Case 5:18-md-02834-BLF Document 922 Filed 12/15/23 Page 1 of 28
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE PERSONALWEB
`TECHNOLOGIES, LLC, ET AL., PATENT
`LITIGATION
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`Case No. 18-md-02834-BLF
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`Case No. 18-cv-00767-BLF
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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,
`et al.,
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`Case No. 18-cv-05619-BLF
`
`
`ORDER GRANTING IN PART AND
`DENYING IN PART AMAZON’S
`MOTION FOR FURTHER
`SUPPLEMENTAL FEES
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`Re: ECF No. 880 (Case No. 18-md-02834)
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`Defendants.
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`Re: ECF No. 375 (Case No. 18-cv-00767)
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`PERSONALWEB TECHNOLOGIES, LLC,
`et al.,
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`
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`Re: ECF No. 280 (Case No. 18-cv-05619)
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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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`Pending before the Court is Amazon.com, Inc., Amazon Web Services, Inc., and Twitch
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`Interactive, Inc.’s (collectively, “Amazon”) Motion for Further Supplemental Fees (the “Motion”).
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`See Mot., ECF No. 880.1 Amazon seeks attorney fees and costs from PersonalWeb Technologies,
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`LLC (“PersonalWeb”) for work performed between March 2021 and March 2023. See id. at 1.
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`PersonalWeb disputes the majority of the fees. See Corrected Opp’n (“Opp’n”), ECF No. 889-1.
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`The Court heard oral argument on the Motion on November 16, 2023. Having considered the
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`parties’ written submissions and oral arguments, the Court GRANTS IN PART and DENIES IN
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`1 All ECF citations refer to the docket of the lead case, In re PersonalWeb Technologies Patent
`Litigation, No. 18-md-2834 (N.D. Cal.).
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`Case 5:18-md-02834-BLF Document 922 Filed 12/15/23 Page 2 of 28
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`
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`PART the Motion, for the reasons described below.
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`I.
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`BACKGROUND
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`This multi-district litigation stems from PersonalWeb filing dozens of suits in 2018 against
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`Amazon and a bevy of its customers, in which it asserted patent infringement claims that this
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`Court has found—in an order affirmed by the Federal Circuit—were objectively baseless and not
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`reasonable when brought. See Order Re Exceptional Case 33, ECF No. 636; In re PersonalWeb
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`Techs. LLC, 85 F.4th 1148, 1154–57 (Fed. Cir. 2023). The Court granted Amazon’s motions for
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`summary judgment in two phases, and by February 3, 2020, Amazon had won on summary
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`judgment as to all claims. See ECF Nos. 394, 578. The Court entered judgment against
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`PersonalWeb in the MDL action and all member cases on October 28, 2020. See J., ECF No. 643.
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`The Court then entered an amended judgment on July 27, 2021, that incorporated fees and costs
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`awarded by the Court in orders issued on March 2, 2021, and April 19, 2021. See Am. J., ECF
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`No. 708; see also infra, at Part I(A).
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`A.
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`Prior Requests for Attorney Fees and Costs
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`Amazon moved for attorney fees and costs for the first time in March 2020. See ECF No.
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`593. The Court granted that motion in October 2020, reasoning that the case was exceptional
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`because:
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`(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 Re Exceptional Case 33. On March 2, 2021, following additional briefing requested by the
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`Court on whether the fees requested by Amazon were reasonable, the Court awarded Amazon over
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`$4.6 million in attorney fees and $203,300.10 in non-taxable costs for work performed from
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`January 2018 through January 2020. See First Fee Award 9, 30, ECF No. 648.
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`On March 11, 2021, Amazon filed a supplemental declaration in support of a request for
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`additional attorney fees incurred from February 2020 through February 2021. See ECF No. 649.
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`On April 19, 2021, the Court granted in part and denied in part the additional attorney fee request.
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`See Second Fee Award, ECF No. 656. With respect to one category of fees—Amazon’s work
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`related to PersonalWeb’s appeal of the Court’s final summary judgment order, for which it
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`requested $106,291.43—the Court declined to award fees while the appeal was pending, and
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`denied the request without prejudice to Amazon moving again for the same fees. See id. at 2–3.
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`After excluding this amount and applying certain other reductions to the requested fees, the Court
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`awarded Amazon $571,961.71 in fees and $11,120.97 in non-taxable costs. See id. at 4.
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`Accordingly, the Amended Judgment entered on July 27, 2021, incorporated these fee and
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`cost awards, as well as post-judgment interest accrued through July 14, 2021, and amounted to
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`$5,403,122.68. See Am. J. 3.
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`B.
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`PersonalWeb’s Actions Following Fee Awards
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`The parties agree that, to date, PersonalWeb has not paid any portion of the judgment
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`entered against it. See, e.g., Mot. 10. Instead, mere days after the Court issued the second of its
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`two orders awarding fees and costs on April 19, 2021, PersonalWeb commenced two procedural
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`tracks through which it attempted to circumvent this Court’s jurisdiction over post-judgment
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`proceedings. First, on April 22, 2021, PersonalWeb took the position that it was not represented
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`by counsel with respect to Amazon’s attempts to secure or enforce any monetary award. See ECF
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`No. 661-1. Over the next 16 months, PersonalWeb continued to stymie Amazon’s efforts to
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`enforce the judgment by instructing its then-counsel to file no fewer than seven motions to
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`withdraw or substitute counsel and notices of a purported substitution of counsel—with no
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`substitute counsel ever properly identified, see ECF Nos. 674, 678, 679, 683, 688, 728, 7672—
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`until at last PersonalWeb had its new counsel file a sufficient notice of appearance on August 8,
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`2022, see ECF No. 770.
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`Second, on April 27, 2021, PersonalWeb’s principals and secured creditors filed suit in
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`2 Amazon states that PersonalWeb’s then-counsel attempted to withdraw six times, see Mot. 6, but
`appears not to have counted the notice of withdrawal filed on August 2, 2022, see ECF No. 767,
`which the Court denied and struck for noncompliance with its prior orders, see ECF No. 769.
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`California state court to place PersonalWeb into a receivership. See ECF No. 717-2.
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`Unsurprisingly, PersonalWeb made no objection to the receivership, and the state court appointed
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`a receiver on May 10, 2021. See ECF Nos. 717-4, 717-6, 747-4. PersonalWeb then stipulated to
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`the entry in state court of an order stating that the state court possessed exclusive jurisdiction over
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`PersonalWeb’s property and assets, and enjoining PersonalWeb’s judgment holders from
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`enforcing any judgment against PersonalWeb. See ECF No. 717-6. Next, PersonalWeb
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`repeatedly attempted to use the state court’s receivership jurisdiction to assert that this Court
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`lacked jurisdiction to oversee the enforcement of its judgment, see, e.g., ECF No. 728, forcing the
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`Court to issue an order directing PersonalWeb’s counsel to obtain precise confirmation from the
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`receiver that the receiver would authorize PersonalWeb to retain and compensate counsel for the
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`ongoing proceedings in this Court, see ECF No. 760. Within one month of the Court’s order,
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`PersonalWeb provided the Court a written response from the receiver confirming that the receiver
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`was authorized to pay attorney fees for PersonalWeb’s counsel in this action and would in fact pay
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`such fees for as long as funding was available. See ECF No. 766.
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`In response to these actions, Amazon has served post-judgment discovery on
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`PersonalWeb; twice requested the Court compel compliance with its discovery requests; and
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`intervened in the state court receivership action. See Mot. 6–7; see also, e.g., Decl. of Todd R.
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`Gregorian (“Gregorian Decl.”) ¶ 22, ECF No. 873.
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`C.
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`Appeals in This Action
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`In addition, over the course of this action, PersonalWeb has timely appealed this Court’s
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`two summary judgment rulings, its claim construction ruling, and its prior awards of attorney fees
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`and costs. See Mot. 3–6. The Federal Circuit upheld the Court’s first summary judgment ruling in
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`2020; PersonalWeb then petitioned the Supreme Court for certiorari on April 2, 2021, see
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`PersonalWeb Techs., LLC v. Patreon, Inc., No. 20-1394, 2021 WL 1298201 (S. Ct. Apr. 2, 2021),
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`and, following briefing, the Supreme Court denied certiorari in May 2022, see 142 S. Ct. 2707
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`(2022) (Mem.). PersonalWeb appealed the second summary judgment ruling and claim
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`construction ruling in March 2020, see ECF No. 587, and the Federal Circuit upheld both rulings
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`in August 2021, see ECF Nos. 709, 710. PersonalWeb also appealed the Court’s order awarding
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`attorney fees and costs of $5,401,625.06; the Federal Circuit affirmed that ruling on November 3,
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`2023. See In re PersonalWeb Techs. LLC, 85 F.4th at 1164.
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`D.
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`The Present Motion
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`Amazon requests $2,856,570.62 in attorney fees and $193,299.37 in costs for work
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`performed between March 2021 and March 2023. See Not. of Revised Fees, Exh. A (“Total Fee
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`Chart”), ECF No. 914. The path to these numbers involved a series of filings. On May 5, 2023,
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`Amazon submitted declarations from counsel for Fenwick & West, LLP (“Fenwick”), Steptoe
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`Johnson LLP (“Steptoe”), and Paul Hastings LLP (“Paul Hastings”) regarding a further request for
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`supplemental fees for work performed between March 2021 and March 2023, but did not file an
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`underlying fee motion with the declarations. See Gregorian Decl.; Decl. of Steven K. Davidson
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`(“Davidson Decl.”), ECF No. 874; Declaration of Stephen B. Kinnaird (“Kinnaird Decl.”), ECF
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`No. 875. The Gregorian Declaration included a fee chart and cost chart. See Gregorian Decl.,
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`Exhs. B–C, ECF Nos. 873-5, 873-6. The Court ordered Amazon to file a motion for supplemental
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`fees, see ECF No. 876, after which Amazon filed the pending Motion, although it did not include
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`further declarations or a cost chart, and its attached fee chart—which categorized the requested
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`fees into Federal Appeals (Fees); Federal Appeals (Other); Post-Judgment Enforcement; State
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`Court Judgment Enforcement; and Case Management—did not indicate total hours per category or
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`the full sum of attorney fees requested by Amazon. See Mot., Exh. A, ECF No. 880-1. The
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`Motion initially requested over $3.13 million in fees for work performed from March 2021 to
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`March 2023; $106,291.43 in previous appeal fees incurred between February 2020 and February
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`2021; and $193,605.69 in costs (which was not mentioned in the Motion, which merely referenced
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`“further supplemental . . . costs as set forth in [Amazon’s] declarations”). See Mot. 1, 10.
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`After PersonalWeb filed its opposition to the Motion, Amazon filed a notice of revisions to
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`its Motion to withdraw over $340,000 of fees and costs incurred in connection with opposing two
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`anti-SLAPP motions in state court. See Anti-SLAPP Not., ECF No. 893. The notice included a
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`revised fee chart—which used the same categories as the prior chart and still provided no totals—
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`and cost chart. See id. at Exh. B (“Final Hourly Chart”), ECF No. 893-5; Exh. C (“Cost Chart”),
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`ECF No. 893-6. Amazon then filed a reply in support of its motion, which stated in an
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`accompanying declaration—though not in the reply brief—that Amazon was further withdrawing
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`nearly $37,000 of attorney fees incurred in connection with litigation of alter ego issues in state
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`court, but did not include a revised fee chart reflecting the change in Amazon’s fee request. See
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`Reply, ECF No. 903; Decl. of Todd. R. Gregorian in Supp. of Reply (“Gregorian Reply Decl.”) ¶¶
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`2–8, ECF No. 903-1.
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`At the hearing on the Motion, the Court requested that Amazon submit a chart reflecting
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`the total amounts it requested per fee category, and that Amazon subdivide the category of
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`“Federal Appeals (Other)” to inform the Court of the amount requested for each appeal. The
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`Court additionally instructed PersonalWeb to file a supplemental opposition detailing its
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`objections to fees incurred in federal court that PersonalWeb asserts were incurred in pursuit of
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`alter ego claims. PersonalWeb submitted its supplemental opposition on November 21, 2023, see
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`Supple. Opp’n, ECF No. 910; Amazon submitted its fee chart on November 28, 2023, see Total
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`Fee Chart; and Amazon filed a supplemental reply regarding the alter ego issue on December 5,
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`2023, see Suppl. Reply, ECF No. 919. Amazon’s Total Fee Chart divides the “Federal Appeals
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`(Other)” category into two appeals—one on the Kessler issue and the other on non-infringement
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`and claim construction—but additionally states that over $52,000 in fees previously ascribed to
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`“Federal Appeals (Other)” is in fact attributable to “Fees on Fees” (previously termed “Federal
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`Appeals (Fees)”), and that over $57,000 previously also ascribed to “Federal Appeals (Other)” is
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`attributable to the state court receivership proceedings. See Total Fee Chart 1 nn.3–4.3 Despite
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`having made large changes to the requested fee amounts in multiple categories outside of those
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`initially described as “Federal Appeals (Other),” Amazon did not submit a revised fee chart
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`informing the Court of the timekeepers and number of hours applicable to each category.
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`II.
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`LEGAL STANDARD
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`“The court in exceptional cases may award reasonable attorney fees to the prevailing
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`party.” 35 U.S.C. § 285. “District courts may determine whether a case is ‘exceptional’ in the
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`3 The Total Fee Chart states that these fees were previously categorized as “Federal Appeals,” but
`the prior charts had no such standalone category, and the Court has traced the shifting fee amounts
`to the “Federal Appeals (Other)” category.
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`Case 5:18-md-02834-BLF Document 922 Filed 12/15/23 Page 7 of 28
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`case-by-case exercise of their discretion, considering the totality of the circumstances.” Octane
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`Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554, (2014); see also Eon-Net LP v.
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`Flagstar Bancorp, 653 F.3d 1314, 1324 (Fed. Cir. 2011) (“[W]e are mindful that the district court
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`has lived with the case and the lawyers for an extended period.”). “The legislative purpose behind
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`§ 285 is to prevent a party from suffering a ‘gross injustice,’” and not to punish a party for losing.
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`Checkpoint Sys., Inc. v. All-Tag Sec. S.A., 858 F.3d 1371, 1376 (Fed. Cir. 2017); see also Octane
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`Fitness, 572 U.S. at 548 (noting fees not awarded “as a penalty for failure to win a patent
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`infringement suit”) (citation omitted). Although § 285 “imposes no specific evidentiary burden,
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`much less such a high one” as a clear and convincing evidence standard, the Supreme Court has
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`noted that patent infringement litigation is generally governed by a preponderance of the evidence
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`standard. Octane Fitness, 572 U.S. at 557.
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`The Federal Circuit has recognized that although civil litigation “often includes numerous
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`phases,” a case “should be viewed more as an ‘inclusive whole’ rather than as a piecemeal process
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`when analyzing fee-shifting under § 285.” Therasense, Inc. v. Becton, Dickinson & Co., 745 F.3d
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`513, 516 (Fed. Cir. 2014) (quoting Comm’r, I.N.S. v. Jean, 796 U.S. 154, 161–62 (1990)). Not
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`only does a district court possess the “inherent equitable power to make whole a party injured by
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`an egregious abuse of the judicial process,” but “Congress enacted Section 285 to codify in patent
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`cases the ‘bad faith’ equitable exception” to the general rule that parties bear their own fees and
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`costs, and to “authorize[] awards of attorney fees to prevailing defendants ‘to enable the court to
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`prevent a gross injustice to an alleged infringer.’” Mathis v. Spears, 857 F.2d 749, 758 (Fed. Cir.
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`1988) (quoting S. Rep. No. 1503, 79th Cong., 2d Sess. (1946), reprinted in 1946 U.S. Code Cong.
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`Serv. 1386, 1387). Accordingly, Ҥ 285 does not bar the trial court from awarding fees for the
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`entire case, including any subsequent appeals.” Therasense, 745 F.3d at 517 (citing Jean, 496
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`U.S. at 160); see also Rohm & Haas Co. v. Crystal Chem. Co., 736 F.2d 688, 692 (Fed. Cir. 1984)
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`(“Neither § 285 nor its legislative history distinguishes between awarding attorney fees in the
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`district court and in the appellate court.”).
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`III. DISCUSSION
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`Amazon now seeks $2,856,570.62 in fees and $193,299.37 in costs for work undertaken by
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`its attorneys between March 2021 and March 2023. See Mot. 2; Total Fee Chart 1–2. In
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`evaluating Amazon’s request, the Court divides the work into the following categories: (1)
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`Amazon’s defense of PersonalWeb’s petition for certiorari of the Federal Circuit’s decision
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`affirming the Court’s first summary judgment order and of PersonalWeb’s appeal of the Court’s
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`claim construction and second summary judgment orders; (2) Amazon’s pursuit of fees, including
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`defending the appeal of the Court’s fee award; (3) Amazon’s work to enforce the Court’s
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`judgment in federal court; and (4) Amazon’s intervention efforts in state court.4 Within each
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`category, the Court will evaluate both the recoverability of the fee category under the applicable
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`law and, if it determines that some or all of the fees are recoverable, the reasonableness of the
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`requested fees. The Court will then turn to costs.
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`Before doing so, however, the Court notes with grave displeasure that the overriding theme
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`of PersonalWeb’s post-judgment conduct has been one of bad-faith evasion of the Court’s
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`judgment and abuse of due process protections. PersonalWeb’s two-track strategy of attempting
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`to avoid this Court’s jurisdiction, see supra, at Part I(B), has been disgraceful, and as clear an
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`example of bad faith as any that this Court has had the displeasure of observing from the bench.
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`Yet it is but one facet of PersonalWeb’s obvious strategy of litigating this case with “obfuscation,
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`deflection and mischaracterization.” In re PersonalWeb Techs. LLC, 85 F.4th at 1162–63 (quoting
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`Allen Eng’g Corp. v. Bartell Indus., Inc., 299 F.3d 1336, 1357 (Fed. Cir. 2002)).
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`Having noted the context in which the instant Motion arises, the Court now turns to the
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`recoverability and reasonableness of the fees requested by Amazon.
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`A.
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`Appeals of Claim Construction and Summary Judgment Orders
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`Amazon first seeks fees based on (1) PersonalWeb’s petition for certiorari of the Federal
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`Circuit’s decision affirming the Court’s Kessler ruling in its first summary judgment order, see
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`4 The Court recognizes that Amazon has included a “case management” fee category in its various
`fee charts, see, e.g., Final Hourly Chart; Total Fee Chart, and that the declarations preceding the
`Motion discussed these fees, see Gregorian Decl. ¶ 22(e). However, Amazon’s Motion does not
`request case management fees. See generally Mot. The Court informed Amazon that it would not
`act on any fee request without a motion for further supplemental fees for the Court to consider, see
`ECF No. 876, and the Court accordingly does not take notice of Amazon’s case management fees.
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`ECF No. 394, as well as (2) PersonalWeb’s appeal to the Federal Circuit of the Court’s claim
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`construction ruling, see ECF No. 485, and its second summary judgment order on non-
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`infringement, see ECF No. 578. See Mot. 3–5. The Court reviews the latter category first.
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`1.
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`Appeal of Claim Construction and Non-Infringement Orders
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`Amazon requests $3,881.94 in attorney fees for work performed from March 2021 through
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`March 2023 defending PersonalWeb’s appeal of the Court’s claim construction and non-
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`infringement orders, as well as $106,291.43 in attorney fees for 169.7 hours of work that the Court
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`previously denied without prejudice prior to the Federal Circuit’s decision on appeal, for a total of
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`$110,173.37. See Total Fee Chart 1; Second Fee Award 2–3. PersonalWeb does not dispute the
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`recoverability of Amazon’s fees for this category of work,5 nor the reasonableness of counsel’s
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`fees except with respect to Amazon’s post-judgment enforcement efforts. See generally Opp’n.
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`The Court has already found this case to be exceptional under § 285 and awarded fees for
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`prior work incurred in connection with the claim construction and non-infringement, and the
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`Federal Circuit has affirmed both the exceptionality finding and the awarded fees. See generally
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`Order Re Exceptional Case; see also First Fee Award 18–21; In re PersonalWeb Techs. LLC, 85
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`F.4th at 1162–63. Having found the case exceptional, so that the requested fees are recoverable,
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`the Court further finds that Amazon’s request is reasonable in light of the work performed and
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`skill required in successfully opposing PersonalWeb’s appeal on claim construction and non-
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`infringement. The Court will grant the requested attorney fees of $110,173.37.
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`2.
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`Petition for Certiorari Regarding Kessler Ruling
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`Amazon next requests $499,017.28 in fees for its work on the Kessler issue. See Total Fee
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`Chart 1. The Court previously found that the fees Amazon incurred in connection with its motion
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`for summary judgment on claim preclusion and Kessler doctrine issues, including its defense of
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`PersonalWeb’s appeal to the Federal Circuit of the order on these issues, were recoverable under
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`35 U.S.C. § 285 because Amazon would not have incurred these fees but for the exceptional
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`5 Although PersonalWeb states that it opposes Amazon’s request for $612,871.22—the original
`amount requested for the “Federal Appeals (Other)” category, which included the claim
`construction and non-infringement appeal, see Gregorian Decl., Exh. B—its argument only
`concerns the Kessler issue. See Opp’n 8–9.
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`nature of PersonalWeb’s decision to bring claims that were “objectively baseless and clearly
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`untenable” in light of the Federal Circuit’s Kessler doctrine. See Order Re Exceptional Case 13;
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`First Fee Award 16; Second Fee Award 3–4. Amazon argues that the Court should maintain a
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`consistent approach and grant the requested fees. PersonalWeb counters that the Kessler fees are
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`not recoverable under § 285 because events subsequent to the Court’s entry of the Second Fee
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`Award—including a Delaware district court’s decision disagreeing with the Court’s Kessler
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`analysis and the Supreme Court’s call for the views of the Solicitor General regarding
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`PersonalWeb’s petition for certiorari—indicate that PersonalWeb’s Kessler position was not
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`objectively baseless, so that its conduct was not exceptional within the meaning of § 285. See
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`Opp’n 8–9.
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`a.
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`Recoverability
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`In the time since PersonalWeb filed its opposition (and therefore also subsequent to the
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`events PersonalWeb characterizes as rendering its conduct unexceptional), the Federal Circuit has
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`affirmed the fees awarded by the Court in the First Fee Award and Second Fee Award, including
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`those related to Amazon’s work on PersonalWeb’s appeal to the Federal Circuit of the Court’s
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`Kessler ruling. See In re PersonalWeb Techs. LLC, 85 F.4th at 1154–62 (affirming finding that
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`case was exceptional for five reasons, one of which was that PersonalWeb’s claims were
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`objectively baseless under Kessler and should not have been brought). In its decision, the Federal
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`Circuit also held that it did not “matter that, on appeal to the Supreme Court of [the Kessler
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`ruling], Solicitor General views were sought” because “[t]his is a common occurrence.” Id. at
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`1156. Accordingly, the Court finds that Amazon’s fees incurred in relation to PersonalWeb’s
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`petition for certiorari in continued pursuit of its Kessler arguments are recoverable under § 285.
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`b.
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`Reasonableness
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`As noted above, PersonalWeb does not contest the reasonableness of Amazon’s attorney
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`fees outside of the post-judgment enforcement context. See supra, at Part III(A)(1). In reviewing
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`Amazon’s request, the Court notes that Amazon’s decision to move over $100,000 in fees from
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`the “Federal Appeals (Other)” category to the “Fees on Fees” and “State Court Receivership
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`Proceeding” categories, see supra, at Part I(D), without providing an updated chart of hours and
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`timekeepers, means that the Court is largely unable to determine which timekeeper hours even
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`roughly make up the $499,017.28 in fees now requested. It is not the Court’s duty to review
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`several hundreds of pages of billing sheets and determine which lines relate to which category of
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`work. It appears, however, that Amazon retained Paul Hastings to represent it before the Supreme
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`Court on this matter, and that Paul Hastings attorneys were Supreme Court specialists who did not
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`perform other work in this matter. See Gregorian Decl. ¶ 7; Kinnaird Decl. ¶¶ 1–5. Paul Hastings
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`attorneys performed 121.5 hours of work at a $1,500 hourly rate, and 37.7 hours at a $725 hourly
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`rate, for a total of $209,582.50 in fees. See Final Hourly Chart 1–2. The attorneys’ work
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`encompassed devising appellate strategy, developing legal arguments, drafting pleadings, and
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`coordinating and reviewing work. See Kinnaird Decl. ¶¶ 4(a)–(b). The Court finds the hours
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`worked by the Paul Hastings attorneys, as well as the hourly rates, to be reasonable in light of the
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`work performed and specialization and skill required for a Supreme Court practice.
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`The Court is unable to discern from Amazon’s submissions what other hours and
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`corresponding fees were incurred in connection with the petition for certiorari. The only other
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`discussion of these fees notes merely that the “Federal Appeals (Other)” category includes the
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`Supreme Court appeal as well as the Federal Circuit appeals of the Kessler ruling and the non-
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`infringement ruling, and that the tasks performed “include legal research and preparation of appeal
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`briefs and other court submissions, client correspondence, and related conferences.” Gregorian
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`Decl. ¶ 22(b). This information, without a clearer picture of the actual hours worked on the
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`petition for certiorari, does not provide the Court with a sufficient basis for a further award. See In
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`re Rembrandt Techs. LP Patent Litig., 899 F.3d 1254, 1279 (Fed. Cir. 2018) (“[A]ttorney fees
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`under § 285 are compensatory, not punitive. . . . In such a statutory sanction regime, a fee award
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`may go no further than to redress the wronged party for losses sustained.”) (alterations, quotation
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`marks, and internal citations omitted).
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`Accordingly, the Court will grant Amazon $209,582.50 for attorney fees incurred due to
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`PersonalWeb’s petition for certiorari of the Kessler ruling.
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`B. Motions and Appeals Regarding Fee Awards
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`Amazon next requests $344,990.62 in attorney fees incurred in seeking fees, including
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`responding to PersonalWeb’s appeal of the fees previously awarded by the Court. See Mot. 5–6;
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`Total Fee Chart 1. Amazon’s initial request was for $292,505.92 for its fee appeal, but it informed
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`the Court in its Total Fee Chart that it is now including another $52,484.70 previously categorized
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`as “Federal Appeals (Other).” See Total Fee Chart 1 & n.3. PersonalWeb’s only opposition
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`argument for this category of fees was that no award should be granted while the fee appeal was
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`pending. See Opp’n 3. However, as the Court has noted, the Federal Circuit has since affirmed
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`the previous fee awards. See In re PersonalWeb Techs. LLC, 85 F.4th at 1163.
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`As the Court has previously held, § 285 permits recovery of fees for time spent on the
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`issue of attorney fees. See First Fee Award 23 (citing, e.g., Central Soya Co. v. Geo. A. Hormel &
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`Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983)); see also Second Fee Award 3–4. The Court has
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`determined from Amazon’s submissions that its attorneys spent 481.9 hours on the fee appeal,
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`making up the initial fee request of $292,505.92. See Final Hourly Chart 1–2. The Court is
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`unable to determine how many hours make up the additional $52,484.70 in requested fees that
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`Amazon shifted from a different category, and in any event finds 481.9 hours to be reasonable in
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`light of the work required. Accordingly, the Court will award Amazon $292,505.92 in attorney
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`fees for its work incurred in pursuing fees.
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`C.
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`Post-Judgment Enforcement in Federal Court
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`Amazon requests $1,164,436.67 in fees for 1,979.4 hours of work performed before this
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`Court between March 2021 and March 2023 related to Amazon’s attempts to enforce the
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`Amended Judgment. See Mot. 6–7; Final Hourly Chart 1–2; Total Fee Chart 1. The work
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`encompassed in this fee request includes:
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`post-judgment discovery, subpoenas to related third-party entities,
`motion practice, case management conference statements, opposing
`Stubbs Alderton & Markiles LLP’s numerous motions to withdraw as
`counsel, other pleadings, court appearances, . . . team conferences to
`discuss strategy, correspondence with the clients, review of
`PersonalWeb and
`its
`investors’ document productions, and
`preparation of court submissions.
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`Gregorian Decl. ¶ 22(c). Unlike the fees discussed above, which were incurred in connection with
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`PersonalWeb’s appeals and Amazon’s pursuit of fees, see supra, at Parts III(A)–(B), the Court has
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`not previously determined whether fees Amazon incurred for post-judgment enforcement work are
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`Case 5:18-md-02834-BLF Document 922 Filed 12/15/23 Page 13 of 28
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