Suzuki v. Hitachi Global Storage Technologies, Inc. , 434 F. App'x 695 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEREK SUZUKI, No. 10-15831
Plaintiff - Appellant, D.C. No. 3:06-cv-07289-MHP
v.
MEMORANDUM *
HITACHI GLOBAL STORAGE
TECHNOLOGIES, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Submitted May 13, 2011 **
San Francisco, California
Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and MILLS, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for Central Illinois, Springfield, sitting by designation.
Counsel for Derek Suzuki appeal the district court’s calculation of attorneys’
fees pursuant to Federal Rule of Civil Procedure 23(h) and California law. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.
The district court correctly began with the lodestar method of calculating
attorneys’ fees and then permissibly used the percentage of common fund cross-
check to arrive at a reasonable fee award under California law. In re Consumer
Privacy Cases, 96 Cal. Rptr. 3d 127, 136-37 (Ct. App. 2009).1
The district court’s finding that the settlement was worth nothing to class
was not illogical, implausible, or unsupported by the record. See United States v.
Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). The agreed-upon
disclaimers gave no value to class members, who had already purchased the hard
drives.
The district court did not err by including costs and attorneys’ fees in one
award. Suzuki cites no cases requiring a district court to differentiate between
attorneys’ fees and costs. Further, Suzuki agreed to a settlement that did not
differentiate between attorneys’ fees and costs. “‘If an agreement is reached on
the amount of a settlement fund and a separate amount for attorney fees and
1
California state law governs the question of attorneys’ fees, because
the underlying causes of action are based on state law. Vizcaino v. Microsoft
Corp., 290 F.3d 1043, 1047 (9th Cir. 2002).
2
expenses, both amounts must be disclosed to the class. Moreover, the sum of the
two amounts ordinarily should be treated as a settlement fund for the benefit of the
class, with the agreed-on fee amount constituting the upper limit on the fees that
can be awarded to counsel.’” Consumer Privacy Cases, 96 Cal. Rptr. 3d at 133
(quoting the Manual for Complex Litigation (4th ed. 2008) § 21.71, p. 525).
Because the district court did not abuse its discretion in applying the percent
of common fund cross-check, the panel does not reach Appellant’s challenge of the
use of .69 multiplier in the revised lodestar, as the district court did not ultimately
rely on the lodestar number.
AFFIRMED.
3