Case 5:18-md-02834-BLF Document 656 Filed 04/19/21 Page 1 of 4
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`Case No. 18-md-02834-BLF
`
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION FOR
`ADDITIONAL ATTORNEYS’ FEES
`
`
`
`Case No.: 5:18-cv-00767-BLF
`
`
`
`Case No.: 5:18-cv-05619-BLF
`
`
`
`IN RE: PERSONALWEB
`TECHNOLOGIES, LLC ET AL., PATENT
`LITIGATION
`
`
`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.
`
`
`
`
`On March 2, 2021, the Court issued its Order Granting in Part and Denying in Part Motion
`
`for Attorneys’ Fees and Costs. ECF 648. On March 11, 2021, Defendants Amazon.com, Inc.,
`
`Amazon Web Services, Inc., and Twitch Interactive filed a supplemental declaration in support of
`
`their request for additional attorneys’ fees incurred between February 2020 and February 2021. ECF
`
`649. Defendants seek a total of $694,147.86 in attorneys’ fees for 1117.4 hours of work in five
`
`different categories along with $11,120.97 in costs. Id. ¶¶ 13-14, Exhs. B-C. Plaintiff PersonalWeb
`
`Technologies, LLC opposes this request as to three fee categories. ECF 654. The Court has already
`
`found this case exceptional under 35 U.S.C. § 285 and awarded Defendants partial fees for work
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-md-02834-BLF Document 656 Filed 04/19/21 Page 2 of 4
`
`
`
`pre-dating February 2020. See ECF 559; 648. The Court now turns to Defendants’ supplemental
`
`request and Plaintiff’s opposition.
`
`A. Summary Judgment on Non-Infringement
`
`Although Defendants identify $4,460.42 in fees for 7.7 hours of work in this category, they
`
`clearly state that they are not seeking supplemental fees for this task. ECF 649 ¶11(a).
`
`PersonalWeb’s request to lower the recoverable amount in this category is unnecessary.
`
`B. Federal Circuit Appeal on Claim Construction and Non-Infringement
`
`Defendants request $106,291.43 in fees for 169.7 hours of work related to Plaintiff’s appeal
`
`of the Court’s February 3, 2020 order. ECF 649 ¶ 11(d) (fee request); ECF 578 (order); ECF 587
`
`(notice of appeal). In that order, the Court denied Amazon’s motion for judgment on the pleadings
`
`for lack of standing; granted Amazon’s motion for summary judgment of non-infringement; denied
`
`Amazon’s motion for summary judgment on the alternative ground that PersonalWeb lacked
`
`standing; granted Twitch’s motion for summary judgment of non-infringement; and denied Twitch’s
`
`motion to exclude the testimony of Erik de la Iglesia as moot. ECF 578 at 2. Plaintiff now argues
`
`that the Court should deny all fees in this category as Plaintiff’s misconduct is not a “but for” cause
`
`of this appeal. ECF 654 at 2-3.
`
`In their initial fee motion, Defendants requested fees related to claim construction and
`
`summary judgment for non-infringement. The Court reduced both requests by 25%. ECF 648 at 18-
`
`19, 21. However, the Court’s decision on claim construction was based in part on Plaintiff’s attempts
`
`to work around the Court’s claim construction ruling—misconduct that would not be implicated in
`
`the pending Federal Circuit appeal. See also ECF 636 at 14 (“PersonalWeb made reasonable, albeit
`
`unsuccessful, arguments that the terms authorized/unauthorized or licensed/unlicensed should be
`
`given their plain and ordinary meaning.”). And its decision on summary judgment for non-
`
`infringement was based on the agreement of the parties. More importantly, it is possible Plaintiff
`
`will win on appeal. The Court declines at this juncture to award Defendants fees related to the
`
`appeal. See Phigenix, Inc. v. Genentech Inc., No. 15-CV-01238-BLF, 2019 WL 2579260, at *18
`
`(N.D. Cal. June 24, 2019). This request is dismissed without prejudice to Defendants’ moving again
`
`for fees on this basis if it succeeds on appeal. As such, the Court reduces Defendants’ fee request
`
`2
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-md-02834-BLF Document 656 Filed 04/19/21 Page 3 of 4
`
`
`
`by $106,291.43 in fees and 169.7 hours.
`
`C. Case Management
`
`Defendants request $63,978.92 in fees for 83.1 hours of work. ECF 649 ¶ 11(e). Plaintiff
`
`requests that the Court reduce these fees by 25%. ECF 654 at 4. The Court agrees with Plaintiff that
`
`a 25% reduction is appropriate here. This Court found that a 25% reduction was warranted when
`
`considering Defendants’ original request for case management fees:
`
`
`Amazon’s request requires a haircut. Although it is particularly
`difficult to attribute case management activities to the particular
`misconduct present in this case, PersonalWeb’s ever-shifting
`infringement theories—S3, Ruby on Rails, the late emergence of
`CloudFront and complete abandonment of Ruby on Rails, and,
`finally, PersonalWeb’s extraordinary declaration that Twitch was
`not a representative customer case only fifteen months after insisting
`just the opposite—support Amazon’s need for significant case
`management efforts. Thus, the Court will reduce case management
`fees by 25% to reflect a fair reduction related to otherwise necessary
`activities.
`
`
`ECF 648 at 12. Nothing in Defendants’ request counsels that the Court reach a different outcome
`
`now. Even accepting that later phases of the litigation were less infected by Plaintiff’s shifting
`
`infringement theories, a review of billing entries reveals that Defendants request fees for time
`
`unrelated to Plaintiff’s misconduct. See, e.g., ECF 649, Exh. A at 33, 55 (entries related to Plaintiff’s
`
`motion for protective order, Defendants’ fee request). As such, the Court reduces the lodestar by
`
`$15,994.73 in fees and 20.78 hours. Defendants are entitled to $47,984.19 in fees for 62.33 hours of
`
`work in this category.
`
`D. Other Fees and Costs Requested
`
`Defendants request reimbursement for additional fees in the amount $98,019.07
`
`incurred defending the appeal of the Claim Preclusion/Kessler Doctrine and $425,958.45 incurred
`
`for presentation of the attorneys’ fee motion. PersonalWeb does not contest the reasonableness of
`
`these amounts and the Court agrees that the request is reasonable in light of the work performed
`
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:18-md-02834-BLF Document 656 Filed 04/19/21 Page 4 of 4
`
`
`
`and the skill required. The requested amounts will be granted. Further, Defendants’ request for
`
`$11,120.97 in non-taxable costs is unopposed and approved.
`
`***
`
`For the foregoing reasons, Defendants’ motion for additional attorneys' fees is GRANTED
`
`IN PART AND DENIED IN PART. The Court finds that Defendants are entitled to $571,961.71 in
`
`fees for 926.92 hours of work and $11,120.97 in non-taxable costs.
`
`IT IS SO ORDERED.
`
`
`Dated: April 19, 2021
`
`
`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`Northern District of California
`
`United States District Court
`
`