Perfect 10, Inc. v. Visa International Service Association et al

Filing 55

Perfect 10, Inc. v. Visa International Service Association et al

Doc. 55

Case 5:04-cv-00371-JW

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TOWNSEND AND TOWNSEND AND CREW LLP DANIEL J. FURNISS (State Bar No. 73531) MARK T. JANSEN (State Bar No. 114896) JOHN C. BAUM (State Bar No. 167570) ANTHONY J. MALUTTA (State Bar No. 193587) Two Embarcadero Center, Eighth Floor San Francisco, California 94111 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant VISA INTERNATIONAL SERVICE ASSOCIATION

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION PERFECT 10, INC., a California corporation, Plaintiff, v. VISA INTERNATIONAL SERVICE ASSOCIATION; FIRST DATA CORP, a corporation; CARDSERVICE INTERNATIONAL, INC., a corporation; MASTERCARD INTERNATIONAL INCORPORATED, a corporation; HUMBOLDT BANK, a national banking association; and DOES 1 through 100, inclusive, Defendants. Case No. CV 04 00371 JW (PVT)

DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA INTERNATIONAL SERVICE ASSOCIATION'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS Date: January 31, 2005 Time: 9:00 a.m. The Hon. James Ware Courtroom 8, 4th Floor

I, Mark T. Jansen, declare as follows: 1. I am an attorney licensed to practice law in the State of California, am a partner in the

law firm of Townsend and Townsend and Crew LLP ("Townsend"), and am attorney of record for defendant Visa International Service Association ("Visa") in this action. This declaration is submitted in support of Visa's motion for an award of its attorneys' fees and costs reasonably incurred in defense of this action. The following facts are within my personal knowledge and I would be competent to -1DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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testify if called herein as a witness. 2. Plaintiff Perfect 10, Inc. ("Perfect 10") brought an unprecedented copyright and

trademark infringement action against Visa and other defendants in this action. Plaintiff did not accuse defendants of infringement, but sued them under contributory and vicarious liability theories merely because they supplied their normal, content-neutral credit card transaction processing services to otherwise unrelated -- and largely unidentified -- independent website merchants. 3. Plaintiff brought this case against numerous defendants: Visa International Service

Association, First Data Corporation, CardService International, Inc., Humboldt Bank, and MasterCard International Incorporated. Visa is represented by Townsend, MasterCard International Incorporated is represented by Winston & Strawn LLP; and First Data Corporation, CardService International, Inc., and Humboldt Bank are represented by Keker & Van Nest, LLP 4. In the interest of economy, the defendants coordinated the defense of this action to the

extent practical in order to avoid a significant duplication of efforts. The primary example of this was that the defendants filed a consolidated motion to dismiss the original complaint; coordinated legal research; exchanged drafts of motions and legal memoranda; and coordinated in the preparation of other briefs and papers with the Court, including the filing of this motion for an award of attorneys' fees, which, although prepared by Visa's counsel and filed on behalf of only Visa, will be substantially relied upon by the other defendants in support of their motions for attorneys' fees. 5. Given the nature of the claims and potential enormous exposure to Visa and the Visa

system, as well as Plaintiff's tortured interpretation of the controlling intellectual property and unfair practices law, Visa was forced to engage specialized counsel to defend itself in this action. Visa focused its efforts on the defense of the copyright and trademark claims. Visa's counsel reasonably spent substantial time investigating the detailed and lengthy factual allegations, and conducting thorough legal research. Visa's counsel wrote the first draft of the copyright, trademark, and unfair competition sections of Defendants' original consolidated brief, and also conducted substantial legal research, and drafted argument on the libel and tortuous interference claims. 6. The defendants also coordinated in other preliminary procedural issues so as to reduce

the expense of defense as much as possible. For example, defendants jointly decided it would be a -2DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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waste of effort to conduct a Rule 26(f) conference and engage in any preliminary exchange of documents, and successfully convinced Plaintiff's counsel to defer any such work until the pleadings were resolved. 7. Defendants filed a consolidated motion to dismiss Plaintiff's original complaint and the

Court heard Defendants' motion on July 9, 2004. A true and correct copy of the transcript of the hearing (7/9/04 RT) is attached hereto as Exhibit 1. The Court ruled from the bench that the alleged facts did not fit within any recognized theory of liability and questioned whether Plaintiff could possibly allege additional material facts that would support a claim for relief. 8. On August 6, 2004, the Court issued its Order dismissing Plaintiff's complaint, but

giving Plaintiff leave to amend its copyright, trademark and related state law claims if it desired. Plaintiff's libel and intentional interference with economic relations claims were dismissed with prejudice. Attached as Exhibit 2 hereto is a true and correct copy of this Court's August 6, 2004 Order Granting Defendants' Motion to Dismiss (the "8/6/04 Order"). 9. Plaintiff filed a First Amended Complaint, and Defendants once again filed a motion to

dismiss. At the November 15, 2004 hearing on the motion to dismiss, where the entirety of the oral argument was devoted to the copyright claims, the Court questioned why Plaintiff had bothered amending as no materially new facts had been added. In response, Plaintiff's counsel stated he had done so at the demand of his client. The Court again ruled from the bench, dismissing the Complaint with prejudice, and followed that with a written opinion and decision on December 3, 2004. Attached as Exhibit 3 hereto is a true and correct copy of this Court's Order Granting Defendants' Motion to Dismiss First Amended Complaint dated December 3, 2004 (the "12/3/04 Order"). The undersigned promptly ordered a transcript of the November 15, 2004 hearing from court reporter Irene Rodriguez. Ms. Rodriguez is currently the court reporter in two trials and thus, has been unable to complete the hearing transcript. Visa will submit the transcript with its reply brief. 10. As prevailing parties, Visa and the other defendants are entitled to an award of their

attorneys' fees and other expenses incurred in defending this action. Pursuant to Civil L.R. 54-5(b)(1), counsel for all defendants met and conferred with Plaintiff's attorney, Howard King, prior to the bringing of this motion, for the purpose of attempting to resolve any disputes with respect to the -3DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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motion. Specifically, immediately following the November 15, 2004 hearing on Defendants' motions to dismiss the First Amended Complaint, all defense counsel met in person with Mr. King and requested that his client agree that it was obligated to pay defendants' legal defense fees. Mr. King responded that his client could not agree and that defendants would have to move to obtain a fee award. Because Plaintiff's attorney refused to acknowledge Plaintiff's liability to reimburse any part of Defendants' attorneys' fees as part of costs, this motion was required. 11. Plaintiff and its counsel persisted in prosecuting this baseless claim despite repeated

requests that they drop the action, and being fully aware of not just the complete lack of authority supporting their claims, but a multitude of federal and state decisions clearly holding that banks, credit card transaction processing services like Visa and other financial institutions, cannot be liable to third parties for the violations of their depositors, borrowers, or other customers. I had at least one, and possibly two telephone conversations with Plaintiff's attorney Stephen Rothschild prior to the hearing on Defendants' First Motion to Dismiss in which I requested Mr. Rothschild to voluntarily dismiss the action in light of its lack of legal support. In these conversations, I pointed out that Perfect 10 would otherwise be liable for Visa's defense expenses. I had several similar conversations with Mr. King and with Perfect 10's in-house counsel Daniel Cooper, immediately after the Court issued its August 6, 2004 Order, and during the weeks leading up to the November 15, 2004 hearing. In my discussion with Mr. King during the week after the 8/6/04 Order issued, Mr. King said in substance that he realized he could not amend his client's complaint to add new facts to satisfy the pleading requirements enunciated by this Court in its 8/6/04 Order. 12. Mr. King made a similar statement to the Press immediately following this Court's

August 6, 2004 Order. Attached hereto as Exhibit 4 is a true and correct copy of an article published August 16, 2004 in the San Francisco Recorder, containing Mr. King's Statement that "[f]rom the beginning, we knew it would probably be decided by a higher court," and "I didn't see a lot of rays of hope in Judge Ware's opinion." 13. Attached hereto as Exhibit 5 is a true and correct copy of an article published June 4,

2004 in the San Francisco Recorder, containing a quote attributed to Mr. King. Mr. King has never denied, and indeed personally acknowledged to me, that he made the statement attributed to him. -4DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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14.

This case received wide attention in other legal, national and international publications.

For example, articles regarding this case also appeared in: The New York Times, National Law Journal, Washington Internet Daily, The Computer & Internet Lawyer, E-Commerce Law & Strategy, Information Today, The Internet Newsletter, CBS MarketWatch, IP Law and Business, Truth (New Zealand), Gold Coast Bulletin (Australia), The Evening Standard (London), and National Post's Financial Post & FP Investing (Canada), among others. Attached as Exhibit 6 hereto are true and correct copies of representative articles discussing this case. 15. Plaintiff's unfounded civil action, as described above, has forced Visa to incur

substantial legal defense expenses. Attached hereto as Exhibit 7 is a true and correct copy of a billing summary prepared at my request by Townsend's accounting department, listing each invoice for attorneys fees sent to Visa for work done on Visa's behalf as a result of this action. Exhibit 7 lists each Townsend invoice sent to Visa by date of issuance, and the amount of fees for (a) attorney time and (b) litigation costs. The total amount billed to Visa in connection with this matter as of November 30, 2004 is $299,603.16, consisting of $294,617.00 in attorney time and $4,986.16 in costs. 16. The following individuals at Townsend provided legal services to Visa in connection

with this action. Attached as Exhibit 8 is a true and correct copy of a statement summarizing the total time and fees billed by each individual, as of November 30, 2004. Pursuant to Civil L.R. 54-5(b)(2), if the Court requires, an abstract of or the contemporary time records are available for inspection subject to attorney-client privilege and work product doctrine protections, as applicable. a. Mark T. Jansen (Litigation Partner). Mr. Jansen provided the following legal

services to Visa in the defense of this action: case review and assessment, litigation strategy, legal and fact analysis, client counseling, correspondence with opposing counsel, supervising legal research and brief drafting, coordinating joint defense strategy and filings, and oral argument. As of November 30, 2004, Mr. Jansen provided Visa with 283.4 hours of legal services and Visa was billed $130,364.00 in fees for that time. b. John C. Baum (Trademark & Copyright Partner). Mr. Baum provided the

following legal services to Visa in the defense of this action: case review and assessment, litigation strategy, client counseling, reviewing Plaintiff's document production and communications, -5DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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correspondence with opposing counsel, supervising legal research and brief drafting, and coordinating joint defense strategy and filings. As of November 30, 2004, Mr. Baum provided Visa with 125 hours of legal services and Visa was billed $49,815.00 in fees for that time. c. Daniel J. Furniss (Litigation Partner). Mr. Furniss provided the following legal

services to Visa in the defense of this action: case review and assessment, litigation strategy, and client counseling. As of November 30, 2004, Mr. Furniss provided Visa with 28.5 hours of legal services and Visa was billed $15,675.00 in fees for that time. d. Paul W. Vapnek (Of Counsel). Mr. Vapnek provided services regarding legal

ethics issues. As of November 30, 2004, Mr. Vapnek provided Visa with 0.5 hours of legal services and Visa was billed $260.00 in fees for that time. e. Anthony J. Malutta (Trademark & Copyright Associate). Mr. Malutta provided

the following legal services to Visa in the defense of this action: legal research, fact investigation, memoranda drafting, and brief drafting. As of November 30, 2004, Mr. Malutta provided Visa with 103 hours of legal services and Visa was billed $32,000.00 in fees for that time. f. Leonard J. Augustine, Jr. (Litigation Associate). Mr. Augustine provided the

following legal services to Visa in the defense of this action: legal research, fact investigation, memoranda drafting, and brief drafting. As of November 30, 2004, Mr. Augustine provided Visa with 93.9 hours of legal services and Visa was billed $17,948.00 in fees for that time. g. Jennifer M. Rich (Trademark & Copyright Associate). Ms. Rich provided the

following legal services to Visa in the defense of this action: legal research, fact investigation, memoranda drafting, and brief drafting. As of November 30, 2004, Ms. Rich provided Visa with 168.6 hours of legal services and Visa was billed $40,400.50 in fees for that time. h. Elizabeth R. Gosse (Trademark & Copyright Associate). Ms. Gosse provided

legal research services to Visa in defense of this action. As of November 30, 2004, Ms. Gosse provided Visa with 1.2 hours of legal services and Visa was billed $336.00 in fees for that time. i. Priya Sreenivasan (Litigation Associate). Ms. Sreenivasan provided legal

research services to Visa in defense of this action. As of November 30, 2004, Ms. Sreenivasan provided Visa with 9.9 hours of legal services and Visa was billed $2,128.50 in fees for that time. -6DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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j.

Steven D. Bassett (Paralegal). Mr. Bassett provided paralegal services in

defense of this action. As of November 30, 2004, Mr. Bassett provided Visa with 9.0 hours of legal services and Visa was billed $1,800.00 in fees for that time. k. Brian R. Miller (Paralegal). Mr. Miller provided paralegal services in defense

of this action. As of November 30, 2004, Mr. Miller provided Visa with 16.4 hours of legal services and Visa was billed $3,280.00 in fees for that time. l. Nicole D. Skibola (Case Clerk). Ms. Skibola provided case clerk and document

management services in defense of this action. As of November 30, 2004, Ms. Skibola provided Visa with 7.1 hours of legal services and Visa was billed $610.00 in fees for that time. 17. Timekeeping billers at Townsend (attorneys, paralegals, and case clerks) record the

time they spend on particular matters as they complete each task, on a daily basis. The time entries are entered into desktop software ("DTE 2001") and released periodically into the firm's accounting system for bill preparation by the firm's accounting department as directed by the billing partner. 18. The individuals at Townsend who performed legal work defending Visa have the

following qualifications: a. Daniel J. Furniss (Partner). Over twenty eight years experience in commercial

litigation including trademark and copyright, patent, unfair competition, and antitrust litigation. Daniel J. Furniss is co-chair of the firm's Litigation practice group. Attached as Exhibit 9 is a true and correct copy of Daniel J. Furniss' professional biography. Mr. Furniss' regular and customary hourly billing rate for 2004, which is the rate being charged to and paid by Visa for the defense of this action, is $550 per hour. b. Mark T. Jansen (Partner). Over twenty years experience in unfair business

practice, antitrust and commercial litigation, including trademark and copyright, unfair competition, and antitrust litigation. Associated with the predecessor firm of Khourie, Crew & Jaeger from 1984 through 1991 and partner with the firm since January, 1992. Mark T. Jansen is a member of the firm's Litigation practice group. Attached as Exhibit 10 is a true and correct copy of Mark T. Jansen's professional biography. Among the important trademark and copyright cases that Mr. Jansen has worked on are Sebastian v. Longs Drug Stores, 53 F.3d 1073 (9th Cir. 1995), and Duggan's Funeral -7DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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Services Inc. v. Duggan's Serra Mortuary, 80 Cal.App.4th 151 (2000). Mr. Jansen's regular and customary hourly billing rate for 2004, which is the rate being charged to and paid by Visa for the defense of this action, is $460 per hour. c. John C. Baum (Partner). Over eleven years experience in litigation and

intellectual property, John C. Baum is a member of the firm's Trademark & Copyright practice group. Attached as Exhibit 11 is a true and correct copy of John C. Baum's professional biography. Mr. Baum's regular and customary hourly billing rate for 2004, which is the rate being charged to and paid by Visa for the defense of this action, is $405 per hour. d. Paul W. Vapnek (Of Counsel). Attached as Exhibit 12 is a true and correct

copy of Paul W. Vapnek's professional biography. Mr. Vapnek's regular and customary hourly billing rate for 2004, which is the rate charged to Visa for the defense of this action, is $520 per hour. e. Anthony J. Malutta (Associate). Over six years experience in intellectual

property counseling and litigation, including trademark, copyright, and unfair competition litigation. Associated with the firm since September 2000, Anthony J. Malutta is a member of the firm's Trademark & Copyright practice group. Attached as Exhibit 13 is a true and correct copy of Anthony J. Malutta's professional biography. Mr. Malutta's regular and customary hourly billing rate for 2004, which is the rate being charged to and paid by Visa for the defense of this action, is $320 per hour. f. Leonard J. Augustine, Jr. (Associate). Approximately two years experience in

intellectual property litigation, including patent, trademark and copyright litigation, and four years experience advising high-technology clients in corporate and transactional matters, including equity financings, mergers and acquisitions, and securities law compliance. Associated with the firm since September, 2003, Leonard J. Augustine, Jr. is a member of the firm's Litigation group. Attached as Exhibit 14 is a true and correct copy of Mr. Augustine's professional biography. Mr. Augustine's regular and customary hourly billing rate for 2004, which is the rate being charged to and paid by Visa for the defense of this action, is $280 per hour. g. Jennifer M. Rich (Associate). Jennifer M. Rich was associated with the firm

from September 2003 to September 2004 and was a member of the firm's Trademark & Copyright practice group. In 2002-2003, before coming to work at Townsend, Ms. Rich was a judicial law clerk -8DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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for the Honorable Procter Hug, Jr., United States Circuit Court Judge for the Ninth Circuit. Ms. Rich returned to work at the Ninth Circuit Court of Appeals in October 2004, where she is now a Staff Attorney. Attached as Exhibit 15 is a true and correct copy of Jennifer M. Rich's professional biography. Ms. Rich's regular and customary hourly billing rate for 2004, which is the rate charged to Visa for the defense of this action, is $245 per hour. h. Elizabeth R. Gosse (Associate). Associated with the firm since October, 2001,

Elizabeth R. Gosse is a member of the firm's Trademark & Copyright practice group. Attached as Exhibit 16 is a true and correct copy of Elizabeth R. Gosse's professional biography. Ms. Gosse's regular and customary hourly billing rate for 2004, which is the rate charged to Visa for the defense of this action, is $280 per hour. i. Priya Sreenivasan (Associate). Associated with the firm since September,

2004, Priya Sreenivasan is a member of the firm's Litigation practice group. Attached as Exhibit 17 is a true and correct copy of Ms. Sreenivasan's professional biography. Ms. Sreenivasan's regular and customary hourly billing rate for 2004, which is the rate charged to Visa for the defense of this action, is $215 per hour. j. Steven D. Bassett (Paralegal). Mr. Bassett's regular and customary hourly

billing rate for 2004, which is the rate charged to Visa for the defense of this action, is $200 per hour. k. Brian R. Miller (Paralegal). Mr. Miller's regular and customary hourly billing

rate for 2004, which is the rate charged to Visa for the defense of this action, is $200 per hour. l. Nicole D. Skibola (Case Clerk). Ms. Skibola's regular and customary hourly

billing rate for 2004, which is the rate charged to Visa for the defense of this action, is $100 per hour. 19. The hourly rates charged to Visa are both (a) the regular hourly rates billed to all of the

firm's clients and (2) reasonable, competitive rates for attorneys, paralegals, and case clerks with their qualifications and experience in the San Francisco Bay Area market. I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed December 15, 2004 at San Francisco, California. __________/s/_____________________ Mark T. Jansen -9DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS CASE NO. CV 04 00371 JW (PVT)

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PROOF OF SERVICE CASE NO. CV 04 00371 JW (PVT)

PROOF OF SERVICE I, Linda M. Tan, declare: I am employed in the City and County of San Francisco, California in the office of a member of the bar of this court at whose direction this service was made. I am over the age of eighteen and not a party to this action. My business address is Townsend and Townsend and Crew LLP, Two Embarcadero Center, Eighth Floor, San Francisco, California, 94111. On December 15, 2004, I served the following documents exactly entitled: DECLARATION OF MARK T. JANSEN IN SUPPORT OF DEFENDANT VISA INTERNATIONAL SERVICE ASSOCIATION'S MOTION FOR AWARD OF ATTORNEYS' FEES AND COSTS on the interested parties in this action by: Howard E. King Stephen D. Rothschild KING, HOLMES, PATERNO & BERLINER LLP 1900 Avenue of the Stars, 25th Floor Los Angeles, CA 90067 [phone] (tel); [phone] (fax) email: [e-mail] Andrew P. Bridges, Esq. WINSTON & STRAWN LLP 101 California Street, Suite 3900 San Francisco, CA 94111 [phone] (tel); [phone] (fax) email: [e-mail] Jeffrey N. Mausner John R. Yates BERMAN, MAUSNER & RESSER 11601 Wilshire Boulevard, Suite 600 Los Angeles, CA 90025-1742 [phone] (tel); [phone] (fax) email: [e-mail] Michael H. Page, Esq. R. James Slaughter, Esq. KEKER & VAN NEST LLP 710 Sansome Street San Francisco, CA 94111-1704 [phone] (tel); [phone] (fax) email [e-mail]; [e-mail]

E-FILING AND/OR E-MAILING DOCUMENT [] ELECTRONIC TRANSMISSION: I caused said document to be sent by electronic transmission to the e-mail address indicated for the party(ies) listed above. The transmitting terminal address [e-mail]. ONLY E-FILING DOCUMENT [x] ELECTRONIC TRANSMISSION: I declare that a copy of said document(s) was filed electronically on December 15, 2004. Notice of this filing will be sent to all parties by operation of the Court's electronic filing system. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct, and that this declaration was executed on December 15, 2004, at San Francisco, California. /s/ Linda M. Tan
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