1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 NAVCOM TECHNOLOGY, INC, et al., 8 Case No. 5:12-cv-04175-EJD Plaintiffs, 9 ORDER RE ATTORNEYS’ FEES v. 10

OKI ELECTRIC INDUSTRY CO, LTD,

11 Defendant. 12

13 On September 5, 2019, the Court granted in part Defendant Oki Industry Co., Ltd.’s 14 (“Defendant”) motion for fees and costs and directed the parties to meet and confer regarding the 15 amount. As a result of the meet and confer process, Plaintiffs no longer contest or request any 16 reduction of Defendant’s claim for $136,646.00 USD and ¥2,414,800 JPY fees as reflected in Exhibit 17 GG filed on November 11, 2019. Dkt. No. 423-3. Defendant, however, seeks an additional 18 $3,457,977.00 USD and ¥41,970,300 JPY in attorney fees as reflected in Exhibit FF. Dkt. No. 19 423-2. Plaintiffs assert several objections to a large portion of these additional fees and request 20 that the fees in Exhibit FF be reduced by $1,813,051.01 USD and ¥28,613,836.00 JPY. Joint 21 Statement at 1 (Dkt. No. 423). Having reviewed the Joint Statement and related Exhibits, the 22 Court orders as follows. 23 A. Clerical Work 24 Plaintiffs object to certain billing record entries as “clerical work” that could have been 25 reasonably performed by a paralegal or other non-attorney. The Court overrules nearly all of these 26 objections. Many of the so-called entries for clerical work describe attorney-level legal work such 27 as research, review of documents, discussions of various legal issues, revisions to briefs, draft 1 motion, prepare declaration, finalize briefs for filing, review and organize recently filed 2 documents, attend to joint case management statement, attend to document productions, and 3 attention to billing issues. 4 Some of the entries describe work that could have been performed by a non-attorney such 5 as update calendar, review and organize documents, file exhibits under seal, circulate 6 correspondence, circulate filing notifications, update electronic file, create certificate of service, 7 update case calendar reminder, attention to documents and create binders. The vast majority of 8 this work, however, was performed by a paralegal at a lower hourly fee rate. No reductions are 9 warranted. 10 Defendant had attorneys translate documents. It was not unreasonable for Defendant to 11 have done so given the nature of this case. See e.g. Gidding v. Anderson, No. 07-4755 JSW, 2008 12 WL 5068524 (N.D. Cal. Nov. 24, 2008) (awarding translation costs because translations were 13 reasonably necessary to the proper determination of the issues). 14 Paralegals billed at $150/hour to “[b]reak down war room; coordinate with vendors; break 15 down Courtroom and attend jury verdict readings” (10.5 hours on 5/8/14 and 6.0 hours 5/9/14), 16 and for “[t]rial; document preparation; break down war room/court room/break out rooms after 17 trial conclusion; coordinate with vendors” (137.5 hours on 5/30/14). Plaintiffs contend that the 18 “break down” could have been reasonably performed by a legal assistant or other professional at a 19 lower rate, and accordingly request a 75% reduction of each of these billing entries. The Court 20 agrees that this type of work could have been reasonably completed by an employee at a lower 21 hourly rate. Plaintiffs’ requested 75% reduction of these fees is appropriate. 22 B. Associate Work 23 Plaintiffs object to certain billing record entries as work that could have been performed by 24 a less senior attorney. The Court overrules the objection. Although it may have been theoretically 25 possible for a less senior attorney to perform certain tasks (i.e. legal research, document review, 26 document summaries, initial drafts of discovery responses and briefs, search for record citations), 27 the reality was that until the trial preparation and trial phases of this litigation, Defendant’s 1 litigation team consisted of only two United States-based partners, Labgold and Hoeffner, and no 2 associates. Defendant was entitled to its choice of counsel and, contrary to Plaintiffs’ assertion, 3 was not required to hire a law firm with associates. The Court finds the fees charged by partners 4 Labgold and Hoeffner were reasonable. 5 C. “Vague” Litigation Purpose 6 Plaintiffs object to certain entries because the “task described does not appear reasonably 7 necessary to [Defendant’s] legal defense.” Joint Statement at 3. Plaintiffs point to the following 8 examples of tasks they contend were not reasonably necessary to Defendant’s defense: “review 9 trial transcripts” (5/9/14); lengthy “meeting[s] with client” about unspecified topics (9/24/12); “review 10 of files” (3/15/13); and “editing responses” to unspecified requests (9/7/13). 11 The Court agrees with Plaintiffs that many of Defendant’s billing entries are too vague. 12 Under Ninth Circuit law, “‘counsel is not required to record in great detail how each minute of 13 [their] time was expended’” as long as “the attorneys have satisfactorily ‘identif[ied] the general 14 subject matter of [the] time expenditures.’” Pollinator Stewardship Council v. United States EPA, 15 No. 13-72346, 2017 U.S. App. LEXIS 13343, at *22 (9th Cir. June 27, 2017) (quoting Fischer v. 16 SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000)). Each of the tasks identified above— 17 reviewing transcripts, meeting with a client, reviewing files, and editing responses—are common 18 litigation tasks for which Defendant is entitled to some compensation. The entries, however, fail 19 to identify the general subject matter of the transcripts, meeting, files, and responses. The Ninth 20 Circuit has instructed that when a fee applicant’s documentation is inadequate, the district court is 21 free to reduce an applicant’s fee award. Trustee of Directors Guild of America-Producer Pension 22 Benefits Plans v. Tise, 234 F.3d 415, 427 (9th Cir. 2000); see also Robinson v. Open Top 23 Sightseeing San Francisco, LLC, No. 14-852 PJH, 2018 WL 2088392, at *4 (N.D. Cal. May 4, 24 2019) (reducing hours by 10% to account for vague entries); Gilead Sciences, Inc. v. Merck & Co., 25 Inc., No. 13-4057 BLF, 2017 WL 3007071, at *8 (N.D. Cal. July 14, 2017) (applying percentage 26 reduction to vague entries); Davis v. Prison Health Services, No. 09-2629 SI, 2012 WL 4462520, 27 at *12 (N.D. Cal. Sept. 25, 2012) (applying across-the-board 10% reduction for vague billing 1 records). Accordingly, this Court exercises its discretion to apply an across-the-board 10 percent 2 reduction to vague entries as specified in section “J” of this Order. 3 D. “Excessive” Time 4 Plaintiffs object to certain entries because “[t]he amount of time spent on the task does not 5 appear reasonable for an attorney/professional at this billable rate.” Joint Statement at 4. 6 Plaintiffs also contend that certain entries are for work that could have reasonably been performed 7 by fewer timekeepers. Plaintiffs give three examples of purportedly excessive billing by partners: 8 (1) 99.50 hours to research and draft a reply brief in support of Defendant’s motion for 9 supplemental attorney fees (5/23/19 – 5/30/19); 11 hours for a single entry of “reviewing case 10 files” (9/23/12); and more than 37.45 hours to draft a set of interrogatory responses (6/20/13 – 11 6/26/13). 12 “In challenging attorney fees as excessive because too many hours of work are claimed, it is 13 the burden of the challenging party to point to the specific items challenged, with a sufficient argument 14 and citations to the evidence.” Lunada Biomedical v. Nunez, 230 Cal. App. 4th 459, 488 (2014) 15 (quoting Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Ass’n, 163 Cal. App. 4th 550, 564 16 (2008)). “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” 17 Id. 18 The Court is unpersuaded by the three examples above that Defendant billed excessive time. 19 First, motions for attorney fees can be time consuming. It is reasonable in this case for Defendant to 20 have spent nearly one hundred hours researching and drafting its reply brief given the scope and 21 complexity of the case, the number of years the parties have been litigating, the number of team 22 members, the volume of billing records, and the amount of fees at issue. 23 Second, Attorney T. Nagashima billed eleven hours for “reviewing the case files” during his 24 first month working on the case. Although the contents of the case file are not specified in the billing 25 records, it is reasonable to assume the case file included, at a minimum, the key documents that were 26 e-filed from the inception of the case to the date of his review such as the notice of removal, 27 1 complaint, briefing for the motion to remand, clerk’s notices, and briefing for the motion to dismiss. 2 Eleven hours to review these materials is reasonable. 3 Third, Plaintiffs contend that it was excessive for Defendant to spend more than 37.45 hours 4 to draft a set of interrogatory responses (6/20/13 – 6/26/13). Plaintiffs, however, do not explain 5 why. The Court has no information about the number of interrogatories in the set, the type of 6 information the interrogatories called for, or whether such information was readily available and 7 incorporated into Defendant’s responses. Therefore, the Court rejects Plaintiffs’ argument as 8 entirely conclusory. 9 E. “Redundant Work” 10 Plaintiffs propose reductions where a single task was performed by multiple attorneys, 11 asserting that the task should have reasonably been performed by fewer timekeepers. Plaintiffs point 12 to the following examples of purported redundant work: two partners and one associate prepared the 13 same witness for deposition (6/21/13 and 6/25/13); and partner T. Nagashima submitted flat-rate 10- 14 hour time entries to attend every day of trial—in addition to the three U.S. attorneys who tried the case 15 (4/21/14 – 5/8/14). 16 The Court rejects Plaintiffs’ argument. None of these expenditures are unreasonable on their 17 face, and it is entirely speculative on Plaintiffs’ part to suggest that the tasks could have reasonably 18 been performed by fewer timekeepers. It is not uncommon or unreasonable for a witness to require 19 significant preparation for deposition. Nor is it uncommon or unreasonable for multiple attorneys to 20 attend each day of trial. 21 F. Block Billing 22 Plaintiffs object to certain entries as block billing. The objection is overruled. Block 23 billing is not per se objectionable and may be acceptable if the descriptions are adequate. See, e.g., 24 Gilead Scis. v. Merck & Co, 2017 WL 3007071, at *8. The Court previously instructed Defendant 25 to avoid block billing disparate or unrelated subject matters. Order Granting In Part Motion For 26 Award Of Fees And Costs; Directing Parties To Meet And Confer Re Amount; Continuing Status 27 Conference at 5 (Dkt. No. 413). The vast majority of previously problematic block entries with 1 disparate or unrelated subject matters have been corrected to the Court’s satisfaction, and the 2 entries contain sufficient detail to identify the tasks accomplished. 3 G. Transition Work 4 Plaintiffs object to certain entries because they constitute fees charged for the process of 5 transferring the case from Latham & Watkins to other U.S. attorneys in March of 2013. For 6 example, Plaintiffs object to Defendant’s requested fees for “Attention to case transition” (3/28/13); 7 “Attention to files in preparation for transfer to new counsel” (3/28/13); and “Discussion … re strategy 8 and transferring case responsibilities” (3/21/13). Plaintiffs contend that fees for substituting counsel 9 early in the case were not reasonably necessary to Defendant’s legal defense. 10 The Court overrules the objection. It was not unreasonable for Defendant to make a change in 11 counsel early in the case. Furthermore, at the time the transition was made, Defendant’s former lead 12 counsel was billing at $1,035 per hour—a rate significantly higher than the $700 and $550 hourly rates 13 charged by Defendant’s newly retained lead counsel. The potential savings in legal fees over the life 14 of the litigation justifies the forty hours of transition work. 15 H. Interest on Fees 16 Plaintiffs object to any award of “[f]ees for work related to [Defendant’s] efforts to collect 17 unrecoverable prejudgment interest on attorney fees.” Joint Statement at 7. The objection is 18 overruled. That Defendant did not prevail on the issue of prejudgment interest on attorney fees 19 does not mean the attorney fees expended in pursuit of the issue are not recoverable. In the Ninth 20 Circuit, a party may recoup fees even for “losing stages” of a case the party eventually wins. See 21 e.g. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-53 (9th Cir. 1991) (“If a plaintiff 22 ultimately wins on a particular claim, she is entitled to all attorney’s fees reasonably expended in 23 pursuing that claim—even though she may have suffered some adverse rulings.”). 24 I. Exchange Rate For Yen to U.S. Dollars 25 The parties disagree on the exchange rate for converting the attorneys’ fees invoiced in yen 26 to U.S. dollars. Defendant contends that the exchange rate as of the date of each invoice should be 27 applied. In contrast, Plaintiffs cite to Linley Investments v. Jamgotchian, No. LA cv 11-724 JAK, 1 2014 WL 12665812, at *4 (C.D. Cal. Apr. 16, 2014), aff’d, 670 F. App’x 627 (9th Cir. 2016) and 2 argue that the Court should apply the exchange rate as of June 16, 2017—the day Defendant 3 became the “prevailing party” for purposes of the attorney fee provision in the parties’ contract. 4 In Linley, the underlying action arose under foreign law. The prevailing party to an 5 arbitration proceeding in Ireland obtained an arbitration award in Euros. Thereafter, the prevailing 6 party filed a petition in federal court to confirm the arbitration award in U.S. dollars. The Linley 7 court recognized that there were two different rules that potentially applied “to determine the 8 applicable exchange rate when converting an award of foreign currency into dollars”: the “breach 9 of day rule” and the “judgment day rule.” Id. at *4. The Linley court ultimately applied the so- 10 called “judgment day rule” and held that the final judgment “shall provide for an award in US 11 dollars, based on the prevailing conversion rate as of the date the judgment is entered.” Id. at *6. 12 Here, Defendant’s entitlement to attorney’s fees does not arise under foreign law. Rather, 13 the parties entered into a contract with an attorney’s fee provision. Dkt. No. 331-20. Section 22.0 of 14 the contract specified that the contract and the parties’ performance thereunder “shall be construed in 15 accordance with and governed by the laws of the State of California.” Id. The suit was litigated in 16 California, not in a foreign jurisdiction. Therefore, neither the “breach of day rule” nor the “judgment 17 day rule” stated in Linley are directly applicable here. 18 The Court agrees with Defendant that fees invoiced in yen should be converted to U.S. 19 dollars using the exchange rate in effect as of the date of the invoice. 20 J. Conclusion 21 The Court awards attorney’s fees to Defendant as the prevailing party as reflected in 22 Exhibit FF and GG, with the reductions indicated in the last column below: 23 Date MTe ea mm b er Title Task/ Time Rate Req (. U A Sm Do )u nt ObP jl ea ci tn ioti nff s a' n d C Ro edu urt c O tiord ne red Description Basis for Objection 24 5-8-14 Rigney Paralegal Break down war room; 10.50 $150.00 $1,575.00 Clerical work; 75% coordinate with excessive time 25 vendors; break down Courtroom and attend jury verdict readings 26 5-9-14 Rigney Paralegal Break down war room; 6.00 $150.00 $900.00 Clerical work; 75% coordinate with excessive time 27 vendors; break down Courtroom and attend jury verdict readings 1 2 5-30-14 Waiter Paralegal Trial; document 137.50 $150.00 $20,625.00 Block billed; 75% preparation; break excessive time; 3 down war clerical work; vague room/court litigation purpose 4 room/break out rooms after trial 5 conclusion; coordinate with 6 vendors 8-28-12 Ladra Partner Attend to research 1.10 $995.00 $1,094.50 Vague litigation 10% issues purpose; excessive 7 time 8 8-29-12 Ladra Partner Attention to research 0.80 $995.00 $796.00 Vague litigation 10% issues purpose; excessive time 9 9-14-12 Hirofumi Associate Translating Japanese 6.00 ¥22,000 ¥132,000.00 Vague litigation 10% 10 Kato mails to English purpose; clerical work 11 9-16-12 TNagashima Partner Reviewing 1.10 ¥50,000 ¥55,000.00 Vague litigation 10% documents sent purpose 12 from Oki 13 9-17-12 Hirofumi Associate translating Japanese 4.20 ¥22,000 ¥92,400.00 Vague litigation 10% Kato e-mails into English purpose; clerical work 14 9-19-12 Kojiro Akashi Associate Meeting with Client 2.20 ¥30,000 ¥66,000.00 Excessive time; 10% 15 vague litigation purpose 16 9-19-12 TNagashima Partner Meeting with 3.90 ¥50,000 ¥195,000.00 Excessive time; 10% Client; reviewing vague litigation 17 documents purpose received from 18 Client 9-23-12 TNagashima Partner Reviewing case files. 11.00 ¥50,000 ¥550,000.00 Vague litigation 10% 19 purpose; excessive time 20 9-24-12 Rawlinson Partner Prepare for and 5.20 $790.00 $4,108.00 Vague litigation 10% meet with client purpose 21 regarding Navcom case 22 9-24-12 TNagashima Partner Meeting with Client 10.00 ¥50,000 ¥500,000.00 Vague litigation 10% and US attorneys in purpose; 23 SF excessive time 11-20-12 Kojiro Akashi Associate Meeting with Client 1.80 $30,000 ¥54,000.00 Vague litigation 10% 24 purpose 25 12-14-12 Steve Bryan Associate Phone call with US 0.90 $35,000 ¥31,500.00 Vague litigation 10% attorney; emailing to purpose 26 Client summarizing the phone call 27 12-21-12 Kojiro Akashi Associate Meeting with Client 2.50 $30,000 ¥75,000.00 Vague litigation 10% 1 purpose 2 12-21-12 TNagashima Partner Meeting with Client 2.60 ¥50,000 ¥130,000.00 Vague litigation 10% purpose 3 4 12-26-12 Kojiro Akashi Associate Meeting with Client 1.80 $30,000 ¥54,000.00 Vague litigation 10% purpose 5 12-26-12 TNagashima Partner Meeting with Client 1.50 ¥50,000 ¥75,000.00 Vague litigation 10% 6 purpose 7 1-17-13 Steve Bryan Associate Meeting with Client; 3.00 $35,000 ¥105,000.00 Vague litigation 10% e-mail to US purpose 8 Attorneys 9 1-17-13 TNagashima Partner Meeting with Client; 3.20 ¥50,000 ¥160,000.00 Vague litigation 10% Correspondence with purpose US Attorneys 10 1-24-13 TNagashima Partner Drafting e-mails to 0.80 ¥50,000 ¥40,000.00 Vague litigation 10% 11 US attorneys purpose 12 3-11-13 Kojiro Akashi Associate Meeting with Client 1.60 $30,000 ¥48,000.00 Vague litigation 10% purpose 13 3-14-13 TNagashima Partner Telephone 0.50 ¥50,000 ¥25,000.00 Vague litigation 10% 14 Conference with US purpose; attorneys re redundant work 15 strategies 4-10-13 Makman Attorney Telephone 0.20 $425.00 $85.00 Vague litigation 10% 16 conference with M. purpose Labgold. 17 4-26-13 Makman Attorney Telephone 0.50 $425.00 $212.50 Vague litigation 10% conference with M. purpose 18 Labgold. 19 4-29-13 TNagashima Partner Reviewing past 1.00 ¥50,000 ¥50,000.00 Vague litigation 10% correspondence purpose; redundant work 20 6-17-13 Makman Attorney Review 0.10 $425.00 $42.50 Vague litigation 10% 21 correspondence. purpose 22 6-18-13 Makman Attorney Review 0.30 $425.00 $127.50 Vague litigation 10% correspondence, e- purpose 23 mail to counsel. 24 6-20-13 Yasutomo Associate Meeting with Client 5.50 $25,000 ¥137,500.00 Vagu pe u l rit pig oa seti ;o n 10% excessive time 25 7-24-13 Yasutomo Associate Meeting with Client 0.50 $25,000 ¥12,500.00 Vague litigation 10% 26 purpose 27 7-26-13 | TNagashima Partner {Reviewing email 0.70 | ¥50,000 | ¥35,000.00 | Vague litigation |10% ] from US Counsel purpose 2 8-7-13 Makman Attorney {Review e-mail and 0.10 | $425.00 $42.50 ‘ague litigation |10% respond. purpose 3 4 8-7-13 | TNagashima Partner |Meeting with Client 1.50 | ¥50,000 ¥75,000.00 Vague litigation }10% purpose 5 8-22-13 Matz Attorney |Teleconference 0.30 | $370.00 $111.00 ‘ague litigation |10% 6 regarding filing and purpose review edits. 7 10-28-13] TNagashima Partner |Telephone 0.80 | ¥50,000 | ¥40,000.00) Vague litigation |10% conference with purpose 8 Client 9 11-4-13 | Hirofumi Paralegal |Searching ¥22,000 |¥19,800.00 |Vague litigation |10% Kato documents; purpose, corresponding redundant work 10 with US attorneys 11-5-13 | Hirofumi Paralegal |Searching 0.80 | ¥22,000 ¥17,600.00 |Vague litigation |10% 11 Kato documents; purpose, corresponding redundant work e 12 with US attorneys 11-11-13) Hirofurni Paralegal |Corresponding with | 0.80 | ¥22,000 | ¥17,600.00 | Vague litigation |10% 13 Kato US attorneys purpose

So = 17

oO 18 19 IT IS SO ORDERED. 20 || Dated: January 7, 2020 21

EDWARD J. DAVILA

22 United States District Judge 23 24 25 26 27 28 || Case No.: 5:12-cv-04175-EJD

ORDER RE ATTORNEYS’ FEES

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