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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`NUVASIVE, INC.,
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`v.
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`Plaintiff,
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`ALPHATEC HOLDINGS, INC. et al.,
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` Case No.: 3:18-CV-347-CAB-MDD
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`ORDER GRANTING DEFENDANTS’
`MOTION FOR FEES AND COSTS
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`Defendants.
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`[Doc. No. 254]
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`At 6:37 p.m. PST on Friday, December 6, 2019, Plaintiff NuVasive, Inc. filed an ex
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`parte motion for a protective order and appointment of a special master. [Doc. No. 218.]
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`The motion, which included a 37-page brief and approximately 250 pages of exhibits,
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`sought a protective order “to prevent Alphatec and its counsel from further obtaining
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`confidential and privileged information from six of NuVasive’s former employees, Patrick
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`Miles, Craig Hunsaker, Kelli Howell, Brian Snider, Matthew Curran, and James Gharib,
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`outside of the formal discovery process.” [Doc. No. 218 at 7.] Considering that these
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`individuals constituted Alphatec’s Chairman and CEO, its General Counsel, and several
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`executive vice presidents and senior directors, had NuVasive’s motion been granted, it
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`would have severely hamstrung Alphatec’s ability to continue with its current counsel in
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`this litigation, if not resulted in disqualification of Alphatec’s counsel altogether.
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`In response to the NuVasive’s motion, at 8:00 a.m. on Monday, December 9, 2019,
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`Alphatec requested an in person status conference [Doc. No. 222], which the Court granted,
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`setting a hearing on December 12, 2019, and ordering Alphatec to file a response to
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`NuVasive’s motion by noon on December 11, 2019 [Doc. No. 223]. On December 11,
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`2019, Alphatec filed a 25-page opposition to NuVasive’s motion. [Doc. No. 225.]
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`On December 12, 2019, the Court held a hearing on NuVasive’s ex parte motion.
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`At the hearing, the Court denied NuVasive’s motion, stating at the outset that it appeared
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`that the motion “was brought solely for the purpose of derailing the ability of Alphatec to
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`finalize and finish discovery in this case and prepare their dispositive motions and to
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`disrupt the Court’s schedule. . . .” [Doc. No. 234 at 4.] After hearing NuVasive’s
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`argument, the Court stated:
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`At this late date in this case, knowing all these people have been consulting
`with counsel from the beginning, that you have a protective order in place that
`addressed these issues, that counsel has represented to you that they are
`following their ethical responsibilities, and you have asserted nothing more
`than vague suspicions, and discomfort that has no concrete evidence that any
`violations have taken place, I find it an insult to Alphatec’s counsel . . . .
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`[Doc. No. 234 at 18.] The Court then ruled that Alphatec was entitled to reimbursement
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`from NuVasive for the fees and costs Alphatec incurred opposing NuVasive’s motion.
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`[Doc. No. 234 at 21.]
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`Alphatec’s motion for the fees and costs it incurred opposing NuVasive’s motion is
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`now before the Court. [Doc. No. 254.] Because the Court has already held that Alphatec
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`is entitled to its fees and costs, the only issue presented by Alphatec’s motion is the
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`reasonableness of its fees and costs, and not whether Alphatec is entitled to those fees and
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`costs in the first instance.
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`Case 3:18-cv-00347-CAB-MDD Document 277 Filed 03/20/20 PageID.26335 Page 3 of 7
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`I.
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`Legal Standard
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`In the Ninth Circuit:
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`District courts must calculate awards for attorneys’ fees using the “lodestar”
`method. See Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1028 (9th
`Cir. 2000); Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.1996).
`“The ‘lodestar’ is calculated by multiplying the number of hours the
`prevailing party reasonably expended on the litigation by a reasonable hourly
`rate.” Morales, 96 F.3d at 363. Although in most cases, the lodestar figure is
`presumptively a reasonable fee award, the district court may, if circumstances
`warrant, adjust the lodestar to account for other factors which are not
`subsumed within it. See, e.g., Van Gerwen v. Guarantee Mut. Life Co., 214
`F.3d 1041, 1046 (9th Cir.2000); see also Kerr v. Screen Extras Guild, Inc.,
`526 F.2d 67, 70 (9th Cir.1975) (enumerating factors district courts may
`consider in determining fee awards).
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`Ferland v. Conrad Credit Corp., 244 F.3d 1145, 1149 n.4 (9th Cir. 2001).
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`II. Discussion
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`Using the lodestar method, Alphatec seeks an award of $242,118.80 for its attorneys’
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`fees and costs. This amount includes $225,748.14 for fees and costs incurred in responding
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`to NuVasive’s ex parte motion for a protective order, and $16,372.66 for fees incurred in
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`connection with the instant fee motion. In support of its motion, Alphatec included a
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`declaration from Brian Nisbet, a partner with the law firm of Winston & Strawn LLP,
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`counsel of record for Alphatec in this case, which explains the hours spent on Alphatec’s
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`fee motion and attaches a copy of an invoice reflecting the fees and costs Alphatec incurred
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`in response to NuVasive’s motion.
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`A.
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`Fees Related to Alphatec’s Response to NuVasive’s Motion
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`According to Alphatec’s fee motion, Winston & Strawn spent a total of 309.7
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`attorney and paralegal hours responding to NuVasive’s ex parte motion for a protective
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`order. These hours were billed at rates ranging from $345/hour to $1,005/hour, with
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`approximately a quarter of the hours worked by Nimalka Wickramasekera at a rate of
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`$1,005/hour, and another quarter of the hours worked by attorneys billing at rates of
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`$885/hour and $860/hour, respectively. In its opposition, NuVasive contends that the
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`Court should reduce Alphatec’s fees by two-thirds and award only $75,301 as a reasonable
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`fee.
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`1. Number of Hours Expended By Alphatec’s Attorneys
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`First, NuVasive argues that the number of hours Alphatec’s attorneys incurred in
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`response to NuVasive’s motion is not reasonable. Along these lines, NuVasive takes issue
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`with the total number of hours, the number of attorneys involved, the proportion of hours
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`worked by the attorneys billing at the highest rates, and entries that NuVasive believes
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`reflect a duplication of effort. NuVasive’s arguments may have carried more weight if
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`Alphatec had incurred these hours in response to a regular and expected noticed motion
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`where the outcome of the motion, if granted, would not be so significant. In such
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`circumstance, a law firm has the time and ability, and should be expected to, allocate
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`responsibilities more efficiently, assigning substantial amounts of work to attorneys billing
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`at lower rates whose work can then be reviewed by more senior (and higher billing)
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`The circumstances here, however, allowed Winston & Strawn no such luxury. These
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`circumstances included: (1) the import of NuVasive’s motion—that, if granted, the motion
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`would have had the effect of preventing Winston & Strawn from continuing to represent
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`Alphatec less than five months before trial was set to begin; (2) the seriousness of the
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`assertions in NuVasive’s motion—that Alphatec’s counsel had acted unethically; (3) the
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`size and scope of NuVasive’s motion—a 37-page brief with over 200 pages of exhibits; (4)
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`the timing of the motion—filed by NuVasive without advance notice to Alphatec near the
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`close of discovery; and (5) the highly accelerated briefing schedule imposed by the Court.
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`In sum, NuVasive’s serious, but utterly unsupported, motion appears to the Court to have
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`been fully intended to consume the time of Alphatec’s counsel when they otherwise would
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`have been preparing for depositions in this case. As evidenced by the number of hours
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`worked by Alphatec’s attorneys, NuVasive succeeded in its improper goal.
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`Considering the circumstances, that Alphatec’s higher billing attorneys performed
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`such a large proportion of the work was not unreasonable. Nor was the amount of time
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`spent by Alphatec’s attorneys in total. Indeed, the fact that these hours were actually billed
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`by Winston & Strawn to Alphatec supports finding that they are reasonable. Cf. Gonzalez
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`v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013) (“Ultimately, a ‘reasonable’
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`number of hours equals ‘[t]he number of hours ... [which] could reasonably have been
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`billed to a private client.’”) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1111
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`(9th Cir. 2008)). Accordingly, Alphatec is entitled to reimbursement for all of the hours
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`actually spent responding to NuVasive’s motion.
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`2. Hourly Rates of Alphatec’s Attorneys
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`NuVasive next argues that the hourly rates of Alphatec’s attorneys are unreasonable.
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`Once again, the Court is not persuaded. “The prevailing market rates in the relevant
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`community set the reasonable hourly rate for purposes of computing the lodestar amount.”
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`Gonzalez, 729 F.3d at 1205 (internal quotation marks and citation omitted). Here, although
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`the rates billed by Alphatec’s attorneys may appear high, they are consistent with the rates
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`charged by attorneys at large national law firms like Winston & Strawn in complex high
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`stakes patent litigation in this district. See, e.g., LG Corp. v. Huang Xiaowen, No. 16-CV-
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`1162 JLS (NLS), 2017 WL 3877741, at *3 (S.D. Cal. Sept. 5, 2017) (finding partner rate
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`of up to $895/hour and associate rate of up to $488/hour to be reasonable for work
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`performed in 2017). Indeed, notably absent from NuVasive’s motion is any indication that
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`the rates charged by its two law firms are any lower than those of Winston & Strawn, likely
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`because Wilson Sonsini Goodrich & Rosati probably bills NuVasive at similar rates. See
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`generally Max Sound Corp. v. Google, Inc., No. 14-CV-04412-EJD, 2017 WL 4536342,
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`at *12 (N.D. Cal. Oct. 11, 2017) (holding that hourly rates of between $336 and $950 for
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`Wilson Sonsini attorneys for work performed between 2014 and 2016 were reasonable);
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`Dropbox, Inc. v. Thru Inc., No. 15-CV-01741-EMC, 2017 WL 914273, at *4 (N.D. Cal.
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`Mar. 8, 2017) (approving rates for Wilson Sonsini attorneys “ranging from $275/hr for a
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`paralegal to $900/hr for a senior partner” in a lawsuit litigated between 2015 and 2017).1
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`Accordingly, the Court finds Alphatec’s attorneys’ hourly rates to be consistent with the
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`prevailing market rates for complex patent litigation in this district and are therefore
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`reasonable for computing the lodestar amount.
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`B.
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`Fees Related to the Instant Fee Motion
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`Alphatec seeks $16,372.66 for fees incurred in connection with the instant fee
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`motion. Nisbet declares that he spent a total of 17.6 hours, at a rate of $860/hour,
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`attempting to resolve this fee dispute with NuVasive counsel, reviewing bills, and in
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`drafting the motion and declaration. In addition, Wickramasekera worked 1.2 hours on the
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`motion, at an hourly rate of $1,005/hour. These hours are unreasonable considering the
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`circumstances of this motion.
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`Unlike Alphatec’s opposition to NuVasive’s ex parte motion for a protective order,
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`there was no urgency to the instant fee motion and the motion itself is immaterial to
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`Alphatec’s ability to defend itself in this case. Moreover, because the Court had already
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`determined that Alphatec was entitled to its fees, the motion itself required little more than
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`an accounting for the fees and costs Alphatec incurred as a result of NuVasive’s frivolous
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`motion. If there was ever a motion that should be drafted by a junior associate with minimal
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`oversight from a partner, it is this one. Thus, it was unreasonable for two partners to
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`perform all of the work on this motion. Nor is 17.6 hours a reasonable amount for a simple
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`seven-page motion that required little legal research.
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`Accordingly, the Court finds that the motion should have required no more than ten
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`hours of junior attorney time with an hour of review by a junior partner. The invoice
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`submitted with the motion indicates that the most junior attorneys representing Alphatec
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`1 Although these cases are from the Northern District of California, based on the Court’s knowledge of
`local billing rates and of the practices of national law firms, large national law firms like Wilson Sonsini
`and Winston & Strawn do not charge different rates based on the jurisdiction in which a complex patent
`lawsuit is filed.
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`bill at an hourly rate of $515, and Nisbet bills at an hourly rate of $860. Thus, a reasonable
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`lodestar for Alphatec’s fees for filing the instant motion is $6,010.2
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`III. Disposition
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`As discussed above, it is hereby ORDERED that Alphatec’s motion for fees and
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`costs is GRANTED. NuVasive is ORDERED to pay Alphatec $231,758.14 for the fees
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`and costs Alphatec incurred responding to NuVasive’s frivolous ex parte motion for a
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`protective order and in connection with the instant fee motion.
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`It is SO ORDERED.
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`Dated: March 20, 2020
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`2 10 hours x $515 = $5,150 + $860 = $6,010.
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