditure of time and the expense or risk they have incurred in conferring a benefit on other

members of the class. Relafen, 231 F.R.D. at 82. Incentive fees in this range have been approved

by courts in appropriate cases. See In re Solodyn Antitrust Litig., No. 1:14-md-2503-DJC, 2018

WL 7075881, at *2 (D. Mass. July 18, 2018) (approving incentive payments of $90,000 each to

two class representatives because they “ably served as class representatives in this matter,

incurring time and expense in discovery and monitoring of the litigation on behalf of the Class”);

Van Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 300 (N.D.Cal. 1995) (awarding

incentive award of $50,000 to plaintiff who participated in 49 telephone conferences and five

7 In Class Counsel’s estimation, $32,579.12 of the McTigue Firm’s expenses are properly charged to the Class and so are included in the aggregate expenses submitted.


17

meetings with counsel, attended pretrial hearings, had his deposition taken twice and testified at

trial); In re Dun & Bradstreet Credit Services Customer Litigation, 130 F.R.D. 366, 374 (S.D.

Ohio 1990) (awarding incentive payments ranging from $55,000 to $35,000, for plaintiffs who

incurred financial risks in attempting to vindicate rights of others, spent a good deal of time an

effort on the litigation, including reviewing case and acting as advisors to class counsel, and their

business were disrupted by responding to discovery and by depositions).

Here, Plaintiffs spent an extraordinary amount of time and effort on behalf of the Class

over the four plus years of litigation. They participated in interviews with counsel, located and

provided large numbers of documents, reviewed and commented on pleadings, prepared for and

sat for depositions, attended court hearings and mediations, and participated in settlement

discussions. They both missed time from work and traveled to Boston or New York from their

respective homes in the DC area. See Declarations of Ashby Henderson, and Thomas

Hershenson.

Ms. Henderson has been actively involved in this litigation since the beginning. She is

independent and has taken her duty to the Class seriously. The Court lauded her efforts to ensure

that the class was getting a substantial recovery. Mr. Hershenson has similarly played an active

role on behalf of the Class. In addition to his efforts described above, Mr. Hershenson’s

participation in this case has delayed the closing and distribution of his and his family’s trust.

See Hershenson Declaration, ¶¶ 8-18. Immediately after he became a plaintiff in this case, in

October 2016, BNY Mellon filed an accounting action in Pittsburgh regarding the closure of his

family trust, which had terminated by its terms when his father died. In the ordinary course, the

trust would have been closed and the remaining assets immediately distributed to Mr.

Hershenson and his siblings. Id.. But because of BNY Mellon’s coercive and unwarranted


18

accounting action, the Hershenson family’s trust funds have been held hostage for some three

years, an ironic punctuation mark to the breach of fiduciary duty claims this case raised. BNY

Mellon’s Pittsburgh accounting litigation caused the Hershenson family to be deprived of the

significant funds to which they were entitled, and to incur substantial additional costs. See

Hershenson Decl., ¶¶ 8-26.

IV. CONCLUSION

For the reasons described above, Class Counsel respectfully requests that the Court

approve the fees, costs and incentive payments described above.

Date: August 23, 2019

Respectfully submitted,

/s/ Elizabeth Ryan Elizabeth Ryan, BBO # 549632 [email protected] John Roddy, BBO # 424240 [email protected] Benjamin Lajoie, BBO # 693715 [email protected] BAILEY & GLASSER LLP 99 High Street, Suite 304 Boston, MA 02110 Telephone: (617) 439-6730 Facsimile: (617) 951-3954 Brian A. Glasser (admitted pro hac vice) [email protected] Gregory Y. Porter (admitted pro hac vice) [email protected] BAILEY & GLASSER LLP 1055 Thomas Jefferson Street, NW, Suite 540 Washington, DC 20007 Telephone: (202) 463-2101 Facsimile: (202) 463-2103


19

Derek G. Howard (admitted pro hac vice) [email protected] DEREK G. HOWARD LAW FIRM, INC. 42 Miller Avenue Mill Valley, California 94941 Telephone: (415) 432-7192 Facsimile: (415) 524-2419 Attorneys for Plaintiffs and the Class


20

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent

electronically to the registered participants as identified on the Notice of Electronic File (NEF)

on August 23, 2019.

/s/ Elizabeth Ryan Elizabeth Ryan


Case 1:15-cv-10599-PBS Document 590-1 Filed 08/23/19 Page 1 of 10

Case 4:94-cv-02716-SBA Document 972 Filed 04/30/09 Page 1 of 9Case 1:15-cv-10599-PBS Document 590-1 Filed 08/23/19 Page 2 of 10


ASHBY HENDERSON and THOMAS HERSHENSON, Individually and on Behalf of Others Similarly Situated, Plaintiffs, v. BNY MELLON, NATIONAL ASSOCIATION, Defendant.

Civil Action No. 1:15-cv-10599-PBS

DECLARATION OF ELIZABETH RYAN IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS, AND INCENTIVE PAYMENTS

I, Elizabeth Ryan, affirm as follows:

1. I am one of the counsel for the Plaintiffs in this case. I submit this declaration in

support of Plaintiffs’ Motion for Award of Attorneys’ Fees, Costs, and Incentive Payments.

2. The facts contained in this Declaration are within my personal knowledge, and I

could testify to those facts if called to do so under oath.

3. My firm is counsel of record in this case and has been preliminarily appointed as

one of the Class Counsel for purposes of settlement. Previous submissions describing my

background and legal experience as well as the background of my partners John Roddy and

Gregory Porter, were provided to the Court in my Declaration in Support of Plaintiffs’

Unopposed Motion for Preliminary Approval of Class Action Settlement, ECF # 578-2; and

Gregory Y. Porter’s Declaration in Support of Plaintiffs’ Motion for Class Certification, ECF #

287-5.


2

Our Work On This Case

4. As outlined in Plaintiffs’ memorandum, at Section II, Class Counsel have

vigorously prosecuted this action, including engaging in the substantial discovery efforts that

included production of over 30,000 pages of material by BNY Mellon, fourteen depositions

including six expert depositions. Plaintiffs sought and obtained third party discovery from PwC

regarding their tax return preparation work on BNY Mellon trusts. The parties engaged in

numerous discovery meet and confers and Plaintiffs filed motions to compel.

5. Motions practice was extensive. Plaintiffs filed or responded to more than 26

motions, successfully moving for class certification, briefing and arguing summary judgment,

and defeating BNY Mellon’s two interlocutory review requests.

6. Plaintiffs prepared for trial, filing a joint pretrial memorandum, motions in limine,

exhibit lists, witness lists, objections, and proposed findings of fact. The parties engaged in

numerous meet and confers, regarding proposed trial witnesses and exhibits and objections

thereto.

7. The parties attended three in person mediations at JAMS, with Magistrate Judge

Dian Welsh (ret.), and continued their negotiations directly in the months leading up March 8,

2019, when a settlement was reached just days before trial was set to begin. All negotiations

were substantive, contentious, and hard fought. They included extensive discussions and

disagreements about the merits of Plaintiffs’ legal claims and BNY Mellon’s defenses.

8. The parties then documented the settlement agreement and Plaintiffs drafted and

filed motions for preliminary and final approval, and responded to nearly 100 inquiries from

class members.

9. A detailed description of all of the milestones in the history of this long-running


3

litigation is contained in Plaintiffs’ Memorandum in Support of Motion for Final Approval in

Section II.

Challenges Presented by the Litigation

10. While Plaintiffs are confident in their claims, trial is inherently risky, and

litigation is expensive and time consuming. This litigation was particularly risky for a number of

reasons. For example, Plaintiffs claim that BNY Mellon did not perform any compensable tax

return services, that all compensable tax return work was done by PwC, and therefore any

markups are recoverable damages. ECF # 560 at 2-3. Conversely, BNY Mellon has steadfastly

maintained that it performed other tax related work that justified the tax fee charged. Id., 3-6.

Documents produced in discovery identified certain services retained by BNY Mellon, but the

difficult questions of the value of those services, if any, and whether they were in fact separately

compensable or even performed was not conclusively established by the documents. The parties

even disagreed as to whether BNY Mellon was required to document any such tax work with

detailed records. ECF # 560 at 4-5. If the Court had found at trial that some or all of BNY

Mellon’s alleged tax services were compensable, a possibility that was highlighted by language

in the Court’s Order on Summary Judgment, ECF # 479, at 28 (noting that that BNY Mellon’s

claim that the markup of PwC fee represented reasonable compensation for the bank’s tax-

related work, “could be supported by admissible evidence in the summary judgment record and

would lead to the colorable conclusion that the bank did not impose an illegal markup via the

line-item tax-preparation fee”), Plaintiffs risked recovering nothing at all, or at a minimum being

presented with challenging issues of proof.

11. In addition, Plaintiffs’ legal theory of the case — that third-party fees can be

passed through but not marked up — while based on a combination of well-established trust law


4

principles, has not been fully tested by a court in the context of a nationwide class action. And

BNY Mellon vigorously challenged Plaintiffs’ theory, arguing that it was entitled to the tax fees

as long as they were reasonable, that it was not limited solely to reimbursement of costs. ECF #

384 at 11-12. Plaintiffs faced a risk that the Court could have disagreed with Plaintiffs’ legal

theory or found that the tax fees were reasonable or that a mark up was allowable. See Order on

Summary Judgment, ECF # 479 at 19, noting that the jury may have to determine the value of

BNY Mellon’s alleged tax work.

12. Even if liability were established, determining damages would add additional

uncertainty, and would have ultimately required an accounting of each of the thousands of class

trusts, and possibly the valuation of BNY Mellon retained services, all of which would have

required expert analysis and testimony.

13. Plaintiffs also faced risks of maintaining class certification. If the issues to be

resolved either at trial or in a damages phase presented significant complexity, particularly

complexity tied to potential individual per trust issues or state by state issues, the Court could

find that the case is not manageable and decertify the Class.

14. Class Counsel faced the risk throughout the litigation that they would lose on

liability, or be unable to prove damages, or be unable to maintain certification. And even if they

had prevailed in all respects, BNY Mellon would no doubt have appealed any adverse ruling, as

it has during the course of this litigation.

15. Class Counsel were able to litigate and resolve this case successfully because as a

group they brought together experience: in litigating class actions, in litigating breach of

fiduciary duty claims, and in conducting trials. Between them Class Counsel have litigated

dozens of class actions in federal courts throughout the country. See, e.g., Declaration of


5

Elizabeth Ryan in Support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class

Action Settlement, ECF # 578-2; Gregory Y. Porter’s Declaration in Support of Plaintiffs’

Motion for Class Certification, ECF # 287-5.

16. Derek Howard and Greg Porter both have focused their practice on litigating

breach of fiduciary duty claims in the ERISA context and under trust law. See Porter Decl., ECF

# 287-5, ¶¶ 5-8; Declaration of Derek G. Howard, ECF # 287-6, ¶¶ 4-7. Experience and expertise

in litigating these not common claims was critical to the successful resolution achieved in this

case. In addition, Bailey & Glasser partner Brian Glasser is an experienced trial lawyer who has

tried cases in ten states, including class actions jury trials.

Attorneys’ Fees And Expenses

17. Class Counsel request one-third of the $10 million Settlement Fund, or

$3,333,333, to compensate them for the work performed in the case and the significant risk they

undertook in representing Plaintiffs and class members on a contingent basis.

18. Class Counsel has worked without compensation or reimbursement for their time

and out-of-pocket expenses necessary to position this case for settlement. Any fees and

reimbursement of expenses they receive will be limited to the amount awarded by the Court. In

light of the complexity and scope of this action, Class Counsel had to forego other cases once

they had agreed to represent the Class Representatives and Class in this action.

19. Class Counsel has also advanced the costs of this litigation.

20. Plaintiffs and Class Counsel agreed that Class Counsel would receive

reimbursement for its costs from the value of a successful settlement or judgment.

21. The below summary of time and expenses was taken from computer-based

timekeeping programs, in which my firm maintained their fees and expense records. The hourly


6

rates are based on the typical hourly rates for lawyers of similar experience in the relevant

communities.

22. Class Counsel’s fee summaries demonstrate the amount of time spent on this

litigation and how Class Counsel’s lodestar was calculated. The following table identifies the

attorneys and paralegals from Bailey & Glasser who worked on this case. For each timekeeper, I

have stated the current hourly rate, the number of hours billed after reductions discussed below,

and the total amount of fees.

Bailey & Glasser LLP

Name Position Hours Hourly Rate Total Time Roddy, John J. Partner 1,353.83 $700 $947,681.00 Ryan, Elizabeth A. Partner 1,148.79 $700 $804,153.00 Porter, Gregory Y. Partner 557.8 $610 $340,258.00 Glasser, Brian A. Partner 127.3 $750 $95,475.00 Charonko, Kate E. Partner 12.8 $310 $3,968.00 Murphy, Michael L. Partner 12.4 $380 $4,712.00 Lajoie, Benjamin P. Associate 414.9 $325 $134,842.50 Boyko, Mark G Associate 68.6 $400 $27,440.00 Kinney, Sandra Henson Associate 44.1 $350 $15,435.00 Muench, Patrick O. Associate 32.4 $310 $10,044.00 McClay, Mary E. Paralegal 652.55 $230 $150,086.50 Kestner-Clay, Melissa C. Paralegal 43.8 $200 $8,760.00 Total 4,469.27 $2,542,855.00

23. We have eliminated time for timekeepers who billed ten hours or less and have

eliminated time on hours spent on the dispute with the McTigue firm in June to September 2016.

The lodestar reflected in our summary also does not include all of the time to be devoted to

preparing for and appearing at the final approval hearing, or dealing with post-hearing matters.

24. Bailey & Glasser’s rates have been approved by state and federal courts in other

contingent matters. These rates are consistent with those that courts have found reasonable for

law firms serving as plaintiffs’ counsel in class actions.


7

25. My firm sets billing rates for its attorneys and other legal workers on an annual

basis in a manner designed to assure that those rates are commensurate with the rates charged by

attorneys with similar levels of education, skill and experience in the markets in which they

practice. The firm’s rates established in this manner have been consistently approved by federal

and state courts considering petitions for fee awards in which Bailey & Glasser has served as

class counsel including Hankins v. Alarm.com Inc., 4:15-cv-06314-YGR (N.D. Cal. 2018)

(approving $750 rate for Brian Glasser, $760 rate for Elizabeth Ryan); Krakauer v. Dish

Network, L.L.C., 1:14-cv-00333-CCF-JEP (M.D.N.C. 2018) (approving $750 rate for Brian

Glasser, $760 rate for John Roddy, Elizabeth Ryan); Brundle v. Wilmington Trust N.A., 1:15-cv-

01494-LMB-IDD (E.D. Va. 2017) (approving $750 rate for Brian Glasser & Gregory Porter); In

re Comcast Corp. Set-Top Cable Television Box Antitrust Litig., 2:09-md-02034-AB (E.D. Pa.

2019) (approving $670 rate for Brian Glasser); Leber v. The Citigroup 401(k) Plan Investment

Committee, 1:07-cv-09329-SHS-DCF (S.D.N.Y. 2018) (approving $750 rate for Brian Glasser).

In addition, Brian Glasser bills clients at the rate reflected above.

26. Our rates have been submitted in multiple class action fee applications since then,

including Connolly v. Umpqua Bank, 2:15-cv-00517-TSZ (W.D. Wash.) (court approved

percentage of the fund fee of thirty percent, with lodestar hourly rate of $650); Szafarz v. United

Parcel Service, Inc., SUCV2016-2094-BLS2 (Mass. Super. May 8, 2018) (court approved

percentage of the fund fee of one third, with lodestar hourly rate of $700); DeVito v. Longwood

Security Services, Inc., 1384CV1724-BLS1 (Mass. Super. Nov. 6, 2018) (court approved

percentage of the fund fee of one third, with lodestar hourly rates of $650-$700); Mauthe v.

Versa Cardio, LLC, 5:16-cv-00570-JLS (E.D. Pa. 2019) (court approved percentage of the fund

fee of one third, attesting to hourly rate of $700); Spence v. Cavalry Portfolio Services, LLC,


8

1:14-cv-12655-PBS (D. Mass. 2016) (court approved fee of $275,167, with lodestar hourly rate

of $650); Powers v. Santander Consumer USA, Inc., 4:12-cv-11932-TSH (D. Mass. 2014) (court

approved $500,000 fee, reflecting hourly rate of $650 in 2014, and a lodestar multiplier of 1.25);

Glover v. Bank of America, N.A., 4:13-cv-40042-TSH (D. Mass. 2015) (court approved

percentage of the fund fee of one third, lodestar hourly rate was $625 to $700 in 2015); Wieland

v. Bring Care Home, Inc., Case No. ESCV2013-01380 (Mass. Super. Feb. 17, 2015) (approving

attorneys’ fees requests where hourly rate $625-$650 in 2015); Hall v. Capital One Auto Fin.,

Inc., 1:08-cv-01181-DCN (N.D. Ohio 2010) (hourly rate of $625 in 2010).

27. Going back to 2004, my firm’s billing rates (then Roddy Klein & Ryan) formed

the bases for the courts’ approval of the firm’s award of fees in two nationwide class action

settlements, In re Household Lending Litigation, 02-1240-CW (N. D. Cal. April 30, 2004), and

Curry v. Fairbanks Capital Corporation, 03-10875-DPW (D. Mass. May 12, 2004) (hourly rates

of $475), and were described as reasonable and in fact modest in both cases by the supporting

affidavit of Alba Conte, current author of Newberg on Class Actions (4th ed. 2002) and Attorney

Fee Awards (2d ed. 1993). My firm’s rates have increased by an average of 4% per year since

2004.

28. The total number of hours spent is based only on the hours reasonably expended

to achieve an excellent result for the Class. Members of my firm and co-counsel coordinated our

efforts in the litigation of this case to ensure that there was no duplicative or unnecessary work.

Because our firm is experienced in litigating actions of this type, we were able to efficiently

divide tasks based on expertise.

29. This depth of experience with consumer claims and class action litigation allowed

Class Counsel to pursue the case and negotiate a settlement that capitalized on the claims’


9

strengths while taking into account the risks of continued litigation.

30. My firm has expended a total of $275,956 in costs, more than half of which were

incurred for experts and mediation, as well as depositions, and travel to mediation, depositions,

and court hearings. All of the expenses were necessary and appropriate for the prosecution of this

Action, and all are of the type that are customarily incurred in litigation and routinely charged to

clients billed by the hour. A summary of my firm’s expenses is provided below:

Description Total Experts/Consultants $167,353.50 Travel $36,557.70 Arbitrators/Mediators $18,756.00 Class Certification Notice $18,728.63 Deposition Transcripts $17,531.80 Document Production Database $4,156.92 Outside Copying $2,555.05 Litigation Fund $2,500.00 McTigue Law LLP $2,470.00 Court Fees $1,800.00 Hearing Transcripts $1,608.69 Outside Delivery Services $737.71 Court Copying Fees $553.94 Outside Messenger Service $303.00 Mileage $116.08 Subpoena Fees $114.00 Trial Materials $113.14 Grand Total $275,956.16

31. When combined, the total of the reported expenses by my firm, the Howard Law

Firm, Minami Tamaki, and the McTigue Law Firm are $404,234.51. See Declaration of Derek

Howard in Support of Motion for Award of Attorneys’ Fees (“Howard Decl.”), Exhibits A and C

(showing expenses of $1,744.77 and $89,054.46). The McTigue Law Firm has reported

includable expenses of $32,579.12.

32. When combined the total reported lodestar for Class Counsel is $4,514,190. See

Howard Decl., Exhibits A and B.


10

33. In my opinion, our time expended and expenses incurred in prosecuting this

action were reasonable and necessary for the diligent litigation and fair resolution of this matter.

Representative Plaintiffs

34. Both the Class representatives and Counsel have effectively and diligently served

the Class. Ms. Henderson and Mr. Hershenson have been exemplary representatives and this

Court has already found them adequate in its class certification decision. ECF # 479 at 21-22.

35. Ms. Henderson’s initial decision to pursue this case on behalf of other

beneficiaries, and not simply seek individual damages for herself, directly benefited the Class. If

the Plaintiffs had not brought this class action, class members would not receive anything.

36. They have spent significant time on behalf of the class over the four plus years

this case has been litigated. Their efforts included participated in interviews with counsel,

responding to discovery, located and provided large numbers of documents, responding to

counsel requests, reviewing documents, reviewing and commenting on pleadings, testifying at

their depositions, submitting affidavits, traveling to and participating in mediation sessions and

court proceedings, and preparing to testify at trial. They both missed time from work and

traveled to Boston or New York from their respective homes in the DC area on multiple

occasions. See Affidavits of Ashby Henderson and Thomas Hershenson, filed herewith. If they

had not been willing to bring this case and to continue to prosecute it on behalf of others

similarly situated there would be no settlement benefits at all for other Class Members. They

have no interests that are antagonistic to or in conflict with the Settlement Class.

Signed under the penalties of perjury this 23rd day of August 2019.

/s/ Elizabeth Ryan Elizabeth Ryan



ASHBY HENDERSON and THOMAS HERSHENSON, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. BNY MELLON, NATIONAL ASSOCIATION, Defendant.


DECLARATION OF DEREK G. HOWARD IN SUPPORT OF PLAINTIFFS’ MOTION OF THE SETTLEMENT AND AN AWARD OF ATTORNEYS’ FEES,

COSTS, AND INCENTIVE PAYMENTS

I, Derek G. Howard, affirm as follows:

1. I am an attorney admitted to the State Bar of California since 1985 and

have been admitted pro hac vice in federal District and Circuit courts during my career.

Promptly after the filing of the Complaint, the Court admitted me pro hac vice in this

case. I submit this declaration in support of Plaintiffs’ Motion for an Award of

Attorney’s Fees and Costs and Incentive Payments.

2. I am the founder of the Derek G. Howard Law Firm, Inc. (hereinafter the

“Howard Law Firm”). This Court appointed the Howard Law Firm as Co-Lead

Counsel on the tax return preparation related claims that are the subject of this

Settlement. On May 28, 2019, the Court preliminarily approved this settlement and

appointed the Howard Law Firm and Bailey Glasser LLP as Co-Lead Counsel for

purposes of settlement. The facts contained in this Declaration are within my personal

knowledge, and I could testify to those facts if called to do so under oath.


2

3. Beginning in 1994, I have continuously represented trust beneficiaries in

class actions against many of the nation’s leading corporate fiduciaries. In 2014, I was

then affiliated with Minami Tamaki LLP and we began an investigation and legal

analysis of potential class action claims against Bank of New York Mellon. Based on my

experience in trust cases and class actions, I took the lead role on this case, deciding,

undertaking and supervising all aspects of material work on this case.

4. Along with Co-Lead Bailey & Glasser LLP, Minami Tamaki LLP filed the

original Complaint in this case on February 27, 2015. After leaving Minami Tamaki LLP

to work in my current firm, there was a seamless, cooperative transition. I have

continued to work in a similar fashion on a near daily basis with Bailey & Glasser LLP

throughout the pendency of this action.

5. In my opinion and experience, the settlement benefits would not have

been obtained absent Class Counsel’s efforts for the last four and one half years. Class

Counsel collaborated, litigated against BNY Mellon and resolved this case successfully

because they brought together critical experience. This experience arises from decades

of litigating class actions, prosecuting breach of fiduciary duty and breach of trust

claims, and in conducting trials. The ability of our firms to collaborate was critical in

bringing the case over the settlement line.

6. As of August 20, 2019, no Settlement Class Member has objected to the

Settlement, and KCC reports that only a few Settlement Class Members have opted out.

I have spoken to many class members during the opt-out period. Based on my


3

experience in class actions the settlement has received overwhelming support. I have

also personally spoken with class members who have expressed their gratitude and

support for the settlement.

7. Trust Class Action Experience. Over the last 25 plus years, I have worked

on trust-related class actions and obtained significant cash recoveries on behalf of

classes of personal trust beneficiaries. Fiduciary litigation involving personal trusts is

almost always fiercely resisted by a corporate trustee. This is not just because of

potential monetary damages but also because of concern over damage to reputation.

This case has been no different. The litigation was fiercely resisted by the trustee BNY

Mellon and three nationally prominent outside counsel (Reed Smith LLP, McGuire

Woods LLP and Morgan Lewis LLP). Litigating against such competent counsel

required thorough investigation, extensive knowledge of the personal trust and

banking industry, focused discovery, and complex legal analysis in the briefs that the

Court considered.

8. In my experience, personal trust class actions are infrequent. These cases

are always time consuming and require a specialized knowledge of trust law. The

infrequent intersection between trust law/administration and the class action

mechanism inevitably means that some areas of jurisprudence have gone without clear

precedent. Although this case relies on fundamentally uniform trust law principles,

application of trust law through the class action process is more difficult on a multi-

state basis because Rule 23 is not often applied in a personal trust setting. This case

required detailed discussions of trust law statutes and case law, trust commentary,


4

other secondary or tertiary authority, research at local county courts, and consideration

of hundreds of state and federal decisions. This mandated an extensive knowledge and

ability to understand and explain the nuance of trust and class action precedent.

9. I respectfully submit that the difficulty of the case is reflected through the

size of the docket, the deposition and written discovery, and the nature of the

arguments that the Court considered before granting a motion for class certification and

ultimately for trial. And because the trust allegations concerning the tax return

preparation fees included a failure to disclose over a lengthy period, this case was

especially difficult to prosecute. Like all cases, where time passes, witnesses and

electronically stored evidence become harder to find and present ongoing limitations

defenses.

10. Exemplars of Past Work. In addition to past trial work I served as acting

as Co-Lead counsel in a lengthy trial in a groundbreaking trust class action entitled

Nickel v. Bank of America 290 F.3d 1134 (9th Cir. 2002) which entailed a full trial and

appeal, and ultimately lasting fourteen years. I was also co-trial counsel and helped

obtain over $33 million in cash for punitive damages. Following appellate remand, and

extensive post-remand litigation, the nationwide trust class received an additional $32

million repayment for fee overcharges.

11. I have appeared on behalf of trust beneficiaries in the Northern and

Central Districts of California, the Ninth Circuit Court of Appeals and the State of

California Superior Courts and Courts of Appeal. I served as Co-Lead Counsel in Fisher

v. Bank of America (N.D. Cal.) (civ. 96-0203 CAL) which was filed in 1996. This was a


5

trust class action that recovered over $19 million in cash for a class of over 1000

beneficiaries. In that case, the Court certified a disputed class for claims of breach of

trust, damages, violations of the federal racketeering statutes, and also approved an

accounting similar to the process as this settlement provides.

12. I was one of the Co-Lead counsel in Richtenberg v. Wells Fargo Bank, (Sup.

Ct. Cal.) Case. No. 05-444516, which was filed in 2005 and challenged both investment

practices and fees charged for preparation of fiduciary tax returns. To my knowledge,

Richtenberg v. Wells Fargo Bank represents the only other cash settlement over fees

charged for fiduciary tax returns in the country. It is also the only case I recall where a

trust beneficiary sought, and received an increased incentive payment over the typical

amount because of damages posed to his trust after filing.

13. My past experience also includes working intensively in other substantive

on complex cases worldwide including seven years in In re TFT-LCD Antitrust Litigation

(“TFT-LCD”) (N.D.Cal. MDL 1827). In the TFT-LCD case, the class received a $1.1 billion

cash settlement in 2013. At the time this was the largest reported cash settlement to

indirect purchaser class members in American antitrust jurisprudence.

14. Present Work. I am currently serving as counsel for the putative class

action in Banks v Northern Trust CA __F.3d.__, App.Case No. 17-56025 (9th Cir. 2019). In

Banks, the Ninth Circuit Court of Appeals reversed the District Court’s dismissal of the

case under SLUSA and remanded the case back to the Central District of California for

disposition on the merits. 16-cv-09161 JFW. The July 5, 2019 opinion by the Ninth

Circuit addressed the interplay between SLUSA and trust class actions, holding that


6

SLUSA’s “in connection with” prong was not met and that SLUSA does not preclude

claims against a trustee for breach of trust and other state law claims.

https://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/17-56025.pdf

In its lengthy, published opinion, the Ninth Circuit relied on this Court’s order denying

BNY Mellon’s SLUSA motion to dismiss.

15. I presently serve as Co-Lead counsel resulting in a series of class contested

class certification and class settlements with foreign Aftermarket SheetMetal

Manufacturers, in the District Court in Milwaukee, Wisconsin. Fond du Lac Bumper

Exchange Inc et al v. Jui Li Enterprise Company Ltd et al Case 2:09-cv-00852-LA. Since 2007,

I have been an Executive Committee member in the MDL matter entitled In Re

AirTransPacific Air Passenger Transportation Litigation Case No. 07 – CV– 05634 (N.D.

Cal.). This case has recovered tens of millions for alleged overcharges to air passengers.

I have served as Co-Lead counsel or Executive Committee member in numerous major

class action cases spanning other practice areas outside of trust law, including antitrust,

consumer protection, and financial services class actions. Currently I serve on the

Executive Committee in MDL 2827 entitled In Re Apple Inc. Device Performance

Litigation, 5:18-md-02827 EJD.

16. Nominations and Distinctions. Since 2007, I have been designated

annually as a class action Super Lawyer in Northern California. In 2018 I was peer voted

as one of the Top 100 Lawyers in Northern California. Since 2018, I have been peer

elected as one of the Top 100 High Stakes Litigators in California. In 2019, I was elected

as the Top 100 Bet the Company Litigators in America. In 2015, I was one of the finalists


https://cdn.ca9.uscourts.gov/datastore/opinions/2019/07/05/17-56025.pdf

7

with other co-counsel for the statewide” Trial Lawyer of the Year” by the California trial

attorneys association. (CAOC). This nomination arose from work performed over a five-

year period against two indenture trustees, Bank of New York Mellon and Wells Fargo

Bank in the Central District of California litigation entitled In re: Medical Capital

Securities Litigation, Case No. 8:10-ml-02145. The Medcap all cash recovery totaled over

$220 million for the class. On July 13, 2016, I was nominated for “Street Fighter of the

Year” for outstanding work by a small law firm. This nomination followed a settlement

enacting brain injury and concussion reforms on a national basis in the Northern

District of California action entitled Mehr v FIFA, et al. case No. 3:14-cv-03879.

17. Non-Contingent Work. The Settlement provides for the payment of

attorneys’ fees, costs and expenses to Class Counsel following application for and Court

approval of such an award. The compensation for the services that both Minami Tamaki

LLP and the Howard Firm rendered to the class has been wholly contingent. Both firms

worked without compensation or reimbursement for all of the time and out-of-pocket

expenses necessary to position this case for settlement. This is a particularly significant

devotion of time and resources for a small firm. By devoting years of time and

significant out of pocket costs, Howard Law Firm has bypassed other case opportunities

and substantial work in other contingent class action cases.

18. The total lodestar as of this date for all Minami Tamaki LLP $286, 921 and

the Howard Law Firm ($1,684,415.00) is $ 1,971,336.00. See Exhibits A-B. These exhibits

show the hours worked, the rates applied and the years of admissions for the relevant

counsel.


8

19. Minami Tamaki LLP Time and Costs. With my departure from the firm in

July 2015, Minami Tamaki LLP finalized all of its records concerning costs and time that

it incurred. I approved the attached time summary at Exhibit A as the true and correct

records maintained by the firm. On August 22, 2019, I again verified with a partner of

Minami Tamaki LLP that the costs and fees reported in this declaration for Minami

Tamaki LLP remain true and correct. The total cost numbers for the firm is $1,744.77.

Id. We did not include costs for LEXIS/WESTLAW.

20. For my firm, where I have requested reimbursement only for online legal

research in the amount of $492.15, because of additional one-time out of pocket charges

from LEXIS. See Exhibit C.

21. The team at Minami Tamaki LLP began working on the case at its outset

and was staffed by myself and two associates and paralegal/support staff that

specialized in financial litigation.

22. During this time of the case, Minami Tamaki LLP worked with Bailey

Glasser LLP to complete a pre-filing investigation, drafted and filed a complaint, and

was litigating the motion to dismiss. The parties were also undertaking written and

deposition discovery including voluminous requests from BNY Mellon to Ashby

Henderson. The plaintiff was preparing and filing motions to compel discovery. Bailey

& Glasser LLP and Minami Tamaki took the direct lead on these projects. Minami

Tamaki’s records reflect work performed through July 15, 2016 by the following

individuals listed below. The rates reflected were the firm’s rates at that time the firm

completed work. See Exhibit A. In the lodestar from Minami Tamaki LLP, I have


9

eliminated all time from timekeepers with a small number of hours, and all non-counsel

timekeepers (staff and paralegals). I have only included the time logged by myself and

the two associates working on the case, Mr. Tamura-Sato (admitted in 2007) and Mr.

Liang (admitted in 2005). These two counsel worked closely with Bailey Glasser and

me until my departure from Minami Tamaki LLP. Thus the lodestar time included for

Minami Tamaki is $286,921.00.

23. The attached summaries of time and expenses were taken from computer-

based timekeeping programs, in which Minami Tamaki LLP maintained their

respective fees and expense records. While at Minami Tamaki LLP , I worked on many

cases and I had personal knowledge and responsibility that the firm’s class action rates

were based on the typical hourly rates for lawyers of similar experience in state and

federal class actions.

24. The same is true of the Howard Law Firm. The attached summaries of

time and expenses were taken from computer-based timekeeping programs, in which

my firm maintained fees and expense records. I have personal knowledge that the

Howard Law Firm’s rates were based on the typical hourly rates for lawyers of similar

experience in state and federal class actions.

25. The fee summaries above demonstrate the amount of time spent on this

litigation and how the lodestar was calculated. The rates charged for attorneys and staff

members working on this matter are set forth in the attached exhibits. Counsel Ashley

Romero Anderson (now a senior litigation associate at a global firm) rate is $400 an

hour. Ms. Romero-Anderson analyzed pleadings and settlement, conducting legal


10

research, prepared and attended mediation and responding to motions and briefs. None

of the Howard Law Firm timekeepers were employed as contract personnel and were

paid as employees.

26. My current hourly rate is $850 for both hourly and contingent work.

However, during the litigation, including when I was at Minami Tamaki, I charged $695

an hour. My lodestar here includes my lower hourly rates during earlier years of

litigation resulting in the lodestar set forth at Exhibit B. Howard Law Firm does not

include any time or cost incurred for administrative time or word processing. Counsel

has not included in this amount time spent on the issues involving Brian McTigue and

his efforts to replace class counsel in 2016.

27. Where the attached hourly rates have been submitted to a crosscheck, the

rates have been approved. Because my practice is primarily class action related, I have

personal knowledge that both Minami Tamaki’s and Howard Law Firm’s hourly rates

are at or below market rates in the San Francisco Bay Area for attorneys of similar

experience and years of practice. For example, after a Northern District of California

Special Master’s exhaustive analysis of all counsels’ hourly rates in In re TFT-LCD

Litigation, supra, Minami Tamaki’s hourly rates (including those of myself and Mr.

Tamura-Sato) were found to be consistent and appropriate hourly rates.

28. I know from personal knowledge that the same is true of my hourly rates.

For example, District Courts using a cross-check have approved my hourly rates in In

Re AirTransPacific Air Passenger Transportation Litigation; In re TFT-LCD Antitrust

Litigation; Fond du Lac Bumper Exchange Inc et al v. Jui Li Enterprise Company Ltd et al; In


11

re: Medical Capital Securities Litigation. The same has been true in more historical cases

listed in this declaration, such as the trust class action entitled Nickel v. Bank of America,

supra, that involved a full trial, appeal and post-remand litigation over damages.

29. The Howard Law Firm sets billing rates for its attorneys and other legal

workers on an annual basis in a manner designed to assure that those rates are

commensurate, if not lower than the rates charged by attorneys with similar levels of

education, skill and experience in the markets in which they practice. To my knowledge

there is no other firm in the country with a similar experience specializing in trust class

actions.

30. The past knowledge and experience of current Co-Lead Counsel is a

significant benefit leading to the class under this settlement. Bailey & Glasser LLP

possesses a robust knowledge of the inner workings of some of the most sophisticated

financial institutions in the United States. Based on the overall experience of Co-Lead

Counsel, by collaborating for over four years, the two firms also have been able to bring

top-level pre-trial preparation of the case for trial.

31. I respectfully submit that my former colleagues at Minami Tamaki LLP,

made significant efforts in pre-case investigation, executed complex legal assignments,

propounded and responded to discovery, and conducted independent and follow up

fact investigation. Together with the Howard Law Firm’s efforts, which included

preparing for and taking the pivotal tax return preparation related depositions, was

done efficiently through detailed assignment with assistance provided from co-counsel

only if needed. Thus, the total number of hours is based only on the hours reasonably


12

expended to achieve this result for the Class.

32. Minami Tamaki LLP, Bailey Glasser LLP and the Howard Law Firm

coordinated all of the efforts throughout the litigation of this case to prevent duplicative

or unnecessary work. Because our collective experience in litigating actions of this type,

we were able to efficiently divide tasks based on expertise. BNY Mellon enlisted three

national firms to defend the case, which significantly raised the expense and risk. A

fourth firm in Pittsburgh represented PriceWaterhouseCoopers when Plaintiffs

undertook third-party discovery.

33. The time expended and expenses incurred in prosecuting this action were

reasonable and necessary for the diligent litigation and fair resolution of this matter.

The lodestar does not include all of the time to be devoted to preparing for and

appearing at the final approval hearing, or dealing with post-hearing matters.

34. The total cost numbers for the Howard Law Firm are $89,054.46 See

Exhibit C. In previous cases involving trusts, the discovery of a trust beneficiary that is

a putative class representative has typically involved the request for communications

from the trustee and the class representative depositions have been as short as one-half

day. This case was very different in terms of the amount of time expended by either

class representative, and concerns posed to the class representative of retaliation or

financial loss because of filing this case against the trustee.

Signed under the penalties of perjury this 23rd day of August 2019.

/s/ Derek Howard Derek G. Howard


13


14

EXHIBIT A

MINAMI TAMAKI LLP HENDERSON V. BANK OF NEW YORK MELLON

ATTORNEYS' FEES AND COSTS THROUGH JULY 15, 2016

ATTORNEYS' FEES

Name Hours Rate Lodestar

Derek Howard (OC)(1985) 101.3 $695 $70,403.50 Aron Liang (A)(2003) 286.5 $450 $128,925.00

Sean Tamura-Sato (A)(2007) 206.1 $425 $87,592.50

TOTAL 593.9 $286,921.00

COSTS Category Amount Travel $1,229.16 Service of Process $282.85 Court Costs $185.00 Postage / Delivery $47.76

TOTAL $1,744.77


15


16

Exhibit B

Derek G. Howard Law Firm, Inc. Name Position Hours Hourly

Rate Total Time Expenses

Derek Howard (1985)

Partner 2020.05 $812.98 $1,642,262.50

Ashley Romero (2012)

Associate 24.9 $400.00 $9,960.00

Madison Shay Howard

Paralegal 100.7 $150 $15,105.00

John Mangiafridda

Paralegal 99 $172.60 $17,087.50

Total 2,244.65 $1,684,415.00

Exhibit C Derek G. Howard Law Firm, Inc.

Expenses by Category Type Amount

Travel (Airfare, Car rental, Parking) $13,486.46

Specialty Research (PACER)(Out of State) $492.15

Transcripts $4,356.60

Postage & Delivery $233.81

Experts $65,216.50

Misc. (Treatise and Trial Supplies) $268.94

Litigation Fund $5,000

Total $89,054.46


UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ASHBY HENDERSON and THOMAS

HERSHENSON, Individually and on Behalf of All Others Similarly Situated,

Plaintiffs,

v.

BNY MELLON, NATIONAL

ASSOCIATION,

Defendant.


DECLARATION OF ASHBY HENDERSON

I attest under the penalties of perjury, that the following facts are true and

accurate based on my personal knowledge.

1. I am a resident of Maryland.

2. I am one of the beneficiaries of the Wesson family trust.

3. Throughout this litigation, I worked with counsel to protect the interests

of class members. With counsel I responded to discovery requests which required me to

search for and produce documents going back several years. I produced over 1,600

pages of documents, and responded to interrogatories. I also prepared for and attended

a deposition in Washington, D.C. which lasted most of the day. The discovery in this

case required many weeks of my time.

4. In addition to discovery, I reviewed documents and pleadings throughout

in this case, conferred with counsel by phone and in person, stayed abreast of


2

developments, and consulted with counsel during the settlement negotiations to help

ensure that an excellent result was achieved for class members. I submitted a

declaration in support of my adequacy as a class representative when BNY Mellon tried

to have me stricken from the case. I travelled to New York City for a mediation in 2018.

Because of work and other commitments, I was unable to attend the other two

mediations, and so made myself available by phone. During those mediations counsel

called and updated me periodically during the day. I travelled to Boston twice to

appear in court. All of these trips required an overnight stay and some required me to

take time off work.

5. I also prepared for and was prepared to testify at trial. I met with counsel

in person and by phone numerous times to prepare for trial.

6. I support this Settlement Agreement. I believe the requested attorneys’

fees award is reasonable in light of the amount of work done on this case and the results

achieved, and I request that the Court approve the requested incentive award.

Signed under penalties of perjury this day of August 2019.

Ashby Henderson


UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ASHBY HENDERSON, et al.,

Plaintiffs,

v.

BNY MELLON, NATIONAL

ASSOCIATION, et al.,

Defendants.

Case No. 1:15-cv-10599-PBS

DECLARATION OF THOMAS HERSHENSON IN SUPPORT OF PLAINTIFFS’

MOTION FOR AWARD OF ATTORNEYS’ FEES, COSTS, AND INCENTIVE

PAYMENTS

I, Thomas Hershenson, declare as follows:

1. I am a resident of Washington, DC.

2. I am one of three beneficiaries of the Hershenson Trust, along with my

brother Matt and my sister Sarah.

3. Throughout this litigation, I worked with counsel to protect the interests

of class members. With counsel I responded to discovery requests which required me to

search for and produce documents going back several years. I produced over ## pages

of documents, and responded to interrogatories. I also prepared for and attended a

deposition in Washington, D.C. which lasted most of the day. The discovery in this case

required many weeks of my time.

4. In addition to discovery, I reviewed documents and pleadings

throughout in this case, conferred with counsel by phone and in person, stayed abreast

of developments, traveled to and attended two all-day settlement mediation sessions in

New York, and consulted with counsel during the settlement negotiations to help ensure


2

that an excellent result was achieved for class members. Because of unavoidable work

commitments, I was unable to attend the other two mediations, and so made myself

available by phone. During those mediations counsel called and updated me

periodically during the day.

5. I also prepared for and was ready to testify at trial. I met with counsel in

person and by phone numerous times to so prepare.

6. In addition to my proactive work on behalf of the class, my siblings and I

have been subject to an ongoing probate court action, which BNY Mellon filed in

Pittsburgh two weeks after I agreed to join Ashby Henderson in this lawsuit. The facts

which follow describe the circumstances underlying BNY’s action, which I believe to be

solely rooted in its ultimately failed attempt to get me to drop the suit.

7. On November 19, 2015, my father, Lee Hershenson, died.

8. In January 2016 Donna Bricker of BNY Mellon emailed my mother

informing her that the Trust would terminate, with the assets distributed equally to my

sister Sarah, brother Matt, and me.

9. In February, Ms. Bricker emailed my mother that closing a trust typically

took at least two months, but that, “if requested, we can do an advancement of cash for

an amount up to 75% of the value of the account” prior to the closing of the trust.

10. Ms. Bricker subsequently informed my Mom that as trustee, BNY Mellon

would charge a $10,000 "termination fee."

11. On March 23, 2016, upon the request of my siblings and me, Ms. Bricker

acknowledged our request to liquidate the holdings in the trust and stated that "the sales

will be entered immediately," thus converting all the trust's assets to cash.


3

12. The distribution was held up because my siblings and I had questioned

BNY Mellon’s charge to terminate the trust and distribute the assets to us. This item

involved about 0.1% of the trust assets.

13. We tried to negotiate with BNY Mellon over the termination charge and

the “market value”/“management fee” (imposed despite our funds being held in a cash

account), with no success. At some point in the summer of 2016 we became aware of

this case. I contacted class counsel about it and in October 2016 I joined this case as a

named representative of the tax prep fees putative class.

14. Derek Howard subsequently contacted BNY Mellon’s counsel to point out

that despite Ms. Bricker’s representation, the funds were still being withheld. BNY

Mellon nevertheless refused to release the funds.

15. Two weeks later, on November 15, 2016, BNY Mellon filed a 400+ page

Petition for Adjudication (i.e., an “Accounting”) in Orphans’ Court in Pittsburgh. The

Bank did so despite our previously communicating to it that we were not disputing

investment decisions, did not seek to have BNY Mellon detail trust transactions dating

back to the trust’s creation some five decades ago, and that such an action would only

serve to delay the distribution of the trust while it was charged unnecessary fees and

legal expenses. BNY Mellon even sought to keep its Accounting action non-public, but

to no avail.

16. So BNY Mellon proceeded with the Accounting, despite the fact that the

only issue in dispute concerned the tax preparation fee, which of course was the subject

of the class action I had just joined.

17. BNY Mellon’s maneuver sought to put the resolution of the tax


4

preparation fee issue before the Orphans Court, despite its pendency here. The probate

counsel my siblings and I engaged filed objections to BNY Mellon’s petition, which

included objections to BNY Mellon’s inflated tax prep fees. We understood that our

failure to so object may have waived that claim, which could be argued as a waiver of

my tax preparation fee claim in this Court.

18. Although, through our probate counsel, my siblings and I repeatedly

asked BNY Mellon to reserve for this Court the determination of the tax preparation fee

issue, it flatly refused.1

19. BNY Mellon has requested the Orphan’s Court to issue a subpoena to

our 80 year old mother, despite her not having any information pertinent to the

Accounting matter.

20. In February 2017, BNY Mellon’s probate counsel, Samuel Braver,

informed our attorney that notwithstanding his role as BNY Mellon counsel in the

accounting matter, he in fact was not authorized by BNY Mellon to settle the Accounting

matter, and that even the reduction or suspension of the ~$700 per month in fees

required the approval of BNY Mellon’s attorneys in the class action.

21. Throughout this entire saga, BNY Mellon continued to charge the trust

~$700 per month, the bulk of which was for what BNY Mellon labeled a “market

value”/“investment management” fee,” despite the fact that the all-cash account

required no management and that, as the management fee greatly exceeded the

amount the account earned in interest, charging the fee resulted in the trust losing

1 March 29, 2017 and April 3, 2017 emails from Charles Avalli to Samuel Braver, and an April 5, 2017 response from Mr. Braver, are attached to this Declaration (with settlement proposals redacted).


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