David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fa..x

Transcription

1 IN THE CIRCUIT COURT OF THE STATE OF OREGON IN AND FOR THE COUNTY OF MUL TNOMAH STEVEN SCHARFSTEIN, individually and on behalf of all other similarly situated persons, vs. Plaintiffs, BP WEST COAST PRODUCTS, LLC, a Delaware limited liability company; Defendant. Case No DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS I, David F. Sugerman, declare under penalty of perjury: 1. I am an adult, and I reside in Oregon. I have been appointed as class counsel representing plaintiff and the class and am designated as lead counsel. I have personal knowledge of the matters set forth in this declaration. If called to testify in court under oath, I would testify to the facts set forth in this declaration. This declaration covers a range of topics related to the fee petition. Page 1 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fa..x

2 1 The Legal Team 2 2. Tim Quenelle and I agreed to co-counsel this case. We have worked together on large 3 consumer fraud class actions and have successfully handled Unlawful Trade Practice Act class 4 actions against Comcast and Frontier for illegal cable television late fee assessments. Mr. 5 Quenelle took the lead on case development and discovery. He also handled several of the 6 witnesses at trial. Mr. Quenelle is widely recognized as one of the leading consumer-side lawyers 7 handling Unlawful Trade Practices Act claims. He has co-authored and presented CLE' s on 8 consumer law in general and the Unlawful Trade Practices Act. He has co-chaired the consumer 9 law section of the Oregon State Bar and the consumer protection section of the Oregon Trial 10 Lawyers Association As the case moved toward trial, we added Amy Johnson to the legal team. I have 12 known Ms. Johnson for many years and have co-counseled several cases with her. Ms. Johnson 13 graduated from Harvard Law School and clerked for Judge William Justice in the eastern district 14 of Texas. She has extensive public interest litigation experience in Texas, working for legal aid. 15 Ms. Johnson also has broad experience on consumer issues. She served as Public Counsel, Texas 16 Office of Public Insurance Counsel. Ms. Johnson also has substantial experience in private 17 practice as a partner in a civil law firm in Austin, Texas. Ms. Johnson took lead responsibility for 18 legal briefing and exhibits After BP refused to entertain settlement discussions, we retained Eric English and Pat 20 O'Malley of Resolution Strategies, LLP as settlement counsel Messrs. English and O'Malley 21 devote their practice to settlement work. They have a unique combination of experience in 22 multiple corporate and law firm practices, including in-house counsel, private practice focusing 23 on high-end civil trial work, and corporate governance. Messrs. English and O'Malley took lead 24 responsibility for settlement. In connection with their work as settlement counsel, they also 25 assisted with trial preparation, including finding witnesses, attending focus groups, assisting with 26 Page 2 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite 600 Portland, Oregon Phone I Fa.x

3 1 witness preparation and attending strategy sessions. They attended at trial and most hearings and 2 provided invaluable feedback, especially on corporate governance and data processing. Their 3 assistance continued after trial and with invaluable work on the data recovery process that drove 4 the claim rate As we moved into trial, I determined that we would be best served to retain appellate 6 counsel before trial to provide guidance on legal issues. We added Scott Shorr and the Stoll 7 Berne law firm, to consult on trial issues and handle post-trial and appellate matters. I have 8 worked with Mr. Shorr on a number of projects over the years. He is one of very few appellate 9 practitioners with substantial plaintiff-side class action experience. Mr. Shorr has substantial trial 10 and appellate experience on consumer and investor class actions. He is managing partner of the 11 Stoll Berne firm. He has handled a number of maj or appeals and has argued in front of the U. S. 12 Supreme Court. The Stoll Berne firm is well known for its work on behalf of consumers, 13 investors and employees on class actions. Mr. Shorr and his firm provided guidance on punitive 14 damages, jury instructions and the verdict form. They have been deeply involved in post-trial 15 work. Josh Ross, also a partner at Stoll Berne, is part of the appellate team as well Mr. Ross has 16 substantial experience in complex litigation, including consumer class actions I was designated as lead counsel for the class. I have been practicing law in Oregon 18 since I am also admitted to, and have tried cases, in federal court. I have handled trials and 19 appeals in state and federal courts. I have tried over two dozen civil cases to verdict. This is my 20 third multi-million dollar verdict, with two prior large verdicts in federal court in Oregon. I was 21 trial counsel in Bixby v. KBR, US District Court Case No. 3:09-CV-632-PK, a consolidated 22 mass-tort case that resulted in an $85 million verdict and judgment in favor of 12 Oregon Army 23 National Guard veterans poisoned in Iraq. This is my second class action trial, with one prior as 24 pro hac vice counsel in King County Superior Court in Washington. I am a member of the 25 American Board of Trial Advocates. I serve on the Oregon Trial Lawyers Association (OTLA) 26 Page 3 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fax

4 I Board of Governors. I founded and co-chaired the OTLA consumer protection section. I co-chair 2 the OTLA legislative committee and previously co-chaired its amicus committee. Exhibit A, 3 attached, is a collection of detailed biographies on each member of the legal team I am well-acquainted with the trial bar in Oregon. There are probably no more than 5 half a dozen active Oregon lawyers who have the experience and ability necessary to serve as 6 lead counsel in a consumer fraud class action case of this magnitude. In the specific area of 7 consumer class actions, I am aware of perhaps three or four active Oregon trial lawyers who 8 regularly represent consumers and who have the experience and ability to successfully try a 9 consumer fraud class action to a jury. 10 The Fee Agreement II 8. Mr. Scharfstein retained me to handle this matter. He signed a standard contingent fee 12 agreement (Fee petition Ex. 1) that I use in virtually all of my class actions. Salient terms include 13 that it is strictly contingent, that our fee is one third if we settle the case, and that the fee 14 increases to 40 percent at trial. Under the terms of the agreement, the plaintiff receives a credit 15 for fees paid by the defendant. Counsel agreed to advance costs, as well. Almost all of my work 16 over the last 28 years has been on a contingent fee basis. This type of contingent fee arrangement 17 is common in Oregon. All counsel are working on a contingent fee under the agreement. 18 Fee Calculation-Class size and monetary benefit At trial, plaintiff called Alexis Dow, CPA to provide analysis of the likely class size, 20 based upon the limited data available. Ms. Dow opined that the class likely consisted of 21 2,966,026 unique individual accounts. When plaintiff filed their prior fee petition, which was 22 later withdrawn, no data had been recovered. Class counsel used the Dow estimates as the basis 23 for calculating the class size and the size of the common fund. Post-trial data recovery initially 24 revealed some 2.5 million unique debit cards were in the system. However, further data 25 processing lowered the size ofthe class because of duplicate accounts. Under the plaintiffs 26 Page 4 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite 600 Portland, Oregon Phone I Fax

5 1 theory, class members could recover only one $200 damage assessment. Thus, duplicate 2 accounts must be removed to stay true to the one-per-customer limit. The removal of duplicates 3 reduced the class size to just over 2.2 million individuals. With the additional information from 4 recovered, processed data, we now know that the actual verdict was valued at $448 million. 5 BP's conduct complicated the course of proceedings After agreeing to waive ajury, BP subsequently changed positions and sought 7 reinstatement of a jury. The waiver occurred and was reported to the Court by letter on October 8 16,2012. Dec of David F. Sugerman in Support of Plaintiffs Response to Defendant's Notice of 9 Intent to Preserve Right to Trial by Jury," p. 2 and Ex 1, (signed July 25, 20l3) From that date, 10 until BP filed its "Notice ofintent to Preserve Right to Trial by Jury," on July 16, 20l3, counsel 11 for the class relied upon the parties' agreement that the case would be determined in a bench 12 trial. A bench trial would have required far less effort, with no need for focus groups, jury 13 consultants, and most of the expert witnesses. Specifically, in a bench trial, the class would not 14 need to call experts on the Unlawful Trade Practices Act, on franchise law, on methods of legal 15 interpretation, and on data preservation. BP's belated decision to change its corporate mind on 16 the waiver ofajury required two hearings, on August 15, 2013 and August 30, 20l3. BP's 17 conduct led the Court to issue sanctions, sua sponte The jury trial waiver issue was part of a pattern of repeated conduct that complicated 19 this case. While the jury trial flip-flop caused added expense and delay, the problem of data 20 preservation caused much more serious delay BP failed to preserve data and could not produce the data or account for its absence. 22 After trial, class counsel retained an expert on data processing with special expertise in retail 23 operations' payment processing. The expert advised us that the missing data likely was not 24 missing. Data was eventually fully recovered some seven months after the verdict. That seven 25 month delay would have evaporated had BP properly preserved the data. 26 Page 5 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fax

6 1 13. Over BP's objection, class counsel sought and obtained leave to conduct post-trial 2 discovery in an effort to recover the data that was withheld. The Court allowed the post-trial 3 discovery because the equitable relief proceedings were still pending, as was the claim process 4 for class members who chose to seek payment Several months after trial, BP's data processor, First Data Merchant Services, fully 6 confirmed that the data was neither missing nor destroyed. It was all available in a backup 7 system. On April 29, 2014, First Data's counsel reported to the Court that it would take four 8 years to recover the back data. Ex. B, attached, is a true and correct copy of an excerpt of 9 proceedings of April 29, It was provided to me by the court reporter and has been 10 maintained in my electronic file on this case In addition to the jury trial waiver flip-flop and the lost data, BP's trial team further 12 complicated the trial proceedings by repeatedly ignoring motions in limine. This was disruptive, 13 for example, plaintiffs counsel was required to object twice during opening statements. Tr and 93, 103 and 104, January 15,2014 Ex. C, attached, is an excerpt from the transcript ofmr. 15 Harris' opening statement. I received the transcript from the court reporter in electronic form. It 16 has been maintained in my electronic file. It was also problematic, in that trial was interrupted by 17 multiple bench conferences and corrective instructions. Finally, during trial, counsel for BP filed 18 a brief that sought to mischaracterize the trial court's rulings on evidentiary issues, which 19 resulted in more sanctions. 20 Post-trial Data Recovery and Subpoena After trial and confirmation ofthe existence of data, class counsel began the subpoena 22 process. We issued a total of232 subpoenas. Subpoenas were issued in Oregon, Washington, 23 California, Michigan, Missouri, Texas, Delaware, Hawaii, Montana, and Washington DC. Each 24 of the additional states, save for Texas, required us to retain local counsel. Some charged for 25 their time, some assisted with an understanding that they would be reimbursed once we recover 26 Page 6 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite 600 Portland, Oregon Phone I Fax

7 1 fees The data recovery focused on the largest 50 institutions, which accounted for some million accounts. The top-10 institutions accounted for 1.7 million PANs. All responded and 4 produced data. From the 2.2 million, de-duplication will produce approximately 1.7 million 5 unique names and addresses. We had mixed results with responses from out-of-state institutions. 6 BP's Legal Team BP started the case defending with Doug Berry from Graham and Dunn in Seattle. 8 After the Court denied motions for summary judgment and granted the motion to certify the 9 class, Lois Rosenbaum and Brad Daniels from Stoel Rives associated on the case, and Ms. 10 Rosenbaum came on lead counsel. Then, David Harris and Abby Risner from the Greensfelder 11 firm in St. Louis and Chicago joined the case, with Mr. Harris becoming lead counsel. Trial 12 included monitoring from lawyers from the Stoel Rives firm in the court room. As well, toward 13 the end of trial several lawyers from the Harrang firm, including Sharon Rudnick, Susan 14 Marmaduke and Bill Gary took on an advisory role. Some of the same firms and lawyers-mr. 15 Gary, Mr. Frohnmayer and Mr. Daniels-represented BP in the Oregon legislature in the fight 16 against HB 4143 (2014), a bill that would have dedicated unclaimed class action monies to legal 17 aid funding. Apparently, lawyers from the Dentons firm (Chicago) have been involved, as at 18 least one firm bidding on class notice indicated that they were interviewed by lawyers from that 19 firm. 20 Time expended In connection with my work as lead counsel, I asked all counsel to report hours to 22 date. To date, I have spent in excess of 2200 hours on this matter. My hours are underreported, as 23 I am not a particularly precise timekeeper Prior to trial, discovery included written discovery (requests for production and 25 requests for admissions) and depositions. We took 16 depositions to prepare for trial. Travel 26 Page 7 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite 600 Porrland, Oregon Phone I Fax

8 1 included trips through Oregon, travel to Los Angeles, Seattle, Houston and Chicago. There was 2 vigorous motion practice, including motions to certify the class, to compel discovery and for 3 summary judgment. Trial lasted 15 days, not counting pretrial work. During trial, my days would 4 sometimes run 18 hours in length. Given the amount at stake and the complexity ofthe issues, 5 this is not an unusual amount of time I asked each member of the legal team to report on their hours. All are unaudited. 7 Here is the total amount of time as of December 31,2014: David F. Sugerman Attorney, PC Tim Quenelle Amy Johnson Stoll Berne Resolution Strategies TOTAL 2,242 2, , To develop the case, class counsel called on resources near and far, including two 15 experts on corporate compliance, an expert on the Unlawful Trade Practices Act, an expert on 16 franchise law, and an expert to calculate class damages. Behind the scenes, class counsel used an 17 independent CPA firm to separately run projections ofthe class size to double check the 18 accuracy. Class counsel also retained jury consultants to help with focus groups and witness 19 preparation. Class counsel ran the case through focus groups and mock voir dire Post-trial, class counsel retained a data expert and, through the process, learned that 21 BP may not have been candid regarding the availability of full 16-digit debit card data on each 22 transaction. There were multiple hearings on these matters. Post-trial discovery required class 23 counsel to take seven more depositions in Oregon, Texas, California, Tennessee, and (via 24 teleconference) in Philadelphia. The data was fully recovered Page 8 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washillgton Street, Suite Portland, Oregon Phone I Fax

9 1 Fee Calculation-Results The class prevailed on the merits in two separate proceedings. The class prevailed in 3 front of the jury and obtained statutory damages for the class. The class separately prevailed in 4 front of the Court and obtained an injunction to prohibit further charges of the illegal fee As far as claims made, opt-outs, claim rates, and objections, this declaration is being 6 prepared before the end of the class period. The numbers used here are current as of December 7 31,2014. Epiq has received and processed 1,636,891 unique names and addresses and mailed 8 direct opt-out notice to all. As of December 26,2014, Epiq has received 6,202 indirect claims. 9 As of December 31, 2014, Epiq has not completed data processing on the latest load of data that 10 totals approximately 151,000 additional PANs. Based on the prior 1.6 million names and 11 addresses, it is likely that this data has duplicates of approximately 15 percent, which would 12 yield an additional 128,000 new names and addresses who would get opt-out direct notice. It is 13 fair to assume that the additional outstanding data will take the total claims to well over million. The final numbers may fluctuate slightly because data processing is not yet complete on 15 the last data produced today, and this last group of class members will have until late January to 16 opt out or register objections. As well, once all data is fully processed, Epiq will once again de- 17 duplicate the complete data set, which may reduce the grand total. For purposes of fee 18 calculation, class counsel is using a conservative number of 1.70 million claims. If that number 19 changes materially, class counsel will seek leave to amend this petition to adjust only for changes 20 in the final count, so that the request is no greater than 20 percent. Epiq has received 1,842 opt- 21 outs. I am aware of 12 objections Assuming no more than 1.70 million claims made, the total claim rate is 76 percent. 23 Under the same scenario, the claims made total $340 million. 24 Complexity Class actions are inherently complex. I could locate no opinions on Unlawful Trade 26 Page 9 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fax

10 1 Practice Act class actions for statutory damages. I have handled two prior class actions for 2 statutory damages under the Unlawful Trade Practices Act. Both settled before trial. This is the 3 second class action I have tried to verdict. Successful trial of a class action requires a far greater 4 skill set than the level required to try a generic consumer case. It is not just about the numbers. 5 The issues are more complicated. Class actions trigger even greater jury biases. The evidence 6 must be carefully prepared and presented to prove class-wide liability, causation, and harm. 7 Contingent nature of the case The case was at all times contingent. Class counsel has not been reimbursed for time 9 spent. Class counsel also advanced all costs, with one exception. In order to resolve a motion for 10 sanctions relating to the failure to preserve data, BP reimbursed class counsel's costs related to 11 post-trial, data recovery discovery. By agreement, this did not include a payment of fees, and it 12 fully resolved the sanctions motion, which was withdrawn In this contingent case, trial counsel-three solos-were left unable to take on new 14 cases or work on existing matters during the times of heavy demand of this case. That gap in new 15 work is particularly taxing for solos and small firms. New work is future revenue. Each trial team 16 member will have substantial gaps in their income streams from the demands placed by this case. 17 Unreasonable defenses BP maintained a number of untenable defenses throughout this case. In a corporate 19 representative deposition, Mr. Reeder, the Director of Retail Operations, testified under oath that 20 BP was not a retailer. BP took the position that the transaction data was not BP's, even though its 21 contract with First Data indicated that BP had control over the transaction data. Ex. C, attached, 22 is a copy of an excerpt of the trial testimony of BP' s expert, Theodore Banks. I obtained the 23 electronic transcript from the court reporter. I have maintained it in my electronic file Mr. Reeder, the Director of Retail Operations, sat through trial as BP's corporate 25 representative but did not take the stand. The "not a retailer" defense was at odds with BP's 26 Page 10 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite 600 Portland, Oregon Phone I Fax

11 1 annual report and web page claims about the BP/ARCO retail network. BP never explained why 2 it failed to preserve two thirds of the transaction data. BP brought an expert on corporate 3 compliance to testify to BP's sound compliance work. Mr. Banks, the expert, has extensive 4 experience with data retention, and yet he did not address the data destruction issues in this case. 5 Settlement efforts As required by ORCP 32H, plaintiff provided notice and a demand that BP cease the 7 illegal practice and refund the ill-gotten charges. BP refused. At the time that plaintiff sent the 8 ORCP 32H letter, BP had illegally charged approximately 13,000 fees for approximately one 9 year. The amount to be refunded would have been a total of approximately $1.66 million (13, transactions per day x 365 days x $ 0.35 per transaction). Had BP refunded that money and 11 stopped the practice, there would have been no case to pursue. BP refused to do so and continued 12 the illegal practice until the jury returned its verdict Class counsel suggested mediation and recommended Eric Lindauer as the mediator. 14 BP attended mediation but made no offer, and when the mediator attempted to reconvene 15 mediation, BP would not even respond to the mediator's request to reconvene BP belatedly asked for a settlement position, and settlement counsel provided a 17 detailed four-page settlement proposal on November 3, The settlement proposal indicated 18 a willingness to agree to a claims-made settlement that paid class members who proved their 19 claims only under penalty of perjury $100 per class member, and that paid $200 to those who 20 had transaction records. Settlement counsel separately proposed an agreed-to cy pres that would 21 set aside up to $500,000 in unclaimed monies to be divided equally between Oregon Food Bank, 22 the Campaign for Equal Justice, and Oregon Law Center. The settlement proposal indicated that 23 to protect the class, class counsel would stage attorney fees and only begin discussion of fees if 24 the other major terms were agreed; however, settlement counsel indicated that we expected to 25 seek a percentage of the fund. 26 Page 11 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fax

12 Before sending the settlement letter, settlement counsel had indicated that they would handle settlement matters and offered to meet with defense counsel. Ms. Rosenbaum did not respond to the offer to meet. 35. Ms. Rosenbaum responded to the November 3,2013 demand letter on November 6, She bypassed settlement counsel and sent a terse one-page response to me. In pertinent part, Ms. Rosenbaum's short response read," BP has no interest in negotiating with that demand as a starting point." 36. Following trial, I made brief inquiries ofbp's trial team in connection with negotiations over the resolution of the sanctions motion, as part of discussions of the notice and claim process, and as part of the process of filing the first fee petition. In each instance, I simply inquired of Mr. Harris and Ms. Risner about their client's interest in exploring settlement At each tum, both reported that BP had no interest in settling the entire case or the attorney fee issues. 37. Other than resolution of the sanctions motion, BP has made no offers to settle this case. Future Proceedings 38. The time claimed in this petition is not up to date, as most of the billing updates ended somewhere between the end of November and middle of December. In addition, there will be future work in the trial court, including entry of judgment and, potentially, defense of posttrial motions. I would estimate that the additional time could add somewhere between 100 and 300 additional hours to the amounts set forth. 39. Without notice to class counsel, BPWCP filed in the Court of Appeals a Petition for Judicial Review. Their petition omitted this case from the briefing. That omission will require the appellate team to take on even more work to file an amicus brief that advises the Court of Appeals of the rulings made in this case. That is in addition to the expected work normally Page 12 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite 600 Pordand, Oregon Phone I Fax

13 1 expended defending appeals of complex cases. 2 3 Costs Advanced to date As of December 31,2014, class counsel has advanced $290,865 in costs. These costs 5 were reasonable in an amount and necessarily incurred to try the case, recover the data, and issue 6 subpoenas. 7 I declare under penalty of perjury that the foregoing is true and correct. 8 EXECUTED on this 31 st day of December, 2014, in P Page 13 - DECLARATION OF DAVID F. SUGERMAN IN SUPPORT OF PLAINTIFF'S SECOND PETITION FOR FEES AND COSTS David F. Sugerman I Attorney, PC 707 SW Washington Street, Suite Portland, Oregon Phone I Fax

14 DAVID F. SUGERMAN Current employment: David F. Sugerman Attorney, PC (2010- present)-civil trials and complex litigation representing plaintiffs in state and federal courts. Focus on class actions, dangerous products and major injury litigation. Honors and Recognition: American Board of Trial Advocates (2011) Oregon Superlawyers (2011) Martindale Hubbell Peer Review 5.0 (highest) AVVO 10.0 (highest) Oregon State Bar, President's Award of Appreciation (2008) Board of Governors Oregon Trial Lawyers Association ( ; 2007-present). Oregon Trial Lawyers Association, Volunteer of the Year (2007) Employment History: Shareholder, Paul & Sugerman, PC (1 991-present)-Civil trials and appeals representing plaintiffs in state and federal courts in all areas of personal injuly and employment law. Special emphasis includes product liability, medical negligence, employment discrimination, consulner, civil rights and class action cases. Associate, Law Offices of Jeffrey P. Foote ( )-Civil trials and appeals representing plaintiffs in state courts in personal injury cases. Associate, Gaylord, Thomas & Eyerman, PC ( )-Civil trials and appeals representing plaintiffs in state courts in personal injury cases. Special emphasis in product liability and medical negligence cases. Bar Admissions: State of Oregon (1986); U.S. District Court, District of Oregon (1988); U.S. Court of Appeals, Ninth Circuit (1998) Education: B.A., University of Texas (Austin) (with Special Honors)-1981; J.D., Northwestern School of Law at Lewis & Clark College-1986 Lectures: Oregon Trial Lawyers Association, New Trial Lawyer Academy folmder and co-teacher present; EXHIBIT A PAGE 1 of 14

15 Consumer Class Actions, Bringing and Defending Unlawful Trade Practice Act Claims, Oregon State Bar, Antitrust, Trade Regulation and Unfair Business Practices section (2008); Consumer Class Actions, Oregon State Bar Consumer Law section (2006); Wage and Hour Class Actions, Oregon Law Institute Annual Employment Law Update (2008); "What's New in Products Liability Law-Lead Paint," Hot Topics in Products Liability Litigation, Oregon State Bar Association Products Liability Section CLE (October 6, 2000); "Discovery in Medical Malpractice Cases," Medical Malpractice ji-om A to Z, Oregon Trial Lawyers Association CLE (May 21, 1996); 1994); "Motion Practice in Multnomah COlmty," Multnomah Bar Association CLE (October 5, "Lawyer Advertising and Solicitation," Oregon State Bar Ethics CLE (Sept. 14, 1993) "First Amendment Constraints on Civil Remedies for Hate Speech," Nevv Theories of Civil Rights Liabilities, Oregon State Bar Civil Rights CLE (May 3, 1991) Publications: Forell, C. and Sugem1an, D. "Negligence Per Se, Statutory Torts and Statutory Duties," Torts (Oregon State Bar 2006) Sugerman, D.F., "Protecting Clients' Privacy Interests in Discovery: Limiting the Scope ofinquiry," The Trial Lawyer, p. 10 (OTLA July-September 1991) Sugerman, D., "In the Name of Truth: Abusing Standards for Scientific Evidence," The Litigation Journal, Vol. 14(4), p.8 (OSB Litigation Section March 1996) Other Professional Activities: Member, State of Oregon, Council on Court Procedures, 2001 to 2005 Member, Oregon Trial LaVvyers Association 1986 to present Public Justice, Sustaining Member American Association of Justice Oregon State Bar Toxic Tort Section, Chair, EXHIBIT A PAGE 2 of 14

16 TIM A. QUENELLE CURRICULUM VITAE 4248 Galewood Street, Lake Oswego, OR ! Education JURIS DOCTRATE UNIVERSITY OF OREGON SCHOOL OF LAw BS POLITICAL SCIENCE, 1990 BS PSYCHOLOGY, 1990 UNIVERSITY OF OREGON Bar Admissions Oregon State Bar 1993 US District Court for Oregon 1994 Employment TIM QUENELLE, PC, 2004 to Present Solo practice in Lake Oswego predominantly representing clients in insurance disputes or UTP A cases; MOORE & AsSOICATES, PC member firm; experience included all aspects of civil practice from contract, personal injury, employment, bankruptcy, consumer and criminal law. Transactional work includes software licensing and development agreements; corporate formation, employment contracts, noncompetition issues intellectual property issues. Professional Memberships Publications! Speaking Engagements OTLA, OSB CONSUMER LAw EXECUTIVE COMMITTEE OREGON STATE BAR - CONSUMER LAw, Chapter 4, The Unlawful Trade Practices Act; 2012 OTLA CONSUMER LAw SECTION - CLE, Used Car Fraud and the UTP A, September 13, 2010 OSB CONSUMER LAw SECTION, CLE - UTPA, May 27,2009 OSB CONSUMER LAw SECTION, CLE - Recording Phone Calls, December 1,2005 OSB CONSUMER LAw SECTION, CLE - A Primer on Credit Reports, August 5,2005 EXHIBIT A PAGE 3 of 14

17 EMPLOYMENT HISTORY Amy R. Johnson Attorney-at-Law 2523 SE 30 th Ave. Portland, OR :. Amy Johnson, attorney-at-law, Portland, Oregon Contracting attorney, Texas RioGrande Legal Aid: Litigation against Texas re food stamps system, consultant on colonias issues, RCRA, CAA) SDWA, and environmental permitting cases on behalf of low-income neighbors. Contracting attorney, Law Offices of David Sugerman, Portland: complex plaintiffs litigation, Bixby v. KBR, Member, trial team Scharfstein v. BP West Coast Products.:. University Lecturer - Suffolk University-Dakar, Senegal Courses: business law; business ethics; business communications; developed a research and writing seminar on Sudan. Public Interest Environmental Law - Austin, Texas Henry & Lowerre Henry, Lowerre, Johnson, Hess & Frederick Law Offices of Amy Johnson State andfederal environmental litigation & administrative law on behalf of citizens, non-profits and governments. NEPA, APA, CWA, ESA, CAA. Lobbying. +:+ Public Counsel, Office of Public Insurance Counsel - Austin, Texas Appointed by Gov. Ann Richards to head a newly created agency to advocate for insurance consumers. Managed a staff of20 with a $1 million annual budget. Work included lobbying, rate cases, drafting rules, consumer bill ofrights, testifying, and legislation. +:+ Pluymen & Bayer - Austin, Texas.:. Law clerk, Hon. William Wayne Justice Chief Judge, E.D. Tex EXHIBIT A PAGE 4 of 14

18 EDUCATION.:. J.D., 1985 Harvard Law School, cum laude.:. B.A., 1982 University of Texas-Austin Phi Beta Kappa, Special Honors in Plan II, Highest Honors in the College of Liberal Alis, Dean's Distinguished Graduate LICENSE, ADMISSIONS Admitted, State of Oregon Admitted, State of Texas Federal District Court of Oregon u.s. Supreme Court COMMUNITY SERVICE.:. Volunteer, Oregon Division of Insurance Rules Advisory Committee, 2013.:. Volunteer, Catlin Gabel Global Education Program Organized and took a group of Catlin Gabel High School students to Senegal. :. Chairman of the Board, International School of Dakar :. Advisory Board, 10,000 Girls, Kaolack, Senegal :. Volunteer Sports Agent, Salif Kante, Assisted Senegal's national champion tennis player in a four-year effort to secure a scholarship to a USjunior college. In 2011, he became the U.s. junior college champion in singles and doubles. He graduated cum laude from Florida A&M University in May 2013 as the twice-recognized most valuable tennis player in his Division-1 region..:. PTA President, International School of Dakar, :. Board Member, Center for Economic Justice, :. Board Member, Texas Workers Compensation Self-Insurance Fund, :. Board Member, Texas Workers Compensation Insurance Facility, :. President, Travis County Women Lawyers Association, 1990.:. Co-Chair, Texas Young Lawyers Association Environmental Committee, 1990.:. Board of Directors, Capitol Area Trial Lawyers, 1990.:. Book review editor, Harvard Women's Law Journal. LEGAL PUBLICATIONS "Clean Air and Clean Water," Teas State Bar Poverty Law Conference (April 2014). "Nuisance Actions for Fenceline Communities," Texas State Bar Poverty Law Conference (April 2013). 2 EXHIBIT A PAGE 5 of 14

19 "Section 10 Permitting Under the ESA," CLE International (September 12-13, 2002). "The Endangered Species Act: Ethics in the Administration of the Act," CLE International (September 10-11, 2001). "Rule Making: Creative Challenges to Agency Rules," Advanced Administrative Law 2000, CLE, State Bar of Texas (October 26-27, 2000). "Enforcing the Endangered Species Act, 6th Annual Endangered Species Act Conference," CLE International (May 14 & 15, 1998). "Protecting Natural Resources in Texas at the Local Level," CLE Conference on Suing and Defending Governmental Entities 1997, State Bar of Texas Continuing Legal Education (July 10 & 11,1997). "What the Public Expects from the Public Interest Counsel at the Texas Natural Resource Conservation Commission," 6th Annual Hazardous & Solid Waste Management Institute, University of Texas School of Law (Oct. 27 & ). "Solid and Hazardous Waste: The Citizen's Perspective," 2nd Annual Hazardous and Solid Waste Management Institute, University of Texas School of Law (Oct. 25 & 26, 1990). "Abortion, Personhood, & Privacy," 68 Tex. L. Rev (June 1990). REPORTED CASES Center for Biological Diversity v. U.S. Fish and Wildlife Service, 202 F. Supp.2d 594 (W.D. Tex. 2002) Sierra Club v. Glickman, 156 F.3d 606 (5 th Cir. 1998) Save Our Springs Alliance v. Babbitt, 115 F.3d 346 (5 th Cir. 1997) Save Our Springs Alliance v. Babbitt, 27 F. Supp.2d 739 (W.D. Tex. 1997) Sierra Club v. Glickman, 82 F.3d 106 (5 th Or. 1996) Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440 (Tex. 1993) AWARDS.:. Martindale-Hubbell Preeminent Rating, EXHIBIT A PAGE 6 of 14

20 .:. Public Justice Award, Oregon Trial Lawyers Association, 2014.:. Texas Outstanding Public Service Award (awarded by consumer and public interest groups), 1994.:. Outstanding Government Attorney, (awarded by Travis County Women Lawyers),1994.:. President's Certificate of Outstanding Achievement (awarded by Texas Young Lawyers Association), 1991 PERSONAL Married, Michael Savage Daughter, Rachel Savage, born March 15, 1996 Enjoy rowing, the outdoors and cooking Authored blog in Senegal: savagebeasts.blogs.com; freelance writer for The Texas Observer in the 1980s Languages: French, Spanish 4 EXHIBIT A PAGE 7 of 14