Realtime Data LLC v. Sling TV LLC et al

Filing 342

ORDER Awarding Attorney's Fees by Judge R. Brooke Jackson on 9/19/22. (jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 17-cv-02097-RBJ
REALTIME ADAPTIVE STREAMING LLC,
Plaintiff,
v.
SLING TV L.L.C.,
SLING MEDIA, L.L.C.,
ECHOSTAR TECHNOLOGIES L.L.C.,
DISH NETWORK L.L.C
Defendants.

ORDER AWARDING ATTORNEY’S FEES

The Court previously granted summary judgment in favor of the defendants and found
that this is an “exceptional case” for purposes of an attorney’s fee award. The amount of the
attorney’s fee claimed by defendants was disputed. Having considered the parties’ briefs and the
evidence and arguments presented during the hearing, the Court awards attorney’s fees to
defendants Sling TV L.L.C., Sling Media, L.L.C., Echostar Technologies, L.L.C., and Dish
Network, L.L.C. (collectively the “Dish defendants”) and against plaintiff Realtime Adaptive
Streaming, L.L.C. in the amount of $3,911,002.79.
BACKGROUND
This patent infringement case was filed on August 31, 2017. ECF No. 2. On February
26, 2019, the Court granted the then-parties’ joint motion for a stay until resolution of certain
related matters pending before the Patent Trial and Appeal Board. ECF No. 162. The case was

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administratively closed at that time. ECF No. 163. The stay was lifted, and the case was
reopened, on January 15, 2021. ECF No. 179.
On May 26, 2021, the Dish defendants filed a motion for summary judgment based on
their contention that the subject patent was invalid. ECF No. 216. Two days later the Dish
defendants filed four additional motions for summary judgment based on other theories. See
ECF Nos. 218, 221, 223 and 227. The Court rejected what appeared to be an effort to
circumvent its page limitations by filing five separate motions for summary judgment; denied all
the motions for that reason; and recommended that the Dish defendants pick whatever it
considered to be its best issue and move on that basis. ECF No. 232.
On June 2, 2021, the Dish Defendants filed a motion for summary judgment of invalidity
based on lack of subject matter jurisdiction. ECF No. 234. Briefing on this motion was
completed upon the filing of the Dish defendants’ reply brief on July 2, 2021. ECF No. 280.
The Court granted the motion and dismissed the case with prejudice in an order issued on July
21, 2021. ECF No. 305. On August 13, 2021, the Dish defendants moved to dismiss their
counterclaims in view of the Court’s granting of their motion for summary judgment. ECF No.
307. That motion was granted, and an amended final judgment was entered on January 20, 2022.
ECF Nos. 325 and 326. The merits of those findings and conclusions are currently on appeal to
the Federal Circuit.
In the meantime, however, the Dish defendants moved for an award of attorney’s fees
under 35 U.S.C. § 285 in the amount of $5,075,519. ECF No. 308. Following briefing, the
Court on January 20, 2022 found that this is an exceptional case and that the Dish defendants as
the prevailing parties are entitled to an award of attorney’s fees. ECF No. 326. The Court did
not determine a reasonable amount at that time. Rather, I asked that a responsible partner or

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principal lawyer carefully review the defense teams’ time entries and cull all time that he or she
finds to be duplicative, inefficient, or otherwise unreasonable in view of the factors set forth in
Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714 (5th Cir. 1974). I indicted that a
responsible member of the plaintiff’s legal team should then review the remaining time entries to
identify time that plaintiff still considered to be unreasonable or not satisfactorily explained.
Then counsel should confer and attempt to reach agreement. If agreement were not reached,
then the parties should set an evidentiary hearing. I invited plaintiff to divulge information about
the time spent by members of the plaintiff’s team and their corresponding rates if it was willing
to do so.
Adam Shartzer, a principal of the law firm Fish & Richardson that served as lead counsel
for the Dish defendants, did the screening and culling requested by the Court. However,
plaintiff’s counsel did not object to any of the remaining time entries. There was discussion of a
possible resolution, but nothing came of it. The Court then conducted an evidentiary hearing on
May 19, 2022; and because the hearing was not completed, the Court held a second session of
the hearing on August 4, 2022. The Court then took the matter under advisement pending its
review of the evidence and preparation of this order.
STANDARD OF REVIEW
In determining the reasonableness of attorney’s fees, the Court starts with the “lodestar”
which is the product of hours “reasonably expended” times a “reasonable hourly rate.” See
Robinson v. City of Edmund, 160 F.3d 1275, 1281 (10th Cir. 1998). The lodestar is presumed to
be a reasonable fee. Id. However, the lodestar can be adjusted after considering factors affecting
reasonableness such as the 12 factors articulated in Johnson v. Georgia Highway Express, Inc.,
488 F. 2d 714 (5th Cir. 1974): (1) the time and labor required; (2) the novelty and difficulty of

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the questions; (3) the skill required; (4) preclusion of other employment; (5) the customary fee in
the community; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the
client; (8) the amount involved and the results obtained; (9) the experience, reputation and ability
of the attorney’s; (10) the undesirability of the case; (11) the nature and relationship of the
professional relationship with the client; and (12) awards in similar cases. Id. at 717-19. The
Colorado Rules of Professional Conduct provide a similar list of relevant factors.1
ANALYSIS AND CONCLUSIONS
A. The Dish Defendants’ Initial Application.
As indicated above, in their motion for an award of attorney’s fees the Dish defendants
sought an award of $5,075,519, claiming that those were the attorney’s fees they reasonably
incurred in the six and one-half months after the stay was lifted. ECF No. 308 at 14. This sum
included fees billed by Fish & Richardson, L.L.C. ($4,971,532.50) and by Denver counsel
Wheeler, Trigg, O’Donnell LLP ($103,986.50). ECF Nos. 308-1 at 1; 308-3 at 1.
In support, the Dish defendants filed the declaration of Mr. Shartzer, describing the
members of the Fish & Richardson PC team and the work they performed. The Fish &
Richardson contingent included thirteen lawyers; three paralegals; four discovery analysts; four
library and search analysts; an IP operations specialist; and a graphic artist. ECF No. 308-1.
Their rates ranged upward to $900 per hour. Overall, these individuals had an average billing
rate of approximately $668 per hour. That included a 15.5% discount that Dish receives. Id. at

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The Colorado Rules of Professional Conduct are found as an Appendix to Chapters 18 to 20,
COLORADO COURT RULES – STATE (2018). These factors identified in Rule 1.5 are (1) time and labor
required, (2) likelihood of preclusion of other employment, (3) fee customarily charged in the locality, (4)
amount involved and results obtained, (5) time limitations imposed by the client or circumstances, (6)
nature and length of the professional relationship, (7) experience, reputation, and ability of the lawyer(s),
and (8) whether the fee is fixed or contingent.
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11-12. Defendants also filed the affidavit of Hugh Gottschalk, a partner in Wheeler Trigg
O’Donnell LLP, who indicated that his firm’s fees totaled $103,986.50. This represented the
work of one partner, one associate and one paralegal, at rates between $685 and $220 per hour,
with an overall average billing rate of approximately $637 per hour. ECF No. 308-3.
In its response Realtime asserted that $5 million is unreasonable on its face. ECF No.
319 at 14. However, it declined to dig into the “84 pages of raw billing entries” to highlight
those it believed to be unreasonable, and it suggested that the Court should not have to do that
either. Id.
B. The Dish Defendants’ Revised Application: the Lodestar.
After receiving the Court’s direction that counsel cull out all duplicative and otherwise
inefficient time, Mr. Shartzer reviewed the Fish & Richardson billing records and reduced the
total amount from $4,971,532.50 to $4,293,406.93, a reduction of $678,125.57. Compare ECF
No. 308-2 with ECF No. 333-1.2 The reduction was accomplished by eliminating 1,073 hours,
including the hours of fourteen timekeepers. See Ex. 7 at 3-4. The Dish defendants also
withdrew their previous request for an award of prejudgment interest.
The Dish defendants’ total request after the culling but with the addition of Fish &
Richardson’s “fees-on-fees,” is $4,564,236.63, comprised as follows:
Fish & Richardson pre-attorney’s fee application fees:
Wheeler Trigg O’Donnell fees
“Fees-on-Fees”
Hours billed drafting fees motion
97,065.50
Hours billed calculating fees
69,777.70
TOTAL

$4,293,406.93
103,986.50
166,843.20

$4,564,236.63

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Defendants have also indicated that they culled $164,942 before submitting their original fee request.
See ECF No. 335 at 64.
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I deem that figure, $4,564,236.63, to be the “lodestar” for purposes of this
analysis. It is the product of what defendants submitted as reasonable hours after going
through the culling exercises and the rates billed to the Dish defendants by the two law
firms.
C. Wheeler Trigg O’Donnell Fees.
While plaintiff objected to the awarding of any attorney’s fees, it does not object
to the amount of the Wheeler Trigg O’Donnell fees. Therefore, I will include that
amount in the fee award without further discussion.
D. Fish & Richardson Fees.
As indicated above, the “lodestar” is presumptively reasonable. Robinson, 160 F.3d at
1281. It may be modified after consideration of the Johnson factors. However, several Johnson
factors are presumably reflected in the lodestar amount, so the Court must be careful not to
double count factors already considered. See, e.g., Imperium IP Holdings (Cayman), Ltd, No. 4:14CV-00371, 2018 WL 16022460, at *7 (E.D. Tex. April 3, 2018). With that in mind, I look at the

Johnson factors to determine whether an adjustment from the lodestar is warranted in this case.
1. The time and labor required.
Plaintiff’s primary argument is that the Fish & Richardson firm’s hours, even after
culling, were excessive. However, plaintiff’s counsel did not identify any line item in the Fish &
Richardson billing records to which plaintiff objects. Indeed, during the second phase of the
hearing counsel expressly disavowed any desire to scrutinize or complain about the fee request
on a line-item basis. Rather, plaintiff identified large categories of time that it asked the Court to
eliminate. I address those categories in turn.

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a. Hours Exceeding Plaintiff’s Counsel’s Hours.
Philip X. Wang was plaintiff’s lead counsel in this case. In his declaration Mr. Wang
provided a chart showing that plaintiff’s legal team recorded 2,094 hours in this case. ECF No.
331 at 2. Actually, plaintiff’s team recorded 2,430.5 hours, including 1009.5 hours by Mr. Wang
alone. However, he stated that this figure “included substantial work on other Realtime cases
(including multiple Federal Circuit appeals, the ‘610 patent reexam, and other district court
cases).” Id. at 2, n.4. Thus, he excluded 336.6 of his own hours from his summary of the hours
relevant to the present case, resulting in the 2,094-hour number. Counsel suggested that if
defendants would accept fees determined by multiplying plaintiff’s remaining 2,094 hours times
Fish & Richardson’s average hourly rate of $668 (which was lower than plaintiff’s average hours
rate), plaintiff would find that to be reasonable. This would produce attorney’s fees for the Fish
& Richardson component of defendants’ fee request of $1,398,792.
I disagree with this approach. I invited plaintiff to provide its counsel’s hours and rates if
it wished to do so, and I appreciate receiving the information. It puts defendants’ fees in a useful
context. However, the fact that plaintiff’s team recorded fewer hours does not establish that the
Fish & Richardson hours were unreasonable. Defendants were facing a $42 million claim based
on alleged infringement of multiple patent claims. Although plaintiff perhaps would have
narrowed its claims and theories by the time of trial, defendants reasonably had to prepare to
defend all the claims and theories.
Realtime has initiated multiple infringement lawsuits through the same law firm. In my
order granting defendants’ motion for summary judgment, I noted that two courts had already
invalidated similar claims in Realtime’s ‘535 patent as expressing ineligible abstract ideas.

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When the plaintiff and its lawyers research and brief similar arguments in multiple cases, one can
expect economies of scale. Indeed, the fact that Mr. Wang recorded 336.6 hours to this file that
he believes more appropriately should have been recorded to different Realtime cases supports
my point. When a law firm is filing multiple infringement cases raising similar claims against a
variety of defendants, the hours recorded to individual files and lawsuits do not necessarily
reflect the amount of work the case would have required if it were Realtime’s only case.
Neither side chose to present independent expert testimony regarding the reasonableness
of their respective hours billed. That is fine, but the undisputed fact that the Dish defendants
paid all the fees billed, including the amounts culled by Mr. Shartzer, is in a sense independent
evidence. After all, defendants are sophisticated technology companies and presumably
sophisticated consumers of legal services.
In sum, the comparison to plaintiff’s hours is not dispositive in evaluating the
reasonableness of defense counsel’s hours. It is a factor that I have considered, but I find other
factors to be more significant, as I discuss next.
b. Hours Spent on Excessive Summary Judgment Motions.
Here, I agree with plaintiff. The Court has practice standards setting the page limits of
motions for summary judgment, responses, and replies. Defendants filed multiple motions for
summary judgment, each addressing a different theory of relief. The individual motions each
met the Court’s page limits, but collectively they far exceeded them. As indicated earlier in this
order, the Court struck those motions and advised defendants to pick whichever they regarded as
their best issue and file a succinct and compliant motion based on that issue. See ECF No. 232.
They did so. ECF No. 234. That motion was ultimately granted.

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Plaintiff contends that the time spent preparing the summary judgment motions that the
Court did not consider should be eliminated. Plaintiff indicates that this time accounts for 762
hours. Defendants have not shown that that figure is incorrect. However, they argue that the
time should not be excluded because it was time that also contributed to defendants’ preparation
for trial. I accept that some of the time spent on summary judgment motions was beneficial
during trial preparation. However, I have no way to quantify it. The briefing of summary
judgment motions and the preparation for trial are two different phases of a case, often done by
different members of the team. In any event, I am not inclined to find time spent in derogation
of the Court’s practice standards to be reasonable. Therefore, while the hours included in the
lodestar were presumptively reasonable, I find that the presumption has been rebutted with
respect to the hours spent on the stricken motions. Accordingly, I will eliminate 762 hours at
Fish & Richardson’s average hourly rate of $674.12 for a total of $513,679.44.3
c. Fees on Fees.
Defendants’ hours preparing and defending its motion for attorney’s fees should be
included. See Central Soya Co., Inc. v. Geo. A. Hormel & Co., 723 F.2d 1573, 1578 (Fed. Cir.
1983) (citing Codex Corp. v. Milgo Electronics Corp., 541 F. Supp. 1198, 1201 (D. Mass. 1982)
which held that attorney’s fees spent on the fee application itself may be awarded under § 285).
Defendants had no choice but to incur attorney’s fees justifying their application for a fee award
in light of plaintiff’s opposition. Thus, I will not exclude the $97,065.50 for “hours billed
drafting fees motion.” However, I will exclude the $69,777.70 allocated to “hours billed
calculating fees.” This was Mr. Shartzer’s and perhaps others’ work culling the original fee

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The average rate of the Fish & Richardson attorneys was initially $668, but it increased slightly to $674.12 as a
result of the culling process.

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application at the Court’s request to eliminate duplication, inefficiency, etc. Essentially, it is
work that was done to make the final amount charged to the plaintiff reasonable. Plaintiff should
not be required to pay fees for the time expended by defense counsel assuring that the amount
billed was reasonable.
d. Summary Judgment Delay.
Plaintiff argues that defendants should have filed their motion for summary judgment
based on invalidity shortly after the stay was lifted on January 15, 2021, rather than waiting until
June 2, 2021 to file the ultimately successful motion. Plaintiffs suggest that, had defendants
done so, much of the time spent in the intervening four and a half months would have been
avoided.4 I do not agree that this time should be discounted.
It is ironic that plaintiff, who from the outset contested defendants’ position that the
subject claims were invalid, now is claiming that defendants should have filed and won their
motion for summary judgment sooner. One might counter than if plaintiff had conceded
invalidity, none of the fees that are the subject of this order would have been incurred. Courts
grant summary judgment only if there are no material facts that are genuinely disputed. I cannot
fault defendants for obtaining discovery and getting their “ducks in a row” before filing their
motion.
2. The novelty and difficulty of the questions. Patent infringement litigation is complex.
Attacking the validity of a patent on grounds that it claims an abstract idea is inherently difficult; the line
between what is patent-eligible and what is not is not an easy one to draw. On the other hand, as I pointed

In support of the delay theory, plaintiff suggest that only the attorney’s fees incurred during the first two months
after the stay was lifted should be awarded. ECF No. 335 at 17-18. Alternatively, plaintiff argued that all time
before May 28, 2021 should be eliminated. Id. at 16-17. May 28, 2021 was the date that on which defendants filed
the declaration of their expert, Dr. Alan C. Bovik. The Court cited Dr. Bovik’s declaration as one factor supporting
its order that this was an exceptional case. See ECF No. at 326 at 7. Plaintiff posits that the case only became
exceptional on that date. However, the Court found that the case was exceptional based upon several factors, only
one of which was Dr. Bovik’s opinion.
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out in my order finding this to be an exceptional case, two courts had already found similar claims in
different Realtime patents to be invalid. See ECF No. 326 at 4-5. That somewhat eased the burden on
defendants to show that the subject claims were invalid. On balance, I find that this factor does not
suggest that the Fish & Richardson hours remaining after the exclusions I discussed above should either
be increased or further reduced.
3. The skill required. The lawyers on both sides were highly experienced and skilled in patent
infringement and validity litigation. Fish & Richardson “specializes in intellectual property litigation
with broad experience across ever IP forum – from district courts to the PTAB to the ITC – and on appeal
to the Federal Circuit and the United States Supreme Court.” Shartzer Affidavit, ECF No. 308-1, at 2.
The Affidavit goes on to describe the backgrounds and experience of the principal lawyers who worked
on this case. Id. at 4-10. Plaintiff has not challenged or questioned the skill or the experience of the Fish
& Richardson team. The case was litigated at a high level by lawyers who specialize in high-stakes
patent litigation. This tends to support a finding that the hours remaining after the culling process and the
Court’s elimination of two significant categories of time are reasonable.
4. Preclusion of other employment. The hours supporting the fee application were recorded for
the most part between January 15 and July 31, 2021. See ECF No. 308-2. The number of hours recorded
during that six and one-half period suggests that at least several of the lawyers on the team were working
essentially fulltime on the case. However, while their work on this case likely limited the time they could
devote to other clients during that period of time, I have no evidence that these lawyers lost clients, or that
they were precluded from working for their other clients for more than a few months. Moreover, Fish &
Richardson is a large firm with many other lawyers available to handle its cases. This is not a factor of
importance in this case.
5. The customary fee in the community. Plaintiff does not dispute Fish & Richardson’s rates.
Indeed, their rates, on average, were somewhat lower than the rates of the plaintiff’s lawyers. As for the
overall fee, defendants provided excerpts from an economic survey by the American Intellectual Property
Law Association concerning billing rates and “typical costs” of patent infringement litigation. Ex. 2-C.
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If I am reading the charts correctly, the median litigation costs in 2020 where more than $25 million was
at stake was $2,375,000. Id. at 2-C-008. That does not, of course, focus on the Denver community.
Then again, the principal lawyers on both sides were not Colorado-based. The only information
presented concerning the “customary fee” in the Denver or Colorado communities is Mr. Gottschalk’s
affidavit on behalf of Denver-based co-counsel Wheeler Trigg O’Donnell LLP. The Wheeler Trigg
O’Donnell lawyers came into the case in April 2021, largely to assist in trial preparation and trial, and
their hours are far less than those of their Fish & Richardson co-counsel. The average hourly rate for the
Wheeler Trigg O’Donnell lawyers was $637, see ECF Nos. 30383 and 308-4. That is roughly
comparable to the rates of the Fish & Richardson lawyers.
6. Whether the fee is fixed or contingent. The fee was neither fixed nor contingent. The fees
recorded, including the time that Mr. Shartzer culled for present purposes, was all billed on a time basis
and were paid by the Dish defendants.
7. Time limitations imposed by the client. I am not aware of any such limits.
8. The amount involved and the results obtained. Plaintiffs were seeking damages in the range of
$42 million. While I would not classify this as “bet the company” litigation, the monetary stakes were
high and justified a vigorous defense.
9. The experience, reputation and ability of the attorneys. I have discussed that above. The
lawyers on both sides were top drawer in the field of patent infringement and validity litigation.
10. The undesirability of the case. From counsel’s perspective, this was not an undesirable
engagement. On the contrary, it was big-ticket, lucrative litigation of the type that firms like Fish &
Richardson are built to handle. This is not a factor suggesting modification of the fee.
11. The nature and relationship of the professional relationship with the client. Fish &
Richardson has a relationship with defendants that includes a 15% discount from their regularly hourly
rates. That discount was applied to the rates in this case. Defendants appear to be ongoing, repeat clients
of the law firm.

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12. Awards in similar cases. Defendants cited four cases in which fee awards were higher than
what they seek here. Ex. 7 at 18. In Imperium IP Holdings (Cayman), Ltd, in which a jury found that
defendant infringed a total of seven claims in two patents and awarded nearly $7 million in damages, the
court awarded $7,080,695.77 in attorney’s fees. 2018 WL 1602460 at *8. The awards in the other three
cases were also substantial. See Finjan, Inc. v. Juniper Networks, Inc., No. C 17-05659 WHA, 2021 WL
3140716 (N.D. Cal. July 26, 2021) (approximately $5.9 million, including costs); Kilopass Tech, Inc. v.
Sidense Corp, 82 F. Supp. 3d 1154, 1175 (N.D. Cal. 2015) (approximately $5.3 million); and Aventis
CropScience, N.V. v. Pioneer Hi-Bred Int’l, Inc., No. 1:00CV463, 2010 WL 2306677, at * (M.D. N.C.
June 8, 2010) (approximately $4.9 million including costs I also mentioned the economic survey by the
American Intellectual Property Law Association above. The “typical” costs shown in that survey were
lower than what is requested here. However, I cannot tell from that survey what fees were awarded in
cases similar to this case. Suffice it to say that in high stakes patent infringement and invalidity litigation,
such as the present case, the attorney’s fees are likely to be high. I believe the experienced lawyers and
parties in this case understood that from the outset.
E. Conclusion re the Fish & Richardson Fees.

The Fish & Richardson fees in their revised application ($4,293,406.93 plus the hours
billed with respect to the fees motion ($97,065.50), minus the fees allocated to the improperly
filed motions for summary judgment ($513,679.44 and minus the fees incurred for re-calculating
the fees ($69,777.70) nets to a total of $3,807,015.29
ORDER
The Court finds and concludes that defendants’ fees in the total amount of $3,911,002.79,
comprised of $3,807,015.29 billed by the Fish & Richardson law firm and $103,987.50 billed by
the Wheeler Trigg O’Donnell law firm are reasonable. The Court orders plaintiff to pay those
fees to the defendants. A Second Amended Final Judgment will issue including those fees.

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DATED this 19th day of September, 2022.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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