Costco Wholesale Corp. v. Au Optronics Corp. et al

Filing 694

STIPULATION AND ORDER Regarding Award of Attorneys' Fees and Costs to Plaintiff Costco Wholesale Corporation, by Judge Richard A. Jones. (VE)

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THE HONORABLE RICHARD A. JONES

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
COSTCO WHOLESALE CORP.,
Plaintiff,
v.

No. 2:13-cv-01207-RAJ
STIPULATION AND ORDER
REGARDING AWARD OF ATTORNEYS’
FEES AND COSTS TO PLAINTIFF
COSTCO WHOLESALE CORPORATION

AU OPTRONICS CORP., et al.,
Defendants.
The court GRANTS the parties’ stipulation (Dkt. # 691) regarding attorney fees, and
commends them for their efforts in reaching a resolution of this issue.
STIPULATION
WHEREAS, on October 23, 2014, a jury verdict was rendered on behalf of Plaintiff
Costco Wholesale Corporation (“Costco”) in the United States District Court for the Western
District of Washington in the above-captioned action (this “Action”);
WHEREAS, based on the jury’s October 23, 2014 verdict and the Court’s June 4, 2015
order, the Court entered judgment in this Action for Plaintiff Costco and against Defendants LG
Display Co., Ltd. and LG Display America, Inc. (collectively “LGD”) and AU Optronics
Corporation and AU Optronics Corporation America (collectively “AUO”) for $61,971,040 on
June 4, 2015;

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WHEREAS, based on the June 4, 2015 judgment, Costco has asserted that it is entitled to
recover the costs of suit, including reasonable attorneys’ fees, from LGD and AUO under
Section 4 of the Clayton Act, 15 U.S.C. § 15 and the Washington Consumer Protection Act,
RCW 19.86, and intends to file motions for fees and costs under Federal Rule of Civil Procedure
54(d)(1) & (2);
WHEREAS, LGD and AUO dispute Costco’s claimed fees and costs;
WHEREAS, LGD and AUO have filed post-judgment motions pursuant to Federal Rules
of Civil Procedure 50 and 59 and all parties anticipate that further attorneys’ fees and costs will
be incurred in connection with those motions and subsequent proceedings;
WHEREAS, Costco, LGD and AUO have met and conferred in an attempt to reach a
compromise agreement on the amount of fees and costs through and including June 12, 2015,
that should be awarded to Costco pursuant to the June 4, 2015 judgment;
WHEREAS, to avoid unnecessarily burdening this Court with additional motions under
Fed. R. Civ. P. 54(d)(1) & (2), and to resolve their differences over the matters set forth above
without admitting or agreeing to the contentions advanced by any other party, Costco, LGD, and
AUO have agreed to a compromise as set forth herein;
NOW THEREFORE, the parties hereby stipulate as follows:
1.

Costco, LGD, and AUO stipulate and agree that, as a result of the June 4, 2015

judgment, Costco shall be awarded the sum of $10,000,000 United States dollars (“Stipulated
Amount”) to resolve its claims for attorneys’ fees and costs incurred through and including
June 12, 2015.
2.

In executing this stipulation, Costco releases LGD and AUO from any and all

claims of any sort for attorneys’ fees and/or costs incurred prior to and including June 12, 2015,
in and arising from this Action or relating to the alleged price fixing of LCD products that was
the subject of this Action and MDL No. 1827 (“Release”). The Release shall cease to have

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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effect in the circumstances set forth in Paragraph 3. Costco retains all claims arising from fees
and costs it incurs in this Action after June 12, 2015.
3.

In the event that (i) a new trial is granted in whole or in part, (ii) a judgment as a

matter of law is granted in whole or in part in favor of LGD or AUO, or (iii) the June 4, 2015
judgment is modified or reversed in whole or in part by any court on appeal, the parties agree as
follows:
(a)

The compromise memorialized in this stipulation shall be abrogated and this

stipulation shall not be binding on Costco, LGD, or AUO, with the exception of Paragraphs 4
and 5 below.
(b)

The Release shall be of no force and effect and Costco, AUO and LGD shall

thereafter be entitled to bring any motions on Costco’s fees and costs within 45 days of either (i)
the order or decision; (ii) receipt of any remand from a court of appeal by the District Court; or
(iii) the parties’ retention of a neutral under Paragraph 4, whichever is later, and to make any
claims, arguments and contentions, regarding Costco’s attorneys’ fees and costs incurred on or
before June 12, 2015, as could have been made had the stipulation never been executed.
(c)

The above-identified District Court shall determine on remand or otherwise what,

if any, amounts of costs and attorneys’ fees should be awarded to Costco after briefing from the
parties on a timeline determined by the District Court. Nothing in this stipulation shall limit the
scope or amount of fees and costs that may be requested, nor the evidence or contentions that
may be submitted in support of or in opposition to such a request.
(d)

The bond to be posted by LGD and AUO based on the Court’s June 16, 2015

order (Dkt. 687) and the parties’ stipulation (Dkt. 686) includes appropriate security for the
Stipulated Amount. In the event that Costco has received any payment of attorneys’ fees or costs
from LGD or AUO, Costco shall within 45 days of any order or decision under Paragraph
3(i)-(iii) reimburse LGD and AUO the full amount of the attorneys’ fees and costs paid.

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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4.

In the event the District Court lacks jurisdiction to award fees and/or costs

following a decision by a court of appeal or otherwise under Paragraph 3(c), the parties stipulate
and agree that the amount, if any, of fees and costs to be awarded to Costco shall be decided in
binding arbitration by a mutually acceptable neutral at JAMS. The arbitrator may not award any
fees or costs to Costco that could not have been awarded by the District Court in the first
instance had the stipulation never been executed.
5.

This stipulation shall have no bearing on any supplemental claims by Costco for

fees and costs incurred after June 12, 2015, shall not affect Costco’s right to submit a cost
memorandum or motions seeking such post-June 12, 2015 fees or costs, contains no agreement
concerning those supplemental fees or costs, and shall not be relied upon by any party in any
proceeding regarding the entitlement to or proper amount of fees and costs incurred after said
date.
6.

This agreement is null and void in the event the Court does not accept the

stipulation as agreed by the parties, in which case Costco shall have until 14 days after the Court
issues a final decision on all post-judgment motions to file motions for attorneys’ fees and costs
under Fed. R. Civ. P. 54(d)(1) & (2) and Local Civil Rule 54(d).
IT IS SO STIPULATED.
Dated: July 14, 2015

s/David J. Burman
David J. Burman, WSBA No. 10611
Cori G. Moore, WSBA #28649
Eric J. Weiss, WSBA #44807
Nicholas H. Hesterberg, WSBA #41970
Steven D. Merriman, WSBA #44035
PERKINS COIE LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Telephone: [phone]
Facsimile: 206.359.9000
Email: [e-mail]
[e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff Costco Wholesale Corp.
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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Dated: July 14, 2015

s/Rudy A. Englund___________________
Rudy A. Englund, WSBA #04123
Erin M. Wilson, WSBA #42454
LANE POWELL PC
1420 Fifth Avenue, Suite 4200
P.O. Box 91302
Seattle, WA 98111-9402
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
s/Brad D. Brian
Brad D. Brian (pro hac vice)
Susan E. Nash (pro hac vice)
Kyle W. Mach (pro hac vice)
Christopher M. Lynch (pro hac vice)
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue
Los Angeles, CA 90071-1560
Telephone: [phone]
Facsimile: [phone]
E-mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants LG Display Co., Ltd.
and LG Display America, Inc.

Dated: July 14, 2015

s/David C. Lundsgaard
David C. Lundsgaard, WSBA #25448

MILLER NASH GRAHAM & DUNN, LLP
Pier 70, 2801 Alaskan Way, Suite 300
Seattle, WA 98121-1143
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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s/Christopher A. Nedeau
Christopher A. Nedeau (pro hac vice)
Carl L. Blumenstein (pro hac vice)
NOSSAMAN LLP
50 California Street, 34th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail],
[e-mail]
Attorneys for Defendants AU Optronics
Corp. and AU Optronics Corporation America

ORDER
This matter comes before the Court on a stipulation between and among Costco, LGD
and AUO to an amount of fees and costs that are to be awarded to Costco under Section 4 of the
Clayton Act, 15 U.S.C § 15, and the Washington Consumer Protection Act, RCW 19.86, and as a
result of the judgment entered in this Action on June 4, 2015 for Costco and against Defendants
LGD and AUO for $61,971,040. The Court understands this stipulation to be a compromise
agreement among the parties with regard to fees and costs claimed by Costco for the period prior
to and including June 12, 2015.
As a result of the June 4, 2015 judgment, and pursuant to the foregoing stipulation, the
Court hereby ORDERS:
1.

With respect to the fees and costs incurred prior to and including June 12, 2015,

Costco is entitled to recover the costs of suit, including reasonable attorneys’ fees, in the amount
of $10,000,000 United States dollars from remaining defendants LG Display Co., Ltd. and LG
Display America, Inc. (collectively “LGD”) and AU Optronics Corporation and AU Optronics
Corporation America (collectively “AUO”) under Section 4 of the Clayton Act, 15 U.S.C. § 15
and the Washington Consumer Protection Act, RCW 19.86.
2.

The Court accepts the other terms of the stipulation.

3.

Costco may file motions for supplemental fees and costs incurred after June 12,

2015, consistent with this Court’s July 7, 2015 Order (Dkt. No. 690).
Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]

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4.

The Court will enter an amended judgment that incorporates the stipulated

amount of Costco’s fees and costs prior to and including June 12, 2015 of $10,000,000 at the
time it issues its order regarding any fee award and costs for the period after June 12, 2015,
whether that order results from further stipulation or proceedings before a Special Master.
5.

Pursuant to the Court’s June 16, 2015 Order (Dkt. No. 687) entered upon the

stipulation of the parties (Dkt. No. 686), no execution shall be made on this award of attorneys’
fees and costs and no further bond shall be required.
DATED July 16, 2015

A
The Honorable Richard A. Jones
United States District Court Judge

Perkins Coie LLP
1201 Third Avenue, Suite 4900
Seattle, WA 98101-3099
Phone: [phone]
Fax: [phone]