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Clarkson Law Firm, P.C.

9255 Sunset Blvd., Suite 804

Los Angeles, CA 90069

CLARKSON LAW FIRM, P.C.

Ryan J. Clarkson (SBN 257074)

rclarkson@clarksonlawfirm.com

Shireen M. Clarkson (SBN 237882)

sclarkson@clarksonlawfirm.com

Bahar Sodaify (SBN 289730)

bsodaify@clarksonlawfirm.com

9255 Sunset Blvd., Ste. 804

Los Angeles, CA 90069

Tel: (213) 788-4050

Fax: (213) 788-4070

Settlement Class Counsel

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

THOMAS IGLESIAS, individually and on 

behalf of all others similarly situated,

Plaintiff,

vs.

FERRARA CANDY CO., and DOES 1 

through 10, inclusive,

Defendants.

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Case No. 3:17-cv-00849-VC

[CLASS ACTION]

PLAINTIFF’S NOTICE OF MOTION 

AND MOTION FOR ATTORNEYS’ 

FEES, EXPENSES, AND SERVICE 

AWARD; MEMORANDUM OF POINTS 

AND AUTHORITIES IN SUPPORT 

[Concurrently served with:

Declaration of Ryan J. Clarkson;

Declaration of Thomas Iglesias; 

Supporting Exhibits thereto; and

Proposed Order]

Hon. Judge Vince Chabbria

Complaint filed: February 21, 2017

Hearing Date: October 25, 2018

Hearing Time: 10:00 AM

Hearing Location: Courtroom 4

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NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on October 25, 2018, at 10:00 a.m., or as soon thereafter as 

the matter may be heard in Courtroom 4, 17th Floor, of the United States District Court for the 

Northern District of California, located at 450 Golden Gate Avenue, San Francisco, California 

94102, before the Honorable Judge Vince Chhabria, Plaintiff Thomas Iglesias (“Plaintiff” or “Mr. 

Iglesias”), on behalf of himself, the general public, and all others similarly situated, by and 

through his counsel Ryan J. Clarkson, Shireen M. Clarkson, and Bahar Sodaify of Clarkson Law 

Firm, P.C. (“Class Counsel”), in this matter against Ferrara Candy Company (“Defendant” or 

“Ferrara”) shall and hereby does move the Court for an order granting Plaintiff’s motion for 

attorneys’ fees, expenses, and service award, as follows: (a) a 25% benchmark attorneys’ fees 

award in the amount of $625,000; (b) reasonably and necessarily incurred litigation expenses in 

the amount $102,172.12; and (b) a reasonable service award of $5,000.00 to the sole class 

representative and named Plaintiff Thomas Iglesias. 

This motion is brought pursuant to the Court’s preliminary approval order (Dkt. 80) and the 

settlement of the parties (Dkt. 72-4), and is based on the attached memorandum of points and 

authorities; declaration of Ryan J. Clarkson; declaration of Thomas Iglesias; proposed order; all 

other records, pleadings, and papers on file in this action; and such other evidence or argument as 

may be presented to the Court at the hearing on the motion. 

Dated: September 6, 2018 CLARKSON LAW FIRM, P.C.

________________________________

 Ryan J. Clarkson, Esq.

Shireen M. Clarkson, Esq.

Bahar Sodaify, Esq.

Settlement Class Counsel

Case 3:17-cv-00849-VC Document 83 Filed 09/06/18 Page 2 of 21
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TABLE OF CONTENTS

Page(s)

I. INTRODUCTION ..................................................................................................................1

II. FACTUAL AND PROCEDURAL BACKGROUND............................................................1

A. Procedural History. .....................................................................................................1

B. Class Counsel Expended Considerable Time and Resources to Investigate,

Litigate, and Settle These Class Claims......................................................................2

C. Class Counsel Achieved Substantial Benefits for the Settlement Class.....................3

III. THE AGREED-UPON FEE REQUEST IS FAIR, REASONABLE, AND JUSTIFIED ......4

A. The Ninth Circuit Benchmark of Twenty-Five Percent of the Common Fund is 

Warranted....................................................................................................................5

1. The Results Achieved Justify a Benchmark Award. ............................................6

2. The Risks Involved Support Justify a Benchmark Award....................................6

3. The Complexity and Novelty of the Issues Support a Benchmark Award...........7

4. The Skill Required, Quality of Work, and Arms’ Length Negotiations By 

Experienced Counsel Support a Benchmark Award.............................................8

5. The Contingent Nature of the Case Supports a Benchmark Award .....................9

6. Lack of Objections by Class Members to Requested Fees Supports a

 Benchmark Award ..............................................................................................10

B. The Lodestar Cross-Check Confirms the Reasonableness of the Requested Fee 

Award........................................................................................................................10

1. Class Counsel’s Hourly Rates are Reasonable. ..................................................11

2. Class Counsel’s Hours Expended are Reasonable..............................................12

3. Class Counsel’s Lodestar is Reasonable.............................................................12

4. Enhancement of the Lodestar is Justified ...........................................................12

IV. REIMBURSEMENT OF LITIGATION EXPENSES IS WARRANTED ..........................13

V. THE SERVICE AWARD FOR THE NAMED PLAINTIFF IS FAIR................................14

VI. CONCLUSION.....................................................................................................................15

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TABLE OF AUTHORITIES

Page(s)

CASES

Barbosa v. Cargill Meat Solutions Corp., 

297 F.R.D. 431 (E.D. Cal. 2013) ........................................................................................5, 9

Bratton v. The Hershey Co.,

Case No. 2:16-cv-04322 (W.D. Mo. Feb. 16, 2018) ..............................................................8

Camacho v. Bridgeport Financial, Inc.,

523 F.3d 973 (9th Cir. 2008) ................................................................................................11

Craft v. County of San Bernardino,

624 F. Supp. 2d 1113 (C.D. Cal. 2008) ................................................................................13

Daniel v. Tootsie Roll Indus., LLC,

2018 U.S. Dist. LEXIS 129143 (S.D.N.Y. Aug. 1, 2018)......................................................7

Faigman v. AT&T Mobility LLC,

2011 WL 672648 (N.D. Cal. Feb. 16, 2011) ........................................................................15

Fischel v. Equitable Life Assurance Soc’y of the U.S.,

307 F.3d 997 (9th Cir. 2002) ................................................................................................10

Franco v. Ruiz Food Prods.,

2012 U.S. Dist. LEXIS 169057 (E.D. Cal. Nov. 27, 2012)....................................................9

Garner v. State Farm Mut. Auto. Ins. Co.,

2010 U.S. Dist. LEXIS 49482 (N.D. Cal. Apr. 22, 2010) ..............................................10, 13

Gutierrez v. Wells Fargo Bank, N.A.,

2015 U.S. Dist. LEXIS 67298 (N.D. Cal. May 21, 2015)....................................................12

Hanlon v. Chrysler Corp.,

150 F.3d 1011 (9th Cir. 1998) ................................................................................................5

Hensley v. Eckerhart,

461 U.S. 424 (1983)................................................................................................................3

Hopkins v. Stryker Sales Corp., 

2013 U.S. Dist. LEXIS 16939 (N.D. Cal. Feb. 6, 2013) .......................................................9

Kim v. Euromotors West/The Auto Gallery,

149 Cal.App.4th 170 (2007) ...................................................................................................5

Kline v. Dymatize Enters., LLC,

2016 U.S. Dist. LEXIS 142774 (S.D. Cal. Oct. 13, 2016) .................................................3, 6

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Knight v. Red Door Salons, Inc.,

2009 U.S. Dist. LEXIS 11149 (N.D. Cal. Feb. 2, 2009) ........................................................8

In re Activision Sec. Litig.,

723 F. Supp. 1373 (N.D. Cal. 1998)...................................................................................5, 6

In re Bluetooth Headset Prods. Liab. Litig.,

54 F.3d 935 (9th Cir. 2011) ....................................................................................................5

In re Equity Funding Corporation Securities Litigation, 

438 F. Supp. 1303 (C.D. Cal. 1977) .......................................................................................7

In re Heritage Bond Litig.,

2005 U.S. Dist. LEXIS 13555 (C.D. Cal. June 10, 2005) ......................................................9

In re Media Vision Tech. Sec. Litig,

913 F. Supp. 1362 (N.D. Cal. 1996).....................................................................................13

In re Mercury Interactive Corp.,

618 F.3d 988 (9th Cir. 2010) ..................................................................................................5

In re Omnivision Techs.,

559 F. Supp. 2d 1036 (N.D. Cal. 2007) ............................................................................5, 6

In re Toys R Us-Delaware, Inc. Fair & Accurate Credit Transactions Act (FACTA) Litig.,

295 F.R.D. 438 (C.D. Cal. 2014)).........................................................................................15

In re Washington Pub. Power Supply Sys. Sec. Litig.,

19 F.3d 1291 (9th Cir. 1994) ........................................................................................ passim

Paul, Johnson, Alston & Hunt v. Graulty,

886 F.2d 268 (9th Cir. 1989) ...............................................................................................11

Pom Wonderful, LLC v. Purely Juice, Inc., 

2008 U.S. Dist. LEXIS 110460 (C.D. Cal. Sep. 22, 2008)...................................................12

Prison Legal News v. Schwarzenegger,

608 F.3d 446 (9th Cir. 2010) ................................................................................................11

Six Mexican Workers v. Arizona Citrus Growers,

904 F.2d 1301 (9th Cir.1990) .......................................................................................6, 9, 11

Staton v. Boeing,

327 F.3d 938 (9th Cir. 2003) ............................................................................................5, 14

Steiner v. American Broadcasting Co., Inc.,

247 Fed. Appx. 780 (9th Cir. 2007)......................................................................................13

Tait v. BSH Home Appliances Corp.,

2015 U.S. Dist. LEXIS 98546 (C.D. Cal. July 27, 2015).....................................................14

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Van Vranken v. Atl. Richfield Co.,

901 F. Supp. 294 (N.D. Cal. 1995).......................................................................................14

Vizcaino v. Microsoft Corp.,

290 F.3d 1043 (9th Cir. 2002) ...................................................................................... passim

White v. Just Born, Inc.,

Case No. 2:17-cv-04025 (W.D. Mo. Aug. 7, 2018)................................................................8

Widrig v. Apfel, 

140 F.3d 1207 (9th Cir. 1998) ..............................................................................................11

OTHER AUTHORITIES

Cal. Civ. Code §1750........................................................................................................................5

Cal. Civ. Code §1780........................................................................................................................5

Fed. R. Civ. P. 23 ..........................................................................................................................3, 4

Federal Judicial Center, Manual for Complex Litigation, § 27.71, (4th Ed. 2004) ..........................3

Manual for Complex Litigation, § 14.121.........................................................................................6

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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION 

Plaintiff Thomas Iglesias moves the Court for an award of attorneys’ fees, expenses, and a 

service award as part of this preliminarily approved class action settlement (Dkt. 80) of Plaintiff’s 

claims alleging violations of California and federal consumer protection and packaging laws in 

connection with the packaging of opaque, theater box candy products manufactured by Defendant.

Pursuant to the terms of settlement, Class Counsel may apply for attorneys’ fees in an 

amount not to exceed $750,000, or 30% of the $2.5 million claim fund, plus reimbursement of 

out-of-pocket expenses, subject to court approval (Dkt. 72-4 ¶ 9.1).1 Class Counsel now seeks an 

award of attorneys’ fees in the amount of 25%, or $625,000, and reimbursement of $102,172.12 in 

litigation expenses. The requested fees are reasonable, and Class Counsel asks the Court to follow 

Ninth Circuit precedent in awarding the benchmark fee award. All expenses were reasonably 

expended to achieve the settlement, a $2.5 million claim fund and significant injunctive relief for 

the class. Plaintiff also seeks a $5,000 service award as payment for his commitment of time, 

effort, and resources on behalf of the settlement class. Id. ¶ 9.2.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural History

Plaintiff filed this lawsuit on February 21, 2017, alleging violations of state and federal 

packaging laws and consumer protections laws (Dkt. 1). On April 19, 2017, Defendant filed a 

Rule 12(b)(6) motion to dismiss Plaintiff’s complaint (Dkt. 14). On May 10, 2017, Plaintiff filed 

 1 Specifically, Defendant will pay up to $500,000 in Court-approved attorney fees, costs and 

expenses within 45 days after entry of final approval. Id. ¶ 9.1.1. If the Court approves attorneys’ 

fees, costs, and expenses in excess of $500,000, Defendant will cause the remaining balance to be 

paid within forty-five (45) days after the Effective Date. Dkt. 72-4 ¶ 1.17 (“Effective Date” means 

the first date by which all of the following events shall have occurred: the Court has entered the 

Final Approval Order and Judgment on the docket in the Action, and (a) the time to appeal from 

such order has expired and no appeal has been timely filed, (b) if such an appeal has been filed, it 

has finally been resolved and has resulted in an affirmation of the Final Approval Order and 

Judgment, or (c) the Court, following the resolution of the appeal, enters a further order or orders 

approving settlement on the terms set forth herein, and either no further appeal is taken from such 

order(s) or any such appeal results in affirmation of such order(s) on appeal. Without limiting the 

generality of the foregoing, the Effective Date shall not occur prior to final resolution of the Fee 

and Cost Application and any appeals regarding the Fee and Cost Application.)

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his first amended complaint (“FAC”) pursuant to Rule 15(a) to add additional remedies available 

under the statutes in lieu of an opposition (Dkt. 18). On May 24, 2017, Defendant filed a Rule 

12(b)(6) motion to dismiss the FAC, claiming the products are not misleading and do not contain 

nonfunctional slack-fill (Dkt. 28), which Plaintiff opposed on June 7, 2017 (Dkt. 34), to which 

Defendant replied on June 14, 2017 (Dkt. 37), and the Court denied on July 25, 2017 (Dkt. 40). 

Defendant answered Plaintiff’s FAC on August 8, 2017 (Dkt. 41).

In the ensuing weeks, the parties negotiated and filed a stipulated protective order to share

documents (Dkt. 43). During the following months, the parties met and conferred over Plaintiff’s 

discovery requests and Defendant’s (supplemental) responses, which led to Plaintiff’s motion to 

compel (Dkt. 47), which the Court granted on November 29, 2017 (Dkt. 48). Defendant then 

produced over 6,000 documents, which Class Counsel reviewed before Rule 30(b)(6) depositions 

on December 20-21, 2017 in Chicago. See Declaration of Ryan J. Clarkson (“RJC Decl.”) ¶ 16.

Meanwhile, Plaintiff’s counsel pressed to a settlement-ready posture. On October 10, 

2017, the parties mediated in San Francisco with Martin Quinn but the case did not settle. RJC 

Decl. ¶ 18. On the heels of Plaintiff’s credible deposition testimony on November 13, 2017 and 

successful motion to compel on November 29, 2017, the parties slated a second mediation, which 

was held on February 2, 2018, with Honorable William Cahill (Ret.) in San Francisco. Id. ¶ 19. 

Judge Cahill telephonically mediated in the ensuing months. Id. ¶ 26. Within weeks of Plaintiff’s 

class certification motion on March 5, 2018 (Dkt. 53-54), the parties settled (Dkt. 58). Id.

On May 10, 2018, Plaintiff filed his motion for preliminary approval of the proposed 

settlement (Dkt. 72), which the Court granted (Dkt. 80). Id. ¶ 28.

B. Class Counsel Expended Considerable Time and Resources to Investigate, 

Litigate, and Settle These Class Claims.

Class Counsel has spent 1,081.8 hours on this case, including investigation of the facts and 

law (RJC Decl. ¶¶ 3-10); overcoming multiple pleadings challenges (Id. ¶¶ 12-14); relentlessly 

pursuing discovery (Id. ¶¶ 15-17); pressing settlement (Id. ¶¶18-19, 26); retaining and working 

with experts in multiple disciplines (Id. ¶¶ 20-25); filing a strong class certification motion (Id. ¶ 

25); and negotiating the strongest slack fill settlement on record (Id. ¶ 27). 

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The benefits of the settlement are substantial, particularly given the numerous obstacles 

Class Counsel overcame to achieve it and the risks of continued litigation for the class. Id. ¶ 27, 

29-31. While vigorously litigating this case, Class Counsel had to navigate the ever-changing legal 

terrain and overcome pitfalls common to other slack-fill lawsuits. Id. ¶ 31. As reflected in hotly 

contested pleadings challenges, this case raised novel issue, which Plaintiff and Class Counsel 

astutely addressed and overcame. Id. Additionally, Class Counsel faced substantial risks of 

nonpayment in prosecuting this case on a contingency fee basis. Id. ¶ 9. At class certification, 

Class Counsel continued to vigorously represent the class by preparing a robust, expert-driven 

motion that included expert opinions from four highly credible experts, accompanied by a largescale consumer survey, detailed slack-fill analysis, marketing analysis, and conjoint analysis. Id. 

¶¶ 20-25. Settlement also was not a simple endeavor, consisting of two mediations in San 

Francisco followed by months of mediation privileged settlement negotiations. Id. ¶¶ 18-19, 26.

C. Class Counsel Achieved Substantial Benefits for the Settlement Class. 

The results obtained for the class are generally considered to be the most important factor 

in determining the appropriate fee award in a common fund case. See Hensley v. Eckerhart, 461 

U.S. 424, 435 (1983); see also Federal Judicial Center, Manual for Complex Litigation, § 27.71, p. 

336 (4th Ed. 2004) (the “fundamental focus is on the result actually achieved for class members”) 

(citing Fed. R. Civ. P. 23(h) committee note). Standing alone, this factor supports Class Counsel’s 

fee request. As a result of Class Counsel’s vigorous prosecution of this case and negotiation of the 

settlement, Class Counsel secured important and substantial benefits for the settlement class.

First, the settlement is the largest-ever slack-fill settlement on record2 and provides a 

superior recovery for the class. RJC Decl. ¶ 27. Defendant will pay a total of $2.5 million in cash 

to a common claim fund. Id. Subject to court approval, the settlement fund will be used to pay the 

settlement payments to class members, discussed infra, notice and administration costs 

($522,000), a service award to Mr. Iglesias ($5,000), reimbursement of litigation expenses 

($102,172.12), and an award of reasonable attorneys’ fees ($625,000). Id. ¶ 28.

 2 Cf. Kline v. Dymatize Enters., LLC, No. 15-CV-2348, 2016 U.S. Dist. LEXIS 142774 (S.D. Cal. 

Oct. 13, 2016) (protein powder slack-fill case securing injunctive relief only).

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Second, each class member who makes a claim may obtain a cash refund of 50 cents per 

box purchased for an unlimited number of purchases. Dkt. 72-4 ¶ 4.2.2. Up to 15 claims, for a 

total of $7.50, will be paid without proof of purchase. Id. There is no cap on the number or amount 

of claims submitted by class members with proof of purchase. Id. These amounts are subject to 

increase or decrease, pro rata, to ensure the claim fund is exhausted. Id. ¶ 4.2.6. Claims may be 

submitted electronically or by mail. Id. ¶ 5.1.3.1. No money will revert to Defendant. Id. ¶ 4.2.7. 

Significantly, there have been 71,116 claim submissions to date. Id. ¶ 30.

Third, this settlement also provides the class with significant injunctive relief from 

Defendant by way of modifying its fill level quality control procedures and target fill levels going 

forward to at least 75% for theater box products, and 50% for all other products, including bag-ina-box. Id. ¶ 4.1. This is excellent relief given that Plaintiff’s packaging design engineering expert 

estimated the actual fill levels for theater box products to range from 42.6% to 52.5% and for bagin-a-box products to be 27.2% (Dkt. 54-18 p. 30 tbl. 11).

Fourth, the settlement also provides that all costs of notice and administration of the 

settlement ($522,000) will be paid from the claim fund. RJC Decl. ¶ 28.

Lastly, subject to Court approval, the settlement provides for a service award of $5,000 to 

Mr. Iglesias, who served as the class representative. Mr. Iglesias was an active participant in this 

lawsuit from the onset. Id. ¶¶ 56-60. He reviewed documents before they were filed, responded to 

written discovery, and sat for a full day deposition during which he provided stellar testimony. Id. 

Defendant even communicated to Class Counsel that the strength of Mr. Iglesias’ testimony was 

one of the primary reasons Defendant was persuaded to settle this case. Id. ¶ 17. 

III. THE AGREED-UPON FEE REQUEST IS FAIR, REASONABLE, AND JUSTIFIED

Federal Rule of Civil Procedure 23 provides, “In a certified class action, the court may 

award reasonable attorneys’ fees and nontaxable costs that are authorized by law or by the parties’ 

agreement.” Fed. R. Civ. P. 23(h). Pursuant to the terms of the settlement, Class Counsel may 

move the Court for an award of attorneys’ fees not to exceed 30% of the amount actually 

contributed to the common fund, plus litigation expenses. Dkt. 72-4 ¶ 9.1. Here, Plaintiff seeks a 

benchmark award of 25%, or $625,000.

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Plaintiff is entitled to attorneys’ fees pursuant to the Consumers Legal Remedies Act 

(“CLRA”), California Civil Code Section 1750, et seq., which requires mandatory payment of

attorneys’ fees and costs to successful plaintiffs. The attorneys’ fees provision of the CLRA, 

Section 1780(e), states: “The court shall award court costs and attorney fees to a prevailing 

plaintiff in litigation filed pursuant to this section.” Thus, some award of attorneys’ fees is 

mandatory. Kim v. Euromotors West/The Auto Gallery, 149 Cal.App.4th 170, 177 (2007).

In common fund cases such as this one, courts within the Ninth Circuit have discretion to 

use one of two methods to determine whether the fee request is reasonable: (1) percentage-of-thefund; or, (2) lodestar plus a risk multiplier. Staton v. Boeing, 327 F.3d 938, 967-68 (9th Cir. 

2003); see also In re Mercury Interactive Corp., 618 F.3d 988, 992 (9th Cir. 2010). “Though 

courts have discretion to choose which calculation method they use, their discretion must be 

exercised so as to achieve a reasonable result.” In re Bluetooth Headset Prods. Liab. Litig., 654 

F.3d 935, 942 (9th Cir. 2011).

The benchmark request for attorneys’ fees is reasonable based upon the extensive arm’s 

length negotiations that serve as independent confirmation of the fairness of the settlement, 

including attorneys’ fees. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1029 (9th Cir. 1998). The 

requested fees are also fully supported under the percentage-of-the-fund and lodestar approach, 

which Class Counsel offer as an additional means of cross-checking the requested fees.

A. The Ninth Circuit Benchmark of Twenty-Five Percent of the Common Fund is 

Warranted. 

The “benchmark” percentage for attorneys’ fees in the Ninth Circuit is 25% of the 

common fund with costs and expenses awarded in addition to this amount. Vizcaino v. Microsoft 

Corp., 290 F.3d 1043, 1047 (9th Cir. 2002). “However, in most common fund cases, the award 

exceeds that [25%] benchmark.” In re Omnivision Techs., 559 F. Supp. 2d 1036, 1047 (N.D. Cal. 

2007) (citing In re Activision Sec. Litig., 723 F. Supp. 1373, 1378 (N.D. Cal. 1998)). See also 

Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D. 431, 448 (E.D. Cal. 2013) (“[t]he typical 

range of acceptable attorneys’ fees in the Ninth Circuit is 20 percent to 33.3 percent of the total 

settlement value”). “[A]bsent extraordinary circumstances that suggest reasons to lower or 

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increase the percentage, the rate should be set at 30%.” Omnivision, 559 F. Supp. 2d at 1048, 

(citing In re Activision Sec. Litig., 723 F.Supp. at 1378).

Settlement class members were provided notice that Class Counsel would seek an award of 

attorneys’ fees of up to 30% of the common fund. Class Counsel’s request for attorneys’ fees of 

25% of the claim fund is well under that amount. In addition, the fee request is fully supported by 

factors considered by the Ninth Circuit including: (a) the results achieved; (b) the risk of litigation; 

(c) the skill required and the quality of work; and (d) the contingent nature of the fee. See

Vizcaino, 290 F.3d at 1047.

1. The Results Achieved Justify a Benchmark Award.

The most important factor in granting a fee award is the degree of success counsel 

achieved for the class. See Vizcaino, 290 F.3d at 1048; see also Six Mexican Workers v. Arizona 

Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.1990). To measure that success, “the factor given 

the greatest emphasis is the size of the fund created, because a common fund is itself the measure 

of success . . . [and] represents the benchmark from which a reasonable fee will be awarded.” 

Manual for Complex Litigation, § 14.121 (internal quotations omitted). 

In the present case, Class Counsel achieved the largest result on record for a slack fill case, 

a non-reversionary $2.5 million settlement fund. Compared with other slack-fill litigation, this

result is excellent. See Kline v. Dymatize Enters., LLC, No. 15-CV-2348, 2016 U.S. Dist. LEXIS 

142774 (S.D. Cal. Oct. 13, 2016) (protein powder slack-fill case providing only injunctive relief). 

Class Counsel has also achieved injunctive relief for the settlement class, wherein Defendant will 

modify its fill level quality control procedures and target fill levels to at least 75% for theater box 

products, and 50% for all other products, including bag-in-a-box. Dkt. 72-4 ¶ 4.1. Additionally, 

the class member response has been overwhelmingly positive with 71,116 claim submissions to 

date. RJC Decl. ¶ 30. In summary, Class Counsel has achieved excellent results for the settlement 

class, and a 25% benchmark award is warranted.

2. The Risks Involved Support Justify a Benchmark Award.

The next factor justifying an award of the benchmark is the substantial degree of risk faced 

by Class Counsel. See Vizcaino, 290 F.3d at 1048. This was not an easy case. To achieve the 

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results they accomplished for the class, Class Counsel took on and overcame a series of very 

significant risks. RJC Decl. ¶¶ 9, 32, 51-52. As an initial matter, Defendant is a well-resourced 

competitor in the confectionery industry, now part of the second largest candy company in the 

world with net revenues of over $12 billion annually3, and represented by an experienced defense 

firm, which strongly contested liability. Id. ¶ 32; See In re Equity Funding Corporation Securities 

Litigation, 438 F. Supp. 1303, 1337 (C.D. Cal. 1977) (the quality of opposing counsel is important 

in evaluating the quality of class counsel’s work). Class Counsel’s ability to obtain this result 

against formidable opposition confirms the quality of Class Counsel’s representation. 

Additionally, the expense to prosecute this case has been substantial in light of the need for 

expert testimony from multiple disciplines, including packaging design engineering, economics, 

conjoint analysis, and marketing. RJC Decl. ¶¶ 20-25. In order to present a robust case for class 

certification, Plaintiff retained an expert in each of these fields. Id. Undoubtedly, the quality of 

Plaintiff’s expert declarations, expert reports, and studies proffered in support of class certification 

was a substantial factor in persuading Defendant to settle. Class Counsel’s willingness to take on 

the risk of nonpayment substantially benefited Plaintiff and the settlement class. Accordingly, this 

factor favors an award of the benchmark fee percentage. 

3. The Complexity and Novelty of the Issues Support a Benchmark Award.

This action involved specialized and hotly contested legal issues that are at the cutting 

edge of recent developments in the area of slack-fill law. This action contained complex legal 

issues, i.e., whether Defendant’s product packaging contains nonfunctional slack-fill and is 

considered deceptive to reasonable consumers. There was (and is) no appellate decision in any 

circuit that dealt with these specific issues. RJC Decl. ¶ 32. Resolution of the issues therefore 

involved researching and analyzing conflicting district court opinions and statutory interpretation. 

Id. Indeed, at the time of settlement (and since), there have been numerous theater box slack-fill 

cases which had been defeated on pleadings challenges, at class certification, and on the merits. 

See, e.g., Daniel v. Tootsie Roll Indus., LLC, 2018 U.S. Dist. LEXIS 129143, (S.D.N.Y. Aug. 1, 

 3 See https://www.candyindustry.com/2018-Global-Top-100-candy-companies-Part-4 (last visited 

September 5, 2018).

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2018) (Rule 12(b)(6) dismissal of Junior Mints theater box purchaser’s deceptive packaging / 

slack fill claims); White v. Just Born, Inc., Case No. 2:17-cv-04025 (W.D. Mo. Aug. 7, 2018) 

(certification of Mike and Ike theater box purchaser class denied); Bratton v. The Hershey Co., 

Case No. 2:16-cv-04322 (W.D. Mo. Feb. 16, 2018) (summary judgment of Hershey theater box 

class action granted); Here, given the complexity and novelty of the issues, an award of the 

benchmark is appropriate. 

4. The Skill Required, Quality of Work, and Arms’ Length Negotiations By 

Experienced Counsel Support a Benchmark Award. 

Class Counsel has demonstrated substantial skill, diligence, efficiency, and a high quality 

of work in achieving a common fund of $2.5 million and notable injunctive relief as part of the 

settlement. See Knight v. Red Door Salons, Inc., No. 08-01520 SC, 2009 U.S. Dist. LEXIS 11149, 

at *16 (N.D. Cal. Feb. 2, 2009) (“The sizeable recovery of $500,000 is some testament to 

Plaintiffs’ counsel’s skill. This factor supports the [30%] requested fee.”). Class Counsel obtained 

this excellent result in face of vigorous opposition involving issues that were hotly contested. 

Class Counsel were able to achieve the settlement due to considerable expertise and experience in 

prosecuting complex class actions (Dkt. 72-5, Firm Resume); RJC Decl. Ex. 1 ¶ 40. Class Counsel 

adeptly opposed Defendant’s pleading challenges (Id. ¶¶ 12-14), relentlessly pursued documents 

via law and motion practice (Id. ¶¶ 15-17), obtained critical admissions during Defendant’s Rule 

30(b)(6) depositions (Id. ¶ 16), and carefully prepared Plaintiff for deposition (Id. ¶ 17). In 

anticipation of the Parties’ mediations with respected mediators Martin Quinn and Judge Cahill, 

Class Counsel submitted comprehensive mediation briefs extensively detailing Plaintiff’s legal 

and factual support. Id. ¶ 18. When the case did not settle, Plaintiff filed a forceful motion for 

class certification, including declarations from Plaintiff, Class Counsel, and Plaintiff’s four 

retained experts. Id. ¶¶ 20-25. Only then did the case settle with the continued assistance of 

mediator Judge Cahill. Id. ¶ 26.

Moreover, Class Counsel is at the forefront of slack-fill litigation, currently litigating four 

other theater box candy product cases in California state and federal court. Id. ¶ 40. This 

experience allowed Class Counsel to focus on the key factual and legal issues and navigate this 

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case to a settlement-ready posture. See Barbosa v. Cargill Meat Solutions Corp., 297 F.R.D. 431, 

449 (E.D. Cal. 2013) (approving fee in amount of 33 percent of class recovery in part because case 

“required specialist skills to litigate the legal theories [] in the case”); Franco v. Ruiz Food Prods., 

No. 1:10-cv-02354, 2012 U.S. Dist. LEXIS 169057, at *48 (E.D. Cal. Nov. 27, 2012) (awarding 

fees of 33 percent of settlement amount due to counsel’s specialized skills); In re Heritage Bond 

Litig., CV 02-6512 , 2005 U.S. Dist. LEXIS 13555, at *61 (C.D. Cal. June 10, 2005) (awarding 

attorneys’ fees in the amount of 33 percent of the common fund based in part on the effort, skill 

and experience of class counsel).

In sum, the settlement was the result of extensive, informed, arms-length negotiations 

between counsel with substantial litigation experience, who are exceedingly familiar with the legal 

and factual issues in this case, and who have precise experience litigating and settling complex 

and class action cases like this. This case required a substantial commitment of time, resources, 

and energy from Class Counsel, and the relief achieved simply would not have been possible but 

for the commitment and skill of Class Counsel.

5. The Contingent Nature of the Case Supports a Benchmark Award.

The burdens borne by Class Counsel in taking on the litigation is another relevant factor 

that justifies an award of the benchmark. See Vizcaino, 290 F.3d at 1050; see also Six Mexican 

Workers, 904 F.2d at 1311. Adding to the other risks discussed herein is the fact that Class 

Counsel undertook this litigation on a contingency-fee basis, requiring them to shoulder not only 

the cost of attorney time, but all the substantial costs of more than two years of litigation. RJC 

Decl. ¶ 9. Indeed, courts have long recognized the public policy of rewarding attorneys for 

accepting representation on a contingency-fee basis. See In re Washington Pub. Power Supply Sys. 

Sec. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). This is especially true where, as here, Class 

Counsel have significant experience in the particular type of litigation at issue, i.e., deceptive 

packaging and slack fill. Moreover, when counsel takes cases on a contingency-fee basis, the risk 

of non-payment after years of litigation justifies a significant fee award. See Hopkins v. Stryker 

Sales Corp., No. 11-CV-02786, 2013 U.S. Dist. LEXIS 16939, at *8 (N.D. Cal. Feb. 6, 2013) (in 

awarding fees of 30 percent of the settlement, the court explained that “[c]lass [c]ounsel took a 

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significant risk investing in this case” because it “was conducted on an entirely contingent fee 

basis against a well-represented [d]efendant” and because [a]ll of the financial risk of litigation 

was therefore assumed by [c]lass counsel, whose fee arrangement with [p]laintiffs required [c]lass 

[c]ounsel to bear all the costs of litigation”). 

Class Counsel performed all of the described work on a pure contingency-fee basis, with 

no guarantee that they would ever be paid for any of their work or be reimbursed for any of their 

out-of-pocket costs. RJC Decl. ¶ 9. They turned down other potentially profitable matters, 

including hourly work, in order to take on this large-scale case, and devoted resources to it that 

could have been devoted to other potentially income-generating matters. Id. ¶51. Class Counsel’s 

willingness to undertake this complicated litigation and see it through to completion, 

notwithstanding the risk that they might never be paid at all, should be recognized and rewarded, 

in accordance with Ninth Circuit precedent. See Vizcaino, 290 F.3d at 1049.

6. Lack of Objections by Class Members to Requested Fees Supports a 

Benchmark Award.

Finally, absence of objections from the class to the fees requested further demonstrates the 

reasonableness and fairness of the attorney’s fee request. See Garner v. State Farm Mut. Auto. Ins. 

Co., No. CV 08 1365, 2010 U.S. Dist. LEXIS 49482, at *5 (N.D. Cal. Apr. 22, 2010) (noting 

“single objection out of a sizeable class, after notice, further demonstrates the reasonableness and 

fairness of [c]lass [c]ounsels’ request”). Notably, this fee brief is being submitted two weeks prior 

to the objection deadline so it is impossible to know whether any class members will object to this 

class action settlement during the next two weeks at this time (Dkt. 80). To date, however, zero

formal objections to the settlement have been received based on the agreed upon 30% claim fund 

fee (or otherwise), while over 71,000 class members have made claims. RJC Decl. ¶ 30.

B. The Lodestar Cross-Check Confirms the Reasonableness of the Requested Fee 

Award.

It is well settled in the Ninth Circuit that, “[i]n a common fund case, the district court has 

discretion to apply either the lodestar method or the percentage-of-the-fund method in calculating 

a fee award.” Fischel v. Equitable Life Assurance Soc’y of the U.S., 307 F.3d 997, 1006 (9th Cir. 

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2002); see also, e.g., Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir. 1989); 

In re Washington Public Power Supply System Securities Litigation, 19 F.3d 1291, 1295 (9th Cir. 

1994). While the court has discretion to use either method, “the primary basis of the fee award 

remains the percentage method.” Vizcaino, 290 F.3d at 1050; see also Six Mexican Workers, 904 

F.2d at 1311 (“benchmark percentage [of 25% of the fund] should be adjusted, or replaced by a 

lodestar calculation, when special circumstances indicate that the percentage recovery would be 

either too small or too large in light of the hours devoted to the case or other relevant factors”). 

Here, Class Counsel’s unadjusted lodestar is $523,702.50. Less than a 1.2 multiplier would 

be required to bring Class Counsel’s lodestar to the 25-percent fee request.

1. Class Counsel’s Hourly Rates are Reasonable

Under the lodestar method, a reasonable hourly rate “is the rate prevailing in the 

community for similar work performed by attorneys of comparable skill, experience, and 

reputation.” Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008). Ordinarily, 

reasonable hourly rates are based on each attorney’s current hourly rates. Vizcaino, 290 F.3d at 

1051. The relevant community is the location where the district court sits, in this case the Northern 

District of California. Camacho, 523 F.3d at 979. Declarations regarding the prevailing market

rate in the relevant community are sufficient to establish a reasonable hourly rate. See Widrig v. 

Apfel, 140 F.3d 1207, 1209 (9th Cir. 1998). Class Counsel’s hourly rates are summarized below:

The billing rate for the partners (Mr. and Mrs. Clarkson) is well within the normal range of 

fees charged by firms in Southern California for partner work and are comparable to those in the 

Northern District. See Camacho, 523 F.3d at 979 (9th Cir. 2008) (Court remanded for the “district 

court to make a determination of the reasonable hourly rate on the basis of the prevailing rates in 

the Northern District, or a community shown to be comparable to the Northern District.”); see 

Prison Legal News v. Schwarzenegger, 608 F.3d 446, 455 (9th Cir. 2010) (district court did not 

Name (Year of Bar Admission) (Title) Hourly Rate

Ryan J. Clarkson (2005) (Managing Attorney) $650

Shireen M. Clarkson (2004) (Senior Partner) $650

Bahar Sodaify (2013) (Associate) $375

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abuse its discretion in awarding 2008 hourly rates for Bay Area attorneys of up to $875 for a 

partner, $700 for an attorney with 23 years of experience); Gutierrez v. Wells Fargo Bank, N.A.,

2015 U.S. Dist. LEXIS 67298 (N.D. Cal. May 21, 2015) (finding reasonable rates for Bay Area 

attorneys of between $475-$975 for partners, and $300-$490 for associates); Pom Wonderful, LLC 

v. Purely Juice, Inc., No. CV 07-2633, 2008 U.S. Dist. LEXIS 110460, at *11-12 (C.D. Cal. Sep. 

22, 2008) (finding partner rates of $750 to $475 and associate rates of $425 to $275 reasonable in 

Los Angeles). In fact, Class Counsel’s billing rates have not increased since 2016, when billing on 

this case commenced. RJC Decl. ¶42. Class Counsel’s hourly rates are reasonable. See RJC Decl. 

Exs. 2-9 (surveys of legal rates, including Laffey Matrix).

2. Class Counsel’s Hours Expended are Reasonable

From this case’s inception to the present, a period of nearly two years, Class Counsel 

recorded 1,081.8 hours litigating this matter. RJC Decl. ¶ 42. Class Counsel also delegated many 

tasks to lower-billing paralegals and associate attorneys. Id. ¶ 43. Because this was a contingencyfee case, Class Counsel had little incentive to spend unnecessary time on tasks. The hours Class 

Counsel spent litigating the case were limited to that necessary to pursue Plaintiff’s claims 

Accordingly, the hours expended were reasonably and necessarily incurred. Class Counsel shall 

make available for in camera review their detailed billing records upon request of the Court. Id.

3. Class Counsel’s Lodestar is Reasonable

Using the reasonable hourly rates and reasonable hours expended in the course of this 

litigation, Class Counsel’s unadorned lodestar is $523,702.50. RJC Decl. ¶ 43 (summary chart of 

Class Counsel’s timekeepers disaggregated by number of hours, rate, and total fees).

4. Enhancement of the Lodestar is Justified 

Based on Class Counsel’s unadorned lodestar figure of $523,702.50, the 25% fee

requested by Class Counsel reflects a multiplier of less than 1.2. It is well-settled that a positive 

multiplier is appropriate in common fund cases to reward attorneys for the risk assumed in taking 

and litigating the case. See In re Wash. Public Power Supply System Securities Litigation, 19 F.3d 

1291, 1300 (9th Cir. 1994); Vizcaino, 290 F.3d at 1051 (“This mirrors the established practice in 

the private legal market of rewarding attorneys for taking the risk of nonpayment by paying them 

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a premium over their normal hourly rates for winning contingency cases”); Steiner v. American 

Broadcasting Co., Inc., 247 Fed. Appx. 780, 783 (9th Cir. 2007) (affirming an attorney fee award 

representing a lodestar multiplier of 6.85 because it fell within the range of multipliers that courts 

have allowed);see also Craft v. County of San Bernardino, 624 F. Supp. 2d 1113, 1125 (C.D. Cal. 

2008) (approving 25% fee award yielding a multiplier of 5.2 and stating that “there is ample 

authority for such awards resulting in multipliers in this range or higher”); Garner, 2010 U.S. 

Dist. LEXIS 49482, at *5 (“Class Counsel effectively seek a multiplier of less than 2. This is well 

within the range of multipliers applied in common fund cases....”). 

Here, the stellar monetary relief obtained for the settlement class, the risks involved in the 

litigation, the contingent nature of the fee, the novelty and complexity of the issues presented, the 

absence (thus far) of any objections to the requested fee amounts, and the experience of Class 

Counsel in litigating class actions as described herein justify a multiplier, at least for cross-check 

purposes. See In re Washington Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir. 

1994) (“[C]ourts have routinely enhanced the lodestar to reflect the risk of nonpayment by paying 

them a premium over their normal hourly rates for winning contingency cases.”). A lodestar-plusmultiplier cross-check therefore further supports the reasonableness of the requested 25% fee.

IV. REIMBURSEMENT OF LITIGATION EXPENSES IS WARRANTED 

“Reasonable costs and expenses incurred by an attorney who creates or preserves a common 

fund are reimbursed proportionately by those class members who benefit from the settlement.” In 

re Media Vision Tech. Sec. Litig, 913 F. Supp. 1362, 1366 (N.D. Cal. 1996). In the present case, 

the litigation expenses Class Counsel incurred were necessary to secure the resolution of this 

litigation. RJC Decl. ¶ 45. Class Counsel advanced all expenses without assurance that they would 

ever be repaid. Id. ¶ 9. The settlement permits Class Counsel to seek reimbursement of their 

litigation expenses and the class notice informed class members that Class Counsel would seek an 

award of costs not to exceed that amount (Dkt. 81-1). Class Counsel is making a request for 

reimbursement of $102,172.12 in litigation costs. Id. These expenses are reflected in the records of 

Clarkson Law Firm, P.C., and were necessary to prosecute this litigation. Id. ¶ 45. Class Counsel 

shall make available for in camera review their detailed litigation expense records upon request of 

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the Court. Id. All expenses were carefully and reasonably expended, and they reflect market rates 

for various categories of expenses incurred. Id. Most of these expenses were incurred for expert 

opinions and testimony, court fees, consumer survey fees, mediation fees, discovery costs, courier 

costs, travel costs, and copying costs. Id. Expense items are billed separately and such charges are 

not duplicated in Class Counsel’s billing rates. Id. Accordingly, full reimbursement of Class 

Counsel’s litigation expenses is warranted. See Tait v. BSH Home Appliances Corp., No. SACV 

10-0711, 2015 U.S. Dist. LEXIS 98546, at *3 (C.D. Cal. July 27, 2015) (awarding full 

reimbursement of costs where vast majority incurred through expert opinions and testimony, court 

fees, discovery costs, travel costs, copying costs, mailing costs, and so forth in light of length of 

litigation and the importance of expert testimony).

V. THE SERVICE AWARD FOR THE NAMED PLAINTIFF IS FAIR 

The settlement provides for a service award of $5,000 to Mr. Iglesias subject to court 

approval (Dkt. 72-4). The award is appropriate in light of the time and effort expended by 

Plaintiff. Staton, 327 F.3d at 977. Courts routinely grant such awards, which are intended to 

advance public policy by encouraging individuals to come forward and take action to protect the 

rights of the class, as well as to compensate class representatives for their time, effort, and 

inconvenience. Id.; see also Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294, 300 (N.D. Cal. 

1995). Relevant considerations include: (1) the risk to the class representative in commencing 

suit, both financial and otherwise; (2) the notoriety and personal difficulties encountered by the 

class representative; (3) the amount of time and effort spent by the class representative; (4) the 

duration of the litigation; and (5) the personal benefit (or lack thereof) enjoyed by the class 

representative as a result of the litigation. See Van Vranken, 901 F. Supp. 294 at 299. 

Here, the involvement of named Plaintiff Thomas Iglesias was critical to the prosecution of 

the case. RJC Decl. ¶ 56. Mr. Iglesias contributed 45-50 hours to this case and bore the financial 

risk of no recovery. Declaration of Thomas Iglesias (“Iglesias Decl.”) ¶ 35. He also took 

significant time away from work, family, and personal activities to initiate and litigate this action. 

He held regular meetings with Class Counsel to receive updates on the progress of the case and to 

discuss strategy, as well as assisted in Class Counsel’s pre-suit investigation by discussing his 

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consumer experience and providing information on his purchases and use of the products. RJC 

Decl. ¶¶ 56-57. He assisted in the drafting of pleadings and papers, and reviewed each for 

accuracy before they were filed. Id. ¶ 58. He coordinated with Class Counsel to form responses to 

discovery requests, including written document requests, and searched for responsive documents. 

Id. ¶ 57. Mr. Iglesias also sat for a full-day deposition. Id. In fact, Defendant communicated to 

Class Counsel that it was Mr. Iglesias’ persuasive and credible testimony that played a significant 

part in persuading Defendant to settle this case. Id. Finally, he was intimately involved in the 

settlement process, and has continued to keep abreast of settlement progress to date and he was 

prepared to litigate this case to a verdict if necessary. Id. His dedication and efforts have conferred 

a significant benefit on tens of thousands of claimants and millions of consumers and prospective 

consumers across the United States, as well as the general public.

In light of the relevant factors, a service award of $5,000 to Mr. Iglesias is appropriate and 

should be awarded. See In re Toys R Us-Delaware, Inc. Fair & Accurate Credit Transactions Act 

(FACTA) Litig., 295 F.R.D. 438, 472 (C.D. Cal. 2014) (approving $5,000 incentive 

award); Faigman v. AT&T Mobility LLC, No. C06-04622, 2011 WL 672648, *5 (N.D. Cal. Feb. 

16, 2011) (noting that “[i]n [the Northern] [D]istrict, incentive payments of $5,000 are 

presumptively reasonable”). There is no evidence in the record which rebuts the presumptive 

reasonableness of the requested service award here.

VI. CONCLUSION 

For the foregoing reasons, Class Counsel respectfully requests that the Court grant 

Plaintiff’s motion for an award of attorneys’ fees in the total amount of $625,000 (25% of the 

claim fund), litigation expenses of $102,172.12, and a service award in the amount of $5,000 to 

Plaintiff Thomas Iglesias as class representative.

Dated: September 6, 2018 CLARKSON LAW FIRM, P.C.

________________________________

Ryan J. Clarkson, Esq.

Shireen M. Clarkson, Esq.

Bahar Sodaify, Esq.

Attorneys for Plaintiff

Case 3:17-cv-00849-VC Document 83 Filed 09/06/18 Page 21 of 21