Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26200 Page 1 of 23
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`WILSON SONSINI GOODRICH & ROSATI P.C.
`PAUL D. TRIPODI II (SBN 162380)
`ptripodi@wsgr.com
`WENDY L. DEVINE (SBN 246337)
`wdevine@wsgr.com
`NATALIE J. MORGAN (SBN 211143)
`nmorgan@wsgr.com
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: 323-210-2900
`Fax: 866-974-7329
`Hilgers Graben PLLC
`MICHAEL T. HILGERS (Pro Hac Vice)
`mhilgers@hilgersgraben.com
`575 Fallbrook Blvd, Suite 202
`Lincoln, NE 68521
`Telephone: 402-218-2106
`Fax: 402-413-1880
`Attorneys for Plaintiff NuVasive, Inc.
`UNITED STATES DISTRICT COURT
`DISTRICT OF CALIFORNIA
`SAN DIEGO DIVISION
`NUVASIVE, INC., a Delaware
`)
`Case No. 18-cv-00347-CAB-MDD
`corporation,
`)
`PLAINTIFF’S OPPOSITION TO
`
`)
`DEFENDANTS’ MOTION FOR
` Plaintiff,
`)
`FEES AND COSTS
`
`)
`v.
`)
`
`
`)
`
`
`)
`PER CHAMBERS RULES, NO
`ALPHATEC HOLDINGS, INC., a
`)
`ORAL ARGUMENT UNLESS
`Delaware corporation, and ALPHATEC
`)
`SEPARATELY ORDERED BY
`SPINE, INC., a California corporation,
`)
`THE COURT
`
`)
`
` Defendants.
`)
`Judge: Hon. Cathy Ann Bencivengo
`)
`
`Courtroom: 4C
`)
`)
`
`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`18-cv-00347-CAB-MDD
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`Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26201 Page 2 of 23
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`TABLE OF CONTENTS
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`PAGE(S)
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`LEGAL STANDARDS ............................................................................................. 2
`ARGUMENT ............................................................................................................. 3
`A. Alphatec Has Not Demonstrated Its Hours Are Reasonable .................... 3
`B. Alphatec Has Not Demonstrated Its Rates Are Reasonable ...................... 9
`C. No Extenuating Circumstances Justify Alphatec’s Unreasonable
`Hours or Rates ..................................................................................... 14
`CONCLUSION ........................................................................................................ 17
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`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26202 Page 3 of 23
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`TABLE OF AUTHORITIES
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` PAGE(S)
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`CASES
`California Bd. Sports, Inc. v. Vans, Inc.,
`06-cv-2365-IEG (AJB) (S.D. Cal. Apr. 2, 2007) (magistrate order
`aff’d June 5, 2007) (unpublished) ........................................................................ 15
`Daimler AG v. A-Z Wheels LLC,
`No. 16CV875-JLS-MDD, 2018 WL 3413863 (S.D. Cal. Apr. 23,
`2018) ....................................................................................................................... 5
`Democratic Party of Washington State v. Reed,
`388 F.3d 1281 (9th Cir. 2004) ................................................................................ 5
`Endurance Am. Specialty Ins. Co. v. WFP Sec. Corp.,
`No. 11CV2611-JAH(KSC), 2013 WL 12068651 (S.D. Cal. Mar. 29,
`2013) ..................................................................................................................... 17
`Flowerider Surf Ltd v. Pacific Surf Designs, Inc.,
`No. 15cv1879-BEN(BLM), 2017 WL 2212029 (S.D. Cal. May 18,
`2017) .............................................................................................................. passim
`G-1 Holdings, Inc. v. Baron & Budd,
`199 F.R.D. 529 (S.D.N.Y. 2001) .......................................................................... 15
`Gonzalez v. City of Maywood,
`729 F.3d 1196 (9th Cir. 2013) ................................................................................ 2
`Grain v. Trinity Health,
`No. 03-72486, 2009 WL 3270584 (E.D. Mich. Oct. 5, 2009) ........................... 6, 9
`Hensley v. Eckerhart,
`461 U.S. 424 (1983) ............................................................................................... 3
`LG Corp. v. Huang Xiaowen,
`No. 16-cv-1162 JLS (NLS), 2017 WL 3877741 (S.D. Cal. Nov. 5,
`2017 ................................................................................................................ 11, 12
`Matlink, Inc. v. Home Depot USA, Inc.,
`No. 07cv1994-DMS(BLM), 2008 WL 8504767 (S.D. Cal. Oct. 28,
`2008) ................................................................................................................. 8, 11
`NUVASIVE’S OPPOSITION TO
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`Midamines Sprl Ltd. v. KBC Bank NV,
`No. 12-CV-8089(RJS), 2016 WL 1071028 (S.D.N.Y. Mar. 16,
`2016), aff’d sub nom. Midamines SPRL Ltd. v. KBC Bank N.V., 719
`F. App’x 41 (2d Cir. 2017) ................................................................................. 7, 8
`Mogck v. Unum Life Ins. Co. of Am.,
`289 F. Supp. 2d 1181 (S.D. Cal. 2003) .................................................................. 6
`Redding v. ProSight Specialty Mgmt. Co.,
`90 F. Supp. 3d 1109 (D. Mont. 2015) ................................................................ 6, 7
`Youngevity Int’l, Corp. v. Smith,
`No. 16-cv-00704-BTM-JLB, 2018 WL 2113238 (S.D. Cal. May 7,
`2018) ....................................................................................................................... 3
`Zest IP Holdings, LLC v. Implant Direct Mfg., LLC,
`No. 10-CV-0541-GPC(WVG), 2014 WL 6851612 (S.D. Cal. Dec.
`3, 2014) .......................................................................................................... passim
`
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`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`On December 6, 2019, NuVasive filed an Ex Parte Motion for Protective
`Order and Appointment of Special Master (“PO Motion” or “Protective Order
`Motion”). Doc. No. 218. Less than a week later, on December 12, the Court denied
`the PO Motion and authorized Alphatec to file a motion seeking its attorney’s fees
`against NuVasive. Doc. No. 232. During the Court’s hearing on the PO Motion, the
`Court instructed Alphatec to “[b]e conservative” in its request for fees. Doc. No.
`254-3 at 22.
`
`The following day, counsel for NuVasive reached out to counsel for Alphatec
`to attempt to resolve the fees and costs without further involvement from the Court.
`See Doc. No. 254-2 at ¶ 7. On or about January 7, 2020, Alphatec responded that its
`fees for the motion approximated nearly $260,000, and additionally requested
`payment to be presented to Alphatec in the form of an oversized novelty check.
`Hilgers Ex. 2;1 Doc. No. 254-2 at ¶ 8. NuVasive respectfully submits this was
`neither a “conservative” nor a reasonable fee request. NuVasive was ready and
`willing to make a reasonable offer to resolve the fee issue and avoid motion
`practice, but Alphatec’s fee demand, and the resulting discussion, made clear that
`the parties were too far apart for resolution. Hilgers Decl. ¶ 4.
`
`In its motion, Alphatec seeks from the Court $242,118.80 in fees and costs,
`which comprises over 300 hours’ work performed largely over the course of less
`than one week. Doc. No. 254-4; Doc No. 254-2. More than half of this time was
`billed by four partner-level2 attorneys charging between $860-$1,005/hour, often
`performing redundant or low-level tasks. As a result, not only are Alphatec’s hours
`inflated by the duplication of efforts, but its average billing rate for its entire
`
`
`1 “Hilgers Ex.” refers to the exhibits attached to the Declaration of Michael
`Hilgers, filed herewith.
`2 Mr. David Dalke is Of Counsel for Winston & Strawn. For purposes of this
`motion, NuVasive will refer to him, along with the three Winston & Strawn
`partners, as “partner-level” attorneys.
`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`attorney team – which also included five associates, including two first-year
`associates – is more than $800/hour.
`
`In its motion for attorney’s fees, Alphatec makes little attempt to show how
`its nearly quarter-million-dollar invoice is reasonable. Instead, it focuses on the
`significance of the Protective Order Motion and the timing of when it was filed.
`While NuVasive acknowledges the potential seriousness of the relief sought in its
`Protective Order Motion, as well as the advanced stage of the case at which it was
`filed, and is mindful of the Court’s concern regarding the Protective Order Motion,
`NuVasive respectfully submits that the record does not support Alphatec’s
`characterization of NuVasive’s motion. Nevertheless, even if Alphatec’s
`characterization were accurate, case law demonstrates that, even taking these factors
`into account, Alphatec’s narrative does not come close to justifying its fees for time
`spent opposing a single motion.
`
`As discussed in detail below, the relevant case law supports recovery for
`
`Alphatec of $75,301
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`as . a reasonable attorney fee
`
`
`LEGAL STANDARDS
`“The Ninth Circuit utilizes the ‘lodestar’ method for assessing reasonable
`
`attorney’s fees” under which, “the number of hours reasonably expended is
`multiplied by a reasonable hourly rate.” Flowerider Surf Ltd v. Pacific Surf Designs,
`Inc., No. 15cv1879-BEN(BLM), 2017 WL 2212029, at * (S.D. Cal. May 18, 2017)
`(citing Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013)) (finding
`$16,000 was a reasonable amount of fees incurred in opposing a motion to compel).
`“To meet the burden, the fee applicant must produce evidence that the requested
`rates are ‘in line with those prevailing in the community for similar services by
`lawyers of reasonably comparable skill, experience, and reputation’ and services by
`paralegals ‘based on the prevailing market rate in the relevant community.’” Id. In
`addition, “[t]he burden is on the fee applicant to demonstrate that the number of
`
`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`hours spent were ‘reasonably expended’ and that counsel made ‘a good faith effort
`to exclude from [the] fee request hours that are excessive, redundant, or otherwise
`unnecessary.’” Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10-CV-
`0541-GPC(WVG), 2014 WL 6851612, at *4 (S.D. Cal. Dec. 3, 2014) (quoting
`Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). “Hours that are not properly billed
`to one’s client also are not properly billed to one’s adversary . . . .” Hensley, 461
`U.S. at 434 (citation omitted, emphasis in original).
`
`“District courts have discretion to reduce the number of hours that were not
`reasonably expended.” Youngevity Int’l, Corp. v. Smith, No. 16-cv-00704-BTM-
`JLB, 2018 WL 2113238 at *2 (S.D. Cal. May 7, 2018). “[T]he district court ‘may
`not uncritically accept a fee request,’ but is obligated to review the time billed and
`assess whether it is reasonable in light of the work performed and the context of the
`case.” Zest IP Holdings, 2014 WL 6851612 at *7 (collecting cases). “The Court
`should decrease the hours that were not ‘reasonably expended.’” Id. at *6 (quoting
`Hensley, 461 U.S. at 434).
`
`ARGUMENT
`A. Alphatec Has Not Demonstrated Its Hours Are Reasonable
`Alphatec’s documentation of its efforts over the course of one week to
`
`respond to NuVasive’s motion reveal an inefficient, top-heavy structure, resulting in
`significant duplication of work, especially by senior attorneys. While NuVasive
`agrees that a case of this magnitude may necessitate numerous attorneys over its
`entire course, especially to address multiple tasks that arise simultaneously, such as
`taking and defending depositions, there is no reason to employ this type of staffing
`to respond to a single-issue motion. As a result, Alphatec cannot meet its burden of
`demonstrating that the number of hours for which it seeks recovery is reasonable.
`
`Alphatec’s duplicative charges are exemplified by the following information,
`as reflected in its motion and accompanying exhibits:
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`NUVASIVE’S OPPOSITION TO
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`FEES AND COSTS
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` Nine attorneys and three paralegals billed over 300 hours in a single
`week responding to NuVasive’s Protective Order Motion, see Doc. No.
`254-4 at 8;
` Over half the hours spent responding to the Protective Order Motion
`were billed by four senior attorneys, with rates ranging from $860 to
`$1,005/hour, see id.;
` Numerous time entries for the attorneys with the highest billing rates
`appear to be for tasks more appropriately handled by junior associates,
`e.g., Doc. 254-4 at 3 (N. Wickramasekera, billing at $1,005/hour: “pull
`and review NuVasive’s cited cases”); id. at 5 (D. Dalke, billing at
`$885/hour: “conduct legal research re disqualification standards”);
` Descriptions of the work demonstrate duplication of effort, for
`example:
`o Seven separate attorneys submitted time entries for reviewing
`and analyzing NuVasive’s Protective Order Motion, totaling
`approximately 55 hours;
`o Seven attorneys and two paralegals submitted an additional 24
`time entries for drafting Alphatec’s opposition to NuVasive’s
`motion, totaling approximately 183 hours;
`o Three senior attorneys submitted time to “prepare for and attend
`hearing” on December 12, totaling 16.6 hours or over $15,000,
`see Doc. 254-4 at 7;
` All of the nearly 24 hours spent preparing Alphatec’s instant motion for
`fees were billed by attorneys at rates of $860/hour and $1,005/hour, see
`Doc. No. 254-2 at ¶¶ 15-16.
`As an initial matter, while it is apparent that senior attorneys spent significant
`
`time performing low-level tasks, the attorneys’ use of block billing makes it
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`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`impossible to determine the actual amount with any degree of accuracy. For
`example, it is impossible to know what portion of the nearly 16 hours (nearly
`$14,000) that Mr. Dalke billed on December 10 went to “conduct[ing] legal
`research” compared to the other tasks in his billing description for that day. See Doc.
`No. 254-4 at 5. Similarly, neither NuVasive nor the Court has any way to know how
`many of the 16.2 hours Ms. Wickramasekera billed on December 9 were spent
`“pull[ing] and review[ing] NuVasive’s cited cases.” Id. at 3. Alphatec continues this
`practice throughout the submitted invoice. See, e.g., Doc. 254-4 at 5 (Dec. 9, 2019
`entry for the same partner block billing 11.4 hours to Alphatec for, among other
`things, “continue to review cases cited in NuVasive’s briefing”); id. at 6 (Dec. 10,
`2019 entry for the same partner block billing 14.4 hours to Alphatec for, among
`other things, “review additional case law relevant to motion”); id. at 7 (Dec. 11,
`2019 entry for the same partner block billing 15.3 hours to Alphatec for, among
`other things, “review[ing] . . . case law to prepare for hearing”).
`
`Courts have noted that the practice of block billing not only prevents a court
`from determining the reasonableness of time spent on any given activity, but also
`inflates the amount of time reported by an average of 10 to 30 percent. See, e.g.,
`Daimler AG v. A-Z Wheels LLC, No. 16CV875-JLS-MDD, 2018 WL 3413863, at
`*3 (S.D. Cal. Apr. 23, 2018) (“Hours may be reduced if the billing makes it
`impossible for the Court to determine how much time is spent on each task and thus
`whether the time spent was reasonable.” (internal citations omitted)); see also Zest
`IP Holdings, 2014 WL 6851612 at *9 (noting that the “California State Bar’s
`Committee on Mandatory Fee Arbitration . . . determined that block billing may
`increase time by 10% to 30%”).
`
`In addition, the Ninth Circuit has stated that “courts ought to examine with
`skepticism claims that several lawyers were needed to perform a task, and should
`deny compensation for such needless duplication as when three lawyers appear for a
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`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`hearing when one would do.” Democratic Party of Washington State v. Reed, 388
`F.3d 1281, 1286 (9th Cir. 2004); see also Zest IP Holdings, 2014 WL 6851612 at
`*5-8 (disallowing duplicative time for both lead partner and second attorney to
`prepare for and attend the same hearing); Mogck v. Unum Life Ins. Co. of Am., 289
`F. Supp. 2d 1181, 1193 (S.D. Cal. 2003) (refusing to award fees for duplication of
`effort where two attorneys billed time for reviewing the defendant’s objection to the
`plaintiff’s expert designation).
`
`Alphatec seeks to justify its staffing used in responding to NuVasive’s
`Protective Order Motion and the excessive and duplicative hours billed by citing the
`serious nature of NuVasive’s Motion. But, even assuming that NuVasive had moved
`for a disqualification order, which it did not, other cases considering fees and costs
`incurred in opposing motions to disqualify counsel do not support Alphatec’s
`conclusion. For example, in Grain v. Trinity Health, No. 03-72486, 2009 WL
`3270584, at *2 (E.D. Mich. Oct. 5, 2009), the Eastern District of Michigan
`considered what constituted reasonable fees and costs incurred responding to a
`motion to disqualify counsel. There, the defendant sought reimbursement for the
`work of four partners, two associates, and two paralegals. The court found the
`staffing excessive, explaining: “The handling of this matter by several partners has
`resulted in several lawyers charging to review the same pleadings and to discuss
`those pleadings with each other.” It further explained, “the Court does not believe
`that those fees should be imposed on Plaintiffs as sanctions when one partner and
`one or two associates could have prepared Defendants’ response to Plaintiffs’
`motion to disqualify.” Id. As a result, the court “will reduce to one-fourth (1/4) the
`total attorneys’ fees billed by the four partners who worked on the matter.” Id.
`
`Similarly, in Redding v. ProSight Specialty Mgmt. Co., 90 F. Supp. 3d 1109
`(D. Mont. 2015), the District of Montana reduced by almost two-thirds an award of
`fees and costs for counsel to respond to a “patently frivolous” motion to disqualify
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`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
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`counsel “filed for the purpose of retaliation.” Id. at 1151. There, New York Marine
`and General Insurance Co. (“NYM”) sought reimbursement for fees and costs
`incurred by its attorneys from Hogan Lovells U.S. LLP (San Francisco and
`Washington, D.C.) in drafting three briefs—defense counsel’s brief in response to
`the motion to disqualify, a motion to quash counsel’s subpoena, and the brief in
`response to Plaintiff’s motion to supplement the motion to disqualify—as well as
`travel to and appearance at the related hearing. See id. 3 The court reduced New
`York Marine’s request by more than 65 percent, from $213,705.21 to $73,934.82,
`noting “the itemization of attorney fees requested indicates possible overstaffing and
`inordinate amount of time spent in research.” Id. at 1151. Echoing Alphatec’s
`concerns here, the court explicitly noted that “[t]he sum of $73,934.82 represents a
`reasonable reimbursement to NYM . . . for the high importance of the motion to
`NYM given Mr. Goodman’s position as lead defense counsel and the late stage of
`the proceedings.” Id. at 1151; see also id. at 1112 (noting the case was an “unusual
`third-party bad faith insurance case” with “extraordinary background”). Notably, the
`fee award in Redding was a fraction of the amount sought by Alphatec and
`accounted for greater amounts of work.4
`
`Finally, in Midamines Sprl Ltd. v. KBC Bank NV, No. 12-CV-8089(RJS),
`2016 WL 1071028 (S.D.N.Y. Mar. 16, 2016), aff’d sub nom. Midamines SPRL Ltd.
`v. KBC Bank N.V., 719 F. App’x 41 (2d Cir. 2017), the court addressed the
`reasonableness of defense counsel’s fees in responding to a motion to disqualify
`counsel, as well as various other tasks. Specifically, the court found that $75,000
`
`
`3 The Docket Report from the case indicates this briefing took place over a two-
`month window between the filing of the initial motion for disqualification on April
`2 and the hearing, on June 10.
`4 The attorney rates allowed in Redding and Midamines (discussed below) are
`lower than those sought by Alphatec. See Redding, 90 F. Supp. 3d at 1150
`(awarding rates of $525/hour and $450/hour); Midamines, 2016 WL 1071028 at *2
`(blended rate of $379/hour).
`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
`
`
`18-cv-00347-CAB-MDD
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`7
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`Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26211 Page 12 of 23
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`was a reasonable fee where counsel from Orrick, Herrington & Sutcliffe LLP was
`responsible for 1) responding to Plaintiff’s threats to file a motion to disqualify
`counsel, 2) opposing the motion for disqualification, 3) filing a motion to seal after
`Plaintiff revealed privileged material as part of their motion to disqualify,
`4) proposing redactions to protect the privileged material, and 5) reviewing a second
`motion for reconsideration. See id. at *3. Here, by contrast, Alphatec seeks nearly
`$250,000 for over 300 hours, performed over a significantly shorter time period, for
`significantly less work.
`
`Alphatec’s own case supports the proposition that a party should be allowed
`recovery for only one lead attorney, not four, and with that person acting in a
`supervisory manner, rather than as the principal researcher and drafter. In Matlink,
`Inc. v. Home Depot USA, Inc., the Court noted, “[a]n experienced attorney
`commands high hourly rates in part because he or she is more efficient,” explaining,
`“the bulk of time billed by counsel for Lowe’s and Home Depot was for work done
`by associate at lower billing rates.” No. 07cv1994-DMS(BLM), 2008 WL 8504767,
`at *4 (S.D. Cal. Oct. 28, 2008) (approving approximately $40,000 fees and costs
`incurred bringing motion to compel). There, the court approved fees incurred by a
`total of three Winston & Strawn attorneys working in a traditional case support
`structure to draft a motion to compel. See id. at n.3 (approving 12.5 hours for most
`senior attorney ($630/hour), 45 hours for second attorney ($455/hour), and 55 hours
`for the most junior attorney ($280/hour), resulting in an average rate of
`approximately $389/hour5). Similarly, Flowerider Surf also demonstrates recovery
`of fees for responding to a motion to compel should fall into a traditional structure,
`with the court approving 3.9 hours for the lead partner ($750/hour), 7.6 hours for a
`first associate ($550/hour), and 24 hours for a second, more junior associate
`
`
`5 Adjusting for an annual inflation rate of 3.1% this would translate to an
`average rate of approximately $530/hour in 2019.
`NUVASIVE’S OPPOSITION TO
`8
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
`
`
`18-cv-00347-CAB-MDD
`
`

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`Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26212 Page 13 of 23
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`($350/hour), resulting in an average hourly rate of approximately $437/hour for all
`attorneys. See Flowerider Surf, 2017 WL 2212029 at *5.
`
`Accordingly, in line with Grain, NuVasive proposes that Alphatec be
`permitted recovery for only one-third of its recoverable partner-level hours, at the
`rate determined by the Court in light of NuVasive’s arguments below.6
`B. Alphatec Has Not Demonstrated Its Rates Are Reasonable
`Aside from its top-heavy billing structure and significant duplication of work,
`
`Alphatec has also not met its burden of demonstrating that its rates for senior
`attorneys, junior attorneys and/or paralegals are in line with prevalent rates in the
`District for similar services.
`
`To begin, Alphatec has failed to provide any evidence as to the background
`and experience of any of the billing attorneys or paralegals. This alone warrants a
`significant reduction in Alphatec’s requested fees. See Zest IP, 2014 WL 6851612,
`at *6 (denying request for reimbursement of paralegal fees where requesting party
`failed to provide “any evidence as to the background and experience” such that “the
`Court is unable to determine the prevailing rate”). Nevertheless, simply taking into
`account the amount of individual attorney experience as reflected in publicly
`available information regarding admission to practice, it is apparent that Alphatec
`cannot meet its burden of showing the reasonableness of its the requested rates.
`
`First, its partner-level rates of between $860 - $1,005/hour are above those
`that have been found reasonable for similar work within the District by an attorney
`with significantly more experience. The attorneys with the highest hourly rates
`appearing on Alphatec’s motion are as follows:
`
`
`6 Although Alphatec has submitted hours for four attorneys billing at its highest
`rates, NuVasive notes that one of those attorneys, L. Petroff, submitted only 3.7
`hours, so a reduction to one-fourth would not be proportionate.
`
`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
`
`
`9
`
`(continued...)
`18-cv-00347-CAB-MDD
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`

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`Hours7
`Hourly Rate
`80.1
`$1,005
`3.7
`$995
`40.1
`$885
`50.8
`$860
`$935 (weighted average) 174.7
`
`Name
`N. Wickramasekera
`L. Petroff
`D. Dalke
`B. Nisbet
`TOTAL
`
`In Flowerider Surf, the Court found that rates ranging from $480 - $995/hour
`exceeded the prevalent market rates in the District for intellectual property cases.
`See 2017 WL 2212029, at *3-4 (surveying case law concerning reasonable fee
`awards in intellectual property/patent cases in the District). In particular, the Court
`reduced the rate of lead attorney Rick Taché – “a Co-Managing Shareholder of the
`Greenberg Traurig’s Litigation Group with over twenty-five years of experience and
`many professional accolades” – from $995 to $750/hour. Id. at *3.8 By comparison,
`Ms. Wickramasekera (admitted to practice in 2006),9 and Mr. Nisbet (admitted to
`practice in 2009), see Doc. No. 176, while undoubtedly accomplished, have roughly
`half as much experience as Mr. Taché, or less. As such, Alphatec should not recover
`rates for its attorneys that are significantly higher than the rate allowed for
`Mr. Taché.
`
`
`7 Ms. Wickramasekera’s and Mr. Nisbet’s hours reflect time both for
`responding to NuVasive’s PO Motion and for preparing the instant motion for fees
`and costs. See Doc. No. 254-2 at ¶¶ 15-16 and Doc. No. 254-4 at 8.
`8 Adjusted for an annual inflation rate of 3.1%, this would be roughly $800/hour
`in 2019. See Valentine, Joseph. “Producer Prices in the Legal Services Industry
`after the Great Recession.” Monthly Labor Review, 2019,
`https://www.bls.gov/opub/mlr/2019/article/producer-prices-in-the-legal-services-
`industry-after-the-great-recession.htm, (last visited Feb. 11, 2020) (noting a 3.1
`percent average annual inflation rate for legal services between 2009 and 2018).
`9 See Lawyer Search, Illinois Attorney Registration and Disciplinary
`Commission, https://www.iardc.org/lawyersearch.asp (last visited Feb. 19, 2020).
`(continued...)
`18-cv-00347-CAB-MDD
`
`10
`
`NUVASIVE’S OPPOSITION TO
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
`
`
`

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`Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26214 Page 15 of 23
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`Alphatec defends it highest rates with citations to three cases in this District.
`
`See Doc. No. 254-1 at 9 (citing LG Corp. v. Huang Xiaowen, No. 16-cv-1162 JLS
`(NLS), 2017 WL 3877741 at *2-3 (S.D. Cal. Nov. 5, 2017), (approving $850-
`$890/hour for the lead partner from “an international intellectual property firm with
`numerous accolades for its intellectual property work.”);10 Zest IP Holdings, 2014
`WL 6851612, *5 (S.D. Cal. Dec. 3, 2014) (approving rates of $850-895/hour for
`lead counsel Lisa Ferri from Mayer Brown, noting its “outstanding reputation in
`patent litigation.”);11 and Matlink, Inc. v. Home Depot USA, Inc., No. 07cv1994-
`DMS(BLM), 2008 WL 8504767, at *6 n.3 (S.D. Cal. Oct. 28, 2008) (highest rate for
`Winston & Strawn partner, Gail Standish, was $630/hour12). But Alphatec makes no
`attempt to compare the qualifications of its own attorneys to those in these cases. In
`addition, these cases uniformly approve the rate only for a single “lead attorney,”
`not for a team of four partner-level attorneys responding to a single motion.
`
`The rates Alphatec seeks to recover for its more junior attorneys are similarly
`problematic. For example, Alphatec seeks reimbursement at a rate of $515/hour for
`two associate attorneys who, having been admitted to practice in their respective
`states in October 2019 and December 2019, had well under a year of legal
`experience. See Doc. No. 254-4 at 8.13 This rate has no support in case law. For
`
`10 Although not noted in the LG Corp. opinion, the lead attorney in that case,
`Mr. Mark Sommer, has been in practice for more than 35 years. See Lawyer
`Search, Illinois Attorney Registration and Disciplinary Commission,
`https://www.iardc.org/lawyersearch.asp (last visited Feb. 19, 2020).
`11 Ms. Ferri appears to have more than 30 years’ experience as a litigator. See
`Attorney Search, New York State Unified Court System,
`http://iapps.courts.state.ny.us/attorney/AttorneyDetails?attorneyId=12IvWvBdZQP
`lXhHGQKvXgA%3D%3D (last visited Feb. 19, 2020).
`12 Even accounting for inflation, the rate allowed in Matlink is still well below
`Alphatec’s lead counsel’s rate of $1,005/hour.
`13 See State Bar of Texas,
`https://www.texasbar.com/AM/Template.cfm?Section=Find_A_Lawyer&template
`=/Customsource/MemberDirectory/MemberDirectoryDetail.cfm&ContactID=3622
`97 (last visited Feb. 19, 2020) (E. Lewis admitted 10/25/19); State Bar of
`(continued...)
`NUVASIVE’S OPPOSITION TO
`11
`18-cv-00347-CAB-MDD
`DEFENDANTS’ MOTION FOR
`FEES AND COSTS
`
`
`

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`Case 3:18-cv-00347-CAB-MDD Document 266 Filed 02/19/20 PageID.26215 Page 16 of 23
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`example, in Flowerider Surf, the court found $550/hour to be a reasonable rate for
`an intellectual property litigation assoc