Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26268 Page 1 of 15
`
`
`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
`27
`28
`
`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.
`
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO DIVISION
`Case No. 3:18-CV-00347-CAB-MDD
`NUVASIVE, INC., a Delaware
`
`corporation,
`
`[Assigned to Courtroom 4C – Honorable
`Cathy Ann Bencivengo]
`
`
`DEFENDANTS’ REPLY IN SUPPORT
`v.
`OF MOTION FOR FEES AND COSTS
`
`ALPHATEC HOLDINGS, INC., a
`
`Delaware corporation and
`
`ALPHATEC SPINE, INC., a
`PER CHAMBERS RULES, NO ORAL
`California corporation,
`ARGUMENT UNLESS SEPARATELY
`ORDERED BY THE COURT
`
`Defendants.
`
`
`
`
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26269 Page 2 of 15
`
`
`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
`27
`28
`
`TABLE OF CONTENTS
`
`I.
`II.
`
`Page
`INTRODUCTION ................................................................................................ 1
`ARGUMENT........................................................................................................ 1
`A. Alphatec’s Hours Are Reasonable ............................................................. 1
`1.
`Alphatec’s Team Was Appropriately Staffed .................................. 2
`2.
`Alphatec’s Time Was Reasonable ................................................... 3
`Alphatec’s Rates Are Reasonable .............................................................. 7
`B.
`The Circumstances Justify Alphatec’s Fees and Costs .............................. 9
`C.
`III. CONCLUSION .................................................................................................. 10
`
`
`
`
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`i
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26270 Page 3 of 15
`
`
`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
`27
`28
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Daimler AG v. A-Z Wheels LLC,
`No. 16cv875-JLS-MDD, 2018 WL 3413863 (S.D. Cal. Apr. 23, 2018) .................. 6
`Democratic Party of Washington State v. Reed,
`388 F.3d 1281 (9th Cir. 2004) ............................................................................... 3, 4
`Flowrider Surf, Ltd v. Pacific Surf Designs, Inc.,
`No. 15cv1879-BEN(BLM), 2017 WL 2212029 (S.D. Cal. May 18,
`2017) .......................................................................................................................... 7
`Grain v. Trinity Health,
`No. 03–72486, 2009 WL 3270584 (E.D. Mich. Oct. 5, 2009) .................................. 7
`Matlink, Inc. v. Home Depot U.S.A., Inc.,
`No. 07cv1994–DMS (BLM), 2008 WL 8504767 (S.D. Cal. Oct. 27,
`2008) .......................................................................................................................... 7
`Midamines Sprl Ltd. v. KBC Bank NV,
`No. 12-cv-8089(RJS), 2016 WL 1071028 (S.D.N.Y. Mar. 16, 2016) ...................... 7
`Mogck v. Unum Life Ins. Co. of Am.,
`289 F. Supp. 2d 1181 (S.D. Cal. 2003) ..................................................................... 4
`Redding v. ProSight Specialty Mgmt. Co.,
`90 F. Supp. 3d 1109 (D. Mont. 2015) ....................................................................... 7
`Zest IP Holdings, LLC v. Implant Direct Mfg., LLC,
`No. 10–CV–0541–GPC (WVG), 2014 WL 6851612 (S.D. Cal. Dec. 3,
`2014) ...................................................................................................................... 6, 7
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`ii
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26271 Page 4 of 15
`
`
`I.
`
`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
`27
`28
`
`INTRODUCTION
`On the evening of December 6, 2019, NuVasive filed a strategically-timed, bad-
`faith motion to disqualify Alphatec’s counsel, deprive Alphatec witnesses from the right
`to counsel, and order Alphatec to turn over its privileged communications to the Court.
`As Alphatec previously noted, NuVasive’s motion demonstrated a pattern of bad-faith
`conduct in this case and a continued effort to harass Alphatec and drive up litigation
`costs. (Doc. No. 225.) And as the Court found, NuVasive did not have one iota of
`evidence to support its accusations, just “suspicious” “concerns” and “uncomfortable
`feeling(s).” (Doc. No. 254-3 at 15.) Instead of acknowledging its bad-faith conduct,
`NuVasive now asks this Court to arbitrarily cut Alphatec’s fees and costs by a full two-
`thirds. In support, NuVasive argues the Court was wrong to say NuVasive moved to
`disqualify Alphatec’s counsel, and blames Alphatec for doing all it needed to respond
`to a surprise motion alleging serious ethical violations. (Doc. No. 266 at 7–13, 18–19.)
`NuVasive’s response is equally without basis. First, NuVasive argues that Alphatec
`spent too much time responding to NuVasive’s 300+ page motion because NuVasive
`deliberately filed it ex parte to force Alphatec to have less than one week to respond.
`Notably, NuVasive does not tell this Court how long it spent writing its motion—which
`took one full month. Second, NuVasive argues that Alphatec’s counsel’s fees are not
`market and criticizes the number of outside counsel who attended the hearing on behalf
`of Alphatec (despite it being the same number that attended for NuVasive). Again,
`NuVasive does not tell this Court its own outside counsel rates from a comparable firm.
`NuVasive should not benefit from the damage caused by its baseless motion—by
`substantially reducing Alphatec’s fees and costs, NuVasive will have achieved its
`malicious purpose for bringing the motion in the first place. Accordingly, Alphatec
`respectfully requests that the Court award Alphatec its actual costs and fees.
`II. ARGUMENT
`A. Alphatec’s Hours Are Reasonable
`NuVasive has two basic complaints regarding Alphatec’s hours. (Doc. No. 266
`
`1
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26272 Page 5 of 15
`
`
`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
`27
`28
`
`at 7–13.) First, NuVasive claims Alphatec used too many lawyers to oppose
`NuVasive’s motion. (Id. at 4–5, 7–13.) Second, NuVasive asserts Alphatec’s senior
`lawyers did low-level tasks and duplicated work. (Id.) As such, NuVasive arbitrarily
`argues a full two-thirds of the work Alphatec’s senior lawyers did was unreasonable
`and cannot be recovered. NuVasive’s contentions are not supported by the law or facts,
`and accepting them rewards NuVasive for filing its meritless motions.
`Alphatec’s Team Was Appropriately Staffed
`1.
`NuVasive’s argument rings hollow considering that NuVasive’s disqualification
`motion was prepared and signed by five partners and five associates from two different
`law firms, Wilson Sonsini Goodrich & Rosati and Hilgers Graben PLLC.1 (Doc. No.
`218.) And NuVasive inexplicably argues that it was unreasonable for Alphatec to have
`three lawyers appear at the hearing on NuVasive’s motion (Doc. No. 266 at 8–10, 18),
`when NuVasive itself had three partners from two law firms, one of which is based in
`Lincoln, Nebraska, appear as well. (Doc. No. 254-3 at 3.) Indeed, two lead counsel—
`Paul Tripodi and Mike Hilgers—argued for NuVasive. (Id.) NuVasive’s argument that
`Alphatec’s team is unreasonably overstaffed lacks any credibility.
`Further, as shown in Alphatec’s invoice, which NuVasive mischaracterizes to
`avoid the consequences of its filing, six attorneys, not nine, and two paralegals, not
`three, almost exclusively prepared Alphatec’s opposition. (Compare Doc. No. 254-4 at
`8 with Doc. No. 266 at 8.) The team consisted of Alphatec’s lead counsel Ms.
`Wickramasekera, one partner (Mr. Nisbet), and one of counsel (Mr. Dalke). Another
`partner, whom NuVasive cites often to mislead the Court into believing that “four
`partner-level attorneys” led Alphatec’s opposition, was briefly consulted, to the tune of
`3.7 total hours, because she (and not the litigation team) specializes in the labor and
`employment issues that NuVasive made central to its motion. (Doc. No. 266 at 8, 12,
`15.) Alphatec also relied on one fourth-year associate, two first-year associates, and
`
`1 NuVasive removed several names from its signature block on this opposition to make
`it seem as though NuVasive is staffed leanly compared to Alphatec. (Compare Doc.
`No. 218 at 43 with Doc. No. 266 at 22.) It indisputably is not.
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`2
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26273 Page 6 of 15
`
`
`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
`27
`28
`
`two paralegals who contributed substantially and appropriately to their level and
`experience—two other associates and one paralegal who were involved with upcoming
`depositions and other issues that would be directly affected by NuVasive’s motion
`assisted in very small ways, but had no significant role in preparing the opposition and
`collectively billed 4.5 hours. Alphatec’s team was not “inefficient” or overstaffed. In
`fact, Alphatec used fewer law firms, fewer partners, and fewer associates than NuVasive
`did in the one month it took to prepare its disqualification motion.
`Alphatec’s Time Was Reasonable
`2.
`NuVasive concedes the associate hours on Alphatec’s team were reasonable, but
`asserts that all of Mr. Nisbet’s time, all of Mr. Dalke’s time, and a substantial portion
`of Ms. Wickramasekera’s time was unreasonable and cannot be recovered, despite the
`fact that Ms. Wickramasekera and Mr. Dalke attended the deposition that triggered
`NuVasive’s baseless threats, and NuVasive’s motion alleged ethical violations by Ms.
`Wickramasekera in her communications with Alphatec. (Id. at 7–13, 16–17.)
`At the outset, while it criticizes Alphatec’s time, NuVasive failed to provide the
`Court with how many hours it spent preparing its motion to disqualify. NuVasive used
`almost a month researching, drafting, and reviewing its motion, which consumed thirty-
`seven pages, 50% more than allowed under Local Rule 7.1(h). (See Doc. No. 218.)
`NuVasive prepared two client declarations attesting to (irrelevant) historical facts over
`ten years, and attached 34 exhibits totaling about 250 pages (that Alphatec sifted
`through to analyze only to determine none supported NuVasive’s drastic relief). (See
`Doc. Nos. 218-1 at 17, 218-18 at 5, 218-20 at 6.) As noted, ten lawyers from two
`different law firms supported NuVasive’s motion, and three partners attended the
`hearing. It is hard to believe NuVasive spent a full two-thirds fewer hours on its motion
`to disqualify than Alphatec did in opposition—and NuVasive certainly did not submit
`this evidence to support its claim that Alphatec’s hours were unreasonable. Democratic
`Party of Washington State v. Reed, 388 F.3d 1281, 1287 (9th Cir. 2004) (comparison of
`hours spent by party seeking fees and by opposing party can be a “useful guide in
`
`3
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26274 Page 7 of 15
`
`
`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
`27
`28
`
`evaluating the appropriateness of time claimed”).
`In any event, Alphatec’s senior lawyer’s time is reasonable given the seriousness
`and timing of NuVasive’s motion. Ms. Wickramasekera led Alphatec’s opposition.
`She billed fewer than 80 hours reviewing NuVasive’s 300+ page motion and relevant
`case law, consulting with the firm’s General Counsel and client over the weekend
`(NuVasive strategically filed ex parte Friday evening) about the risks and significant
`ramifications of NuVasive’s motion, drafting Alphatec’s initial response, which tried to
`mitigate the time spent responding fully to NuVasive’s motion by requesting an in-
`person status conference to discuss, drafting the subsequently Court-ordered full 25-
`page opposition to NuVasive’s motion in less than 48 hours, and preparing to argue
`NuVasive’s motion after which the Court could have entered an order to disqualify
`Winston & Strawn, leaving a client she has represented for almost two years completely
`in the lurch.
`But she could not do all of this alone—nor should she have had to—and so Mr.
`Nisbet and Mr. Dalke supported her in these tasks and accomplished others, billing
`about 33 and 40 hours, respectively, in opposition to NuVasive’ motion. As even
`NuVasive’s cited cases make plain, “[p]articipation of more than one attorney does not
`necessarily amount to unnecessary duplication of effort.” Democratic Party of
`Washington State, 388 F.3d at 1286–87; see also Mogck v. Unum Life Ins. Co. of Am.,
`289 F. Supp. 2d 1181, 1194 (S.D. Cal. 2003) (same). Indeed, NuVasive does not
`attempt to explain how Alphatec could have feasibly handled things differently—how
`one partner and a few young associates could have accomplished all that needed to be
`done in four business days with the whole litigation hanging in the balance, and with
`critical depositions directly affected by the motion set to occur in less than one week.
`In fact, it is clear from the record that NuVasive itself could not have handled things
`differently if it was in Alphatec’s position—NuVasive prepared its motion over one
`month, supported by ten lawyers from two law firms, and needed two partners from
`two law firms to argue it.
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`4
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26275 Page 8 of 15
`
`
`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
`27
`28
`
`In addition, the timing of NuVasive’s motion—which NuVasive barely
`acknowledges—made it impossible for Alphatec to prepare its opposition any other
`way. NuVasive strategically decided not to follow normal motion practice, which
`would have allowed Alphatec at least twenty-one days to respond. Instead, NuVasive
`filed its motion ex parte, injecting urgency and requiring a full opposition within “two
`Court days,” which Alphatec tried to avoid by requesting an immediate in-person
`status conference. (Doc. No. 222); (Chamber Rules IV.) And, NuVasive’s motion was
`a total surprise to Alphatec. NuVasive made zero effort to meet and confer about its
`motion, nor did NuVasive provide Alphatec any of its purported authority or evidence
`(despite Alphatec’s express requests) in its previous threats one-month prior, leaving
`Alphatec no notice to align resources or do research or even have a basic understanding
`of NuVasive’s arguments. NuVasive blames Alphatec and asserts it was “not subject
`to the same meet and confer requirements of a discovery motion.” (Doc. No. 266 at 20
`n.17.) But the Court’s rules are clear, and NuVasive flagrantly ignored them: “All ex
`parte motions shall be accompanied by a declaration from the movant documenting: (1)
`efforts to contact opposing counsel, (2) counsel’s good faith, in person or by telephone
`meet and confer efforts to resolve differences with opposing counsel, and (3) opposing
`counsel’s general position regarding the ex parte motion.” (Chamber Rules IV.)
`Alphatec received NuVasive’s motion cold. As such, Alphatec should not be punished
`because NuVasive forced Alphatec to respond to meritless but extremely serious
`allegations that had extremely serious consequences in a compressed time frame. There
`is simply no basis to erase all of Mr. Nisbet’s time, all of Mr. Dalke’s time, and a
`substantial portion of Ms. Wickramasekera’s time.
`NuVasive also trivializes its motion as a simple, run-of-the-mill, “single-issue
`motion.” (Doc. No. 266 at 7.) But that single issue—disqualification—is the single
`most important issue to all represented parties: their continued right to counsel of their
`choice. Not to mention, in this case, NuVasive accused Alphatec’s counsel of ethical
`violations, and sought to expose privileged communications and prohibit Alphatec
`
`5
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26276 Page 9 of 15
`
`
`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
`27
`28
`
`executives from being represented in nearly one dozen related pending litigations.
`(Doc. No. 254-3 at 14.)
`NuVasive tosses aside that context to argue that Alphatec’s senior attorneys
`billed “excessive and duplicative hours.” (Doc. No. 266 at 10.) For example, NuVasive
`castigates Ms. Wickramasekera for “pull[ing] and review[ing] NuVasive’s cited cases”
`because NuVasive believes this is exclusively “more appropriately handled by junior
`associates.” (Doc. No. 266 at 8.) NuVasive ignores that it filed its disqualification
`motion ex parte on a Friday night based entirely on Ms. Wickramasekera’s conduct.
`Of course she read the cases NuVasive cited to say that she committed ethical
`violations.
`NuVasive also makes misleading statements about Alphatec’s time, like “seven
`attorneys and two paralegals submitted an additional 24 time entries for drafting
`Alphatec’s opposition to NuVasive’s motion, totaling approximately 183 hours.” (Id.)
`There are not 24 time entries exclusively dedicated to drafting Alphatec’s opposition
`totaling 183 hours. (Doc. No. 254-4.) Nearly all time entries reflect other tasks required
`to oppose NuVasive’s motion, including research, case law analysis, document and
`evidence review, and attention to supporting declarations. (See, e.g., id. at 6.)
`NuVasive’s contention that Alphatec’s “block billing” warrants a massive two-
`thirds reduction in fees is also misguided. All of Alphatec’s submitted time pertained
`to NuVasive’s motion, completely removing the block-billing concern that time entries
`capture unrelated tasks. Zest IP Holdings, LLC v. Implant Direct Mfg., LLC, No. 10–
`CV–0541–GPC (WVG), 2014 WL 6851612, at *9 (S.D. Cal. Dec. 3, 2014) (“Plaintiffs
`discounted their hours by 20% where multiple tasks are described at least one of which
`is unrelated to [Plaintiffs’] Motion for Sanctions.”) And none of the cases NuVasive
`cites support its dramatic two-thirds slashing of hours based on block-billing. Id.;
`Daimler AG v. A-Z Wheels LLC, No. 16cv875-JLS-MDD, 2018 WL 3413863, at *3
`(S.D. Cal. Apr. 23, 2018) (“A 20% reduction to the block-billed hours is appropriate on
`this basis.”) In fact, Zest IP Holdings denied a request that block-billed time entries be
`
`6
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26277 Page 10 of 15
`
`
`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
`27
`28
`
`reduced by 50% in calculating recoverable sanctions, which is far less than the 66%
`reduction NuVasive seeks in this case. Zest IP Holdings, 2014 WL 6851612, at *9.
`The other cases NuVasive cites are inapposite. For example, NuVasive rests on
`Grain v. Trinity Health, No. 03–72486, 2009 WL 3270584 (E.D. Mich. Oct. 5, 2009)
`to support its proposition that “Alphatec be permitted recovery for only one-third of its
`recoverable partner-level hours.” (Doc. No. 266 at 13.) Grain is not applicable as it is
`a Michigan case decided 10 years ago in the middle of the Great Recession. And
`importantly, unlike here, the defendants had several weeks to oppose and respond to
`Plaintiffs’ submissions.2 Redding v. ProSight Specialty Mgmt. Co., 90 F. Supp. 3d 1109
`(D. Mont. 2015) (same); Midamines Sprl Ltd. v. KBC Bank NV, No. 12-cv-8089(RJS),
`2016 WL 1071028, at *3 (S.D.N.Y. Mar. 16, 2016) (same). More time to respond gives
`a party the ability to plan to appropriately allocate resources. Alphatec, due exclusively
`to NuVasive’s desired emergency filing strategy, was not afforded that luxury because
`it was taken by surprise and had less than 48 hours to respond.
`Finally, NuVasive is wrong that Matlink, Inc. v. Home Depot U.S.A., Inc., No.
`07cv1994–DMS (BLM), 2008 WL 8504767 (S.D. Cal. Oct. 27, 2008) and Flowrider
`Surf, Ltd v. Pacific Surf Designs, Inc., No. 15cv1879-BEN (BLM), 2017 WL 2212029
`(S.D. Cal. May 18, 2017) require that reasonable fees and costs conform to some rigid
`“traditional structure” (that NuVasive itself did not adhere to in preparing its
`disqualification motion). (Doc. No. 266 at 12–13); Matlink, 2008 WL 8504767, at *5–
`6 (reducing hours for unrelated tasks); Flowrider Surf, 2017 WL 2212029, at *4
`(reducing hours because motion was not “complex as it concerned the production of
`documents and pleadings exchanged in the preceding arbitration.”)
`B. Alphatec’s Rates Are Reasonable
`NuVasive contends that Alphatec’s rates are not “in line with prevalent rates in
`the District for similar services.” (Doc. No. 266 at 13.) As such, NuVasive proposes
`
`2 For example, defendants had three weeks to oppose plaintiffs’ motion to disqualify.
`Docket, Grain, No. 2:03-CV-72486, ECF Nos. 136, 142.
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`7
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26278 Page 11 of 15
`
`
`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
`27
`28
`
`to arbitrarily reduce the rates of Alphatec’s senior attorneys by as much as 20%, and
`even more severely for Alphatec’s associates “by at least 40 percent.” (Doc. No. 266
`at 17.) Critically, NuVasive did not include a most obvious point to support its claim
`of unreasonableness: the rates of NuVasive’s counsel at Wilson Sonsini Goodrich &
`Rosati, a firm much like Winston & Strawn. The decision not to include that data
`undermines NuVasive’s position. Like Winston & Strawn, Wilson Sonsini Goodrich
`& Rosati is an international law firm with over 700 lawyers, more than $850 million in
`revenue, and is ranked a few spots lower than Winston & Strawn in the Am Law 50. If
`partner and associate rates at Wilson Sonsini Goodrich & Rosati are 20%–40% less than
`those at Winston & Strawn, why did it not include that information in its opposition?
`NuVasive suggests Alphatec’s counsel fraudulently charged a “premium.” (Doc.
`No. 266 at 16.) This is not true. Winston & Strawn is among the world’s largest and
`most successful law firms, and has long been recognized for the strength of its
`intellectual property (IP) practice. Among other accolades, the firm’s IP practice has
`recently been recognized as being in the top tier of law firms by: U.S. News, Benchmark
`Litigation, Chambers USA and Chambers Global, and IAM Patent 1000. Winston &
`Strawn, like other Am Law 50 firms, carefully calculates its rates according to current
`market data. NuVasive simply provides no basis to challenge its market rate among
`peer firms in Southern California and throughout the United States.
`NuVasive also
`improperly casts aspersions on
`the experience and
`accomplishments of Alphatec’s counsel. Each attorney’s experience and credentials are
`publicly available and attached. (Nisbet Decl. at Ex. 3.) Ms. Wickramasekera is
`formerly a partner at Kirkland & Ellis LLP with almost 15 years-experience in
`intellectual property litigation, and has significant industry recognition for her work.
`Similarly, Mr. Nisbet has spent his entire career at the firm and has 10 years-experience
`in intellectual property litigation, along with industry recognition. And Mr. Dalke has
`a Ph.D. in an applicable science and has been practicing for over 20 years. Together,
`they are part of Winston & Strawn’s Patent Litigation Practice, which has been named
`
`8
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26279 Page 12 of 15
`
`
`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
`27
`28
`
`IAM’s 2020 United States Patent Litigation Firm of the Year. It is inappropriate for
`any counsel to call into question the experience or accomplishments of its opponents in
`such a manner.
`NuVasive also argues without basis that Alphatec should not be entitled to
`recover paralegal fees and costs. On the one hand, NuVasive cuts by two-thirds
`Alphatec’s senior lawyer time based on accusations that they performed low level tasks;
`but on the other hand, NuVasive contends Alphatec is not entitled to recover the time
`of its paralegals who actually did that much needed work. Even NuVasive’s cases
`support recovering fees incurred by Winston & Strawn’s paralegals, who both have
`years of experience in high-stakes litigation. (Nisbet Decl.); (Doc. No. 266 at 16 n.14.)
`Finally, Alphatec should be awarded its fees for preparing its sanctions motion.
`Contrary to NuVasive’s assertion, such recovery is not expressly excluded by the
`Court’s order, which stated: “With regard to a sanction, the Court finds it appropriate
`to reimburse Alphatec for the cost of preparing their opposition to this motion.” (Doc.
`No. 254-3 at 22.) This sanctions motion is the direct result of NuVasive’s baseless and
`bad-faith motion to disqualify. And while NuVasive claims it “was ready and willing
`to make a reasonable offer to resolve the fee issue and avoid motion practice,” NuVasive
`never, in fact, made any offer. (Doc. No. 266 at 5.)
`C. The Circumstances Justify Alphatec’s Fees and Costs
`Finally, NuVasive asserts it “is not seeking to relitigate the Protective Order
`Motion” and then proceeds to relitigate it: “Alphatec has repeatedly mischaracterized
`NuVasive’s Protective Order Motion as one seeking disqualification. NuVasive did not
`seek disqualification.” (Doc. No. 266 at 18.) This tone-deaf argument underscores the
`need for sanctions—NuVasive refuses to accept responsibility for its baseless,
`meritless, and insulting motion, and the damage it caused to Alphatec. (Doc. No. 254-
`3 at 5–6, 14.) And yet, NuVasive continues its pattern of conduct in its response to the
`present motion, blaming Alphatec for its failure to follow the Court’s rules. (Doc. No.
`266 at 19–20.) NuVasive mischaracterizes the record in the process, which plainly
`
`9
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26280 Page 13 of 15
`
`
`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
`27
`28
`
`shows that, contrary to NuVasive’s assertions, it did not seek “clarification” after Mr.
`Malone’s deposition about “whether counsel’s communications with NuVasive’s
`former employee concern[ed] privileged information.” (Doc. No. 266 at 19–20.)
`Rather, NuVasive threatened Alphatec to “take affirmative action to maintain any and
`all electronic communications that you or your team have had with NuVasive’s existing
`or former employees, including specifically any electronic messages or texts that you
`may have exchanged with Ms. Howell prior to or during the deposition of Mr. Malone.”
`(Doc. No. 266-2 at 5.) And when NuVasive’s threats escalated—unsupported by any
`authority or evidence—Alphatec responded that it would no longer engage on the issue.
`(Doc. No. 266 at 20–21.) NuVasive made these threats regarding former NuVasive
`employees now employed at Alphatec when many of these witnesses were being
`implicated by NuVasive, and NuVasive’s continued bad-faith conduct was directed to
`drain Alphatec’s resources and prevent Alphatec from defending itself. All of this was
`based on three basic and innocuous questions about Mr. Malone’s role and
`responsibilities. (See Doc. No. 254-3 at 16–17.) And, in any event, Alphatec’s response
`did not excuse NuVasive from having to follow this Court’s rules.
`It is also nonsense to assert “[h]ad Alphatec not abruptly short-circuited the meet-
`and-confer process, the parties very well may have obviated the need for NuVasive’s
`Protective Order Motion. Instead, Alphatec chose not to engage.” (Doc. No. 266 at
`20.) At any time during the month it prepared its motion to disqualify—an issue that
`was not even raised in NuVasive’s prior threats—NuVasive could have sent a two
`sentence email to Alphatec seeking a conference about the issue, or one stating
`NuVasive’s intent to make its motion with its evidence and authority (which NuVasive
`refused to provide in its initial correspondences after Mr. Malone’s deposition).
`NuVasive alone decided to file its motion to disqualify at a most critical time in the
`case, which the Court found to be completely without merit. (Doc. No. 254-3.)
`III. CONCLUSION
`For these reasons, Defendants’ Motion for Fees and Costs should be granted.
`
`10
`
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26281 Page 14 of 15
`
`
`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
`27
`28
`
`Dated: February 26, 2020
`
`WINSTON & STRAWN LLP
`
`
`
`By: /s/ Nimalka R. Wickramasekera
`NIMALKA R. WICKRAMASEKERA
`BRIAN J. NISBET
`DAVID P. DALKE
`SARANYA RAGHAVAN
`CORINNE STONE HOCKMAN
`LEV TSUKERMAN
`
`Attorneys for Defendants
`ALPHATEC HOLDINGS, INC. AND
`ALPHATEC SPINE, INC.
`
`DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`11
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`

`

`Case 3:18-cv-00347-CAB-MDD Document 267 Filed 02/26/20 PageID.26282 Page 15 of 15
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that the foregoing document was filed with the Court’s CM/ECF
`system which will provide notice to all counsel deemed to have consented to electronic
`service. All other counsel of record not deemed to have consented to electronic service
`were served with a true and correct copy of the foregoing document by mail on this day.
`I declare under penalty of perjury under the Laws of the United States of America
`that the above is true and correct. Executed this 26th day of February, 2020 at Los
`Angeles, California.
`
`Dated: February 26, 2020
`
`
`
`WINSTON& STRAWN LLP
`
`By: /s/ Nimalka R. Wickramasekera
`NIMALKA R. WICKRAMASEKERA
`
`
`
`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
`27
`28
`
` DEFENDANTS’ REPLY ISO MOTION FOR FEES AND COSTS
`
`
`
`
`CASE NO. 3:18-CV-00347-CAB-MDD
`
`