This disposition is not appropriate for publication and is not precedent *

except as provided by 9th Cir. R. 36-3.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

CITY OF ROSEVILLE EMPLOYEES’

RETIREMENT SYSTEM, on behalf of

itself and all others similarly situated; et

al.,

 Plaintiffs - Appellees,

 v.

ORLOFF FAM TR UAD 12/31/01

MARSHALL J. ORLOFF & ANN S.

ORLOFF TTEES,

 Objector - Appellant,

 v.

MICRON TECHNOLOGY, INC.; et al.,

 Defendants - Appellees.

No. 11-35455

D.C. No. 1:06-cv-00085-WFD

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

William F. Downes, District Judge, Presiding

FILED

JUN 07 2012

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
The panel unanimously concludes this case is suitable for decision **

without oral argument. See Fed. R. App. P. 34(a)(2).

The Honorable Dolly M. Gee, District Judge for the U.S. District ***

Court for Central California, sitting by designation.

2

Submitted June 4, 2012** 

Seattle, Washington

Before: SILVERMAN and MURGUIA, Circuit Judges, and GEE, District Judge.***

 

In 2002, the Department of Justice (“DOJ”) launched a price-fixing

investigation into manufacturers of Dynamic Random Access Memory (“DRAM”),

a common type of memory found in personal computers. In exchange for

immunity from criminal prosecution, Defendants-Appellees Micron Technology,

Inc. (“Micron”) cooperated with the DOJ’s investigation. Subsequently, PlaintiffsAppellees brought a securities-fraud class-action suit against Micron, alleging that

the price-fixing scheme artificially inflated Micron stock. The parties reached a

settlement agreement in April 2010, with Micron agreeing to pay $42 million, in

cash, into a common fund. Lead Counsel for Plaintiffs requested twenty-five

percent of the common fund as attorney’s fees. Objector-Appellants The Orloff

Family Trust, et al. (“Orloff”) objected to Lead Counsel’s fee request. On April

28, 2011, the district court approved the settlement and overruled Orloff’s
3

objections. Orloff appeals that decision. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

The Court reviews an award of attorney’s fees made in a class-action suit for

abuse of discretion. In re FPI/Agretech Sec. Litig., 105 F.3d 469, 472 (9th Cir.

1997). Factual determinations underlying an award of attorney’s fees are reviewed

for clear error. Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1147-48 (9th Cir.

2001). In evaluating a fee award based on a percentage of a common fund, “The

question is not whether the district court should have applied some other

percentage, but whether in arriving at its percentage it considered all the

circumstances of the case and reached a reasonable percentage.” Vizcaino v.

Microsoft Corp., 290 F.3d 1043, 1048 (9th Cir. 2002).

Orloff argues that the district court failed to consider the benefit Plaintiffs

received from the DOJ’s investigation of Micron; we disagree. The district court

expressly addressed, and rejected, Orloff’s suggestion that Lead Counsel should

receive a lower fee because of government assistance, stating “nothing in the

record suggests that the DOJ’s price-fixing investigation would have enabled the

Plaintiffs to ride the Government’s coattails to victory.” This finding of fact is

entitled to deference from this Court, unless it is clearly erroneous, which it is not.
4

As the district court repeatedly noted, Plaintiffs’ attempts to secure

assistance from the DOJ were rebuffed. See In re Micron Tech., Inc. Sec. Litig.,

264 F.R.D. 7, 10 (D.D.C. 2010) (denying, on law enforcement privilege grounds,

Plaintiffs’ motion to compel the DOJ’s compliance with subpoenas duces tecum).

Consequently, Plaintiffs were forced to undertake what the district court described

as “extensive discovery.” Furthermore, as part of the Plaintiffs’ civil securitiesfraud case, they needed to prove loss causation and damages, issues unrelated to a

criminal antitrust case, which focuses solely on an agreement to fix prices. 

Compare Catalano, Inc. v. Target Sales, Inc., 446 U.S. 643, 647 (1980) (discussing

criminal price fixing), with Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309,

1317 (2011) (setting forth the elements of securities fraud).

Therefore, the district court did not clearly err in determining that Plaintiffs

could not ride the government’s coattails to victory. To the contrary, we find that

the district court, which presided over this case for four years, gave consideration

to Orloff’s argument concerning the benefit of the DOJ’s investigation, but decided

that it did not merit a fee reduction in light of other circumstances, including the

lack of government cooperation, extensive discovery, and the difficulty Plaintiffs

faced proving loss causation and damages. This reasoned analysis is all that was

required. See Vizcaino, 290 F.3d at 1047.
 Merck addressed a statute-of-limitations issue that was likely dispositive 1

of the statute of limitations issue in this case. 130 S. Ct. at 1790.

5

We also reject Orloff’s contention the district court should not have

considered Merck & Co. v. Reynolds, 130 S. Ct. 1784 (2010), a risk-factor because

the parties settled after the Supreme Court resolved the case in a manner that

benefitted Plaintiffs. First, the district court’s finding that the parties settled 1

before the Supreme Court issued Merck is not clearly erroneous. While Plaintiff’s

evidence on this issue is not conclusive, it is more than the speculation offered by

Orloff, and is sufficient to satisfy the clear error standard, which affords significant

deference to the factual determinations of the district court. Silva v. Woodford, 279

F.3d 825, 835 (9th Cir. 2002). Second, that Merck came out in Plaintiffs’ favor

does not change the fact that, at the time the parties settled, Merck posed a

significant risk to Plaintiffs’ case, including Lead Counsel’s substantial

investments in time and money.

Finally, we find meritless Orloff’s contention that the district court

committed reversible error by not lowering its fee award in response to allegedly

excessive billing practices by the lead partner on the case, John Grant. In pressing

this argument, Orloff misapprehends the difference between the percentage-of-thefund and the lodestar methods of awarding attorney’s fees in common fund cases. 
 Orloff’s arguments concerning Mr. Grant’s billing practices are relevant to 2

the district court’s lodestar crosscheck. Orloff, however, made no argument

concerning the district court’s lodestar crosscheck in its opening brief, waiting

until its reply to question the multiplier utilized by the district court. Accordingly,

this issue is waived. Turtle Island Restoration Network v. U.S. Dep’t of

Commerce, 672 F.3d 1160, 1166 n.8 (9th Cir. 2012).

6

Under the percentage-of-the-fund method, the focus is not on the attorneys’ billing

records, but on whether the percentage awarded and the resulting fee are

reasonable under the circumstances of the case. See Vizcaino, 290 F.3d at 1048. 

Accordingly, Orloff’s contention that the class is being made to compensate Mr.

Grant for work that could have been handled by an associate is plainly inaccurate,

as the fee award does not correlate to any specific expenditure of attorney time.2

AFFIRMED