Free Declaration - District Court of Arizona - Arizona

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SUSAN MARTIN (AZ#014226) DANIEL L. BONNETT (AZ#014127) JENNIFER KROLL (AZ#019859) MARTIN & BONNETT, P.L.L.C. 3300 N. Central Avenue, Suite 1720 Phoenix, Arizona 85012-2517 Telephone: (602) 240-6900 [email protected] [email protected] [email protected] Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA
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Barbara Allen, Richard Dippold, Melvin Jones, Donald McCarty, Richard Scates and Walter G. West, individually and on behalf of all others similarly situated, Plaintiffs,

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vs.
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Honeywell Retirement Earnings Plan, Honeywell Secured Benefit Plan, Plan Administrator of Honeywell Retirement Earnings Plan, and Plan Administrator of Honeywell Secured Benefit Plan, Defendants.

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No. CV04-0424 PHX ROS

Declaration of Susan Martin in Support of Plaintiffs Motion for an Award of Attorneys Fees and Costs and for Incentive Fees to Named Plaintiffs on the Partial Settlement

Pursuant to 28 U.S.C. § 1746, Susan Martin affirms under penalty of perjury:
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1. I am of legal age, under no legal disability and if called as a witness
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could competently testify to the matters set forth in this declaration from my own
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personal knowledge.
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2. I am a principal in the firm of Martin & Bonnett, P.L.L.C., Class
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Counsel, and I have served as lead attorney in this case. I submit this declaration in
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support of Plaintiffs motion for an award of attorneys fees and costs in the amount of 25% of the $35 million common fund created by the Partial Settlement. This declaration is also in support of the request for approval of the incentive fees for the named Plaintiffs as set forth in the Partial Settlement Agreement. 3. We will not belabor the Court with another recital of the background, qualifications and experience of deponent and the other attorneys in this firm as they are set forth in detail in the declarations submitted to the Court in support of Plaintiffs Motion for Class Certification, (Doc. 90), and were noted by the Court in its Order granting Plaintiffs Motion for Class Certification, and appointing Class Counsel. (Doc. 226 p. 16.) 4. From my practice and experience, I believe that we are one of a relatively small number of firms with extensive knowledge and experience in the pension plan aspects of ERISA that are willing to represent plaintiff pension plan participants on a regular basis. This is confirmed by colleagues in the supporting Declarations attached hereto as Exhibit 1. 5. Litigation against defendants in ERISA pension cases is difficult, complex and, as in this case, often entails a great deal of risk. There are many procedural and technical defenses and the case law is often unsettled. Cases such as this one, where Defendants have raised affirmative defenses add additional risks. Our firm is small and mounting a case such as this has meant that we have had to carefully consider new cases. On several occasions, we have been forced to decline other business because of this case, which requires so much of our time and resources. 6. This case involves highly complex issues under ERISA including disputed statutory provisions, actuarial concepts and methodologies, and litigation of this case has been difficult. As this Court is aware, this case has been vigorously defended. There have been numerous motions on a wide variety of different matters, including two motions for reconsideration and a motion for interlocutory appeal filed
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by Defendants. Although Defendants have turned over more than 20,000 pages of documents, which Class Counsel has reviewed, as well as over one million pages of benefit calculation worksheets, Defendants have also refused to provide a great deal of discovery and as a result, Plaintiffs have engaged in numerous discovery conferences. Defendants have also refused to turn over several documents that they claimed were privileged. The parties have briefed these issues. Class Counsel has engaged in substantial discovery and has noticed the Rule 30(b)(6) depositions of the Defendants and of Craig Chapman. Class Counsel has actively engaged in attempting to create usable data from non-manipulable files provided by Defendants and has engaged the services of a computer consultant and an actuarial firm and has reviewed the benefit calculation worksheets for hundreds of plan participants. 7. The case involves claims regarding offsets under a retirement plan. Although the claims may be complex, the monetary value of each individual claim may be relatively modest. Given the possibly modest individual damages and the high cost of litigating these claims, we would have had serious doubts about undertaking the case if we were not also convinced that it affected an entire class of individuals. We considered a number of factors in agreeing to litigate this case including that if we were successful we could benefit many retirees and employees, perhapsestablish groundbreaking awareness of issues as well as positive and constructive judicial precedent and that we might receive a percentage of the common fund created by our efforts. Given the scope and complexity of the undertaking and the risks involved, we might not have taken this case if we did not believe our efforts would merit a common benefit fee award. 8. As set forth in the accompanying memorandum of law regarding the benchmark percentage of common fund fee awards, and as supported by the foregoing and the accompanying declarations from the mediators engaged by the parties and from ERISA colleagues, we believe that an award of attorneys fees in the amount of
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25% of the common fund created through the Partial Settlement, is fair reasonable and appropriate, given Class Counsel s efforts in this lawsuit, the vigorous prosecution of these claims and the exceptional results achieved for class members under the Partial Settlement. 9. Because there are not many Plaintiffs attorneys who focus on ERISA pension litigation matters, it is difficult to gauge the market in the event the Court desires to consider a lodestar cross-check. However, based upon the quality of our work as plaintiff ERISA attorneys and the nationwide scope of our practice, and as confirmed by the supporting declarations, I believe that this firm s rates for ERISA litigation matters of $550 per hour for partners and $350 for associates and $95 for law clerks and para-legals are reasonable and less than those charged and/or requested in fee applications by many colleagues who do a substantial amount of plaintiffs ERISA work. I am aware that our rates are significantly below those of ERISA colleagues in New York and California with similar years of experience and expertise whose current rates are between $600 and $750 per hour. As also set forth in the supporting declarations, I believe our rates are comparable to rates charged locally for persons with comparable years of experience in this complex area of practice. 10. As also indicative of the market, the Court may wish to consider that prior to certification as a class action, almost 900 individual class members entered into individual retainers with Class Counsel. These fee agreements provided that Class Counsel would receive the greater of the fees awarded by the Court or one-third of the total recovery and forty percent of the total recovery in the event of an appeal. 11. Our firm keeps detailed contemporaneous records of time billed. I have reviewed our firm s task-based billing statements through October 31, 2007. Because the statements contain privileged and/or work product information and because the Partial Settlement does not resolve all of the issues of the case, I respectfully request that if the Court wishes to review the entries, that this firm be
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permitted to submit them for an in camera inspection. We have exercised billing judgment (within the meaning of Local Rule 54.2(d)(4)(C)) and therefore have made efforts to delete any unnecessary, duplicative and/or excessive time. Based on the hourly rates set forth herein through October 31, 2007, our firm has incurred lodestar fees in the amount of $2.679 million which represents over 6,500 hours of time. 12. This case has also been expensive to bring and prosecute. To date, Plaintiffs have incurred expenses totaling over $500,000. Aside from the enormous time commitments, Plaintiffs have been required to retain an expert actuary, and computer consultant, have shared the costs for two nationally known mediators and have incurred extensive additional expenses. The mediation and settlement efforts in this case took many days and involved significant out of town travel. While class members have raised money to assist in paying a portion of the expenses, Class Counsel has been responsible for several hundred thousand dollars of expense. Class Counsel has agreed to reimburse the class members for litigation costs they have paid to date and to pay all costs incurred to date out of the requested fee. 13. The Partial Settlement in this case produced a fund totaling $35,000,000, to be distributed among those participants who submit claim forms. The settlement will provide 90% of the total damages to the Fractional Reduction settlement class members and the rest of the settlement will be divided equally among Per Capita class members who submit claim forms. All of the $35,000,000 settlement fund will be paid out. For these reasons, Class Counsel respectfully requests the Court, in its discretion, to award Class Counsel attorneys fees and costs in the amount of $8,750,000.00,which is 25% of the common fund. Incentive Payments to Named Plaintiffs 14. All of the class members have also benefitted from the many hours and efforts of the named Plaintiffs, and named Plaintiffs were exceptionally helpful in achieving the Partial Settlement. As set forth in the Declarations attached hereto as
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Exhibit 2, each of the named Plaintiffs assisted in this lawsuit by scouring their files to respond to Defendants discovery requests, preparing for and attending depositions, meetings and briefings with Class Counsel and have been active in meetings to review and discuss the developments throughout the course of the settlement negotiations. 15. As set forth in the attached declarations, named Plaintiffs Richard Scates, Walter West and Melvin Jones have spent thousands of hours since the inception of this case as liaisons with Class Counsel in helping to obtain and forward to Class Counsel information from class members that was used in the litigation. They helped organize and raise funds to help offset some of the expenses of the litigation, have maintained records regarding class member contributions and personal information and have kept class members up to date on various developments. They have also established and maintained a website including communicating with class members regarding the proposed Partial Settlement. As set forth in the attached declarations, the proposed allocation of incentive awards reflects the actual amount of time and effort expended by each named Plaintiff. 16. For these reasons your deponent respectfully requests that Plaintiffs motion for an award of attorneys fees and costs and for approval of the proposed allocations and incentive payments to named Plaintiffs be granted.

Dated: January 23, 2008 s/Susan Martin Susan Martin

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CERTIFICATE OF SERVICE I hereby certify that on January 23, 2008 I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David B. Rosenbaum Dawn L. Dauphine Osborn Maledon, P.A. 2929 North Central Ave., Suite 2100 Phoenix, AZ 85012-2794 Michael Banks Azeez Hayne Morgan Lewis & Bockius LLP 1701 Market Street Philadelphia, PA 19103 Howard Shapiro Proskauer Rose LLP 909 Poydras Street, Suite 1100 New Orleans, LA 70112 Amy Covert Proskauer Rose LLP One Newark Center, 18th Floor Newark , NJ 07102-5211 Christopher Landau Eleanor R. Barrett Craig Primis Kirkland & Ellis LLP 655 Fifteenth Street, N.W. Washington, D.C. 20005 Attorneys for the Defendants

s/J. Kroll
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