Mou v. City of San Jose et al

Filing 430

Mou v. City of San Jose et al

Doc. 430

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Victor de Gyarfas, Bar No. 171950 email: [e-mail] FOLEY & LARDNER LLP 555 South Flower Street, Suite 3500 Los Angeles, CA 90071-2411 Telephone: [phone] Facsimile: 213.486.0065

Attorneys for Defendant 7 International Web Innovations, Inc.
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DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Case No: 05-CV-1114 JW In re ACACIA MEDIA TECHNOLOGIES CORPORATION, MDL NO. 1665 DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF INTERNATIONAL WEB INNOVATION'S MOTION FOR ATTORNEY'S FEES [Notice of Motion and Motion, and [Proposed] Order filed concurrently herewith] Ctrm: 8, 4th floor Judge: Hon. James Ware

LACA_2427621.1

Dockets.Justia.com

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I, Victor de Gyarfas, declare: 1. 2. I make this declaration on the basis of personal knowledge, and if I am a partner at the law firm Foley & Lardner LLP (the "Firm" or called to testify as a witness, I would and could testify competently hereto. "Foley") in Los Angeles, California, counsel of record for International Web Innovations ("IWI") in the above-reference action. I make this declaration in support of IWI's Motion for Attorneys' Fees. The Meet And Confer On This Motion (Local Rule 54-5(b)(1)) 3. On behalf of IWI, I met and conferred with Alan Block, counsel for Plaintiff Acacia on December 29, 2009 for the purpose of attempting to resolve any dispute with respect to the motion, in accordance with Local Rule 54-5(b)(1). James Slominski, counsel for another defendant, Offendale, was also present on the call. I explained the basis for the motion for attorney's fees and indicated that the basis was similar to that already explained by another defendant, Echostar. I believe that I complied with the requirements of Local Rule 54-5(b)(1). Services Rendered And Qualifications (Local Rule 54-5(b)(2), (3)) 4. I was and am one of the lawyers primarily responsible for IWI's defense in this action. I am an attorney based in Los Angeles, California and have been practicing patent litigation in California for more than fifteen years. I have litigated numerous patent cases in the Northern District of California and other district courts throughout the country. 5. Foley performed legal services in the above captioned matter and these services were billed to IWI and paid by IWI. The legal services provided to IWI were billed on an hourly basis using the firm's customary hourly rates for the services provided. 6. Records of the time billed to IWI were kept in the firm's customary manner, through its electronic timekeeping and accounting systems. To prepare this declaration, I directed Foley's accounting department to create printouts of all of the bills sent to IWI in connection with the defense of
DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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this case and a summary of all of the hours worked by each attorney, the hourly rates of and fees charged by each attorney, and descriptions of the tasks performed by each attorney. Foley attorneys, including the attorneys involved in the defense of this matter, regularly enter the time spent on each matter along with a description of the tasks performed. Attorney time is typically entered on a daily basis, consistent with the practice of many other law firms. 7. I reviewed the above described printouts created by Foley's accounting department and I believe, based on my experience, that the rates charged to IWI by Foley are reasonable. I am aware that many large law firms practicing in California charge rates equal to or greater than the rates charged to IWI in this case when the experience level of the lawyers on this matter is considered. 8. 9. Additionally, based on my experience, the number of hours expended Foley has performed legal services in the above-captioned matter and on all of the tasks in this case was reasonable. those services were billed to IWI and paid by IWI. Services were provided by several Foley lawyers including Victor de Gyarfas, William J. Robinson, Ted R. Rittmaster, Anna M. Vradenburgh, and Stephen M Lobbin, among others. While other Foley lawyers also spent time on this case, by its motion, IWI is seeking only the fees of the lawyers specifically named above, all of whom spent 50 or more hours on this matter. 10. Foley & Lardner LLP was rated a "#1 Go-To-Firm" for Intellectual Property in connection with "Who Represents America's Biggest Companies" in Corporate Counsel magazine 2009. Foley & Lardner LLP was rated as having one of the top 10 largest intellectual property practices in the United States by Law360 Litigation Almanac 2009. Foley & Lardner LLP was rated a top patent litigation firm by IP Law & Business for the years 2005 ­ 2008. Foley & Lardner LLP is a firm of approximately 1,000 attorneys, with more than 200 of those attorneys
DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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practicing intellectual property law. 11. The hourly rates of the attorneys identified above are set forth in the table below. The fees listed below were actually charged to and paid by the client. Foley typically adjusts its rates in February of each year. Rate in dollars / hour Attorney W. Robinson T. Rittmaster V. de Gyarfas A. Vradenburgh S. Lobbin 12. · · · · · · · · 2003 565 395 375 350 340 405 2004 565 450 440 2005 595 485 485 490 540 2006 635 2007 675 2008 745 590 600 640 2009 790

The most intense efforts on the case occurred in 2003 and 2004. The

tasks performed related to the defense of the case included at least the following: Reviewing and responding to the complaint Attending court ordered conferences Drafting initial disclosures Reviewing, analyzing, and responding to discovery requests Analyzing defenses Analyzing claim construction issues Participating in claim construction briefings and hearings Reviewing and responding to summary judgment filings 13. In the event that the Court is inclined to grant IWI an award of
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DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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attorney's fees, but seeks further details concerning the activities of the attorneys involved in the defense of the case, IWI would produce an abstract of or the contemporary time records of the attorneys for inspection, perhaps for in camera inspection, as the Court deems appropriate, in accordance with Local Rule 545(b)(2). 14. Attorney W. Robinson T. Rittmaster V. de Gyarfas A. Vradenburgh S. Lobbin Provided in the table below is a summary of the hours spent by each Hours spent 74.3 233.0 507.2 106.5 52.6 Fees charged and paid ($) 45,756.50 96,159.00 225,804.00 37,275.00 18,248.00 attorney and the fees charged for each attorney.

The total amount of fees charged to IWI for the work of the attorneys listed above is $423,242.50. The above described work was performed for the purpose of pursuing this matter for IWI. The services performed and the attorney's fees and expenses detailed in this declaration were all reasonably necessary to represent the interests of IWI in this lawsuit. 15. Attached hereto as Exhibit "1" is a true and correct copy of a printout of the professional biography of William J. Robinson from the Foley website showing his qualifications. Mr. Robinson participated in the following tasks in connection with this case: Reviewing and responding to the complaint; Reviewing, analyzing, and responding to discovery requests; Analyzing defenses; Analyzing claim construction issues; Participating in claim construction briefings; Reviewing and responding to summary judgment filings. 16. Attached hereto as Exhibit "2" is a true and correct copy of a printout

of the professional biography of Ted. R. Rittmaster from the Foley website
DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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showing his qualifications. Mr. Rittmaster participated in the following tasks in connection with this case: Reviewing and responding to the complaint; Reviewing, analyzing, and responding to discovery requests; Analyzing defenses; Analyzing claim construction issues; Participating in claim construction briefings. 17. Attached hereto as Exhibit "3" is a true and correct copy of a printout of the professional biography of Victor de Gyarfas from the Foley website showing my qualifications. I participated in the following tasks in connection with this case: Reviewing and responding to the complaint; Reviewing, analyzing, and responding to discovery requests; Analyzing defenses; Analyzing claim construction issues; Participating in claim construction briefings and hearings; Reviewing and responding to summary judgment filings. 18. Anna Vradenburgh was a senior counsel with Foley who worked on this matter in 2003 and 2004. Ms. Vradenburgh is no longer with Foley. Ms. Vradenburgh is a 1992 graduate of Loyola Law School (Los Angeles) who has been practicing as an attorney in the intellectual property field since becoming a lawyer. Ms. Vradenburgh participated in the following tasks in connection with this case: Analyzing defenses; Analyzing claim construction issues; Participating in claim construction briefings. 19. Stephen M. Lobbin was an associate at Foley who worked on this matter in 2003 and 2004. Mr. Lobbin is no longer with Foley. I am informed that Mr. Lobbin is currently an attorney with a law firm called the Eclipse Group. Attached hereto as Exhibit "4" is a true and correct copy of a printout of the professional biography of Mr. Lobbin from the Eclipse Group's website. Mr. Lobbin participated in the following tasks in connection with this case: Analyzing defenses; Analyzing claim construction issues. 20. 21. As evidence of the reasonableness of Foley's rates, I obtained from Attached hereto as Exhibit "5" is a true and correct copy of excerpts
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third parties reports of rates charged by other law firms.

DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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from the American Intellectual Property Law Association Report on the Economic Survey 2005. 22. Attached hereto as Exhibit "6" is a true and correct copy of excerpts from the American Intellectual Property Law Association Report on the Economic Survey 2007. 23. Attached hereto as Exhibit "7" is a true and correct copy of excerpts from the American Intellectual Property Law Association Report on the Economic Survey 2009. 24. Attached hereto as Exhibit "8" is a true and correct copy of excerpts of the National Law Journal's 2008 Billing Survey. The 2008 Billing Survey was obtained as an Excel file. Exhibit 8 only includes the columns listing the firms, hourly rates and source listed in the 2008 Billing Survey, but omits columns listing information regarding annual billable hours requirements, variations on the billable hour, percentage of firm's revenue obtained through variations on the billable hour, billing alternatives, and the percentage of firm's revenue obtained through alternative billing methods. In addition, the 2008 Billing Survey was reformatted for easier printing and viewing. 25. Attached hereto as Exhibit "9" is a true and correct copy of an article by Leigh Jones entitled "Law firm fees defy gravity" from the National Law Journal pages S1-S8 on December 8, 2008. 26. Attached hereto as Exhibit "10" is a true and correct copy of relevant portions of the Declaration of Rohit K. Singla in Support of Plaintiff Applied Materials, Inc.'s Motion for Attorney Fees in Applied Materials, Inc. v. Multimetrixs, LLC, No. C-06-7372 MHP (N.D. Cal. Dec. 3, 2008). The exhibit was obtained from the United States District Court, Northern District of California, PACER website.

DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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I declare under the penalty of perjury under the laws of the United States of America that the foregoing is true. Executed January 4, 2010, in Los Angeles, California. /s/ Victor de Gyarfas Victor de Gyarfas

DECLARATION OF VICTOR DE GYARFAS IN SUPPORT OF MOTION FOR ATTORNEY'S FEES CASE NO. 05-CV-1114 JW

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