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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ABDUL NEVAREZ, ET AL.,

PLAINTIFFS,

VS.

FORTY NINERS FOOTBALL COMPANY,

LLC, A DELAWARE LIMITED

LIABILITY COMPANY, ET AL.,

DEFENDANTS.

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C-16-07013 LHK

SAN JOSE, CALIFORNIA

JULY 16, 2020

PAGES 1-43

TRANSCRIPT OF ZOOM PROCEEDINGS

BEFORE THE HONORABLE LUCY H. KOH

UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

FOR THE PLAINTIFFS: SCHNEIDER WALLACE COTTRELL KONECKY LLP

BY: GUY B. WALLACE

MARK T. JOHNSON

2000 POWELL STREET, SUITE 1400

EMERYVILLE, CALIFORNIA 94608

GOLDSTEIN, BORGEN, DARDARIAN & HO

BY: LINDA M. DARDARIAN

KATHERINE L. FISHER

300 LAKESIDE DRIVE, SUITE 1000

OAKLAND, CALIFORNIA 94612

APPEARANCES CONTINUED ON NEXT PAGE

OFFICIAL COURT REPORTER: LEE-ANNE SHORTRIDGE, CSR, CRR

CERTIFICATE NUMBER 9595

PROCEEDINGS RECORDED BY MECHANICAL STENOGRAPHY

TRANSCRIPT PRODUCED WITH COMPUTER

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APPEARANCES (CONTINUED)

FOR THE PLAINTIFFS: PEIFFER, WOLF, CARR & KANE

BY: ADAM B. WOLF

4 EMBARCADERO CENTER, 14TH FLOOR

SAN FRANCISCO, CALIFORNIA 94111

FOR THE DEFENDANTS: RANKIN, SHUEY, RANUCCI, MINTZ

LAMPASONA & REYNOLDS

BY: MARIA M. LAMPASONA

2030 FRANKLIN STREET, SIXTH FLOOR

OAKLAND, CALIFORNIA 94612

GORDON REES SCULLY MANSUKHANI, LLP

BY: BRIAN P. MASCHLER

275 BATTERY STREET, 20TH FLOOR

SAN FRANCISCO, CALIFORNIA 94111

FOR THIRD PARTY O'HARA & CREECH

DEFENDANT: BY: RANDALL C. CREECH

255 WEST JULIAN STREET, SUITE 402

SAN JOSE, CALIFORNIA 95110

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SAN JOSE, CALIFORNIA JULY 16, 2020

P R O C E E D I N G S

(ZOOM PROCEEDINGS CONVENED AT 2:30 P.M.)

THE CLERK: MAY I CALL THE CASE?

THE COURT: YES, PLEASE, GO AHEAD.

THE CLERK: CALLING CASE 16-7013, ABDUL NEVAREZ

VERSUS FORTY NINERS FOOTBALL COMPANY, LLC.

COUNSEL, WILL YOU KINDLY STATE YOUR APPEARANCES FOR THE

RECORD, STARTING WITH PLAINTIFFS' COUNSEL.

MR. WALLACE: GUY WALLACE FOR PLAINTIFFS, YOUR HONOR.

GOOD AFTERNOON.

MS. FISHER: KATHARINE FISHER FOR PLAINTIFFS.

MR. WOLF: GOOD AFTERNOON, YOUR HONOR.

ADAM WOLF FOR THE PLAINTIFFS.

MR. JOHNSON: GOOD AFTERNOON, YOUR HONOR.

MARK JOHNSON FOR THE PLAINTIFFS.

MS. DARDARIAN: AND GOOD AFTERNOON, YOUR HONOR.

LINDA DARDARIAN FOR THE PLAINTIFFS.

THE CLERK: COUNSEL FOR THE DEFENSE?

MS. LAMPASONA: GOOD AFTERNOON, YOUR HONOR.

MARIA LAMPASONA FOR THE DEFENDANTS.

MR. CREECH: GOOD AFTERNOON, YOUR HONOR.

RANDY CREECH FOR THIRD PARTY DEFENDANT TURNER/DEVCON.

THE CLERK: MR. MASCHLER, WOULD YOU LIKE TO STATE

YOUR APPEARANCE?

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THE COURT: MR. MASCHLER, YOU'RE ON MUTE.

MS. LAMPASONA, IS THERE ANY REASON WHY MR. MASCHLER IS NOT

STATING HIS APPEARANCE?

MS. LAMPASONA: NOT THAT I KNOW OF, YOUR HONOR. I

ASSUME THAT IT JUST HAS TO DO WITH TECHNICAL DIFFICULTIES.

THE COURT: OKAY.

THE CLERK: IF I COULD ALSO ASK THAT ANYONE WHO'S NOT

SPEAKING BE ON MUTE, BECAUSE WE'RE GETTING A LITTLE BIT OF AN

ECHO WITH THE FEEDBACK. THANK YOU.

THE COURT: ALL RIGHT. THANK YOU.

WELL, I'LL JUST NOTE FOR THE RECORD THAT

MR. BRIAN MASCHLER APPEARS TO BE PARTICIPATING IN OUR MEETING

AS A PANELIST, EVEN THOUGH HIS MUTE BUTTON IS ON AND HE DOESN'T

HAVE HIS VIDEO TURNED ON, EITHER.

SO ANYWAY, WELCOME AND THANK YOU TO ALL OF YOU FOR BEING

HERE.

LET ME ASK WHETHER ANY OF THE CLAIM NUMBERS, OPT OUT

NUMBERS, OR OBJECTOR NUMBERS HAVE CHANGED SINCE THE

SUPPLEMENTAL BRIEF.

MR. WALLACE: YOUR HONOR, JCC INFORMS US THAT THERE

ARE NO OBJECTIONS, THERE ARE NO REQUESTS FOR OPT OUTS, AND

THAT'S AS OF YESTERDAY'S DATE.

AND RIGHT NOW WE HAVE 5,418 CLAIMS.

AND I THINK YOUR HONOR HAD ASKED SOME QUESTIONS EARLIER

TODAY BY ORDER, AND THE AVERAGE ANTICIPATED RECOVERY FOR THE

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CLASS MEMBERS IS $4,423.96. THE MEDIAN IS $4,340.99.

AND THEN ACCORDING TO THE CALCULATIONS WE GOT FROM JCC, IT

LOOKS LIKE MR. DEFRANCESCO WOULD RECEIVE $13,432.91, INCLUDING

HIS PROPOSED $5,000 SERVICE AWARD. AND FOR ABDUL NEVAREZ, IT

WOULD BE $10,704.97, INCLUDING THE PROPOSED $5,000 SERVICE

AWARD.

AND I THINK THERE WERE A COUPLE QUESTIONS ABOUT THE NUMBER

OF CASES THAT THEY HAVE.

THE COURT: I'M SORRY, LET ME INTERRUPT YOU.

WHAT ABOUT PHYLLIS NEVAREZ?

MR. WALLACE: PRISCILLA NEVAREZ --

THE COURT: PRISCILLA, EXCUSE ME.

MR. WALLACE: -- I DO NOT BELIEVE THAT SHE'S MAKING A

CLAIM ON THE DAMAGES FUND BECAUSE SHE IS A NON-DISABLED

COMPANION, AND MY UNDERSTANDING OF THE DAMAGES FUND IS THAT

THAT'S LIMITED TO PERSONS WITH MOBILITY DISABILITIES. SHE WILL

ONLY BE GETTING THE $5,000 SERVICE AWARD FOR HER WORK ON BEHALF

OF THE COMPANION CLASS, YOUR HONOR.

THE COURT: OKAY. THANK YOU.

CAN YOU PLEASE REPEAT THE TOTAL NUMBER OF CLAIM FORMS

RECEIVED?

MR. WALLACE: SO FAR WE HAVE 5,418 CLAIMS.

THE COURT: AND DO WE KNOW WHAT PERCENTAGE OF CLAIMS

ARE BEING REJECTED, IF ANY?

MR. WALLACE: WE HAVE NOT -- JCC IS IN THE PROCESS OF

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REVIEWING THE CLAIMS, AND SO AT THIS TIME, I DON'T THINK ANY

CLAIMS HAVE BEEN REJECTED. BUT WE DO ANTICIPATE THAT THERE

WILL BE SOME, OF COURSE. WE JUST WOULDN'T BE ABLE TO GIVE YOU

EVEN A REASONABLE ESTIMATE TODAY.

THE COURT: OKAY. THAT'S ALL RIGHT.

WHAT ABOUT WHAT YOU ANTICIPATE THE HIGHEST RECOVERY TO BE?

WILL ANYONE GET UP TO 80,000 DO YOU THINK?

MR. WALLACE: WE DON'T HAVE THE NUMBER ON THE HIGHEST

CLAIM YET. WE DO KNOW THAT SOMEONE HAS SUGGESTED THAT THEY

MADE 50 VISITS, WHICH I DOUBTED EARLIER.

BUT BECAUSE THE DAMAGES FUND IS SET UP TO MAKE SURE

EVERYONE GETS THE 4,000, AND THEN ABOVE THE 4,000 YOU GET A

PRO RATA SHARE OF VISITS, WE'RE NOT ANTICIPATING PEOPLE ARE

GOING TO GET CLOSE TO THE 80,000, YOUR HONOR.

THE COURT: I SEE. OKAY. SO AT THIS POINT YOU DON'T

HAVE A CLEAR SENSE OF WHAT THE HIGHEST RECOVERY MIGHT BE? IS

THAT RIGHT?

MR. WALLACE: NO, NOT TODAY.

THE COURT: OKAY. THAT'S FINE.

WHEN DOES JCC EXPECT TO COMPLETE PROCESSING THE FORMS?

MR. WALLACE: I THINK THAT'S NOT GOING TO BE FOR

SEVERAL WEEKS.

THE COURT: OKAY. AND THEN -- I MEAN, I'M INTENDING

TO GRANT FINAL APPROVAL. HOW SOON DO YOU THINK THE DAMAGES

CLASS WILL RECEIVE THEIR CHECKS?

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MR. WALLACE: WELL, I WOULD ANTICIPATE WITHIN A FEW

MONTHS AT MOST.

THE COURT: OKAY. NOW, THE STADIUM ITSELF HAS BEEN

CLOSED BECAUSE OF COVID-19. IT DOESN'T SEEM LIKE THAT HAS

IMPACTED YOUR ABILITY TO GET NOTICE OUT TO THE CLASS. WOULD

YOU AGREE WITH THAT, OR --

MR. WALLACE: YES. WE THINK NOTICE HAS BEEN

EFFECTIVE, AND OUR UNDERSTANDING IS THAT, YOU KNOW, PEOPLE HAVE

RECEIVED IT IN THE DISABILITY COMMUNITY AND MORE GENERALLY.

THE NOTICE WENT OUT TO THE CLASS LIST, THE ENTIRE CLASS

LIST. AND THEN IN ADDITION TO THAT, IN TERMS OF THE CLAIMS

BEING MADE, WE HAVE MANY FROM PEOPLE WHO WERE NOT ON THE CLASS

LIST. SO I THINK THE SETTLEMENT HAS BEEN WELL KNOWN TO THE

PUBLIC, YOUR HONOR.

THE COURT: AND DO YOU THINK THOSE INDIVIDUALS ARE

NOT CLASS MEMBERS, OR ARE THOSE PEOPLE THAT YOU MAY NEED TO ADD

TO THE CLASS?

MR. WALLACE: I THINK THAT THEY WILL INCLUDE SOME

PEOPLE WE NEED TO ADD TO THE CLASS, AND THEN IT WILL ALSO

INCLUDE SOME WHO ARE NOT CLASS MEMBERS AND WHO MAY BE MAKING

CLAIMS THAT ULTIMATELY WILL NOT BE VALIDATED BY JCC.

THE COURT: I SEE.

MR. WALLACE: SO WE'RE GOING TO HAVE SOME IN BOTH

GROUPS.

THE COURT: ALL RIGHT. AND DO YOU HAVE A SENSE ON

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WHAT THOSE NUMBERS ARE OF -- THE FIRST GROUP BEING PEOPLE WHO

NEED TO BE ADDED TO THE CLASS?

MR. WALLACE: THAT I THINK IS GOING TO PROBABLY BE --

I'M JUST GOING TO HAVE TO ESTIMATE VERY ROUGHLY, YOUR HONOR --

1- OR 2,000 PEOPLE.

AND IN TERMS OF PEOPLE WHO MIGHT TURN OUT TO HAVE CLAIMS

THAT ARE PERHAPS NOT VALID -- AND JCC IS GOING TO HAVE A

PROCESS FOR FOLLOW UP WITH THESE PEOPLE -- WE'VE OBSERVED, FOR

EXAMPLE, THAT WE HAVE 800 DUPLICATE CLAIMS, WHICH DOESN'T SEEM

REASONABLE, AND SO THEY'LL BE FOLLOWING UP ON THOSE.

AND THERE MAY BE A SIGNIFICANT NUMBER OF CLAIMS THAT ARE

DISALLOWED.

THAT'S WHERE WE ARE.

THE COURT: AND BY DUPLICATE CLAIMS, DO YOU MEAN THAT

THE INDIVIDUAL CLASS MEMBER MAY HAVE SUBMITTED MULTIPLE CLAIM

FORMS?

MR. WALLACE: YES.

THE COURT: OKAY. SO I ASSUME IF YOU ADD 1,000 TO

2,000 PEOPLE TO THIS CLASS SIZE, THEN THE RECOVERY MAY GO DOWN.

IS THAT CORRECT?

MR. WALLACE: THE 5,000 -- THE 5,418 NUMBER INCLUDES

ALL CLAIMS THAT HAVE BEEN MADE, BOTH FROM PEOPLE FROM THE

ORIGINAL CLASS LIST AND FROM PEOPLE WHO WERE NOT ON THE

ORIGINAL CLASS LIST.

AND SO WHEN I GAVE YOU THOSE NUMBERS EARLIER, YOUR HONOR,

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THAT ASSUMES THAT 5,418 CLAIMS ARE VALID, SO THAT AVERAGE

ANTICIPATED RECOVERY AND THAT MEDIAN ANTICIPATED RECOVERY

SHOULD NOT GO DOWN SIGNIFICANTLY.

AND IF CLAIMS ARE DISALLOWED AND CLAIMS THAT ARE NOT

REASONABLE OR QUITE POSSIBLY A CLAIM FROM A NON-DISABLED

PERSON -- WHICH YOU DON'T WANT TO THINK ABOUT, BUT THERE

PROBABLY IS SOME OF THAT GOING ON -- THOSE NUMBERS ARE GOING TO

COME UP.

THE COURT: I SEE. OKAY.

MR. WALLACE: WE'RE ANTICIPATING THAT THE RECOVERY

WILL BE ABOVE 4,400 PER CLASS MEMBER.

THE COURT: I SEE. OKAY. SO THE 5,418 INCLUDES THE

DUPLICATE CLAIMS?

MR. WALLACE: IT DOES NOT, MR. JOHNSON INFORMS ME.

THE COURT: I SEE. OKAY. OKAY. SO THAT SHOULD

HOPEFULLY BE A FAIRLY SOLID NUMBER.

BASED ON -- JUST TO KNOW FOR FUTURE CASES, WHAT DO YOU

THINK WAS THE BEST FORM OF NOTICE AND OUTREACH TO THE CLASS?

BECAUSE I WOULD WANT TO REPEAT THAT FOR A FUTURE ADA CASE. DID

YOU GET A SENSE FROM CLASS MEMBERS AS TO WHAT WAS PARTICULARLY

EFFECTIVE IN REACHING THEM? I MEAN, A GOOD -- A GOOD DAMAGES

AWARD HELPS, BUT --

MR. WALLACE: I GET THE SENSE THAT THE -- YES. I GET

THE SENSE THAT THE ONLINE NOTICE MAY HAVE BEEN THE MOST

EFFECTIVE NOTICE OF ALL. CERTAINLY A LOT OF PEOPLE GOT THE

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MAIL AND THE E-MAIL NOTICE OFF THE CLASS LIST, BUT WE SEEM TO

HAVE REALLY REACHED MORE BROADLY WITH THE POSTINGS.

THE COURT: OKAY. ALL RIGHT. WELL, THAT'S GOOD TO

KNOW. THANK YOU FOR LETTING ME KNOW THAT.

YOU GOT A VERY GOOD PARTICIPATION RATE, SO I'M NOT

CONCERNED, BUT FOR THE FOLKS WHOSE CLASS NOTICE AND CLAIM

PACKETS WERE RETURNED AS UNDELIVERABLE, DO YOU FEEL CONFIDENT

THAT THEY PROBABLY GOT THE NOTICE THROUGH SOME OTHER WAY?

MR. WALLACE: YES. WE'RE GOING TO BE FOLLOWING UP

WITH THE NON-DELIVERABLES MORE. I KNOW WE HAVE PROVISIONS IN

THE SETTLEMENT AGREEMENT ABOUT THAT, AND JCC HAS A STANDARD

PROTOCOL FOR THAT. SO WE'LL BE TRYING TO REACH THOSE PEOPLE.

THE COURT: AND HOW WOULD YOU DO THAT IF YOU'VE

ALREADY TRIED MAIL AND E-MAIL AND ONLINE PUBLICATIONS AND

NOTICES THAT CERTAIN FACILITIES -- GO AHEAD.

MR. WALLACE: I THINK WE'LL BE -- YOU KNOW, FOR THE

PEOPLE THAT WE WERE NOT ABLE TO REACH WHO WERE ON THE MAILING

LIST, THERE WOULD BE SKIP TRACING AND THINGS LIKE THAT, YOUR

HONOR, TO TRY AND SEE IF THERE'S A BETTER ADDRESS FOR THEM.

THE COURT: OKAY.

MR. WALLACE: BUT THAT PROCESS IS -- SHOULD BE

UNDERWAY NOW.

THE COURT: BUT WASN'T THE -- WAS THE DEADLINE NOT

JUNE 28TH? ARE YOU GOING TO EXTEND IT FOR THOSE INDIVIDUALS?

OR HOW WOULD THAT WORK?

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MR. WALLACE: IF JCC HASN'T COMPLETED THAT FOLLOW-UP

WITH THE SKIP TRACING, YES, WE WOULD DEFINITELY ANTICIPATE, ON

OUR SIDE, BEING FINE WITH SOME LATE CLAIMS IF THERE'S BEEN A

PROBLEM FINDING A FEW PEOPLE.

THE COURT: AND DOES THE SETTLEMENT AGREEMENT ALLOW

YOU TO EXTEND THE DEADLINE?

MR. WALLACE: MY UNDERSTANDING IS THAT IT DOES. BUT

WE WOULD CERTAINLY HOPE THAT DEFENDANTS WOULD BE AMENABLE TO

THAT.

THE COURT: THAT WOULD DELAY THE -- THAT WOULD DELAY

THE PAYMENT TO THE ENTIRE CLASS BECAUSE YOU'LL HAVE TO WAIT AND

SEE WHAT THEN THE FINAL NUMBERS ARE AND THE FINAL DISTRIBUTIONS

ARE; CORRECT?

MR. WALLACE: IT COULD.

THE COURT: I AM NOT -- I AM NOT AWARE OF SETTLEMENTS

ALLOWING JUST EXTENSIONS OF THE DEADLINE. IT'S KIND OF

PROBLEMATIC TO ME BECAUSE ARE THEY GOING TO OPT OUT AND OBJECT?

THEN SHOULD I HOLD OFF ON GRANTING FINAL APPROVAL? BECAUSE I

NEED TO KNOW THE FINAL NUMBERS BEFORE I MAKE A DECISION.

SO WHERE -- I HAVE THE SETTLEMENT AGREEMENT IN FRONT OF

ME. WHERE IS THE PROVISION THAT ALLOWS JUST SORT OF INDEFINITE

DEADLINES, AND HOW LONG THEN DO I HAVE TO WAIT BEFORE I RULE ON

ANY FINAL APPROVAL MOTION?

MR. WALLACE: I THINK WE CAN CHECK WITH JCC.

MR. JOHNSON IS TELLING ME THAT WE MAY HAVE ALREADY COMPLETED

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THE SKIP TRACING AND ALL OF THAT BEFORE JUNE 28TH, AND THAT

APPEARS TO BE THE UNDERSTANDING OF MS. DARDARIAN AS WELL.

BUT WE WILL CONFIRM THAT, AND IF ANY STEPS TO FOLLOW UP

WITH CLASS MEMBERS THAT COULDN'T BE LOCATED DON'T NEED TO BE

TAKEN, THEN THERE WOULD BE NO NEED TO EXTEND ANY DEADLINES.

THE COURT: OKAY. DOES ANYONE ELSE --

MR. WALLACE: WE WOULD LIKE TO CONFIRM THAT THEY'VE

COMPLETED THAT BEFORE WE, YOU KNOW, EXCLUDE PEOPLE THAT MIGHT

STILL BE FINDABLE.

THE COURT: WELL, DOES ANYONE ELSE ON THE CALL HAVE

THE RELEVANT PROVISION -- I'M LOOKING THROUGH THE SETTLEMENT

AGREEMENT RIGHT NOW -- THAT WOULD PROVIDE FOR EXTENSION OF THE

DEADLINES? AND WHAT DOES THAT MEAN THEN? DO I NEED TO SET A

FUTURE FINAL APPROVAL HEARING TO GO THROUGH THE FINAL NUMBERS?

WHAT DOES THAT MEAN FOR US AND HOW WE PROCEED IN THIS CASE?

MR. WOLF: YOUR HONOR, THIS IS ADAM WOLF.

ONE OF THE FEW BENEFITS OF BEING ONLINE AND NOT IN PERSON

HERE IS THAT WE GET TO E-MAIL A LITTLE BIT DURING THIS PROCESS,

AND SO IF I CAN MAKE THE SUGGESTION THAT WE TRY TO RUN THIS

DOWN DURING THIS HEARING, MAYBE BY THE END OF THE HEARING,

WE'LL HAVE A DEFINITIVE ANSWER FOR YOU.

THE COURT: OKAY. THAT'S FINE.

MR. WOLF: THANK YOU.

THE COURT: THAT'S FINE.

MS. LAMPASONA: YOUR HONOR, THIS IS MARIA LAMPASONA

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FOR THE DEFENSE.

ON PAGE 37 AND 38 IS WHERE THE APPLICABLE PROVISIONS ARE.

THERE ISN'T A PROVISION THAT PERMITS A UNILATERAL EXTENSION,

BUT THERE ARE PROVISIONS RELATED TO DEFECTIVE CLAIM FORMS AND

THE LIKE THAT DO GIVE 30 DAYS FROM THE DATE OF WHICH -- FROM

THE DEADLINE TO SUBMIT A CLAIM.

SO THERE'S ALREADY A 30 DAY WINDOW BUILT IN, ALTHOUGH AS

YOUR HONOR OBSERVED, THERE IS NO SPECIFIC EXTENSION PROVISION.

THE COURT: OKAY. BUT THAT'S A DIFFERENT PROVISION.

I'M LOOKING AT SECTION F ON PAGE 38. IT SAYS THAT "IF A CLAIM

FORM IS INCOMPLETE OR IS NOT SIGNED PROPERLY, THE SETTLEMENT

ADMINISTRATOR SHALL NOTIFY THE CLAIMANT OF THE DEFICIENCY. ALL

CLAIMANTS SHALL BE PROVIDED 30 DAYS FROM THE DATE OF

NOTIFICATION TO CURE ANY DEFECT IN THEIR CLAIM FORM. THE

FAILURE OF A CLAIMANT TO COMPLETE, SIGN AND RETURN THE CLAIM

FORM WITHIN 30 DAYS SHALL RESULT IN THE DENIAL OF THEIR CLAIM."

NOW, I'M READING THIS TO ASSUME THAT IS AT LEAST A CLAIM

FORM THAT WAS TIMELY SUBMITTED THAT MAY HAVE A DEFECT. I'M NOT

READING THIS AS SAYING WE HAVE AN INDEFINITE OPEN DEADLINE TO

SUBMIT A CLAIM FORM.

DO YOU SEE MY DISTINCTION?

MR. WALLACE: I THINK --

THE COURT: SO I -- I WOULD HOPE THAT --

MR. WALLACE: I MAY HAVE BEEN IN ERROR, YOUR HONOR.

THE COURT: I'M SORRY?

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MR. WALLACE: I MAY HAVE BEEN IN ERROR, YOUR HONOR.

THE SETTLEMENT AGREEMENT MAY NOT PERMIT IT, IN WHICH CASE I

SUPPOSE JCC WILL REVIEW THE CLAIMS IT HAS ALREADY RECEIVED.

THE COURT: SO I'M LOOKING AT PARAGRAPH E ON PAGE 38

OF THE SETTLEMENT AGREEMENT. IT SAYS, "ALL CLAIM FORMS MUST BE

MAILED TO THE SETTLEMENT ADMINISTRATOR AND POSTMARKED OR

SUBMITTED ELECTRONICALLY BY NO LATER THAN THE DEADLINE SET

FORTH IN THE COURT'S PRELIMINARY APPROVAL ORDER."

I DON'T SEE ANY FLEXIBILITY ON EXTENDING THAT. AS MUCH AS

I APPRECIATE THE DESIRE TO GET AS MUCH PARTICIPATION AS

POSSIBLE, MY CONCERN IS AT SOME POINT WE NEED TO GET FINALITY

AND GET THAT MONEY DISTRIBUTED, AND I CAN'T MAKE ANY FINAL

DECISION ON THIS UNLESS I KNOW WHAT THE FINAL NUMBERS ARE.

SO, I MEAN, IF YOU ALL TELL ME THAT AS, AS THE PARTIES,

YOU WANT ME TO SET A FURTHER FINAL APPROVAL HEARING A MONTH OR

TWO FROM NOW AND YOU CAN GIVE ME THE UPDATED NUMBERS, I CAN DO

THAT. OR DO YOU WANT TO PROCEED TODAY?

MR. WALLACE: I THINK ON THE PLAINTIFFS' SIDE, WE

WOULD BE -- WE WOULD BE WANTING TO PROCEED TODAY, YOUR HONOR.

THE COURT: WHAT ABOUT THE DEFENDANTS?

MS. LAMPASONA: YOUR HONOR, WE HAVE NO OBJECTION TO

PROCEEDING TODAY.

BUT I DO THINK THAT THERE IS AN INTEREST IN GETTING IN

TOUCH WITH AS MANY PEOPLE AS POSSIBLE, SO I WOULD LIKE TO KNOW

WHETHER THE FOLKS THAT WERE UNABLE TO BE REACHED, IF IT'S

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POSSIBLE TO REACH THEM.

BUT, OF COURSE, WE WILL DEFER TO WHATEVER THE COURT

DECIDES.

THE COURT: SO HOW MANY PEOPLE IS THAT? IS THAT 225

POTENTIAL CLASS MEMBERS? OR WHO IS THE -- YOU KNOW, WHAT IS

THE UNIVERSE OF POTENTIAL PEOPLE THAT YOU STILL WANT TO REACH

OUT TO? AND WHY WASN'T IT DONE ALREADY? I MEAN, THIS

NOTICE -- PRELIMINARY APPROVAL WAS BACK IN JANUARY SO, I MEAN,

WE'VE BEEN -- THIS IS NOT SOMETHING THAT YOU JUST STARTED LAST

WEEK. SO WHY ARE WE STILL NOT HAVING EXHAUSTED OUTREACH

EFFORTS BY THIS POINT, THE FINAL APPROVAL HEARING POINT?

MR. WALLACE: I KNOW, YOUR HONOR, THAT THE MAILING

WENT TO APPROXIMATELY 5,000 PEOPLE. WE DO HAVE 5,418 CLAIM

FORMS. BUT WE ALSO KNOW THAT SOME OF THE PEOPLE WHO MADE THOSE

CLAIMS DO NOT APPEAR ON THE CLASS LIST.

SO WE FEEL LIKE THE NOTICE HAS BEEN EFFECTIVE AND THE

CLAIMS HAVE BEEN RECEIVED. I BELIEVE THAT JCC HAS COMPLETED

ITS FOLLOW-UPS FROM WHAT I'M SEEING IN THE E-MAIL TRAFFIC IN

TERMS OF ADDRESSES THAT COULD BE REACHED, BUT WE JUST NEED TO

CONFIRM THAT.

MS. DARDARIAN: YOUR HONOR, IF I MAY, THIS IS

LINDA DARDARIAN.

IN THE DECLARATION OF EDWARD DATTILO FROM JCC, THE

SETTLEMENT ADMINISTRATOR, HE SUBMITTED A DECLARATION IN SUPPORT

OF FINAL APPROVAL WHERE HE STATES THAT PRIOR TO THE CLASS

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NOTICE BEING ISSUED, JCC DID UPDATE THE LIST FOR MAILING CLASS

NOTICE, THEY UPDATED APPROXIMATELY 500, OR AS HE STATES, 495

ADDRESSES THAT WERE UPDATED TO CREATE A TOTAL CLASS LIST OF

5,779 INDIVIDUALS WHO RECEIVED MAIL NOTICE; 4,789 --

THE COURT: I'M SORRY TO INTERRUPT YOU. I HAVE YOUR

BIG BINDERS. CAN YOU TELL ME WHICH ONE IT IS? I'D LIKE TO

LOOK AT THE DOCUMENT.

CAN I HAVE A COPY OF THE PRELIMINARY APPROVAL ORDER? I

DON'T HAVE THAT WITH ME ON THE BENCH IN THESE BINDERS.

MS. DARDARIAN: YOUR HONOR, THAT IS IN THE

DECLARATION OF EDWARD DATTILO, D-A-T-T-I-L-O, AT PARAGRAPH 4.

(PAUSE IN PROCEEDINGS.)

THE COURT: OKAY. ECF 395-2?

MS. DARDARIAN: YES, YOUR HONOR.

THE COURT: OKAY. AND CAN YOU POINT ME TO THE

PARAGRAPH, PLEASE?

MS. DARDARIAN: PARAGRAPH 4.

(PAUSE IN PROCEEDINGS.)

THE COURT: OKAY. LET ME ASK, DOES THIS SATISFY THE

PARTIES THAT YOU HAVE DONE AS MUCH OUTREACH AS YOU CAN, OR DO

YOU WANT ME TO SET A FURTHER HEARING?

MS. DARDARIAN: YOUR HONOR, THIS IS LINDA DARDARIAN

AGAIN.

I BELIEVE THAT JCC AND CLASS COUNSEL AND DEFENSE COUNSEL

ALL TOGETHER HAVE PROVIDED THE BEST NOTICE PRACTICABLE UNDER

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THE CIRCUMSTANCES, WITH THE MAILED NOTICE AND THE E-MAILED

NOTICE THAT WERE SENT OUT AFTER SKIP TRACING, WITH THE

DISTRIBUTION ON DIFFERENT WEBSITES AND THE DISTRIBUTION TO

DISABILITY RIGHTS ORGANIZATIONS, AND WE DID RECEIVE MORE CLAIM

FORMS THAN WE EXPECTED, AND I THINK THAT ALSO INDICATES THAT

CLASS NOTICE WAS ROBUST.

THE COURT: OKAY. AND SO ALL THE PLAINTIFFS ARE

SATISFIED; IS THAT CORRECT?

MR. WALLACE: YES, YOUR HONOR.

THE COURT: ANYONE ELSE? THAT WAS MR. WALLACE.

I SEE MR. WOLF SHAKING HIS HEAD YES; MR. JOHNSON SHAKING

HIS HEAD YES; MS. FISHER SHAKING HER HEAD YES.

OH, MR. MASCHLER, YOU HAVE JOINED US. WOULD YOU LIKE TO

STATE YOUR APPEARANCE?

MR. MASCHLER: YES, YOUR HONOR.

BRIAN MASCHLER FOR DEFENDANTS.

THE COURT: WELCOME. GOOD AFTERNOON.

OKAY. SO LET ME ASK MS. LAMPASONA AND MR. MASCHLER AND

MR. CREECH NOW, ARE YOU SATISFIED THAT I CAN GO FORWARD TODAY

AND NOT HOLD UP OUR PROCEEDINGS HERE TO SEE IF WE CAN GET MORE

CLAIMS?

MS. LAMPASONA: YOUR HONOR, I AM NOT PRIVY TO THE

INFORMATION REGARDING THE UNDELIVERABLES. I UNDERSTOOD

MR. WALLACE, AT THE BEGINNING OF THIS HEARING, TO REPRESENT

THAT THERE ARE A NUMBER OF UNDELIVERABLES FOR WHICH SKIP

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TRACING MIGHT BE NECESSARY.

NOW IT'S SOUNDING LIKE THAT'S NOT THE CASE, SO I WOULD

JUST LIKE A LITTLE MORE CLARIFICATION REGARDING THE STATUS OF

THE UNDELIVERABLES BEFORE VOICING AN OPINION AS TO WHETHER WE

ARE IN A POSITION TO GO FORWARD TODAY.

THE COURT: OKAY. IS THERE ANY CHANCE THAT SOMEONE

COULD REACH OUT TO JCC DURING TODAY'S HEARING AND PERHAPS WE

COULD GET AN ANSWER ON THAT?

MS. DARDARIAN: I'M SORRY, YOUR HONOR, TO INTERRUPT.

WE HAVE -- WE DO HAVE AN ANSWER ON THE UNDELIVERABLES. OF

THE, YOU KNOW, SEVERAL THOUSAND NOTICE PACKAGES THAT WENT OUT,

JCC RECEIVED 258 OF THEM AS UNDELIVERABLE, AND DELIVERED 33 --

RE-MAILED 33 UPON GETTING UPDATED ADDRESS INFORMATION.

SO THERE ARE ABOUT -- OF THE MANY THOUSAND OF NOTICE

PACKAGES THAT WENT OUT, APPROXIMATELY 225 WERE, IN FACT,

UNDELIVERABLE.

THE COURT: SO LET ME UNDERSTAND THE DEFENDANT'S

CONCERN. I UNDERSTOOD -- AND CORRECT ME IF I'M WRONG -- THAT

IF YOU DON'T GET AN OPT OUT, THEN CLASS MEMBERS HAVE RELEASED

THEIR CLAIMS. IS THAT CORRECT? WHAT IS IT THAT YOU ARE

CONCERNED ABOUT THAT WOULD REQUIRE US NOT TO PROCEED TODAY?

MS. LAMPASONA: I WAS JUST CONCERNED WITH THE

FINALITY OF THE NUMBERS THAT YOUR HONOR WOULD NEED TO CONSIDER

IN ORDER TO ISSUE FINAL APPROVAL, AND OF COURSE THE BOTTOM LINE

CONCERN OF REACHING THE HIGHEST NUMBER OF INDIVIDUALS POSSIBLE.

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THE COURT: OKAY. BUT YOU WOULD AGREE THAT THEY'RE

GOING TO RELEASE THEIR CLAIMS IF THEY DON'T OPT OUT?

MS. LAMPASONA: I AGREE.

THE COURT: OKAY. SO TO THAT EXTENT, DEFENDANTS

WOULD HAVE FINALITY.

OKAY. THEN IS THERE ANY OTHER DEFENDANT, MR. MASCHLER,

MR. CREECH, WHO HAS ANY CONCERNS ABOUT US PROCEEDING TODAY AND

THE COURT ISSUING RULINGS?

MR. CREECH: YOUR HONOR, THIS IS RANDY CREECH. I

REPRESENT THIRD PARTY DEFENDANT TURNER/DEVCON, AND I BELIEVE AS

A THIRD PARTY DEFENDANT, I DON'T REALLY HAVE STANDING TO OBJECT

OR MAKE A COMMENT --

THE REPORTER: I'M SORRY, MR. CREECH. I DIDN'T HEAR

THE LAST PART OF THAT.

MR. CREECH: I DON'T BELIEVE, AS A THIRD PARTY

DEFENDANT, I HAVE STANDING TO CONTEST THE SETTLEMENT BETWEEN

THE PLAINTIFF AND THE DEFENDANT, AS I WAS GOING TO CHALLENGE IF

THEY HAD NOT.

THE COURT: ALL RIGHT. THANK YOU.

MR. MASCHLER, ANYTHING TO ADD?

YOU'RE SHAKING YOUR HEAD NO, BUT WE CAN'T HEAR YOU. OKAY.

MR. MASCHLER: YOUR HONOR --

THE COURT: OH, NOW WE CAN HEAR YOU. GO AHEAD,

PLEASE.

MR. MASCHLER: YES. I HAVE NO OBJECTION.

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THE COURT: ALL RIGHT. THANK YOU.

AND MS. LAMPASONA, YOU ARE NOT OBJECTING TO US PROCEEDING

NOW; IS THAT CORRECT?

MS. LAMPASONA: YES, YOUR HONOR, THAT'S CORRECT.

THE COURT: ALL RIGHT. THANK YOU. I'M GLAD TO CLEAR

THAT UP.

OKAY. WITH REGARD TO -- LET'S GO BACK THEN TO THE SERVICE

AWARDS. DOES THE FACT THAT MR. DEFRANCESCO IS NOT A DAMAGES

CLASS REPRESENTATIVE BECAUSE HE DIDN'T EFFECTIVELY EXHAUST HIS

ADMINISTRATIVE REMEDIES, DOES THAT OR SHOULD THAT AFFECT THE

RECOVERY HE RECEIVES? NOT HIS DAMAGES RECOVERY, BUT HIS

RECOVERY AS A CLASS REPRESENTATIVE? I GUESS IT'S JUST AN

INJUNCTIVE CLASS REPRESENTATIVE.

GO AHEAD, PLEASE.

MS. FISHER: THIS IS KATHERINE FISHER.

WE WOULD SUBMIT THAT IT SHOULDN'T AFFECT HIS SERVICE

AWARD. HE DIDN'T PERFECT HIS CLAIM FOR DAMAGES AGAINST THE

SANTA CLARA DEFENDANT.

THE COURT: UM-HUM.

MS. FISHER: BUT THE DAMAGES CLASS ONLY HAS CLAIMS

AGAINST THE FORTY NINERS DEFENDANT, SO WE DON'T REALLY THINK

THAT SHOULD AFFECT HIS SERVICE AWARD RECOVERY HERE.

THE COURT: RIGHT. BUT I THINK THE COURT FOUND IN A

CLASS CERTIFICATION ORDER THAT HE WASN'T TYPICAL AND COULDN'T

SERVE AS A CLASS REPRESENTATIVE AS TO DAMAGES BECAUSE HE DID

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HAVE THAT DIFFERENCE.

ANYONE ELSE HAVE ANYTHING TO ADD?

MR. WALLACE: YOUR HONOR, I THINK YOU APPOINTED

MR. DEFRANCESCO AS A CLASS REPRESENTATIVE IN THE PRELIMINARY

APPROVAL ORDER, AND SO SINCE HE DID SERVE AT THIS POINT AS A

CLASS REPRESENTATIVE IN THE CASE, I THINK THE DISTINCTION ABOUT

THE VALIDITY OF HIS DAMAGES CLAIM AGAINST THE PUBLIC ENTITY

WOULDN'T REALLY IMPACT HIS ABILITY TO RECOVER LEGALLY FOR THE

WORK THAT HE DID ON BEHALF OF THE INJUNCTIVE RELIEF CLASS.

THE COURT: YES, THE PRELIMINARY APPROVAL ORDER JUST

APPOINTED HIM AS A CLASS REPRESENTATIVE FOR THE INJUNCTIVE

RELIEF CLASS ONLY AND NOT AS A DAMAGES CLASS REPRESENTATIVE.

OKAY. LET ME ASK, DO YOU HAVE ANY -- THE RISK THAT'S

INVOLVED IN JUSTIFYING A HIGHER SERVICE AWARD IS USUALLY IN THE

CONTEXT OF EMPLOYMENT WHERE PLAINTIFFS WHO SUE MAY NOT BE HIRED

BY FUTURE EMPLOYERS WHO MAY BE CONCERNED ABOUT BEING SUED, AND

WE DON'T HAVE THAT HERE IN THAT HERE YOU HAVE A RETAIL BUSINESS

WHO'S NOT LIKELY TO DECLINE THE MONEY OF ANY OF THESE THREE

CLASS REPRESENTATIVES TO MAKE A PURCHASE AT SOME KIND OF RETAIL

BUSINESS.

BUT YOU SAY THE RISK THAT THEY FACE IS BEING TAINTED AS

BEING SERIAL LITIGANTS.

DO YOU HAVE ANY PRECEDENT THAT SUPPORTS THAT TYPE OF RISK?

I HAVE NOT SEEN THAT, AND IN DISABILITY CASES, IT DOES TEND TO

BE A FEW NUMBER PLAINTIFFS WHO BRING ALL THE CASES IN A LOT OF

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RESPECTS, AND I JUST HAVEN'T SEEN THAT AS A BASIS TO INCREASE

THE SERVICE AWARD.

MS. FISHER: YOUR HONOR, WE SEE THAT -- YOU KNOW, THE

PURPOSE OF THE SERVICE AWARD IS TO INCENTIVIZE INDIVIDUALS TO

CONFORM -- TO ENFORCE IMPORTANT PUBLIC POLICIES ON A CLASS-WIDE

BASIS. WE THINK THAT THE WORK THAT THE PLAINTIFFS PUT IN HERE

ISN'T DIFFERENT THAN THE EFFORTS MADE BY PLAINTIFFS IN OTHER

CASES WHERE $5,000 SERVICE AWARDS WERE APPROVED.

I DON'T HAVE A CITE SPECIFICALLY RECOGNIZING THE RISK OF

BEING LABELED AS SERIAL LITIGANTS, AND DISABILITY ACCESS CLASS

ACTIONS AREN'T AS COMMON AS EMPLOYMENT CLASS ACTIONS, BUT I DO

HAVE A COUPLE OF OUT OF DISTRICT CITATIONS TO ORDERS OR REPORTS

THAT APPROVED THE $5,000 SERVICE AWARD FOR DISABILITY ACCESS

CLASS REPRESENTATIVES, AND THESE WERE IN --

THE COURT: OH, I'M SORRY TO INTERRUPT YOU. I DON'T

HAVE ANY PROBLEM WITH THE 5,000 AWARD. BUT YOU'RE SORT OF

SIMULTANEOUSLY ASKING FOR A $7,500 AWARD AND SAYING THE

INCREASE WOULD BE BECAUSE OF THIS RISK.

SO HOW MANY CASES -- LET'S GO THROUGH THEM ONE BY ONE.

FOR MR. ABDUL NEVAREZ, HOW MANY CASES HAS HE SERVED AS A LEAD

PLAINTIFF, A NAMED PLAINTIFF, OR A CLASS REPRESENTATIVE? IN

HOW MANY CASES IS THAT FOR HIM?

MS. FISHER: FIRST, YOUR HONOR, I JUST WANT TO

CLARIFY THAT WE ACTUALLY ARE SEEKING $5,000 SERVICE AWARDS FOR

EACH OF THE NAMED PLAINTIFFS HERE.

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THE COURT: RIGHT. BUT I THOUGHT YOUR PROPOSED ORDER

AND YOUR MOTION WAS TRYING TO BE A LITTLE BIT PLAYING IT BOTH

WAYS, BECAUSE YOU HAVE BOTH NUMBERS IN BOTH YOUR MOTION AND

YOUR PROPOSED ORDER, SO IT'S A LITTLE BIT NOT AS CLEAR. BUT, I

MEAN, I'M FINE WITH THE $5,000 AWARD.

BUT LET ME HEAR, HOW MANY CASES HAS MR. ABDUL NEVAREZ BEEN

A LEAD PLAINTIFF, A NAMED PLAINTIFF, OR A CLASS REPRESENTATIVE?

MS. FISHER: OF COURSE.

SO MR. ABDUL NEVAREZ WAS A PLAINTIFF IN 13 DISABILITY

ACCESS CASES, BUT HE'S NEVER BEEN A CLASS REPRESENTATIVE AND

NEVER RECEIVED A SERVICE AWARD IN ANOTHER CASE.

MR. DEFRANCESCO -- AND THAT 13 IS INCLUSIVE OF THIS CASE.

THE COURT: OKAY. THANK YOU.

MS. FISHER: MR. DEFRANCESCO HAS BEEN A PLAINTIFF IN

SIX DISABILITY ACCESS CASES, INCLUDING THIS ONE.

AND PRISCILLA NEVAREZ HAS BEEN A PLAINTIFF IN 12

DISABILITY ACCESS CASES, INCLUDING THIS ONE.

AND NEITHER MR. DEFRANCESCO OR MS. NEVAREZ HAVE BEEN CLASS

REPRESENTATIVES IN OTHER ACTIONS.

THE COURT: I SEE. AND MS. PRISCILLA NEVAREZ IS NOT

HERSELF DISABLED, SO IS THERE A 100 PERCENT OVERLAP BETWEEN HER

12 ADA CASES AND HER HUSBAND'S 13 ADA CASES?

MS. FISHER: THAT'S CORRECT, YOUR HONOR.

THE COURT: ALL RIGHT. THANK YOU.

WELL, I AM FINE WITH GRANTING THE REQUEST FOR A $5,000

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SERVICE AWARD TO EACH OF THE THREE OF THEM.

DOES ANYONE WANT TO ADD ANYTHING MORE ON THAT SCORE?

MR. WALLACE: NO, YOUR HONOR. THANK YOU.

THE COURT: OKAY. LET'S GO TO THE INJUNCTIVE RELIEF.

I SAW IN THE SCHRAIBMAN DECLARATION THAT IT'S POSSIBLE

THAT COVID-19 MAY CAUSE SOME DELAYS IN THE COMPLETION,

POTENTIALLY, OF ANY REMEDIATION AT LEVI'S STADIUM, AND SO I'M

JUST WONDERING, WHAT IMPACT WILL THAT HAVE ON THE AGREEMENT,

WHICH ANTICIPATES THAT ALL OF THE IMPROVEMENTS WOULD BE MADE IN

THREE YEARS FROM FINAL APPROVAL AND THAT YOU ALL WOULD BE ABLE

TO CONFIRM THE REMEDIATIONS SIX MONTHS AFTER THAT AND FILE A

MOTION FOR COMPLETION?

I DON'T KNOW IF THE SETTLEMENT AGREEMENT PROVIDES FOR SOME

TYPE OF FORCE MAJEURE OR SOMETHING TO ALLOW THOSE DEADLINES TO

BE EXTENDED.

WHAT WAS YOUR THINKING IN CASE THE CLOSURE OF THE STADIUM

AND SOCIAL DISTANCING PREVENTS THE TIMELINE THAT YOU HAD

ENVISIONED FROM ACTUALLY BEING ACHIEVED?

MR. WALLACE: YOUR HONOR, IF THERE IS A PROBLEM WITH

IMPLEMENTING THE CONSTRUCTION, I THINK THAT, AS I RECALL -- I

HOPE I'M GETTING THIS RIGHT -- FEDERAL RULE OF CIVIL PROCEDURE

16(B)(5) ALLOWS FOR MODIFICATIONS OF CLASS ACTION SETTLEMENTS

OR JUDGMENTS FOR EVENTS THAT ARE UNFORESEEN.

AND THIS -- YOU KNOW, IF IT REALLY IS A COVID PROBLEM THAT

SLOWS THE CONSTRUCTION, IT WOULD SEEM THAT THIS WOULD QUALIFY

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FOR THAT, AND WE WOULD MEET AND CONFER WITH THE DEFENDANTS

ABOUT THE CIRCUMSTANCES AND HOPEFULLY ARRIVE AT SOME SORT OF

JOINT PROPOSAL ABOUT A REASONABLE EXTENSION OF THE TIMELINE TO

DO THE WORK.

BUT WE HAVE NOT HEARD, ON OUR SIDE SO FAR FROM DEFENDANTS,

THAT THERE'S A SLOW DOWN AT THIS POINT.

THE COURT: AND I'LL JUST NOTE THAT IN SECTION 16 OF

THE SETTLEMENT AGREEMENT, IT DOES SAY "NOTHING IN THIS SECTION

SHALL BAR CLASS COUNSEL FROM MOVING FOR AN EXTENSION OF THE

AGREEMENT TO ENFORCE ANY OF ITS OBLIGATIONS." SO THERE IS A

MECHANISM FOR YOU ALL.

I WOULD HOPE THAT IF THAT IS THE CASE, THAT YOU ALL COULD

STIPULATE TO AN EXTENSION AND NOT REQUIRE LITIGATION ON THAT

ISSUE.

BUT GO AHEAD, PLEASE. I DON'T KNOW WHETHER DEFENDANTS

WANT TO ADD ANYTHING ON WHETHER COVID IS AFFECTING THE

REMEDIATION TIMELINE.

MS. LAMPASONA: YOUR HONOR, REMEDIATION EFFORTS ARE

UNDERWAY.

WE DID HAVE A CONVERSATION WITH PLAINTIFFS' COUNSEL

RECENTLY ABOUT THE CHALLENGES THAT ARE BEING PRESENTED TO THE

CITY OF SANTA CLARA FROM BOTH A SCHEDULING POINT OF VIEW DUE TO

COVID SOCIAL DISTANCING, AND ALSO A BUDGETARY POINT OF VIEW DUE

TO THE BUDGET SHUTDOWN. WE ARE STILL OPTIMISTIC THAT WE'RE

GOING TO BE ABLE TO WORK WITHIN THE DEADLINES SET IN THE

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SETTLEMENT AGREEMENT.

WITH REGARD TO THE FORTY NINERS DEFENDANTS, SAME CONCERN,

THE SAME CONCERN OF KIND OF SLOW MOVING GIVEN THAT LARGE GROUPS

OF PEOPLE AND ENGINEERS AND SUCH CAN'T GET TOGETHER AT THE

STADIUM LIKE WE HAD BEEN DOING PRIOR TO THE SHUTDOWN. SO WE

HAD BEEN MAKING PROGRESS BEFORE THIS ALL HAPPENED.

SO I DO THINK THE CONVERSATIONS THAT I'VE HAD WITH

PLAINTIFFS' COUNSEL, ESPECIALLY ABOUT THE CHALLENGES WITH THE

CITY OF SANTA CLARA, ARE NOT INSURMOUNTABLE AND WE WOULD BE

ABLE TO STIPULATE TO SOME SORT OF EXTENSION IF THAT BECOMES

NECESSARY.

SAME THING WITH THE FORTY NINERS. I HAVE NO CONCERNS

THAT -- I HAVE CONCERNS THAT WE'LL BE ABLE TO MEET THE

DEADLINES JUST GIVEN THE CURRENT SITUATION, BUT I HAVE NO

CONCERNS THAT THE PARTIES WILL NOT BE ABLE TO WORK OUT A

REASONABLE EXTENSION IF IT'S NECESSARY.

BUT I CAN REPRESENT TO THE COURT THAT ALL OF THE

DEFENDANTS ARE ENGAGING IN REMEDIATION EFFORTS TO THE EXTENT

POSSIBLE CURRENTLY, AND HAVE BEEN IN AN EFFORT TO TRY TO COMPLY

WITH THE DEADLINES AS CURRENTLY SET.

THE COURT: OKAY. THANK YOU.

MR. CREECH: THIS IS RANDY CREECH.

THE COURT: GO AHEAD, PLEASE.

MR. CREECH: TO FURTHER SUPPLEMENT THAT, THAT FACTORS

AND REPRESENTATIVES OF THE FORTY NINERS WERE ACTUALLY OUT AT

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THE STADIUM YESTERDAY VERY SAFELY, VERY SOCIALLY DISTANCED WITH

MASKS WORKING ON REMEDIATION EFFORTS.

THE COURT: OKAY, GREAT. THANK YOU.

I -- YOU KNOW, I HOPE THAT THEY BOTH HAVE THE PUBLIC

HEALTH ABILITY AND THE FINANCIAL ABILITY TO COMPLETE THE

REMEDIATION THAT IS SET FORTH IN THE SETTLEMENT AGREEMENT. SO

THANK YOU. THAT'S GOOD NEWS TO HEAR THAT'S ON TRACK.

AND I'M ASSUMING, MR. -- I APOLOGIZE FOR GETTING UP. I'M

IN A TINY SPACE AND I HAVE ALL THESE BINDERS.

I'M ASSUMING, MR. WALLACE, THAT THE PLAINTIFFS, YOU ALL

WILL BE REASONABLE IF A JUSTIFIED EXTENSION IS NECESSARY BASED

ON COVID-19.

MR. WALLACE: YES.

THE COURT: OKAY. ALL RIGHT. THANK YOU.

OKAY. SO THAT'S IT.

SO THE LAST TOPIC I WANTED TO COVER ARE THE ATTORNEYS'

FEES AND COSTS.

LET ME ASK, THE PLAINTIFFS FILED A NINE PAGE ERRATA FIXING

14 DIFFERENT DOCUMENTS, AND I WAS JUST WONDERING, WHAT WAS THE

REASON FOR THAT? I HAD NOT SEEN THAT BEFORE, YOU KNOW, WHY

YOUR COST NUMBERS CHANGED. OTHER THAN THESE LITTLE TYPO

CHANGES, WHY DID YOU THINK THAT WAS NECESSARY AND WHY WAS IT SO

LATE? IT WAS FILED MONTHS AFTER YOU --

CAN YOU PLEASE PUT YOURSELF ON MUTE IF YOU'RE NOT

SPEAKING, BECAUSE THERE'S FEEDBACK.

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THANK YOU.

MR. WALLACE: FOR PLAINTIFFS, YOUR HONOR, I THINK

MR. JOHNSON IS PROBABLY BEST TO ADDRESS THAT.

BUT THERE WERE SOME INVOICES THAT WE HAD ACCIDENTALLY

OMITTED FROM THE ORIGINAL FILING, BUT WE ULTIMATELY TRACKED

THEM DOWN AND WE WANTED TO BE ABLE TO PROVIDE THEM TO THE

COURT.

AND THEN OTHER THAN THAT, THERE ACTUALLY WERE JUST SOME

SORT OF TYPOS IN MY DECLARATION ACTUALLY THAT WERE FIXED.

BUT REALLY, THE KEY THING WAS THAT THERE WERE SOME

ADDITIONAL INVOICES THAT WE HAD, YOU KNOW, ERRONEOUSLY OMITTED

THAT WE FOUND.

AND I BELIEVE MR. JOHNSON -- THE AMOUNT THAT IT CHANGED

THE COSTS WAS REALLY QUITE MODEST. I THINK IT WAS MAYBE A FEW

THOUSAND DOLLARS.

MR. JOHNSON: YES, I CAN SPEAK TO THAT, YOUR HONOR.

THIS IS MARK JOHNSON.

THE COURT: ALL RIGHT.

CAN EVERYONE PUT THEMSELVES ON MUTE?

THE CLERK: MR. JOHNSON -- OKAY, THANK YOU.

MR. JOHNSON: YES, YOUR HONOR.

THE ISSUE WITH THE ERRATA WAS ALMOST EXCLUSIVELY RELATED

TO COSTS, AS MR. WALLACE SAID. THERE WERE A FEW MINOR THINGS

IN HIS DECLARATION THAT WE CHANGED, BUT EVEN MANY OF THOSE WERE

RELATED TO THE -- TO CERTAIN DISCREPANCIES THAT WE FOUND AFTER

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THE ORIGINAL FILING WITH COSTS.

MOST OF THOSE WERE MINOR. WE NEEDED TO EXCLUDE SOME

ITEMS, FOR EXAMPLE, THAT WE, IT TURNED OUT, DIDN'T HAVE

DOCUMENTATION FOR.

THERE WERE A COUPLE OF MAJOR EXPENSE ITEMS THAT WERE --

THAT TURNED OUT TO OFFSET ONE ANOTHER, BUT WE FELT CERTAINLY

WITH THE SIZE OF THEM, IT WAS NECESSARY TO BRING THEM TO THE --

TO CORRECT THEM ON THE RECORD. ONE OF THOSE WAS THE FACT THAT

WE HAD DOUBLE BILLED FOR AN EXPENSE THAT WE HADN'T REALIZED

THAT IT HAD BEEN CREDITED, AN OVERPAYMENT THAT HAD ALREADY BEEN

CREDITED AGAINST ANOTHER BILLING BY THE SAME VENDOR.

THE OTHER ONE WAS A VENDOR THAT WE HAD OMITTED A BILL FOR,

AND IT WAS ABOUT THE SAME SIZE, AND SO THOSE OFFSET ONE

ANOTHER.

AND AS YOUR HONOR HAS SEEN, THE RESULT -- THE TOTAL RESULT

DIDN'T REALLY DIFFER THAT MUCH FROM OUR ORIGINAL FILING TO THE

FINAL FILING.

AND IN TERMS OF THE TIME, I PERSONALLY WAS INVOLVED IN

TRYING TO DO ALL THE RECONCILIATION THAT WAS NECESSARY, AND

PART OF THAT WAS THE FACT THAT THE THREE FIRMS THAT SHARED

COSTS IN THIS MATTER HAD DIVIDED UP THINGS KIND OF ON A, AN AD

HOC BASIS, AND SO IT WAS VERY DIFFICULT TO RECONCILE ALL OF THE

RECEIPTS AND FIX THE DISCREPANCIES THAT WE ULTIMATELY

IDENTIFIED AND PREPARE THE ERRATA CORRECTING ALL OF THOSE.

SO WE CERTAINLY APOLOGIZE TO THE COURT FOR THE CONFUSION

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THAT AROSE FROM HAVING TO SUBMIT SUCH A LENGTHY ERRATA, BUT WE

WANTED TO BE, YOU KNOW, AS ACCURATE AS POSSIBLE AND NOT HAVE

THOSE ORIGINAL ERRORS TO BE FILED AND REMAIN IN THE RECORD.

THE COURT: OKAY. WELL, AS I SAID IN MY PRIOR ORDER,

I CANNOT -- YOUR OVERALL BOTTOM LINE WAS YOU INCREASED THE

AMOUNT OF COSTS THAT YOU WERE REQUESTING, AND THAT -- IT IS TOO

LATE FOR THE CLASS MEMBERS TO BE ABLE TO OBJECT TO THAT. OUR

PROCEDURAL GUIDANCE FOR CLASS ACTION SETTLEMENTS REQUIRES US TO

GIVE 35 DAYS TO CLASS MEMBERS TO OBJECT TO A MOTION FOR

ATTORNEYS' FEES AND COSTS, SO I CAN'T HONOR THAT INCREASE.

OKAY?

MR. JOHNSON: YES, YOUR HONOR. WE UNDERSTOOD THAT TO

BE THE COURT'S RULING PREVIOUSLY, AND I HOPE WE MADE CLEAR IN

OUR PAPERS THAT WE WERE NOT ASKING THE COURT TO AWARD MORE IN

COSTS THAN WE HAD ORIGINALLY ASKED FOR, EVEN THOUGH THE PAPERS

THAT WE SUBMITTED IN THE FINAL FILING SHOWED THAT.

THE COURT: SO I SAW THAT THE RICHARD PEARL

DECLARATION TO SUPPORT YOUR ATTORNEYS' FEES REQUEST COST ABOUT

$30,000.

HOW MUCH DID THE JOSE ALLEN AND STEVEN SCHRAIBMAN

DECLARATION COST, AND ARE YOU ALSO BILLING THOSE TO THE CLASS?

THOSE WERE ALSO SUBMITTED IN SUPPORT OF YOUR ATTORNEYS' FEES

REQUEST.

MR. WALLACE: THE DECLARATION OF JOSE ALLEN, THERE IS

NO COST ASSOCIATED WITH THAT, YOUR HONOR.

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MR. SCHRAIBMAN'S WORK IN TERMS OF PREPARING THE MINIMUM

CONSTRUCTION COSTS ESTIMATE I BELIEVE WAS SOMEWHERE AROUND $25-

TO $30,000.

THE COURT: AND THAT IS -- WHAT IS INCLUDED IN THE

SERVICES PROVIDED FOR THAT AMOUNT AGAIN, PLEASE?

MR. WALLACE: HE WENT THROUGH THE 2,975 BARRIER ITEMS

AND LOOKED AT THE ATTENDANT REMEDIAL WORK FOR ALL OF THOSE AND

PREPARED A MINIMUM COST ESTIMATE OF THE CONSTRUCTION WHICH, AS

I RECALL OFF THE TOP OF MY HEAD, WAS RIGHT AROUND $11 MILLION.

THE COURT: OH, I'M SORRY TO INTERRUPT YOU.

I'M ASKING, HOW MUCH DID HIS DECLARATION -- HE PREPARED --

OR YOU ALL PREPARED AND HE SIGNED A DECLARATION JUST FOR THE

ATTORNEYS' FEES MOTION. THAT'S WHAT I'M ASKING ABOUT, NOT HIS

WORK FOR THE ENTIRE CASE.

MR. WALLACE: AND THAT'S WHAT I WAS REFERRING TO,

YOUR HONOR. THE DECLARATION WAS PROFFERED TO PROVIDE THE COURT

WITH INFORMATION ABOUT THE MINIMUM COSTS OF IMPLEMENTING THE

ACCESS WORK.

THE COURT: SO THERE WAS NO SEPARATE COST FOR -- HE

CALLS IT A DECLARATION IN SUPPORT OF THE MOTION FOR ATTORNEYS

'FEES. THERE WAS NO COST? IT WAS JUST INCLUDED IN WHAT HE WAS

ALREADY CHARGING FOR THE EXPERT WORK HE WAS DOING? IS THAT

YOUR POINT?

MR. WALLACE: THE ONLY CHARGE THAT WE HAVE IS

ASSOCIATED WITH THAT DECLARATION, AND THE UNDERLYING WORK WAS

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PREPARING THE COST ESTIMATE.

YOU KNOW, YOUR HONOR, IT'S -- WE -- IT'S NOT AN ITEM THAT

I FEEL LIKE WE DEEPLY NEED TO RECOVER FOR. MY FIRM CAN JUST

COVER THAT IF THAT MAKES IT EASIER.

THE COURT: WELL, I'M JUST -- I'M ASKING -- I'M

ASKING QUESTIONS. I JUST WANT TO UNDERSTAND.

MR. WALLACE: OKAY.

THE COURT: SO IF I UNDERSTAND THIS CORRECTLY, SO HE

DID WORK TO QUANTIFY THE COST OF THE REMEDIATION EFFORTS, AND

THEN HE SUBMITTED A DECLARATION IN SUPPORT OF YOUR ATTORNEYS'

FEES MOTION, BUT HE'S NOT CHARGING SEPARATELY FOR THAT

ATTORNEYS' FEES MOTION DECLARATION, IT'S JUST PART OF HIS WORK

FOR THE CASE. IS THAT CORRECT? OR WAS HIS ONLY ROLE TO HELP

YOU ON THE ATTORNEYS' FEES?

MR. WALLACE: THE ONLY ROLE IS TO ASSESS THE EVIDENCE

FOR THE FEE MOTION, YOUR HONOR.

THE COURT: I SEE.

MR. WALLACE: YEAH.

THE COURT: I SEE. OKAY. ALL RIGHT. SO IT SOUNDS

LIKE THEN THE EXPERT COSTS ARE ABOUT $55- TO $60,000 IN THESE

EXPERT DECLARATIONS IN SUPPORT OF YOUR FEES MOTION.

SO I'M NOT SAYING I'M NOT GOING TO APPROVE IT, BUT WHAT IS

THE RATIONALE FOR THE CLASS PAYING FEES TO GET YOUR FEES?

MR. WALLACE: OH, I THINK, YOUR HONOR, THE RATIONALE

WOULD SIMPLY BE THAT OUR UNDERSTANDING OF THE CASE LAW

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TRADITIONALLY IS THAT FEES ON FEES ARE RECOVERABLE. AND, FOR

EXAMPLE, THE PEARL DECLARATION WOULD BE PART OF FEES ON FEES.

THE COURT: LET ME ASK, DID YOU HAVE ANY ATTORNEYS

WHO ARE CONTRACT ATTORNEYS OR PAID BY THE HOUR? I'LL JUST ASK

SPECIFICALLY ABOUT -- WELL, LET ME ASK FOR ALL THE FIRMS

INVOLVED. DID YOU HAVE ANY CONTRACT ATTORNEYS DOING DOCUMENT

REVIEW OR SOMEONE THAT YOU PAID BY THE HOUR FOR DOING ANYTHING

ELSE ON THE CASE?

MR. WALLACE: RIGHT. WE DID -- WE DID NOT HAVE ANY

CONTRACT ATTORNEYS DOING THAT, YOUR HONOR.

WE DID HAVE THREE STAFF ATTORNEYS WHO WERE DOING THAT, AND

THEIR NAMES ARE EDGAR OLIVARES, JUSTIN PROCTOR, AND

RYAN BONNER, AND THEY WERE PAID HOURLY. BUT THEY ARE STAFF

ATTORNEYS WITH MY FIRM.

THE COURT: AND I KNOW THAT SOME PEOPLE CALL CONTRACT

ATTORNEYS STAFF ATTORNEYS. YOU PAY THEM BY THE HOUR? THAT'S

THE REAL ESSENCE OF IT.

MR. WALLACE: WE DO.

THE COURT: SO WHAT IS THE MARKUP ON -- YOU KNOW, I

WAS INTERESTED IN THAT YOU'RE CHARGING FOR THESE, EFFECTIVELY,

CONTRACT BILLERS, LIKE, $625 AN HOUR TO DO DOCUMENT REVIEW.

I DON'T KNOW IF YOU'VE SEEN MY PRIOR DECISIONS, BUT I --

YOU KNOW, MOST OF THESE CONTRACT ATTORNEYS ARE MAKING $25, $35

AN HOUR, SO I DON'T ALLOW THE PROFIT ON THOSE INDIVIDUALS TO

BE, LIKE, $600 AN HOUR. I DON'T PERMIT THAT.

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AS IN MY ANTHEM DATA BREACH ORDER, I ALLOWED IT TO BE $240

FOR THE -- YOU KNOW, THAT'S STILL A CONSIDERABLE MARKUP,

BECAUSE THESE PEOPLE ARE GENERALLY MAKING LESS THAN $35 AN

HOUR.

AND, YOU KNOW, SAME WITH THE YAHOO! DATA BREACH. THEY'RE

ONLY ASKING FOR $240 AN HOUR FOR PEOPLE WHO ARE BEING BILLED

OUT AT THESE COMPARABLE NUMBERS.

SO WHAT -- I JUST DON'T SEE WHY THE MARKUP SHOULD BE SO

DRAMATIC.

DO YOU WANT TO FILE UNDER SEAL HOW MUCH THESE THREE ARE

BEING PAID PER HOUR? WHAT'S THE MARKUP ON THEM?

MR. WALLACE: THE MARKUP IS -- I THINK THEY ARE BEING

PAID $30 AN HOUR, YOUR HONOR, AND SO, YES, THAT WOULD BE A

MARKUP TO THE $625 HOURLY RATE.

THE COURT: I JUST AM NOT SURE WHY CONTRACT DOCUMENT

REVIEWERS GETTING PAID $30 AN HOUR SHOULD BE BILLED OUT AT

$625. I MEAN, SOME OF THEM ARE EVEN HIGHER. I THINK --

MR. WALLACE: I'M NOT AWARE OF ANY THAT ARE HIGHER

THAN THAT, YOUR HONOR.

MR. PROCTOR AND MR. OLIVARES ARE 13TH YEAR ATTORNEYS AND

THEY HAVE EXTENSIVE EXPERIENCE IN THE ANALYSIS OF DOCUMENTS, IN

PARTICULAR CONSTRUCTION DOCUMENTS, FOR LARGE ACCESS CASES LIKE

THIS ONE. SO THERE'S SIGNIFICANT EXPERTISE THAT THEY BRING TO

BEAR.

THEY PREPARED ANALYSIS MEMOS OF THE VOLUMINOUS DOCUMENT

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PRODUCTION IN THIS CASE THAT WAS LARGELY MADE WITHOUT BATES

NUMBERS AND ARRIVED TO US EN MASS, AND OUT OF THAT, BY

RESEARCHING THE DOCUMENTS AND ANALYZING THEM, THEY WERE ABLE TO

GENERATE THE DOCUMENTS THAT WE USED FOR DEPOSITION EXHIBITS.

SO THEIR ROLE WAS VERY IMPORTANT, YOUR HONOR, AND THEY DO

VERY GOOD WORK.

THE COURT: WELL, I'M NOT AT ALL DOUBTING THAT

THEY'RE NOT GOOD ATTORNEYS WHO ARE NOT MAKING VALUABLE

CONTRIBUTIONS.

SO WHAT IS THE TOTAL AMOUNT OF -- AND I GUESS I COULD JUST

DO THE CALCULATION OF HOW MANY HOURS DID THEY WORK, WHAT'S THE

TOTAL --

MR. WALLACE: THAT SHOULD BE POSSIBLE TO DETERMINE BY

LOOKING AT THE CHART AT THE BACK OF THE FEE BRIEF, YOUR HONOR.

DO YOU HAVE THAT, MARK?

THE COURT: I DO HAVE IT AND I KNOW WHAT YOU'RE

TALKING ABOUT.

MR. WALLACE: AND THE THREE ATTORNEYS ARE -- IT IS --

THE COURT: IT DOESN'T SAY HOW MANY HOURS THEY

WORKED. THIS CHART JUST SAYS 625 IS BEING CHARGED FOR

MR. OLIVARES AND MR. PROCTOR, 575 FOR MR. STEWART.

I MEAN, I LOOKED AT YOUR BILLING RECORDS. I COULD TELL

THEY WERE ALL CONTRACT ATTORNEYS.

MR. WALLACE: YOU'RE RIGHT. YOUR HONOR, THEIR TOTAL

NUMBER OF HOURS WOULD BE IN THE CHART THAT'S AT THE BACK OF THE

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BRIEF, AND IT'S JUSTIN PROCTOR, EDGAR OLIVARES, AND RYAN BONNER

WHICH FIT THIS CATEGORY OF BEING HOURLY FOR THEIR WORK ON THE

CASE.

THE COURT: OKAY. NOW IS THERE ANYONE AT EITHER

GOLDSTEIN OR PEIFFER WOLF THAT IS SIMILARLY SITUATED?

MR. WOLF: LINDA, YOU GO FIRST.

MS. DARDARIAN: NO, YOUR HONOR. THE ONLY PERSON FROM

GOLDSTEIN BORGEN WHO DID DOCUMENT REVIEW WHO WAS NOT A REGULAR

ASSOCIATE WAS OUR SUMMER LAW CLERK, MENGFEI SUN.

THE REPORTER: I'M SORRY. CAN YOU REPEAT THAT NAME

PLEASE, AND SPELL IT?

MS. DARDARIAN: OH. MENGFEI, M-E-N-G-F-E-I, LAST

NAME SUN, S-U-N.

SHE DID SOME DOCUMENT REVIEW IN ADDITION TO OTHER TASKS ON

THE CASE WHILE SHE WAS A SUMMER ASSOCIATE AT THE LAW FIRM.

THE COURT: AND HOW MUCH DID YOU BILL HER OUT AT?

$300 AN HOUR? IS THAT THE NUMBER I SAW?

MS. DARDARIAN: YES, IT WAS EITHER -- YES, 300 AN

HOUR.

THE COURT: OKAY. SO THAT'S THE ONLY ONE YOU HAVE IS

A SUMMER ASSOCIATE. WAS SHE A 1L OR 2L?

MS. DARDARIAN: 2L.

THE COURT: OKAY.

MS. DARDARIAN: SHE ALSO DID LEGAL RESEARCH AND SOME

DEPOSITION SUMMARIES IN ADDITION TO DOING DOCUMENT REVIEW ON

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THE CASE AT THAT TIME.

THE COURT: WHAT ABOUT PEIFFER WOLF?

MR. WOLF: GOOD AFTERNOON, YOUR HONOR. THIS IS

ADAM WOLF.

NO, ALL OF OUR PEOPLE WERE FULL-TIME SALARIED INDIVIDUALS.

THE COURT: OKAY. ALL RIGHT. SO, YOU KNOW, I --

(PAUSE IN PROCEEDINGS.)

THE COURT: SO LET ME ASK -- I'LL MAYBE JUST GO TO

MR. WALLACE SINCE IT SOUNDS LIKE THIS IS ONLY APPLICABLE TO HIS

FIRM.

IF I LOOK AT THIS -- LET'S GO TO MR. OLIVARES. HE WORKED

242.4 HOURS, HE MADE $7,272, BUT YOU BILLED HIM OUT AT

$151,500. THE MARKUP IS $144,228.

I MEAN, I AGREE THAT YOU'RE ENTITLED TO GET SOME PROFIT ON

HIS WORK BECAUSE YOU'VE TRAINED HIM, YOU'RE SUPERVISING HIM,

YOU'RE PROVIDING THE INFRASTRUCTURE FOR HIM TO DO THE WORK.

BUT DOES THAT SEEM LIKE A BIG MARKUP TO YOU?

MR. WALLACE: IT DOES, YOUR HONOR. YOU KNOW, IF --

AT OUR FIRM, WE'RE AMENABLE TO THE TYPE OF APPROACH THAT YOU

TOOK TO THIS ISSUE IN THE ANTHEM DATA BREACH ORDER.

THE COURT: OKAY. BECAUSE I'M --

MR. WALLACE: I DON'T WANT THIS TO BECOME A BIG

STICKING POINT IN TERMS OF TRYING TO BRING US TO A RESOLUTION

TODAY.

THE COURT: OH, AND I DON'T MEAN THIS TO BE A

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STICKING POINT. I'M JUST TRYING TO FIGURE OUT WHAT THE RIGHT

NUMBER IS FOR THE ATTORNEYS' FEES.

AND I'LL JUST NOTE FOR -- FOR MR. PROCTOR, THE MARKUP IS

$883,813. IT'S QUITE A BIT BECAUSE HE WORKED ALMOST 1500

HOURS.

MR. WALLACE: HE WAS THE PRIMARY DOCUMENT ANALYSIS

ATTORNEY REALLY ON PLAINTIFFS' SIDE FOR THE CASE.

THE COURT: YEAH. AND IF I LOOK AT MR. STEWART, THE

MARKUP WAS $224,447.50.

SO WE'RE TALKING ABOUT MORE THAN A MILLION DOLLARS WORTH

OF MARKUP HERE, AND I -- I THINK THAT'S A LOT. ACTUALLY, THE

TOTAL MARKUP IS $1,252,488.50.

SO I DON'T KNOW. DOES ANYONE WANT TO COMMENT ON THAT? IT

DOES -- THAT'S A LOT OF -- THAT'S A LOT OF PROFIT.

ANYONE WANT TO COMMENT ON THAT?

MR. WALLACE: I DON'T THINK THAT IN PARTICULAR WE

HAVE MORE TO ADD.

WE DID ALSO, OF COURSE, EXERCISE SIGNIFICANT BILLING

JUDGMENT AS WELL.

THE COURT: OKAY. ALL RIGHT.

SO FROM WHAT I CAN TELL, YOU'RE -- BECAUSE THE SETTLEMENT

AGREEMENT CAPS THE TOTAL AMOUNT OF FEES AND COSTS BASED ON YOUR

LODESTAR, WHICH DOES INCLUDE THIS LARGE MARKUP FOR THESE THREE

ATTORNEYS. YOU ARE -- IT LOOKS LIKE YOU'RE REQUESTING AN EXTRA

$653,289.24. IS THAT CORRECT?

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MR. WALLACE: AN EXTRA? OH, IN TERMS OF GETTING UP

TO THE CAP?

THE COURT: THAT'S CORRECT.

MR. WALLACE: I -- THAT SOUNDS RIGHT.

THE COURT: OKAY.

MR. WALLACE: I MEAN, MR. WOLF IS ACTUALLY THE

ATTORNEY THAT PREPARED THE FEE MOTION, YOUR HONOR.

THE COURT: I SEE. OKAY. THANK YOU FOR LETTING ME

KNOW THAT.

IS THAT RIGHT? I'M JUST TRYING TO UNDERSTAND. BEYOND

WHAT YOU SAY IS YOUR LODESTAR AND THE COSTS, THAT IS THE DELTA

THAT WOULD GET YOU TO THE CAP IN THE SETTLEMENT AGREEMENT? IS

THAT CORRECT?

MR. WOLF: IT SOUNDS LIKE THAT IS CORRECT THAT THAT

IS THE DELTA BETWEEN THE DOWNWARD ADJUSTED LODESTAR AND WHAT

YOUR HONOR JUST CALCULATED AS THE, I DON'T KNOW, EXCESS AMOUNT,

IF YOU WILL, FOR THE CONTRACT OR STAFF ATTORNEYS.

THE COURT: OKAY.

MR. WOLF: I WILL SAY THAT THE WAY THAT WE HAVE

FRAMED THE FEE MOTION, THOUGH, IS THAT WE TOOK OUR DOWNWARD

ADJUSTED LODESTAR, MULTIPLIED WHAT WE THOUGHT WAS A REASONABLE

MULTIPLIER, THAT CAME TO -- WITH OUR COSTS THEN, THAT CAME TO

ABOUT 18.6 MILLION.

BUT THEN WE SAID, BUT WE'RE ONLY ASKING FOR --

THE COURT: WAIT. YOUR MULTIPLIER SAID, WELL, WE GET

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UNITED STATES COURT REPORTERS

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50 PERCENT OF OUR LODESTAR. I MEAN, YOU KNOW, IT'S A LITTLE

BIT OF VOODOO ECONOMICS. I KIND OF DON'T LIKE SAYING, WELL,

THIS IS OUR LODESTAR, BUT WE'RE ENTITLED TO 50 PERCENT AS MUCH

ON TOP, SO WE'RE REALLY ENTITLED TO 18 MILLION. BUT THEN WE'RE

REALLY JUST GOING TO ASK FOR 11 MILLION AND THEN THE COSTS AND

THEN GIVE US THIS EXTRA AND THEN WE WOULD REACH THE CAP.

I MEAN, IT MADE THE MOTION CONFUSING, FRANKLY.

MR. WOLF: I'M SORRY. WE CERTAINLY DID NOT MEAN TO

CAUSE ANY CONFUSION, YOUR HONOR.

WE WERE JUST TRYING TO SAY THAT WE THOUGHT THAT, YOU KNOW,

UNDER A TRADITIONAL ANALYSIS, THAT WE WERE ENTITLED TO ASK FOR

APPROXIMATELY 18.6 MILLION, BUT THEN --

THE COURT: AND THAT WAS BECAUSE -- I'M SORRY TO

INTERRUPT YOU -- BECAUSE YOU THINK YOU'RE ENTITLED TO 50

PERCENT OF YOUR LODESTAR, ON TOP OF YOUR LODESTAR?

MR. WOLF: CORRECT, AT 1.8.

THE COURT: OKAY. BUT WHAT YOU'RE ASKING FOR, THE

DELTA, THE 653, THAT WOULD BE A MULTIPLIER OF 1.05? IS THAT

RIGHT, ROUGHLY?

MR. WOLF: I GUESS THAT'S --

THE COURT: OKAY.

MR. WOLF: I THINK THAT'S RIGHT, YOUR HONOR.

THE COURT: OKAY. ALL RIGHT. THANK YOU.

LET ME ASK -- AND YOU DID -- YOU HAD APPLIED FOR A TRO

SEEKING TO ENJOIN THE MEDIATION OF THE FIRST FILED CASE, AND I

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SAID YOU WERE NOT ALLOWED TO SEEK FEES FOR THAT BECAUSE THAT

COULD HAVE ALLOWED FOR THE INJUNCTIVE RELIEF TO BE IMPLEMENTED

SOONER AT THE STADIUM.

HOW MUCH OF THE -- HOW MUCH MONEY DID YOU TAKE OUT FOR

THAT TRO?

MR. WALLACE: I THINK APPROXIMATELY $50,000 OR SO.

THE COURT: OKAY.

MR. WALLACE: WE GOT ALL OF IT OUT OF THERE, THOUGH,

I'M PRETTY SURE.

THE COURT: ALL RIGHT.

MR. WOLF, WERE YOU -- WHAT WERE YOU GOING TO SAY? YOU

LOOKED LIKE YOU WERE GOING TO SAY SOMETHING.

MR. WOLF: THANK YOU, YOUR HONOR.

I WAS JUST SAYING -- I WAS JUST CONFIRMING FOR YOU THAT

THE LODESTAR FIGURE WE HAVE CALCULATED AND GIVEN TO YOUR HONOR

AND THE TIME THAT SUPPORTED THAT DO NOT INCLUDE ANY WORK ON

THAT ISSUE.

THE COURT: OKAY. ALL RIGHT. THANK YOU.

OKAY. I THINK I HAVE EXHAUSTED MY LIST OF QUESTIONS. I'M

PLEASED THAT THE PARTICIPATION RATE HAS BEEN VERY HIGH AND THAT

THE CLASS MEMBERS ARE GOING TO GET REALLY MEANINGFUL -- THIS IS

A SIGNIFICANT DAMAGES AWARD AND THERE'S GOING TO BE EXTENSIVE

REMEDIATION, SO INJUNCTIVE RELIEF AS WELL.

SO I DO INTEND TO GRANT FINAL APPROVAL AND GRANT THE

$5,000 IN SERVICE AWARDS.

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I DO WANT TO LOOK A LITTLE BIT MORE AT THE ATTORNEYS' FEES

QUESTION. I MEAN, OBVIOUSLY I WILL AWARD ATTORNEYS' FEES. I

JUST DO WANT TO LOOK AT THE NUMBERS A LITTLE BIT.

IS THERE ANYTHING MORE FOR TODAY? BECAUSE I BELIEVE THAT

IS MY FULL COMPLEMENT OF QUESTIONS.

MR. WALLACE: I DON'T THINK WE HAVE MORE FOR

PLAINTIFFS, YOUR HONOR, OTHER THAN THANK YOU TO YOU AND YOUR

STAFF FOR WORKING HARD ON THIS CASE.

THE COURT: AND THANK YOU TO ALL OF YOU. THIS WAS A

HARD FOUGHT CASE. I HAVE TO SAY IT WAS PRETTY INTIMIDATING

WITH SO MANY CLAIMS AND SO MANY BARRIERS AND A LOT OF

LITIGATION.

SO THANKS TO ALL OF YOU. I THINK THIS IS A GOOD

SETTLEMENT THAT WILL BRING MEANINGFUL RELIEF TO THE CLASS. SO

THANK YOU TO EVERYONE.

ANYONE ELSE WANT TO ADD ANYTHING? OTHERWISE I'M GOING TO

THANK YOU AND WISH THAT YOU STAY IN GOOD HEALTH AND HAVE A

GREAT DAY.

ANYTHING ELSE?

MS. LAMPASONA: NO, YOUR HONOR.

MR. WOLF: THANK YOU, YOUR HONOR.

MR. CREECH: THANK YOU, YOUR HONOR.

MR. WALLACE: THANK YOU, YOUR HONOR.

THE COURT: ALL RIGHT. TAKE GOOD CARE OF YOURSELVES.

THANK YOU.

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MS. FISHER: THANK YOU.

MS. DARDARIAN: THANK YOU, YOUR HONOR.

THE CLERK: THANK YOU. COURT ADJOURNED.

(THE PROCEEDINGS WERE CONCLUDED AT 3:43 P.M.)

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UNITED STATES COURT REPORTERS

CERTIFICATE OF REPORTER

I, THE UNDERSIGNED OFFICIAL COURT REPORTER OF THE UNITED

STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,

280 SOUTH FIRST STREET, SAN JOSE, CALIFORNIA, DO HEREBY

CERTIFY:

THAT THE FOREGOING TRANSCRIPT, CERTIFICATE INCLUSIVE, IS

A CORRECT TRANSCRIPT FROM THE RECORD OF ZOOM PROCEEDINGS IN THE

ABOVE-ENTITLED MATTER.

_______________________________

LEE-ANNE SHORTRIDGE, CSR, CRR

CERTIFICATE NUMBER 9595

DATED: AUGUST 14, 2020

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