Momenta Pharmaceuticals, Inc. et al v. Amphastar Pharmaceuticals, Inc. et al

Filing 620

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER re 545 BRIEF by Momenta Pharmaceuticals, Inc., Sandoz Inc. Submission for Attorneys' Fees and Costs. "For the foregoing reasons, and in consideration of plaintiffs submission for fees and costs (Docket No. 545), plaintiffs are awarded $343,863 in fees and $8,522 in costs."(Caruso, Stephanie)

United States District Court
District of Massachusetts
)
)
)
)
Plaintiffs,
)
)
v.
)
)
AMPHASTAR PHARMACEUTICALS, INC., )
INTERNATIONAL MEDICATION
)
SYSTEMS, LTD., ACTAVIS, INC. and )
WATSON PHARMA, INC.,
)
)
Defendants.
)
)
MOMENTA PHARMACEUTICALS, INC.
and SANDOZ INC.,

Civil Action No.
11-11681-NMG

MEMORANDUM & ORDER
GORTON, J.
This is a patent infringement case in which plaintiffs
Momenta Pharmaceuticals, Inc. and Sandoz Inc. (collectively,
“Momenta” or “plaintiffs”) claim that defendants Amphastar
Pharmaceuticals, Inc., International Medication Systems, Ltd.,
Actavis, Inc. and Watson Pharma, Inc. (collectively, “Amphastar”
or “defendants”) infringed their patent during the course of
defendants’ manufacture and sale of generic enoxaparin products.
The instant dispute concerns the amount of attorney’s fees
and costs that Amphastar is to pay Momenta in connection with
the imposition of sanctions ordered by a magistrate judge and
confirmed by a district judge pursuant to Fed. R. Civ. P.
37(b)(2)(C).

Pending before the Court is Momenta’s submission
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of attorney’s fees and costs (“the fee submission”).

For the

following reasons, the Court will award Momenta $343,863 in fees
and $8,522 in costs.1
I.

Background
A.

Facts and procedural history

In July, 2010, after receiving approval from the United
States Food and Drug Administration (“the FDA”), Momenta began
to market the first generic version of Lovenox (otherwise known
as enoxaparin) in the United States.

Enoxaparin is an

anticoagulant used to prevent blood clots.

Momenta is the

assignee of the ’886 patent, issued in August, 2009, which is
directed at a set of manufacturing control processes that ensure
that each batch of generic enoxaparin includes the individual
sugar chains characteristic of Lovenox.
Amphastar received FDA approval to market its generic
enoxaparin product in September, 2011.

Momenta initiated this

action two days later by filing a complaint alleging that
Amphastar infringed the ‘886 patent by manufacturing generic
enoxaparin for commercial sale using its patented methods.
In October, 2011, this Court allowed Momenta’s motion for
injunctive relief by enjoining Amphastar from advertising,
offering for sale or selling allegedly infringing enoxaparin

In the interest of brevity, the Court will round off all monetary amounts to
the nearest dollar and hours to the nearest tenth of an hour.
1

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products.

That decision included the preliminary finding that

the safe harbor provision in 35 U.S.C. § 271(e)(1) did not
protect Amphastar’s infringing activities because it used the
patented process to test products after it had already obtained
FDA approval, such that the use was not “reasonably related to
the development and submission of information” to the FDA.
The Federal Circuit vacated the grant of the preliminary
injunction in August, 2012 and found that this Court applied “an
unduly narrow interpretation” of the safe harbor provision.
Momenta Pharm., Inc. v. Amphastar Pharm, Inc., 686 F.3d 1348,
1349 (Fed. Cir. 2012)(“Momenta I”).

It explained that

Amphastar’s post-approval use of the patented process to run
quality control tests on its products fell within the scope of
the safe harbor provision because its use generated information
for records that Amphastar needed for continued FDA approval.
Id. at 1357-61.

It clarified that:

[T]he submissions are not routine submissions to the
FDA, but instead are submissions that are required to
maintain FDA approval . . . Amphastar is required by the
FDA to use this test in order to ensure its enoxaparin
is not adulterated.
This testing, which generates
information for submission pursuant to the Food, Drug,
and Cosmetic Act, therefore falls squarely within the
scope of the safe harbor.
Id. at 1358, 1361 (internal citations and quotation marks
omitted).

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Shortly thereafter, this Court stayed the case pending the
completion of appellate proceedings and denied all outstanding
motions without prejudice.

The Federal Circuit denied Momenta’s

petition for a hearing en banc in November, 2012.
This Court removed the stay in January, 2013 and Amphastar
moved for summary judgment.

In March, 2013, the Court allowed

Momenta to re-file a motion to compel the production of testing
documents and a motion for sanctions, both of which had been
denied without prejudice at the time of the stay.
The United States Supreme Court denied Momenta’s petition
for certiorari in June, 2013.

Shortly thereafter this Court

entered summary judgment in Amphastar’s favor, finding that its
activities fell under the safe harbor provision and therefore
did not infringe.

The Court entered final judgment on Momenta’s

infringement claims in January, 2014.
In November, 2015, the Federal Circuit vacated the grant of
summary judgment with respect to that finding. Momenta Pharm.,
Inc. v. Teva Pharm. USA Inc., 809 F.3d 610, 613 (Fed. Cir.
2015).2

The Federal Circuit held that Amphastar’s post-approval

use of the patented process to test its generic enoxaparin
products was, in fact, a “routine” step in a commercial

In that decision, the Federal Circuit addressed the findings of this Court in
both the instant case, in which Momenta alleges that Amphastar infringed the
’886 patent, and the companion case, in which Momenta alleged that Teva
Pharmaceuticals USA Inc. infringed the ’886 patent. Id.
2

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production process and thus not “reasonably related to the
development and submission of information” to the FDA. Id. at
620.

In doing so, it found that:
With the benefit of additional briefing in the current
appeals, which reflects the full district court record
developed by all parties after the preliminary
injunction phase, we conclude Amphastar's submissions
are appropriately characterized as “routine.”

Id.

It also concluded that:
Although Momenta I held that post-approval studies can
fall within the § 271(e)(1) safe harbor, 686 F.3d at
1359, whether such uses are reasonably related to a
§ 271(e)(1) submission requires more critical analysis
in the post-approval context. The conclusion in Momenta
I that Amphastar's commercial use of Momenta's patented
method falls within the safe harbor of § 271(e)(1) would
result in manifest injustice.

Id. at 621 (internal quotation marks omitted).
The Federal Circuit denied Amphastar’s petition for a
hearing en banc in February, 2016.

Amphastar informed the Court

that it would file a petition for certiorari with the Supreme
Court on or before May 17, 2016.
In March, 2016, the parties informed this Court of an
outstanding issue in connection with a prior imposition of
sanctions by the magistrate judge upon defendants for violating
certain discovery-related orders.
B.

The instant dispute

In December, 2013, Magistrate Judge Robert B. Collings
imposed sanctions upon Amphastar after finding that it disobeyed

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his June 12, 2012 order (“the June 12th order”) and June 27,
2012 order (“the June 27th order”) by failing to produce
1) documents concerning its testing of certain batches of
generic enoxaparin products, 2) unredacted copies of documents
previously produced in redacted form and 3) a complete copy of
all amendments to any Abbreviated New Drug Application (“ANDA”)
filed by any defendant.

He concluded that sanctions were

warranted under Rule 37(b)(2)(C) and directed Momenta to submit
affidavits and other documents supporting the amounts
which they claim as expenses, including reasonable
attorney’s fees, caused by Amphastar’s violation of the
Court’s June 12th and June 27th Orders (including the
preparation and prosecution of the [re-filed motion for
sanctions]) . . . .
Amphastar filed objections to the imposition of sanctions which
this Court overruled in January, 2014.
Momenta filed a fee submission in December, 2013 which
sought 1) $735,209 in fees for work caused by Amphastar’s
violations of the June, 2012 orders, 2) $70,205 in fees for the
preparation of the fee submission and 3) $8,522 in costs caused
by those violations.

Momenta later informed the Court in

footnote 2 of its reply memorandum that there were “two minor
errors in the[] Fee Submission” which reduced the requested
award by $6,000.
Momenta now seeks $799,414 in fees and $8,522 in costs,
figures which Amphastar fervently contests.

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II.

Attorney’s fees and costs
A.

Legal standard

Rule 37 provides that a court
must order the disobedient party, the attorney advising
that party, or both to pay the reasonable expenses,
including attorney's fees, caused by the failure [to
obey a discovery order or produce a person for
examination], unless the failure was substantially
justified or other circumstances make an award of
expenses unjust.
Fed. R. Civ. P. 37(b)(2)(C).

The party seeking fees and costs

has the burden of showing that the expenses claimed are
reasonable and traceable to the failures of the disobedient
party. Ins. Recovery Grp., Inc. v. Connolly, 95 F. Supp. 3d 73,
78-79 (D. Mass. 2015).

A court can reduce the award requested

to the extent that “the documentation of hours is inadequate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
A court has extremely broad discretion to determine the
reasonable fees and costs to award to the entitled party.
Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992).

Under the

lodestar method for calculating a reasonable fee, the court will
first multiply the number of hours reasonably expended on the
litigation by the reasonable hourly rate. Hensley, 461 U.S. at
433.

The court may reduce the number of hours in order to

eliminate time that was “unreasonably, unnecessarily, or
inefficiently devoted to the case.” Torres-Rivera v. O’NeillCancel, 524 F.3d 331, 336 (1st Cir. 2008).
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Although the lodestar figure represents the “presumptively
reasonable fee”, Lipsett, 975 F.2d at 937(citing Blum v.
Stenson, 465 U.S. 886, 897 (1984)), the court may further reduce
the lodestar based upon factors such as 1) the time and labor
required, 2) the novelty or complexity of the issues, 3) the
skill required, 4) the preclusion of other employment by the
attorneys, 5) the customary fee, 6) the fixed or contingent
nature of the fee, 7) the time limitations imposed by the client
or circumstances, 8) the damages involved and results obtained,
9) attorney experience, reputation and ability, 10) the
desirability of the case, 11) the nature and length of the
client relationship and 12) the size of awards in similar cases.
Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337
n.3 (1st Cir. 1997)(adopting the factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974)).
B.

Application

Momenta seeks to recover $799,414 in fees and $8,522 in
costs.

Amphastar asks the Court to deny Momenta all fees and

costs in their entirety “because of the outrageousness of the[]
request” or, in the alternative, to allow only $40,368 in fees
and no costs and to exclude the remainder of the claimed
expenses as unreasonable, excessive or duplicative.

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Upon careful consideration of the submissions by the
parties, the Court finds it reasonable to award Momenta $343,863
in fees and $8,522 in costs.
1.

Fees: Compensable time

To calculate the number of hours reasonably spent, courts
must first determine the number of hours actually spent and
deduct the number of hours which were “duplicative,
unproductive, excessive, or otherwise unnecessary.” Grendel’s
Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984).
a.

Work “caused by” Amphastar’s non-compliance

The December, 2013 order for sanctions instructed Momenta
to submit documentation to support the claimed expenses “caused
by” Amphastar’s violations of the June, 2012 orders.
Momenta asserts that its attorneys engaged in 1,448.4 hours
of work “caused by” Amphastar’s violations of the June, 2012
orders.

Those hours of work were performed by five partner

attorneys, two “of counsel” attorneys and six associate
attorneys at the law firms of Choate, Hall & Stewart LLP
(“Choate”) and McDermott, Will & Emery LLP (“McDermott”).
Specifically, it contends that Amphastar’s non-compliance
caused it to perform legal work in connection with
1)

its initial and re-filed motions to compel production
of testing documents (Docket Nos. 225 and 390)(“the
testing motions”) which sought production of the
manufacturing test records at issue in its later
motions for sanctions,
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2)

its motion to compel responses to interrogatories
(Docket No. 270)(“the interrogatories motion”) which
sought information on those same test records,

3)

its motion to enforce the June 12th order (Docket No.
275)(“the motion to enforce”), its motion and re-filed
motion for a finding of contempt and sanctions (Docket
Nos. 295 and 392)(“the motions for sanctions”) and the
July, 2013 hearing, all of which formed the basis of
the eventual imposition of sanctions,

4)

its motion for discovery pursuant to Fed. R. Civ. P.
56(d)(Docket No. 366)(“the Rule 56(d) motion”) which
sought the same test records and ANDA materials at
issue in its re-filed motion for sanctions,

5)

its inspection of the ANDA materials in California in
April, 2013, given Amphastar’s refusal to make those
files available in Boston which expressly violated the
June 27th order and forced Momenta’s attorneys to
inspect the ANDA documents before they could conduct a
subsequent review in Boston,

6)

its motion for leave to amend its infringement
contentions (Docket No. 456)(“the motion to amend”)
which it filed in response to “the new documentation
belatedly produced by Amphastar”,

7)

other matters (“other matters”) such as a) drafting a
potential motion to compel the missing documents which
was later incorporated in its reply memorandum in
support of sanctions, b) reviewing the June 12th order
and composing an e-mail in the course of assessing and
discussing Amphastar’s non-compliance and c) preparing
for a status conference which “dealt primarily” with
the Rule 56(d), testing and sanctions motions and

8)

its submission for fees and costs (Docket No.
545)(“the fee submission”) which it filed as requested
by the December, 2013 order for sanctions.

Momenta emphasizes that it excluded from the fee submission
charges for which it does not seek recovery because such work
was “so intertwined with other work that the Plaintiffs would
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have done regardless”.

It regards its fee submission as

“already substantially discount[ing] the fees and expenses”
caused by the violations.
Momenta thus concludes that the legal work for which it
seeks reimbursement was reasonable, necessary and caused by
Amphastar’s failure to comply with the June, 2012 orders.
Amphastar responds that only the work associated with the
motion to enforce, motions for sanctions and fee submission were
“caused by” its violations of the June, 2012 orders and thus
recovery for any other category of work is unwarranted.
After a comprehensive review of the record, the Court finds
that Momenta can properly recover for at least some portion of
the work associated with the motion to enforce, motions for
sanctions, Rule 56(d) motion, inspection of the ANDA materials,
“other matters” and fee submission.

The Court will address each

category of claimed work seriatim.
Momenta cannot recover fees in connection with its testing
motions which sought the production of all documents concerning
“finished product testing, retesting or reevaluation of any
kind” for sold, inventoried or destroyed batches of enoxaparin.
It filed the original testing motion one month before the entry
of the June, 2012 orders such that the work associated with that
motion was not “caused by” Amphastar’s violation of the orders.
That work is unrecoverable.

Momenta re-filed the testing motion
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in March, 2013 in essentially the same form which suggests that
the work incurred with respect to the re-filed motion is de
minimis and unrecoverable.
Similarly, the legal work associated with the
interrogatories motion will not be reimbursed because that
motion was also filed before the entry of the June, 2012 orders.
Momenta would have had to prosecute the interrogatories motion
regardless of Amphastar’s recalcitrant failure to comply with
the June, 2012 orders.
Amphastar concedes that at least some portion of the work
related to the motion to enforce, motions for sanctions and fee
submission were caused by its non-compliance.
The Rule 56(d) motion, filed in January, 2013, sought
production of documents requested in the motion for sanctions
which, in turn, asked for the same documents referred to in the
June 12th order and the December, 2013 order for sanctions.
Amphastar’s violation of the June 12th order thus caused Momenta
to file the Rule 56(d) motion in continued pursuit of those
documents.
Amphastar’s non-compliance did not, however, cause Momenta
to move to amend its infringement contentions in the manner
contemplated by the December, 2013 order for sanctions.

If

Amphastar had complied with the June, 2012 orders by producing
the documents, Momenta would still have been compelled to amend
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its infringement contentions thereafter.

The legal services

that Momenta needed in connection with its motion to amend was,
therefore, not “caused by” Amphastar’s non-compliance.
With respect to “other matters”, Amphastar’s failure to
produce the documents specified in the June, 2012 orders caused
Momenta to draft a new motion to compel those documents, to
assess the extent of Amphastar’s non-compliance with the June
12th order and to prepare for a status conference during which
Momenta elaborated on its allegations of Amphastar’s noncompliance.

The legal work associated with such “other matters”

is recoverable.
Finally, Amphastar’s recalcitrance caused Momenta to travel
to California to inspect the ANDA documents at Amphastar’s
offices.

The magistrate judge found in December, 2013 that

1) the June 27th order required Amphastar to deliver a complete
copy of the ANDA amendments to Momenta’s attorneys in Boston,
2) Amphastar produced only the transmittal letters to the
amendments in reliance upon a nonsensical and “flawed . . .
interpretation of what constitutes an ‘amendment’ to the ANDA”,
3) Amphastar’s attorneys “deliberately rewrote the Court’s
order” in adopting that interpretation and 4) sanctions were
warranted because failing “to disclose more than the transmittal
letters vis-à-vis the amendments constituted disobedience” of
the June 27th order.
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According to the April, 2013 order of the magistrate judge,
[i]t is clear that the Court's Order of June 27, 2012,
at least as to anything other than the ANDA itself, was
ineffective due to the parties' differing views on what
constitutes an "amendment" to the ANDA, the Court being
unaware of those views at the time. In these
circumstances, the Court sees no viable alternative but
to require plaintiff[s’] counsel to inspect the socalled 78 volumes and to determine what, if anything, he
seeks to have produced.
If Amphastar had timely produced the ANDA amendments as required
by the June 27th order, Momenta would not have had to inspect
the documents before conducting its substantive review in
Boston.

Amphastar’s improper withholding of the ANDA amendments

thus caused Momenta to conduct the inspection in California.
Amphastar’s arguments to the contrary are unavailing.
Accordingly, the Court will allow Momenta to recover at
least some of the legal fees incurred with respect to the motion
to enforce, motions for sanctions, Rule 56(d) motion, inspection
in California, “other matters” and fee submission.
b.

Deduction of fees

The Court will reduce the fees assessed for hours billed on
work that was “duplicative, unproductive, excessive or otherwise
unnecessary.” Grendel’s Den, 749 F.2d at 950.
i.

Excessive or duplicative work

Amphastar contends that Momenta’s attorneys at Choate spent
an “extremely excessive, unavoidably duplicative, and wholly

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unreasonable” number of hours in preparing and prosecuting their
motions for sanctions.
Specifically, defendants assert that 79.5 of the 253.7
hours of work claimed by Momenta’s attorneys at Choate in
connection with those motions were “unnecessary” because the
attorneys spent 1) 66.25 hours drafting reply memoranda that
they ultimately did not file, 2) 10.5 hours in document review,
3) 1.7 hours of work during “the interim time period after the
Court’s hearing on the Re-Filed Sanctions motion but before the
Court’s Order” and 4) 1 hour assessing “Amphastar’s compliance
with the Court’s June 27, 2012 order, [before] the date for
compliance had [] passed”.
The Court finds that the legal fees incurred by Momenta
with respect to its motions for sanctions was excessive and that
a reduction of those fees by 25% is reasonable.
ii.

Clerical or administrative work

Amphastar seeks to exclude about 40 hours of work performed
by a senior associate in reviewing and redacting client bills
because “[c]lerical or administrative tasks cannot be billed at
lawyer rates . . . even when a lawyer performs them”, see
Lipsett, 975 F.2d at 940.
Momenta responds that the disputed hours involved “tasks
that had to be performed by a lawyer” such as 1) analyzing 300
pages of monthly invoices and time records in order to identify
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hours of compensable work and 2) reviewing the records for
privilege.

Amphastar counters that “[a]pproximately 90% of the

300 pages are client bills” which should have required only a
few hours of review.
The Court agrees with Momenta.

Examples of clerical or

administrative tasks include
document preparation, organization, distribution, and
copying; drafting emails and other correspondence; data
collection;
legal
cite-checking;
scheduling
and
logistical planning; filing court documents; factual
research; and docket review and management.
AutoZone, 934 F. Supp. 2d at 353-54.

The Court is satisfied

that, in this case, the review of time records for compensable
activities and privileged information is not clerical or
administrative and is a task typically performed by licensed
attorneys.

There will be no deduction of hours of work as

clerical or administrative.
iii.

Travel time

Courts in the First Circuit Court of Appeals
typically reduce by half any billed hours an attorney
spent traveling instead of working on the case.
Hermida v. Archstone, 950 F. Supp. 2d 298, 311 (D. Mass.
2013)(collecting cases).

Here, three of Momenta’s attorneys

from Choate recorded 48 hours of travel time in connection with
their trip to inspect ANDA documents at Amphastar’s offices in

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mid-April, 2013.

Although neither party has raised the issue,

the Court will reduce the recorded travel time by one-half.
Attorney Michael E. Murawski (“Attorney Murawski”) recorded
10.2 hours of time spent flying between Boston and California
and commuting to and from Amphastar’s offices.

His travel hours

will be reduced by 5.1 hours.
Attorney Jessica Gan Lee (“Attorney Lee”) recorded 21.6
hours of time spent flying and commuting to and from Amphastar’s
offices.

Her travel hours will be reduced by 10.8 hours.

Attorney Sophie F. Wang (“Attorney Wang”) recorded 16.1
hours of time spent traveling to and from Amphastar’s offices in
California.

Her travel hours will be reduced by 8.1 hours.

The fee submission reported no other travel time with the
exception of an entry by Attorney Thomas. P. Steindler
(“Attorney Steindler”) who, on July 1, 2013, “[p]repare[d] for
and attend[ed] summary judgment hearing and sanctions hearing
and return travel (5.0)”.

Because Attorney Steindler does not

specify the amount of time that he spent traveling, the Court
will treat the entry as a block billed record subject to a 20%
global reduction.

The Court will reduce his 5 hours of work by

1 hour.
Accordingly, the Court will deduct 1 hour of work performed
by partner attorneys and 24 hours of work performed by associate
attorneys to account for the travel time.
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iv.

Block billed entries

The term “block billing” refers to the time-keeping method
of “itemiz[ing] several tasks within a single time entry rather
than maintaining separate time entries for each task performed”.
RFF Family P'ship, LP v. Link Dev., LLC, 962 F. Supp. 2d 340,
343 (D. Mass. 2013).

Courts disfavor that method because it

often requires them to “decipher” the time records. E.E.O.C. v.
AutoZone, Inc., 934 F. Supp. 2d 342, 355 (D. Mass. 2013).
If the block billed records submitted by the moving party
are “rife with questionable entries”, courts have broad
discretion to apply across-the-board global reductions to the
fee requests. Id.(internal quotation marks omitted).

If those

records are supported by contemporaneous time records and
sufficiently detailed explanations of those records, however,
then the use of block billing is “not unreasonable” and will not
be reduced on that ground. RFF, 962 F. Supp. 2d at 343.
In its fee submission, Momenta presents monthly invoices
for services performed by its attorneys from Choate and
McDermott.

The invoices from Choate contain block billed

entries describing the completed tasks, relevant communications
and the purpose of memoranda drafted.

Those contemporaneous

records and explanations would render the use of block billing
“not unreasonable”, see id., if Momenta had not also 1) redacted
certain entries to exclude activities for which it does not seek
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recovery and 2) reduced the hours recorded in each of those
entries by an estimated, but unexplained, amount.
For example, on June 20, 2012, Attorney Murawksi recorded
5.4 hours of work for reviewing “discovery motions filed with
the court concerning Amphastar’s failure to answer discovery and
produce documents” and performing a separate, unknown and
redacted task.

In the “Hours” column, Murawski recorded 5.4

hours of work under which Momenta has since added a boxed
notation of 2.0 hours.

Momenta does not explain the nature of

the redacted activity in that record or its method of estimating
2.0 hours of claimed work and 3.4 hours of unclaimed work.
Many of the entries submitted by Momenta’s attorneys from
Choate contain similarly redacted activities and reduced hours.
The Court lacks sufficient information to determine whether the
hours in those entries were reasonably attributable to
defendants’ sanctionable conduct.

The Court therefore deems a

20% global reduction to the hours recorded by Choate attorneys
reasonable. See Torres-Rivera, 524 F.3d at 340(affirming the
reasonableness of a 15% global reduction for “generic” entries
that the district court treated as block billed entries);
AutoZone, 934 F. Supp. 2d at 355(“Global reductions of fifteen
to twenty percent have been fairly common penalties for block
billing in this circuit.”); Conservation Law Found., Inc. v.

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Patrick, 767 F. Supp. 2d 244, 253 (D. Mass. 2011)(applying a 20%
global reduction for block billed entries).
Accordingly, the fees incurred for hours expended by
Momenta’s attorneys from Choate will be globally reduced by 20%.
The Court will not, however, apply the global reduction to
the hours recorded by Momenta’s attorneys from McDermott because
their block billed entries include contemporaneous records of
the amount of time spent on each activity within each entry.
2.

Fees: Hourly rates

The moving party must demonstrate the reasonableness of its
requested rates through evidence, such as affidavits from the
reporting attorneys, that its rates are consistent with those
“prevailing in the community for similar services by lawyers of
reasonably comparable skill, experience and reputation.” Blum,
465 U.S. at 895 n.11.

Those prevailing market rates are

“normally deemed to be reasonable”. Id.

The moving party may

present evidence of the prevailing market rates and the
customary billing rates of the reporting attorneys. Andrade v.
Jamestown Hous. Auth., 82 F.3d 1179, 1190 (1st Cir. 1996).

The

court, however, is not required to adopt any of those rates and
can “rely upon its own knowledge of attorney's fees in its
surrounding area” in determining the reasonable hourly rate. Id.
Momenta submits that it is reasonable for 1) its partner
attorneys, i.e., Attorneys Robert S. Frank (“Attorney Frank”),
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Jr., Daniel C. Winston and G. Mark Edgarton from Choate and
Attorneys Steindler and Alison Nadel from McDermott, to charge
between $450 and $1,000 per hour, 2) its “of counsel” attorneys,
i.e., Attorneys Daniel Bucca and Sean O’Donnell from McDermott,
to charge between $595 and $635 per hour and 3) its associate
attorneys, i.e., Attorneys Lee, Murawski, Kara B. Coen, Wang,
Diana T. Huang and Anna Rachel Dray-Siegel from Choate, to
charge between $415 and $695 an hour.
It presents affidavits from Attorneys Frank and Steindler
and declares that those hourly rates are the standard billing
rates charged to its clients and are comparable to the rates
billed by intellectual property and business litigation
attorneys with similar experience, reputation and skill at peer
firms.
Attorney Frank claims that the rates charged by the Choate
attorneys are competitive with the rates charged by other major
law firms with principal offices in Boston based upon the
results of a survey conducted by an independent consulting firm
in 2013 (“the 2013 survey”).

He also suggests that the hourly

rates at Choate are “in many instances [] lower than other
Boston firms that have similar patent litigation practices.”
Attorney Steindler proffers that the rates charged by the
McDermott attorneys are “competitive with those charged by other

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premier national firms operating in Boston” based upon
aggregated data from peer law firms.
Amphastar asks the Court to discredit Attorney Frank’s
declarations that the Choate rates are competitive because the
2013 survey excluded data from comparable firms that operate in
Boston but have their principal offices elsewhere.

By relying

on the results from that survey, Amphastar alleges, Momenta
departs from the “prevailing market rate” standard and redefines
“community” to include only attorneys employed in Boston by law
firms with principal offices in Boston.
The Court is persuaded by Amphastar that Momenta relied
upon a survey that improperly excluded data from attorneys
employed in Boston by law firms without principal offices in
Boston.

The inquiry with respect to whether the requested rates

are reasonable focuses on the comparison between the requested
rates and those charged by similarly credentialed attorneys
performing similar services in the community.

Momenta’s

analysis is under-inclusive because the 2013 survey places an
undue emphasis on the institutional character of the law firms
employing those attorneys.

Momenta thus has not shown that the

hourly rates charged by its attorneys at Choate are reasonable
and in line with the prevailing market rates.
Amphastar further contends that, based upon the results
from a survey by its own independent consulting firm, the
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prevailing market rates for similarly experienced attorneys in
the community fall between 1) $491 and $780 for partner
attorneys, 2) $409 and $515 for “of counsel” attorneys and
3) $369 and $451 for associate attorneys.

The survey results

upon which it relies, however, are over-inclusive because they
include billing data from attorneys working in various practice
areas, which vary by hourly rate, rather than only from
attorneys who practice intellectual property law.
The Court will allow Momenta to recover fees based upon
reasonable hourly rates of 1) $800 for each of the five partner
attorneys from Choate and McDermott, 2) $600 for each of the two
“of counsel” attorneys from McDermott and 3) $475 for each of
the six associate attorneys from Choate.

Those hourly rates are

in line with those charged by similarly experienced patent
litigators in the Boston community. See WBIP, LLC v. Kohler Co.,
2014 WL 4471412, at *2 (D. Mass. Sept. 8, 2014)(finding as
“commensurate with [rates] charged by equally experienced patent
litigators in Boston” hourly rates between a) $600 and $735 for
a partner at the law firm of K&L Gates LLP who specialized in
intellectual property litigation, b) $580 and $650 for a counsel
attorney with about 15 years of experience in patent litigation
and c) $345 and $425 for an associate who specialized in
intellectual property litigation).

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Accordingly, the lodestar figure is $343,863 as shown
below:
Attorneys

Reasonable
Hours

Reasonable
Rate

Reasonable Fees
(Hours x Rate)

Choate partners

121.3

$800

$97,040

McDermott partners

33.4

$800

$26,720

McDermott of counsel

24.6

$600

$14,760

Choate associates

432.3

$475

$205,343

Lodestar

$343,863

3.

Fees: Adjustments to the lodestar figure

Amphastar requests that the lodestar figure undergo a
further reduction because 1) Momenta engaged in “wasteful
litigation” by filing a
barrage of discovery motions after the Court lifted the
stay and after Amphastar filed its motion for summary
judgment based on the Federal Circuit’s decision . . .
in August, 2012 [that] essentially rendered [its]
discovery requests and Sanctions Motions superfluous[,]
2) Momenta opted not to inspect the ANDA materials in California
in June, 2012 and instead waited until April, 2013 to conduct
the inspection and thus 3) the requested award of over $800,000
is disproportionate to the results that Momenta obtained.
Amphastar further contends that the requested award of over
$800,000 is “unprecedented” in every circuit.
As discussed above, the legal work relating to the motion
to enforce, motions for sanctions, Rule 56(d) motion, inspection

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in California, “other matters” and fee submission was part of
Momenta’s legitimate efforts to enforce the June, 2012 orders.
That litigation was caused by Amphastar’s violations and was
neither wasteful nor superfluous.

The Federal Circuit decision

in August, 2012 did not excuse Amphastar’s compliance with the
June, 2012 orders or preclude the imposition of sanctions upon
it for violating those orders.
Accordingly, the Court finds that an award of $343,863 of
legal fees incurred by Momenta in connection with the
sanctionable conduct of defendants is not disproportionate in
this action in which the damages may exceed $160 million.
4.

Costs

The Court will also award Momenta $8,522 in travel and
subsistence costs incurred by Attorneys Murawksi, Lee and Wang
in connection with their April, 2013 inspection of the ANDA
files in California.

Those costs were caused by Amphastar’s

violations and reasonably incurred.

The Court makes that

finding in light of the April, 2013 order by the magistrate
judge concluding that Amphastar’s non-compliance with the June
27th order left him with “no viable alternative but to require
plaintiff[s’] counsel to inspect” the ANDA materials in Boston
or California.

The magistrate judge forewarned counsel in the

order that

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the Court retains the power to assess costs imposed in
complying with the Order, including plaintiff[s’] travel
and subsistence costs . . . [D]efendants may opt to
produce the documents at their counsel's office in
Boston . . . to avoid the possibility that they would
have to pay plaintiff[s’] counsel's costs.
Accordingly, the Court will award Momenta $8,522 in costs.
ORDER

For the foregoing reasons, and in consideration of
plaintiffs’ submission for fees and costs (Docket No. 545),
plaintiffs are awarded $343,863 in fees and $8,522 in costs.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated May 9, 2016

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