Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 1 of 8
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`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
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`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`MELANIE L. MAYER (admitted pro hac vice)
`mmayer@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`CHIEH TUNG (CSB No. 318963)
`ctung@fenwick.com
`T.J. FOX (CSB 322938)
`tfox@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Counsel for AMAZON.COM, INC.,
`AMAZON WEB SERVICES INC., and
`TWITCH INTERACTIVE, INC.
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`IN RE: PERSONALWEB TECHNOLOGIES,
`Case No.: 5:18-md-02834-BLF
`LLC ET AL., PATENT LITIGATION,
`
`Case No.: 5:18-cv-00767-BLF
`Case No. 5:18-cv-05619-BLF
`SUPPLEMENTAL DECLARATION OF
`TODD R. GREGORIAN IN SUPPORT
`OF AMAZON.COM, INC., AMAZON
`WEB SERVICES, INC., AND TWITCH
`INTERACTIVE, INC.’S MOTION FOR
`ATTORNEY FEES AND COSTS
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`
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`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`SUPPL. GREGORIAN DECL. ISO AMAZON’S
`AND TWITCH’S MOTION FOR ATTORNEY
`FEES AND COSTS
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`Case Nos.: 5:18-md-02834-BLF, 5:18-cv-
`00767-BLF; 5:18-cv-05619-BLF
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 2 of 8
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`I, Todd R. Gregorian, declare as follows:
`1.
`I am counsel to Amazon.com, Inc., Amazon Web Services, Inc. (collectively,
`“Amazon”), and Twitch Interactive, Inc. (“Twitch”) in this matter. I submit this declaration in
`response to PersonalWeb’s submission arguing the reasonableness of the fee request. I have
`personal knowledge of the facts set forth herein.
`2.
`I have reviewed PersonalWeb’s brief and the declaration of Gerald Knapton. They
`base proposed reductions to the fee award on several incorrect assumptions about Amazon and
`Twitch’s staffing and invoices. I discuss these in greater detail below.
`Staffing
`3.
`Our opening papers established that Fenwick staffed the case reasonably for the
`work required. PersonalWeb asserts that Fenwick staffed the case in a “top heavy” manner, but
`does so based on incorrect calculations. For example, PersonalWeb included most of my hours on
`the case in its “partner” category, even though I was not elevated to the partnership until January
`1, 2020. See Dkt. 644-1 (“Knapton Decl.”) ¶¶ 35, 39, 50, 52 (referencing four partners), id. Ex. 3;
`Dkt. 592-1 (“Gregorian Decl.”) ¶ 4. This mistake caused PersonalWeb to overstate partner fees on
`the case by 880 hours. See Knapton ¶¶ 29, 34, Ex. 2 (calculating partner hours by incorporating
`880 associate hours); id. ¶¶ 35, 39, 50, 52 (incorrectly referencing four partners in discussing
`proposed reductions for staffing). Partner hours for the case made up just 27.9% of timekeeper
`hours. Gregorian Decl. ¶ 15.
`4.
`PersonalWeb states that Fenwick staffed the case with over 40 timekeepers and
`suggests that this added to “conference and training time.” See Knapton Decl. ¶¶ 28, 39. But as
`previously explained, Amazon and Twitch excluded 29 of these timekeepers from the request.
`Gregorian Decl. ¶ 17. (Mr. Knapton notes (at ¶ 10 & n.1) that he could only find 27 of these; the
`other two are Kathleen Murray (paralegal) and Eugene Prokopenko (associate).) The work
`contributed by all these individuals was necessary to the case given its complex nature and the need
`to occasionally staff up to address the workload during busy periods. But it was precisely the
`concern that Mr. Knapton identifies—i.e., the potential time required to orient extra timekeepers to
`the matter—that caused us to simply exclude all this time from the request rather than attempt an
`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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`1
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`Case Nos.: 5:18-md-02834-BLF; 5:18-cv-
`00767-BLF’ 5:18-cv-05619-BLF
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 3 of 8
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`allocation. Gregorian Decl. ¶ 17. In other words, we excluded some time that had obvious value
`to the case in order to streamline the issues for the fee motion and to ensure the reasonableness of
`the request. Moreover, except for Ms. Murray and Mr. Prokopenko, who Mr. Hadden excluded
`from the invoices as well because they each billed fewer than 5 hours to the case, these exclusions
`were not done at the behest of the client at the invoicing stage, as Mr. Knapton claims.
`5.
`Mr. Knapton also accuses us of double counting this deduction or using it to
`manipulate effective rates. Knapton Decl. ¶¶ 10, 20. That is incorrect. The work of these 29
`timekeepers was subtracted out before reaching the approximately $6.9 million number, to which
`we then applied the nearly 13% final discount. Gregorian Decl. ¶ 19. Mr. Knapton’s accusations
`are odd given that they conflict with his own report of this discount sequence in Knapton Exhibit
`8.
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`6.
`Mr. Knapton also relies heavily on AIPLA survey data to support his claim that the
`case was overstaffed. Knapton ¶¶ 22-28. The AIPLA survey reports the average costs to defend a
`single NPE patent infringement case, which numbers Mr. Knapton then compares to the cost to
`defend the more than 80 patent infringement suits coordinated in this MDL. The comparison is
`inapt given the complexity of this proceeding. Moreover, the average costs of non-NPE patent
`infringement cases in the survey greatly exceed those of NPE patent litigation, in some instances
`by over a million dollars. See e.g. Knapton Ex. 5 at 4 (table I-145), 6 (table I-163). Mr. Knapton’s
`use of NPE cases as the relevant benchmark is unusual because, to the best of my recollection, in
`this case PersonalWeb has not previously characterized itself as an NPE.
`Fact Discovery
`7.
`The Fact Discovery category includes fees for document collection, review, and
`production for Amazon and Twitch, respectively, document review for PersonalWeb, and preparing
`for and attending sixteen depositions. Ms. Melanie Mayer was the supervising partner for fact
`discovery matters.
`8.
`Mr. Knapton’s portrayal of the parties’ respective deposition staffing is inaccurate
`(see Knapton Ex. 7):
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`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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`2
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`Case Nos.: 5:18-md-02834-BLF; 5:18-cv-
`00767-BLF’ 5:18-cv-05619-BLF
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`FENWICK & WEST LLP
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 4 of 8
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`a. In reporting the total number of “Fenwick Attorneys” who attended depositions, Mr.
`Knapton counts summer associates and client representatives whose time was not
`included in the fee request. See Knapton Ex. 7 (listing as “Fenwick Attorneys” Ryan
`Kwock and Jonathan Chai, former summer associates, and Eugene Marder, Twitch’s
`Senior Product Counsel); but see Ex. 6 (acknowledging that Mr. Kwock and Mr.
`Chai were not included in the request for fees).
`b. Mr. Knapton claims that deposition attendance by junior associates (here, Crystal
`Nwaneri and TJ Fox) was “training time.” That is incorrect. Ms. Nwaneri defended
`Mr. Keith Moore in his deposition, while Mr. Fox took the deposition of Mr. David
`Farber and defended Mr. James Richard in his two depositions. Mr. Fox supported
`Mr. Haack in the deposition of Mr. Matthew Baldwin. In short, Ms. Nwaneri and
`Mr. Fox billed for work that had value to the case and did not duplicate the work of
`other attorneys. It was not “training time.”
`9.
`While Mr. Knapton claims that Amazon and Twitch overstaffed depositions, he
`neglects to mention that PersonalWeb staffed the depositions in this case with more attorneys than
`Amazon and Twitch did. Exhibit 17 is a list of the sixteen noticed depositions taken in this matter,
`including attorney attendees from both Fenwick and Stubbs Alderton, counsel for PersonalWeb.
`10.
`In analyzing fees for Fact Discovery, Mr. Knapton also incorrectly refers to the
`standard partner rates before discounts were applied. See Knapton Decl. ¶ 52 (referencing billing
`rates as “Hadden-$1,120 per hour, Shamilov- $950 per hour, Mayer $900 per hour and then-
`associate, now partner Gregorian- $795 per hour”). The correct effective rates post discount are
`included in my original declaration. See Gregorian Declaration ¶ 5 (indicating that the 2018-2020
`combined average effective rates were $905.95 for Mr. Hadden, $748.60 for Ms. Shamilov, and
`$699.82 for Ms. Mayer).
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`Case Management and Conferences
`11.
`As discussed in my original declaration, this matter was complex and involved tasks
`that were more varied and involved than the typical patent litigation. Gregorian Decl. ¶ 22. To
`coordinate team efforts in the six judicial districts in which PersonalWeb filed customer lawsuits
`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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`3
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`Case Nos.: 5:18-md-02834-BLF; 5:18-cv-
`00767-BLF’ 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 5 of 8
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`before consolidation, the proceedings before the JPML, the multidistrict litigation before this court,
`and the appeals before the Federal Circuit, the team held weekly team conferences to ensure
`consistent and efficient communication, which are much more reliable than one-off attorney and
`staff communications. The team conferences in this matter typically lasted about thirty minutes
`and rarely exceeded an hour. The team held conferences more frequently in the most active stages
`of the litigation that involved coordination among a higher number of people, including the phases
`before and immediately after consolidation, and during fact discovery. These conferences were
`reasonable and necessary. I understand that the Ninth Circuit has held that the amount spent by the
`losing party does not limit a prevailing party fee award or necessarily act as benchmark for
`determining reasonableness. See, e.g., Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1151 (9th
`Cir. 2001). That said, PersonalWeb did not provide any information about its own conference hours
`for its sizable team, which, given the deposition staffing comparison above, may reflect comparable
`conference time.
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`Time Entries That Include More Than One Task
`12. Mr. Knapton accuses Fenwick of “block billing” time. “Block billing is the time-
`keeping method by which each lawyer and legal assistant enters the total daily time spent working
`on a case, rather than itemizing the time expended on specific tasks.” Welch v. Metro. Life Ins. Co.,
`480 F.3d 942, 945 n.2 (9th Cir. 2007) (citations omitted). As the invoices reflect (Gregorian Decl.
`Ex. 4), time entries that cover more than one task often also include itemized amounts spent on
`each task. See, e.g., id. at 13 (time entry for Mr. Hadden dated February 6, 2018: “Drafted
`preliminary injunction motion (.8); call with counsel for customer defendants (.3).”). Such entries
`are not “block billed.”
`13.
`For entries that lack an itemized breakdown of time per task in the description, the
`descriptions are sufficiently robust for the Court to analyze the reasonableness of the fees for the
`work performed. As this Court has stated:
`While block-billing is less than ideal in providing a complete record to assess
`reasonableness, adequate descriptions can still make it acceptable. Such detailed
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`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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`4
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`Case Nos.: 5:18-md-02834-BLF; 5:18-cv-
`00767-BLF’ 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 6 of 8
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`information about the timekeeper’s activities can be sufficient for the purpose of evaluating
`whether the total block-billed hours were reasonable as a whole.
`Phigenix, Inc. v. Genentech Inc., 2019 WL 2579260, at *18 (N.D. Cal. 2019); see also Oberfelder
`v. City of Petaluma, 2002 WL 472308, at *3 (N.D. Cal. Jan. 29, 2002) (“The charge of blocked
`billing does not undermine the compensability of time reasonably expended where the billing
`statement meets the basic requirement of listing the hours and identifying the general subject matter
`of time expenditures.”).
`14.
`In addition, to ensure that each category of major tasks provided to the Court in
`Exhibit 6 of the Gregorian Declaration accurately reflected each attorney’s hours and fees, the team
`reviewed these entries and allocated the time in each entry based on their good faith estimate of the
`time spent per task. Exhibit 18 is a sample of time entries that include more than one task that
`were analyzed and allotted into separate tasks. The “Split” column indicates that entries requiring
`splitting have been apportioned into distinct categories (marked by “A”). The “Category” column
`lists the specific category of major tasks that correspond to the number of hours indicated in the
`“Allotment” column. At the Court’s request, Amazon and Twitch can provide a copy of the full
`spreadsheet showing all such allocations.
`Exhibit 6 to the Gregorian Declaration
`15. Mr. Knapton claims there are certain “discrepancies” in Exhibit 6 of the Gregorian
`Declaration. While I believe my original declaration was clear and his criticisms are misplaced, I
`offer the following clarifications.
`16.
`First, Mr. Knapton claims that it was “misleading” and “improper[]” for Amazon to
`use the “Effective Rate Before Final Discount” to compile the fees incurred in each category
`required by the Court’s standing order. Supp. Br. at 3; Knapton Decl. ¶¶ 9, 32. As explained in
`my original declaration, the fees requested were discounted in two stages. The first discount
`occurred at the time of billing and is reflected in the “Effective Rate Before Final Discount” column
`and the category totals. Our submission thus reflects the fees actually incurred by and billed to the
`client, which is what we understand the Court’s standing order to require. Gregorian Dec. ¶¶ 5, 19;
`Ex. 6; Standing Order Re Civil Cases at 6 (“Standing Order”) (“The Court is primarily interested
`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 7 of 8
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`in the number of hours spent per task and per attorney, along with the effective billing rate
`associated with those hours.”).
`17.
`The second, “final discount” was applied across-the-board in the fee motion to
`ensure the reasonableness of the overall request, both in the general sense of reflecting the “good
`billing judgment” described in the case law, but also more specifically to make certain that the
`request would not exceed the amount that the clients ultimately paid considering other potential
`pending discounts or credits. For this reason, we reduced the approximately $6.9 million
`discounted fee number to a final discounted request of $6.1 million. I have checked our internal
`accounting system in connection with preparing this declaration, and it reflects that Amazon and
`Twitch have in fact paid in excess of $7.25 million in attorney fees (exclusive of costs) to defend
`this case.
`18.
`Second, Mr. Knapton suggests that Amazon and Twitch failed to comply with the
`Court’s standing order regarding fee motions. See Knapton Decl. ¶ 11. The Court’s standing order
`requires that “[a] party moving for attorneys’ fees must provide the Court with a chart, in the format
`set forth below, summarizing the hours expended on the major tasks in the case. While the Court
`has suggested several categories of tasks, the moving party may add or modify categories as
`necessary.” Standing Order at 6. The Court’s suggested categories include “Compl. And Pre-
`Compl. Investigation”; “Discovery”; “Motion Practice (specify motion)”; “Settlement Efforts”;
`“Client Communication”; and “Miscellaneous (describe).” Here, we included all the suggested
`categories except for “Settlement Efforts,” which was not applicable. See Gregorian Ex. 6
`(including the categories: “Investigate/Respond to PersonalWeb’s Claims”; “Fact Discovery,” and
`“Expert Discovery”; “Case Management” (which included client correspondence); and seven
`distinct categories for motions). Per the Court’s suggestion, we also included additional categories,
`e.g. Infringement Contentions, Invalidity Contentions, Damages Contentions, Claim Construction,
`and Federal Circuit Appeal, in order to help clarify the work performed and assist the Court’s
`review. If there is additional or different information the Court would like, Amazon and Twitch
`are willing to provide it.
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`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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`6
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`Case Nos.: 5:18-md-02834-BLF; 5:18-cv-
`00767-BLF’ 5:18-cv-05619-BLF
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`Case 5:18-md-02834-BLF Document 646-1 Filed 11/16/20 Page 8 of 8
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`I declare under penalty of perjury under the laws of the United Sates that the foregoing is
`true and correct. Executed in Mount Desert, Maine on this 16th day of November 2020.
`
`Todd R. Gregorian
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`SUPPL. GREGORIAN DECL. ISO
`AMAZON AND TWITCH MOTION FOR
`ATTORNEY FEES AND COSTS
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