Navcom Techonology, Inc et al v. OKI Semiconductor America, Inc et al

Filing 426

ORDER Re Attorneys' Fees. Signed by Judge Edward J. Davila on 1/7/2020. (ejdlc3S, COURT STAFF) (Filed on 1/7/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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NAVCOM TECHNOLOGY, INC, et al.,

Case No. 5:12-cv-04175-EJD

Plaintiffs,
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ORDER RE ATTORNEYS’ FEES

v.
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OKI ELECTRIC INDUSTRY CO, LTD,

United States District Court
Northern District of California

Defendant.
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On September 5, 2019, the Court granted in part Defendant Oki Industry Co., Ltd.’s

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(“Defendant”) motion for fees and costs and directed the parties to meet and confer regarding the

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amount. As a result of the meet and confer process, Plaintiffs no longer contest or request any

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reduction of Defendant’s claim for $136,646.00 USD and ¥2,414,800 JPY fees as reflected in Exhibit

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GG filed on November 11, 2019. Dkt. No. 423-3. Defendant, however, seeks an additional

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$3,457,977.00 USD and ¥41,970,300 JPY in attorney fees as reflected in Exhibit FF. Dkt. No.

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423-2. Plaintiffs assert several objections to a large portion of these additional fees and request

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that the fees in Exhibit FF be reduced by $1,813,051.01 USD and ¥28,613,836.00 JPY. Joint

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Statement at 1 (Dkt. No. 423). Having reviewed the Joint Statement and related Exhibits, the

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Court orders as follows.

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A.

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Plaintiffs object to certain billing record entries as “clerical work” that could have been

Clerical Work

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reasonably performed by a paralegal or other non-attorney. The Court overrules nearly all of these

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objections. Many of the so-called entries for clerical work describe attorney-level legal work such

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as research, review of documents, discussions of various legal issues, revisions to briefs, draft

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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
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motion, prepare declaration, finalize briefs for filing, review and organize recently filed

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documents, attend to joint case management statement, attend to document productions, and

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attention to billing issues.

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Some of the entries describe work that could have been performed by a non-attorney such

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as update calendar, review and organize documents, file exhibits under seal, circulate

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correspondence, circulate filing notifications, update electronic file, create certificate of service,

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update case calendar reminder, attention to documents and create binders. The vast majority of

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this work, however, was performed by a paralegal at a lower hourly fee rate. No reductions are

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warranted.

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Defendant had attorneys translate documents. It was not unreasonable for Defendant to

United States District Court
Northern District of California

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have done so given the nature of this case. See e.g. Gidding v. Anderson, No. 07-4755 JSW, 2008

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WL 5068524 (N.D. Cal. Nov. 24, 2008) (awarding translation costs because translations were

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reasonably necessary to the proper determination of the issues).

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Paralegals billed at $150/hour to “[b]reak down war room; coordinate with vendors; break

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down Courtroom and attend jury verdict readings” (10.5 hours on 5/8/14 and 6.0 hours 5/9/14),

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and for “[t]rial; document preparation; break down war room/court room/break out rooms after

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trial conclusion; coordinate with vendors” (137.5 hours on 5/30/14). Plaintiffs contend that the

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“break down” could have been reasonably performed by a legal assistant or other professional at a

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lower rate, and accordingly request a 75% reduction of each of these billing entries. The Court

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agrees that this type of work could have been reasonably completed by an employee at a lower

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hourly rate. Plaintiffs’ requested 75% reduction of these fees is appropriate.

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B.

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Plaintiffs object to certain billing record entries as work that could have been performed by

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a less senior attorney. The Court overrules the objection. Although it may have been theoretically

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possible for a less senior attorney to perform certain tasks (i.e. legal research, document review,

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document summaries, initial drafts of discovery responses and briefs, search for record citations),

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the reality was that until the trial preparation and trial phases of this litigation, Defendant’s

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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES

Associate Work

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litigation team consisted of only two United States-based partners, Labgold and Hoeffner, and no

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associates. Defendant was entitled to its choice of counsel and, contrary to Plaintiffs’ assertion,

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was not required to hire a law firm with associates. The Court finds the fees charged by partners

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Labgold and Hoeffner were reasonable.
“Vague” Litigation Purpose

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C.

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Plaintiffs object to certain entries because the “task described does not appear reasonably

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necessary to [Defendant’s] legal defense.” Joint Statement at 3. Plaintiffs point to the following

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examples of tasks they contend were not reasonably necessary to Defendant’s defense: “review

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trial transcripts” (5/9/14); lengthy “meeting[s] with client” about unspecified topics (9/24/12); “review

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of files” (3/15/13); and “editing responses” to unspecified requests (9/7/13).

United States District Court
Northern District of California

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The Court agrees with Plaintiffs that many of Defendant’s billing entries are too vague.

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Under Ninth Circuit law, “‘counsel is not required to record in great detail how each minute of

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[their] time was expended’” as long as “the attorneys have satisfactorily ‘identif[ied] the general

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subject matter of [the] time expenditures.’” Pollinator Stewardship Council v. United States EPA,

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No. 13-72346, 2017 U.S. App. LEXIS 13343, at *22 (9th Cir. June 27, 2017) (quoting Fischer v.

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SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000)). Each of the tasks identified above—

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reviewing transcripts, meeting with a client, reviewing files, and editing responses—are common

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litigation tasks for which Defendant is entitled to some compensation. The entries, however, fail

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to identify the general subject matter of the transcripts, meeting, files, and responses. The Ninth

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Circuit has instructed that when a fee applicant’s documentation is inadequate, the district court is

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free to reduce an applicant’s fee award. Trustee of Directors Guild of America-Producer Pension

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Benefits Plans v. Tise, 234 F.3d 415, 427 (9th Cir. 2000); see also Robinson v. Open Top

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Sightseeing San Francisco, LLC, No. 14-852 PJH, 2018 WL 2088392, at *4 (N.D. Cal. May 4,

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2019) (reducing hours by 10% to account for vague entries); Gilead Sciences, Inc. v. Merck & Co.,

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Inc., No. 13-4057 BLF, 2017 WL 3007071, at *8 (N.D. Cal. July 14, 2017) (applying percentage

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reduction to vague entries); Davis v. Prison Health Services, No. 09-2629 SI, 2012 WL 4462520,

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at *12 (N.D. Cal. Sept. 25, 2012) (applying across-the-board 10% reduction for vague billing

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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
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records). Accordingly, this Court exercises its discretion to apply an across-the-board 10 percent

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reduction to vague entries as specified in section “J” of this Order.
“Excessive” Time

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D.

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Plaintiffs object to certain entries because “[t]he amount of time spent on the task does not
appear reasonable for an attorney/professional at this billable rate.” Joint Statement at 4.

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Plaintiffs also contend that certain entries are for work that could have reasonably been performed

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by fewer timekeepers. Plaintiffs give three examples of purportedly excessive billing by partners:

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(1) 99.50 hours to research and draft a reply brief in support of Defendant’s motion for

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supplemental attorney fees (5/23/19 – 5/30/19); 11 hours for a single entry of “reviewing case

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files” (9/23/12); and more than 37.45 hours to draft a set of interrogatory responses (6/20/13 –

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United States District Court
Northern District of California

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6/26/13).
“In challenging attorney fees as excessive because too many hours of work are claimed, it is

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the burden of the challenging party to point to the specific items challenged, with a sufficient argument

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and citations to the evidence.” Lunada Biomedical v. Nunez, 230 Cal. App. 4th 459, 488 (2014)

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(quoting Premier Med. Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Ass’n, 163 Cal. App. 4th 550, 564

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(2008)). “General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.”

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Id.

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The Court is unpersuaded by the three examples above that Defendant billed excessive time.

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First, motions for attorney fees can be time consuming. It is reasonable in this case for Defendant to

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have spent nearly one hundred hours researching and drafting its reply brief given the scope and

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complexity of the case, the number of years the parties have been litigating, the number of team

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members, the volume of billing records, and the amount of fees at issue.

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Second, Attorney T. Nagashima billed eleven hours for “reviewing the case files” during his

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first month working on the case. Although the contents of the case file are not specified in the billing

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records, it is reasonable to assume the case file included, at a minimum, the key documents that were

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e-filed from the inception of the case to the date of his review such as the notice of removal,

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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
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complaint, briefing for the motion to remand, clerk’s notices, and briefing for the motion to dismiss.

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Eleven hours to review these materials is reasonable.

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Third, Plaintiffs contend that it was excessive for Defendant to spend more than 37.45 hours

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to draft a set of interrogatory responses (6/20/13 – 6/26/13). Plaintiffs, however, do not explain

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why. The Court has no information about the number of interrogatories in the set, the type of

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information the interrogatories called for, or whether such information was readily available and

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incorporated into Defendant’s responses. Therefore, the Court rejects Plaintiffs’ argument as

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entirely conclusory.

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E.

“Redundant Work”

Plaintiffs propose reductions where a single task was performed by multiple attorneys,

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United States District Court
Northern District of California

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asserting that the task should have reasonably been performed by fewer timekeepers. Plaintiffs point

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to the following examples of purported redundant work: two partners and one associate prepared the

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same witness for deposition (6/21/13 and 6/25/13); and partner T. Nagashima submitted flat-rate 10-

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hour time entries to attend every day of trial—in addition to the three U.S. attorneys who tried the case

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(4/21/14 – 5/8/14).

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The Court rejects Plaintiffs’ argument. None of these expenditures are unreasonable on their

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face, and it is entirely speculative on Plaintiffs’ part to suggest that the tasks could have reasonably

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been performed by fewer timekeepers. It is not uncommon or unreasonable for a witness to require

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significant preparation for deposition. Nor is it uncommon or unreasonable for multiple attorneys to

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attend each day of trial.

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F.

Block Billing

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Plaintiffs object to certain entries as block billing. The objection is overruled. Block

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billing is not per se objectionable and may be acceptable if the descriptions are adequate. See, e.g.,

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Gilead Scis. v. Merck & Co, 2017 WL 3007071, at *8. The Court previously instructed Defendant

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to avoid block billing disparate or unrelated subject matters. Order Granting In Part Motion For

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Award Of Fees And Costs; Directing Parties To Meet And Confer Re Amount; Continuing Status

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Conference at 5 (Dkt. No. 413). The vast majority of previously problematic block entries with

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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
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disparate or unrelated subject matters have been corrected to the Court’s satisfaction, and the

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entries contain sufficient detail to identify the tasks accomplished.

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G.

Transition Work

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Plaintiffs object to certain entries because they constitute fees charged for the process of

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transferring the case from Latham & Watkins to other U.S. attorneys in March of 2013. For

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example, Plaintiffs object to Defendant’s requested fees for “Attention to case transition” (3/28/13);

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“Attention to files in preparation for transfer to new counsel” (3/28/13); and “Discussion … re strategy

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and transferring case responsibilities” (3/21/13). Plaintiffs contend that fees for substituting counsel

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early in the case were not reasonably necessary to Defendant’s legal defense.

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The Court overrules the objection. It was not unreasonable for Defendant to make a change in

United States District Court
Northern District of California

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counsel early in the case. Furthermore, at the time the transition was made, Defendant’s former lead

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counsel was billing at $1,035 per hour—a rate significantly higher than the $700 and $550 hourly rates

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charged by Defendant’s newly retained lead counsel. The potential savings in legal fees over the life

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of the litigation justifies the forty hours of transition work.

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H.

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Plaintiffs object to any award of “[f]ees for work related to [Defendant’s] efforts to collect

Interest on Fees

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unrecoverable prejudgment interest on attorney fees.” Joint Statement at 7. The objection is

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overruled. That Defendant did not prevail on the issue of prejudgment interest on attorney fees

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does not mean the attorney fees expended in pursuit of the issue are not recoverable. In the Ninth

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Circuit, a party may recoup fees even for “losing stages” of a case the party eventually wins. See

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e.g. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-53 (9th Cir. 1991) (“If a plaintiff

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ultimately wins on a particular claim, she is entitled to all attorney’s fees reasonably expended in

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pursuing that claim—even though she may have suffered some adverse rulings.”).

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I.

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The parties disagree on the exchange rate for converting the attorneys’ fees invoiced in yen

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to U.S. dollars. Defendant contends that the exchange rate as of the date of each invoice should be

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applied. In contrast, Plaintiffs cite to Linley Investments v. Jamgotchian, No. LA cv 11-724 JAK,

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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES

Exchange Rate For Yen to U.S. Dollars

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2014 WL 12665812, at *4 (C.D. Cal. Apr. 16, 2014), aff’d, 670 F. App’x 627 (9th Cir. 2016) and

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argue that the Court should apply the exchange rate as of June 16, 2017—the day Defendant

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became the “prevailing party” for purposes of the attorney fee provision in the parties’ contract.

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In Linley, the underlying action arose under foreign law. The prevailing party to an

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arbitration proceeding in Ireland obtained an arbitration award in Euros. Thereafter, the prevailing

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party filed a petition in federal court to confirm the arbitration award in U.S. dollars. The Linley

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court recognized that there were two different rules that potentially applied “to determine the

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applicable exchange rate when converting an award of foreign currency into dollars”: the “breach

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of day rule” and the “judgment day rule.” Id. at *4. The Linley court ultimately applied the socalled “judgment day rule” and held that the final judgment “shall provide for an award in US

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United States District Court
Northern District of California

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dollars, based on the prevailing conversion rate as of the date the judgment is entered.” Id. at *6.

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Here, Defendant’s entitlement to attorney’s fees does not arise under foreign law. Rather,

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the parties entered into a contract with an attorney’s fee provision. Dkt. No. 331-20. Section 22.0 of

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the contract specified that the contract and the parties’ performance thereunder “shall be construed in

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accordance with and governed by the laws of the State of California.” Id. The suit was litigated in

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California, not in a foreign jurisdiction. Therefore, neither the “breach of day rule” nor the “judgment

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day rule” stated in Linley are directly applicable here.

The Court agrees with Defendant that fees invoiced in yen should be converted to U.S.

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dollars using the exchange rate in effect as of the date of the invoice.

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J.

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The Court awards attorney’s fees to Defendant as the prevailing party as reflected in

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Conclusion

Exhibit FF and GG, with the reductions indicated in the last column below:
Date

Team
Member

Title

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Time

Rate

Req. Amount
(USD)

Description
5-8-14

Rigney

Paralegal

5-9-14

Rigney

Paralegal

25
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Task/

Break down war room;
coordinate with
vendors; break down
Courtroom and attend
jury verdict readings
Break down war room;
coordinate with
vendors; break down
Courtroom and attend

10.50

$150.00

$1,575.00

6.00

$150.00

$900.00

Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
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Plaintiffs'
Objection and
Basis for
Objection
Clerical work;
excessive time

Clerical work;
excessive time

Court Ordered
Reduction

75%

75%

jury verdict readings

1
2

5-30-14

Waiter

Paralegal

3
4
5
6

Trial; document
preparation; break
down war
room/court
room/break out
rooms after trial
conclusion;
coordinate with
vendors
Attend to research
issues

137.50

$150.00

$20,625.00 Block billed;
75%
excessive time;
clerical work; vague
litigation purpose

1.10

$995.00

$1,094.50

Vague litigation
purpose; excessive
time

10%

Vague litigation
purpose;
excessive time

10%

8-28-12

Ladra

Partner

8-29-12

Ladra

Partner

Attention to research
issues

0.80

$995.00

$796.00

9-14-12

Hirofumi
Kato

Associate

Translating Japanese
mails to English

6.00

¥22,000

¥132,000.00

Reviewing
documents sent
from Oki

1.10

¥50,000 ¥55,000.00

Vague litigation 10%
purpose

Associate

translating Japanese
e-mails into English

4.20

¥22,000 ¥92,400.00

Vague litigation 10%
purpose; clerical
work

Associate

Meeting with Client

2.20

¥30,000 ¥66,000.00

Excessive time; 10%
vague litigation
purpose

Meeting with
Client; reviewing
documents
received from
Client
Reviewing case files.

3.90

¥50,000 ¥195,000.00

Excessive time; 10%
vague litigation
purpose

11.00

¥50,000 ¥550,000.00 Vague litigation
purpose;
excessive time

5.20

$790.00

10.00

¥50,000 ¥500,000.00 Vague litigation
purpose;
excessive time

10%

Vague litigation
purpose

10%

¥31,500.00 Vague litigation
purpose

10%

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8
9
10

United States District Court
Northern District of California

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9-16-12

TNagashima

Partner

12
13
14

9-17-12

Hirofumi
Kato

9-19-12 Kojiro Akashi

15
16

9-19-12

TNagashima

Partner

9-23-12

TNagashima

Partner

9-24-12

Rawlinson

Partner

9-24-12

TNagashima

Partner

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19
20
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23

Prepare for and
meet with client
regarding Navcom
case
Meeting with Client
and US attorneys in
SF

$4,108.00

11-20-12 Kojiro Akashi

Associate

Meeting with Client

1.80

$30,000 ¥54,000.00

12-14-12 Steve Bryan

Associate

Phone call with US
attorney; emailing to
Client summarizing
the phone call

0.90

$35,000

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25
26
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Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
8

Vague litigation 10%
purpose; clerical
work

Vague litigation
purpose

10%

10%

12-21-12 Kojiro Akashi

Associate

Meeting with Client

2.50

$30,000

¥75,000.00

Vague litigation 10%
purpose

12-21-12 TNagashima

Partner

Meeting with Client

2.60

¥50,000 ¥130,000.00

Vague litigation 10%
purpose

12-26-12 Kojiro Akashi

Associate

Meeting with Client

1.80

$30,000 ¥54,000.00

Vague litigation 10%
purpose

12-26-12 TNagashima

Partner

Meeting with Client

1.50

¥50,000 ¥75,000.00

Vague litigation 10%
purpose

1
2
3
4
5
6
7

1-17-13

Steve Bryan

Associate

Meeting with Client;
e-mail to US
Attorneys

3.00

$35,000 ¥105,000.00

Vague litigation 10%
purpose

1-17-13

TNagashima

Partner

Meeting with Client;
Correspondence with
US Attorneys

3.20

¥50,000 ¥160,000.00

Vague litigation 10%
purpose

1-24-13

TNagashima

Partner

Drafting e-mails to
US attorneys

0.80

¥50,000 ¥40,000.00

Vague litigation 10%
purpose

Associate

Meeting with Client

1.60

$30,000 ¥48,000.00

Vague litigation 10%
purpose

Telephone
Conference with US
attorneys re
strategies
Telephone
conference with M.
Labgold.

0.50

¥50,000 ¥25,000.00

Vague litigation
purpose;
redundant work

10%

0.20

$425.00

$85.00

Vague litigation
purpose

10%

$212.50

Vague litigation
purpose

10%

8
9
10

United States District Court
Northern District of California

11
12

3-11-13 Kojiro Akashi

13
3-14-13

TNagashima

Partner

4-10-13

14

Makman

Attorney

4-26-13

Makman

Attorney

Telephone
conference with M.
Labgold.

0.50

$425.00

4-29-13

TNagashima

Partner

Reviewing past
correspondence

1.00

¥50,000 ¥50,000.00

Vague litigation
purpose;
redundant work

10%

6-17-13

Makman

Attorney

Review
correspondence.

0.10

$425.00

$42.50

Vague litigation
purpose

10%

6-18-13

Makman

Attorney

Review
correspondence, email to counsel.

0.30

$425.00

$127.50

Vague litigation
purpose

10%

6-20-13

Yasutomo

Associate

Meeting with Client

5.50

$25,000 ¥137,500.00 Vague litigation
purpose;
excessive time

7-24-13

Yasutomo

Associate

Meeting with Client

0.50

$25,000 ¥12,500.00

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

Case No.: 5:12-cv-04175-EJD
ORDER RE ATTORNEYS’ FEES
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10%

Vague litigation 10%
purpose

7-26-13

TNagashima

Partner

Reviewing email
from US Counsel

0.70

¥50,000

¥35,000.00

8-7-13

Makman

Attorney

Review e-mail and
respond.

0.10

$425.00

$42.50

8-7-13

TNagashima

Partner

Meeting with Client

1.50

¥50,000 ¥75,000.00

8-22-13

Matz

Attorney

Teleconference
regarding filing and
review edits.

0.30

$370.00

$111.00

Partner

Telephone
conference with
Client

0.80

¥50,000

¥40,000.00

Searching
documents;
corresponding
with US attorneys
Searching
documents;
corresponding
with US attorneys
Corresponding with
US attorneys

0.90

¥22,000 ¥19,800.00

Vague litigation
purpose;
redundant work

10%

0.80

¥22,000 ¥17,600.00

Vague litigation
purpose;
redundant work

10%

0.80

¥22,000

1
2

Vague litigation 10%
purpose
Vague litigation
purpose

10%

3
4

Vague litigation 10%
purpose

5
6
7

10-28-13 TNagashima

8

10%

Vague litigation 10%
purpose

11-4-13

Hirofumi
Kato

Paralegal

11-5-13

Hirofumi
Kato

Paralegal

11-11-13 Hirofumi
Kato

Paralegal

13
14

2-28-14

TNagashima

Partner

Meeting with Client

0.50

¥50,000 ¥25,000.00

Vague litigation 10%
purpose

3-27-14

TNagashima

Partner

Meeting with Client

2.00

¥50,000 ¥100,000.00

Vague litigation 10%
purpose

9
10
11

United States District Court
Northern District of California

Vague litigation
purpose

12

¥17,600.00

Vague litigation 10%
purpose

15
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IT IS SO ORDERED.
Dated: January 7, 2020
______________________________________
EDWARD J. DAVILA
United States District Judge

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