Case 3:18-cv-00347-CAB-MDD Document 254-2 Filed 01/29/20 PageID.22944 Page 1 of 5
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`NIMALKA R. WICKRAMASEKERA (SBN: 268518)
`nwickramasekera@winston.com
`DAVID P. DALKE (SBN: 218161)
`ddalke@winston.com
`LEV TSUKERMAN (SBN: 319184)
`ltsukerman@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile: (213) 615-1750
`
`BRIAN J. NISBET (Pro Hac Vice)
`bnisbet@winston.com
`SARANYA RAGHAVAN (Pro Hac Vice)
`sraghavan@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601-9703
`Telephone: (312) 558-5600
`Facsimile: (312) 558-5700
`
`CORINNE STONE HOCKMAN (Pro Hac Vice)
`chockman@winston.com
`WINSTON & STRAWN LLP
`1111 Louisiana Street, 25th Floor
`Houston, TX 77002-5242
`Telephone: (713) 651-2600
`Facsimile: (713) 651-2700
`
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. AND ALPHATEC SPINE, INC.
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO DIVISION
`Case No. 3:18-CV-00347-CAB-MDD
`NUVASIVE, INC., a Delaware
`corporation,
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`[Assigned to Courtroom 4C – Honorable
`Cathy Ann Bencivengo]
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`DECLARATION OF BRIAN J.
`v.
`NISBET IN SUPPORT OF
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`DEFENDANTS’ MOTION FOR FEES
`ALPHATEC HOLDINGS, INC., a
`AND COSTS
`Delaware corporation and ALPHATEC
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`SPINE, INC., a California corporation,
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`Defendants.
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`DECLARATION OF BRIAN J. NISBET ISO ALPHATEC’S
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`MOTION FOR FEES AND COSTS
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 254-2 Filed 01/29/20 PageID.22945 Page 2 of 5
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`I, Brian J. Nisbet, declare as follows:
`1.
`I am a partner with the law firm of Winston & Strawn LLP, counsel of
`record for Defendants Alphatec Holdings, Inc. and Alphatec Spine, Inc. (individually
`and collectively, “Alphatec”). I have personal knowledge of the following facts and, if
`called as a witness, I could and would testify competently thereto.
`2.
`Exhibit 1 is a true and correct copy of the transcript of the hearing on
`NuVasive’s motion dated December 12, 2019.
`3.
`Exhibit 2 is a true and correct copy of the invoice reflecting the fees and
`costs Alphatec incurred in responding to NuVasive’s motion in December 2019 (Doc.
`No. 218.)
`4.
`On December 12, 2019, the Court denied NuVasive’s Ex Parte Motion for
`Protective Order and Appointment of Special Master. (Doc. No. 232.) The Court also
`sanctioned NuVasive and awarded Alphatec its fees and costs associated with
`responding to NuVasive’s motion. (Doc. No. 232.)
`5.
`Over the past several weeks, I have attempted in good faith to resolve the
`fees and costs dispute between Alphatec and NuVasive with Mike Hilgers of Hilgers
`Graben PLLC. Mr. Hilgers is counsel for NuVasive. Though the dialogue was
`productive, NuVasive ultimately failed or refused to provide any offer to settle the issue
`of Alphatec’s fees and costs.
`6.
`I summarize below the time I have spent negotiating on behalf of Alphatec,
`which is in addition to the time reflected in Exhibit 2.
`7.
`On December 13, 2019, Mr. Hilgers contacted me by telephone on behalf
`of NuVasive to see whether there would be potential interest in resolving the sanctions
`dispute between Alphatec and NuVasive. We spoke for approximately 6 minutes.
`8.
`On January 6, 2020, I spoke with Mr. Hilgers for approximately 10 minutes
`to relay the fees and costs Alphatec incurred in responding to NuVasive’s motion. I
`also spoke with Mr. Craig Hunsaker, Alphatec’s General Counsel, for approximately
`25 minutes about resolving the sanctions dispute.
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`DECLARATION OF BRIAN J. NISBET ISO ALPHATEC’S
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`MOTION FOR FEES AND COSTS
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`CASE NO. 3:18-CV-00347-CAB-MDD
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`9.
`On January 8, 2020, I spoke with Mr. Hilgers for approximately 17 minutes
`and continued negotiations over the fees and costs dispute.
`10. On January 10, 2020, I spoke with Mr. Hilgers for approximately 1 hour
`and continued negotiations over the fees and costs dispute. I also spoke again with Mr.
`Hunsaker about this issue for approximately 10 minutes.
`11. On January 13, 2020, I spoke with Mr. Hilgers for approximately 10
`minutes and continued negotiations over the fees and costs dispute. I also spoke again
`with Mr. Hunsaker about this issue for approximately 10 minutes.
`12. On January 15, 2020, I spoke with Mr. Hilgers for approximately 10
`minutes about the fees and costs dispute. At that point, Mr. Hilgers and I concluded
`that it was not likely the parties would be able to resolve the dispute and that Alphatec
`would have to press forward and seek relief from the Court. NuVasive still has not
`provided any offer to cover Alphatec’s fees and costs associated with responding to
`NuVasive’s motion.
`13.
`In addition to these conversations, since the time reflected in Exhibit 2 to
`Alphatec’s motion, I have spent an additional approximately 15 hours reviewing bills,
`responding to correspondences from Mr. Hilgers, drafting Alphatec’s motion for fees
`and costs, and drafting this declaration.
`14. My billable rate is $860.00, as reflected in Exhibit 2.
`15. Thus, the total time I spent attempting to resolve this dispute with Mr.
`Hilgers, reviewing bills, drafting Alphatec’s motion, and drafting this declaration is
`approximately 17.6 hours. At an hourly rate of $860.00, approximately $15,164.66
`should be added to the figure in Exhibit 2.
`16. Also, I understand that Nimalka Wickramasekera, lead counsel for
`Alphatec, has spent approximately 1.2 hours conferring about and revising Alphatec’s
`motion for fees and costs. Her billable rate is $1,005.00, as reflected in Exhibit 2. At
`an hourly rate of $1,005.00, approximately $1,206.00 should be added to the figure in
`Exhibit 2.
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`DECLARATION OF BRIAN J. NISBET ISO ALPHATEC’S
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`MOTION FOR FEES AND COSTS
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`17.
`In sum, Alphatec’s total fees and costs associated with responding to
`NuVasive’s motion are $242,118.80.
`18.
` I declare under penalty of perjury under the laws of the State of California
`and the United States of America that the foregoing is true and correct. Executed this
`29th day of January, 2020, at Chicago, Illinois.
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`/s/Brian J. Nisbet
`BRIAN J. NISBET
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`DECLARATION OF BRIAN J. NISBET ISO ALPHATEC’S
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`MOTION FOR FEES AND COSTS
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`Exhibit
`1
`2
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`TABLE OF EXHIBITS
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`Page Nos.
`5-26
`27-37
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`DECLARATION OF BRIAN J. NISBET ISO ALPHATEC’S
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`MOTION FOR FEES AND COSTS
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`CASE NO. 3:18-CV-00347-CAB-MDD
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