Case 5:18-md-02834-BLF Document 649 Filed 03/11/21 Page 1 of 8
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`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 PURSUANT TO
`COURT ORDER [DKT. 647]
`
`
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
`
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Plaintiffs,
`
`v.
`
`TWITCH INTERACTIVE, INC.,
`
`Defendant.
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT. 647]
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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 649 Filed 03/11/21 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 the Court’s Order Requesting Supplemental Declaration (Dkt. 647). I have personal
`knowledge of the facts set forth herein.
`2.
`The original fee motion included effective rate and fee category information based
`on discounts received by the clients, but before applying a final discount to the requested total.
`This was done to simplify the calculations associated with applying the final discount to years of
`invoices, and because Amazon and Twitch (collectively, “Amazon”) believed the rates and fees
`were reasonable even before applying the final discount. The Court’s fee order notes that this
`caused some confusion. (See Dkt. 648 at 10-12.) Accordingly, the effective rate and fees
`subcategory information below includes all discounts, with the exception that time written down
`and not invoiced to the client (see paragraph 8) was not included in the calculation of the effective
`rates.
`
`Effective Rates for the Supplemental Fee Request
`3.
`Amazon provides below a chart of effective rates for the timekeepers who billed to
`this matter from February 2020 through February 2021. (See Dkt. 648 at 26; Dkt. 592-1 at 5-6.)
`The background information for these timekeepers is further detailed in my declaration in support
`of Amazon’s motion for fees. (See Dkt. 592-1 at 1-5.)
`4.
`The effective rates for time billed between February 2020 and February 2021 reflect
`rate increases by Fenwick & West since the matter began in January 2018, owing both to changes
`in the market generally and annual increases based on the additional experience of each timekeeper.
`Because the current request includes no time entries from 2018 or 2019, for example, the effective
`rates are necessarily higher than those at issue in the original fee motion. The effective rates the
`Court approved for the January 2018-January 2020 period are included for comparison.
`5.
`The 2020-2021 effective rates are also in line with the most recent survey published
`by AIPLA, which discloses average billing rates for 2018—i.e., the rates are reasonable even before
`accounting for inflation and yearly rate increases since then. (See 592-1 at 8-9) (citing 592-4 at I-
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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`Case 5:18-md-02834-BLF Document 649 Filed 03/11/21 Page 3 of 8
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`J. David Hadden
`Partner
`Saina Shamilov
`Partner
`Melanie Mayer
`Partner
`Todd Gregorian
`Partner1
`Ravi Ranganath
`Partner2
`Allen Wang
`Associate
`Elizabeth Hagan
`Associate
`Shannon Turner
`Associate
`Chieh Tung
`Associate
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`29 (showing that, in 2018, the average hourly billing rate for partners in the third quartile was $826,
`and the rate for the 90th percentile was $1,023); I-42 (showing the range of general private firm
`associate billing rates based on intellectual property law experience, which encompasses Fenwick
`associate billing rates for 2020-2021)); see also A.D. v. State of California Highway Patrol, 2013
`WL 619957 (N.D. Cal. Nov. 27, 2013) (finding that rate increases over the four years the case was
`pending were reasonable, holding: “the question is not whether the percentage increase from 2009
`to 2013 is too great, but rather whether the 2013 rates sought are reasonable and within the
`prevailing market rates); Coles v. City of Oakland, No. C03-2961 TEH, 2007 WL 39304, at *7
`(N.D. Cal. Jan. 4, 2007) (finding claimed hourly rate increase over four years to be reasonable and
`consistent with that of other local firms, and noting that rates may be influenced by inflation,
`additional years of experiences, and other changes in the legal market.).
`
`Billing Attorney Hours
`Billed on
`Matter
`94.2
`
`Effective Rate
`
`
`Approved Rate
`(2018-2020)
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`$876.44
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`$905.95
`
`Years
`experience
`(2021)
`26 years
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`14.8
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`52.6
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`249.4
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`50.8
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`8.8
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`33.9
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`1.6
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`313.8
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`$900.55
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`$870.99
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`$761.93
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`$703.02
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`$713.80
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`$705.50
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`$705.50
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`$539.43
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`$748.60
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`$699.82
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`$648.27
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`$659.92
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`$659.85
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`$577.55
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`$618.28
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`$406.85
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`19 years
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`16 years
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`16 years
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`10 years
`
`10 years
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`8 years
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`6 years
`
`4 years
`
`
`1 Mr. Gregorian became a partner effective 1/1/2020. (See Dkt. 592-1 at 2).
`2 Mr. Ranganath became a partner effective 1/1/2021.
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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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 649 Filed 03/11/21 Page 4 of 8
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`Crystal Nwaneri
`Associate
`Thomas Fox
`Associate
`Patrick Doyle
`Associate
`Robert Winant
`Paralegal
`Lawrence Gallwas
`Paralegal
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`7.6
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`36.2
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`56.5
`
`139.1
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`22.3
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`$543.65
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`$481.05
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`$373.50
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`$360.29
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`$378.12
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`$430.06
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`$370.20
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`$282.20
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`$342.16
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`$344.74
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`4 years
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`3 years
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`4 years
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`29 years
`
`16 years
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`
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`Monthly Invoices and Explanation of Discounts
`Exhibit A is a copy of all monthly invoices to Amazon for work performed on this
`6.
`matter from February 2020 through February 2021, reflecting the work of each timekeeper at
`Fenwick who billed to this matter during that time period. The invoices for January and February
`2021 are draft invoices. The time entries and total amounts billed, however, accurately reflect the
`amount Fenwick expects to bill to the client.
`7.
` Fenwick has made the following redactions from the invoices: (1) descriptions of
`the work billed that reflect attorney-client privileged and/or work product information; (2) bank
`account information required for payment of fees; (3) non-taxable costs that Amazon is not seeking
`as part of its request. Categories (1) and (2) are redacted in black; category (3) is redacted in blue.
`8.
`These monthly invoices reflect pre-invoice discounts for the clients, as well as a
`17% discount that Amazon receives on its monthly invoices for this matter. The 17% discount is
`part of the first discount which occurs at the time of billing, and reflects the fees actually incurred
`by and billed to the client. On the February 2020 through December 2020 invoices, the 17%
`discount is applied to the total invoiced amount. For the January and February 2021 invoices, the
`17% discount is built into the blended rate for each timekeeper. The second, “final discount”
`described in the original motion (see Dkt. 646-1 ¶ 17) was specific to making certain that the request
`would not exceed the amount that the clients ultimately paid considering other potential pending
`discounts or credits. Here, the time worked for the months of June, September, and December
`2020, totaling 256.2 hours and $160,511.63 in fees, was already written down and the client was
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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`Case 5:18-md-02834-BLF Document 649 Filed 03/11/21 Page 5 of 8
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`not invoiced for them, and there were no other pending discounts or credits. Accordingly,
`Amazon’s supplemental request concerns only fees that it incurred after all discounts.
`9.
`Amazon requests supplemental fees for only the timekeepers identified in its
`original motion that billed to this matter between February 2020 and February 2021. See Dkt. 592-
`1 ¶ 17. Fees associated with additional associates and staff are excluded. All told, Amazon has
`excluded a total of 11 timekeepers billing 119.2 hours and $39,834.61 of work. This is a reduction
`of fees incurred and invoiced (i.e., it does not include any of the June, September, or December
`2020 time that was written down).
`10.
`Inclusive of applicable discounts, and with the above exclusions, Amazon incurred
`$698,708.28 in fees for Fenwick’s work between February and December 2020.
`Chart of Major Tasks and Associated Fees Incurred
`11.
`A chart of each attorney’s time for each category of tasks performed in this case
`during the February 2020 through February 2021 time period is attached as Exhibit B. The Court
`asked specifically for documentation as to Amazon’s incurred fees relating to the fees motion. (Dkt.
`647.) Amazon has included documentation and respectfully requests reimbursement of all fees it
`incurred in this case during this period. Amazon has segregated fee motion time from the other
`categories below in the event that the Court is inclined to award only those fees. A summary of
`each category is provided below.
`“Summary Judgment on Non-Infringement” includes additional work
`a.
`performed in relation to the motions for summary judgment for non-infringement. Amazon is not
`seeking any of its supplemental fees associated with this category, a total of 7.7 hours and
`$4,460.42.
`
`“Attorney Fee Motion” includes work performed to support Amazon’s
`b.
`motion for attorney fees and costs. This includes research and briefing; reviewing all time entries
`billed to this matter and creating a script to perform calculations related to compiling the request.
`The fee motion was heavily litigated, resulting in somewhat higher than usual fees. The Court may
`recall that PersonalWeb negotiated a schedule for the fee motion but then requested the Court deny
`or defer ruling on it, a request that involved briefing and a case management conference.
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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`Case 5:18-md-02834-BLF Document 649 Filed 03/11/21 Page 6 of 8
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`PersonalWeb’s opposition to the fees motion also sought to rely on privileged communications that
`it had not produced during fact discovery. (See Dkts. 608-1, 608-6, 608-11, 608-16.) Amazon sent
`a letter noting PersonalWeb’s waiver and requesting production of related communications. (Dkt.
`612-3.) PersonalWeb produced some documents, but also responded to the informal letter request
`by seeking a formal protective order from the Court, requiring additional briefing and a conference.
`(Dkts. 610, 616.) Finally, PersonalWeb requested a second round of briefs on the fee motion
`addressed to the issue of the reasonableness of the requested amount. These fees are recoverable.
`See Central Soya Co. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983) (§ 285
`“include[s] lawyer’s fees for time spent on the issue of attorney fees”). Amazon seeks $425,958.45
`in supplemental fees for 718.1 hours billed for the fees motion.
`“Appeal on Claim Preclusion/Kessler Doctrine”3 includes all work
`c.
`performed in support of Amazon’s response to PersonalWeb’s appeal to Federal Circuit of this
`Court’s March 14, 2019 order granting summary judgment (Dkt. 315). This category includes
`preparing for and presenting oral argument, researching and drafting the response to PersonalWeb’s
`petition for rehearing en banc. As the Court noted in its order granting in part the fees request,
`Amazon is entitled to fees for this appeal because the Federal Circuit has already denied
`PersonalWeb’s petition for rehearing en banc. (Dkt. 648 at 22.) Amazon seeks $98,019.07 in
`supplemental fees for the 146.5 hours billed for the appeal regarding the Kessler doctrine.
`“Appeal on Claim Construction and Non-Infringement” includes all
`d.
`work performed in support of Amazon’s response to PersonalWeb’s appeal to the Federal Circuit
`of this Court’s February 3, 2020 order granting summary judgment (Dkt. 578) and its claim
`construction order, including research, briefing, and preparing for oral argument. Amazon seeks
`$106,291.43 in supplemental fees for the 169.7 hours billed for the second appeal.
`“Case Management” includes team conferences to discuss strategy,
`e.
`correspondence with the clients, Amazon customers, and joint defense counsel; drafting a joint
`statement regarding resolution of the matter and a proposed judgment in response to the Court’s
`
`3 The original fee motion described this category as “Federal Circuit Appeal” because
`PersonalWeb’s separate appeal concerning the Court’s summary judgment order on non-
`infringement had not begun in earnest.
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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`Case 5:18-md-02834-BLF Document 649 Filed 03/11/21 Page 7 of 8
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`second summary judgment order; docketing and calendar review; and filing any required forms
`with the Federal Circuit and responding to notices from the clerk. These fees were necessary to
`achieve final resolution of this matter for not only Amazon, but all the indemnified Amazon
`customers and third parties represented by joint defense counsel. The Court has already held that
`PersonalWeb’s conduct in this highly complex matter “support[s] Amazon’s need for significant
`case management efforts.” (Dkt. 648 at 12.) Accordingly, Amazon seeks $63,978.92 in
`supplemental fees for the 83.1 hours billed for case management.
`12. Where time entries that involved more than one task, the team reviewed the entries
`allocated the time based on their good faith estimate of the time spent per task. (Dkt. 646-1 ¶ 14;
`id. Ex. 18.) At the Court’s request, Amazon can provide a copy of the supplemental spreadsheet
`showing all such allocations.
`13.
`The final amount provided for each category above was calculated by applying the
`relevant discounts against each line item on the invoices, resulting at times in fractional cents. Thus,
`subtotals for each category may be off by a matter of cents, and Amazon has reduced its request by
`$100 to $694,147.86 to ensure that it more than accounts for any rounding errors.
`14.
`Amazon also incurred $11,120.97 in non-taxable costs. These costs are related to
`litigating this case, such as data hosting fees (including fees required for hosting and reviewing
`documents as part of the discovery dispute over the attorney fee motion); chambers copies;
`transcript order fees; copying fees; and fee paid to a graphics consultant for preparing the
`presentation provided at the August 6, 2020 fees motion hearing. The specific charges appear in
`Fenwick’s monthly invoices identified above with this declaration. Certain invoices contain entries
`for negative dollar amounts, that reflect reimbursements to Amazon for duplicate payments. These
`cause the “total” amount of costs in an invoice to appear lower than what Amazon actually incurred.
`The negative entries have not been factored into this request. A summary of the costs for which
`Amazon requests reimbursement is included as Exhibit C.
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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`Case 5:18-md-02834-BLF Document 649 Filed 03/11/21 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 San Francisco, California on this 11th day of March 2021.
`
`Todd R. Gregorian
`
`
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`SUPPL. GREGORIAN DECL. PURSUANT TO COURT
`ORDER [DKT 647]
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