Video Software Dealers Association et al v. Schwarzenegger et al

Filing 111

Video Software Dealers Association et al v. Schwarzenegger et al

Doc. 111

Case 5:05-cv-04188-RMW

Document 111

Filed 08/28/2007

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GIBSON, DUNN & CRUTCHER LLP THEODORE J. BOUTROUS, JR., SBN 132099 H. MARK LYON, SBN 162061 ETHAN D. DETTMER, SBN 196046 1881 Page Mill Road Palo Alto, California 94304 Telephone: [phone] Facsimile: [phone] JENNER & BLOCK LLP PAUL M. SMITH (pro hac vice) KATHERINE A. FALLOW (pro hac vice) AMY L. TENNEY (pro hac vice) MATTHEW S. HELLMAN (pro hac vice) 601 13th Street, N.W., Suite 1200 Washington, D.C. 20005 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiffs VIDEO SOFTWARE DEALERS ASSOCIATION and ENTERTAINMENT SOFTWARE ASSOCIATION

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

VIDEO SOFTWARE DEALERS ASSOCIATION and ENTERTAINMENT SOFTWARE ASSOCIATION, Plaintiffs, vs. ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of California; BILL LOCKYER, in his official capacity as Attorney General of the State of California; GEORGE KENNEDY, in his official capacity as Santa Clara County District Attorney, RICHARD DOYLE, in his official capacity as City Attorney for the City of San Jose, and ANN MILLER RAVEL, in her official capacity as County Counsel for the County of Santa Clara, Defendants.

CASE NO. C 05-4188 RMW (RS) DECLARATION OF ETHAN D. DETTMER IN SUPPORT OF PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS Date: Time October 19, 2007 9:00 a.m.

DECLARATION OF ETHAN D. DETTMER IN SUPPORT OF MOTION FOR ATTORNEYS' FEES AND COSTS

CASE NO. C 05-4188 RMW (RS)
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Case 5:05-cv-04188-RMW

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I, ETHAN D. DETTMER, declare as follows: I am a partner in the law firm of Gibson, Dunn & Crutcher LLP ("Gibson Dunn" or the "Firm"), and I am an attorney for plaintiffs Video Software Dealers Association and Entertainment Software Association (collectively, the "Plaintiffs") in this action. I submit this declaration in support of Plaintiffs' Application for Attorneys' Fees and Costs, made pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1988, Fed. R. Civ. P. 54(d), and Northern District Civil Local Rule 54-6. The facts stated in this declaration are based on my personal knowledge, and if called to testify, I could and would testify competently thereto. 1. Plaintiffs' counsel allocated litigation responsibility in this case among several

different attorneys. Throughout this litigation, the attorneys with the Jenner & Block firm, who have appeared as counsel in numerous cases across the country presenting similar issues, were primarily responsible for Plaintiffs' briefing and oral argument. Gibson Dunn assisted with substantive comments and advice, drafted certain papers filed with the Court, and took primary responsibility for matters related to local practice. 2. Gibson Dunn attorneys have substantial experience with litigation in the United States

District Court for the Northern District of California. We were able to draw on this experience to streamline the litigation process in various ways, as well as assisting with, and providing advice regarding, general litigation strategy and the briefing submitted by the Plaintiffs. The Gibson Dunn team that worked on this litigation included myself and partners Theodore J. Boutrous and H. Mark Lyon and associates Katherine A. Fortney, Alexa L. Green, Perlette M. Jura, and Michael G. Cecchini. Each of these attorneys did work matched to their level of experience. Experience of Gibson, Dunn & Crutcher LLP Attorneys 3. I am a partner in Gibson Dunn, resident in the Firm's San Francisco office. Prior to

January 1, 2007, I was an associate attorney in the same office. I have extensive general litigation and appellate experience, and have appeared frequently in the courts of this District. Prior to joining the Firm, I served as a law clerk to the late Justice James H. Brickley of the Michigan Supreme Court. I received my law degree from the University of Michigan Law School, with honors, in 1997.

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I received my undergraduate degree from Harvard College with honors. During the relevant time period, my billing rate was between $460 and $505 per hour. 4. Theodore J. Boutrous is a partner in Gibson Dunn, resident in the Firm's Los Angeles

and Washington, D.C. offices. Mr. Boutrous is Co-Chair of the Firm's Appellate and Constitutional Law Group and its Media and Entertainment Group and Vice-Chair of the Firm's Crisis Management Group. Mr. Boutrous has represented media organizations and reporters in a wide array of First Amendment, access, subpoena, libel, privacy, pre-publication review, freedom of information, prior restraint, newsgathering and copyright matters. In 2005 and 2006, the Los Angeles and San Francisco Daily Journals named Mr. Boutrous one of the 100 best lawyers in California. Washingtonian Magazine recently named him as one of the best First Amendment lawyers. The American Lawyer magazine has named Mr. Boutrous one of the "45 under 45" rising stars of the private bar and called him a "media law star." He was the 2002 recipient of the ACLU of Southern California's First Amendment Award. Mr. Boutrous received his law degree, summa cum laude, from the University of San Diego School of Law in 1987, where he was Valedictorian and Editor-inChief of the San Diego Law Review. During the relevant time period, Mr. Boutrous' billing rate was $695 per hour. 5. H. Mark Lyon is a partner in Gibson Dunn, resident in the Firm's Palo Alto office.

Mr. Lyon has extensive experience in the courts in this District, and has handled patent rights, copyrights, and trade secrets disputes through all phases of litigation at both the trial court and appellate levels. Mr. Lyon received his law degree, summa cum laude, from Santa Clara University School of Law in 1992 and his Bachelor of Science degree from Michigan State University in 1985. During the relevant time period, his billing rate was between $570 and $625 per hour. 6. Perlette M. Jura is an associate of Gibson Dunn, resident in the Firm's Los Angeles

office. She practices in the Firm's litigation department. Prior to joining the Firm, Ms. Jura clerked for the Honorable Pamela Ann Rymer of the United States Court of Appeals for the Ninth Circuit. Ms. Jura received her law degree from Stanford Law School, where she was an executive editor of the Stanford Law Review and received the Board of Editors Award. She was elected to Order of the Coif. Ms. Jura earned her undergraduate degree from the University of California at Santa Barbara, 2
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where she graduated summa cum laude. During the relevant time period, Ms. Jura's billing rate was $275 per hour. 7. Michael G. Cecchini is an associate of Gibson Dunn, resident in the Firm's San

Francisco office. He currently practices in the Firm's litigation department. Prior to joining the Firm, Mr. Cecchini clerked for the Honorable Patricia D. Steele of the Superior Court of the Virgin Islands. Mr. Cecchini received his law degree, cum laude, from the University of Michigan in 2004, where he was a notes editor for the Journal of Law Reform. Mr. Cecchini also earned his undergraduate degree from the University of Michigan, where he graduated summa cum laude. During the relevant time period, Mr. Cecchini's billing rate was between $240 and $290 per hour. 8. Katherine A. Fortney is a former associate of Gibson Dunn. She was resident in the

Firm's Palo Alto office and practiced in the Firm's litigation department. Ms. Fortney earned her law degree from New York University School of Law in 2004. During the relevant time period, Ms. Fortney's billing rate was $275 per hour. 9. In addition to these attorneys, during periods of intense work including, but not limited

to, the time when the Plaintiffs were seeking a preliminary injunction, a number of other attorneys and non-attorney staff assisted in the litigation by performing discrete tasks that were required as the case progressed to support local counsel. We do not seek reimbursement of the fees associated with the work performed by these attorneys and non-attorney staff. 10. These hourly rates are the same rates customarily charged clients for services by the

listed attorneys and staff at the time when these services were rendered on behalf of Plaintiffs in this case. These are also the same rates the Firm charged to clients in other cases at the time. These hourly rates are commensurate with the rates charged at that time by other comparable law firms in the San Francisco Bay Area for services by attorneys and paralegals with similar levels of experience (see ¶ 16 below). Attorneys' Fees And Costs Incurred By Plaintiffs 11. By this fee application, Plaintiffs are seeking reimbursement of $72,502.48 in

attorneys' fees for services rendered by Gibson Dunn attorneys. I prepared Attachment A to this fee application along with Joseph W. Guzzetta, an associate of the Firm, which includes an itemized list 3
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of the time expended and services rendered in this case. Attachment A is comprised of the legal bills for services rendered by Gibson Dunn attorneys in this matter. 12. The time entries listed in Attachment A were recorded by the listed attorneys on or

near the date on which the services were rendered in this proceeding, and submitted contemporaneously for entry into the Firm's timekeeping system. The time entries have more recently been edited to protect privileged communications with the client, or to protect aspects of litigation strategy or attorney mental impressions that are protected by the attorney work product doctrine and to remove entries for which we are not seeking reimbursement (see ¶ 9 above) (note that the figures representing the total billings in Attachment A have not been altered, but the total amount of fees we are seeking, which is less than the amounts shown in Attachment A, is set forth in ¶ 11 above). As reflected in Attachment A, after considering a variety of factors specific to this litigation, the Firm reduced the attorneys fees we charged to the Plaintiffs in this matter. Unredacted copies of these bills are available for the Court's in camera review pursuant to Civil Local Rule 54-6(b)(2) should the Court desire to review that information. 13. I have reviewed the time records summarized above and reprinted in Attachment A,

and have excluded additional hours to ensure that compensation is not sought for work that might properly be excluded from a court-ordered fee award. The hours that remain after the attorneys' review of the time records were reasonably expended to accomplish the tasks necessary for this litigation. The following table summarizes the hours spent by each Gibson Dunn attorney on this case: ATTORNEYS Ethan D. Dettmer Theodore J. Boutrous H. Mark Lyon Perlette M. Jura Michael G. Cecchini Katherine A. Fortney TOTAL HOURS1 88.4 5.5 23.1 16.25 25.2 18.1 2005 50.9 ($460) 5.5 ($695) 15.8 ($570) 16.25 ($275) .8 ($240) 18.1 ($275) 2006 37.5 ($505) 7.3 ($625) 24.4 ($290)

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Gibson Dunn changes the billing rates for its attorneys on a periodic basis. This chart contains a listing of all hours worked by each attorney on this case, along with a breakdown of the hours worked by each attorney at each billing rate in the form "hours (billing rate)". 4

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14.

Attachment A to this fee application also contains all disbursements that Gibson Dunn

made in furtherance of this case. The disbursements total $5,501.91. Mr. Guzzetta and I have reviewed the costs and expenses listed as disbursements in Attachment A, and have verified their accuracy. Attachment B to this fee application contains copies of invoices and other proof of such costs. 15. Based on my familiarity with the facts and issues in this litigation, I believe that the

hours and expenses itemized in Attachment A were reasonably and necessarily incurred on behalf of the Plaintiffs. 16. The rates of Gibson Dunn are reasonable. In 2005 my billing rate was $460.00 per

hour. My 2006 billing rate was $505.00 per hour. The other associates that worked on this matter had billing rates between $240.00 and $290.00 per hour at the time that the services were rendered. The other partners that worked on this matter had billing rates between $570.00 and $695.00 per hour. These are the standard rates that the Firm charges for the services of its attorneys at these various levels of experience, and are comparable to rates charged by associates and partners in similar firms in similar markets. Attached hereto as Attachment C is a true and correct copy of an article in The National Law Journal discussing billing rates in 2006. The article discusses how law firms' billing rates rose in 2006, and includes a related chart of billing rates for associates and partners at firms in various geographical areas. The article and related chart does not include Gibson Dunn's billing rates, but does include the rates for the Los Angeles firm Manatt, Phelps & Phillips, which has associate billing rates ranging between $250.00 and $460.00 per hour and partner billing rates ranging between $460.00 and $750.00 per hour. The San Francisco-based firm Howard, Rice, Nemerovski, Canady, Falk & Rabkin, P.C., is listed as having associate billing rates between $250.00 and $420.00 per hour and partner billing rates ranging between $440.00 and $750.00 per hour. The Palo Alto-based firm Cooley Godward Kronish LLP is listed as having associate billing rates between $240.00 and $585.00 per hour and partner billing rates ranging between $425.00 and $795.00 per hour. The billing rates charged by Gibson Dunn attorneys generally fall within these ranges and are reasonable considering the complexity and scope of this litigation. Based on my knowledge and experience with other large law firms and their billing rates, the billing rates for these 5
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firms as reflected in this article appear to accurately reflect the rates actually charged by like firms. Gibson Dunn's billing rates fall within the range of these rates charged by other large law firms in the area, and are reasonable as required under the Federal Rules of Civil Procedure. 17. On August 23, 2007, counsel for the Plaintiffs met and conferred by telephone with

counsel for the Defendants for the purposes of resolving any disputes with respect to this motion for attorneys' fees. The parties did not agree to a settlement of the issues presented in this motion. I declare penalty of perjury under the laws of the United States that the foregoing is true and correct. This declaration was executed at San Francisco, California on August 28, 2007. ___________________/s/_________________ Ethan D. Dettmer
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DECLARATION OF ETHAN D. DETTMER IN SUPPORT OF MOTION FOR ATTORNEYS' FEES AND COSTS CASE NO. C 05-4188 RMW (RS)