Free Motion for Attorney Fees - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-2232 ­ PSF - PAC ROBERT STUDER, and NICHOLAS IMPERATO, Derivatively On Behalf of eVISION INTERNATIONAL, INC., PAUL KINNEY, SAMY SAMY, and PHILIP CALDERONE, on behalf of themselves and all other persons similarly situated, Plaintiffs, vs. HENG FUNG HOLDINGS LIMITED, a public company in Hong Kong, FAI CHAN, in his individual and corporate capacities, TONG WAN CHAN, in his individual and corporate capacities, ROBERT TRAPP, in his individual and corporate capacities, KWOK JEN FONG, in his individual and corporate capacities, GARY COOK, in his individual and corporate capacities, JEFFREY BUSCH, in his individual and corporate capacities, ROBERT JEFFERS, JR., in his individual and corporate capacities, DORSEY & WHITNEY LLP, a Minnesota limited liability partnership, and EHRHARDT, KEEFE, STEINER & HOTTMAN, PC, Defendants, eVISION INTERNATIONAL, INC., a Colorado corporation, Nominal Defendant. ___________________________________________________________________ MOTION TO APPROVE AWARD OF PLAINTIFFS' COUNSEL ATTORNEYS' FEES AND REIMBURSEMENT OF EXPENSES ________________________________________________________________________ PRELIMINARY STATEMENT As noted in Plaintiffs' Motion and Memorandum of Law of Derivative Plaintiffs and Class Plaintiffs for Final Approval of Settlements filed contemporaneously, Plaintiffs' Counsel have achieved on behalf of eVision and its shareholders both a cash and related company stock

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transfer settlement, corporate governance reforms, and notification to class members' regarding the tax treatment of their dividends, past and future. Pursuant to the terms of the Settlements, Plaintiffs' Counsel, Lilley & Garcia, LLP, and Jacob A. Goldberg, Esq., LLC (collectively, "Plaintiffs' Counsel"), respectfully submit this application for an award of attorneys' fees and reimbursement of out-of-pocket expenses in connection with the prosecution of this litigation against Fai Chan, Tong Wan Chan, Kwok Jen Fong, Robert Trapp, Gary Cook, Robert Jeffers, and Jeffrey Busch (collectively, the "eVision Management Defendants"); Dorsey & Whitney, LLP ("Dorsey); Ehrhardt, Keefe, Steiner & Hottman, P.C. ("EKS&H"); and nominal Defendant, eVision International, Inc. ("eVision").1 The Declarations of Charles W. Lilley (Lilley Fee Decl.) and Jacob A. Goldberg Goldberg (Goldberg Fee Decl.) are incorporated herein as Exhibits A & C, respectively. Pursuant to the Settlement Agreement with eVision and the eVision Management Defendants, Plaintiffs' Counsel are not seeking any attorneys' fees in conjunction with the class action portion of this case. Plaintiffs' Counsel have jointly and vigorously prosecuted this action on behalf of the shareholders on an entirely contingent fee basis, without receiving payment of any kind for their services. Since November 2002, they have spent over 3,694.68 hours litigating this case. Plaintiffs' Counsel also expended more than $141,299.74 out of their own pockets in advancement of expenses without any guarantee they would be reimbursed. Now, having obtained a beneficial result for the company and its shareholders, Plaintiffs' Counsel seek fair and reasonable compensation for their services. Plaintiffs' Counsel

Pursuant to D.C. COLO. LCivR. 7.1A, in the previously filed Settlement Agreements, all parties' counsel agreed to a Plaintiffs' Counsel fee award not to exceed $450,000 for the derivative claims and an expenses reimbursement award not to exceed $150,000. 2

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respectfully requests the Court approve an award of attorneys' fees of $450,000, which is equal to 26 % of the approximately $1.7 million Settlement Fund,2 plus accrued interest, and reimbursement of out-of-pocket expenses in the amount of $141,299.74.3 As set forth herein, courts in this Circuit and elsewhere have frequently awarded percentages comparable to or greater than that requested here. Significantly, not a single shareholder has objected to the requested attorneys' fees or reimbursement of expenses. And in reaching the proposed settlement, all Defense Counsel, on behalf of their clients, specifically agreed to the proposed fees and costs reimbursement. STATEMENT OF FACTS & PROCEDURAL HISTORY The background and procedural history of the Action and the settlement negotiations are fully discussed in Plaintiffs' Motion and Memorandum of Law of Derivative Plaintiffs and Class Plaintiffs for Final Approval of Settlements ("Settlement Memorandum"), which is submitted herewith. Accordingly, only a brief statement of facts pertinent to the fee petition follows. As a result of Plaintiffs' Counsel's diligence and extensive legal and factual investigation throughout the course of this litigation, Plaintiffs' Counsel were able to achieve this beneficial result, providing shareholders with a recovery that is both meaningful in terms of property returned to the Company and in terms of corporate governance changes. Through their efforts, Plaintiffs'

The amounts $1.7 million Settlement and 26% fee are used throughout this brief; even if the eBanker stock portion of the award fluctuates to as low as $200,000, a $450,000 fee award would only be 32% of the Settlement ­ well within the precedents set in other fee awards cited herein. 3 Plaintiffs' Counsel expenses request does not include $12,953.98 in Administrative Expenses, related to the printing and dissemination of the Derivative and Class Notices which will be paid upon Court approval, according to the Proposed Settlement Agreement, directly from the Settlement Fund to the Settlement Administrator. See Ex. C, Goldberg Fee Decl. at ¶ 8. 3

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Counsel secured a Settlement Fund worth the better part of $1.7 million ($1,200,000 in cash and $200,000 - $500,000 in related company securities) for the benefit of the Class. Pursuant to this Court's Preliminary Approval Order dated August 9, 2005, a summary notice was disseminated on the P.R. newswire on September 8, 2005.4 On or about August 25, 2005, 2,128 copies of the Settlement Notices to Derivative case shareholders and 352 Notices to the Class members were mailed. One Notice went to all shareholders regarding the proposed derivative case settlement and another Class Notice went to all preferred B-1 shareholders. As of the date of this filing, 3,342 Notices were mailed to shareholders and brokers or their agents. See Declaration of Paul Mulholland Concerning Mailing of Notice... ("Mulholland Decl."), ¶ 7 (and Ex. B & C thereto -- copies of the Derivative Notice and of the Class Notice) submitted as Exhibit A to the Settlement Memorandum. The Notices provided a detailed description of the action, including the nature of the action, and the terms of the proposed Settlement. The Notice also informed the shareholders that Plaintiffs' Counsel would apply to the Court for an award of attorneys' fees in an amount not to exceed $450,000 from the Settlement Fund. The deadline for shareholders to file objections to the Settlement or the request for attorneys' fees or reimbursement of expenses was October 3, 2005 (Settlement with eVision) and October 4, 2005 (Settlement with Dorsey & Whitney, LLP and Ehrhardt, Keefe, Steiner and Hottman, P.C.). No objections were filed. This Litigation was undertaken and prosecuted wholly on a contingent fee basis and at great risk against well-financed and vigorous opposition by the Defendants, represented by able

See Ex. A of Declaration Of Jacob A. Goldberg, Esq. Certifying Compliance With CourtOrdered Notice Requirements filed September 13, 2005. 4

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counsel, including the Denver law firms of Hale Friesen, LLP, Wheeler, Trigg & Kennedy, LLP, and Birge & Minckley, P.C. As set forth in greater detail in the Settlement Memorandum, Plaintiffs faced serious obstacles to establishing liability and proving damages. Nevertheless, Plaintiffs' Counsel effectively obtained a meaningful recovery, which they believe constitutes an excellent result for the shareholders and Class. The prosecution of this action began in the Summer 2002 with a comprehensive investigation by Plaintiffs' Counsel prior to filing the initial complaint. That investigation entailed review of proxy materials, consultation with non-testifying experts, and discussion with shareholders prior to filing the original Complaint ("Complaint") on November 27, 2002, the Amended Complaint ("Amended Complaint") on December 10, 2002, the Second Amended Complaint ("2nd Complaint"), which added the class claims, on April 16, 2003, and the Third Amended Complaint ("3rd Amended Complaint") on November 10, 2003. Plaintiffs' Counsel also engaged in substantial motion practice, including: (1) responding to Defendants' Motion to Dismiss; (2) moving for class certification; (3) submitting numerous filings concerning discovery; (4) opposing Defendants' Motion for Partial Summary Judgment; and (6) having extensive consultations with expert witnesses. Plaintiffs' Counsel also conducted extensive discovery in this action, which included: (1) review of over 25,000 documents produced by Defendants and a number of third parties pursuant to initial and mandatory disclosures, interrogatories, and requests for production; (2) depositions of corporate officers and directors in Denver, Delaware, and Hong Kong; (3) preparing and exchanging preliminary expert reports on valuation and damages issues and corporate governance; and (4) consultations with Plaintiffs'

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experts. Plaintiffs' Counsel also produced documents and defended depositions for all Plaintiffs in this action. Moreover, Plaintiffs' Counsel engaged in extensive and intensive arm's-length settlement negotiations with counsel for the Defendants; negotiated and prepared or edited proposed Stipulations of Settlement, Forms of Notice and related Motions; directed the provision of Notice to the shareholders and Class; otherwise assisted the settlement administrator; communicated with and provided assistance to shareholders and Class Members; and prepared briefing in support of the final approval of the Settlement. As set forth herein and in the Settlement Memorandum, Plaintiffs' Counsel believes the request for an award of attorneys' fees and reimbursement of expenses is fair, reasonable, and wholly consistent with awards made in other similar complex derivative actions, especially those litigated so vigorously, as was this case. Plaintiffs' Counsel also seeks to recognize the efforts of derivative Plaintiffs Robert Studer and Nicholas Imperato, and to compensate them for their time and effort assisting in the prosecution of this case. The involvement of all the Plaintiffs in the prosecution of this action through settlement has enhanced the total recovery. Plaintiffs' Counsel asks that Messrs. Studer and Imperato be compensated for their time and effort in the amount of $1,500 each. ARGUMENT I. Plaintiffs' Counsel Are Entitled to a Fee For Creating a Common Fund

Shareholder derivative cases are a favored means for enforcing standards of conduct for corporate officer and directors. Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 371 (1966). Attorneys who successfully prosecute shareholder derivative actions may apply to the court for

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an award of attorneys' fees and reimbursement of expenses. See, e.g., Schilling v. Belcher, 582 F.2d 995, 1006 (11th Cir. 1978); Shlensky v. Dorsey, 574 F.2d 131, 149 (3d Cir. 1978) ("The plaintiffs in a shareholders' derivative action may . . . recover their expenses, including attorneys' fees, from the corporation on whose behalf their action is taken if the corporation derives a benefit, which may be monetary or nonmonetary, from their successful prosecution or settlement of the case.") The United States Supreme Court has long recognized that when a representative Plaintiff successfully establishes a common fund in which the other class members have a beneficial interest, the costs of litigation may be spread among the fund's beneficiaries. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) ("[A] litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole."); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 275 (1975); Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392-93 (1970). The Tenth Circuit has explicitly recognized this Court's right to award attorneys' fees from a common fund in situations where, as here, the common fund is the result of the attorney's successful prosecution of the action. See, e.g., Gottlieb v. Barry, 43 F.3d 474, 482 (10th Cir. 1994); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988); see also Rosenbaum v. MacAllister, 64 F.3d 1439, 1444 (10th Cir. 1995) ("The Common Fund doctrine `rests on the perception that persons who obtain the benefit of a lawsuit without contributing to its costs are unjustly enriched at the successful litigant's expense.'") (citation omitted); Consumers Gas & Oil, Inc. v. Farmland Indus., Inc., 863 F. Supp. 1357, 1361 (D. Colo. 1993).

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As discussed below, Plaintiffs' counsel should be awarded a fee from the common fund they have created. In nearly all complex derivative securities and class actions, plaintiffs must retain counsel only on a contingent fee basis. Therefore, if contingent fees awarded by the courts did not fairly and adequately compensate counsel for the services provided, the serious risks undertaken and the delay in compensation, counsel would refuse to accept such cases. That eventuality would deprive a large segment of the public of a remedy for violations of the securities laws. II. Under the Tenth Circuit Precedent, Plaintiffs' Counsel Are Entitled to a Fee Based on a Percentage of the Fund Awarding attorneys' fees as a percentage of a common fund is also entirely consistent with well-established Tenth Circuit precedent. In Brown, the Tenth Circuit affirmed the propriety of awarding attorneys' fees on a percentage basis in a common fund case. Cases following Brown confirm a "preference" in the Tenth Circuit for the percentage method. For example, in Gottlieb, the court stated: In our circuit, following Brown and Uselton, either [the percentage or lodestar] method is permissible in common fund cases; however, Uselton implies a preference for the percentage of the fund method. Gottlieb, 43 F.3d at 483 (emphasis added); see also Rosenbaum, 64 F.3d at 1445 (citing Gottlieb); Consumers Gas & Oil, 863 F. Supp. at 1361 ("The Supreme Court made clear that the percentage method of com[p]uting fees was the proper approach in Common Fund cases."). Nearly all courts in this District now use the percentage method to award attorney's fees in

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common fund cases. Indeed, the Supreme Court, other circuits and legal commentators all overwhelmingly favor this method.5 Compensating counsel in common-fund cases on a percentage basis makes good sense. First, it is consistent with the practice of the private marketplace, which customarily compensates contingent-fee attorneys on a percentage-of-the-recovery method. See, e.g., Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261,1269 (D.C. Cir. 1993); Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir. 1986) ("When the prevailing method of compensating lawyers for similar services is the contingent fee, then the contingent fee is the market rate.") (emphasis added). Second, it assures the interests of lawyer and client are aligned by providing plaintiffs' counsel with a strong incentive to maximize a desirable recovery for the derivative shareholders and the class in the shortest amount of time necessary under the circumstances ­ which is precisely what occurred here. As the Seventh Circuit has stated: The contingent fee uses private incentives rather than careful monitoring to align the interests of lawyer and client. The lawyer gains only to the extent his client gains . . . The unscrupulous lawyer paid by the hour may be willing to settle for a lower recovery coupled with a payment for more hours. Contingent fees eliminate this incentive and also ensure a reasonable proportion between the recovery and the fees assessed to defendants . . . .

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See Boeing, 444 U.S. at 478; Blum v. Stenson, 465 U.S. 886, 900 n.16 (1984); Third Circuit Task Force Report, 108 F.R.D. 237, 246-49, 254-59 (3d Cir. 1985) (identifying nine major flaws with lodestar method and recommending that fee awards in tradition common fund cases be based on a percentage of the recovery.) After the issuance of the Task Force Report in 1985, nearly every circuit has joined in approving the percentage-of-the-fund method in common fund cases. See, e.g., In re Thirteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litig., 56, F.3d 295, 306-07 (1st Cir. 1995); Savoie v. Merchants Bank, 166 F.3d 456, 460 (2d Cir. 1999); In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 820-21 (3d Cir. 1995); Rawlings v. Prudential Bache Props., Inc., 9 F.3d 513, 515-17 (6th Cir. 1993); Florin v. Nationsbank, N.A., 34 F.3d 560, 562 (7th Cir. 1994); Johnston v. Comerica Mortg. Corp., 83 F.3d 241, 246 (8th Cir. 1996); Camden I Condominium Ass'n v. Dunkle, 946 F.2d 768, 773 (11th Cir. 1991); Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C. Cir. 1993). 9

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At the same time as it automatically aligns interests of lawyer and client, rewards exceptional success, and penalizes failure, the contingent fee automatically handles compensation for the uncertainty of litigation. Kirchoff, 786 F.2d at 325-26.6 Third, use of the percentage method decreases the burden imposed upon the court by the "lodestar" method and assures that class members do not experience undue delay in receiving their share of the settlement. See, e.g., Third Cir. Task Force Report, 108 F.R.D. at 258 (stating that judicial review of fee petitions is "cumbersome, enervating and often surrealistic"); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (warning that a "request for attorneys' fees should not result in a second major litigation"). For these reasons, the Tenth Circuit and numerous other jurisdictions prefer the percentage-of-the-recovery approach. Indeed, Professor John C. Coffee, a distinguished scholar in the field, argues that a percentage of the recovery is the only reasonable method of awarding fees in common fund cases: If one wishes to economize on the judicial time that is today invested in monitoring class and derivative litigation, the highest priority should be given to those reforms that restrict collusion and are essentially self-policing. The percentage of the recovery fee award formula is such a "deregulatory" reform because it relies on incentives rather than costly monitoring. Ultimately, this "deregulatory" approach is the only alternative . . . . John C. Coffee, Jr., Understanding the Plaintiffs' Attorney: The Implications of Economic Theory for Private Enforcement of Law Through Class and Derivative Actions, 86 Colum. L. Rev. 669, 724-25 (1986).

Conversely, the lodestar method has been criticized for encouraging plaintiffs' attorneys to drag out complex litigation in order to run up "lodestar" hours, even when their clients' and the Class' interests would be much better served by an earlier settlement of a case based on arms-length negotiations conducted by experienced counsel. See, e.g., In re GMC, 55 F.3d at 821. 10

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A.

Plaintiffs' Counsels' Fee Request Is Well Within the Range of Reasonableness of Other Percentage Awards No precise rule or formula exists for determining the reasonableness of attorneys' fees.

See Evans v. Jeff D., 475 U.S. 717, 735-36 (1986). In both Brown and Uselton v. Commercial Lovelace Motor Freight, 9 F.3d 849 (10th Cir. 1993), however, the Tenth Circuit noted that in common-fund cases, the court should consider the so-called "Johnson factors" to assess the reasonableness of the fee award: To determine reasonableness, federal courts have relied heavily on the factors articulated by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), in calculating and reviewing attorneys' fees awards. See, e.g., Ramos, 713 F.2d at 552. Because these factors measure the attorneys' contributions, they are also appropriate in setting and reviewing percentage fee awards in common fund cases. The Johnson factors are: (1) the time and labor involved; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) any prearranged fee ­ this is helpful but not determinative; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 488 F.2d 717-19. Brown, 838 F.2d at 454-55 (citing Johnson); Uselton, 9 F.3d at 853; see also Gottleib, 43 F.3d at 482-83 ("[W]e held that the twelve factors originally developed in Johnson . . . for statutory fee cases apply equally to percentage fee [cases]"; "[W]hichever method is used, the court must consider the twelve Johnson factors"). The Tenth Circuit has also recognized that "rarely are all of the Johnson factors applicable" in a common fund case. Brown, 838 F.2d at 456; see also Uselton, 9 F.3d at 853 (stating that "applicability and weight" of the Johnson factors will "undoubtedly be different" in common fund and statutory fee determinations). As discussed below, the applicable Johnson factors support the requested fee here.

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1.

The Time and Labor Involved

As detailed in Exhibit A, the Lilley Fee Decl., and Exhibit C, the Goldberg Fee Decl., Plaintiffs' Counsel expended significant time and effort in this case, litigating vigorously before achieving an excellent settlement after hard-fought negotiations with Defendants' counsel. This included 3,694.68 total hours on non-class claims and $1,113,486.50 in lodestar at Counsel's normal hourly rates. Plaintiffs' Counsel conducted an extensive and on-going investigation. Thereafter, Counsel interviewed additional plaintiffs and used that additional information to create the Amended Complaint and subsequent amendments. Plaintiffs' Counsel also spent significant time engaging in necessary motion practice in this case. Indeed, not only did Plaintiffs' Counsel fully research and prepare a thorough legal brief in response to Defendants' Motion to Dismiss, but also researched and prepared an opposition to Defendants' Motion for Partial Summary Judgment, and a Motion (and Reply) in Support of Class Certification plus numerous additional motions. As noted above, Plaintiffs' Counsel spent significant time in discovery proceedings related to this matter, including responding to document requests, interrogatories, requests for admissions and attending depositions for each of the Class member or derivative shareholder who served as a Plaintiff in this action. Aside from trying the case ­ which offered no guarantee of recovery ­ Plaintiffs' Counsel could do little else to obtain the better part of a $1.7 million recovery that they achieved for Plaintiffs and the Class. Accordingly, the time and labor that Plaintiffs' Counsel expended in litigating this case is strong evidence of the reasonableness of the requested fee.

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Further, in accordance with the terms of the Settlements, Counsel have not included 434.6 hours ($132,434 in lodestar) spent in connection with the class proceedings. 2. The Novelty and Difficulty of Questions Raised by the Litigation

This case was primarily litigated as a shareholder derivative action involving complex factual and legal issues. Based upon allegations relating to a proxy solicitation to transfer assets, it shared many similarities to securities litigation. Courts have long recognized that the novelty and difficulty of the issues in a case are significant factors in determining a fee award. Here the complexity was heightened due to the fact that there were both derivative and class action claims. As noted in Miller v. Woodmoor Corp., prosecution of any Rule 23 type case in the securities area presents inherently complex and novel issues: The benefit ... must also be viewed in its relationship to the complexity, magnitude, and novelty of the case . . . . Despite years of litigation, the area of securities law has gained little predictability. There are few "routine" or "simple" securities actions. Courts are continually modifying and/or reversing prior decisions in an attempt to interpret the securities law in such a way as to follow the spirit of the law while adapting to new situations which arise. Indeed, many facets of securities law have taken drastically new directions during the pendency of this action . . . Miller v. Woodmoor Corp., Nos. 74-F-988, 76-F-567, 1978 U.S. Dist. LEXIS 15234, at *11-12 (D. Colo. Sept. 28, 1978). Indeed, since then the inherent complexities of securities derivative and class action litigation have only become more daunting, especially in light of the defendantfriendly strictures of the PSLRA.7

See generally, e.g., In re Ikon Office Solutions, Inc., 194 F.R.D. 166, 194-95 (E.D. Pa. 2000) (awarding 30% fee, and noting that "securities actions have become more difficult from a plaintiffs' perspective in the wake of the PSLRA"); see also Elliot J. Weiss & Janet Moser, Enter Yossarian: How to Resolve the Procedural Catch-22 That The PSLRA Creates, 76 Wash.U.L.Q. 457, 459-60 (1998) (describing how the PSLRA makes it more difficult to set forth a claim and 13

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There is no question that this litigation involved numerous complex issues of law and fact that each presented considerable risks to Plaintiffs' case. Defendants steadfastly maintained that they did nothing wrong and that they properly disclosed all necessary information in connection with the proxy. Although Plaintiffs believe that their claims have merit, Defendants nonetheless argued vigorously they had valid defenses that made this case difficult from the start. Absent a settlement, there was a possibility that the shareholders would have received a smaller derivative recovery ­ or no recovery at all ­ had the Court or a jury accepted Defendants' arguments. Indeed, there was no assurance that the Third Amended Complaint would have survived Defendants' Motion for Partial Summary Judgment and that Class Certification could have been denied. In addition, as the Settlement Memorandum outlines in detail in §B(2)(b), serious questions of law and fact existed in this case which placed the ultimate outcome of all Plaintiffs' claims on behalf of eVision and the class members in doubt. For example, while Plaintiffs' believe their arguments were meritorious, Plaintiffs' would have needed to overcome the arguments of Defendants' damages expert, who opined that Plaintiffs could not support their claims of the valuation of the transferred assets. Similarly, Plaintiffs would have been required to rebut Defendants' arguments that the proxy statements did not contain material omissions or that the case was not entitled to federal jurisdiction. Finally, Plaintiffs' faced significant risks in proving their case against eVision's attorneys and accountants.

survive a motion to dismiss); Eugene Zelensky, New Bully on the Class Action Block ­ Analysis of Restrictions on Securities Class Actions Imposed by the PSLRA of 1995, 73 Notre Dame L. Rev. 1135 (1998) (same). 14

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Compounding those risks, Plaintiffs efforts to establish liability and damages, in all likelihood, would not end with a judgment in the District Court, but would continue through one or more levels of appellate review. In complex and substantial cases such as this, even a victory at the trial stage does not guarantee ultimate success. Both trial and judicial review are unpredictable and could adversely affect the scope of an ultimate recovery, if not the recovery itself, in this action. See In re Warner Communications Sec. Litig., 618 F. Supp. 735, 747-48 (S.D.N.Y. 1985) ("Even a victory at trial is not a guarantee of ultimate success. If Plaintiffs were successful at trial and obtained a judgment for substantially more than the amount of the proposed settlement, the defendants would appeal such judgment. An appeal could seriously and adversely affect the scope of an ultimate recovery, if not the recovery itself.") (citing numerous examples). Another example of this reality is Robbins v. Koger Props., 116 F.3d 1441 (11th Cir. 1997), in which the Eleventh Circuit reversed an $81 million jury verdict for Plaintiffs in a securities class action after five years of litigation. The court of appeals ruled for the first time in that circuit that plaintiffs could not establish loss causation in a §10(b) case by showing that the price of the security was inflated by misrepresentations, even though other circuits had previously held that such proof could establish loss causation. Id. at 1448-49. In this case, Plaintiffs had not yet survived the eVision Management Defendants' Motion for Partial Summary Judgment when the parties reached a settlement. Although Plaintiffs believed that their opposition to Defendants' motion was meritorious, the strength of Defendants' arguments made the risk of dismissal a very real threat. Yet despite the difficult questions raised by this case, Plaintiffs' Counsel succeeded in obtaining a significant recovery for the benefit of the shareholders.

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3.

The Skill Required to Perform the Legal Services Properly

It took considerable skill to achieve this Settlement. Indeed, counsel in actions such as this must possess expertise in federal securities laws, derivative and class actions, and other federal practices and procedures. Plaintiffs' Counsel, jointly associated, provided significant expertise in these types of actions. Their combined talents allowed counsel to plead sufficiently viable claims and theories of liability to pursue this action and bring Defendants to the negotiating table, all to the benefit of the shareholders and Class members. The Settlement value ­ the better part of $1.7 million -- is itself a testament to Plaintiffs' Counsel's skill and expertise. The quality of opposing counsel can also be important in evaluating the quality of Plaintiffs' Counsel's work.8 Here, experienced and tenacious litigators represented the multiple Defendants with a local reputation for vigorous advocacy in the defense of complex cases such as the present action. The quality of the Defendants' counsel's efforts on behalf of their clients was evident not only in their work on Defendants' motions to dismiss and for partial summary judgment, but in their aggressive discovery tactics and adversarial negotiating posture. Plaintiffs' Counsel have nonetheless obtained a significant derivative recovery for the benefit of eVision. 4. The Preclusion of Other Employment by Attorneys due to Acceptance of the Case

There is no question that Plaintiffs' Counsel were precluded from other employment due to their acceptance of this litigation. Both of Plaintiffs' firms are small but composed of highly experienced attorneys. By committing to this contingent fee case, Counsel forwent the

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opportunity of working on hourly work that has the benefit of allowing the firms a more predictable income flow. Moreover, when discovery proceedings intensified, this litigation diverted counsel from working on other contingent fee cases. 5. The Customary Fee for Similar Work

In Brown, the Tenth Circuit held that "the percentage reflected in a common fund award must be reasonable." Brown, 838 F.2d at 454. As set forth in the Lilley and Goldberg Fee Declarations, the attorneys' fee request of 26 % that Plaintiffs' Counsel has requested is reasonable and appropriate. Indeed, it is well below the 30% to 33 1/3% range that courts customarily award in securities fraud cases in this District and surrounding states. The following chart lists recent cases in this District and in surrounding states where fees of 25% and greater were approved:
Case
9

Percentage Award 25% of recovery plus expenses 25% of recovery plus expenses 30% of recovery plus expenses 30% of recovery plus expenses 30% of recovery plus expenses 30% of recovery plus expenses 30% of recovery plus expenses

Ex. E F G H I J K

Markus v. The North Face, Inc., C.A. No. 99-Z-47 (D. Colo. May 1, 2001) In re Samsonite Corp. Sec. Litig., C.A. No. 98-K-1878 (D. Colo. July 25, 2000) Schaffer v. Evolving Systems, Inc., C.A. No. 98-WY1338-CB (D. Colo. Oct. 4, 1999) In re Einstein Noah Bagel Corp. Sec. Litig., C.A. No. 97-N-1614 (D. Colo. June 4, 1999) Sterling v. Cray Computer Corp., C.A. No. 91-N-2261 (D. Colo. June 17, 1993) In re Coram Healthcare Corp. Sec. Litig., Master File No. 95-N-2074 (D. Colo. Jan. 24, 1997) In re Resort Income Investors, Inc. Sec. Litig., Master File No. 95-B-1665 (D. Colo. Mar. 13, 1998)

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See, e.g., In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 634 (D. Colo. 1976); In re Equity Funding Corp. Sec. Litig., 438 F. Supp. 1303, 1337 (C.D. Cal. 1977); Arenson v. Board of Trade, 372 F. Supp. 1349, 1354 (N.D. Ill. 1974). 9 The following unpublished orders are attached as Exhibits E to U. 17

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In re Intelcom Group, Inc. Sec. Litig., C.A. No. 95-D1166 (D. Colo. Mar. 21, 1997) Sonnenfeld v. City and County of Denver, Colorado, C.A. No. 95-Z-468 (D. Colo. Dec. 8, 1997) In re Storage Technology Sec. Litig., Case No. 92-B750 (D. Colo. Dec. 1, 1995) Wolf v. E.A. Breitenbach, C.A. No. 95-D-2572 (D. Colo. May 29, 1997) In re Sun Healthcare Group, Inc. Sec. Litig., Master File No. 95-7005 JC/WWD (D.N.M. May 5, 1997) In re Diagnostek, Inc. Sec. Litig., Master File No. 921274 JC/WWD (D.N.M. July 19, 1994) Sardi v. Struthers Indus., Civ. No. 94-C-787-H (N.D. Okla Oct. 21, 1996) Snyder v. Oneok Inc., Civ. No. 88-C-1500E (N.D. Okla. Nov. 1, 1994) In re United Telecommunications Sec. Litig., C.A. No. 90-2251-O, 1994 U.S. Dist. LEXIS 9151, at *12-13 (D. Kan. June 1, 1994) Cimarron Pipeline Constr., Inc. v. National Council on Compensation Ins., C.A. No. 89-822-T, 1993 U.S. Dist. LEXIS 19969, at *6 (W.D. Okla. 1993)

33-1/3% of recovery plus expenses 33-1/3% of recovery plus expenses 30% of recovery plus expenses 30% of recovery plus expenses 30% of recovery plus expenses 31.25% of recovery plus expenses 30% of recovery plus expenses 33-1/3% of recovery plus expenses 33-1/3% of recovery plus expenses 33-13% of recovery plus expenses

L M N O P Q R S T

U

As the Court noted in Strauss, et. al., v. Anschutz, et al., and Qwest, another Colorado-related derivative case, "Given the risk of no recovery, the complexity of derivative actions, the high level of
skill and expertise involved, and the large commitments of legal personnel and resources required, adequate compensation is necessary to induce law firms to undertake derivative claims for the benefit of shareholders." Strauss, et. al., v. Anschutz, et al., and Qwest, Denver City & County Court, 2004 (02-cv8188) at 4.

Likewise, the practice elsewhere often has been to award attorneys' fees of 30% of the settlement fund or greater. After conducting an exacting review of attorney fee awards in common fund cases, Judge Patel of the Northern District of California concluded that, "absent extraordinary circumstances that suggest reasons to lower or increase the percentage, the rate 18

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should be set at 30%." In re Activision Sec. Litig., 723 F. Supp. 1373, 1378 (N.D. Cal. 1989). The court in Ressler reached a similar conclusion: "Awards of 30% or more of a settlement fund are not uncommon in §10(b) common fund cases such as this." Ressler, 149 F.R.D. at 655. Indeed, numerous courts around the country have awarded attorneys' fees of 30% or greater in securities class actions.10 Risky cases generally demand a higher percentage, and the factual and legal uncertainties here made this litigation substantially riskier than most. 6. Whether There Was a Prearranged Fee

The fact that Plaintiffs did not negotiate a pre-arranged fee does not militate against awarding Plaintiffs' Counsel the percentage of the Settlement Fund that they have requested as a fee for their services. Thus the sixth Johnson factor is significant in this case.

See, e.g., In re Airline Ticket Comm'n Antitrust Litig., 953 F. Supp. 280, 286 (D. Minn. 1997) (awarding fee of $28 million; noting that counsel "rendered their services on a contingent fee basis" and "personally financed [the] case"; and holding that the requested fee of "one-third of the settlement fund fairly reflects the service and benefit [lead] counsel conferred"); Gaskill v. Gordon, 942 F. Supp. 382, 387-88 (N.D. Ill. 1996) (noting that 33% is the norm, but awarding 38% of the settlement fund) aff'd, 160 F.3d 361 (7th Cir. 1998); In re Pacific Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (awarding attorneys' fees equaling 33% of total recovery); In re United States Bioscience Sec. Litig., 155 F.R.D. 116, 119 (E.D. Pa. 1994) (awarding attorneys' fees equaling 30% of total recovery); In re M.D.C. Holdings, C.A. No. 89-0090, 1990 U.S. Dist. LEXIS 15488, at *2223 (S.D. Cal. Aug. 30, 1990) (awarding attorneys' fees equaling 30% of total recovery); In re New York City Shoes Sec. Litig., C.A. No. 87-4677, 1989 U.S. Dist. LEXIS 6346, at *8-9 (E.D. Pa. June 6, 1989) (awarding attorneys' fees equaling 33% of total recovery); Muehler v. Land O'Lakes, Inc., 617 F. Supp. 1370, 1374-76 (D. Minn. 1985) (awarding attorneys' fees equaling 35% of settlement recovery); In re Ampicillin Antitrust Litig., 526 F. Supp. 494, 499 (D.D.C. 1981) (awarding attorneys' fees equaling 45% of settlement recovery); Seiffer v. Topsy's Int'l, Inc., 70 F.R.D. 622, 635 n.12 (D. Kan. 1976) (awarding attorneys' fees

10

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7.

Time Limitation Imposed by Client or Circumstances

Plaintiffs' Counsel knew at the outset of the litigation that this case would be laborintensive, but nevertheless consciously assumed that risk. Aside from that consideration, there were no real "time limitations imposed by the client or circumstances." Cf. Brown, 838 F.2d at 455. Thus, the seventh Johnson factor is not a serious consideration. 8. The Amount Involved and the Results Obtained

Courts consistently recognize that the result achieved is a major factor to be considered in making a fee award. Indeed, as the Tenth Circuit stated in Brown, "in a common fund case . . . the amount involved and the results obtained . . . may be given greater weight when, as in this case, the trial judge determines that the recovery was highly contingent and that the efforts of counsel were instrumental in realizing recovery on behalf of the class." Brown, 838 F.2d at 456.11 The creation of this Settlement Fund is a very beneficial result, given that shareholder

equaling 30% of total recovery); Epstein v. Weiss, No. 67-233, 1970 U.S. Dist. LEXIS 10878, at *6 (E.D. La. July 17, 1970) (awarding attorneys' fees equaling 30% of total recovery). 11 King Resources, 420 F. Supp. at 630 ("the amount of the recovery, and end result achieved are of primary importance, for these are the true benefit to the client"); Similarly, Professor Conte has noted the propriety of adequate fees in common-fund cases to encourage lawyers to prosecute such cases: [C]ourts have been careful to award a fully compensable reasonable fee based on the underlying economic inducement for class action lawyers to pursue potentially expensive or complex common fund class litigation. These lawyers assume the risk of no compensation unless they successfully confer common fund benefits on the class, based on their reasonable expectation that they will share in the recovery in a fair proportion, in contrast to receiving a fee based initially on timeexpended criteria that fail to give the results obtained factor primary consideration. 1 Alba Conte, Attorney Fee Awards, § 1.09, at 16 (2d ed. 1993). 20

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derivative litigation is often resolved with no cash payment to the company treasury, and considering the many obstacles that plaintiffs faced going forward. The Settlement may also be viewed in the context of the damages inferred from the valuations set forth in the Complaint, which asserted that the assets transferred exceeded the value of the alleged debt released by over $3 million. Thus in relation to the alleged damages, the Settlement is a commendable result, achieved in the face of inherent contingent risks, and the numerous defenses advanced by Defendants and their able counsel. Plaintiffs' Counsel respectfully submits that Plaintiffs received vigorous and dedicated representation and the result reflects that fact. 9. The Experience, Reputation, and Ability of the Attorneys

Plaintiffs' Counsel in this case has extensive experience in the field of securities derivative and class actions and other complex litigation, are highly regarded in their area of expertise. See the firm resumes included as Exhibits B & D. 10. The Undesirability of the Case

The issues presented in this case rendered the case inherently risky from the start, but Plaintiffs' Counsel nevertheless assumed those substantial risks by prosecuting this case on a contingent fee basis. Numerous cases have recognized that risk is an important factor in determining the fee award. See, e.g., In re Washington Pub. Power Supply Sys. Sec. Litig. ("WPPSS"), 19 F.3d 1291, 1299-1301 (9th Cir. 1994); Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974); Lindy Bros. Builders v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 117 (3d Cir. 1976). Indeed, uncertainty that an ultimate recovery would be obtained is

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highly relevant in determining risk. See In re WPPSS, 19 F.3d at 1300; Detroit, 495 F.2d at 470; Lindy, 540 F.2d at 117. As the court aptly observed in King Resources: In evaluating the services rendered..., appropriate consideration must be given to the risks assumed by plaintiffs' counsel in undertaking the litigation. The prospects of success were by no means certain at the outset, and indeed, the chances of success were highly speculative and problematical. In re King Res. Co. Sec. Litig., 420 F. Supp. 610, 632, 636-637 (D. Colo. 1976). 11. The Nature and Length of the Professional Relationship With the Client

The eleventh Johnson factor is not applicable to this case. 12. Awards in Similar Cases

As demonstrated by the decisions cited above, the 26 % fee requested here is fully consistent, and in fact lower, than awards customarily made in other similar cases in the Tenth Circuit and this District. Similarly, using data from 433 shareholder actions, a 1996 National Economic Research Associates ("NERA") study reported that "regardless of case size, fees average approximately 32 percent of the settlement."12 13. Corporate Governance Changes Further Support Fee Request

Many cases hold that counsel in representative or derivative actions are entitled to an award of attorneys' fees where the benefit conferred does not take the form of a common fund, but instead constitutes a non-monetary benefit. See Mills v. Electric Auto-Lite Co. 396 U.S. 375, 391-397 (1970); Lewis v. Anderson 509 F. Supp. 232, 236 (C.D. Cal. 1981); Polk v. Good, 507 A.2d 531, 535, 539 (1986) (affirming fee award where benefit consisted of disclosure of relevant

12

Denise N. Martin, Vinita M. Juneja, Todd S. Foster, Frederick C. Dunbar, Recent Trends IV: What Explains Filings and Settlements in Shareholder Class Actions? at 12-13 (NERA Nov. 1996), as reported in 5 Stanford L. J. Bus. & Science 121 (1999). 22

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discovery materials and modification of voting provision in stock repurchase agreement.); In re Caremark International, Inc. Derivative Litig., 698 A.2d 959 (Del. Ch. 1996)(fee awarded where settlement provided only for corporate governance reforms.) In Mencher v. Sachs, 164 A.2d 320 (1960), the Delaware Supreme Court held that a fee award was proper where the relief took the form of cancellation of illegally issued stock. In rejecting appellants' argument that the common benefit exception should not apply, the court stated: "Cancellation of illegally issued stock is in itself a benefit. Although the benefit may be difficult of evaluation in dollars and cents, it is still a benefit." Mencher, 164 A.2d at 323; see also Fletcher v. A.J. Industries, Inc., 266 Cal. App. 2d 313, 320 (1968) ("the realization of substantial, if non-pecuniary benefits by the corporation should be the criterion.") Besides negotiating a financial Settlement, Plaintiffs' Counsel also achieved meaningful corporate governance modifications for a dormant company ­ two additional independent directors and becoming compliant with applicable Sarbanes-Oxley requirements within eighteen months. B. There Have Been No Objections to Plaintiffs' Counsel's Fee Request

The settlement administrator disseminated Notices to over 3,000+ putative shareholders and/or Class members or nominees by first class mail, via broker notices, and through bulk mailing ("Notices"). See Mulholland Decl. at ¶ 7. In addition, Plaintiffs' Counsel and the Settlement Administrator caused Summary Notice to be published on September 8, 2005, via a press release directed towards the financial and investment communities. The Notices advised the shareholders and Class that Counsel would apply for an award of attorneys' fees in an amount not to exceed $450,000 or 26 % of the Settlement Fund, as well as reimbursement of

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expenses incurred in the prosecution of this litigation. The Notices further stated that all objections to the proposed settlement and Plaintiffs' Counsel's application for attorneys' fees had to be filed with the Court and served on Counsel by October 3 and 4, 2005.13 No one has filed an objection to Plaintiffs' Counsel's fee and expense request, despite the fact that there were over 3,000 individual Notices sent, including many to sophisticated individuals and institutional shareholders, who typically retain their own counsel and carefully monitor derivative and class action settlements impacting their investments. See Mulholand Decl. at ¶ 7. The complete absence of any objection to either the Settlement or the fee request from anyone is powerful evidence that the fees requested are reasonable. See, e.g., Ressler, 149 F.R.D. at 656 (noting that a lack of objections is "strong evidence of the propriety and acceptability of [the fee] request"). C. The Expenses Requested Were Reasonable and Necessary to the Prosecution of this Action Plaintiffs' Counsel also applies for reimbursement of expenses incurred in prosecuting this action in the total amount of $141,299.74. Expenses are compensable in a common fund case if the particular costs are those typically billed by attorneys to paying clients in the marketplace. See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 725-26 (10th Cir. 1993) (holding that expenses reimbursable if such charges would normally be billed to client) (citing Bee v. Greaves, 910 F.2d 686, 690 (10th Cir. 1990)); Gottlieb v. Wiles, 150 F.R.D. 174, 185 (D. Colo. 1993), rev'd and remanded on other grounds sub nom. Gottlieb v. Barry, 43 F.3d

13

Plaintiffs' Counsel logged fourteen informational calls from shareholders and brokers as of the date of this filing. 24

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474 (10th Cir. 1994) (same).14 Here, the expenses Plaintiffs' Counsel incurred relate principally to expert fees, filing fees, computerized legal research, photocopying costs, and travel expenses related to court hearings, and depositions, including five days of depositions in Hong Kong. Each of these costs is of the type that attorneys routinely charge to paying clients. This Court should thus order that those costs be reimbursed to Plaintiffs' Counsel from the common fund. There is no question that the costs were reasonable, necessary, and directly related to the litigation. Indeed, over $66,241.63 or nearly half ­ of the expenses relate to invoices from Plaintiffs' experts. The retention of such experts is an indispensable aspect of complex securities litigation. Plaintiffs' experts prepared preliminary expert reports (and were about to need to provide rebuttal reports and be deposed) that are a prerequisite to their testimony at trial. Other expenses are equally justifiable. Plaintiffs produced documents as part of their initial disclosures and in response to Defendants' document requests. In addition, Plaintiffs obtained and reviewed more than 25,000 documents from Defendants and other third parties, at a cost of almost $9,000 just for copying, scanning, and document management.

14

Decisions in other circuits confirm this practice. Harris v. Marhoefer, 24 F.3d 16, 19 (9th Cir. 1994) (approving expenses normally charged to a fee-paying client approved); Abrams v. Lightolier Inc., 50 F.3d 1204, 1225 (3d Cir. 1995) (holding that expenses recoverable when customary to bill clients separately for them); Associated Builders & Contractors, Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir. 1990) (reimbursing all reasonable out-of-pocket expenses recoverable because costs are normally charged to fee-paying clients). See also, Abrams v. Lightolier, Inc., 50 F.3d 1204, 1225 (3d Cir. 1995) (expenses recoverable if customary to bill clients for them); Miltland Raleigh-Durham v. Myers, 840 F. Supp. 235, 239 (S.D.N.Y. 1993) ("Attorneys may be compensated for reasonable out-of-pocket expenses incurred and customarily charged to their clients, as long as they 'were incidental and necessary to the representation' of those clients.") 25

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II. The Fee Requested Is Also Fair and Reasonable Under a Lodestar/Multiplier Analysis As Counsel has demonstrated above, the 26 % attorneys' fee award requested here is reasonable when compared with the percentage-of-the-fund analysis in other cases. Although Plaintiffs'' Counsel believes that the percentage-of-recovery method is the appropriate and preferred approach, using the lodestar/multiplier analysis confirms that the requested fees are fair and reasonable and should be approved. The first step in evaluating the reasonableness of fees requested using the lodestar/multiplier method is to determine whether the hours claimed by Counsel have been reasonably expended in the litigation. Plaintiffs' Counsel collectively expended a total of 3,694.68 hours resulting in a lodestar of $1,113,486.50 calculated at their customary hourly rates. These hours and fees were compiled from contemporaneous time records maintained by each attorney affiliated with the firms that participated in this case. The aggregate hours include, inter alia, time spent in the investigation and drafting of the initial complaint, including detailed amended complaints, legal research and drafting in connection with numerous motions or responses, including a Motion to Dismiss filed by three sets of Defendants, a Motion for Partial Summary Judgment filed by the eVision Management Defendants, an extensive document production and review process encompassing over 25,000 documents, seven depositions (including five days done in Hong Kong), the preparation of expert reports, negotiation of the two settlements, drafting of the Settlement and related papers, and time spent in connection with settlement administration. Using the lodestar based on local hourly rates, an attorneys' fee award of $450,000, or 26% of the Common Fund, would result in a lodestar multiplier of only 0.40. That multiplier is

26

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far below the range of acceptable multipliers that have been awarded in this District and elsewhere. See e.g., Markus v. The North Face, Inc., C.A. No. 99-Z-47 (D. Colo. May 1, 2001) (awarding fee equal to a 2.9 multiplier), In re Samsonite Corp. Sec. Litig., C.A. No. 98-K-1878 (D. Colo. July 25, 2000) (awarding fee equal to a 3.45); In re Coram Healthcare, Master File No. 95-N-2074 (D. Colo. Jan. 24, 1997) (awarding fee equal to a 3.4 lodestar multiplier); In re Storage Tech. Sec. Litig., Case No. 92-B-750 (D. Colo. Dec. 1, 1995) (awarding fee equal to a 1.9 multiplier); Schaffer v. Evolving Systems, Inc. C.A. No. 98-WY-1338-CB (D. Colo. Oct. 4, 1999) (awarding fee equal to a 2.19 multiplier).15 IV. The Court Should Grant Derivative Plaintiffs Studer and Imperato Compensation for their Contributions to this Litigation Pursuant to the Settlement Stipulation and Agreement, Defendants have agreed Derivative Plaintiffs Studer and Imperato should be awarded an incentive award for the part they played in this litigation. Each participated by reviewing pleadings, responding to discovery requests, attending their depositions, which entailed traveling to Denver for two days in Imperato's case, and communicating with counsel. Both Derivative Plaintiffs should be compensated for their roles in this case, which considerably benefited the company and its shareholders. . Therefore, Plaintiffs' Counsel requests that each be awarded additional compensation in the amount of $1,500, inclusive of any costs.

See also Kurzweil v. Philip Morris Cos., Nos. 94 civ. 2373, 94 civ. 2546, 1999 U.S. Dist. LEXIS 18378, at *7-8 (S.D.N.Y. Nov. 24, 1999) (recognizing that when cross checking the common fund approach with the lodestar method, multiplier of between 3 and 4.5 is common in federal securities cases). 27

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CONCLUSION For the foregoing reasons, and with the agreement of all settling parties, Plaintiffs' Counsel respectfully requests an award of attorney's fees of $450,000 in the derivative case only plus reimbursement of out-of-pocket expenses of $141,299.74 and small awards for Plaintiffs' Studer and Imperato. A proposed form of order is submitted herewith. Dated: October 28, 2005 Respectfully submitted,

s/Charles W. Lilley______________ s/Karen Cody-Hopkins___________ Charles W. Lilley Karen Cody-Hopkins LILLEY & GARCIA LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 T:(303) 293-9800 F: (303-298-8975 [email protected] [email protected] Jacob A. Goldberg Jacob A. Goldberg, Esq., LLC P.O. Box 30132 Elkins Park, PA 19027 Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that on October 28, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following counsel at their e-mail addresses and I certify there are no counsel who require nonECF service:
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Thomas D. Birge [email protected] [email protected] Leah E. Capritta [email protected] [email protected] Carolyn J. Fairless [email protected] [email protected] Stephen D. Gurr [email protected] [email protected] Allan L. Hale [email protected] [email protected] Thomas E.J. Hazard [email protected] John M. Husband [email protected] Scott Ari Hyman [email protected] Thomas D. Leland [email protected] Monica Kathleen Loseman [email protected] [email protected];[email protected] Carla B. Minckley [email protected] [email protected] Michael L. O'Donnell [email protected] [email protected]

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·

·

·

·

·

·

·

·

·

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·

Michelle B. Roche [email protected] [email protected] Michael T. Williams [email protected] [email protected]

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s/Karen Cody-Hopkins___________ Karen Cody-Hopkins LILLEY & GARCIA LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 T:(303) 293-9800 F: (303-298-8975 [email protected] [email protected]

30