Monolithic Power Systems, Inc. v. O2Micro International Limited
Filing
485
ORDER REGARDING ATTORNEYS FEES AND NON-TAXABLE COSTS. Signed by Judge Claudia Wilken on 1/17/2012. (ndr, COURT STAFF) (Filed on 1/17/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MONOLITHIC POWER SYSTEMS, INC.,
No. 08-04567 CW
Plaintiff,
ORDER REGARDING
ATTORNEYS’ FEES
AND NON-TAXABLE
COSTS
United States District Court
For the Northern District of California
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v.
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O2 MICRO INTERNATIONAL LIMITED,
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Defendant.
____________________________________
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02 MICRO INTERNATIONAL LIMITED,
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Counterclaimant,
v.
MONOLITHIC POWER SYSTEMS, INC.,
ASUSTEK COMPUTER INC., ASUSTEK
COMPUTER INTERNATIONAL AMERICA, BENQ
CORPORATION, and BENQ AMERICA
CORPORATION,
Counterclaim-Defendants.
/
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On March 3, 2011, the Court issued an Order Granting Plaintiff
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Monolithic Power Systems, Inc. (MPS) and Counterclaim-Defendant
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Asustek’s Motion for Attorneys’ Fees and Non-Taxable Costs on the
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ground that the case was exceptional under 35 U.S.C. § 285.
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Court stated that “based on 02 Micro’s vexatious litigation
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The
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strategy, litigation misconduct and unprofessional behavior, MPS
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and Asustek are entitled to reasonable attorneys’ fees,” and
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reserved its decision on the amount pending the filing of
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documentation for the fees.
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required documentation and requests attorneys’ fees in the amount
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of $13,290,092, non-taxable costs in the amount of $663,1511 and
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expert witness fees of $269,150.2 Defendant 02 Micro International
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Limited (02 Micro) objects to the amount of attorneys’ fees
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requested and the request for expert witness fees.
On May 5, 2011, MPS submitted the
In response to
United States District Court
For the Northern District of California
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02 Micro’s opposition, MPS reduces the amount of attorneys’ fees
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requested to $11,519,987.
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Having considered all the papers filed by the parties, the
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Court awards $663,151 in non-taxable costs and denies the request
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for expert witness fees.
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involved in determining the amount of the attorneys’ fee award, the
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Court will not calculate it but will indicate what will be allowed
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and disallowed.
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fees awarded based on the Court’s determination.
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Because of the complexity of calculations
MPS must then submit its calculation of attorneys’
BACKGROUND
MPS initially retained the Fish & Richardson (FR) law firm,
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which was replaced by the law firms of Finnegan, Henderson,
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Farabow, Garrett & Dunner (Finnegan) and Latham and Watkins
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(Latham).
Latham was lead counsel for MPS in this case and co-
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The Court’s March 3, 2011 Order awarded MPS $339,315 in
taxable costs. MPS indicates that 02 Micro has not paid these
costs.
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All amounts less than one dollar will be rounded down or up
to the closest whole number.
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counsel for MPS in an action before the International Trade
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Commission (ITC).
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counsel for MPS in this case.
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case.
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Finnegan was lead counsel for Asustek and coFinnegan was lead counsel in the ITC
The fee request includes the services of these three firms.
MPS and FR agreed that FR’s services would be compensated at
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its market rate less a ten percent discount.
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that Latham’s legal services would be compensated at its normal
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billing rate less a ten percent discount.
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Latham agreed to a fee limitation, but the conditions triggering
MPS and Latham agreed
In addition, MPS and
United States District Court
For the Northern District of California
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the limitation never arose.
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at its normal rate less ten percent.
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market rate less ten percent.
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agreement between MPS and Finnegan was changed to include a series
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of incentives based upon the outcome of the litigation.
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Finnegan finally agreed to a fixed monthly payment plan, the total
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of which would not exceed $4,000,000, beginning on March 1, 2009.
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Later, because of the large number of depositions required, MPS
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agreed it would renegotiate the amount it would pay Finnegan.
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However, this renegotiation has not occurred; MPS indicates that it
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will complete fee negotiations with Finnegan after the Court
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resolves the current fee dispute.
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received approximately $4,000,000 from MPS.
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reflect time entries corresponding to an amount that exceeds
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$7,000,000.
Therefore, MPS has compensated Latham
Finnegan also billed at its
In early March 2009, the fee
MPS and
Since March 2009, Finnegan has
Finnegan’s invoices
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Finnegan partner Scott Mosko declares that MPS gave him the
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invoices from FR and Latham, and Finnegan created a single Excel
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spreadsheet that includes the entries of each timekeeper from the
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three law firms.
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Finnegan sorted these entries into seventeen categories of
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activities, separating out all entries relating to the ITC
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proceeding into a non-billable (NB) category.
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amounts to $1,890,197.
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(C),” consists of block-billed entries for both the ITC and
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district court proceedings.
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The fifteen other categories, listed on pages six and seven of
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MPS’s motion, include activities such as, “Pleadings/Motions, Party
This spreadsheet contains over 9,000 entries.
This category
Another category, labeled “Combination
This category amounts to $806,882.
United States District Court
For the Northern District of California
10
Analysis and Meeting/Correspondence with Client, Case Strategy,
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Expert-Related Activities.”
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entry was block-billed and covered two or more categories, the
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total amount was assigned to only one category.
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To avoid double-billing, if a time
LEGAL STANDARD
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In the Ninth Circuit, reasonable attorneys’ fees are
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determined by first calculating the “lodestar.”
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Multnomah County, 815 F.2d 1258, 1262 (9th Cir. 1987).
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‘lodestar’ is calculated by multiplying the number of hours the
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prevailing party reasonably expended on the litigation by a
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reasonable hourly rate.”
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359, 363 (9th Cir. 1996).
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lodestar figure represents a reasonable fee.
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1262.
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figure upon consideration of additional factors that may bear upon
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reasonableness.
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(9th Cir. 1975).
“The
Morales v. City of San Rafael, 96 F.3d
There is a strong presumption that the
Jordan, 815 F.2d at
However, the court may adjust the award from the lodestar
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
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Jordan v.
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DISCUSSION
I. General Objections
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A. Not Exceptional Under Section 285
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02 Micro argues that this case is not exceptional under
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§ 285 and, thus, attorneys’ fees should not be awarded.
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was previously litigated and decided in the March 3, 2011 Order.
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Therefore, this argument is a motion for reconsideration improperly
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brought in this proceeding for the determination of the amount of
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attorneys’ fees to be awarded, and is denied.
This issue
United States District Court
For the Northern District of California
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B. Disorganized Evidence
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02 Micro argues that MPS’s evidence is disorganized, making it
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difficult to respond to the fee request.
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and categorized the 9,000 billing entries made it easier to analyze
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the huge amount of documentation.
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effectively.
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unpersuasive.
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II. Reasonable Rate
The fact that MPS sorted
02 Micro has responded
Thus, its argument that it could not respond is
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A. Legal Standard
19
Determining a reasonable hourly rate is a critical inquiry.
20
Jordan, 815 F.2d at 1262.
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produce evidence, other than the declarations of interested
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counsel, that the requested rates are in accordance with those
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prevailing in the community for attorneys of comparable skill and
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reputation.
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rate, the court may take into account: (1) the novelty and
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complexity of the issues; (2) the special skill and experience of
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counsel; (3) the quality of representation; and (4) the results
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Id. at 1263.
The fee applicant has the burden to
In establishing the reasonable hourly
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obtained.
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(9th Cir. 1988).
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(1) the time and labor required; (2) the preclusion of other
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employment by the attorney due to acceptance of the case; (3) time
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limitations; (4) the amount involved and the results obtained;
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(5) the “undesirability” of the case; and (6) awards in similar
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cases.
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factors are subsumed in the initial lodestar calculation, and
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should not serve as independent bases for adjusting fee awards.
United States District Court
For the Northern District of California
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Cabrales v. County of Los Angeles, 864 F.2d 1454, 1464
Other factors that can be considered are
Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983).
These
Morales, 96 F.3d at 363-64.
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B. Discussion
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A list of the rates for each timekeeper from Latham and
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Finnegan for 2009 and 2010 was filed under seal.
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reasonableness of the attorneys’ rates, MPS submits three different
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surveys of hourly rates charged by law firms, which were undertaken
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by the American Intellectual Property Law Association (AIPLA), the
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National Law Journal (NLJ) and PricewaterhouseCoopers.
To support the
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The AIPLA survey indicates that, for 2008 in San Francisco,
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partners’ median rate was $578 and the “third quartile” rate was
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$660; nationally, the median partners’ rate in large firms was $598
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and the “third quartile” rate was $696.3
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generally support the partners’ rates.
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v. Robotic Vision Sys., Inc., 208 F.3d 981, 987-88 (Fed. Cir. 2000)
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(approving reasonable rates based on AIPLA survey).
The rates in the surveys
See View Engineering, Inc.
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The NLJ and PricewaterhouseCoopers surveys were filed under
seal. However, they support a finding that MPS’s requested rates
are reasonable.
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The AIPLA survey shows that, in 2008 in the San Francisco Bay
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Area, associates were billed at a median hourly rate of $338, an
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average hourly rate of $366 and a “third quartile” rate of $488.
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The AIPLA and NLJ surveys support the associates’ billing rates
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requested here.
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02 Micro does not address these surveys, but cites two recent
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cases from this district in which fees were awarded based on rates
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of $650 for partners, $500 for associates and $150 for paralegals
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in the San Francisco Bay Area.
See Suzuki v. Hitachi Global
United States District Court
For the Northern District of California
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Storage Techs., 2011 WL 956896, *4 (N.D. Cal.); Faigman v. AT&T
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Mobility LLC, 2011 WL 672648, *5 (N.D. Cal.).
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these cases generally support the rates requested by MPS.
The rates awarded in
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02 Micro argues that, in cases where the attorneys’ fees are
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high, such as here, the market requires the attorneys to discount
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their rates.
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discounted the requested rates by ten percent and argues that a
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further discount of twenty percent is warranted.
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MPS’s claim that, if the attorneys had not been working on this
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case, they would have been working on other full-fee paying matters
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and, in support, submits articles from the legal press indicating
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that this case was litigated during a deep economic recession which
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adversely affected the legal profession.
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02 Micro acknowledges that the attorneys have already
02 Micro disputes
Given the large attorneys’ fees award requested in this case
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and the fact that the litigation took place during a severe
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economic recession, the Court agrees that the market would require
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a discount.
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the ten percent that Latham, Finnegan and FR negotiated with MPS
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The Court finds that the rates should be discounted by
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and understands that the attorneys’ fees requested have been
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discounted by this amount.
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not incorporate a ten percent discount, it shall so inform the
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Court.
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III. Reasonable Hours
If MPS’s attorneys’ fees request does
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A. Legal Standard
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In calculating a reasonable number of hours, attorneys must
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justify their claim by submitting detailed time records.
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may adjust the hours downward if the documentation is inadequate,
United States District Court
For the Northern District of California
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or the hours are duplicative, excessive or unnecessary.
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The court
796 F.2d at 1210.
Chalmers,
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B. Limit Award to Actual Fees Paid
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02 Micro points out that Finnegan agreed to a $4,000,000 fee
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cap and that, since March 2009, MPS has not paid fees to Finnegan
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beyond that cap.
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reimburse MPS on account of Finnegan’s fees for more than
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$4,000,000, plus pre-March 2009 fees MPS paid to Finnegan, because
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it would be reimbursing MPS for fees it never paid.
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that the fee agreements were negotiated early in the case when MPS
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and Finnegan did not know that 02 Micro would undertake acts that
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would prolong the litigation and unreasonably increase attorneys’
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fees.
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would be necessary than MPS and Finnegan had contemplated, they
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agreed to renegotiate the fee arrangement.
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Eddings, 396 F.3d 1359, 1365 (Fed. Cir. 2005), which stated:
26
Although the amount the client paid the attorney is one
factor for the court to consider in determining a
reasonable fee, it does not establish an absolute
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02 Micro argues that it should not have to
MPS responds
MPS indicates that, after it became clear that more work
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MPS cites Junker v.
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ceiling. The determination of a reasonable attorney fee
requires the court to consider all relevant circumstances
in a particular case.
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02 Micro’s argument is persuasive.
Although MPS may have
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agreed to renegotiate the fee agreement with Finnegan, this has not
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occurred.
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renegotiated after the Court issues its order is not relevant to
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this analysis.
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present, Finnegan has received a fee of $4,000,000 in accordance
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with the fee cap agreement.
The possibility that the fee agreement will be
It is undisputed that, from March 2009 to the
It would be inequitable to require 02
United States District Court
For the Northern District of California
10
Micro to pay MPS millions more in fees than MPS paid to Finnegan.
11
Therefore, the Court disallows fees requested for Finnegan’s work
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above $4,000,000 after March 2009.
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02 Micro also argues that recovery for all attorneys’ fees
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should be capped at $4,000,000 because the billing records
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intermingle the work of Latham and Finnegan so it is not possible
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to separate the work done by Finnegan from the work done by Latham.
17
This last argument is not well-taken because MPS’ chart of
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attorneys’ hours worked shows the hours worked by attorneys at each
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law firm.
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C. Fish and Richardson Legal Fees
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Although MPS requests fees on behalf of FR, it does not
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indicate the amount of this request.
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identifies from MPS’ billing records a total of $281,162 in billing
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entries by FR and argues that MPS should not be awarded any of this
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amount because FR’s work has not been adequately documented and
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because FR was ethically barred from representing MPS.
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In its opposition, 02 Micro
MPS argues that it has adequately documented FR’s work
9
1
because it has listed the time entries for FR’s attorneys in
2
Exhibit A to the Mosko Declaration, from which 02 Micro has
3
identified FR’s total time entries.
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entries to be sufficient documentation.
5
evidence that FR was ethically barred from representing MPS.
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Accordingly, no reduction of the fees MPS paid to FR is
7
The Court finds the time
Also, 02 Micro presents no
warranted.
8
D. Fees Must Be Caused By or Traced To Exceptional Behavior
9
02 Micro cites Beckman Instruments, Inc. v. LKB Produkter AB,
United States District Court
For the Northern District of California
10
892 F.2d 1547, 1552 (Fed. Cir. 1989), for the proposition that
11
there should be a close nexus between the alleged misconduct and
12
the fees awarded.
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litigation finding flowed from the fact that 02 Micro covenanted
14
not to sue after substantial litigation had taken place.
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this, 02 Micro argues that the attorneys’ fees awarded should be
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limited to those incurred after the day it realized that defeat was
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inevitable and before the day it actually granted the covenants not
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to sue.
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of its defeat when it received the Court’s expert’s report on June
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14, 2010 and, on June 18, 2010, it decided not to proceed with the
21
case.
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award to those incurred during the five days from June 14 to June
23
18, 2010, which it calculates to be $191,595.
24
02 Micro points out that the Court’s vexatious
Based on
02 Micro argues that it became aware of the inevitability
According to 02 Micro, this should limit the attorneys’ fees
Beckman explained that the purpose of awarding attorneys’ fees
25
under § 285 is to discourage infringement by penalizing the
26
infringer and to prevent gross injustice when the infringer has
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litigated in bad faith.
28
Id.
It also explained that only a few
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1
cases have awarded attorneys’ fees solely on the basis of
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litigation misconduct, without a concurrent finding of willful
3
infringement.
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infringement, the penalty imposed must be related to the bad faith
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and misconduct.
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Id. at 1552-53.
Where there is no willful
Id.
The Court found in the March 3, 2011 Order that 02 Micro's
7
misconduct was pervasive throughout the entire case, and an award
8
of fees for the entire case is appropriate.
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otherwise is unpersuasive.4
02 Micro’s argument
United States District Court
For the Northern District of California
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E. Limit Award to 02 Micro’s Expert’s Damages Estimate
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02 Micro argues that the attorneys’ fees award should be
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limited to the amount in controversy, which it defines as its
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expert’s estimate of $4,398,551 in damages through August 31, 2009.
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02 Micro argues that an award that is three times the damages
15
amount is unreasonable, but provides no authority for this
16
argument.
17
MPS points out that 02 Micro's expert stated that he expected
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to update his damages estimate through the date of the trial, as
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new data became available.
20
estimate was faulty because it did not account for MPS’s entire
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revenue stream for the accused products, which could be
22
$430,000,000 over the lifetime of the patent.
MPS also points out that the damages
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02 Micro submits, as recent authority, Fox v. Vice, 131 S.
Ct. 2205 (2011), in which the Supreme Court held that, when a
plaintiff’s civil rights suit involves both frivolous and nonfrivolous claims, reasonable attorneys’ fees may be awarded to the
defendant under 42 U.S.C. § 1988, but only for fees that the
defendant would not have incurred but for the frivolous claims.
This case is inapplicable; the issue here is not frivolous versus
non-frivolous claims.
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1
2
02 Micro’s argument for the limitation of fees on the basis of
its estimated damages is unpersuasive.
3
F. Objections to Specific Time Entries
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02 Micro objects to time entries totaling $4,227,314 of the
5
original $13,290,092 fee request.
6
amount of fees related to each objection.
7
stated previously, based on 02 Micro's objections, MPS reduced its
8
fee request to $11,519,987.
9
that remain in dispute.
It submits a chart showing the
Lydon Dec., Ex. N.
The Court will address the objections
10
United States District Court
For the Northern District of California
As
1. ITC and Domestic-Industry-Related Entries
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In its original fee request, MPS created two categories
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related to the ITC litigation.
13
“Combination,” in the amount of $806,882, consisted of ITC and
14
district-court-related entries that were block-billed together.
15
Category 17, in the amount of $1,890,197, consisted of entries
16
solely related to the ITC litigation, and was not included in the
17
fee request.
18
of the amount in Category “C,” which would be $403,441.
19
acknowledged that this was an arbitrary amount because it could not
20
ascertain what percentage of the block-billed entries was devoted
21
to the district court litigation.
Category “C,” standing for
MPS proposed that it be reimbursed for fifty percent
MPS
22
02 Micro has gone through MPS’s billing entries and, in
23
addition to the entries MPS originally included in Category 17 and
24
Category “C,” has identified $2,853,490 in purportedly non-
25
recoverable billings directed at the ITC and domestic-industry-
26
related proceedings.
27
some entries and, excluding the double-counting, $2,175,944 is in
28
MPS responds that 02 Micro has double-counted
12
1
dispute.
2
valid and has created a spreadsheet of entries to which 02 Micro
3
objected.
4
categories: (1) entries for which full compensation is appropriate
5
because none of the activities are related to the ITC proceeding,
6
amounting to $218,034; (2) a second category “C” with combined
7
entries totaling $967,960, of which MPS requests fifty percent
8
reimbursement; and (3) ITC-only entries in the amount of $989,950
9
for which the compensation request is withdrawn.
Nevertheless, MPS concedes that 02 Micro’s objection is
This spreadsheet, labeled Exhibit 22, includes three
United States District Court
For the Northern District of California
10
The Court accepts MPS’ characterization of the three
11
categories and the amount of attorneys’ fees in each category.
12
Court awards one hundred percent of the $218,034 in the first
13
category, where attorneys did not undertake ITC-related work, and
14
twenty-five percent of the $1,860,768 total amount in category “C.”
15
Thus, $465,192 is awarded for the entries in category “C.”
16
Court awards a lower percentage for category “C” than the fifty
17
percent suggested by MPS because the entries are improperly block-
18
billed, MPS acknowledges that it does not know how much of the
19
block-billed amounts were incurred in litigating this case and MPS
20
did not itself identify in its motion all of the improperly block-
21
billed entries, which required 02 Micro to comb through the 9,000
22
billing entries to identify all of the improper entries.
23
2. Lawsuit Against Professor Mercer
24
The
02 Micro objects to the inclusion of hours for work done on a
25
lawsuit against Professor Ray Mercer.
26
has placed all the entries 02 Micro has identified as Mercer-
27
related in a separate spreadsheet labeled Exhibit 23, which
28
The
13
MPS concedes the point and
1
contains three categories: (1) entries for which full compensation
2
is appropriate because none of the activities are related to the
3
Mercer lawsuit, amounting to $5,092; (2) block-billed entries
4
totaling $85,962, which contain some activities related to the
5
Mercer lawsuit and which MPS has added to category “C;” and
6
(3) entries which only relate to the Mercer lawsuit, totaling
7
$141,813, for which MPS withdraws its request for reimbursement.
8
The Court accepts MPS’ characterization of the three
9
categories and the amount of attorneys’ fees in each category.
The
United States District Court
For the Northern District of California
10
Court awards one hundred percent of the $5,092 in the first
11
category, where attorneys did not undertake Mercer-related work.
12
As in the previous section, the Court awards twenty-five percent of
13
the block-billed entries in category “C.”
14
3. ITC Discovery
15
MPS points out that, although 02 Micro created a category
16
consisting of $341,100 in billings for time spent on ITC discovery
17
before the Court allowed the parties to use ITC discovery in this
18
case, it did not object to this category in its opposition.
19
Because 02 Micro did not object to time spent on this category, no
20
reduction of fees is required.
21
4. Fees Generated Since 02 Micro Filed Motion to Dismiss
22
02 Micro argues that, as of June 19, 2010, when it filed its
23
motion to dismiss, all issues were resolved with the exception of
24
attorneys’ fees and expenses.
25
requested for this time period, which it quantifies as $432,808,
26
should be discounted by fifty percent because litigating attorneys’
27
fees does not require the same level of expertise as litigating
28
02 Micro argues that the fees
14
1
intellectual property disputes.
2
39 F.3d 1439, 1449 (9th Cir. 1994), where the Ninth Circuit
3
affirmed the district court’s decision to award Sacramento rates
4
instead of San Francisco rates for fees litigating the amount of
5
attorneys’ fees because “the justification of complex, specialized
6
knowledge and experience did not apply.”
7
02 Micro cites Gates v. Rowland,
MPS argues that, after 02 Micro filed its motion to dismiss,
8
counsel were required to undertake numerous activities not related
9
to seeking attorneys’ fees.
It points out that the Court did not
United States District Court
For the Northern District of California
10
immediately rule on the motion to dismiss, so both sides continued
11
preparing for trial.
12
13
02 Micro’s argument is not persuasive and requires no fee
reduction.
14
5. Expert Fees
15
MPS requests payment of its expert witness fees in the amount
16
of $269,150, arguing that expert fees should be included in the
17
attorneys’ fees award based upon the Court’s findings that 02
18
Micro's behavior throughout the litigation was vexatious.
19
cites Amsted Indus., Inc. v. Buckeye Steel Castings Co., 23 F.3d
20
374, 378-79 (Fed. Cir. 1994), to support its argument that recovery
21
of expert witness fees requires a level of misconduct not present
22
in this case.
23
02 Micro
Section 285 does not authorize the award of expert witness
24
fees.
25
§ 1920, within the incorporated limits of 28 U.S.C. § 1821(b).
26
Section 1821(b) provides that a witness shall be paid an attendance
27
fee of forty dollars per day for each day’s attendance and for the
28
Id.
Courts may award expert witness fees under 28 U.S.C.
15
Id.
1
time going to and returning from the place of attendance plus a
2
subsistence allowance when an overnight stay is required.
3
may also award expert witness fees under their inherent power to
4
impose sanctions for bad faith and vexatious conduct.
5
“Without a finding of fraud or bad faith whereby the ‘very temple
6
of justice has been defiled,’ a court enjoys no discretion to
7
employ inherent powers to impose sanctions.”
8
resort to its inherent power to sanction only where the rules or
9
statutes do not reach the acts which degrade the judicial system.
United States District Court
For the Northern District of California
10
11
Id.
Courts
Id. at 378.
A court should
Id.
The high attorneys’ fees award under § 285 sufficiently
12
addresses 02 Micro’s litigation misconduct.
13
for expert witness fees is denied.
14
IV. Costs
15
Therefore, the request
02 Micro has not objected to the non-taxable costs requested.
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Therefore, the Court awards $663,151 in non-taxable costs.
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V. Leave to File Fee Application for Preparing This Fee Request
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The Court grants MPS leave to file a second fee application
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for the work entailed in the preparation of the instant fee
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application and reply to 02 Micro's opposition.
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CONCLUSION
For the foregoing reasons, MPS’ request for non-taxable costs
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is granted in the amount of $663,151 and its request for expert
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fees is denied.
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by MPS in accordance with this order.
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due no later than two weeks from the date of this Order.
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Micro believes the calculation is incorrect, it may file its
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The attorneys’ fees request is to be recalculated
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The revised calculation is
If 02
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calculation one week thereafter and MPS may file a reply one week
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later.
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IT IS SO ORDERED.
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Dated: 1/17/2012
CLAUDIA WILKEN
United States District Judge
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United States District Court
For the Northern District of California
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