Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 1 of 14
`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 1 of 14
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`EXHIBIT 1
`EXHIBIT 1
`
`

`

`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 2 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`REALTIME ADAPTIVE STREAMING, LLC
`CIVIL ACTION NO. 1:17-CV-02097
`
`Plaintiff,
`
`v.
`
`SLING TV L.L.C., et al.
`PATENT CASE
`Defendants.
`
`
`
`AFFIDAVIT IN SUPPORT OF
`DEFENDANTS’ MOTION TO FIND THIS CASE EXCEPTIONAL
`UNDER 35 U.S.C § 285 AND FOR FEE SHIFTING OF ATTORNEYS’ FEES
`
`
`
`
`I, Adam Shartzer, declare as follows:
`
`
`Introduction
`
`I am a principal of Fish & Richardson PC (“Fish”). Defendants Sling TV L.L.C.,
`
`1.
`
`Sling Media L.L.C., Dish Technologies L.L.C., and Dish Network L.L.C. (collectively
`
`“Defendants”) retained Fish in this patent infringement action brought by Realtime Adaptive
`
`Streaming LLC (“Realtime”).
`
`2.
`
`I am submitting this declaration in support of Defendants’ Motion to Find This Case
`
`Exceptional Under 35 U.S.C § 285 and for Fee Shifting of Attorneys’ Fees. I have personal
`
`knowledge of the facts contained in this declaration.
`
`3.
`
`As discussed in the concurrently-filed motion, Defendants only seek to recover fees
`
`from after the Court lifted the stay on January 15, 2021.
`
`4.
`
`For the period of January 15, 2021 through July 2021, Fish spent 7,439.4 hours
`
`defending Defendants from Realtime’s allegations of patent infringement. This time amounts to
`
`$4,971,532.50 in attorney’s fees. An itemization of the services performed during this period is
`
`attached as Exhibit A to this declaration.1
`
`
`1 By presenting an itemization of services, it is not my intention, nor the intention of Defendants,
`to waive the attorney-client privilege or protection provided by the work-product doctrine
`regarding any issue.
`
`
`
`1
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`

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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 3 of 14
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`5.
`
`In my opinion, the fees described herein were reasonably and necessarily incurred
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`in defending this case. I believe the fees were appropriate for the skill level of the attorneys
`
`involved, the complexity of the case, and the normal and customary fees charged for patent
`
`litigation. Further, I believe that Fish’s fees were justified given that Defendants were ultimately
`
`able to fully prevail in the case, leading to no liability.
`
`
`
`Fish & Richardson Overview
`
`6.
`
`Fish is a law firm that specializes in intellectual property litigation with broad
`
`experience across every IP forum—from district courts to the PTAB to the ITC—and on appeal to
`
`the Federal Circuit and the United States Supreme Court. Between January 2017 and December
`
`2020, Fish attorneys tried 48 IP cases to decision in 15 different venues. Fish is the most active
`
`national firm for patent litigation in United States district courts, with more appearances than any
`
`competitor in the last 10 years. We were Lead Counsel in one of every six ITC Section 337 matters
`
`filed in 2016–2020.
`
`7.
`
`Fish is the first firm to reach 1,000 appearances before the PTAB—with more than
`
`300 more appearances than our closest competitor. Fish’s Post-Grant Group achieved this
`
`milestone by being the most active firm at the PTAB for the past three consecutive years. As of
`
`June 1, 2021, Fish had handled 1,286 IPR proceedings, 766 for the petitioner and 520 for the patent
`
`owner. Fish had also handled 85 covered business method matters and 25 post-grant review
`
`matters.
`
`8.
`
`Recent accolades include:
`
`
`IP Practice Group of the Year, Law360, 2009, 2012–2016, 2018, 2020
` Band 1 Ranking for IP and ITC, Chambers Global, 2015–2021
` Top National Ranking–Patent Litigation, IAM Patent 1000, 2012–2021
`
`IP Boutique Firm of the Year, Managing Intellectual Property, 2021
`
`ITC Firm of the Year, Managing Intellectual Property, 2020–2021
`
`IP Firm of the Year and National Impact Case of the Year, Benchmark Litigation, 2019
`
`
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`2
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 4 of 14
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` Hall of Fame, Corporate Counsel, 2019
`
`
`Fish & Richardson Attorney and Support Staff Overview
`
`
`
`9.
`
`Below is an explanation of the professional qualifications of the attorneys whose
`
`services appear in Exhibit A:
`
`10.
`
`Adam Shartzer: My practice focuses on high-stakes patent litigation in district
`
`courts and at the ITC. I litigate cases across the country, including at the U.S. Court of Appeals
`
`for the Federal Circuit and the ITC. Additionally, I advise clients regarding post-grant review
`
`strategy and over the past several years have managed or assisted with over 65 inter partes review
`
`and ex parte reexamination matters at the PTO. My experience includes argument and taking
`
`witnesses at numerous trial and post-grant proceedings, appellate briefing and argument, all
`
`aspects of discovery and formulation of claim construction and litigation strategies. Prior to this
`
`case, I defended DISH’s sister company EchoStar Corporation in the Eastern District of Texas
`
`against a case filed by Realtime Adaptive Streaming’s parent company, Realtime Data LLC, who
`
`was represented by many of the same Russ August & Kabat attorneys that appeared in this case.
`
`11.
`
`In 2020, I was selected nationally by Law360 as a “Rising Star” in Intellectual
`
`Property. In 2019, I was selected by the National Law Journal to its “40 Under 40 DC Rising
`
`Stars” list. I was also recognized as a Super Lawyers “Rising Star” each year from 2015–2020.
`
`12.
`
`I was previously a judicial law clerk to the Honorable Sharon Prost of the Court of
`
`Appeals for the Federal Circuit (2010–2011). In addition, I served as a judicial intern to the
`
`Honorable Richard Linn of the Federal Circuit (2007–2008), as well as a judicial intern to the
`
`Honorable Robert L. Barton, Jr., of the ITC (2007). I graduated from George Washington
`
`University Law School in 2008 and obtained a B.S., Electrical Engineering and a Computer
`
`Science minor from the University of Virginia in 2003.
`
`
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`3
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 5 of 14
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`13.
`
`Ruffin Cordell: Mr. Cordell served as lead counsel in this case and has served as
`
`lead counsel in more than three dozen trials. He has also argued more than two dozen appeals at
`
`the Federal Circuit. In 2012, Mr. Cordell was elected a Fellow of the American College of Trial
`
`Lawyers in recognition of his exceptional career and remarkable success in the courtroom. Prior
`
`to this case, Mr. Cordell defended DISH’s sister company Echostar Corporation in the Eastern
`
`District of Texas against a case filed by Realtime Adaptive Streaming’s parent company, Realtime
`
`Data LLC.
`
`14.
`
`Mr. Cordell’s career highlights include:
`
` Representing a Fortune 50 consumer electronics manufacturer as lead counsel in its
`worldwide, multi-billion dollar dispute with Qualcomm.
` Obtaining a limited exclusion order and cease and desist order at the ITC for client
`Samsung. This gave Samsung a powerful marketplace advantage and negotiation
`advantage in its global dispute with Sharp Electronics. He also represented Samsung
`adverse to Ericsson in a series of highly publicized and hotly contested patent licensing
`disputes involving 24 mobile device patents in the Eastern District of Texas and at the
`ITC.
` Averting a $1 billion in damages claim against client Marvell Semiconductor by
`obtaining a verdict of no infringement in the Eastern District of Texas.
`Influencing the creation of new law regarding the use of prospective royalties in patent
`cases—while also securing a significant jury verdict for an automotive manufacturing
`client in an Eastern District of Texas case involving hybrid vehicle technology.
`
`
`
`15.
`
`Mr. Cordell graduated from Georgetown University Law Center in 1989. He
`
`obtained a B.S. in Electrical Engineering from Louisiana State University in 1985. Prior to
`
`joining Fish, Mr. Cordell served as a patent examiner in computer interface device technology
`
`at the PTO.
`
`16.
`
`Prior to this case, Mr. Cordell defended DISH’s sister company EchoStar
`
`Corporation in the Eastern District of Texas against a case filed by Realtime Adaptive
`
`Streaming’s parent company, Realtime Data LLC, who was represented by many of the same
`
`Russ August & Kabat attorneys that appeared in this case.
`
`4
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 6 of 14
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`17.
`
`Richard Sterba: Mr. Sterba, a principal in the Washington, D.C., office, leads,
`
`manages and tries complex patent cases in U.S. district courts, from the Eastern District of Virginia
`
`to the Southern District of California, and the ITC. Beyond his trial work, he also has successfully
`
`argued a case to the Federal Circuit obtaining complete vindication for a small business owner
`
`whose entire business had previously been permanently enjoined. Mr. Sterba graduated from
`
`George Washington University Law School in 1998. He obtained a B.S. in Physics and
`
`Mathematics from Westminster College in 1995.
`
`18.
`
`Timothy W. Riffe: Mr. Riffe is a principal in the Washington, D.C. office. His
`
`practice emphasizes complex patent litigation in U.S. district courts and the ITC and post-grant
`
`proceedings before the PTAB. Mr. Riffe also advises clients in strategic patent counseling and
`
`prosecution. Mr. Riffe has received numerous accolades regarding his legal work, including, being
`
`named to IAM Patent 1000: “The World’s Leading Patent Professionals” for the past five years
`
`and being named as a “Top PTAB Practitioner” and recommended for ITC and for patent by IAM.
`
`He also has been distinguished as one of Washingtonian magazine’s top lawyers in intellectual
`
`property in Washington, D.C. Mr. Riffe defended DISH’s sister company Echostar Corporation
`
`in the Eastern District of Texas against a case filed by Realtime Adaptive Streaming’s parent
`
`company, Realtime Data LLC.
`
`19.
`
`Mr. Riffe graduated from George Washington University Law School in 2001. He
`
`obtained a B.S. in Mechanical Engineering from Virginia Tech in 1993. Prior to his legal career,
`
`Mr. Riffe worked as a design and process engineer for Michelin Tire Corp. and DuPont.
`
`20.
`
`Prior to this case, Mr. Riffe defended DISH’s sister company EchoStar Corporation
`
`in the Eastern District of Texas against a case filed by Realtime Adaptive Streaming’s parent
`
`
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`5
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 7 of 14
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`company, Realtime Data LLC, who was represented by many of the same Russ August & Kabat
`
`attorneys that appeared in this case.
`
`21.
`
`Brian Livedalen: Mr. Livedalen’s practice is focused on all aspects of patent
`
`litigation in U.S. district courts and before the ITC, including pre-suit investigations, discovery,
`
`Markman hearings, expert witness discovery and testimony, and trial. He has litigated cases
`
`involving internet technology, flash memory, and smartphones. Mr. Livedalen’s practice also
`
`focuses on patent licensing as well as post-grant review proceeding before the PTO. Prior to
`
`joining the firm, Mr. Livedalen was a patent examiner at the PTO in the fields of optical and
`
`semiconductor technologies. Mr. Livedalen is a registered patent attorney. He graduated from
`
`Georgetown University Law Center in 2009 and obtained a B.S. in Physics from the University of
`
`Virginia in 2005.
`
`22.
`
`Daniel Tishman: Mr. Tishman represents both plaintiffs and defendants in
`
`complex patent litigation in federal district courts, and before the ITC. Mr. Tishman also has
`
`experience representing petitioners and patent owners in post-grant proceedings. He has
`
`represented and provided strategic counseling to clients in the consumer electronics, chemical, and
`
`automotive industries. Mr. Tishman’s broad patent litigation experience includes all phases of
`
`cases, from pre-suit investigations, fact and expert discovery, claim construction, dispositive
`
`motions, trials, and appeals. He has participated in ten trials to date including eight bench trials
`
`and two jury trials. At trial, he has handled witness examination and preparation (both fact and
`
`expert witnesses). He has also taken the lead on evidentiary matters in numerous trials, including
`
`arguing evidentiary motions. Additionally, Mr. Tishman has taken and defended numerous
`
`depositions (both fact and expert witnesses), argued terms at Markman hearings, and has assisted
`
`in preparing appellate briefs and arguments. From 2011–2013, Mr. Tishman served as a judicial
`
`
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`6
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 8 of 14
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`clerk for the Honorable Yvette Kane of the United States District Court for the Middle District of
`
`Pennsylvania. Mr. Tishman graduated summa cum laude from Tulane University Law School in
`
`2011 where he was a managing editor for the Tulane Law Review. Mr. Tishman obtained a B.S.
`
`in Information Science and Technology from Pennsylvania State University in 2007.
`
`23.
`
`Michael Ellis: Mr. Ellis is an associate in the Dallas office. Prior to joining the
`
`firm, Mr. Ellis served as an active duty U.S. Navy JAG attorney with a broad litigation practice.
`
`He has extensive courtroom experience, having tried numerous contested jury and bench trials,
`
`litigated dozens of pre-trial motions, and represented nearly one hundred service members at
`
`administrative arbitration hearings. Mr. Ellis graduated from Georgetown University Law Center
`
`in 2010. He also obtained a M.S. in Foreign Service from Georgetown University in 2010. He
`
`obtained a B.S. in Electrical Engineering from the University of Texas at Austin in 2003.
`
`24.
`
`Matthew Mosteller: Mr. Mosteller is an associate in the Washington D.C., office,
`
`where he has several years’ experience representing plaintiffs and defendants in complex patent
`
`litigation in the U.S. district courts, the ITC, and the PTO. His experience spans numerous
`
`technology areas ranging from electrical and computer engineering to biomedical devices. His
`
`legal experience encompasses all stages of litigation, from pre-suit investigations through fact and
`
`expert discovery, claim construction, dispositive motions, and trial. As a registered patent
`
`attorney, Mr. Mosteller also has extensive experience with all phases of patent prosecution, inter
`
`partes review proceedings, and patent appeals. Mr. Mosteller graduated from Georgetown
`
`University Law Center in 2018. He obtained a M.S. in Systems Engineering from the University
`
`of Maryland in 2012. He obtained a B.S. in Electrical Engineering from the University of
`
`Maryland in 2010.
`
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`7
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 9 of 14
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`25.
`
`Michael Ballanco: Mr. Ballanco is an associate in the Washington, D.C. office.
`
`Mr. Ballanco’s practice focuses on all aspects of patent infringement matters at the trial and
`
`appellate level. He has argued motions before U.S. district courts and appeals at the U.S. Court of
`
`Appeals for the Federal Circuit. Mr. Ballanco has also been heavily involved in drafting successful
`
`summary judgment, Daubert, and other dispositive motions and appeals on patent and damages
`
`issues. Representative technologies Mr. Ballanco has worked on include network devices,
`
`semiconductor and memory devices, embedded automotive systems, and robotics. Mr. Ballanco
`
`obtained a B.S. in Computer Science & Business from Lehigh University in 2008. Before
`
`attending law school, he worked as a software and infrastructure security consultant for Accenture.
`
`Mr. Ballanco graduated from George Mason University School of Law in 2014. From 2015
`
`through 2017, Mike served as a judicial law clerk to the Honorable Kara F. Stoll of the U.S. Court
`
`of Appeals for the Federal Circuit.
`
`26.
`
`Min Woo Park: Dr. Park is an associate in the Washington, D.C. office. Dr. Park
`
`has extensive knowledge in molecular biology, cell biology, biochemistry, and other life science
`
`fields, as well as work experience in the field of intellectual property. Prior to joining the firm, he
`
`was a patent engineer at Ohtsuka International Patent Office. Dr. Park graduated from Georgetown
`
`University Law Center in 2015. He obtained a Ph.D. in Biochemistry from the University of
`
`Tokyo in 2008.
`
`27.
`
`Caitlin Dean: Ms. Dean is an associate in the Delaware office. Her practice
`
`focuses on patent and trade secret litigation in U.S. district courts spanning a diverse array of
`
`industries, including computer software, energy, and pharmaceuticals. In those matters, Ms. Dean
`
`has conducted pre-suit diligence, drafted initial pleadings, managed discovery, worked with fact
`
`witnesses and experts, drafted claim construction briefs, and prepared dispositive motions.
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 10 of 14
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`Additionally, she has taken depositions and argued at Markman and discovery hearings. Ms. Dean
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`graduated from the University of Michigan Law School in 2018. She obtained a B.A. in
`
`Environmental Biology from Columbia University in 2012.
`
`28.
`
`Bobby Hampton: Mr. Hampton is an associate in the Washington, D.C. office.
`
`Mr. Hampton graduated from University of Pennsylvania Law School in 2018. While in law
`
`school, Mr. Hampton focused on intellectual property through research, advanced courses, and the
`
`Giles Sutherland Rich moot court competition. Mr. Hampton wrote his law school thesis on the
`
`structural and procedural differences between the German and U.S. patent law systems. Mr.
`
`Hampton obtained a B.S. in Chemical Engineering from University of Arkansas in 2015. Mr.
`
`Hampton will be clerking for the Honerable Jimmie V. Reyna at the Federal Circuit beginning
`
`April 2022.
`
`29.
`
`Raj Utreja: Mr. Utreja is an associate in the Washington, D.C. office. He
`
`represents technology companies on intellectual property matters, specifically high technology
`
`patent disputes in U.S. district courts and before the ITC. He obtained a B.S. in Computer Science
`
`and Mathematics from Vanderbilt University in 2005. Before law school, Mr. Utreja worked as a
`
`research fellow and software engineer for a DARPA-funded think tank, where he developed
`
`software for drones and counter-sniper defense systems. He was also a patent examiner for the
`
`PTO, examining patent applications related to computer hardware and software, e-commerce and
`
`internet technologies, and telecommunications. Mr. Utreja graduated from Northwestern Pritzker
`
`School of Law in 2019. During law school, he was executive editor of the Northwestern Journal
`
`of Technology and Intellectual Property and law clerk for the Donald Pritzker Entrepreneurship
`
`Law Center, where he counseled early-stage startups on corporate, privacy, and IP matters.
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 11 of 14
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`30.
`
`In addition to the above attorneys, the invoices of Exhibit A also contain entries
`
`from the following support staff:
`
` Litigation Paralegals:
`o Adjoa Afful
`o Judith L. Best
`o Patrick Edelin
` eDiscovery Analysts:
`o Richard Mathney—Supervisor, eDiscovery
`o Edgar Solis—Supervisor, eDiscovery
`o Andy Alcindor—eDiscovery Analyst
`o Dennis Spanoudakis—Litigation Support Coordinator
` Library and Search Services Analysts:
`o Chad Gilman—Senior Research Analyst
`o Chloe Abuzeni—Research Analyst
`o Teresa Myers—Research Analyst
`o Anne Koch Baland—Document Delivery Analyst II
` Other
`o Edward G. Faeth—IP Operations Specialist
`o Adrien Knowles—Graphic Artist
`Fish’s Billing Practices and Rates
`
`Defendants were charged for work performed by Fish attorneys each month for
`
`31.
`
`
`
`time billed in 0.1-hour increments.
`
`32.
`
`Before submitting any invoice to DISH, I reviewed itemizations of the work
`
`performed and fees incurred. I removed or reduced charges that appeared excessive, unreasonable
`
`or incorrect.
`
`33.
`
`Fish has a standard practice of tracking attorney time charges associated with a case
`
`in an electronic database. To compile the information submitted with this declaration, I obtained
`
`a printout from that database of the time charges associated with this case.
`
`34.
`
`Overall, Defendants were charged an effective billing rate of $668.27 per hour. The
`
`following table itemizes Fish’s billing rates for employees who worked on this case. These rates
`
`reflect what amounts to hourly rates charged for this case that have been reduced on average by
`
`
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`10
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 12 of 14
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`approximately 15.5% from Fish’s standard patent litigation billing rates. This discount that DISH
`
`receives on rates is amongst the largest discount that any Fish client receives for patent litigation.
`
`The amount sought for fees billed with this case includes this discount.
`
`
`
`
`
`Attorney / Paralegal /
`Analysts & Support Staff
`
`Defendants’
`Billing Rate
`(USD/Hr.)
`
`825
`
`1170
`
`900
`
`825
`
`795
`
`795
`
`675
`
`625
`
`725
`
`675
`
`535
`
`545
`
`Adam Shartzer
`
`Ruffin Cordell
`
`Richard Sterba
`
`Timothy W. Riffe
`
`Brian Livedalen
`
`Daniel Tishman
`
`Michael Ellis
`
`Matthew Mosteller
`
`Michael Ballanco
`
`Min Woo Park
`
`Caitlin Dean
`
`Bobby Hampton
`
`11
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 13 of 14
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`Attorney / Paralegal /
`Analysts & Support Staff
`
`Defendants’
`Billing Rate
`(USD/Hr.)
`
`Raj Utreja
`
`Adjoa Afful
`
`Dennis Spanoudakis
`
`Judith L. Best
`
`Richard Mathney
`
`Edgar Solis
`
`Andy Alcindor
`
`Chad Gilman
`
`Chloe Abuzeni
`
`Teresa Myers
`
`Anne Koch Baland
`
`Edward G. Faeth
`
`Adrien Knowles
`
`485
`
`265
`
`260
`
`265
`
`275
`
`275
`
`260
`
`265
`
`265
`
`265
`
`110
`
`265
`
`260
`
`
`
`35.
`
`Due to the higher billing rate of partners, this case was staffed such that associates
`
`contributed to a greater percentage of the overall hours billed. The associates in the case billed
`
`
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`12
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`Case 1:17-cv-02097-RBJ Document 308-1 Filed 08/13/21 USDC Colorado Page 14 of 14
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`about 62% of the total hours. Partners billed about 33% of the total hours. The remaining hours
`
`were billed by the paralegals and litigation support members mentioned above.
`
`36.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`
`Date: August 13, 2021
`
`
`
`
`
`Respectfully submitted,
`
`
`/s/ Adam R. Shartzer
`
`
` Adam R. Shartzer
`shartzer@fr.com
` FISH & RICHARDSON P.C.
`1000 Maine Ave. SW
`Suite 1000
` Washington, DC 20024
`PH: 202-783-5070
`FX: 202-783-2331
`Attorney for Defendants DISH Network
`L.L.C., Sling TV L.L.C., Sling Media
`L.L.C., and DISH Technologies L.L.C.
`
`
`
`13
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`