                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 26 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DEREK SUZUKI,                                    No. 10-15831

              Plaintiff - Appellant,             D.C. No. 3:06-cv-07289-MHP

  v.
                                                 MEMORANDUM *
HITACHI GLOBAL STORAGE
TECHNOLOGIES, INC.,

              Defendant - Appellee.



                  Appeal from the United States District Court
                      for the Northern District of California
                 Marilyn H. Patel, Senior District Judge, Presiding

                             Submitted May 13, 2011 **
                              San Francisco, California

Before: W. FLETCHER and N.R. SMITH, Circuit Judges, and MILLS, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Richard Mills, Senior District Judge for the U.S.
District Court for Central Illinois, Springfield, sitting by designation.
      Counsel for Derek Suzuki appeal the district court’s calculation of attorneys’

fees pursuant to Federal Rule of Civil Procedure 23(h) and California law. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

      The district court correctly began with the lodestar method of calculating

attorneys’ fees and then permissibly used the percentage of common fund cross-

check to arrive at a reasonable fee award under California law. In re Consumer

Privacy Cases, 96 Cal. Rptr. 3d 127, 136-37 (Ct. App. 2009).1

      The district court’s finding that the settlement was worth nothing to class

was not illogical, implausible, or unsupported by the record. See United States v.

Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). The agreed-upon

disclaimers gave no value to class members, who had already purchased the hard

drives.

      The district court did not err by including costs and attorneys’ fees in one

award. Suzuki cites no cases requiring a district court to differentiate between

attorneys’ fees and costs. Further, Suzuki agreed to a settlement that did not

differentiate between attorneys’ fees and costs. “‘If an agreement is reached on

the amount of a settlement fund and a separate amount for attorney fees and


      1
             California state law governs the question of attorneys’ fees, because
the underlying causes of action are based on state law. Vizcaino v. Microsoft
Corp., 290 F.3d 1043, 1047 (9th Cir. 2002).

                                          2
expenses, both amounts must be disclosed to the class. Moreover, the sum of the

two amounts ordinarily should be treated as a settlement fund for the benefit of the

class, with the agreed-on fee amount constituting the upper limit on the fees that

can be awarded to counsel.’” Consumer Privacy Cases, 96 Cal. Rptr. 3d at 133

(quoting the Manual for Complex Litigation (4th ed. 2008) § 21.71, p. 525).

      Because the district court did not abuse its discretion in applying the percent

of common fund cross-check, the panel does not reach Appellant’s challenge of the

use of .69 multiplier in the revised lodestar, as the district court did not ultimately

rely on the lodestar number.

      AFFIRMED.




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