The Facebook, Inc. v. Connectu, Inc et al

Filing 776

MOTION for Attorney Fees Partially Under Seal/Redacted filed by Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P.. Motion Hearing set for 11/28/2011 09:00 AM in Courtroom 9, 19th Floor, San Francisco before Hon. James Ware. Responses due by 11/7/2011. Replies due by 11/9/2011. (Attachments: # 1 Declaration, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Proposed Order)(Baldwin, Merri) (Filed on 11/3/2011)

1
2
3
4
5
6
7
8
9
10
11

MERRI A. BALDWIN, SBN 141957
Chapman, Popik & White, LLP
650 California Street, 19th Floor
San Francisco, CA 94108
Phone [phone]
Fax [phone]
E-Mail: [e-mail]
THOMAS B. MASON*
LISA L. BARCLAY*
Zuckerman Spaeder LLP
1800 “M” Street, N.W., Suite 1000
Washington, DC 20036
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]
Attorneys for Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP

12
IN THE UNITED STATES DISTRICT COURT
13
NORTHERN DISTRICT OF CALIFORNIA -- SAN FRANCISCO DIVISION
14
15
THE FACEBOOK, INC., et al.,

Case No.: 5:07:-cv-01389 JW

16
Plaintiffs,

17
18
19
20

vs.
CONNECTU, INC., et al.,
Defendants.

MOTION FOR DISBURSEMENT OF
SETTLEMENT PROCEEDS TO FINNEGAN
HENDERSON FOR ATTORNEYS FEES AND
COSTS
Hearing Date:
Time:
Courtroom:
Judge:

November 28, 2011
9:00 a.m.
9
Hon. James S. Ware

21
22

CONFIDENTIAL: DOCUMENT SUBMITTED
UNDER SEAL PURSUANT TO LOCAL RULE
79-5(B)

23
24
25

TO ALL PARTIES AND TO THEIR COUNSEL, AND TO ALL OTHER PERSONS OR
ENTITIES INTERESTED IN THIS ACTION

26

Finnegan Henderson Farabow Garrett & Dunner LLP ("Finnegan") hereby moves,

27
28

through counsel, for an order disbursing to it the sum of $[REDACTED] in
_______________________________________________________________________________________________
MOTION FOR DISBURSEMENT OF SETTLEMENT PROCEEDS TO FINNEGAN HENDERSON FOR ATTORNEYS FEES AND COSTS
Case No. C07:cv-01389 JW

1

order to satisfy and extinguish its attorney’s lien and to pay the fees and costs incurred by

2

Cameron Winklevoss, Tyler Winklevoss, and Divya Narendra (collectively, the “Founders”) in

3

the course of Finnegan's representation of them in this action and in related Massachusetts

4

actions. In support of this Motion, Finnegan states as follows:

5

1.

Finnegan formerly represented the Founders. Specifically, Finnegan provided

6
legal services to the Founders in this action and in related proceedings in the United States
7
8

District Court for the District of Massachusetts and the United States Court of Appeals for the

9

First Circuit, namely ConnectU LLC v. Facebook, Inc., et al., 1:04-cv-10593-DPW (D. Mass);

10

ConnectU, Inc. v. Facebook, Inc. et al., 1:07-cv-10593-DPW (D. Mass) and ConnectU LLC v.

11

Zuckerberg, et al., 07-1796 (1st Cir.)(collectively the "Massachusetts Cases").

12
13

2.

Substantial invoices for the above legal services have been outstanding for years.

Such invoices remain outstanding.

14
3.

Finnegan has an attorney’s lien against the settlement proceeds currently held in

15
16

trust by Boies Schiller & Flexner LLP pursuant to this Court's November 21, 2008 Amended

17

Judgment. Finnegan filed a Notice of Lien with this Court on January 19, 2011 (Docket Entry

18

757). Neither the Founders nor any other party has contested Finnegan's lien.

19
20
21

4.

The Founders and Finnegan have agreed that the Founders shall pay Finnegan

$[REDACTED] for the services rendered and costs incurred in this action and in the
Massachusetts Cases. Exhibit 1 to Declaration of Thomas B. Mason ("Mason Decl".) The

22
Founders have further agreed that such funds should be paid from the settlement proceeds now
23
24
25

held in trust pursuant to this Court's Amended Judgment. Id.
5.

Finnegan is aware that an individual named Wayne Chang has filed a separate

26

lawsuit in Massachusetts state court against the Founders in which Mr. Chang asserts that he is a

27

stakeholder in ConnectU and therefore is entitled to a share of the settlement proceeds due to the

28

_______________________________________________________________________________________________
MOTION FOR DISBURSEMENT OF SETTLEMENT PROCEEDS TO FINNEGAN HENDERSON FOR ATTORNEYS FEES AND COSTS
Case No. C07:cv-01389 JW

1

Founders.1 Mr. Chang has yet to file a claim with this Court, despite the fact that he has been

2

aware of the trust established by this Court for well more than 1½ years.2
6.

3

Neither Mr. Chang nor any other claimant has a right to the portion of the

4

settlement proceeds that are owed to Finnegan. It is well established that, if Mr. Chang is

5

entitled to a share of the settlement, he – like any other beneficiary of the settlement – has a right

6
to a share of the proceeds that remain only after the attorneys have been paid for their work in
7
8
9

securing the settlement. Indeed, the core function of an attorney’s lien is to preserve the corpus
produced by an attorney's services so that the attorney can receive compensation for his services

10

from such corpus. Waltrip v. Kimberlin, 164 Cal. App. 4th 517, 525-26 (Cal. App. 2008)

11

("Equitable considerations . . . favor the attorney lien. It is a principle of equity that those whose

12

labor, skills, and materials resulted in the creation of a fund should be entitled to priority in the

13

payment of their claims from such source.")(internal quotations omitted). If a judgment or

14
settlement could be collected before (rather than after) the attorney is paid, an attorney’s lien
15
16

would be meaningless. Id. at 526 ("a party should not be allowed to appropriate the whole of a

17

judgment in his favor without paying for the services of his attorney in obtaining such

18

judgment") (internal quotations omitted). Accordingly, Mr. Chang’s Massachusetts claims have

19

no bearing on whether Finnegan should be permitted to collect its fees in this action.

20
21

For the reasons set forth above and for such further and other reasons as may appear to
the Court, Finnegan moves this Court for an order requiring the disbursement of the sum of

22
23

1

25

Mr. Chang also asserted claims in the Massachusetts state case against Finnegan based on
Finnegan's prior representation of the Founders and Mr. Chang as defendants in these
proceedings. But the Massachusetts court recently dismissed all claims against Finnegan.
Exhibit 2 to Mason Decl.

26

2

24

27
28

See Exhibit 3 to Mason Decl. at 8 (Finnegan motion in Massachusetts proceeding, filed in
February 2010, warning Mr. Chang that he “would only have himself to blame” if he did not
assert a claim in this Court to the trust proceeds); see also Exhibit 2 to Mason Decl. at 12 nn 7,8.
(April 2011 Massachusetts court order advising Mr. Chang of his right to assert a claim under the
November 21, 2008, Amended Judgment).
_______________________________________________________________________________________________
MOTION FOR DISBURSEMENT OF SETTLEMENT PROCEEDS TO FINNEGAN HENDERSON FOR ATTORNEYS FEES AND COSTS
Case No. C07:cv-01389 JW

1

$[REDACTED] by Boies Schiller to satisfy and extinguish its lien for attorneys’ fees and costs

2

as further described above.

3

Date: November 3, 2011

Respectfully submitted,

4
CHAPMAN, POPIK & WHITE, LLP
5
6
By

7
8

/s/ Merri A. Baldwin
MERRI A. BALDWIN

OF COUNSEL:

9
10
11
12
13

THOMAS B. MASON*
LISA L. BARCLAY*
Zuckerman Spaeder LLP
1800 M Street, N.W.
Washington, D.C. 20036
Phone: [phone]
Facsimile: [phone]

14
15

*Admitted Pro Hac Vice

16
17
18
19
20
21
22
23
24
25
26
27
28

_______________________________________________________________________________________________
MOTION FOR DISBURSEMENT OF SETTLEMENT PROCEEDS TO FINNEGAN HENDERSON FOR ATTORNEYS FEES AND COSTS
Case No. C07:cv-01389 JW