Admitted Pro Hac Vice - terrellmarshall.comterrellmarshall.com/wp-content/uploads/2012/08/... · Hannah Buckendorf Legal Assistant at Terrell Marshall Daudt & Willie PLLC since 2012

DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT - 1 CASE NO. 3:12-CV-00012-PK

Michael J. Estok, OSB #090748 Email: [email protected] LINDSAY HART, LLP 1300 SW Fifth Avenue, Suite 3400 Portland, Oregon 97201-5640 Telephone: (503) 226-7677 Facsimile: (503) 226-7697 Toby J. Marshall, Admitted Pro Hac Vice Email: [email protected] Jennifer R. Murray, OSB #100389 Email: [email protected] TERRELL MARSHALL DAUDT & WILLIE PLLC 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528 Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

DONNA DICKERSON and GERALD MITTIG, on behalf of themselves and all others similarly situated,

Plaintiffs,

v.

CABLE COMMUNICATIONS, INCORPORATED, a Nevada corporation, and WILLIAM KEVIN TOUCHTON, an individual, Defendants.

NO. 3:12-cv-00012-PK

DECLARATION OF TOBY J. MARSHALL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

CLASS ACTION ALLEGATION

Case 3:12-cv-00012-PK Document 113 Filed 09/03/13 Page 1 of 110 Page ID#: 681


I, Toby J. Marshall, declare as follows:

1. I am a member of Terrell Marshall Daudt & Willie PLLC (“TMDW”),

co-counsel for Plaintiffs and proposed class members in this matter. I have been the primary

attorney from my firm working on this case. I have personal knowledge of the following facts

and if called to testify could and would competently do so. I am submitting this declaration in

support of Plaintiffs’ Unopposed Motion for Preliminary Approval of Class Action Settlement.

2. Since the commencement of this action, my firm has incurred more than

$153,300 in fees and expended over $5,701.37 in litigation expenses related to the prosecution

of this action. I estimate we will incur an additional $5,000 in fees and $350 in costs to finalize

the final approval motion and prosecute the case through final settlement approval. In all, my

firm devoted more than 670 hours to the investigation, development, litigation and resolution of

this case. This includes time spend investigating the claims of the Settlement Class members,

conducting discovery, researching and analyzing legal issues, responding to two motions to

dismiss, preparing a draft motion for class certification, communicating with proposed Class

Members, and engaging in settlement negotiations. After mediation, I worked extensively with

counsel for the Defendants to iron out a written settlement agreement. We also worked to draft

the class notice form. My firm then prepared the motion for preliminary approval along with

supporting declarations.

3. Our lodestar calculations are based on reasonable hourly rates. We set these

rates for attorneys and staff members based on a variety of factors, including among others: the

experience, skill and sophistication required for the types of legal services typically performed;

the rates customarily charged in the markets where the legal services are typically performed;

and the experience, reputation and ability of the attorneys and staff members. The rates

charged for attorneys and staff members working on this matter range from $50 to $375.

Courts recently have approved rates that were significantly higher than the request made here.

Attached hereto as Exhibits 1 through 5 are true and correct copies of orders from state and



federal courts in Washington approving such rates. Ex. 1 (granting attorneys’ fees award based

on rates ranging from $100 to $600, including a rate of $575 for Mr. Marshall and $450 for Ms.

Murray); Ex. 2 (Judge Robart approving as reasonable rates ranging from $175 to $600,

including Ms. Murray at $450); Ex. 3 (Judge Spector approving fee request based on rates

ranging from $100 to $760); Ex. 4 (Judge Washington approving fee request based on rates

ranging from $100 to $760); Ex. 5 (Judge Lasnik approving Plaintiffs’ counsel’s fee request

based on rates ranging from $180 to $650). The schedule contained in Paragraph 4 was

prepared from contemporaneous, daily time records regularly prepared and maintained by the

firm in the regular course of business.

4. The following table identifies the attorneys and staff members from my firm

who worked on this case, a general description of the work performed, the hourly rate charged

for each individual, the number of hours worked by individual, the amount of fees for each

individual, and the total hours and fees for the firm.

NAME AND POSITION DESCRIPTION OF WORK PERFORMED

RATE HOURS BILLED

TOTAL

ATTORNEYS

Toby J. Marshall

Partner at Terrell Marshall Daudt & Willie PLLC

J.D. from Univ. of Washington School of Law, 2002

Researched and analyzed various legal and factual issues; worked on pleadings and correspondence; worked on discovery matters; analyzed document production; participated in conferences with co‐counsel, opposing counsel, and clients; interviewed potential class members; worked on motion to dismiss counterclaims and motion to compel discovery; worked on class certification issues; engaged in settlement discussions; prepared for and attended mediation; worked on settlement issues and settlement agreement; worked on preliminary approval motion; worked on motion for final approval.

$375 161 $60,375




RATE HOURS BILLED

TOTAL

Jennifer Rust Murray



Researched and analyzed various legal and factual issues; worked on amended complaint; worked on discovery matters; reviewed document production; worked on class certification motion; worked on mediation submission; worked on settlement issues.

$285 111.1 $31,646

Michael D. Daudt


J.D. from Univ. of California, Berkley, Boalt Hall School of Law

Analyzed insurance coverage and settlement issues.

$375 .9 $337.50

Erika L. Nusser

Associate at Terrell Marshall Daudt & Willie PLLC

J.D. from Univ. of San Francisco School of Law, 2008

Researched and analyzed various legal issues; worked on class member declarations; worked on motions for preliminary approval and final approval of settlement.

$225 47 $10,575

Marc. C. Cote

Associate at Terrell Marshall Daudt & Willie PLLC

J.D. from Univ. of Washington School of Law, Order of the Coif, 2007

Researched and analyzed legal issues. $265 2.2 $583

LAW CLERKS

Samuel J. Strauss

Law Clerk at Terrell Marshall Daudt & Willie PLLC from June 2012 – present.


Researched various legal and factual issues; worked on motion to compel discovery and supporting documents; interviewed potential class members; worked on class member declarations.

$150 152 $22,800




RATE HOURS BILLED

TOTAL

Charlotte S. Sanders

Law Clerk at Terrell Marshall Daudt & Willie PLLC from May 2010 to June 2011


Interviewed potential class members; worked on class member declarations.

$160 85.9 $13,744

Aurora Wilson

Law Clerk at Terrell Marshall Daudt & Willie from Jan. 2012 to May 2012

Researched various legal issues $150 2.9 $435

PARALEGALS/LEGAL ASSISTANTS

Jennifer J. Boschen

Senior Paralegal at Terrell Marshall Daudt & Willie PLLC from May 2008 to Jan. 2009 and March 2010 to present.

B.A. from Rutgers

Worked on document management; analyzed documents produced in discovery; worked on class member declarations; worked on issues relating to consents to join; worked on mediation submission and damages issues.

$150 10 $1,500

Eden B. Nordby

Paralegal at Terrell Marshall Daudt & Willie PLLC since June 2008

B.A. from Sarah Lawrence College, 2005

Interviewed potential class members regarding claims; created and maintained class member contact spreadsheet and call notes; worked on public records requests; worked on issues relating to consents to join; worked on class member declarations; worked on mediation submission.

$125 35.1 $4,387.50

Bradford Kinsey

Legal Assistant at Terrell Marshall Daudt & Willie PLLC since Oct. 2009

A.A. from Edmonds Community College as Legal Assistant, 1989

Worked on pleadings and correspondence; worked on court filings and service; worked on consents to join; worked on amended complaint.

$100 20.6 $2,060




RATE HOURS BILLED

TOTAL

Janelle Chase

Legal Assistant at Terrell Marshall Daudt & Willie PLLC since 2012

B.A. from Mills College and Washington State Certified Spanish‐English Interpreter

Interviewed class members and worked on class member declarations; worked on issues relating to consents to join; worked on court filings.

$100 42.4 $4,240

Torrie Marshall


Worked on docketing. $100 3 $300

Cassandra Bohannon

Legal Assistant at Terrell Marshall Daudt & Willie PLLC from Sept. 2011 – July 2012.

Worked on court filings. $100 2.7 $270

Hannah Buckendorf


B.A. from College of Idaho, 2011

Worked on court filings. $50 1 $50

TOTAL: 677.8 $153,303

5. The following table identifies the expenses my firm has expended to date in the

prosecution of this matter. These expenses were necessary to secure the resolution of this

litigation.



6. Based on my professional experience, I expect that attorneys and staff at

TMDW will devote approximately 20 additional hours finalizing the final approval motion,

addressing final approval issues and preparing for and attending the final approval hearing.

7. I was the attorney primarily responsible for reviewing the work of all other

attorneys, law clerks, paralegals, and document clerks listed in the schedule set forth in

paragraph four. I supervised all work to avoid duplication of effort and to encourage

efficiency. I reviewed the billing records and reduced or eliminated time where necessary. The

work performed by the law clerks, paralegals, and document clerks was work that required

sufficient knowledge of legal concepts and that I or another attorney would have had to

perform absent such assistance. The paralegals and document clerks identified were all

qualified to perform substantive legal work based on their training and past experience working

for attorneys, including attorneys outside of TMDW’s offices.

8. As of September 3, 2013, Plaintiffs’ counsel have received no exclusion

requests and no objections to the Settlement.

9. When only timely claims forms are considered, the average individual payment

is $1,696.21 and the range of payments is from a low of $19.48 (for one week of work) to a

high of $7,072.01. When the three untimely claims are added, the average individual payment

Computer Research (Westlaw, Pacer, Accurint)

$4,797.25

Court Fees

$100

Postage

$149.89

Meals

$58.73

Reproductions (Scanning and copying)

$250.55

Travel

$344.95

Total $5,701.37



is $1,672.87, and the range of payments is from a low of $19.27 (again, for only one week of

work) to a high of $6,993.55.

10. We proposed modifying the definition of Qualified Claimant to include the three

untimely claimants, but Defendant CCI will not consent to this.

11. TMDW has incurred $6,726.91 in notice administration expenses, which include

the time and costs incurred in distributing notice to all Settlement Class Members, handling

claims, and responding to inquiries regarding settlement administration. TMDW estimates it

will incur an additional $1,229.81 in time and costs for distributing Class Member checks and

handling other settlement administration matters. Class Counsel, however, are requesting just

$7,553.11 in claims administration costs, as that is the amount estimated in Plaintiffs’ Motion

for Preliminary Approval.

I declare under penalty of perjury under the laws of the United States of America that

the foregoing is true and correct.

EXECUTED at Seattle, Washington, on this 4th day of June, 2013.

/s/ Toby J. Marshall, Admitted Pro Hac Vice Toby J. Marshall, Admitted Pro Hac Vice



CERTIFICATE OF SERVICE

I, Toby J. Marshall, hereby certify that on September 3, 2013, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system which will send notification of

such filing to the following:

Mitchell C. Baker, OSB #981358 Email: [email protected] Erin O. Sweeney, OSB #106632 Email: [email protected] FISHER & PHILLIPS LLP 111 SW 5th Avenue, Suite 1250 Portland, Oregon 97204 Telephone: (503) 242-4262 Facsimile: (503) 242-4263 Attorneys for Defendant Cable Communications, Incorporated

DATED this 3rd day of September, 2013.

TERRELL MARSHALL DAUDT & WILLIE PLLC

By: /s/ Toby J. Marshall, Admitted Pro Hac Vice Toby J. Marshall, Admitted Pro Hac Vice Email: [email protected] 936 North 34th Street, Suite 300 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528

Attorney for Plaintiffs


EXHIBIT 1

DECLARATION OF TOBY J. MARSHALL ISO MOTION FOR FINAL SETTLEMENT APPROVAL - 10


DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS - 1CASE NO. C08-0630 JCC

TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue N.

Seattle, Washington 98103TEL. 206.816.6603 � FAX 206.350.3528

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THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

ANTHONY FREY, individually, and on behalf of all others similarly situated, and JAMES HEWETT, individually and on behalf of all others similarly situated,

Plaintiffs and Counter-Defendants,

v.

3PD, INC., a Georgia corporation,

Defendant and Counter-Plaintiff._______________________________________

3PD, INC., a Georgia corporation,

Third-Party Plaintiff,

v.

OUTBACK DELIVERY, LLC, a Washington Limited Liability company, and JAMBO TRANSIT, LLC, a Washington Limited Liability company,

Third-Party Defendants.

NO. C08-0630 JCC

DECLARATION OF BETH E. TERRELL IN SUPPORT OF MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS FEES AND COSTS

Case 2:08-cv-00630-JCC Document 129 Filed 02/11/11 Page 1 of 12






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I, Beth E. Terrell, declare as follows:

1. I am a member of the law firm of Terrell Marshall & Daudt PLLC (“TMD”),

counsel of record for Plaintiffs in this matter. I am admitted to practice before this Court and

am a member in good standing of the bars of the States of Washington and California.

I respectfully submit this declaration in support of Plaintiffs’ motion for final approval of the

above-captioned class action. Except as otherwise noted, I have personal knowledge of the

facts set forth in this declaration, and could testify competently to them if called upon to do so.

2. TMD is a law firm in Seattle, Washington, that focuses on complex civil and

commercial litigation with an emphasis on employment, consumer protection, product liability,

real estate, and personal injury matters. The attorneys of TMD have extensive experience in

class actions, collective actions, and other complex matters. They have been appointed lead or

co-lead class counsel in numerous cases at both the state and federal level. With respect to

employment, the attorneys of TMD (including Jennifer Murray, Toby Marshall and me) have

represented both employees and employers on a broad range of employment issues, including

wage and hour issues, noncompete issues, and employment discrimination issues.

3. A founding member of TMD, I concentrate my practice in complex litigation,

including the prosecution of consumer, defective product, anti-trust, and wage and hour class

actions. I have served as co-lead counsel on numerous multi-state and nationwide class actions.

I also handle a variety of employment issues including employment discrimination, restrictive

covenant litigation, and pre-litigation counseling and advice. I received a B.A., magna cum

laude, from Gonzaga University in 1990. In 1995, I received my J.D. from the University of

California, Davis School of Law, Order of the Coif. Prior to forming TMD in May 2008, I was

a member of Tousley Brain Stephens PLLC.

4. Jennifer Rust Murray is also a founding member of TMD. Ms. Murray

graduated from the University of Washington School of Law in 2005 where she was a member

of the Washington Law Review. Prior to law school, Ms. Murray earned her Ph.D. in







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Philosophy from Emory University. Ms. Murray has been an active member of the

Washington State Bar Association since her admission to the bar in 2005. In 2010, Ms. Murray

was admitted to the Oregon State Bar. Ms. Murray focuses her practice on complex

commercial litigation with an emphasis on consumer and employment issues and has

represented both plaintiffs and defendants in many class and collective actions including

Khadera v. ABM Industries, Inc., Ramirez v. Precision Drywall, Inc., Lettic v. Spectrum Glass,

Inc., Kirkpatrick v. Ironwood Communications, Inc., Morden v. T-Mobile, McGinnity v.

AutoNation, Inc., Godfrey v. Chelan County P.U.D., and Barnett v. Wal-Mart.

5. In addition to the instant litigation, TMD’s attorneys have served as co-lead

counsel in several employment class actions, including the following:

� Barnett et al. v. Wal-Mart Stores, Inc., in which we represented a certified class of more than 88,000 employees alleging wage and hour violations. After more than seven years of litigation, we obtained a $35,000,000 settlement on behalf of the class. That settlement was approved in July 2009.

� McGinnity et al. v. AutoNation, Inc. et al., in which we represented a certified class of more than 500 employees who were denied vacation benefits they had earned. After nearly two years of litigation before an arbitrator, we obtained an award of $2.34 million on behalf of the class. We successfully defended the award on appeal, and the Washington Supreme Court denied defendants’ petition for review. A judgment in excess of $2,600,000 was satisfied in September 2009.

� Telecommunications Company Lawsuit II, in which we represented a certified class of more than 2,400 current and former employees in Washington and Oregon who alleged wage and hour violations. We obtained a $3,000,000 settlement after nearly four years of intense litigation, and the court granted final approval of the settlement in March 2009.

� Godfrey et al. v. Chelan County Public Utility District, in which we represented a class of 81 employees who were denied pay for all hours worked. The case settled in 2008, and the settlement was approved by the U.S. District Court for the Eastern District of Washington.







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� Telecommunications Company Lawsuit I, in which we represented a certified class of 300 employees who alleged wage and hour violations. The case settled in 2007, and the settlement was approved by the U.S. District Court for the Western District of Washington.

� Ramirez et al. v. Precision Drywall, Inc., in which we represented class of workers who alleged they were not paid for all hours worked, and were not provided with proper rest and meal breaks. TMD obtained a jury verdict in favor of the Plaintiffs after a five week trial in March – April 2010. The Court entered a judgment against the Defendants in excess of $2 million.

� Martinez, et al. v. 24 Hr. Professional Janitorial Services, in which we represented a class of janitorial workers who alleged wage and hour violations. The case settled in 2009 and King County Superior Court approved the settlement in April 2010.

� Lettic v. Spectrum Glass, Inc., in which we represented a class of workers who alleged they were not paid for all hours worked and were not provided with proper rest and meal breaks. The case settled in 2010 and King County Superior Court approved the settlement later that year.

� Reese, et al. v. Dycom Industries, Inc., in which we represented a class of telecommunications workers who alleged they were not paid for all hours worked and were not provided with proper rest and meal breaks. The case settled in 2010 and Judge Pechman of the U.S. District Court for the Western District of Washington approved the settlement.

5. The TMD attorneys also have extensive experience with other complex

litigation. We have played a key role in class actions involving consumer fraud, securities

fraud, and product liability, and we are currently acting as lead counsel many such cases.

6. Throughout the litigation, the attorneys and paralegals at my firm spent a

considerable amount of time interviewing current and former 3PD contractors. These

interviews proved helpful in allowing counsel to assess the strengths and weaknesses of the

class claims. We also spent many hours reviewing the thousands of pages of documents

produced by 3PD.







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7. The total number of hours expended on this litigation by TMD is 948.9 hours.

The total lodestar for TMD through February 8, 2011, calculated at the billing rates charged in

similar cases is $339,906. The following table lists the TMD attorneys and professional

personnel and summarizes their work on the case that is included in the lodestar figure for

TMD, as well as the current hourly rates. I supervised each of the professionals listed on the

table. The hourly rate shown for any attorney or paralegal who is no longer employed with

TMD reflects the last rate that applied at the time of their employment:

NAME AND POSITION

DESCRIPTION OF WORK PERFORMED

RATE HOURS BILLED

TOTAL

ATTORNEYS

Beth E. TerrellPartner at Terrell Marshall & Daudt PLLCJ.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995

Researched and analyzed various legal and factual issues; worked on case strategy; worked on memoranda, correspondence and pleadings; analyzed and worked on damages issues; analyzed and worked on discovery issues and document production;participated in discovery conferences;worked on settlement issues; prepared for and defended depositions.

$600 144.2 $86,520

Jennifer Rust MurrayPartner at Terrell Marshall & Daudt PLLCJ.D. from Univ. of Washington School of Law, 2005

Researched and analyzed various legal and factual issues; worked on case strategy; worked on memoranda, correspondence and pleadings; analyzed and worked on damages issues; analyzed and worked on discovery issues; participated in discoveryconferences; worked on settlement issues;prepared for and defended depositions of class representatives and class members;worked on document review issues; interviewed class members and worked on class member declarations.

$450 304.1 $136,845

Toby J. MarshallPartner at Terrell Marshall & Daudt PLLCJ.D. from Univ. of Washington School of Law, 2004

Researched and analyzed various legal issues; worked on case strategy issues; worked on motion for class certification.

$575 3.1 $1,782.50

Erika L. NusserAssociate at Terrell Marshall & Daudt PLLC

Researched and analyzed various legal and factual issues; worked on pleadings and memoranda; interviewed class members; worked on class member declarations;

$325 43.7 $14,202.50







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NAME AND POSITION


RATE HOURS BILLED

TOTAL

J.D. from University of San Francisco School of Law, 2008.

reviewed document production.

Iris K. TilleyAssociate at Terrell Marshall & Daudt PLLCJ.D. from Univ. of Washington School of Law, 2007

Worked on pleadings, correspondence and memoranda; interviewed class members; worked on class member declarations; reviewed document production.

$275 55.6 $15,290

Courtney K. ElamLaw Clerk at Terrell Marshall & Daudt PLLC

Translated class member interview questionnaire into Spanish; conducted class member interviews; worked on declaration.

$265 20.9 $5,538.50

Sam J. WolfLaw Clerk at Terrell Marshall & Daudt PLLC

Worked on memoranda and correspondence; researched legal issues; interviewed class members.

$265 17.5 $4,637.50

Jessica FritzLaw Clerk at Terrell Marshall & Daudt PLLC

Researched various legal issues; worked on memoranda and pleadings.

$265 13.5 $3,577.50

PARALEGALSEden B. NordbyParalegal at Terrell Marshall & Daudt PLLC since June 2008 BA. Sarah Lawrence College, 2005.

Worked on correspondence, pleadings and discovery responses; worked on court filings; reviewed document production; created database of class member information and production index; worked on document production; interviewed class members; worked on class member declarations; worked on discovery matters.

$225 246.7 55,507.50

Bradford KinseyLegal Secretary at Terrell Marshall & Daudt PLLC since October 2009.AA as a legal assistant from Edmonds Community College, 1989.21 years of experience working in civil litigation representing both plaintiffs and defendants.

Worked on correspondence and pleadings; worked on court filings; served pleadings and other documents; coordinated hearing scheduling with Court.

$200 12.9 $2,580.00

Jennifer J. BoschenParalegal at Terrell Marshall & Daudt PLLC

Reviewed and analyzed document production; worked on document production issues; worked on subpoena

$250 4.9 $1,225







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NAME AND POSITION


RATE HOURS BILLED

TOTAL

from May 2008 – Jan 2009 & March 2010 -present.BA from Rutgers University, 1998

duces tecum to third party.

Tova MacLennan Paralegal at Terrell Marshall & Daudt PLLC from January 2009 –March 2010.BA from Seattle Univ.

Worked on pleadings and correspondence; reviewed document production and index of same; researched class member information; researched various legal and factual issues; worked on Court filings; worked on production issues; worked on deposition preparation.

$200 40.2 $8,040

LEGAL ASSISTANTSKait HeacockLegal Assistant at Terrell Marshall & Daudt PLLCBA from Seattle Pacific Univ., 2009.

Reviewed document production; workedon production issues; worked on pleadings and correspondence.

$100 41.6 $4,160

TOTAL: 948.9 $339,906

8. TMD sets their rates for attorneys and staff members based on a variety of

factors, including among others: the experience, skill and sophistication required for the types

of legal services typically performed; the rates customarily charged in similar matters; and the

experience, reputation and ability of the attorneys and staff members. For personnel who are

no longer employed by the firm, the lodestar calculation is based upon the billing rates for such

personnel in his or her final year of employment by the firms. The schedule contained in

paragraphs 7 were prepared from contemporaneous, daily time records regularly prepared and

maintained by the firm in the regular course of business.



paragraph 7. I supervised all work to avoid duplication of effort and to encourage efficiency. I

reviewed the billing records and reduced or eliminated time where necessary. The work







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performed by the law clerks, paralegals, and document clerks was work that required sufficient

knowledge of legal concepts and that I or another attorney would have had to perform absent

such assistance. The law clerks identified above were all students currently enrolled in or

recently graduated from an accredited law school. The paralegals and document clerks

identified were all qualified to perform substantive legal work based on their training and past

experience working for attorneys, including attorneys outside of TMD’s offices.

10. A sample of the federal and state courts since 2008 that have approved TMD’s

standard billing rates and reimbursement of costs as reasonable are:

� December 2010, in Carideo, et al. v. Dell, Inc., Case No. C06-1772 JLR (W.D. Wash.)

� July 2009, in Barnett, et al. v. Wal-Mart Stores, Inc., Case No. 01-2-24553-8SEA (Wash. Sup. Ct. King County);

� September 2010, in Odom v. Microsoft Corp., Case No. 04-2-10618-4 SEA (Wash. Sup. Ct. King County);

� July 2009, in Splater v. Thermal Ease Hydronic Systems, Inc., Case No. 03-2-33553-3 SEA (Wash. Sup. Ct. King County); and

11. The $3,309.89 in expenses and cost liabilities TMD reasonably incurred in the

prosecution of this matter are set forth in the table attached hereto as Exhibit 1

12. The named Plaintiffs should be recognized for their substantial service to and

efforts on behalf of the proposed settlement class. The named Plaintiffs greatly assisted Class

Counsel in investigating the claims, preparing the complaint, contacting additional witnesses,

and understanding the factual background of the lawsuit. Both were ready and willing to testify

at trial and were consulted throughout the case and during mediation. Both named Plaintiffs

responded to written discovery requests and had their depositions taken by Defendants.

.

13. Based on my professional experience, and taking into consideration the risks of

continued litigation versus the certain and substantial relief afforded by the Settlement, it is my

opinion that the Settlement is fair, adequate and reasonable, and in the best interests of the







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Class, and merits final approval. It is also my view that, in light of the time and costs expended

by Class Counsel, the legal standards governing the award of fees and costs in class actions,

and the results obtained, the fees and costs requested by Class Counsel are modest, and well-

warranted.

I declare under penalty of perjury under the laws of the State of Washington and the

United States that the foregoing is true and correct.

EXECUTED at Seattle, Washington this 11th day of February, 2011.

Beth E. Terrell, WSBA #26759/s/ Beth E. Terrell, WSBA #26759




EXHIBIT 1




Terrell Marshall & Daudt PLLC

Frey and Hewett, et al. v. 3 PD, Inc. Class Action Case No. C08-0630 JCC

COSTS

Meals $ 8.11 Messenger $ 110.50 Postage $ 39.43 Reproductions $ 494.80 Research $ 1576.51 Document Production $ 266.38 Travel $ 814.16 Total $ 3,309.89







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I, Jennifer Rust Murray, hereby certify that on February 11, 2011, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to the following:

John R. Ruhl, WSBA #[email protected], SWANSON & CLEVELAND, PLLC1201 Third Avenue, Suite 3400Seattle, Washington 98101

James H. [email protected] D. [email protected] J. [email protected], GARVIN, LIGHT, HANSON & FEARY, P.C.10 West Market Street, Suite 1500Indianapolis, Indiana 46204

Adam C. [email protected], GARVIN, LIGHT, HANSON & FEARY, P.C.30 West Monroe Street, Suite 600Chicago, Illinois 60603

Attorneys for Defendant

DATED this 11th day of February, 2011.

TERRELL MARSHALL & DAUDT PLLC

By: /s/ Jennifer Rust Murray, WSBA #36983Beth E. Terrell, WSBA #26759Email: [email protected] Rust Murray, WSBA #36983Email: [email protected] Fremont Avenue NorthSeattle, Washington 98103Telephone: 206.816.6603

Attorneys for Plaintiffs




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ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT PAGE - 1

THE HONORABLE JOHN C. COUGHENOUR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ANTHONY FREY, individually, and on behalf of all others similarly situated, and JAMES HEWETT, individually and on behalf of all others similarly situated,

Plaintiff,

v.

3PD, Inc., a Georgia corporation,

Defendant.

CASE NO. C08-0630

ORDER GRANTING FINAL APPROVAL OF CLASS ACTION SETTLEMENT

Plaintiffs’ Motion for Final Approval of Class Action Settlement (Dkt. No. 127) came

on for hearing before this Court bon April 12, 2011. The Court, having considered the papers

submitted in support of the motion and having heard oral argument of the parties, and the

Defendant having stated its non-opposition and consent to the Motion, hereby orders as

follows:

The parties, Anthony Frey and James Hewett (“Plaintiffs”) and Defendant 3PD, Inc., on

behalf of itself and its past or present officers, directors, shareholders, employees, agents,

principals, heirs, representatives, accountants, auditors, consultants, insurers and reinsurers, and

its and their respective successors and predecessors in interest, subsidiaries, affiliates, parents

and attorneys (“Defendant”) have submitted their proposed Stipulation and Settlement




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Agreement of Class Action Settlement (“Settlement Agreement”) to settle the above-captioned

class action subject to the Court’s approval. The Court granted preliminarily approval of the

Settlement on October 25, 2010. In accordance with the Preliminary Approval Order,

Settlement Class Members have been given Notice of the terms of the Settlement and an

opportunity to object to it or to exclude themselves from the Settlement Class. Having

considered the proposed Settlement, the papers submitted by the parties in support of final

approval of the Settlement, and the argument at the Final Approval Hearing held on April 12,

2011, the Court, pursuant to Rule 54 of the Federal Rules of Civil Procedure, hereby grants

final approval to the Settlement Agreement.

PROCEDURAL HISTORY

This action was originally filed by plaintiff Anthony Frey on April 23, 2008. Plaintiff

alleged that Defendant purposefully misclassified him and a putative class of similarly situated

individuals who provided home delivery services for Defendant by making deliveries to

customers of The Home Depot, Inc. (“Home Depot”) in the State of Washington during the

period April 24, 2005 through the present. Plaintiff brought claims on behalf of himself and the

putative class under RCW 49.46.130 (failure to pay overtime wages), RCW 49.12.450 (illegal

deductions for uniform expenses), RCW 49.52.050, RCW 49.52.060, and WAC 296-126-028

(illegal deductions from ongoing wages), RCW 49.48.010 and WAC 296-126-025 (failure to

pay wages due upon termination), RCW 49.52.050 (willful refusal to pay wages), as well as

claims for unjust enrichment/restitution, rescission, injunctive and declaratory relief, and fraud.

On May 27, 2008, Defendant answered the complaint, filed a counterclaim against

plaintiff Anthony Frey, and filed a third party complaint against Outback Delivery, LLC, a

corporation formed by plaintiff Anthony Frey. Plaintiff Anthony Frey and Outback Delivery,

LLC moved to dismiss the counterclaim and third party complaint, and on July 21, 2008 the

Court dismissed the counterclaim and upheld Defendant’s third party complaint for

indemnification against Outback Delivery, LLC. Outback Delivery, LLC answered




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Defendant’s third party complaint on July 31, 2008. Plaintiff amended the Complaint on May

1, 2009, adding James Hewett as an additional plaintiff.

On May 14, 2009, Defendant answered the amended complaint, filed a counterclaim

against plaintiff James Hewett, and added a third party complaint against Jambo Transit, LLC.

Outback Delivery answered the amended third party complaint on July 2, 2009. On August 16,

2009, plaintiff James Hewett moved to dismiss the counterclaim, and that motion was granted

on November 3, 2009.

On October 9, 2009, Plaintiffs filed a motion to certify the Class, consisting of: all

individuals who (1) entered into a contract with 3PD to perform delivery services for 3PD,

either on his or her own behalf or on behalf of an entity, and (2) personally performed such

home delivery services for 3PD in the State of Washington during the period April 24, 2005

through the present (the “Class Period”) by making deliveries to customers of The Home

Depot, Inc. (“Home Depot”). The Court heard oral arguments on the motion on February 17,

2010.

On January 20, 2010, the parties attended mediation before Eric B. Lindauer, Esq..

Although the mediation was not successful, the parties continued negotiations with the help of

Mr. Lindauer and ultimately reached agreement on a settlement terms sheet, which has been

supplemented and memorialized in the Settlement Agreement.

The parties conducted significant investigation of the facts and law during the

prosecution of this Action and prior to entering into settlement negotiations and ultimately

reaching a resolution. Such discovery and investigations included, inter alia, the exchange and

analysis of information pursuant to formal and informal discovery, meetings and conferences,

interviews of potential witnesses, and numerous depositions. Counsel for the parties further

investigated the applicable law as applied to the facts discovered regarding Plaintiffs’ claims,

the defenses thereto, and the damages claimed by Plaintiffs.




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Plaintiffs recognize the expense and length of continued proceedings necessary to

continue the litigation against Defendant through trial and any possible appeals. Plaintiffs have

also taken into account the uncertainty and risk of the outcome of further litigation, and the

difficulties and delays inherent in such litigation. Plaintiffs are also aware of the burdens of

proof necessary to establish liability for the claims asserted in the Action, Defendant’s defenses

thereto, and the difficulties in establishing damages for themselves and the Class. Plaintiffs

have also taken into account the settlement negotiations conducted by the Parties. Based on the

foregoing, Plaintiffs have determined that the settlement is fair, adequate and reasonable, and is

in the best interests of all Class Members.

The Settlement Class Members are all individuals who (1) entered into a contract with

Defendant to provide home delivery services either on his or her own behalf or on behalf of an

entity; (2) provided such services for Defendant by making or arranging deliveries to Home

Depot customers in the State of Washington during the period April 24, 2005 through October

25, 2010; and (3) who did not exclude themselves from the Settlement Class by submitting a

Request for Exclusion to Rust Consulting, Inc. on or before March 18, 2011.

Plaintiffs have claimed and continue to claim that the Released Claims (as defined

below) have merit and give rise to liability on the part of Defendant. Neither the Settlement

Agreement nor any documents referred to therein, nor any action taken to carry out the

Settlement Agreement is, or may be construed as or may be used as, an admission by or against

Plaintiffs or Class Counsel as to the merits or lack thereof of the claims asserted.

Defendant contends that all of the Class Members were properly categorized as

independent contractors, and have been compensated in compliance with the law, and that its

conduct was not willful or improper with respect to any alleged failure to pay any

compensation (including but not limited to final compensation, overtime, or otherwise).

Defendant has denied and continues to deny each of the claims and contentions alleged by

Plaintiffs in the Action. Defendant denies any wrongdoing or legal liability arising out of any




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of the facts or conduct alleged in the Action and believes that it has valid defenses to the claims

asserted in the Action. Neither the Settlement Agreement, nor any document referred to or

contemplated herein, nor any action taken to carry out the Settlement Agreement, may be

construed as, or may be used as an admission, concession or indication by or against Defendant

of any fault, wrongdoing or liability whatsoever.

Pursuant to the Order Preliminarily Approving Class Action Settlement, Conditionally

Certifying Settlement Class, and Approving Form and Method of Class Notice (the

“Preliminary Approval Order”), dated October 25, 2010, this Court granted preliminary

approval to the Settlement Agreement and conditionally certified the Class. The Preliminary

Approval Order also approved the proposed form of Notice and the Notice plan. The Court

entered the Preliminary Approval Order after review and consideration of all of the papers filed

in connection herewith, and the oral presentations made by counsel at the hearing.

In compliance with the Preliminary Approval Order, Notice was sent to all Class

Members via first class mail. The Notice process was timely completed.

This matter is now before the Court on Plaintiffs’ Motion for Final Approval of the

Class Action Settlement, including approval of the Incentive Award for the two named

Plaintiffs and Class Counsel’s Application for an Award of Attorneys’ Fees and Expenses. The

Court has read, heard, and considered all the pleadings and documents submitted, and the

presentations made in connection with the motion and application which came on for hearing

on April 12, 2011.

This Court finds that the proposed Settlement Agreement was the product of serious,

informed, non-collusive negotiations, has no obvious deficiencies, and does not improperly

grant preferential treatment to any individuals. The Court further finds that the settlement is

fair, reasonable, and adequate and that Plaintiffs have satisfied the standards for final approval

of a class action settlement under federal law.




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The Court has determined that certification of a settlement class is appropriate under

these circumstances.

Based on the foregoing, IT IS HEREBY ORDERED THAT:

This Court has jurisdiction over the claims of the Settlement Class Members asserted in

this proceeding and over all parties to the action. This action is a civil action of which this

Court has original jurisdiction under 28 U.S.C. § 1332 in that it is a civil action between

citizens of different states and the matter in controversy exceeds the sum of $75,000, exclusive

of interest and costs, and the Settlement Class Members’ claims collectively exceed the sum of

$5,000,000, exclusive of interest and costs. Venue is proper in the Western District of

Washington.

For the reasons set forth in the Preliminary Approval Order and in the transcripts of the

proceedings of the Preliminary Approval Hearing and the Final Approval Hearing, which are

adopted and incorporated herein by reference, this Court finds that the applicable requirements

of Federal Rule of Civil Procedure 23 have been satisfied with respect to the Settlement Class

and the proposed settlement. For the purposes of settlement and final approval of the

Settlement Agreement, the Court hereby makes final its earlier provisional certification of the

Settlement Class defined as “all individuals who (i) entered into a contract with 3PD, Inc. to

provide delivery services for 3PD, Inc. either on his or her own behalf or on behalf of an entity;

and (ii) provided such home delivery services for 3PD, Inc. by making or arranging deliveries

to customers of The Home Depot, Inc. in the State of Washington during the period April 24,

2005 through the date of this order.”

The Notice given to the Settlement Class Members fully and accurately informed the

Class Members of all material elements of the proposed Settlement Agreement and of their

opportunity to object thereto or to exclude themselves from the Settlement Class; was the best

Notice practicable under the circumstances; was valid, due, and sufficient notice to all




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Settlement Class Members; and complied fully with the laws of the State of Washington, the

Federal Rules of Civil Procedure, the United States Constitution, due process, and other

applicable law. A full opportunity has been afforded to the Settlement Class Members to

participate in this hearing, and all Settlement Class Members and other persons wishing to be

heard have been heard. Accordingly, the Court determines that all Settlement Class Members

who did not timely and properly execute a Request for Exclusion (“Settlement Class

Members”) are bound by this Order.

The Court has reviewed the Settlement Agreement and finds that the settlement is fair,

adequate, and reasonable when balanced against the possible outcome of further litigation

relating to the alleged misclassification of the Settlement Class Members, liability and

damages. The Court finds further that extensive investigation, informal discovery, and research

have been conducted such that counsel for all parties are able to reasonably evaluate their

respective positions. The Court finds that the Settlement Agreement has been reached after

intensive, serious, and non-collusive, arms-length negotiations.

Following Notice, no Settlement Class Member objected to the terms of the Settlement

Agreement. Having considered the papers submitted in support of and in response to the

objections, and having heard oral argument of the parties, the Court hereby finds that none of

the objections raised call into question the settlement's fairness, adequacy, and reasonableness

under all of the circumstances.

Pursuant to Federal Rule of Civil Procedure 23(e), the Court hereby grants final

approval to the Settlement Agreement and finds it fair, reasonable and adequate, and in the best

interests of the Settlement Class. Accordingly, the Court hereby directs that the settlement be

effected in accordance with the Settlement Agreement and the following terms and conditions.

With this final approval of the proposed Settlement Agreement, it is hereby ordered that

any and any and all charges, complaints, claims, liabilities, obligations, promises, agreements,

controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, debts




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and expenses (including attorney fees and costs), known or unknown, at law or in equity, which

the Settlement Class Members may now have against the Released Parties, as defined in the

Settlement Agreement arising out of or in any way connected with their provision or

performance of deliveries to customers of The Home Depot, Inc. in the State of Washington for

Defendant prior to the date of the Settlement Agreement, including but not limited to (a) any

facts, transactions, events, policies, occurrences, acts, disclosures, statements, omissions or

failures to act, which are or could be the basis of claims that Defendant improperly classified

the Settlement Class Members as independent contractors, and (b) any and all claims for

Washington wage and hour law violations; illegal deductions from wages; unjust

enrichment/quantum meruit; employee benefits; rescission and restitution; fraud;

misrepresentation; injunctive relief; and penalties; the Fair Labor Standards Act, as amended;

the Employee Retirement Income Security Act, as amended; and any and all federal, state and

local statutes, ordinances, regulations, rules and other laws, and any and all claims based on

constitutional, statutory, common law or regulatory grounds as well as any other claims based

on theories of wrongful or constructive discharge, breach of contract or implied contract,

promissory estoppel, or damages under any other federal, state or local statutes, ordinances,

regulations, rules or laws are hereby released. This release is for any and all relief, no matter

how denominated, including, but not limited to, back pay, front pay, employee benefits,

restitution, vacation pay, bonuses, compensatory damages, tortious damages, punitive damages,

interest, penalties, attorney fees, and costs.

The Court finds that payment of an incentive award of $15,000 to each of the named

Plaintiffs is fair and reasonable in light of the benefits they provided to the Settlement Class

and Class Counsel. Payment of such Incentive Award is hereby ordered.

The Court awards to Class Counsel attorneys' fees in the amount of $337,500,

constituting 30% of the total Settlement Fund, and expenses of $47,613, for all past and

remaining work until the completion of this matter. Such awards, made in accordance with the




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terms of the Settlement Agreement, are fair and reasonable under the circumstances. In making

its award of attorneys' fees and costs, the Court has considered the following factors: (a) the

contingent nature of this action; (b) the time and expense incurred by Class Counsel; (c) the

experience, reputation and ability of Class Counsel and the skill they displayed in litigation;

and (d) the results achieved under the Settlement Agreement.

The Court orders the following schedule of dates for further proceedings: Payment of Settlement Fund to Settlement Administrator:

Within five (5) days of the later of the following: (1) thirty-three (33) days have passed after service of notice of entry of the Settlement Order on the Parties to the Action and all objectors to the Settlement Agreement, if any, without any appeals being taken; or (2) if appeals or requests for review have been taken, the date upon which any orders affirming the Settlement Order or denying review after exhaustion of all appellate remedies have been entered (the “Effective Date”), Defendant shall pay the entire $1,125,000 Settlement Fund to the Settlement Administrator.

Payment of Attorneys’ Fees and Expenses to Plaintiffs’ Counsel:

Within eight (8) business days of the Effective Date.

Payment of Incentive Award to Plaintiffs:

Within eight (8) business days of the Effective Date.

Calculation and Distribution of the remaining Settlement Funds to the Authorized Claimants in Accordance With the terms of the Settlement Agreement:

Within thirty (30) calendar days of the Effective Date.

Distribution of any cy presaward:

Within two hundred and ten (210) calendar days of the Effective Date.

Class Counsel files certification of completion of administration of Settlement:

Within two hundred and forty (240) days of Effective Date.




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Following payment in full of all amounts awarded in this Final Order, and Class

Counsel’s filing of its certification of completion of administration of Settlement Agreement,

the Court shall enter an order closing the case.

Without affecting the finality of this Final Order, the Court reserves continuing and

exclusive jurisdiction over the parties to the Settlement Agreement to administer, supervise,

construe, and enforce the Settlement Agreement in accordance with its terms for the mutual

benefit of the parties. Under Federal Rule of Civil Procedure 54, there being no just reason for

delay, the Court, in the interests of justice, expressly directs the Clerk of the Court to enter this

Final Order, and hereby decrees that, upon entry, it be deemed final.

In the manner articulated above, Plaintiffs’ Motion for Final Approval of Class Action

Settlement is GRANTED. (Dkt. No. 127.) The Clerk is DIRECTED to close the case.

DATED this 4th day of May 2011.

A John C. Coughenour UNITED STATES DISTRICT JUDGE




EXHIBIT 2



DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS - 1 CASE NO. C06-1772 JLR

TERRELL MARSHALL & DAUDT PLLC3600 Fremont Avenue North Seattle, Washington 98103

TEL. 206.816.6603 � FAX 206.350.3528

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THE HONORABLE JAMES L. ROBART

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

KRISTIN CARIDEO, MICHAEL OMSTEAD, MELISSA MALLOY, LISA SMITH, and CATHERINE CANDLER, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

DELL, INC., a Delaware Corporation,

Defendant.

No. C06-1772 JLR

DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTIONS FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND AWARD OF ATTORNEYS’ FEES AND COSTS AND SERVICE AWARDS TO THE NAMED PLAINTIFFS


1. I am a member of the law firm of Terrell Marshall & Daudt PLLC (“TMD”),

counsel of record for Plaintiffs in this matter. I am admitted to practice before this Court and

am a member in good standing of the bars of the States of Washington and California.

I respectfully submit this declaration in support of Plaintiffs’ motion for preliminary approval

of the above-captioned class action. Except as otherwise noted, I have personal knowledge of

the facts set forth in this declaration, and could testify competently to them if called upon to do

so.

Case 2:06-cv-01772-JLR Document 147 Filed 11/15/10 Page 1 of 84





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1. TMD is a law firm in Seattle, Washington, that focuses on complex civil and

commercial litigation with an emphasis on consumer protection, product liability, employment,

real estate, and personal injury matters. The attorneys of TMD have extensive experience in


co-lead class counsel in numerous cases at both the state and federal level. They have

prosecuted and defended a variety of multi-million-dollar disputes involving consumer fraud,

securities fraud, product defect, and anti-trust issues. The defendants in these cases have

included companies such as Walmart, Microsoft, Best Buy, Toyota, Sallie Mae, Comcast,

ABM Industries, Inc., AT&T, T- Mobile, Weyerhaeuser, Behr Products, and American

Cemwood.

2. A founding member of TMD, I concentrate my practice in complex litigation,







a member of Tousley Brain Stephens PLLC.

3. TMD is currently involved in litigating the following consumer protection class

actions:

� Cooper, et al. v. American Honda Motor Co., Inc., filed in 2010 on behalf of owners of 2006–2010 Honda Civics containing defective visors which cause them to split and dangle in the face of drivers and passengers.

� Mlejnecky v. Olympus Imaging Am. Inc., filed in 2010 on behalf of owners of cameras containing defects that cause the cameras to fail or malfunction when underwater or when dropped, despite Olympus’s representations that the cameras were waterproof and shockproof.

�






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� Brown v. U.S. Bank, N.A., filed in 2010 on behalf of Washington consumers who from October 13, 2006 through the present incurred overdraft fees on debit card transactions as a result of U.S. Bank’s practice of re-sequencing transactions from highest to lowest.

� Milligan, et al. v. Toyota Motor Sales, Inc., filed in 2009 on behalf of owners of 2001 – 2003 Toyota RAV4s containing defective Electronic Computer Modules (“ECM”) which cause harsh shifting conditions and permanent damage to the transmissions.

� Arthur v. Sallie Mae, filed in 2009 on behalf of consumers who received automated, pre-recorded phone calls on their personal cell phones in violation of the TCPA.

� Kitec Consolidated Cases, in which TMD serves as co-counsel in a national class action lawsuit against the manufacturers of defective hydronic heating and plumbing systems.

� Seraphin v. AT&T Internet Services, Inc., et al. is a multi-state class action filed in 2009 on behalf of AT&T internet customers who paid $20 a month or less for internet service and were assessed and Early Termination Fee (“ETF”) when they cancelled service.

� Qwest Price for Life and ETF Class Actions, filed on behalf of consumers whose rates for high speed internet service were increased despite a “Price for Life” contract agreement, or who were charged an Early Termination Fee (“ETF”) for cancelling their high speed internet service prior to the end of their term commitment, even if they did not knowingly agree to a term commitment and were not told about the ETF prior to cancelling service.

� Comcast Robocalling Class Actions, two consolidated cases filed on behalf of consumers who received automated, pre-recorded solicitation phone calls from Defendants in violation of the Washington Consumer Protection Act.

� Fine v. T-Mobile USA, Inc., a class action brought on behalf of consumers who participated in a promotional program known as “FLY FREE in ’08.” Despite having satisfied the terms of the offer, Plaintiff and other members of the class never received the free round-trip flight that T-Mobile promised.






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� In re General Motors OnStar Litigation, a consolidated group of lawsuits consumers brought against multiple auto manufacturers due to the failure of analog OnStar equipment in their vehicles and the resulting termination of OnStar service.

4. In the fall of 2006, I began investigating problems that Dell’s Washington

customers were experiencing with their Dell Inspiron 1100, 1150, 5100, and 5160 laptops. I

knew that Dell had recently settled a California-only case in which consumers alleged that the

Dell Inspiron 5150 model contained design defects. I believed that the 1100, 1150, 5100, and

5160 models contained the same defect as the 5150 model. We prepared and filed a complaint

on behalf of a Washington-only class. After the complaint was filed, Dell promptly moved to

compel arbitration.

5. In November 2009, Plaintiffs commenced merits-related discovery, propounding

eleven interrogatories and forty-five requests for production to Dell. Plaintiffs also propounded

fifteen interrogatories and fifteen requests for production targeted at Dell’s document-retention

policies and procedures for maintaining electronically-stored information. In response, Dell

produced thousands of pages of documents, including but not limited to advertisements,

internal research and development information, repair manuals, owner’s manuals, and product

guides. Dell also produced databases containing sales and customer service information. Over

the course of several weeks, staff at TMD carefully reviewed the documentary evidence

produced by Dell and engaged in related investigations. The information learned through this

investigation was invaluable during settlement negotiations.

6. Throughout the litigation, the attorneys and paralegals at my firm and at my

former firm, Tousley Brain Stephens PLLC (“TBS”), spent a considerable amount of time

interviewing current and former Dell customers affected by the alleged defects. These

interviews proved helpful in allowing counsel to assess the strengths and weaknesses of the

class claims.






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7. Following preliminary communications regarding settlement, the parties agreed

to mediate the Plaintiffs’ claims with well-respected mediator Teresa Wakeen. During the

course of the mediation, which was held on June 16, 2010, the parties engaged in negotiations

that were at all times adversarial, non-collusive, and at arm’s length. Throughout the

negotiation process, Dell steadfastly maintained that the Inspiron models at issue do not contain

inherent defects and Plaintiffs’ counsel adamantly disagreed. With the assistance of Ms.

Wakeen, we ultimately reached an agreement in principle on all substantive terms, culminating

in a nationwide settlement agreement.

8. After the parties had reached agreement on relief for the class, the parties began

arm’s-length negotiations related to attorneys’ fees and costs and stipends for the named

Plaintiffs, again with the assistance of Ms. Wakeen, and those negotiations resulted in an

agreement in principle regarding attorneys’ fees and costs.

9. TMD had primary responsibility for preparing Plaintiffs’ motion for final

approval of class action settlement.

10. As of today’s date, TMD has received one objection to the settlement.

However, on November 11, 2010 TMD received a letter from the objector stating that the

objection had been withdrawn.

11. The total number of hours expended on this litigation by TMD is 548.8 hours.

The total lodestar for TMD through November 12, 2010, calculated at the billing rates charged

in similar cases is $218,805.50. The following table lists the TMD attorneys and professional

personnel and summarizes their work on the case that is included in the lodestar figure for

TMD, as well as the current hourly rates. I supervised each of the professionals listed on the

table. The hourly rate shown for any attorney or paralegal who is no longer employed with

TMD reflects the last rate that applied at the time of their employment:






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NAME AND POSITION


RATE HOURSBILLED

TOTAL

ATTORNEYS

Beth E. Terrell Partner at Terrell Marshall & Daudt PLLC J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995

Researched and analyzed various legal and factual issues; worked on case strategy; worked on memoranda, correspondence and pleadings; prepared for hearings before Court of Appeals; argued before Court of Appeals; prepared for mediation; attended mediation sessions; analyzed and worked on damages issues; analyzed and worked on discovery issues; participated in discovery conferences; worked on settlement issues; prepared for and defended deposition of class representative; worked on expert witness matters; worked on document review issues.

$600 146.9 $88,140

Jennifer Rust Murray Partner at Terrell Marshall & Daudt PLLC J.D. from Univ. of Washington School of Law, 2005

Worked on mediation brief and preliminary approval motion and supporting papers; worked on amended complaint; prepared final approval motion and supporting papers.

$450 40.9 $18,405

Kimberlee L. Gunning Partner at Terrell Marshall & Daudt PLLC J.D. from Univ. of Washington School of Law, 2004

Worked on pleadings and memoranda; worked on expert witness issues; researched and analyzed various legal issues; worked on discovery matters; worked on settlement issues; worked on amended complaint; prepared for mediation.

$425 57.3 $24,352.50

Erika L. Nusser Associate at Terrell Marshall & Daudt PLLC J.D. from University of San Francisco School of Law, 2008.

Analyzed and researched various legal and factual issues; worked on pleadings and memoranda.

$275 29.7 $8,167.50

Marc C. Cote Associate at Terrell Marshall & Daudt PLLC J.D. from Univ. of Washington School of Law, 2007

Worked on discovery matters; worked on initial disclosures; worked on pleadings and memoranda.

$295 12.9 $3,805.50






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NAME AND POSITION


RATE HOURSBILLED

TOTAL

Lorraine Lewis Phillips Contract Attorney at Terrell Marshall & Daudt PLLC

Researched and analyzed legal issues; worked on memoranda and pleadings.

$425 39.4 $16,745

Lisa Vanderford Anderson Contract Attorney at Terrell Marshall & Daudt PLLC

Researched various legal issues; worked on memoranda and pleadings.

$425 31.4 $13,345

PARALEGALS Eden B. Nordby Paralegal at Terrell Marshall & Daudt PLLC since June 2008 BA. Sarah Lawrence College, 2005.

Responded to class member inquiries; worked with claims administrator on class member issues and responses to common questions regarding claims process; worked on correspondence, pleadings and discovery responses; coordinated scheduling of depositions with Plaintiffs; worked on court filings; reviewed client documents; worked on document production; worked on settlement issues; worked on deposition preparation; worked on motion for preliminary approval of settlement.

$275 43.3 $11,907.50

Bradford Kinsey Legal Secretary at Terrell Marshall & Daudt PLLC since October 2009. AA as a legal assistant from Edmonds Community College, 1989. 21 years of experience working in civil litigation representing both plaintiffs and defendants.

Worked on correspondence, pleadings and discovery responses; assisted with mediation preparation; worked on court filings; served pleadings and other documents; coordinated hearing scheduling with Court.

$225 62.1 $13,972.50

Jennifer J. Boschen Paralegal at Terrell Marshall & Daudt PLLC from May 2008 – Jan 2009 & March 2010 - present. BA from Rutgers

Reviewed and analyzed document production; worked on document production issues; worked on memoranda and correspondence; prepared for mediation; researched various factual issues;

$250 64.6 $16,150






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NAME AND POSITION


RATE HOURSBILLED

TOTAL

University, 1998

Tova MacLennan�Paralegal at Terrell Marshall & Daudt PLLC from January 2009 – March 2010. B.A. from Seattle Univ.

Worked on pleadings; served documents. $200 10.5 $2,100

LEGAL ASSISTANTS Kait Heacock Legal Assistant at Terrell Marshall & Daudt PLLC B.A. from Seattle Pacific Univ., 2009.

Worked on pleadings and correspondence; worked on expert witness issues; worked on court filings; worked on production.

$175 9.8 $1,715

TOTAL: 548.8 $218,805.50

12. Some of the work accomplished on this case was performed when I was an

attorney at Tousley Brain Stephens, PLLC (“TBS”). The total number of hours expended on

this litigation by TBS is 659.4 hours. The total lodestar for TBS through November 12, 2010,

calculated at the billing rates charged in similar cases is $232,500. The following table lists the

TBS attorneys and professional personnel and summarizes their work on the case that is

included in the lodestar figure for TBS, as well as the current hourly rates. I supervised each of

the professionals listed on the chart while I was a partner at TBS. The hourly rate shown for

any attorney or paralegal who is no longer employed with TBS reflects the last rate that applied

at the time of their employment:

NAME AND POSITION


RATE HOURSBILLED

TOTAL

ATTORNEYS

Beth E. Terrell Member of Tousley Brain Stephens

Researched and analyzed various legal and factual issues; worked on discovery matters; worked on pleadings, correspondence and

$560 70.8 $39,648.00






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NAME AND POSITION


RATE HOURSBILLED

TOTAL

PLLC from 1996 – 2008. J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995.

memoranda; prepared for and attended hearing; reviewed documents; met and conferred with co-counsel and opposing counsel on various matters; worked on third party subpoenas and document production issues; worked on scheduling issues and case strategy; worked on expert issues.

Mary B. Reiten Member of Tousley Brain Stephens PLLC.J.D. from the University of California Hastings College of Law, 1998.

Worked on discovery matters; researched various legal and factual issues; worked on pleadings, memoranda and correspondence; reviewed document production; interviewed class members; prepared for and participated in conferences; prepared for and attended hearing; worked on third party subpoenas and document production issues.

$465 236.7 $110,065.50

Jennifer Rust Murray Associate at Tousley Brain Stephens from 2005 – 2008. J.D. from Univ. of Washington School of Law, 2005.

Researched various legal and factual issues; worked on pleadings and memoranda.

$310 10.7 $3,317.00

Kimberlee L. Gunning Associate at Tousley Brain Stephens from 2003 – 2008. J.D. from University of Washington School of Law, 2004.

Researched various legal and factual issues; worked on pleadings and memoranda; prepared for hearing before Court of Appeals.

$325 85.5 $27,787.50

Michael J. Estok Associate at Tousley Brain Stephens PLLC from 2003 – 2009. J.D. from University of Washington School of Law in 2004.

Researched various legal and factual issues; worked on pleadings and memoranda.

$325 16.8 $5,460.00






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NAME AND POSITION


RATE HOURSBILLED

TOTAL

A. Janay Ferguson Associate at Tousley Brain Stephens PLLC.J.D. from Seattle University School of Law, magna cum laude, 2000.

Reviewed documents; worked on pleadings, correspondence and memoranda; researched and analyzed various legal and factual issues; interviewed class members.

$375 15.0 $5,625.00

Cheryl D. Kringle Associate at Tousley Brain Stephens PLLC.

Researched and analyzed various legal and factual issues; worked on pleadings.

$325 6.9 $2,242.50

PARALEGALS Carol D. Bonifaci Senior Paralegal at Tousley Brain Stephens PLLC. B.A. from University of Washington, 1971.

Reviewed documents produced by Attorney General in response to public disclosure request.

$265 15.6 $4,134.00

Amy E. Stanton. Litigation Paralegal at Tousley Brain Stephens PLLC from 2000 to 2007. B.A. from St. John’s College. Second B.A. from the University of Montana, and Paralegal Certificate from the University of Washington.

Worked on public disclosure request to Attorney General; researched factual issues.

$250 2.5 $625.00

Jennifer J. Boschen Litigation Paralegal at Tousley Brain Stephens from June 2001 – May 2008. BA from Rutgers University, 1998

Telephone conferences with class members. $250 0.7 $175.00

Gayle L. Neligan. Litigation Paralegal at Tousley Brain

Worked on pleadings; worked on court filings; worked on service of subpoena.

$180 7.5 $1,350.00






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NAME AND POSITION


RATE HOURSBILLED

TOTAL

Stephens PLLC from 1995 to 2007.

DOCUMENT CLERKS Eden B. Nordby Legal assistant and litigation clerk at Tousley Brain Stephens PLLC from February 2006 – May 2008. BA from Sarah Lawrence College, 2005.

Requested additional documents from Attorney General; reviewed document production; worked on third party subpoenas; interviewed potential class members; maintained class member database; worked on pleadings, memoranda and correspondence; worked on court filings; researched consumer complaints.

$180 156 $28,080.00

Brittany Millay Document clerk at Tousley Brain Stephens PLLC.

Reviewed and indexed document production. $115 34.7 $3,990.50

TOTAL: 659.4 $232,500.00

13. TMD and TBS set their rates for attorneys and staff members based on a variety

of factors, including among others: the experience, skill and sophistication required for the

types of legal services typically performed; the rates customarily charged in similar matters;

and the experience, reputation and ability of the attorneys and staff members. For personnel

who are no longer employed by the firm, the lodestar calculation is based upon the billing rates

for such personnel in his or her final year of employment by the firms. The schedules

contained in paragraphs 11–12 were prepared from contemporaneous, daily time records

regularly prepared and maintained by the firms in the regular course of business.


attorneys, law clerks, paralegals, and document clerks listed in the schedules set forth in

paragraphs 11–12. I supervised all work to avoid duplication of effort and to encourage

efficiency. I reviewed the billing records and reduced or eliminated time where necessary. The

work performed by the law clerks, paralegals, and document clerks was work that required






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sufficient knowledge of legal concepts and that I or another attorney would have had to

perform absent such assistance. The law clerks identified above were all students currently

enrolled in or recently graduated from an accredited law school. The paralegals and document

clerks identified were all qualified to perform substantive legal work based on their training and

past experience working for attorneys, including attorneys outside of TMD and TBS’s offices.

15. A sample of the federal and state courts since 2008 that have approved TMD

and TBS’s standard billing rates and reimbursement of costs as reasonable are:

� July 2009, in Barnett, et al. v. Wal-Mart Stores, Inc., Case No. 01-2-24553-8 SEA (Wash. Sup. Ct. King County);

� October 2008, in Cole v. Wells Fargo Bank, N.A., No. 07-0916 RSL (W.D. Wash.);

� April 2008, in Grays Harbor Adventist Christian School v. Carrier Corp.,No. 05-5437 RBL (W.D. Wash.);


� July 2009, in Splater v. Thermal Ease Hydronic Systems, Inc., Case No. 03-2-33553-3 SEA (Wash. Sup. Ct. King County); and

� November 2008, in Zwicker v. General Motors Corp., No. C07-0291 JCC (W.D. Wash.).

16. The $9,980.08 in expenses and cost liabilities TMD reasonably incurred in the

prosecution of this matter are set forth in the table attached hereto as Exhibit 1.

17. The $7,283.36 in expenses and cost liabilities TBS reasonably incurred in the


18. TMD’s commitment of time and labor to this case will continue beyond the end

of the claims period on April 5, 2011.

19. The named Plaintiffs should be recognized for their substantial service to and

efforts on behalf of the proposed settlement class. The named Plaintiffs greatly assisted Class






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Counsel in investigating the claims, preparing the complaint, contacting additional witnesses,

and understanding the factual background of the lawsuit. Kristin Carideo and Catherine

Candler responded to written discovery and Ms. Carideo sat for a deposition. Both were ready

and willing to testify at trial and were consulted throughout the case and during mediation

20. Attached hereto as Exhibit 3 is a true and correct copy of the Settlement

Agreement reached between the parties. Based�on my professional experience, and taking into

consideration the risks of continued litigation versus the certain and substantial relief afforded

by the Settlement, it is my opinion that the Settlement is fair, adequate and reasonable, and in

the best interests of the Class, and merits final approval. It is also my view that, in light of the

time and costs expended by Class Counsel, the legal standards governing the award of fees and

costs in class actions, and the results obtained, the fees and costs requested by Class Counsel

are modest, and well-warranted.



EXECUTED at Seattle, Washington this 15th day of November, 2010.

/s/ Beth E. Terrell, WSBA #26759 Beth E. Terrell, WSBA #26759






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I, Beth E. Terrell, hereby certify that on November 15, 2010, I electronically filed the



Jeffrey I. Tilden, WSBA #12219 [email protected] Rosenberger, WSBA #17730 [email protected] TILDEN THOMAS & CORDELL LLP1001 Fourth Avenue, Suite 4000 Seattle, Washington 98154-1007 Telephone: (206) 467-6477 Facsimile: (206) 467-6292

Paul Schlaud [email protected] Brightwell [email protected] G. Reeves [email protected] O’Carroll [email protected] Pierce [email protected] & BRIGHTWELL, LLP221 West Sixth Street, Suite 1000 Austin, Texas 78701-3410 Telephone: (512) 334-4500 Facsimile: (512) 334-4492

Attorneys for Defendant






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DATED this 15th day of November, 2010.

TERRELL MARSHALL & DAUDT PLLC

By: /s/ Beth E. Terrell, WSBA #26759Beth E. Terrell, WSBA #26759 Email: [email protected] Fremont Avenue North Seattle, Washington 98103 Telephone: (206) 816-6603 Facsimile: (206) 350-3528



































EXHIBIT 3



DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 1 CASE NO. 01-2-24553-8 SEA3775/001/127012.1

TERRELL MARSHALL & DAUDT PLLC 3600 Fremont Avenue North Seattle, Washington 98103

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THE HONORABLE JULIE SPECTOR Department 3

Noted for hearing: July 20, 2009 at 9:00 am With Oral Argument

IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR KING COUNTY

DEBRA BARNETT, GEORGIE KNOLES, and BELLA BLAUBERGS, on their own behalf and on behalf of all others similarly situated,

Plaintiffs,

v.

WAL-MART STORES, INC., a Delaware corporation, d/b/a WAL-MART, d/b/a SAM’S CLUB, d/b/a SUPERCENTER,

Defendant.

No. 01-2-24553-8 SEA

DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT


1. I make this declaration based on my own personal knowledge. If called upon to

testify, I could and would testify competently to the truth of the matters stated herein.

2. I am a member of Terrell Marshall & Daudt, PLLC (“TMD”) located in Seattle,

Washington. I am Co-Lead Class Counsel representing Plaintiffs Debra Barnett, Georgie

Knoles, Bella Blaubergs, and the Class in this matter.

3. I am the lead attorney from TMD in the instant case. My qualifications are set

forth in the declaration I submitted in support of Plaintiffs’ Motion for Preliminary Approval of



DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - 2 CASE NO. 01-2-24553-8 SEA3775/001/127012.1


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Class Action Settlement, (Dkt. No. 778).

4. TMD has incurred additional fees and costs in this matter since Plaintiffs

submitted their Motion for Preliminary Approval. The additional time has been spent working

with the claims administrator and notice provider, as well as responding to calls and emails

from class members about the terms of the Settlement. To date, TMD has incurred a total of

$1,009,765.50 in attorneys’ fees and $128,371.34 in costs in this matter. We anticipate that our

firm will incur additional fees and costs in the amount of approximately $20,000 after the date

of this submission, including time spent communicating with class members and preparing for

and attending the Final Fairness Hearing. Attached hereto as Exhibit A is a breakdown of our

total fees and costs to date.

5. TMD personnel have spoken with at least 100 Class Members about the terms of

the Settlement. I have personally spoken to around a dozen Class Members. The Class

Members with whom I have spoken have all been very happy to hear that the case settled.

They have also expressed gratitude for the work done by Plaintiffs’ counsel and have been

satisfied with the amount of the settlement.

I declare under penalty of perjury under the laws of the State of Washington that the

foregoing is true and correct.

Executed this 10th day of July, 2009, in Seattle, Washington.

S/BETH E. TERRELLSTATE BAR NUMBER 26759TERRELL MARSHALL & DAUDT PLLC 3600 FREMONT AVENUE N.SEATTLE, WA 98103TELEPHONE: (206) 816-6603FAX: (206) 350-3528E-MAIL: [email protected]

By:Beth E. Terrell, WSBA #26759



EXHIBIT A



Wal�Mart�Stores,�Inc.�—�3775�001�Class�Action�Against�

(05/23/2008�through�07/10/2009)��

COSTS��

Reproductions� �$��2,175.75��Postage/Delivery/Notice� �$��1,756.81��Messenger� �$��43.00��Outside�Professional�Services/Advances �$��120,000.00��Computer�Research� �$��1,763.70��Meals� �$��262.33��Travel�Expenses� �$��2,259.27��Witness�Fees/Expenses� �$��25.00��Miscellaneous� �$��85.48��

Total� �$��128,371.34��



Wal�Mart�Stores,�Inc.�—�3775�001�Class�Action�Against�

(05/23/2008�through�07/10/2009)��

FEES1��

Name� Level� Hours Rate/Hour Total�Fees�

Beth�E.�Terrell� Partner� 694.4 560� �$��388,864.00��Toby�J.�Marshall� Partner� 265.8 475� �$��126,255.00��Jennifer�R.�Murray� Partner� 140.6 310� �$��43,586.00��Michael�D.�Daudt� Partner� 0.3 560� �$��168.00��Erika�L.�Nusser� Associate� 2.8 275� �$��770.00�Jessica�Fritz� Law�Clerk� 335.8 265� �$��88,987.00��Brian�Howe� Law�Clerk� 278.6 265� �$��73,829.00��Natalie�D.�Findley� Law�Clerk� 7.5 265� �$��1,987.50��Jennifer�J.�Boschen� Paralegal� 971.8 205� �$��199,219.00��Eden�B.�Nordby� Paralegal� 613.6 125� �$��76,700.00�Anne�W.�Herman� Doc.�Clerk 92.5 100� �$��9,250.00��Luke�R.�Greenway� Doc.�Clerk 1.5 100� �$��150.00�

Total� 3405.9 �$��1,009,765.50��

��1�The�fees�and�costs�represented�here�are�for�work�performed�from�May�2008�to�July�2009�by�the�attorneys�and�staff�of�Terrell�Marshall�&�Daudt�PLLC.��As�noted�in�the�declaration�of�Beth�E.�Terrell,�several�of�these�attorneys�and�paralegals�also�performed�extensive�work�on�the�case�while�associated�with�Tousley�Brain�Stephens�PLLC.��The�fees�and�costs�for�that�work,�which�was�performed�from�2001�to�2008,�are�detailed�in�the�declaration�of�Kim�D.�Stephens.�

















EXHIBIT 4



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26DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY APPROVAL OF PROPOSED SETTLEMENT - 1 CASE NO. 03-2-3355-3781776.2


TEL. 206.816.6603 � FAX 206.350.3528

THE HONORABLE CHRIS WASHINGTON Noted for Hearing: July 31, 2009 at 10:00 a.m.

With Oral Argument

IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON IN AND FOR KING COUNTY

DURAND “DEE” SPLATER and RUTH DUNN, on their own behalf and on behalf of others similarly situated,

Plaintiffs,

vs.

THERMAL EASE HYDRONIC SYSTEMS, INC., a Washington corporation; PLASCO MANUFACTURING LTD., n/k/a UPONOR CANADA, INC., a Canadian corporation; and HOT WATER SYSTEMS NORTH AMERICA, INC., a Delaware corporation,

Defendants.

CLASS ACTION

NO. 03-2-33553-3 SEA

DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT


1. I am a member of Terrell Marshall & Daudt PLLC, co-counsel for Plaintiffs in the

matter of Splater et al. v. Thermal Ease Hydronic Systems, Inc. et al. I have personal knowledge

of the following facts and if called to testify could and would competently do so. I am submitting

this declaration in support of Plaintiff’s Motion for Final Approval of Class Action Settlement.



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2. Terrell Marshall & Daudt PLLC is a law firm in Seattle, Washington that focuses

on complex civil and commercial litigation with an emphasis on employment, consumer

protection, product liability, real estate, and personal injury matters.

3. I am the lead attorney from Terrell Marshall & Daudt PLLC in the instant

litigation. Prior to forming Terrell Marshall & Daudt PLLC in May 2008, I was the lead attorney

on this matter from Tousley Brain Stephens PLLC. I graduated Order of the Coif from the

University of California at Davis King Hall School of Law.

4. I have extensive experience litigating class actions, and have served as co-lead

counsel for numerous multi-state and nationwide product defect class actions against companies

such as Weyerhaeuser, American Cemwood, Behr, and Hurd Windows, resulting in settlements

worth hundreds of millions of dollars to consumers.

5. Currently, I serve as co-lead class counsel in Odom et al. v. Microsoft, Inc. and

Best Buy Stores, Inc. (King County Super. Ct.), representing a nationwide class of more than

300,000 consumers alleging that defendants violated the Washington State Consumer Protection

Act when they charged consumers for MSN internet services they never used. I also served as

co-lead class counsel in Godoy et al. v. AT&T wireless Services, Inc., representing a class

comprised of 5 million AT&T Wireless customers alleging that AT&T Wireless engaged in

consumer fraud when it failed to pro-rate customers’ bills when they terminated their accounts.

The class claims ultimately settled for $47 million.

6. In addition to the product defects and consumer fraud actions discussed above, I

have extensive experience litigating wage and hour class actions. For example, I serve as co-lead

class counsel in Kirkpatrick v. Ironwood Communications, Inc. (W.D. Wash.), representing a

class of more than 2,400 current and former Washington and Oregon Ironwood employees who

allege wage and hour violations. After nearly four years of litigation, a settlement has been

reached in that consolidated case, and the court has granted final approval. I also serve as co-lead



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TEL. 206.816.6603 � FAX 206.350.3528

class counsel in McGinnity v. AutoNation, Inc. (Arbitration; Spokane County Super. Ct.),

representing a class of more than 500 current and former Washington employees of AutoNation

who were deprived of the paid vacation time to which they were entitled. The plaintiffs in that

case prevailed at arbitration, recovering on behalf of the class a judgment that is currently valued

at more than $2.5 million. The Court of Appeals recently affirmed that judgment. I also serve as

co-lead class counsel in Ramirez v. Precision Drywall, Inc. (King County Superior Court),

representing a class of more than 300 current and former Washington employees of Precision

Drywall who allege wage and hour violations.

7. I have served as co-lead class counsel in Morden v. T-Mobile, Inc. (W.D. Wash.),

representing a nationwide class of more than 300 current and former T-Mobile employees who

alleged wage and hour violations under the FLSA and various state laws. I have also served as

co-lead class counsel in Godfrey v. Chelan County P.U.D. (E.D. Wash.), representing a class of

approximately 80 current and former employees who alleged the PUD violated state and federal

law by failing to pay them for “shift turnover” time. Both cases resulted in court-approved

settlements.

8. I have represented numerous plaintiffs with race and gender discrimination claims,

allegations of equal pay act violations, and disability discrimination claims. Although most cases

resolve prior to trial, I tried a disability discrimination case in federal court in 2004 against Fred

Meyer Stores, Inc., resulting in a substantial monetary award for my client.

9. Over the past 6 years, I have spent more than 500 hours prosecuting the claims

against Plasco. Among other things, I conducted the pre-filing investigation and research of

potential claims; worked on case management and litigation strategy issues; presented arguments

at hearings; drafted and worked on pleadings, briefing, memoranda, discovery requests, and

correspondence; researched and analyzed various legal and factual issues; worked on factual

investigations; worked on various discovery and litigation issues; participated in meetings and



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conferences; took and defended depositions; reviewed and coded documents; interviewed class

members and witnesses; worked on damages analyses; worked on trial plan and expert issues;

participated in extensive mediation and settlement discussions; worked on drafting the settlement

agreement and exhibits; and worked on the motions for preliminary and final approval of

settlement. As noted above, much of my work on this case occurred while I was a partner.

10. Toby J. Marshall is also a member of Terrell Marshall & Daudt PLLC. A graduate

of the University of Washington School of Law, Mr. Marshall concentrates his practice on

complex civil litigation and has represented clients in a wide variety of class actions, including

wage and hour, securities fraud, product defect, and consumer fraud cases. He has been actively

involved in the prosecution of numerous class actions, including Kirkpatrick v. Ironwood

Communications, Inc., Godfrey v. Chelan County PUD, McGinnity v. AutoNation, Inc, and

Ramirez v. Precision Drywall, Inc. In the McGinnity matter, Mr. Marshall served as co-lead

counsel throughout the arbitration, securing a judgment that is currently valued at more than $2.5

million. Mr. Marshall has tried and won other cases in state and federal courts and has also

successfully briefed and argued cases before the Washington State Court of Appeals and the

Ninth Circuit Court of Appeals. He has been named a “Rising Star” in 2005, 2006, 2007 and

2009 by Washington Law & Politics. Prior to forming Terrell Marshall & Daudt PLLC in May

2008, Mr. Marshall was a member of Tousley Brain Stephens and worked extensively on this

action.

11. Over the past 6 years, Mr. Marshall has spent more than 950 hours prosecuting the

claims against Plasco. Among other things, Mr. Marshall has worked on case management and

litigation strategy issues; presented arguments at hearings; drafted and worked on pleadings,

briefing, memoranda, discovery requests, and correspondence; researched and analyzed various

legal and factual issues; worked on factual investigations; worked on various discovery issues;

took and defended depositions; reviewed and coded documents; interviewed class members and



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TEL. 206.816.6603 � FAX 206.350.3528

witnesses; worked on class member declarations; worked on damages analyses; worked on trial

plan and expert issues; worked on mediation and settlement issues; and worked on the motions

for preliminary and final approval of settlement.

12. Jennifer Rust Murray is also a member of Terrell Marshall & Daudt PLLC. Ms.

Murray graduated from the University of Washington School of Law in 2005 where she was a

member of the Washington Law Review. Her law review article entitled “Proving Cause in Fact

under Washington’s Consumer Protection Act: The Case for a Rebuttable Presumption of

Reliance” won the Carkeek prize for best submission by a student author. Prior to law school,

Ms. Murray earned her Ph.D. in Philosophy from Emory University. Prior to joining Terrell

Marshall & Daudt PLLC, Ms. Murray was an associate at Tousley Brain Stephens PLLC where

she represented both plaintiffs and defendants in many class and collective actions including

Kirkpatrick v. Ironwood Communications, Inc., Morden v. T-Mobile, McGinnity v. AutoNation,

Inc., Godfrey v. Chelan County P.U.D., and Carroll v. Nuprecon. Prior to forming Terrell

Marshall & Daudt PLLC in May 2008, Ms. Murray was an associate of Tousley Brain Stephens

and worked extensively on this action.

13. Over the past 6 years, Ms. Murray has spent more than 80 hours prosecuting the

claims against Plasco. Among other things, Ms. Murray has drafted and worked on pleadings,

briefing, memoranda, discovery requests, and correspondence; researched and analyzed various

legal issues; worked on factual investigations discovery issues; and reviewed documents.

14. Until February 2009, Jennifer J. Boschen worked as a paralegal for Terrell

Marshall & Daudt PLLC. Prior to the formation of Terrell Marshall & Daudt PLLC, Ms.

Boschen worked for approximately seven years as a paralegal for Tousley Brain Stephens PLLC.

She earned her B.A. from Rutgers University in 1998. Ms. Boschen was extensively involved in

the prosecution of numerous class actions, including the employment cases of Kirkpatrick v.



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TEL. 206.816.6603 � FAX 206.350.3528

Ironwood Communications, Inc., Morden v. T-Mobile, McGinnity v. AutoNation, Inc., and

Godfrey v. Chelan County P.U.D.

15. Over the past 6 years, Ms. Boschen spent more than 545 hours prosecuting the

claims against Plasco. Among other things, Ms. Boschen has done extensive document review

and analysis; worked on litigation strategy and discovery issues; drafted discovery requests;

drafted correspondence; prepared attorneys for depositions and hearings; provided support for

extensive motion practice; worked on factual investigations; worked on damages analyses;

interviewed class members; worked on class member declarations; reviewed and coded

documents; managed document databases and issues regarding production; managed e-discovery

issues; researched class member and witness contact information; and provided information to

class members.

16. The attorneys of Terrell Marshall & Daudt PLLC have extensive experience in


co-lead class counsel in numerous cases at both the state and federal level. They have prosecuted

and defended a variety of multi-million-dollar disputes.

17. Terrell Marshall & Daudt PLLC supports the proposed settlement in this action as

fair, reasonable, adequate, and in the best interests of the Class as a whole.

18. Attached hereto as Exhibit A is a breakdown of the fees and costs incurred by

Terrell Marshall & Daudt in the prosecution of this action.

19. On August 14, 2003, Plaintiffs filed a complaint against Plasco Manufacturing

Ltd., n/k/a Uponor Canada, Inc., a Canadian corporation, and Hot Water Systems North America,

Inc., and all affiliated, associated and/or subsidiary entities (collectively, “Defendants” or

“Plasco”) in King County Superior Court. Plaintiffs claim Plasco’s cross-linked polyethylene

tubing (“UltraPEX Tubing”) is inadequately designed to handle the constant flow of hot,



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TEL. 206.816.6603 � FAX 206.350.3528

chlorinated water and is therefore inherently defective, and Plaintiffs sought damages and

injunctive relief on behalf of themselves and all others similarly situated.

20. The parties engaged in extensive discovery leading up to and during the briefing

regarding class certification. Class Counsel reviewed more than 54,000 pages of production

documents from Plasco, along with numerous electronic files, including multiple databases each

with thousands of records. In addition, the parties have conducted 10 depositions, including class

representatives, Plasco engineers and business personnel, experts, and Plasco’s Rule 30(b)(6)

designees in all areas of sales, marketing and product design. Likewise the named Plaintiffs

responded to multiple rounds of discovery and made their structures and UltraPEX Tubing

available for inspection. Each side has engaged and worked extensively with multiple experts to

inspect the structures and UltraPEX Tubing, conduct testing and analysis, and to opine on the

existence and the severity of the alleged defect, and conduct statistical analysis of Plasco’s

warranty records. These experts have also produced reports and most have been deposed.

21. On March 15, 2006, the Court granted in part Plaintiffs’ motion for class

certification, defining the class as follows:

All individuals and entities that own or owned homes or other structures in the state of Washington in which hydronic heating systems incorporating PEX tubing manufactured by Plasco Manufacturing Ltd., now known as Uponor Canada, Inc., using AT Plastics materials are or have been installed since January 1, 1996.

Excluded from the Class are Defendants, any entity in which Defendants have a controlling interest of Defendants, and Defendants’ legal representatives, assigns and successors, any judge to whom the case is assigned and his or her immediate family, and any person who timely and validly excuses himself or herself from the class.

22. At the time of Settlement, Class Counsel had retained and were working

extensively with experts in order to prove liability and damages, and Class Counsel were

beginning to marshal the many documents that would be used to support the Class claims at trial.

23. Meaningful settlement discussions began in early 2007 and culminated in a two-

day, in-person, arm’s-length negotiation on December 3 and 4, 2007. During that time the



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TEL. 206.816.6603 � FAX 206.350.3528

mediator urged the parties to settle the case and get a resolution for the class. The parties finally

reached tentative agreement on the substantive terms of the Settlement and signed a CR 2A

Memorandum of Understanding memorializing those terms.

24. After mediation, Class Counsel worked extensively with Plasco’s counsel to iron

out a written settlement agreement. Class Counsel also assisted with drafting the exhibits to the

agreement, including the settlement notice and proof of claim form. Counsel then prepared the

motion for preliminary approval and the motion for final approval, along with a supporting

declaration.

25. The parties then spent many months drafting and revising a complete written

agreement, negotiating the numerous terms of that agreement, and working through a variety of

complex issues. These settlement efforts finally resulted in the parties signing a Settlement

Agreement containing all material terms in February 2008.

I declare under penalty of perjury of the laws of the state of Washington that the foregoing

is true and correct, and that this declaration was executed in Seattle, Washington, on the 21st day

of July, 2009.

S/BETH E. TERRELLSTATE BAR NUMBER 26759TERRELL MARSHALL & DAUDT PLLC 3600 FREMONT AVENUE N.SEATTLE, WA 98103TELEPHONE: (206) 816-6603FAX: (206) 350-3528E-MAIL: [email protected]____________________________Beth E. Terrell



EXHIBIT A



UltraPex�Class�Action�–�3957�001�Splater,�et�al.�v.�Thermal�Hydronic�Systems,�Inc.,�et�al.�

(05/23/2008�through�07/17/2009)��

COSTS��

��

�

�

�

�

�

�

�

�

�

�

�

�

�

�

� �

�

�

Messenger� �$��22.00��Computer�Research� �$��0.27��

Total� �$��22.27��



UltraPex�Class�Action�–�3957�001�Splater,�et�al.�v.�Thermal�Hydronic�Systems,�Inc.,�et�al.�

(05/23/2008�through�07/17/2009)��

FEES1��

Name� Level� Hours Rate/Hour Total�Fees�

Beth�E.�Terrell� Partner� 12.3 560� �$��6,888.00�Toby�J.�Marshall� Partner� 55.2 475� �$��26,220.00��Michael�D.�Daudt� Partner� 1.0 560� �$��560.00��Erika�L.�Nusser� Associate 13.2 275� �$��3,630.00�Jennifer�J.�Boschen� Paralegal� 15.5 205� �$��3,177.50��Eden�B.�Nordby� Paralegal� 20.7 125� �$��2,587.50�Tova�C.�MacLennan� Paralegal� 2.9 115� �$��333.50�

Total� 120.8 �$��43,396.50��

��1�The�fees�and�costs�represented�here�are�for�work�performed�from�May�2008�to�July�2009�by�the�attorneys�and�staff�of�Terrell�Marshall�&�Daudt�PLLC.��As�noted�in�the�declaration�of�Beth�E.�Terrell,�several�of�these�attorneys�and�paralegals�also�performed�extensive�work�on�the�case�while�associated�with�Tousley�Brain�Stephens�PLLC.��The�fees�and�costs�for�that�work,�which�was�performed�from�2001�to�2008,�are�detailed�in�the�declaration�of�Kim�D.�Stephens.�



















EXHIBIT 5



DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS - 1 CASE NO. C10-00413 RSL

TERRELL MARSHALL DAUDT & WILLIE PLLC936 North 34th Street, Suite 400 Seattle, Washington 98103-8869

TEL. 206.816.6603 � FAX 206.350.3528 www.tmdwlaw.com

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THE HONORABLE ROBERT S. LASNIK

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

ED HARTMAN, a sole proprietorship doing business as OLYMPIC MARIMBA RECORDS, ED HARTMAN PERCUSSION STUDIO and THE DRUM EXCHANGE; JANET HODGIN and MICHAEL HODGIN, a partnership doing business as KIDS NORTHWEST; and MICHAEL A. SPAFFORD, a sole proprietorship doing business as “SPIKE” MAFFORD PHOTOGRAPHY, individually and on behalf of a class of Washington residents similarly situated,

Plaintiffs,

v.

COMCAST BUSINESS COMMUNICATIONS, LLC, a Pennsylvania corporation, COMCAST CORPORATION, a Pennsylvania corporation and its subsidiaries and affiliates, MARKETOUCH MEDIA, INC., a Texas corporation,

Defendants.

NO. C10-00413 RSL

DECLARATION OF BETH E. TERRELL IN SUPPORT OF PLAINTIFFS’ MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS AND INCENTIVE AWARDS FOR NAMED PLAINTIFFS


1. I am a member of Terrell Marshall Daudt & Willie PLLC (“TMDW”), co-

counsel for Plaintiffs and proposed class members in this matter. I am a member in good

Case 2:10-cv-00413-RSL Document 92 Filed 09/26/11 Page 1 of 10






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standing of the bars of the States of Washington and California. I respectfully submit this

declaration in support of Plaintiffs’ counsels’ motion for award of attorneys’ fees, costs and

expenses of the above-captioned class action. Except as otherwise noted, I have personal

knowledge of the facts set forth in this declaration, and could testify competently to them if

called upon to do so.

2. On August 1, 2010, after the parties completely briefed two motions to dismiss,

the Court stayed the case pending an interlocutory appeal of another matter originating in this

District on an issue related to this case. The stay was lifted on December 7, 2010. On January

19, 2011, the parties stipulated to another stay so they could submit to mediation. The parties

participated in mediation in Seattle, Washington before the Honorable Terry Lukens (Ret.) of

JAMS on March 24, 2011 (the “Mediation”). The Settlement Agreement was not reached at

the end of the mediation. After several weeks of continued negotiations with the assistance of

Judge Lukens, the case was settled, subject to Court approval. The negotiations resulting in the

Settlement Agreement were lengthy, adversarial, non-collusive, and at arms’ length. The terms

of the Settlement Agreement included confirmatory discovery as to the number of calls and

confirmation that the calls were placed by Marketouch on behalf of Comcast and that

Marketouch was the only vendor Comcast used to deliver commercial solicitation ADAD calls

to Washington businesses during the Class period.

3. Plaintiffs submitted their Unopposed Motion for Preliminary Approval on July

25, 2011. This Court granted preliminary approval orders dated August 1, 2011 and August 4,

2011. Thereafter, Notice was distributed to the Class via direct mail notice according to the

plan adopted by the Parties in the Settlement Agreement and approved by the Court.

4. TMDW is a law firm in Seattle, Washington, that focuses on complex civil and

commercial litigation with an emphasis on consumer protection, product liability, employment,

real estate, and personal injury matters. The attorneys of TMDW have extensive experience in








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co-lead class counsel in numerous cases at both the state and federal level. They have

prosecuted and defended a variety of multi-million-dollar disputes involving consumer fraud,

securities fraud, product defect, and anti-trust issues. The defendants in these cases have

included companies such as Walmart, Microsoft, Best Buy, Toyota, Sallie Mae, Comcast,

ABM Industries, Inc., Dell, Inc., and T-Mobile.

5. A founding member of TMDW, I concentrate my practice in complex litigation,







a member of Tousley Brain Stephens PLLC. I have litigated numerous consumer class actions

involving California consumer laws (including cases in state and federal court in California)

and have been admitted to practice in California since graduating from law school.

6. Kimberlee L. Gunning is the newest member of TMDW. Ms. Gunning focuses

her practice in complex litigation, including the prosecution of consumer class actions. Ms.

Gunning received her B.A., magna cum laude and Phi Beta Kappa, from Macalester College in

1991, an M.A. from Rutgers, The State University of New Jersey, in 1998 and graduated from

the University of Washington School of Law in 2004. Before joining the firm, Ms. Gunning

had a solo practice focused on consumer class actions, employment law and appeals in all areas

of civil and administrative law and was also an associate at Tousley Brain Stephens for 4 years.

Ms. Gunning has extensive experience in complex civil litigation and has represented plaintiffs

in several consumer class actions, including Spafford v. EchoStar; Hartman, et al. v. Comcast;

Boucher v. First American Title; Vernon, et al. v. Qwest, Grosvenor v. Qwest, Chesbro v. Best

Buy, L.P. and Godoy v. AT&T Wireless.







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7. TMDW is currently involved in litigating the following consumer protection

class actions:

� Mlejnecky et al. v. Olympus Imaging Am. Inc., filed in 2010 on behalf of owners of cameras containing defects that cause the cameras to fail or malfunction when underwater or when dropped, despite Olympus’s representations that the cameras were waterproof and shockproof.

� Brown v. U.S. Bank, N.A., filed in 2010 on behalf of Washington consumers who from October 13, 2006 through the present incurred overdraft fees on debit card transactions as a result of U.S. Bank’s practice of re-sequencing transactions from highest to lowest.

� Cooper et al. v. American Honda Motor Co., Inc., filed in 2010 on behalf of owners of 2006–2010 Honda Civics containing defective visors that cause them to split and hang in the face of drivers and passengers.

� Milligan et al. v. Toyota Motor Sales, Inc., filed in 2009 on behalf of owners of 2001 – 2003 Toyota RAV4s containing defective Electronic Computer Modules (“ECM”) which cause harsh shifting conditions and permanent damage to the transmissions.

� Arthur et al. v. Sallie Mae, filed in 2009 on behalf of consumers who received automated, pre-recorded phone calls on their personal cell phones in violation of the TCPA.

� Kitec Consolidated Cases, in which TMD serves as co-counsel in a national class action lawsuit against the manufacturers of defective hydronic heating and plumbing systems.

� Boucher v. First American Title Ins. Co. is a class action filed on behalf of title insurance customers who were overcharged for title insurance when they refinanced their mortgages.

� Qwest Price for Life and ETF Class Actions, filed on behalf of consumers whose rates for high speed internet service were increased despite a “Price for Life” contract agreement, or who were charged an Early Termination Fee (“ETF”) for cancelling their high speed internet service prior to the end of their term commitment, even if they did not knowingly agree to a term commitment and were not told about the ETF prior to cancelling service.

� Chesbro v. Best Buy Co., L.P., filed on behalf of consumers who received automated, pre-recorded solicitation phone calls from the







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defendant in violation of the TCPA, the WADAD and the Washington Consumer Protection Act.

� In re General Motors OnStar Litigation, a consolidated group of lawsuits consumers brought against multiple auto manufacturers due to the failure of analog OnStar equipment in their vehicles and the resulting termination of OnStar service.

8. The total number of hours expended on this litigation by TMDW is 310.5 hours.

The total lodestar for TMDW through September 26, 2011, calculated at the billing rates

charged in similar cases is $152,073.50. The following table lists the TMDW attorneys and

professional personnel and summarizes their work on the case that is included in the lodestar

figure for TMDW, as well as the current hourly rates. The hourly rate shown for any attorney

or paralegal who is no longer employed with TMDW reflects the last rate that applied at the

time of their employment:

NAME AND POSITION


RATE HOURSBILLED

TOTAL

ATTORNEYS

Beth E. Terrell Partner at Terrell Marshall Daudt & Willie PLLC J.D. from Univ. of California, Davis School of Law, Order of the Coif, 1995

Investigated factual issues and claims; researched legal issues; worked on litigation strategy; worked on complaint; worked on motion to dismiss and preliminary approval briefing; worked on discovery matters; worked on joint status report; attended hearing; worked on correspondence; worked on mediation issues; prepared for mediation; attended mediation; worked on settlement issues; worked on class notice issues.

$650 127.6 $82,940

Kimberlee L. Gunning Partner at Terrell Marshall Daudt & Willie PLLC J.D. from Univ. of Washington School of Law, 2004

Analyzed various legal and factual issues; worked on complaint; worked on discovery matters; researched legal issues; worked on briefing motion to dismiss; worked on pleadings and correspondence; worked on mediation brief; attended mediation; worked on settlement issues; worked on motion for preliminary approval; worked on class notice issues; worked on litigation strategy.

$475 115.9 $55,052.50







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NAME AND POSITION


RATE HOURSBILLED

TOTAL

LAW CLERKS

Charlotte Sanders Law Clerk at Terrell Marshall Daudt & Willie PLLC from May 2010 – June 2011 J.D. from Univ. of Washington School of Law, 2011

Researched legal issues; worked on response to motion to dismiss; worked on memorandum; worked on preparation for mediation.

$265 16.2 $4,293

PARALEGALS

Eden B. Nordby Paralegal at Terrell Marshall Daudt & Willie PLLC since June 2008 BA. Sarah Lawrence College, 2005.

Worked on pleadings and correspondence; finalized and served discovery requests; worked on document production issues; worked on motions for preliminary approval and supporting documents.

$250 9.2 $2,300

Bradford Kinsey Paralegal at Terrell Marshall Daudt & Willie PLLC since October 2009. AA as a legal assistant from Edmonds Community College, 1989. 21 years of experience working in civil litigation representing both plaintiffs and defendants.

Worked on pleadings and correspondence; worked on court filings; served correspondence and pleadings; worked on mediation brief.

$180 41.6 $7,488

TOTAL: 310.5 $152,073.50

9. TMDW sets its rates for attorneys and staff members based on a variety of

factors, including among others: the experience, skill and sophistication required for the types

of legal services typically performed; the rates customarily charged in similar matters; and the







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experience, reputation and ability of the attorneys and staff members. The schedule contained

in paragraph 8 was prepared from contemporaneous, daily time records regularly prepared and

maintained by the firms in the regular course of business.



paragraph 8. I supervised all work to avoid duplication of effort and to encourage efficiency. I

reviewed the billing records and reduced or eliminated time where necessary. The work

performed by the law clerks, paralegals, and document clerks was work that required sufficient

knowledge of legal concepts and that I or another attorney would have had to perform absent

such assistance. The law clerks identified above were all students currently enrolled in or

recently graduated from an accredited law school. The paralegals and document clerks

identified were all qualified to perform substantive legal work based on their training and past

experience working for attorneys, including attorneys outside of TMDW’s offices.

11. A sample of the federal and state courts since 2008 that have approved

TMDW’s standard billing rates and reimbursement of costs as reasonable are:

� July 2009, in Barnett, et al. v. Wal-Mart Stores, Inc., Case No. 01-2-24553-8 SEA (Wash. Sup. Ct. King County);


� July 2009, in Splater v. Thermal Ease Hydronic Systems, Inc., Case No. 03-2-33553-3 SEA (Wash. Sup. Ct. King County);

� December 2010, in Carideo v. Dell Inc., No. CV-01772-JLR (W.D. Wash.);

� May 2011, in Fine v. T-Mobile USA, Inc., No. CV-00973-TSZ (W.D. Wash.);

� May 2011, in Frey v. 3PD, Inc., No. C08-630-JCC (W.D. Wash.); and

� September 2011 in Cooper v. Am. Honda Motor Co., No. BC448670 (Cal. Sup. Ct., Los Angeles County)







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12. The $2,769.34 in expenses and cost liabilities TMDW reasonably incurred in the


13. TMDW undertook this case entirely on a contingency basis, meaning that if

Plaintiffs did not achieve a settlement or succeed at trial, the firm would not have recovered

any of the costs incurred in litigating this action and would not have been paid anything for the

310.5 hours it has devoted to the litigation. Because my firm is small, our work on this case has

affected my ability to accept and devote time to other potentially-profitable work.

14. Based on my professional experience, and taking into consideration the risks of

continued litigation versus the certain and substantial relief afforded by the settlement, it is my

opinion that the settlement is fair, adequate and reasonable, and in the best interests of the

settlement class, and merits approval. Because this is not a common fund settlement and

because there is no limit on the amount of claims paid, each eligible class member is

guaranteed to receive the full amount of his or her claim. It is also my view that, in light of the

time and costs expended by Class Counsel, the legal standards governing the award of fees and

costs in class actions, and the results obtained, the fees and costs requested by Class Counsel

are modest, and well-warranted. I wholly support the settlement.



EXECUTED at Seattle, Washington, this 26th day of September, 2011.

/s/ Beth E. Terrell, WSBA #26759 Beth E. Terrell, WSBA #26759







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I, Beth E. Terrell, hereby certify that on September 26, 2011, I electronically filed the



Peter Ehrlichman, WSBA #6591 Email: [email protected] Jessica Andrade, WSBA #39297 Email: [email protected] DORSEY & WHITNEY LLP 701 Fifth Avenue, Suite 6100 Seattle, Washington 98104 Telephone: (206) 903-8800 Facsimile: (206) 903-8820

Attorneys for Defendants Comcast Business Communications, LLC and Comcast Corporation

Michael R. Scott, WSBA #12822 Email: [email protected] HILLIS CLARK MARTIN & PETERSON, P.S.1221 Second Avenue, Suite 500 Seattle Washington 98101-2925 Telephone: (206) 623-1745 Facsimile: (206) 623-7789

Edward Correia, Admitted Pro Hac ViceEmail: [email protected] CORREIA & ASSOCIATES, P.C.1101 - 30th Street NW, Suite 500 Washington, DC 20007 Telephone: (202) 380-3595

Attorneys for Defendant Marketouch, Media, Inc.







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DATED this 26th day of September, 2011.

TERRELL MARSHALL DAUDT & WILLIE PLLC

By: /s/ Beth E. Terrell, WSBA # 26759Beth E. Terrell, WSBA # 26759 Email: [email protected] 936 North 34th Street, Suite 400 Seattle, Washington 98103-8869 Telephone: (206) 816-6603 Facsimile: (206) 350-3528





EXHIBIT 1

Case 2:10-cv-00413-RSL Document 92-1 Filed 09/26/11 Page 1 of 2



Terrell�Marshall�Daudt�&�Willie�PLLC��

Hartman,�et�al.�v.�Comcast�Corporation,�et�al.�Case�No.�C10�00413�RSL�

�COSTS�

��

�

Filing�Fees� $��232.49��Courier/Process�Service� $��632.50��Reproductions� $��35.65��Computer�Research�� $��1,840.70�Travel�(Parking)� $��28.00��Total� $��2,769.34�

Case 2:10-cv-00413-RSL Document 92-1 Filed 09/26/11 Page 2 of 2



Final Order and Judgment Case No. C10-413 RSL

THE HONORABLE ROBERT S. LASNIK

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ED HARTMAN, a sole proprietorship doing business as OLYMPIC MARIMBA RECORDS, ED HARTMAN PERCUSSION STUDIO and THE DRUM EXCHANGE; JANET HODGINand MICHAEL HODGIN, a partnership doing business as KIDS NORTHWEST; and MICHAEL A. SPAFFORD, a sole proprietorship doing business as “SPIKE” MAFFORD PHOTOGRAPHY, individually and on behalf of a class of Washington residents similarly situated,

Plaintiffs,

v.

COMCAST BUSINESS COMMUNICATIONS, LLC, a Pennsylvania corporation, COMCAST CORPORATION, a Pennsylvania corporation and its subsidiaries and affiliates; MARKETOUCH MEDIA, INC., a Texas corporation,

Defendants.

CIVIL ACTION NO. C10-0413RSL

FINAL ORDER AND JUDGMENT





On December 1, 2011, a hearing was held on the motion of plaintiffs for final approval

of the Release and Settlement Agreement dated July 21, 2011 reached in the above-referenced

matter (the “Settlement Agreement”) (Attached to Declaration of Rob Williamson and Kim

Williams, Dkt. #76) and seeking entry of a final judgment concluding this Action. The Court,

having considered the arguments of the parties, the papers submitted in support thereof, and

all other matters properly before the Court, hereby ORDERS as follows:

1. Except as specifically noted below, the Court for purposes of this Final Order

and Judgment adopts the definitions set forth in the Settlement Agreement, unless otherwise

defined below.

2. The Court finds that the prerequisites for a class action under Rule 23(a) and

(b)(3) of the Federal Rules of Civil Procedure have been satisfied in that: (a) the number of

Class Members is so numerous that joinder of all members thereof is impracticable; (b) there

are questions of law and fact common to the Settlement Class; (c) the claims of the Class

Representatives are typical of the claims of the Settlement Class they seek to represent; (d)

Class Representatives fairly and adequately represent the interests of the Class; (e) the

questions of law and fact common to the members of the Settlement Class predominate over

any questions affecting only individual members of the Settlement Class; and (f) a class

action is superior to other available methods for the fair and efficient adjudication of the

controversy.

All Washington businesses, including businesses operated out of residences, who received one or more commercial solicitations from Comcast directly or through its agents through the use of an automatic dialing and announcing device during the period of February 19, 2006, through the entry of the Preliminary Approval Order.

A list of those Persons who have timely and properly requested exclusion from the Class is

appended to this Final Approval Order as Attachment 1.





3. This Court has jurisdiction over the subject matter of this Action and over all

parties to the Settlement Agreement, including all Class Members.

4. The Class Notice delivered pursuant to the Court’s preliminary order of

approval, dated August 4, 2011 (the “Amended Preliminary Approval Order”) (Dkt. #84)

constituted the best notice practicable under the circumstances to all potential members of the

Class and fully complied with Fed. R. Civ. Proc. 23(e)(1). The Notice provided due and

adequate notice of these proceedings and the matters set forth herein, including the Settlement

Agreement and allocation of the Settlement Fund, to all persons and entities entitled to such

notice, and the Notice fully satisfied the requirements of Rule 23 of the Federal Rules of Civil

Procedure and any other applicable law. A full opportunity has been offered to the Class

Members to object to the proposed Settlement and to participate in the hearing thereon. Thus,

it is hereby determined that all Class Members who did not timely elect to exclude themselves

by written communication are bound by this Order and Final Judgment.

5. The settlement set forth in the Settlement Agreement is hereby finally

approved as fair, reasonable and adequate to all parties and Class Members pursuant to Fed.

R. Civ. Proc. 23(e)(2).

6. All Class Members: (1) are bound by this Final Judgment; (2) are forever

barred from instituting, maintaining, or prosecuting any of the Released Claims; and (3) have

released and discharged defendants from any and all liability with respect to such Released

Claims, including but not limited to claims for attorneys’ fees, costs, and expenses. The

Released Claims are set forth in Paragraph 13.1 of the Settlement Agreement, which states:

Upon final approval of the terms of this Settlement Agreement by the Court, the Class Members, on behalf of themselves, their descendants, ancestors, dependents, heirs, executors, and administrators, and on behalf of each of their past and present predecessors, successors, assigns, subsidiaries, affiliates, parents, operating entities, employees, officers, directors, attorneys, agents, shareholders, partners, joint venturers, insurers and sureties, jointly and severally, fully and forever release Comcast and Marketouch, and each of their past and present predecessors, successors, assigns, subsidiaries, affiliates,





and operating entities, and each of their respective past and present employees, officers, directors, attorneys, agents, shareholders, partners, joint venturers, insurers and sureties, of and from any claim, duty, obligation, lien, demand, damage, cause of action, or liability of any nature whatsoever, whether or not now known, suspected, pled, or claimed, whether raised by claim, counterclaim, setoff or otherwise, that any of them ever had, now has, or may claim to have had, that relates to, or otherwise arises from the Action or any allegations or claims raised therein (the “Released Claims”). Released Claims do not include (1) claims arising from the delivery of pre-recorded messages that were not delivered by or on behalf of Comcast; or (2) claims that do not arise as a result of Comcast directly or indirectly using an automatic dialing and announcing device for business to business solicitation calls.

7. Neither the Settlement Agreement, nor any of its terms or provisions, nor any

document executed pursuant to it, nor any other act taken to negotiate it or carry it out, shall

be construed as or raise any presumption or inference of any concession or admission, or any

waiver of any right, claim or defense of any party or any Class Member, except insofar as

such rights, claims or defenses are expressly released or discharged by this Final Judgment.

8. Neither this Final Order and Judgment, the Settlement Agreement, nor any of

the negotiations, documents or proceedings connected with them shall be:

(a)offered or received against the defendants Comcast and Marketouch

(the “Defendant(s)”)as evidence of or construed as or deemed to be evidence of any

presumption, concession, or admission by any of the defendants with respect to the truth of

any fact alleged by any of the Plaintiffs or the validity of any claim that has been or could

have been asserted in the Action or in any litigation, or the deficiency of any defense that has

been or could have been asserted in the Action or in any litigation, or of any liability,

negligence, fault, or wrongdoing of any Defendant;

(b)offered or received against any defendant as evidence of a presumption,

concession or admission of any fault, misrepresentation or omission with respect to any

statements or written document approved or made by any Defendant;

(c)offered or received against Defendants as evidence of a presumption,





concession or admission with respect to any liability, negligence, fault or wrongdoing, or in

any way referred to or for any other reason as against the Defendants, in any other civil,

criminal or administrative action or proceeding, other than such proceedings as may be

necessary to effectuate the provisions of the Settlement Agreement; provided, however, that if

the Settlement Agreement is approved by the Court, Released Parties (as defined in the

Settlement Agreement) may refer to it to effectuate the liability protection granted them

hereunder including to support a defense of res judicata, collateral estoppel, release, good

faith settlement, judgment bar or reduction or any other theory of claim preclusion or issue

preclusion or similar defense or counterclaim;

(d)construed against Defendants or the Class Members as an admission or

concession that the consideration to be given hereunder represents the amount which could be

or would have been recovered after trial; or

9. (e) construed as, or received in evidence as, an admission,

concession or presumption against the Plaintiffs or the Class Members that any of their claims

are without merit or that damages recoverable under any of the complaints filed in the Action

would not have exceeded the Settlement Amount. The Court reserves jurisdiction over the

Parties, including all Class Members, for purposes of supervising the implementation,

enforcement, construction, and interpretation of the Settlement Agreement.

10. The Court approves and directs that all Class Members who have submitted

valid claims (a total of 1521 Class Members) be paid $100 per call received. This amount

totals $159,500.00.

11. The Court further directs Comcast to pay two hundred eighty-five thousand

dollars and no cents ($285,000.00) to the Legal Foundation of Washington and two hundred

eighty-five thousand dollars and no cents ($285,000.00)), in equal shares, to El Centro de la

Raza and Neighborhood House.

12. The Court orders Comcast to pay up to two hundred-and-fifty thousand dollars





and no cents ($250,000.00) to the Claims Administrator for claims administration costs. The

Court orders Comcast to pay any claims administration costs in excess thereof, if any, to the

Claims Administrator, and if claims administration costs are less, the excess funds will be

retained by Comcast.

13. The Court hereby approves an award of Class Counsel attorneys’ fees and

costs of Eight Hundred Seventy Thousand Dollars ($870,000.00) to be paid by Comcast in the

manner provided in the Settlement Agreement.

14. None of the payments specified in Paragraphs 10-13, supra are the liability of

Comcast except as provided in the Settlement Agreement.

15. The Court further hereby approves an incentive payment of $10,000 to each

Lead Plaintiff to be paid as provided in the Settlement Agreement. This payment is not a

liability of Comcast except as provided in the Settlement Agreement.

16. Plaintiffs’ claims against Comcast and Marketouch are hereby dismissed with

prejudice and with all parties to bear their own costs and fees.

IT IS SO ORDERED.

Dated: December 1, 2011.

A Hon. Robert S. LasnikUnited States District Court Judge




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