Cohen v Facebook Request for Attorneys' Fees

8/2/2019 Cohen v Facebook Request for Attorneys' Fees

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FACEBOOK ’S MOTION FOR

ATTORNEYS’ FEES AND COSTS

NO. 10-CV-05282-RS

COOLEY LLPMICHAEL G. RHODES (116127)([email protected])MATTHEW D. BROWN (196972)([email protected])101 California Street, 5th Floor San Francisco, CA 94111-5800Telephone: (415) 693-2000Facsimile: (415) 693-2222

Attorneys for DefendantFACEBOOK, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

ROBYN COHEN, SHANNON STOLLER,CHRISTOPHER MARSHALL, BRYANSIGLOCK, and DEBRA LEWIN,individually and on behalf of others similarlysituated,

Plaintiffs,

v.

FACEBOOK, INC., a Delaware corporation,

Defendant.

Case No. 10-cv-05282-RS

FACEBOOK , INC.’S MOTION FOR


Date: December 15, 2011Time: 1:30 p.m.Courtroom: 3Judge: Hon. Richard Seeborg

Case3:10-cv-05282-RS Document81 Filed11/10/11 Page1 of 27



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TABLE OF CONTENTS

Page

i.FACEBOOK ’S MOTION FOR


NO. 10-CV-05282-RS

I. INTRODUCTION .............................................................................................................. 1

II. RELEVANT FACTUAL AND PROCEDURAL HISTORY............................................. 2

A. Plaintiffs’ Allegations Against Facebook ............................................................... 2

B. Facebook’s Attorneys.............................................................................................. 3

C. Cooley’s Work on this Matter................................................................................. 3

1. Facebook’s Motions to Dismiss .................................................................. 4

2. Discovery .................................................................................................... 5

a. Discovery Requests......................................................................... 5

b. Plaintiffs’ Motion to Compel and for Sanctions; Facebook’sMotion to Stay Discovery ............................................................... 6

c. Document Collection, Review and Production............................... 6

III. FACEBOOK’S FEE REQUEST ........................................................................................ 7

IV. DISCUSSION................................................................................................................... 12

A. Facebook Is Entitled to Attorneys’ Fees ............................................................... 12

B. Facebook’s Fee Request Is Reasonable ................................................................ 15

1. Facebook Seeks Compensation for Reasonable Hours SpentDefending Itself......................................................................................... 16

2. Facebook Seeks Compensation at Reasonable Hourly Rates ................... 17

3. Facebook May Also Seek Reasonable Fees for Online LegalResearch .................................................................................................... 19

4. The Total Fee Award Sought Is Reasonable............................................. 20

C. Facebook Seeks Costs in the Concurrently-Filed Bill of Costs............................ 21

V. CONCLUSION................................................................................................................. 22




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TABLE OF AUTHORITIES

Page(s)

ii.FACEBOOK ’S MOTION FOR


NO. 10-CV-05282-RS

Adler v. Vaicius,21 Cal. App. 4th 1770 (1993).................................................................................................. 13

Akins v. Enterprise Rent-A-Car Co. of S.F.,79 Cal. App. 4th 1127 (2000).................................................................................................. 11

Bihun v. AT&T Info. Sys., Inc.,13 Cal. App. 4th 976 (1993).................................................................................................... 17

Cairns v. Franklin Mint Co.,115 F. Supp. 2d 1185 (C.D. Cal. 2000)................................................................................... 19

Cairns v. Franklin Mint Co.,292 F.3d 1139 (9th Cir. 2002)................................................................................................. 20

Cal. Common Cause v. Duffy,200 Cal. App. 3d 730 (1987)................................................................................................... 19

Canal v. De La Rosa Dann, No. 09-03366 CW, 2011 U.S. Dist. LEXIS 99863 (N.D. Cal. Sept. 6, 2011)........................ 19

Church of Scientology v. Wollersheim,42 Cal. App. 4th 628 (1996).............................................................................................. 20, 21

Dease v. City of Anaheim,838 F. Supp. 1381 (C.D. Cal. 1993) ....................................................................................... 21

Earley v. Super. Ct.,79 Cal. App. 4th 1420 (2000).................................................................................................. 15

Equilon Enters., LLC v. Consumer Cause, Inc.,29 Cal. 4th 53 (2002) .............................................................................................................. 20

Graciano v. Robinson Ford Sales, Inc.,144 Cal. App. 4th 140 (2006)............................................................................................ 13, 14

Graham v. DaimlerChrysler Corp.,

34 Cal. 4th 553 (2004) ............................................................................................................ 16

Guinn v. Dotson,23 Cal. App. 4th 262 (1994).............................................................................................. 15, 17

Harman v. City and Cnty. of S.F.,158 Cal. App. 4th 407 (2007).................................................................................................. 13




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(continued)

Page(s)

iii.FACEBOOK ’S MOTION FOR


NO. 10-CV-05282-RS

Hogar v. Cmty. Dev. Comm’n of Escondido,157 Cal. App. 4th 1358 (2007)................................................................................................ 16

In re Consumer Privacy Cases,175 Cal. App. 4th 545 (2009).................................................................................................. 17

In re Innkeepers USA Trust, et. al .,448 B.R. 131 (S.D.N.Y. 2011)................................................................................................ 19

Ketchum v. Moses,24 Cal. 4th 1122 (2001) .......................................................................................................... 11

Kirby v. Sega of Am., Inc.,144 Cal. App. 4th 47 (2006)........................................................................................ 11, 12, 13

Lakin v. Watkins Associated Indus.,6 Cal. 4th 644 (1993) .............................................................................................................. 17

Love v. Associated Newspapers, Ltd.,611 F.3d 601 (9th Cir. 2010)............................................................................................. 12, 13

Love v. Mail on Sunday, No. CV05-7798 ABC(PJWX), 2007 WL 2709975 (C.D. Cal. Sept. 7, 2007)...... 12, 13, 14, 21

Mangold v. Cal. Pub. Utils. Comm’n,67 F.3d 1470 (9th Cir. 1995)................................................................................................... 12

Page v. Something Weird Video,960 F. Supp. 1438 (C.D. Cal. 1996) ........................................................................... 12, 21, 22

PLCM Grp. v. Drexler ,22 Cal. 4th 1084 (2000) .................................................................................................... 15, 17

Plumbers & Steamfitters, Local 290, v. Duncan,157 Cal. App. 4th 1083 (2007)................................................................................................ 19

Robertson v. Fleetwood Travel Trailers of Cal., Inc.,

144 Cal. App. 4th 785 (2006).................................................................................................. 15

Salton Bay Marina, Inc. v. Imperial Irrigation Dist.,172 Cal. App. 3d 914 (1985)................................................................................................... 15

Serrano v. Priest ,20 Cal. 3d 25 (1977) ............................................................................................................... 15




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(continued)

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iv.FACEBOOK ’S MOTION FOR


NO. 10-CV-05282-RS

Serrano v. Unruh,32 Cal. 3d 621 (1982) ....................................................................................................... 16, 17

Trs. of Constr. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co.,460 F.3d 1253 (9th Cir. 2006)................................................................................................. 19

Van de Kamp v. Bank of Am.,204 Cal. App. 3d 819 (1988)................................................................................................... 15

Vo v. Las Virgenes Mun. Water Dist.,79 Cal. App. 4th 440 (2000).................................................................................................... 16

Weber v. Langholz,39 Cal. App. 4th 1578 (1995).................................................................................................. 16

Winick Corp. v. Safeco Ins. Co.,187 Cal. App. 3d 1502 (1986)................................................................................................. 13

STATUTES

California Business and Professions Code § 17200.................................................................. 1, 14

California Civil Code§ 3344............................................................................................................................... passim

California Code of Civil Procedure§ 1032...................................................................................................................................... 13§ 1033.5............................................................................................................................. 21, 22

OTHER AUTHORITIES

Northern District of California Civil Local Rule 54-5(b)(2) .......................................................... 7




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1.FACEBOOK ’S MOTION FOR


NO. 10-CV-05282-RS

NOTICE OF MOTION AND MOTION TO DISMISS

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on December 15, 2011 at 1:30 p.m. or as soon thereafter as

this motion may be heard in the above-entitled court, located at 450 Golden Gate Avenue, San

Francisco, California, in Courtroom 3 (17th Floor), Defendant Facebook, Inc. (“Facebook”) will

and hereby does move for attorneys’ fees and costs in the above-entitled action. Facebook’s

Motion is made pursuant to California Civil Code Section 3344 and is based on this Notice of

Motion and Motion, the accompanying Memorandum of Points and Authorities, the

accompanying declarations of Matthew D. Brown, Sandeep Solanki, and Chuck Chandler and the

exhibits thereto, all pleadings and papers on file in this matter, and upon such other matters as

may be presented to the Court at the time of the hearing or otherwise.w

STATEMENT OF R ELIEF SOUGHT

Facebook seeks an order, pursuant to California Civil Code Section 3344, granting

Facebook attorneys’ fees in the amount of $706,950.31.

STATEMENT OF ISSUES TO BE DECIDED

1. Is Facebook the prevailing party in this action because it obtained dismissal with

prejudice of all of Plaintiffs’ claims?

2. Should Facebook be awarded its lodestar of $706,950.31 in fees?

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

Plaintiffs alleged that Facebook violated users’ common law and statutory publicity rights

(Cal. Civil Code section 3344 (“Section 3344”)), California Business and Professions Code

section 17200 (the “UCL”), and the Lanham Act by displaying their and putative class members’

names and/or likenesses without consent or compensation in connection with Facebook’s free

“Friend Finder” utility. After two rounds of motions to dismiss, however, this Court ruled as a

matter of law that Plaintiffs did not state any valid claims for relief and dismissed all of Plaintiffs’

claims, the second time with prejudice. As a result, Facebook is the prevailing party in this action

and is entitled to mandatory “attorneys’ fees and costs” under Section 3344(a), as well its fees for




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NO. 10-CV-05282-RS

prevailing against Plaintiffs’ other related claims.

Facebook respectfully requests that the Court award fees of $706,950.31. The amount of

fees and costs requested by Facebook is reasonable given Plaintiffs’ sweeping demand for relief

and the results achieved by Facebook. First , in addition to injunctive relief, Plaintiffs sought

hundreds of millions of dollars in statutory damages, actual damages of more than $100 million,

disgorgement of profits, restitution, plus fees and costs. (Compl. at 18 (“Prayer for Relief”); First

Amended Complaint (“FAC”) at 24.) Facebook’s claimed fees are entirely appropriate for almost

12 months of work on this litigation. Second , Facebook’s fees are reasonable considering the

results achieved by counsel—dismissal with prejudice of all claims—and taking into account the

complexity of the case and the quality of Facebook’s presentation to the Court. Third , the hourly

rates of Facebook’s attorneys fall well within the range of reasonableness as established by rates

charged by comparable attorneys in Northern California. Finally, the fees requested are

conservative because Facebook is not seeking fees for all the time actually expended by its

attorneys to defend this litigation, despite being entitled to such fees under the law.

Facebook respectfully requests that the Court award it reasonable fees in the amount of

$706,950.31.

II. R ELEVANT FACTUAL AND PROCEDURAL HISTORY

A. Plaintiffs’ Allegations Against Facebook

In their original Complaint and FAC, Plaintiffs alleged that Facebook used their and

additional putative class members’1 names and/or likenesses without consent or compensation in

connection with Facebook’s free “Friend Finder” utility. (See, e.g., FAC ¶¶ 4, 12, 38-39; Compl.

¶ 34; Order Granting Motion to Dismiss filed June 28, 2011 (“June 28 Order”) at 1.) Plaintiffs

alleged that Facebook’s display of users’ names and/or likenesses violated their common law and

statutory publicity rights (Section 3344), the UCL, and—in the original Complaint—the Lanham

1 Plaintiffs’ proposed class included: “All Facebook users whose names, photographs or digitalimages and/or likenesses have been used without consent or compensation on Facebook.com for the purpose of advertising Facebook’s Friend Finder service, commencing November 22, 2006and continuing through the date of certification of this Class Action.” (FAC ¶ 44.)




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NO. 10-CV-05282-RS

Act. As discussed below, the Court twice rejected Plaintiffs’ claims and ultimately dismissed the

FAC with prejudice.

B. Facebook’s Attorneys

Cooley LLP (“Cooley”) represented Facebook in this case. Senior partner Michael

Rhodes and partner Matthew D. Brown led the litigation, developed strategy, and supervised the

work on the case. Mr. Brown led the day-to-day work on the matter, handled all court

appearances, communicated with opposing counsel and Facebook’s in-house counsel, and

managed the work of the other Cooley team members. The remainder of the core team of Cooley

attorneys was comprised of sixth-year associate Benjamin Kleine, fifth-year associate Raimondo

Sardo, third-year associate Kelly Cooke, and second-year associate Megan Donohue. Mr. Sardo

was added to the team in late August 2011 to fill in for Mr. Kleine at a time when Mr. Kleine was

preparing for and participating in a trial in the Northern District of California. Generally

speaking, throughout the litigation, Mr. Kleine / Mr. Sardo supervised task management, revised

briefs, and supervised discovery, and Ms. Cooke and Ms. Donohue performed the bulk of the

research, initial document drafting, and managed the document review and discovery process.

(Declaration of Matthew D. Brown filed herewith (“Brown Decl.”) at ¶¶ 3-4.) As such, Cooley’s

team at any one time primarily consisted of two partners, one senior associate, and two junior

associates. The core team thus provided the necessary stratification to have appropriately

experienced lawyers working on tasks suited to their experience. (Brown Decl. ¶ 4.) A further

description of the qualifications, experience, and work performed on this litigation by all team

members is contained in the Brown Declaration. (See id. at ¶¶ 4-5, Exs. A, B and C.)

C. Cooley’s Work on this Matter

Facebook mounted a vigorous and thorough defense because of the sweeping relief

Plaintiffs demanded. Plaintiffs sought statutory damages of $750 per person on behalf of a

putative class that Plaintiffs estimated would include “orders of magnitude” higher than 500,000

users and “in all likelihood . . . in the millions” of users. (Compl. ¶ 42 (“500,000 plaintiffs” “is

likely low by many orders of magnitude” and “[i]n all likelihood, the number of class members is

in the millions”) and p. 18 (“Prayer for Relief”); FAC ¶ 47 and p. 24 (“Prayer for Relief”).) Even




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NO. 10-CV-05282-RS

at Plaintiffs’ lower estimate of 500,000 users, Plaintiffs claimed in excess of $375 million in

statutory damages. Furthermore, in addition to statutory damages, Plaintiffs sought actual

damages of more than $100 million. (Compl. at 18 (Plaintiffs seek “[a]n award of actual damages

. . . in no event less than $100,000,000 in total”); FAC at 24 (same).) Plaintiffs also demanded

injunctive relief, restitution, “[a]n award of Facebook’s profits from its unlawful activity,” and

their fees and costs. (FAC at 24; Compl. at 18.)

1. Facebook’s Motions to Dismiss

Plaintiffs brought claims under the common law and statutory rights of publicity—claims

that are rarely litigated at all, particularly by non-celebrities and in class actions. The right of

publicity claims necessitated extensive research and analysis of complex legal issues.

Additionally, Facebook was required to research and analyze the legal issues arising from

Plaintiffs’ UCL and Lanham Act claims.

Facebook successfully researched, drafted, and argued two rounds of motions to dismiss.

Facebook’s first motion to dismiss was filed on January 11, 2011, with a hearing on March 3,

2011, resulting in an order by the Court on June 28, 2011 dismissing Plaintiffs’ claims with leave

to amend. (See June 28 Order.) In the June 28 Order, the Court held that Plaintiffs had not

adequately pled injury, and it provided Plaintiffs with explicit guidance on what facts they would

need to allege to state legally sufficient claims. With respect to the misappropriation claims, in

light of Plaintiffs’ failure to allege facts suggesting any possibility of economic injury, the Court

explained, “plaintiffs must, at a minimum, plead that they suffered mental anguish as a result of

the alleged misappropriation, and a plausible supporting factual basis for any such assertion.”

(June 28 Order at 9.) The Court also dismissed Plaintiffs’ Lanham Act claim because they failed

to allege any commercial interest in their names and likenesses “akin to a trademark” that was

injured because of Facebook’s actions. ( Id . at 10.) Finally, the Court stated that Plaintiffs must

allege that they suffered the “loss of money or property” necessary to state a claim under the

UCL.” ( Id. at 11.)

Despite the Court’s guidance, on July 18, 2011, Plaintiffs filed a FAC that made relatively

minor revisions to the dismissed Complaint. Facebook moved to dismiss the FAC on August 1,




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2011, and the Court heard argument on September 15, 2011. On October 27, 2011, the Court

dismissed Plaintiffs’ claims with prejudice (the “October 27 Order”). The Court held that

“[w]hile plaintiffs have more clearly articulated the basis for their claim, they still have failed to

make a sufficient ‘showing’” that they suffered any injury under Section 3344. ( Id. at 5.) In

addition, the Court held that “[t]he lack of cognizable injury” was “fatal” to Plaintiffs’ common

law and UCL claims. ( Id. at 6 n.8.)

2. Discovery

Although this case did not proceed past the motion to dismiss stage, Plaintiffs’ counsel

aggressively pursued discovery. At the outset of this case, Facebook’s counsel proposed—but

Plaintiffs’ counsel refused—bifurcation of discovery between class and merits discovery. (Brown

Decl. ¶ 10.) As a result, Facebook’s counsel expended a significant amount of time and effort to

respond to Plaintiffs’ discovery efforts. ( Id.) Had Facebook’s proposal been accepted, it would

have significantly reduced the fees Facebook incurred in discovery.

a. Discovery Requests

In May and June 2011, Plaintiffs served 85 separate requests for production, 13

interrogatories, and a Rule 30(b)(6) deposition notice calling for testimony from corporate

representatives on 27 topics. ( Id. Exs. D and E.) This discovery was broad and intrusive. For

example, Plaintiffs sought all documents “evidencing, reflecting or discussing the decision to sell

advertising on facebook.com.” ( Id. at Ex. D-2, RFP No. 78.) Plaintiffs requested production of

“All DOCUMENTS constituting evidencing, reflecting or discussing offers or solicitation to

purchase or sell shares in [Facebook].” ( Id. Ex. D-2, RFP No. 84.) And Plaintiffs sought a copy

of all data stored by Facebook when Users import their contacts, which includes potentially

hundreds of millions of email addresses and other contact information. ( Id ., Ex. D-1, RFP Nos.

41-44.)

Cooley spent a significant amount of time working with Facebook, analyzing Plaintiffs’

requests, determining what documents and information existed responsive to the discovery, and

collecting, reviewing, and producing documents and relevant information. Cooley also prepared

for and participated in a number of lengthy meet-and-confer calls and exchanged related




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correspondence with Plaintiffs’ attorneys. ( Id . ¶ 8.)

Furthermore, Cooley prepared and served interrogatories and requests for production on

Plaintiffs in September 2011. ( Id. ¶ 9.)

b. Plaintiffs’ Motion to Compel and for Sanctions; Facebook’sMotion to Stay Discovery

After the June 28 Order dismissing Plaintiffs’ claims, with no operative complaint

pending, Cooley told Plaintiffs’ counsel that it thought it would be best to temporarily suspend

the meet and confer efforts on discovery until after Plaintiffs filed an amended complaint.

( Id . ¶ 10.) Not only did Plaintiffs reject this proposal, but on July 19, 2011—the day after filing

their First Amended Complaint—Plaintiffs filed a motion (a) to compel discovery responses from

Facebook and (b) for sanctions against Cooley. Plaintiffs filed their motion to compel even

though Cooley had repeatedly requested that the parties meet and confer regarding discovery and

that Plaintiffs provide a description of the basis for their threatened sanctions motion. ( Id .)

Cooley was forced to research and prepare an opposition brief attacking the procedural

deficiencies and substantive shortcomings of Plaintiffs’ discovery and sanctions motions. ( Id .)

Furthermore, because Plaintiffs’ FAC in no way remedied, or even addressed, the deficiencies

that the Court had noted in its June 28 Order, Cooley researched and prepared a motion to

temporarily stay discovery, which it filed on July 21, 2011. ( Id. ¶ 11.) Thus, Plaintiffs

themselves substantially increased the time Cooley attorneys were forced to devote to this action.

In response to the parties’ motions (and after Magistrate Judge Laura Beeler had denied

Plaintiffs’ motions without prejudice ( see Dkt. No. 45)), Cooley and Plaintiffs’ counsel negotiated

an agreement—finalized on August 18, 2011—to undertake discovery in stages and for Facebook

to withdraw its motion to stay discovery. (Brown Decl. ¶ 11 and Ex. F.)

c. Document Collection, Review and Production

Pursuant to the parties’ discovery agreement, in August and September 2011, Cooley,

along with its e-discovery vendor retrieved a substantial volume of electronically stored data from

Facebook custodians. Over 164,000 documents were subsequently loaded into a document

review tool. Cooley spent substantial time testing search terms to limit and, as necessary, expand




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the set of documents to be reviewed. Thereafter, as a part of stages one and two of the agreed-

upon discovery plan, Cooley attorneys, along with contract attorneys, reviewed over 6,000

documents for responsiveness to Plaintiffs’ requests. Cooley began producing responsive, non-

privileged documents in accordance with Facebook’s responses and objections to Plaintiffs’

requests. (Brown Decl. ¶ 12.) In addition, Cooley coordinated with Facebook to identify and

begin to prepare for depositions of two Facebook witnesses. ( Id . ¶ 13.)

Shortly after the September 15, 2011 hearing on Facebook’s motion to dismiss, Plaintiffs’

counsel and Cooley discussed a potential informal stay of discovery pending a ruling by the

Court. On September 27, 2011, Facebook and Plaintiffs reached an agreement, and Facebook

immediately worked to suspend all discovery-related work. (Brown Decl. ¶ 14.) The Court

issued its order and judgment dismissing the claims in the FAC with prejudice on October 27,

2011.

III. FACEBOOK ’S FEE R EQUEST

Facebook seeks total attorneys’ fees in the amount of $706,950.31: (1) $650,133 for time

spent by Cooley and $5,013.80 by contract attorneys for work during the course of this litigation

through September 2011, (2) $34,580 in fees to prepare this motion for fees, and (3) $17,223.51

in costs incurred for online legal research allowable as attorneys’ fees under applicable law. This

amount represents reasonable time spent by Facebook’s attorneys to defend a class action lawsuit

seeking potentially over $500 million in damages and other significant relief.

Cooley’s time records—without text narrative—are attached as Exhibit G to the Brown

Declaration.2 Furthermore, Facebook provides the following tables summarizing the time

expended on this litigation. The hours Cooley’s attorneys and other timekeepers expended in this

matter, with the corresponding fee totals, are shown in Table 1 ( see Brown Decl. ¶ 22):

2 Pursuant to Civil Local Rule 54-5(b)(2), Facebook has included a summary of the servicesrendered but has not included Cooley’s full time records with the corresponding text narrative.Pursuant to Rule 54-5(b)(2), if the Court deems it appropriate, Facebook will provide the full timerecords for inspection or in camera review (with appropriate, limited redactions for privilege).




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Table 1 – Time Expended by Cooley LLPDecember 2010 through September 2011

Timekeeper Name Title Hours HourlyRate

Total

Matthew D. Brown Partner 3.5

263.6

$600

$630

$3,300.00

$166,068.00Benjamin H. Kleine Associate 6.6282.5

$500$580

$2,100.00$163,850.00

Kelly A. Cooke Associate 314.3 $425 $133,577.50Megan L. Donohue Associate 35.1

166.4$305$375

$10,705.50$62,400.00

Raimondo A. Sardo Associate 94.3 $525 $49,507.50Jeffrey M. Gutkin Partner 30.1 $615 $18,511.50Kelly M. Murata Senior Paralegal 39.6 $265 $10,494.00Candace Jackman Associate 23.2 $375 $8,700.00Michael G. Rhodes Partner 5.9 $930 $5,487.00Jeannine A.R.Douglas

Paralegal Specialist11.2

$285 $3,192.00

James B. McArthur Associate 7.7 $375 $2,887.50Steven M. Roberts Litigation Support Systems

Analyst14.7

$195 $2,866.50

Robert M. Conlon Senior Paralegal 8.1 $240 $1,944.00Richard A. Nieva Senior Paralegal 5 $235 $1175.00Brian V. Zayas Senior E-Discovery Project

Manager 4.7

$235 $1104.50

Claire M. Cochran Paralegal 4.3 $200 $860.00Michelle J. Hittle Senior Paralegal 3.5 $225 $787.50Lori D. Ramsey Senior Litigation Support Analyst 3 $205 $615.00

Sub-Total for all Timekeepers: 1327.3 $650,133.00

Table 2 breaks down these fees by month, with a description of the primary work

performed that month3 ( see Brown Decl. ¶ 23):

Table 2 – Cooley’s Work Performed by MonthDecember 2010 through September 2011

Month Work Performed FeesDecember 2010 Review complaint; research claims; draft motion to

dismiss$16,105.50

January 2011 Research, draft and file motion to dismiss $31,014.50February 2011 Review and analyze opposition to motion to dismiss;

prepare for and engage in Rule 26(f) Conference; draftand file reply in support of motion to dismiss; prepareCase Management Statement; work on initialdisclosures; prepare for motion to dismiss hearing

$91,935.50

March 2011 Prepare and serve initial disclosures; prepare for and $26,163.50

3 Table 2 summarizes the primary work performed each month, but relatively small amounts of time were spent on additional tasks inherent in any litigation, such as client communications,analysis of general case strategy, and communications with opposing counsel on casemanagement issues. These are not reflected in the summary of work performed on Table 2.




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present oral argument at hearing on motion to dismissApril 2011 Analyze and work on responses to discovery requests $7656.00May 2011 Analyze discovery requests and prepare responses;

prepare draft protective order to govern confidentialdocuments and information disclosed during discovery

$12,279.00

June 2011 Respond to discovery requests; meet and confer withPlaintiffs’ counsel regarding discovery; revise draft protective order to govern confidential documents andinformation disclosed during discovery, and meet andconfer with Plaintiffs’ counsel regarding same; prepareand serve affirmative discovery requests to Plaintiffs;analyze order granting motion to dismiss

$89,995.00

July 2011 Formulate strategy in light of order granting motion todismiss; meet and confer with Plaintiffs’ counselregarding discovery; analyze First Amended Complaint;research, prepare, and file motion for protective order totemporarily stay discovery; research and prepare anopposition to Plaintiffs’ motion to compel and motionfor sanctions; prepare motion to dismiss First Amended

Complaint

$138,837.00

August 2011 Work on reply in support of motion for protective order to temporarily stay discovery; negotiate with Plaintiffs’counsel regarding staged discovery; prepare and fileadministrative motion regarding scheduling; work withclient to identify and collect documents and identifycustodians for agreed-upon discovery; research and draftreply in support of motion to dismiss

$111,437.50

September 2011 Work on reply brief in support of motion to dismiss;work on document collection, review, and production;coordinate and oversee contract attorney review of documents; prepare affirmative discovery to Plaintiffs; prepare for Rule 30(b)(6) depositions; prepare for and

present oral argument at hearing on motion to dismiss;meet and confer with Plaintiffs’ counsel regardingdiscovery; document agreement concerning suspensionof discovery; research law on attorneys’ fees

$124,709.50

Total: $650,133.00

Table 3 shows the time expended by timekeeper, broken down by month ( see Brown

Decl. ¶ 25):




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Table 3 – Cooley’s Time Spent by Timekeeper by MonthDecember 2010 through September 2011

Timekeeper Dec. Jan. Feb. Mar. Apr.May Jun. Jul. Aug. Sept. Total

Kelly A. Cooke 30.5 9.5 9.9 12 62.4 71 46.4 72.6 314.3

Benjamin H. Kleine 6.6 6.3 30.1 8.8 3.6 11.4 79.7 85.3 42.3 15 289.1

Matthew D. Brown 3.5 24.8 44.4 24.9 2.1 .9 17.8 42 52.2 54.5 267.1

Megan L. Donohue 35.1 23.7 77.7 2.9 .1 1.1 23 37.9 201.5

Raimondo A. Sardo 28.5 65.8 94.3

Kelly M. Murata 7.4 11.8 4.5 15.9 39.6

Candace Jackman 22.8 .4 23.2

Jeffrey M. Gutkin .1 5.5 17.7 .9 5.9 30.1

James B. McArthur 7.7 7.7

Steven M. Roberts 3.8 10.9 14.7

Robert M. Conlon 8.1 8.1

Jeannine A.R. Douglas 4.1 3.3 3.8 11.2

Michelle J. Hittle 3.5 3.5

Michael G. Rhodes 1.8 1.8 .2 .3 .4 1 .4 5.9

Richard A. Nieva 5 5

Brian V. Zayas 4.7 4.7

Claire M. Cochran 4.3 4.3

Lori D. Ramsey 3 3

Totals 45.2 61.6 196.1 46.4 15.7 24.3 174.2 278.1 224.2 261.5 1327.3

Furthermore, to strive for cost efficiency in the review of documents, Facebook employed

seven contract attorneys, working at Cooley’s direction and under Cooley’s supervision, to do the

first-pass review through the documents. During September 2011, these contract attorneys spent

a total of 94.6 hours reviewing documents at $53/hour for total fees of $5,013.80. (Brown Decl.

¶ 26.) At Cooley’s standard first-year associate rates ($320/hour) ( Id . ¶ 27), this review would

have resulted in Cooley fees of $30,272.

Facebook’s attorneys’ total fees for the case prior to preparation of the motion for

attorneys’ fees therefore consist of $655,146.80 ($650,133 for Cooley’s work + $5,013.80 in

contract attorney fees).

In addition to time spent through September 2011 (reflected in Tables 1-3), Cooley also

spent additional time in October and November 2011 that has not yet been finalized in Cooley’s

accounting systems. Such time was primarily related to researching and preparing this motion for

attorneys’ fees and supporting documents, although there were also small amounts of time




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devoted to ongoing case activities as well as analysis of the Court’s October 27 Order dismissing

the FAC. (Brown Decl. ¶ 28.) In this motion, Facebook is not seeking compensation for time

spent by Cooley in October or November other than time spent in connection with this motion for

attorneys’ fees.4 Furthermore, Facebook is not seeking compensation for all of the time spent in

preparing this motion. Facebook instead seeks compensation for the following hours spent by

Cooley in researching, preparing, and filing this motion ( see Id . ¶ 28):

Table 4 – Time Spent on Attorneys’ Fees MotionOctober 2011 – November 2011

Timekeeper Name Title Hourly Rate Hours Total

Matthew D. Brown Partner $630/hr 10 $6,300

Benjamin H. Kleine Associate $580/hr 18 $10,440

Katie M. Krajeck Associate $475/hr 20 $9,500

James B. McArthur Associate $375/hr 20 $7,500Erik Kruger Paralegal $210/hr 4 $840

Total 72 $34,580

Table 4 reflects actual hours spent by the listed Cooley professionals on this motion for

attorneys’ fees and costs and can be substantiated by contemporaneous time records. (Brown

Decl. ¶ 28.)

Finally, Facebook seeks $17,223.51 in costs for online legal research that is allowable as

4 Cooley has included time actually incurred to the date of the filing of this motion and has notincluded any estimate for time spent reviewing Plaintiffs’ opposition to this motion. Facebook reserves the right to seek compensation for attorneys’ fees and costs incurred in reviewing anysuch opposition, further briefing, or other arguments or actions taken by counsel with respect tothe motion for attorneys’ fees and costs.

Cooley also reserves the right to seek fees and costs in connection with opposing any appeal of this action. Kirby v. Sega of Am., Inc., 144 Cal. App. 4th 47, 62-63 (2006) (granting attorneys’fees under Section 3344 for attorneys’ work on appeal); Akins v. Enterprise Rent-A-Car Co. of

S.F., 79 Cal. App. 4th 1127, 1134 (2000) (“Statutory authorization for the recovery of attorneyfees incurred at trial necessarily includes attorney fees incurred on appeal unless the statutespecifically provides otherwise.”).

Furthermore, in the event that Plaintiffs decline to pay any award of attorneys’ fees promptly,Facebook reserves the right to seek additional attorneys’ fees and costs in connection withcollecting upon the award. See Ketchum v. Moses, 24 Cal. 4th 1122, 1141 n.6 (2001) (feesexpended in collecting a judgment, including an attorney fee award, are properly included in a feeaward).




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attorneys’ fees under applicable law. (See infra Section IV.B.3; Brown Decl. ¶ 29.)

The total amount of reasonable attorneys’ fees requested for work performed during the

litigation, to prepare this fees motion, plus research costs recoverable as attorneys’ fees is

$706,950.31.

IV. DISCUSSION

A federal court sitting in diversity applies state substantive law to claims for attorneys’

fees arising under state law both to determine entitlement to fees and the method for calculating

such fees. See Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478-79 (9th Cir. 1995)

(holding that state law controls the method of calculating attorneys’ fees arising under state law

where court had pendent jurisdiction over the state law claims); Page v. Something Weird Video,

960 F. Supp. 1438, 1445 (C.D. Cal. 1996) (“In a diversity case, the availability of attorneys’ fees

is governed by state law.”). Under California law, Facebook is entitled to recover its fees for

prevailing on Plaintiffs’ Section 3344 claim and all other related claims. Facebook’s fee request

is reasonable in light of the results it achieved, the complexity of the issues presented in this case,

and other factors described below.

A. Facebook Is Entitled to Attorneys’ Fees

Plaintiffs alleged violations of (1) the statutory right of publicity (Section 3344), (2) the

common law right of publicity, (3) the Lanham Act, Section 1125(a)(1)(a), and (4) the UCL. (See

Compl. ¶¶ 52-76; FAC ¶¶ 55-85; June 28 Order at 4-11.)5 Facebook is entitled to recover

reasonable fees for its attorneys’ work defending against all of Plaintiffs’ claims.

Under Section 3344, an award of fees and costs to the prevailing party is mandatory. See

Cal. Civ. Code § 3344(a) (“[t]he prevailing party in any action under this section shall also be

entitled to attorney’s fees and costs”) (emphasis added); Kirby, 144 Cal. App. 4th at 61 (affirming

fee award to prevailing defendant and stating that “[t]he mandatory fee provision of section 3344,

subdivision (a) leaves no room for ambiguity”); Love v. Mail on Sunday, No. CV05-7798

ABC(PJWX), 2007 WL 2709975, at *2-3 (C.D. Cal. Sept. 7, 2007) (granting attorneys’ fees and

5 Plaintiffs themselves requested attorneys’ fees and costs. (See Compl. at 18 (“Prayer for Relief”); FAC at 24.)




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costs to defendants for their defense of claims brought under Section 3344), aff’d Love v.

Associated Newspapers, Ltd., 611 F.3d 601, 614 (9th Cir. 2010) (noting that Section 3344

“mandates” the recovery of attorneys’ fees and costs).

Here, the Court granted Facebook’s motion to dismiss Plaintiffs’ Section 3344 claim with

prejudice and thus, Facebook is the prevailing party. See Adler v. Vaicius, 21 Cal. App. 4th 1770,

1776 (1993) (holding that defendant was “prevailing party” where dismissal was entered in his

favor); Winick Corp. v. Safeco Ins. Co., 187 Cal. App. 3d 1502, 1508 (1986) (holding that

defendant was prevailing party where plaintiff’s claim was dismissed with prejudice); see also

Cal. Civ. Proc. § 1032(a)(4) (“‘Prevailing party’ includes . . . a defendant in whose favor a

dismissal is entered . . . .”).

Facebook is also entitled to recover fees for prevailing on the three remaining claims that

are related to Plaintiffs’ Section 3344 claim, each of which was also dismissed with prejudice.

Under California law, where claims not governed by a fee-shifting statute involve a common core

of facts with, or are based on related legal theories to, a claim governed by a fee-shifting statute,

courts may and do award fees for time spent on the other claims. See Graciano v. Robinson Ford

Sales, Inc., 144 Cal. App. 4th 140, 159 (2006) (“Attorneys fees need not be apportioned between

distinct causes of action where . . . various claims involve a common core of facts or are based on

related legal theories.”). In fact, where the issues between claims are “so inextricably intertwined

that it would be impractical or impossible to separate the attorney’s time into compensable and

noncompensable units,” courts often award fees for all of the claims. Harman v. City and Cnty.

of S.F., 158 Cal. App. 4th 407, 417 (2007); see also Love, 2007 WL 2709975, at *2-3 (granting

attorneys’ fees and costs for causes of action related to claims brought under Section 3344) (citing

Kirby, 144 Cal. App. 4th at 62 n.7); Love, 611 F.3d at 614 (“Where no independent basis existed

to support an award, the district court found the claims ‘inextricably intertwined with claims’ that

had such a support. We agree.”).

Facebook is entitled to fees for its work defending against Plaintiffs’ common law right of

publicity claim, because it was intimately related to and predicated on the same common core of

factual allegations as Plaintiffs’ Section 3344 claim. See Graciano, 144 Cal. App. 4th at 159




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(fees need not be apportioned where “claims involve a common core of facts or are based on

related legal theories”); Love, 2007 WL 2709975, at *2-3 (granting attorneys’ fees and costs for

common law right of publicity claim brought alongside a Section 3344 claim). For example, in

the FAC, Plaintiffs relied on their Section 3344 allegations to support the “use element” of their

common law right of publicity claim. (FAC ¶ 68 (“Facebook has used Plaintiff’s identity in the

manner averred above”).) In its opposition to Facebook’s motion to dismiss, Plaintiffs addressed

their statutory and common law right of publicity claims in the same argument and largely did not

distinguish between the two claims. (See Pls.’ MPA Opp. MTD FAC at 9-22; see also FAC ¶ 68

(in alleging the use element for the common law right of publicity, Plaintiffs simply stated that

“Facebook has used Plaintiff’s identity in the manner averred above”).) Similarly, the Court’s

October 27 Order largely treated the claims together. (October 27 Order at 2-6.)

Facebook is also entitled to fees for time spent defending against Plaintiffs’ UCL claim,

because it was intimately related to and arose from the same core factual allegations as Plaintiffs’

Section 3344 claim. It was expressly predicated on Facebook’s alleged violation of Section 3344

(FAC ¶¶ 75, 76), making an award of fees for work done on the UCL claim appropriate. See

Love, 2007 WL 2709975, at *7 (granting attorneys’ fees and costs for UCL claim “predicated on”

a claim for violation of Section 3344). In addition, the Court specifically stated in its June 28

Order that “Plaintiffs’ claim that Facebook’s alleged conduct violated California Business and

Professions Code §17200 as an ‘unlawful’ or ‘unfair’ practice is derivative of, and dependent on

the viability of their other claims.” (June 28 Order at 10.)

Finally, Facebook is entitled to fees for work done on Plaintiffs’ Lanham Act claim,

which again relied on the same factual allegations as Plaintiffs’ Section 3344 claim. See

Graciano, 144 Cal. App. 4th at 159. For example, Plaintiffs’ Complaint alleged that “[i]n each

instance in which Facebook uses the names and likenesses of a Facebook.com user to promote the

Friend Finder service without consent, Facebook . . . creates a false endorsement.” (See Compl.

¶ 38; see also id. ¶¶ 24-43 (alleging that Facebook wrongfully used Facebook users’ names and

likenesses to promote its Friend Finder service).) The Court recognized that Facebook’s defense

to Plaintiffs’ Lanham Act claim was “related” if “not identical” to its defense to Plaintiffs’




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Section 3344 claim. (June 28 Order at 10.) And the Court dismissed Plaintiffs’ Lanham Act

claim for the same reason it rejected Plaintiffs’ other claims—lack of cognizable injury.

(Compare id. (dismissing Lanham Act claim for lack of standing) with id. at 9 (dismissing

misappropriation claims for failure to allege injury) and id. at 11 (dismissing UCL claims for lack

of standing).)

Thus, Facebook is entitled to recover the reasonable amount of fees it incurred to defend

against all four of Plaintiffs’ claims that were based on a common core of factual allegations and

were inextricably intertwined with each other.6

B. Facebook’s Fee Request Is Reasonable

Under California law, the method for calculating attorneys’ fees is firmly established.

Courts first calculate the lodestar based on “the number of hours reasonably expended multiplied

by the reasonable hourly rate.” PLCM Grp. v. Drexler , 22 Cal. 4th 1084, 1095 (2000). To be

reasonable, fees must be “reasonably necessary to the conduct of the litigation, and [] reasonable

in amount.” Robertson v. Fleetwood Travel Trailers of Cal., Inc., 144 Cal. App. 4th 785, 817-18

(2006). And “[t]he reasonable hourly rate is that prevailing in the community for similar work.”

PLCM Grp., 22 Cal. 4th at 1095. The lodestar may then be adjusted based on consideration of

factors specific to the case, in order to fix the fee at the fair market value for the legal services

provided. See Serrano v. Priest , 20 Cal. 3d 25, 49 (1977).

In addition to time spent by attorneys, time spent by paralegals, law clerks and other

support professionals is also compensable if the local practice is to bill for their services in that

manner. Guinn v. Dotson, 23 Cal. App. 4th 262, 269 (1994); Salton Bay Marina, Inc. v. Imperial

6 The named Plaintiffs owe a fiduciary duty to unnamed plaintiffs and bear responsibility for anyfees and costs award to Facebook. See Van de Kamp v. Bank of Am., 204 Cal. App. 3d 819, 869

(1988) (“While imposition of the entire cost burden on the named plaintiffs may have a chillingeffect on the willingness of plaintiffs to bring class action suits, this effect easily may beoutweighed by the potential recovery. All potential litigants must weigh costs of suit againstlikelihood of success and possible recovery before deciding to file suit. Those who choose to takethe risks of litigation should be the ones who bear the cost when they are unsuccessful, not thosewho did not make the choice.”); Earley v. Super. Ct., 79 Cal. App. 4th 1420, 1434-36 (2000)(“We believe . . . that the better rule is that the only time absent class members who have failed toopt-out should be liable for fees and costs is when the class prevails and the class members acceptthe benefit of a common fund recovery.”) (emphasis in original).




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Irrigation Dist., 172 Cal. App. 3d 914, 951 (1985) (secretarial and paralegal services are

“necessary support services for attorneys [that] are includable within an award of attorneys fees”)

In the San Francisco Bay Area, paralegal and practice support professional time is typically billed

to clients. (Solanki Decl. ¶ 7; Brown Decl. ¶ 16.)

Finally, in addition to compensation for fees spent litigating the case, a prevailing party is

also entitled to fees for time spent preparing and litigating the fee application itself. Serrano v.

Unruh, 32 Cal. 3d 621, 632-38 (1982); Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553, 581

(2004).

1. Facebook Seeks Compensation for Reasonable Hours Spent DefendingItself

Under the lodestar method, a prevailing party is presumptively entitled to compensationfor all hours reasonably spent. See Vo v. Las Virgenes Mun. Water Dist., 79 Cal. App. 4th 440,

446 (2000) (citing Serrano, 32 Cal. 3d at 632-33). Facebook is therefore entitled to attorneys’

fees for all work reasonably expended, whether successful on all arguments or not. See Hogar v.

Cmty. Dev. Comm’n of Escondido, 157 Cal. App. 4th 1358, 1369 (2007).

Facebook seeks compensation for 1,493.9 hours expended by Cooley and by contract

attorneys working on this litigation, including in the preparation of this motion for attorneys’ fees

Facebook has submitted a sworn declaration in support of this fee application demonstrating that

the time spent by Cooley was justified and reasonable.7 See Weber v. Langholz, 39 Cal. App. 4th

1578, 1586-87 (1995) (holding that declaration made under “penalty of perjury” was evidence of

the reasonableness of the number of hours worked). As discussed above, Cooley’s core team of

two partners, one senior associate, and two junior associates performed the vast majority of work

for the fees claimed in this motion. (Brown Decl. ¶¶ 3-4.) The number of hours claimed

(1,493.9) is reasonable given the proceedings in the case and complexity of issues presented.

Over of the course of ten months, Cooley had to file two motions to dismiss, a motion for

protective order, and a response to Plaintiffs’ sanctions and discovery motions; respond to

7 Facebook has a confidential alternative fee arrangement with Cooley that applies to this case(among others), but this motion seeks recovery only for time actually spent by Cooley attorneysand other professionals to defend this litigation. (Brown Decl. ¶ 21.)




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extensive written discovery requests; collect, review, and produce documents; prepare Facebook

witnesses for deposition; and participate in discovery meet and confer sessions. ( Id . ¶¶ 6-14.)

Notably, Facebook is not seeking compensation for all of the time Cooley reasonably

spent to defend this litigation. First , Cooley reviewed the time entries in this litigation and

excluded from this fee application over sixty hours of time spent by regularly employed

timekeepers. ( Id . ¶ 18, Ex. G.) The exclusion (or reduction) of this time is reflected by grey

highlighting on the chart attached as Exhibit G to the Brown Declaration. These excluded or

reduced entries deal with, inter alia, all time spent on the Facebook’s administrative motion to

relate cases that was filed in August 2011, all time spent working on the MDL petition filed in

August 2011, and all time spent bringing Mr. Sardo up to speed on the litigation as a temporary

replacement for Mr. Kleine. ( Id . ¶ 18.) Second , Facebook is not seeking compensation for 43.2

hours of time incurred by Cooley’s 2011 summer associates (representing $10,800 in fees) ( Id .

¶ 20), even though such time could have been included in this fee motion. See Guinn, 23 Cal.

App. 4th at 267-69 (holding that work performed by a “law clerk” is compensable). Finally, even

though Facebook’s in-house counsel expended considerable time defending against Plaintiffs’

claims ( see Solanki Decl. ¶¶ 3, 6) and such fees are compensable under the law, see PLCM Grp.,

22 Cal. 4th at 1097 (prevailing party’s in house counsel entitled to compensation for fees, even if

not billed), Facebook is not seeking compensation for that time.

2. Facebook Seeks Compensation at Reasonable Hourly Rates

Counsel are entitled to be compensated at hourly rates that reflect the reasonable market

value of their services in the community. Serrano, 32 Cal. 3d at 643; In re Consumer Privacy

Cases, 175 Cal. App. 4th 545, 557-58 (2009) (noting that the “ultimate goal” of attorneys’ fees is

“the award of a ‘reasonable’ fee to compensate counsel for their efforts”). Rates are considered

reasonable if they fall within the range of rates charged by private attorneys of similar skill,

reputation, and experience for comparably complex litigation. Bihun v. AT&T Info. Sys., Inc., 13

Cal. App. 4th 976, 997 (1993), overruled on other grounds by Lakin v. Watkins Associated Indus.

6 Cal. 4th 644, 664 (1993).

Facebook’s counsel’s rates satisfy these criteria. Cooley is a prominent national law firm.




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(Brown Decl. ¶ 30.) Mr. Rhodes is chair of Cooley’s litigation department and was named one of

The Daily Journal ’s Top 100 lawyers in California in 2011 and an “Attorney of the Year” in 2010

by California legal newspaper The Recorder . ( Id. ¶ 4(a) and Ex. B.) He has substantial

experience representing technology companies and, specifically, litigating class actions, including

those involving privacy-related claims. Mr. Rhodes’s billing rate in 2011 is $930/hour. ( Id.

¶ 4(a).) Mr. Brown, who supervised the case on a day-to-day basis, has over 13 years of

experience as a litigator, with a broad practice that currently focuses on complex commercial

disputes and class actions, Internet-related issues, and privacy-related issues. ( Id . ¶ 2, Ex. A.)

Mr. Brown’s practice currently focuses on complex commercial disputes and class actions,

Internet-related issues, and privacy-related issues. ( Id . ¶ 3.) His billing rate in 2011 is $630/hour

( Id. ¶ 3.) Mr. Kleine, Mr. Sardo, Ms. Cooke and Ms. Donohue’s 2011 billing rates are $580/hour

(for a sixth year associate), $525/hour (for a fifth year associate), $425/hour (for a third year

associate) and $375/hour (for a second year associate), respectively, and further description of the

experience and work performed on this litigation by all team members is contained in the Brown

Declaration. (See Id . ¶¶ 4-5 and Ex. C.)

Cooley’s rates are well within the norm for the California billing rates for national law

firms. For example, data available from PeerMonitor, a service that tracks court filings around

the country, shows that for attorneys based in Southern California or the San Francisco Bay Area,

the median billing rate for sixth year associates at Weil, Gotshal & Manges LLP, Morrison &

Foerster LLP, Fish & Richardson P.C., and Gibson Dunn & Crutcher LLP—all national law firms

with significant presences in Northern California—is $592/hour, and the median for fifth year

associates is $565/hour. ( Id . ¶ 31(a) and Ex. J.)

Data from Valeo Partners, another service that tracks court filings, shows that in 2011 for

attorneys based in California, second-year associates (graduation date 2009) were billed at

$485/hour at Kirkland & Ellis LLP and $495/hour at Weil Gotshal & Manges LLP. (See

Declaration of Chuck Chandler (“Chandler Decl.”), Ex. B.) In 2010, attorneys with that same

2009 graduation year (i.e., 2011 second-year associates) were billed at $399/hour at Gibson Dunn

& Crutcher LLP. ( Id.)




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Westlaw Court Express also maintains a database that includes the billable hour rates

submitted in connection with bankruptcy fee petitions that are also relevant to prevailing market

rates for nationwide firms. That database shows that in 2011 associates at Paul Hastings and

Milbank Tweed billed second year associates at $395-450/hour, third year associates at $495-

500/hour, fifth year associates at $500/hour, and sixth year associates at $605-620 / hour. (Brown

Decl. ¶ 31(b) and Ex. K.)

Similarly, in In re Innkeepers USA Trust, et. al ., 448 B.R. 131 (S.D.N.Y. 2011), the court

approved 2011 billing rates for Morrison & Foerster LLP—a national law firm based in San

Francisco—stated that its 2011 billing rates ranged from $635 to $1,075/hour for partners, $335-

660/hour for associates, and $180-310/hour for paraprofessionals. (See Brown Decl. ¶ 31(c) and

Ex. L.)

Finally, courts in California have also found rates similar to the rates charged by Cooley

to be reasonable. For example, in Canal v. De La Rosa Dann, No. 09-03366 CW, 2011 U.S. Dist

LEXIS 99863, at *5, *10 (N.D. Cal. Sept. 6, 2011), the court found that 2009 and 2010 rates for

senior, midlevel and junior associates at Orrick, Herrington & Sutcliffe LLP—a national law firm

based in San Francisco—of $600-645/hour, $505-$530/hour, and $330-430/hour, respectively,

were reasonable for the San Francisco legal community.

Facebook thus submits that Cooley’s rates are reasonable compared to peer firms in the

market.8

3. Facebook May Also Seek Reasonable Fees for Online Legal Research

Facebook is also entitled to recover charges in the amount of $17,223.51 for online legal

research as attorneys’ fees. See Plumbers & Steamfitters, Local 290, v. Duncan, 157 Cal. App.

4th 1083, 1099 (2007) (granting, as attorneys’ fees, charges incurred for computerized legal

research) (citing Trs. of Constr. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co.,

460 F.3d 1253, 1258-59 (9th Cir. 2006)); Cal. Common Cause v. Duffy, 200 Cal. App. 3d 730,

8 The hourly rate charged by Black Letter Legal—the contract attorney firm employed byFacebook to conduct first-pass document review—of $53/hour is similar to the rates charged byother firms in Northern California. (Brown Decl. ¶ 27.)




COOLEYLLP

ATTORNEYS AT LAW

SAN FRANCISCO

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753-54 (1987) (granting, as attorneys’ fees, charges for computer research); Cairns v. Franklin

Mint Co., 115 F. Supp. 2d 1185, 1189 (C.D. Cal. 2000) (granting, as attorneys’ fees under Section

3344, Westlaw fees for computer research). These online legal research costs were accrued by

Cooley attorneys performing online legal research related to this case. (Brown Decl. ¶ 29.)

Facebook is thus entitled to compensation of these costs in the form of attorneys’ fees.

4. The Total Fee Award Sought Is Reasonable

Facebook’s fee request is also reasonable in light of the other factors that courts typically

consider, including “the nature of the litigation, its difficulty, the amount involved, the skill

required and the skill employed in handling the litigation, the attention given, the success of the

attorney’s efforts, his learning, his age, and his experience in the particular type of work

demanded . . . the intricacies and importance of the litigation, the labor and necessity for skilled

legal training and ability in trying the cause, and the time consumed.” Church of Scientology v.

Wollersheim, 42 Cal. App. 4th 628, 659 (1996), disapproved of on other grounds by Equilon

Enters., LLC v. Consumer Cause, Inc., 29 Cal. 4th 53, 68 n.5 (2002).

First, the total fees amounting to $706,950.31 ($684,713 in Cooley fees plus $5,013.80 in

contract attorney fees and $17,223.51 in online research costs) are reasonable in light of the relief

sought by Plaintiffs. Plaintiffs sought statutory damages in excess of $375 million on behalf of a

putative class of at least 500,000 individuals, actual damages of more than $100,000,000,

disgorgement of profits, restitution, and fees and costs. Cooley’s fees thus represent less than

0.15% of the minimum damages Plaintiffs sought in this action—and a much lower percentage of

the possible relief Plaintiffs would ultimately seek. See Church of Scientology, 42 Cal. App. 4th

at 659 (in determining what constitutes a reasonable fee award, the court may consider “the

amount involved” and the “importance of the litigation”); see also Cairns v. Franklin Mint Co.,

292 F.3d 1139, 1159 (9th Cir. 2002) (holding that fees were reasonable where “the ratio between

the attorneys’ fees awarded to defendant . . . and the damages sought [by plaintiff] in this

unsuccessful Lanham Act case is at most one to fourteen” (emphasis omitted).)

Second, Cooley’s fees are also reasonable considering the nature of the litigation, a

putative class action alleging commercial misappropriation of millions of users’ names and/or




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likenesses in connection with the Facebook service—a new online platform. See Church of

Scientology, 42 Cal. App. 4th at 659 (listing “nature of the litigation” as a factor in determining

reasonableness). As the Court recognized in its June 28 Order, the “Friend Finder” service is one

of several “new features” offered by Facebook to help users “share and obtain information.”

(June 28 Order at 1.)

Third, Cooley’s fees are reasonable in light of the success ultimately achieved—a

complete dismissal of all claims with prejudice—and the quality of the papers submitted and

lawyering employed. See Church of Scientology, 42 Cal. App. 4th at 659 (listing “the success of

the attorney’s efforts” as a factor).

Fourth, Cooley exercised considerable judgment throughout the case with respect to

attorney time. Cooley concentrated the majority of the work across five attorneys, each of whom

had distinct billing-rate-appropriate roles in the case. (See Brown Decl. ¶ 4.) Church of

Scientology, 42 Cal. App. 4th at 659 (listing “the time consumed” as a factor).

Finally, to the extent that Plaintiffs might argue that their attorneys’ fees were lower than

Cooley’s, such an argument is wholly irrelevant to the reasonableness determination. Dease v.

City of Anaheim, 838 F. Supp. 1381, 1383 (C.D. Cal. 1993) (“That defense counsel spent

significantly less time on this case than did counsel for the plaintiffs is irrelevant so long as all

compensated work was necessary and performed in an expeditious manner.”); Love, 2007 WL

2709975, at *10 (“[T]he greater amount of time defense counsel committed to this case was

reflected in the higher quality of their work. Ultimately, Plaintiff’s counsel may have billed fewer

hours, but Plaintiff also lost.” (citation omitted)). This is particularly true in this case because

Facebook faced significant risks and discovery burdens from a putative class action brought on

behalf of millions of users. In fact, Plaintiffs rebuffed a number of Facebook’s attempts to

minimize fees and costs related to discovery while the motion to dismiss was pending. (See supra

Section 2.)

Facebook thus submits that an award of $706,950.31in fees is reasonable.

C. Facebook Seeks Costs in the Concurrently-Filed Bill of Costs

“Civil Code § 3344 expressly provides that the prevailing party in an action under that




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section is entitled to an award of costs.” Page, 960 F. Supp. at 1447; see also Cal. Civ. Code

§ 3344 (“The prevailing party in any action under this section shall also be entitled to attorney’s

fees and costs.”). Since Facebook is the prevailing party in this action, it is entitled to its costs, as

provided by California Code of Civil Procedure Section 1033.5, “which sets forth those costs that

may and may not be recovered in a civil action.” Page, 960 F. Supp. at 1447. Recoverable costs

include “[f]iling, motion, and jury fees,” expenses related to depositions, and attorney travel. See

Cal. Civ. Proc. § 1033.5.

Facebook does not seek costs pursuant to Section 3344. However, Facebook does seek

costs for its electronic discovery expenses under Federal Rule of Civil Procedure 54 and Local

Rule 54, as detailed in the concurrently-filed Bill of Costs.9

V. CONCLUSION

For the reasons stated above, Facebook respectfully requests that the Court award it

$706,950.31 in attorneys’ fees.

Dated: November 10, 2011 COOLEY LLP

/s/ Matthew D. Brown

Matthew D. Brown (196972)

Attorneys for Defendant FACEBOOK, INC.

1243068 /SF

9 As discussed above, charges for WestLaw and LEXIS databases are treated as attorneys’ feesrather than costs under the case law. (Supra Section IV.B.3.)


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Cohen v Facebook Request for Attorneys' Fees

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