Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 1 of 30
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`Case No. 18-md-02834-BLF
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`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION FOR
`ATTORNEYS’ FEES AND COSTS
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`[Re: ECF 636]
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`Case No.: 5:18-cv-00767-BLF
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`[Re: ECF 184]
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`Case No.: 5:18-cv-05619-BLF
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`[Re: ECF 88]
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`IN RE: PERSONALWEB
`TECHNOLOGIES, LLC ET AL., PATENT
`LITIGATION
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`AMAZON.COM, INC., and AMAZON
`WEB SERVICES, INC.,
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`Plaintiffs
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`v.
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`PERSONALWEB TECHNOLOGIES, LLC
`and LEVEL 3 COMMUNICATIONS, LLC,
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`Defendants,
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`PERSONALWEB TECHNOLOGIES, LLC,
`and LEVEL 3 COMMUNICATIONS, LLC,
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`Plaintiffs,
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`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
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`Having found this case exceptional under 35 U.S.C. § 285, the Court must now determine
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`the amount of reasonable attorneys’ fees and costs owed at the end of this multidistrict litigation
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`(“MDL”) for alleged patent infringement that ensnared Amazon and over 80 of its customers. In
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`February 2020, Defendants Amazon.com, Inc., Amazon Web Services, Inc., and Twitch Interactive,
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`Inc. (collectively “Amazon”) prevailed against Plaintiff PersonalWeb Technologies, LLC
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`(“PersonalWeb”) at summary judgment and judgment was entered in favor of all Defendants. ECF
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`381; ECF 578; ECF 643. After an August 6, 2020 motion hearing, the Court found the case
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`exceptional and awarded Amazon attorney fees and costs but, upon request of PersonalWeb,
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 2 of 30
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`reserved the question of the reasonableness of Amazon’s requested fees. H’rg, ECF 625; Order
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`Awarding Fees, ECF 636 at 34. In its prior motion, Amazon requested attorney fees totaling
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`$6,100,000.00 and non-taxable expenses of $323,668.06. Mot. for Attorney Fees and Costs
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`(“Mot.”), ECF 593 at 15. Amazon also reserved its right to submit a supplemental fee request for
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`future fees related to preparing the fees motion. Gregorian Declaration (“Gregorian Decl.”) ¶ 21,
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`ECF 592-1. Now, PersonalWeb challenges the reasonableness of Amazon’s request. Suppl. Br.,
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`ECF 644. For the reasons that follow, the Motion is GRANTED IN PART and DENIED IN PART.1
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`I. BACKGROUND
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`Separate from this MDL, in December 2011, PersonalWeb commenced a patent
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`infringement suit in Texas federal court against Amazon and its customer Dropbox, Inc. See
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`PersonalWeb Techs., LLC v. Amazon.com Inc., No. 6:11-cv-00658 (E.D. Tex. Filed Dec. 8, 2011)
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`(the “Texas Action”). PersonalWeb eventually stipulated to dismissing its claims with prejudice,
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`ending the action. ECF 315-7; ECF 315-8. Four years later in January 2018, PersonalWeb
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`resurrected its claims, filing over 85 lawsuits across the country against various Amazon customers
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`for their use of Amazon’s Simple Storage Service (“S3”) and alleging infringement of the same
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`patents implicated in the Texas Action. See ECF 295; ECF 1, Schedule A. Amazon quickly
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`intervened to defend its customers, and counterclaims from both parties ensued. Amazon.com, Inc.
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`et al v. Personal Web Technologies, LLC et al, 18-5:18-cv-00767-BLF (N.D. Cal. Filed February 5,
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`2018) (the “DJ Action”), ECF 62, 71.
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`In June 2018, the cases were consolidated into the current MDL proceeding and assigned to
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`this Court. Compl., ECF 1. With Plaintiff’s approval, the Court selected the Twitch case as the
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`representative customer action to proceed and stayed all other customer cases pending resolution.
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`ECF 313. In two phases, the Court granted Amazon’s motions for summary judgment as to all
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`claims. ECF 381; ECF 578.
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`On March 20, 2020, Amazon moved for attorney fees and costs. Mot. On October 6, 2020,
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`this Court granted the Motion and concluded that the case was exceptional
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`1 A detailed breakdown of the Court’s ruling can be found in Appendix A.
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 3 of 30
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`because (1) PersonalWeb’s infringement claims related to Amazon
`S3 were objectively baseless and not reasonable when brought
`because they were barred due to a final judgment entered in the
`Texas Action; (2) PersonalWeb frequently changed its infringement
`positions to overcome the hurdle of the day; (3) PersonalWeb
`unnecessarily prolonged this litigation after claim construction
`foreclosed its infringement theories; (4) PersonalWeb’s conduct and
`positions regarding the customer cases were unreasonable; and (5)
`PersonalWeb submitted declarations that it should have known were
`not accurate.
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`Order Awarding Fees at 33. Because PersonalWeb failed to object to the reasonableness of
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`Amazon’s requested fees in its opposition brief, the Court ordered supplemental briefing. Id.
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`PersonalWeb filed its Supplemental Brief on October 30, 2020. Suppl. Br., ECF 644. Amazon filed
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`its Response on November 16, 2020. Response, ECF 646.
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`II. LEGAL STANDARD
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`A. Exceptional Case Status
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`The first issue to resolve is the proper methodology of calculating the amount of attorneys’
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`fees to which Amazon is entitled. In patent infringement actions, “[t]he court in exceptional cases
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`may award reasonable attorney fees to the prevailing party.” 35 U.S.C. § 285; see Octane Fitness,
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`LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 553 (2014). Supreme Court precedent
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`determining the reasonableness of fees applies uniformly to all federal fee-shifting statutes
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`permitting the award of reasonable fees, such as § 285. See City of Burlington v. Dague, 505 U.S.
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`557, 562 (1992). Furthermore, courts “apply Federal Circuit law to the issue of attorney fees in
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`patent infringement cases.” Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1299 (Fed. Cir.
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`2004). District courts have “‘considerable discretion’ in determining the amount of reasonable
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`attorney fees under § 285” because of “the district court’s superior understanding of the litigation
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`and the desirability of avoiding frequent appellate review of what essentially are factual matters.”
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`Homeland Housewares, LLC v. Sorensen Research, 581 Fed. Appx. 887, 881 (Fed. Cir. 2014)
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`(quoting Bywaters v. U.S., 670 F.3d 1221, 1228 (Fed. Cir. 2012)) (internal quotation marks omitted);
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`see also Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
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`The Court has already determined that this case is exceptional, meriting an award of
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 4 of 30
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`attorneys’ fees. See Order Awarding Fees; see also Octane, 572 U.S. at 555 (“a district court may
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`award fees in the rare case in which a party's unreasonable conduct—while not necessarily
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`independently sanctionable—is nonetheless so ‘exceptional’ as to justify an award of fees.”). The
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`parties now dispute the implication of this finding. PersonalWeb urges this Court to apply a “but
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`for” standard that awards fees accrued litigating frivolous conduct and excludes fees accrued
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`litigating non-frivolous conduct. See Suppl. Br. at 1-2. Amazon counters that awarding fees related
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`to discrete acts of litigation misconduct is the incorrect standard to apply. Response at 1. This Court
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`agrees with PersonalWeb that it should apply the “but for” standard as described in Goodyear Tire
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`& Rubber Co. v. Haeger, 137 S. Ct. 1178 (2017), but is mindful that there are limits to the degree
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`of parsing required. Homeland Housewares, LLC v. Sorensen Research, 581 F. App'x 877, 881 (Fed.
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`Cir. 2014) (“We decline, however, to require such granularity from the district court, particularly
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`because it is the ‘totality of the circumstances,’ and not just discrete acts of litigation conduct, that
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`justify the court's award of fees.” (quoting Octane, 572 U.S. at 554).
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`PersonalWeb’s proposed methodology originates in Fox v. Vice, 563 U.S. 826 (2011). There,
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`the Supreme Court held that when a plaintiff asserts both frivolous and non-frivolous claims, the
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`defendant may recover only the amount incurred because of the frivolous claims. Id. at 826. In such
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`cases, fees are determined according to “whether the fees requested would not have accrued but for
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`the” misconduct. Id. at 839-40; see also Goodyear, 137 S. Ct. at 1187.
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`Several years later, the Supreme Court applied the “but for” standard to a court’s inherent
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`authority to sanction a litigant for bad faith conduct by ordering it to pay the other side’s legal fees.
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`Goodyear, 137 S. Ct. at 1183-84. It explained that fee-shifting in the sanction context must be
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`compensatory rather than punitive. Id. at 1186. As such, “the court can shift only those attorney’s
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`fees incurred because of the misconduct at issue.” Id. An award that “extends further than that—to
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`fees that would have been incurred without the misconduct—then . . . crosses the boundary from
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`compensation to punishment. Id. Hence, a “causal connection” is required between the misbehavior
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`and the legal fees imposed, which “is most appropriately framed as a but-for test: The complaining
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`party . . . may recover ‘only the portion of his fees that he would not have paid but for’ the
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`misconduct.’” Id. at 1186-87 (quoting Fox, 563 U.S. at 836)). The Federal Circuit has since applied
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 5 of 30
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`this reasoning in the patent context, explaining that fees awarded under § 285 are “compensatory,
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`not punitive” and “[i]n such a statutory sanction regime, a fee award may go no further than to
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`redress the wronged party for losses sustained.” In re Rembrandt Techs. LP Patent Litig., 899 F.3d
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`1254, 1279 (Fed. Cir. 2018) (quoting Goodyear, 137 S. Ct. at 1186) (internal marks omitted).
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`“Critically, the amount of the award must bear some relation to the extent of the misconduct.” Id.
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`Amazon emphasizes that Goodyear applied the “but for” fee-shifting methodology in a
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`different context, where the court was concerned with its inherent power to sanction. Response 1.
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`But Fox concerned a § 1983 claim where the court dismissed the plaintiff’s federal claims with
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`prejudice after the plaintiff admitted they were invalid. 563 U.S. at 830. In that case, the Supreme
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`Court was considering § 1988, which allowed an award of reasonable fees to a prevailing party in
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`certain civil rights cases. Fox, 563 U.S. at 829-30. It reversed the district court’s grant of fees for
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`defending the entire suit in federal court, holding that the “but for” test applied. Id. at 839-40; see
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`also Rambus Inc. v. Infineon Techs. AG, 318 F.3d 1081, 1106 (Fed. Cir. 2003) (holding that where
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`a court finds a case exceptional, the amount of the award must relate to the misconduct). And
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`numerous courts have since applied the Fox-Goodyear standard to § 285 assessments. See, e.g., In
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`re Rembrandt Tech. LP Patent Litigation, 899 F.3d 1254 (Fed. Cir. 2018); Flowerider Sur, Ltd. v.
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`Pac. Surf Designs, Inc., No. 315-cv-01879-BEN-BLM, 2020 WL 5645331 (S.D. Cal. Sept. 22,
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`2020); Indus. Print Tech., LLC v. Cenveo, Inc., No. 3:15-cv-01195-M, 2020 WL 5057738, (N.D.
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`Tex. Aug. 26, 2020); Cave Consulting Grp., Inc. v. Truven Health Analytics Inc., 293 F. Supp. 3d
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`1038, 1043 (N.D. Cal. 2018); Envtl. Mfg. Sol., LLC v. Peach State Labs, Inc., 274 F. Supp. 3d 1298
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`(M.D. Fla. Aug. 14, 2017).
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`Amazon contends that § 285 permits the Court to award fees for an exceptional case based
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`on the “totality of the circumstances,” which allows for an award for the entire case, including any
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`subsequent appeals. Response 1 (citing Therasense, Inc. v. Beton, Dickinson & Co., 745 F.3d 513,
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`517 (Fed. Cir. 2014). In Goodyear, the Supreme Court explained that “[i]n exceptional cases, the
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`but-for standard even permits a trial court to shift all of a party’s fees, from either the start or some
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`midpoint of a suit, in one fell swoop.” 137 S. Ct. at 1186 (emphasis added). But the Supreme Court
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`explicated its definition of “exceptional cases” by providing an example of a case where “everything
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`the defendant did—his entire course of conduct throughout, and indeed preceding, the litigation—
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`was part of a sordid scheme to defeat a valid claim.” Id. at 1188 (internal citations and quotation
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`marks omitted) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 51 (1991)). Such conduct, which
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`was also in the sanctioning context, was so egregious that it amounted to “fraudulent and brazenly
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`unethical efforts.” Id. at 1188 (quoting Chambers, 501 U.S. at 58). In other words, there are
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`circumstances in which a case may be exceptional under § 285, but the prevailing party is
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`nonetheless not entitled to full attorneys’ fees. See, e.g., Rembrandt, 899 F.3d at 1267, 1280 (Fed.
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`Cir. 2018) (affirming a case as exceptional under § 285, but concluding that the district court
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`nonetheless failed to “establish at least some ‘causal connection’ between the misconduct and the
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`fee award”).
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`The Federal Circuit has upheld a full award of attorney fees—but it was “against a party
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`whose ‘extensive misconduct was enough to compromise an abusive pattern or a vexatious strategy
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`that was pervasive enough to infect the entire litigation.” Rembrandt, 899 F.3d at 1279 (citing
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`Monolithic Power Sys. Inc. v. O2 Micro International Ltd., 726 F.3d 1359, 1369 (Fed. Cir. 2013)).
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`Describing Monolithic Power, the Federal Circuit in Rembrandt explained that the full award was
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`proper only because the party’s “rampant misconduct so severely affected every stage of the
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`litigation.” Id. at 1279. In Rembrandt, however, the misconduct was not so egregious, meaning the
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`full award that the district court granted was not warranted. See Rembrandt, 889 F.3d at 1277-80
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`(“Rembrandt instead argues that the fee award is excessive and unreasonable because the district
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`court failed to establish a causal connection between the claimed misconduct and the fees awarded”).
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`Unlike Monolithic Power, in Rembrandt “the claimed misconduct affected only some patents
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`asserted against some defendants.” 889 F.3d at 1280. The Federal Circuit remanded so that the
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`district court could reassess the amount because “the district court did not establish a causal
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`connection between the misconduct and [the] fees, and it did not offer any other reason for its fee
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`award” as required by Goodyear. Rembrandt, 889 F.3d at 1280.
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`Courts in this Circuit have also applied the “but for” test in the § 285 context. Analyzing the
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`underlying policy reasons for the Supreme Court’s applying the “but for” standard to § 1988, Judge
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`Illston held that it applied to an infringement case where the nonmovant dropped one of its patent
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`claims after a motion to dismiss was granted in part and denied in part. Cave Consulting, 293 F.
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`Supp. 3d at 1049. And Judge Benitez applied the “but for” standard to determine the reasonableness
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`of the time expended litigating the case in Flowerider Sur, 2020 WL 5645331, at *5-6.
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`This Court finds that the “but for” standard articulated by Goodyear applies, as
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`PersonalWeb’s misconduct did not so infect the case that a full award, without any discernment of
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`a causal connection between the improper acts and the fees accrued, is warranted. In granting fees,
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`this Court concluded that the case was exceptional. Order Awarding Fees at 32. The Court explained
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`that “this case both lacked substantive strength and was litigated in an unreasonable manner” and
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`that PersonalWeb “repeatedly flip flopped its positions to suit the argument of the day” Order
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`Awarding Fees at 33 (internal quotation marks and citation omitted). But the Court also noted that,
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`“[t]aken separately, the fragments of the story might not make PersonalWeb’s conduct look
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`exceptional.” Order Awarding Fees at 32-33. Elsewhere, the Court pointed to benign examples of
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`PersonalWeb’s conduct: “PersonalWeb’s infringement positions were not objectively baseless and
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`thus, do not support a finding of an exceptional case.” Id. at 15. Thus, although the Court concluded
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`that some of PersonalWeb’s infringement claims were “objectively baseless and not reasonable
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`when brought,” Order Awarding Fees 33, its conduct did not rise to “rampant misconduct” affecting
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`“every stage of the litigation.” Rembrandt, 889 F.3d at 1279. In other words, the facts here depart
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`from Monolithic Power and Chambers such that the “but for” standard in Goodyear is warranted.
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`In applying this standard, the Court will exclude requested fees not directly traceable to
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`PersonalWeb’s egregious conduct, but will nonetheless continue to assess the totality of the
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`circumstances as directed under Octane. Overall, the Court has previously determined that
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`PersonalWeb repeatedly changed its infringement theories—telling the MDL panel that the cases
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`all involved S3, then reporting to this Court that Ruby on Rails was preeminent, until that theory
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`was completely abandoned. And later, ten months into the litigation, PersonalWeb yet again shifted
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`its infringement theories, this time to CloudFront along with a disturbing interlude where it appeared
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`that PersonalWeb pursued claims it did not own and signed court papers without Level 3’s consent.
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`After that, PersonalWeb unnecessarily prolonged portions of the case and sought to backtrack on its
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`promise to the Court that Twitch was representative of all customer cases. This misconduct forced
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`Amazon to expend extra work at nearly every juncture.
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`B. Reasonableness of Fees
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`In examining the reasonableness of fees and in applying the “but for” standard, the
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`mechanics of the determination “does not require a tedious, line-by-line investigation of the hours . .
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`. expended.” Rembrandt, 889 F.3d at 1280. Goodyear details this Court’s task:
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`This but-for causation standard generally demands that a district court
`assess and allocate specific litigation expenses—yet still allows it to
`exercise discretion and judgment. The court’s fundamental job is to
`determine whether a given legal fee-say, for taking a deposition or
`drafting a motion—would or would not have been incurred in the
`absence of the sanctioned conduct. The award is then the sum total of
`the fees that, except for the misbehavior, would not have accrued. But
`as we stressed in Fox, trial courts undertaking that task need not, and
`indeed should not, become green-eyeshade accountants . . . . The
`essential goal in fee shifting is to do rough justice, not to achieve
`auditing perfection. Accordingly, a district court may take into
`account its overall sense of a suit, and may use estimates in
`calculating and allocating an attorney’s time.
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`137 S. Ct. at 1187 (internal brackets, quotation marks, and citations omitted); see also Flowerider
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`Sur, 2020 WL 5645331, at *5 (applying the Goodyear standard in the § 285 context).
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`Hence, for guidance on the reasonableness of fees so that this Court may do “rough justice,”
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`it still looks to the lodestar amount, which is presumptively reasonable. Dague, 505 U.S. at 562;
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`Vogel v. Harbor Plaza Center, LLC, 893 F.3d 1152, 1161 (9th Cir. 2018); see also Flowerider Sur,
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`2020 WL 5645331, at *4-6 (applying both the “but for” standard and the lodestar method); Peach
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`State Labs, 274 F. Supp. 3d at 1314-27 (same). The lodestar calculation requires examination of
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`“the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
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`Pa. v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 564 (1986). “This calculation
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`provides an objective basis on which to make an initial estimate of the value of a lawyer’s services.”
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`Id. (citing Hensley, 461 U.S. at 433).
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`The reasonable hourly rate is determined by “the rate prevailing in the community for similar
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`work performed by attorneys of comparable skill, experience, and reputation.” Chalmers v. City of
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`Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986), amended on other grounds, 808 F.2d 1373
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`(9th Cir. 1987) (citing Blum v. Stetson, 465 U.S. 886, 895 n.11 (1984)). The relevant community is
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`typically the forum in which the district court sits. Camacho v. Bridgeport Fin., Inc., 523 F.3d 973,
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`979 (9th Cir. 2008). The prevailing market rate is guided by attorney affidavits as well as “decisions
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`by other courts awarding similar rates for work in the same geographical area by attorneys with
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`comparable levels of experience.” Trujillo v. Orozco, No. 5:17-cv-00566-EJD, 2018 WL 1142311,
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`at *2 (N.D. Cal. Mar. 2, 2018); see also United Steelworkers of Am. v. Phelps Dodge Corp., 896
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`F.2d 403, 407 (9th Cir. 1990).
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`The number of hours is based only on the amount of time “reasonably expended on the
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`litigation” and excludes “hours that are excessive, redundant, or otherwise unnecessary.” Hensley,
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`461 U.S. at 433-34. The moving party bears the initial burden of providing relevant documentation.
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`Id. at 433. “Where the documentation of hours is inadequate, the district court may reduce the award
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`accordingly.” Id. Furthermore, while the lodestar amount provides guidance, “[t]here is no precise
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`rule or formula for making these determinations.” Id. at 436. A court “necessarily has discretion in
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`making this equitable judgment.” Id. at 437. As such, as part of its assessment of the reasonable
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`hours, the Court considers “whether a given legal fee . . . would or would not have been incurred in
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`the absence of the sanctioned conduct.” Flowerider Sur, 2020 WL 5645331, at *5.
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`The following reductions to Amazon’s lodestar calculations are based solely on percentage
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`cuts. Although the Court would consider a line-by-line reduction, PersonalWeb has chosen to submit
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`its opposition based on percentage reductions and Amazon does not object to this methodology. The
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`Court thus proceeds in accordance with guidance from the Supreme Court, Federal Circuit, and
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`Ninth Circuit.
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`III. DISCUSSION
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`In its original motion for fees, Amazon requested “attorney fees from January 8, 2018
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`through February 29, 2020,” amounting to a total of $6,100,000.00 and non-taxable expenses
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`totaling $323,668.06. Mot. at 15. PersonalWeb requests that the Court reduce this request to
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`$1,302,947.86 in fees and $203,300.10 in costs. Suppl. Br. 1. This reduction is based on
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`PersonalWeb’s belief that (1) “the majority” of Amazon’s request has no relation to the claim and
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`conduct the Court found exceptional and (2) Amazon’s counsel engaged in unreasonable billing
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`practices.
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 10 of 30
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`A. Amazon’s Proffered Fee Data
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`As a preamble, the Court considers PersonalWeb’s challenge to the fee data provided by
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`Amazon. See Suppl. Br. at 3. This challenge is related to the discount scheme Fenwick & West LLP
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`(“Fenwick”) applied to Amazon’s fees. In its Motion for Attorney Fees and Costs, Amazon
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`explained that “Amazon and Twitch incurred $6,987,341.17 in fees for Fenwick’s work between
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`January 2018, when the case began, through January 2020” after applying “write-offs and
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`discounts.” Gregorian Decl. ¶ 19.2 These write-offs and discounts included an exclusion of “556.3
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`hours and $189,009.85 of work” from 29 timekeepers. Id. ¶ 17. The excluded hours could be traced
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`to “ramp up” time for attorneys who were newly recruited onto the case, as well as other
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`inefficiencies. Id. Amazon also received a “final” discount of about 13%, which accounts for
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`Amazon’s ultimate $6,100,000.00 fee request. Id. ¶ 19; see also id., Exh. 6 (detailing effective
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`hourly rate before and after final discount). Amazon is commended for its candid and appropriate
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`billing reductions. That said, its presentation of hours expended has caused some confusion.
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`PersonalWeb argues that although Amazon represented that it is only requesting fees
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`incurred after applying the discounts described above, its fee request for each category is based on
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`the effective rates of the attorneys before the discount. Suppl. Br. at 3 (citing Gregorian Decl., Exh.
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`6). And, contrary to the discount scheme described above, PersonalWeb’s expert contends that
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`Amazon first multiplied the relevant number of hours billed by the pre-discount billing rate set forth
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`in the Gregorian Declaration. Knapton Declaration, ECF 644-1 ¶ 9. According to PersonalWeb,
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`these calculations resulted in a total of $6,987,341.17 in fees. PersonalWeb’s expert concludes that
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`Amazon then wrote-off $189,009.85 in fees and 556.3 hours of time from $6,987,341.17 to reach
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`Amazon’s ultimate request of $6,100,000.00. See id. ¶ 10 (“Based on my review of Fenwick’s
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`invoices, this exclusion is apparently what comprises the ‘Final Discount’ that results in the
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`$6,100,000.00 in requested fees.”). The Court is puzzled by this conclusion, not least because (1)
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`Amazon clearly and cogently laid out the how it arrived at the $6,100,000.00 figure, see Gregorian
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`Decl. ¶¶ 17-19, and (2) PersonalWeb’s explanation does not account for almost $700,000.00 in fees.
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`2 Amazon “in fact [has] paid in excess of $7.25 million in attorney fees” to defend this case.
`Gregorian Supplemental Declaration ¶ 17, ECF 646-1.
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 11 of 30
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`The Court has thoroughly examined the documentation provided by Amazon. Upon totaling
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`the amounts in Amazon’s proffered Breakdown of Categories table, the Court discovered that the
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`fees totaled $6,987,341.17—not $6,100,000.00. See id. In other words, as PersonalWeb argued, this
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`table is a result of multiplying hours billed by the effective billing rate before the final discount.
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`While Amazon provided the Court with another table titled Overview of Totals, this table only
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`details the total billed hours and effective billing rate after the final discount was applied for each
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`category, requiring the Court and PersonalWeb to calculate the total requested fee for each category.
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`Amazon’s decision to proffer a detailed fee table based only on pre-discount billing rates is
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`unnecessary in light of Defendant’s request for percentage-based deduction. See Gregorian Decl.,
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`Exh 6 at 2-12. The Court thus relies on the “Total Billed Hours” and “Effective Rate with Final
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`Discount” figures in the Overview of Totals table to conduct the below analysis. See Gregorian
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`Decl., Exh 6 at 2-12. These figures are also referenced in Defendant’s supplemental brief. See
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`generally Suppl. Br.
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`B. Fox-Goodyear “But For” Standard
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`The Court first considers PersonalWeb’s argument that “the majority” of Amazon’s fee
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`request has no relation to the claim and conduct the Court found exceptional. PersonalWeb generally
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`contends that Amazon should only be able to recover for three categories of work: “S3 only” issues,
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`post claim construction, and changed infringement positions. Suppl. Br. at 3. For the reasons
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`discussed below, the Court disagrees and grants the lion’s share of Amazon’s fee request.
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`1. Case Management
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`Amazon seeks to recover $1,079,001.52 in attorneys’ fees for 2143.3 hours of work related
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`to case management. Gregorian Decl., Exh. 6. PersonalWeb argues that these hours should mostly
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`be excluded given that “Amazon has provided no evidence that the vast majority of time spent on
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`‘Case Management’ would not have otherwise been expended by Amazon since ‘S3 only’
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`infringement was removed relatively early in the case (before most discovery and claim
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`construction).” Suppl. Br. at 3. It contends Amazon should only receive $269,750.38 in this
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`category. Id. at 4. Amazon replies that “[t]his complex patent MDL required a significant amount
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`of case management and conference time, including coordination with the more than 80 parties in
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`Case 5:18-md-02834-BLF Document 648 Filed 03/02/21 Page 12 of 30
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`the MDL. The case law recognizes that this time may be not only necessary, but the most efficient
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`way to coordinate work on the case.” Response at 5.
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`PersonalWeb’s argument
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`that Amazon should only receive $269,750.38 out of
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`$1,079,001.52 in fees implies that PersonalWeb’s misconduct was only responsible for about 25%
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`of Amazon’s case management needs. Not so. PersonalWeb’s frivolous conduct was a significant
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`contributor to the need for case management. See generally Order Awarding Fees. Nonetheless,
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`Amazon’s request requires a haircut. Although it is particularly difficult to attribute case
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`management activities to the particular misconduct present in this case, PersonalWeb’s ever-shifting
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`infringement theories—S3, Ruby on Rails, the late emergence of CloudFront and complete
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`abandonment of Ruby on Rails, and, finally, PersonalWeb’s extraordinary declaration that Twitch
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`was not a representative customer case only fifteen months after insisting just the opposite —support
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`Amazon’s need for significant case management efforts. Thus, the Court will reduce case
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`management fees by 25% to reflect a fair reduction related to otherwise necessary activities. The
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`Court reduces the lodestar by $269,750.38 in fees and 535.83 hours. The Court determines Amazon
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`is entitled to $809,251.14 in fees for 1607.5 hours of work in this category.
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`2. MDL
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`Amazon seeks to recover $145,613.05 in attorneys’ fees for 296.8 hours of work related to
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`MDL. Gregorian Decl., Exh. 6. PersonalWeb argues that “Amazon should not receive fees here
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`because the Court held that PersonalWeb’s conduct to win centralization was not exceptional since
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`PersonalWeb ‘did not hide the ball as to Ruby on Rails from the MDL Panel.’” Suppl. Br. at 4 (citing
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`Order Awarding Fees at 16). Amazon responds that “it was Amazon’s . . . presence in the MDL that
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`made it possible for the Court to resolve the case as efficiently as it did. And had the Court accepted
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`PersonalWeb’s proposal to have multiple customer cases go forward, the MDL proceeding would
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`have been significantly more expensive.” Response at 3.
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`The Court agrees with Amazon. PersonalWeb’s argument takes the Order Awarding Fees
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`drastically out of context, and illustrates that the company continues to “slice and dice this case in a
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`way that gave it an escape hatch.” Order Awarding Fees at 27. The Court previously concluded in
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`its extensive Order Awarding Fees that “PersonalWeb took advantage of the MDL status” and
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