N.T.A.A., Inc. v. Nordstrom, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [11] 12 NTA A NO gaLN ALL ACTION), INC.; Case No. 2:21-cv-00398 DDP-AGRx 13 An Individual, ‘ ) ) ORDER GRANTING IN PART AND 14 Plaintiffs, , DENYING IN PART MOTION [163] 15 VS. ) FOR ATTORNEY FEES AND COSTS ) UNDER THE LANHAM ACT AND 28 16 NORDSTROM, INC.; NIKE, INC., and US.C. § 1927 DOES 1 through 10, Inclusive ye § 17 ) 18 ) Defendants. ) 19 ) 20 NIKE, INC., an Oregon corporation, ) ) 21 Counterclaimant, ) 22 Vv. ) ) 23 || N.T.A.A. (NO TALK ALL ACTION), INC., ) a Canadian corporation; RYAN ) 24 || ROBINSON, an Individual, ) 25 Counter-Defendants. 26 ) [28] Presently before the Court is Defendant Nike’s Motion for Attorneys’ Fees and [1] Costs Under the Lanham Act and 28 U.S.C. § 1927 . Dkt. 163 (“Mot.”). Former counsel of [2] record Alvin Pittman (“Pittman”) opposed the Motion for Fees and Costs under 28 U.S.C. [3] § 1927. Dkt. 173 (“Opp.”). Counsel of record Lorenzo Williams (“Williams”) filed a [4] declaration in opposition to the motion for fees under 28 U.S.C. § 1927.1 Dkt. 174, [5] Declaration of Lorenzo Williams (“Williams Decl.”). Having considered the parties’ [6] submissions, the court adopts the following order. [7] I. BACKGROUND [8] Plaintiffs Ryan Robinson (“Robinson”) and N.T.A.A. (No Talk All Action) [9] 10 (collectively “NTAA” or “Plaintiffs”) asserted claims of Lanham Act trademark 11 infringement and unfair competition, common law trademark infringement, and unfair 12 competition under the California Business and Professions Code. See generally First 13 Amended Complaint, Dkt. 22 (“FAC”). Plaintiffs claimed that Nike and Nordstrom 14 infringed on NTAA’s stylized “N” design when they launched a “Nordstrom x Nike” 15 collaboration in September 2016. See generally id. 16 On April 18, 2022, the parties appeared at a discovery conference before the 17 Magistrate Judge and Plaintiffs were ordered to confirm by April 27, 2022 that all 18 responsive, nonprivileged documents contained in email and social media accounts had 19 been produced. See Dkt. 46. Plaintiffs subsequently produced additional ESI to 20 Defendants but, believing this production to be inadequate, Nike moved for sanctions for 21 violating the April 18, 2022 discovery order. See generally Dkt. 62. Following a hearing, 22 the court took the matter under submission. Dkt. 72. 23 On August 29, 2022, while that motion for sanctions was still pending before the 24 Magistrate Judge, Nike moved for terminating sanctions alleging that Plaintiffs [26] 1 Despite being counsel of record, Williams did not file an opposition on Plaintiffs’ behalf challenging the [27] basis for or amount of fees sought under the Lanham Act. Instead, Williams only opposed fees sought fabricated UPS invoices and tax returns and misrepresented Robinson’s relationship with [1] Clover Dallas. See Dkt 83. The Court denied issuing terminating sanctions finding that [2] Nike had not established beyond a preponderance of the evidence that the UPS invoices [3] and tax returns were fraudulent, and that Plaintiffs had not been provided adequate [4] notice of the potential for terminating sanctions. See Dkt. 106 at 13. However, the Court [5] found that monetary sanctions were appropriate for Robinson’s misrepresentations [6] regarding his relationship with Clover Dallas. See id. Robinson had repeatedly [7] represented that his relationship with Clover Dallas was “only a business relationship” [8] and Dallas stated in a declaration that she met Robinson through another individual. See [10] id. at 11-12 . It was established, however, that Dallas, also known as Judy Robinson, was 11 in fact Robinson’s mother. See id. at 12-13 . Despite having ample opportunity to clarify 12 their relationship, Robinson “misled by omission” and the Court found that “Robinson’s 13 relationship with Dallas [was] significant to Plaintiffs’ ability to prove sale of NTAA14 branded products during the priority period.” Id. The Court ultimately ordered 15 Plaintiffs to pay $107,349.96 in attorneys’ fees as a sanction for this discovery misconduct. 16 Dkt. 143. 17 On February 17, 2023, the Magistrate Judge issued an order denying in part and 18 granting in part Nike’s other motion for sanctions. See Dkt. 107. The order permitted 19 Nike to retain a professional ESI vendor, to be selected by agreement of the parties, and 20 ordered Plaintiffs to cooperate with the ESI investigation. See id. Shortly thereafter, Nike 21 retained, with Plaintiffs’ approval, iDiscovery Services (“iDS”) as the professional ESI 22 vendor. See Dkt. 108. On March 9, 2023, four days prior to the scheduled ESI 23 investigation, Robinson filed a police report stating that the devices to be searched, along 24 with other items, were stolen from his car while in a parking lot. See Dkt. 153. Despite 25 the unavailability of Robinson’s devices, iDS proceeded with the ESI investigation as 26 scheduled on March 13, 2023 and discovered numerous deleted emails, files, messages, 27 and internet browsing history. See generally Dkt. 153. On August 18, 2023, Nike, joined by Nordstrom, again moved for terminating [1] sanctions and requested attorneys’ fees related to bringing the motion. Dkts. 133, 136. [2] The Court granted the motion and dismissed Counts 1-4 of Plaintiffs Amended [3] Complaint. Dkt. 153. The Court found Robinson’s claim that his devices were stolen [4] days before the ESI investigation to be “completely incredible” and that the spoliation [5] and attempted spoliation of numerous documents reflected a “pattern of deception and [6] deletion.” Id. at 6:11–12, 11:6–7. The Court also found monetary sanctions appropriate [7] and allowed Defendants to file a supplemental request for fees and costs associated with [8] the ESI investigation and bringing the motion. Id. at 13:3–7. On December 12, Nike filed [9] 10 an Application to the Clerk to Tax Costs Against Plaintiffs, Dkt. 157, and a Declaration of 11 Tamar Y. Duvdevani requesting an award of $370, 221.46 for fees and costs related to 12 bringing the motion for terminating sanctions and conducting the ESI investigation, Dkt. 13 158. Robinson filed a declaration opposing the requested fees.2 Dkt. 178, Declaration of 14 Ryan Robinson (“Robinson Decl.”). The Court’s determination of appropriate sanctions in 15 connection with the terminating sanctions motion is pending. 16 Nike now seeks an award of “full” attorneys’ fees for all fees incurred since the 17 inception of the case, including the prior fee award and other pending fee request 18 amounts into a single enforceable order, against Plaintiffs under the Lanham Act totaling 19 $1,983,684.25. See Mot. at 14. Nike also seeks $1,152,880.34 and $977,004.75 to be 20 awarded against Pittman and Williams, respectively, under 28 U.S.C. § 1927 . See Mot. at 21 21:13–16. These sanctions are sought “either as an alternative to awarding fees against [23] 2 It is not entirely clear which request Robinson’s declaration was filed in opposition to. Plaintiffs did not 24 initially file an opposition or response to either filing. On March 11, 2024, the Court issued a text notice, 25 Dkt. 176, notifying Plaintiffs that they may file a response to Dkt. 158 by March 25, 2024. Plaintiffs filed the Declaration of Ryan Robinson, Dkt. 178, on March 24, 2024. The caption of the document is “Declaration of [26] Ryan Robinson in Response to Nike Fees” indicating it was filed in response to Dkt. 158. However, the [27] docket entry text states it is in opposition to the Application to Tax Costs Against Plaintiffs, Dkt. 157. The NTAA or joint and severally with NTAA and one another.” Mot. at 20:4–6. Further, [1] Nike requests $460,503.36 in expert and consultant costs from Pittman and Williams [2] under 28 U.S.C. § 1927 . See Mot. at 21:17–18. Plaintiffs did not file an opposition to fees [3] sought under the Lanham Act. Pittman opposed fees sought under Section 1927. See [4] Opp. Williams filed a declaration opposing fees sought against him under Section 1927. [5] See generally Williams Decl. [6] II. LEGAL STANDARD [7] A. Lanham Act [8] Under the Lanham Act, courts may award reasonable attorney fees to the [9] 10 prevailing party in “exceptional” trademark cases. 15 U.S.C. § 1117 (a). An exceptional 11 case is one which “stands out from others with respect to the substantive strength of a 12 party’s litigating position (considering both the governing law and the facts of the case) 13 or the unreasonable manner in which the case was litigated.” SunEarth, Inc. v. Sun Earth 14 Solar Power Co., 839 F.3d 1179, 1180 (9th Cir. 2016) (quoting Octane Fitness, LLC v. ICON 15 Health & Fitness, Inc., 572 U.S. 545, 554 (2014)). Courts exercise their equitable discretion 16 to determine whether a case is exceptional considering the totality of the circumstances. 17 Octane Fitness, 572 U.S. at 554 . Relevant factors include, but are not limited to, 18 “frivolousness, motivation, objective unreasonableness (both in the factual and legal 19 components of the case) and the need in particular circumstances to advance 20 considerations of compensation and deterrence.” Id. at 554 n.6 (quoting Fogerty v. 21 Fantasy, 510 U.S. 517 , 534 n.19 (1994) (internal quotation marks omitted)). A case may be 22 sufficiently exceptional if it “present[s] either subjective bad faith or exceptionally 23 meritless claims.” Id. at 555 . 24 B. 28 U.S.C. § 1927 25 Courts may require an attorney “who so multiplies the proceedings . . . 26 unreasonably and vexatiously . . . to satisfy personally the excess costs, expenses, and 27 attorneys’ fees reasonably incurred because of such conduct.” 28 U.S.C. § 1927 . An Mgmt. Co., Sec. Lit., 78 F.3d 431 , 436 (9th Cir. 1996). “Bad faith is present when an [1] attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious [2] claim for the purpose of harassing an opponent.” Estate of Blas v. Winkler, 792 F.2d 858 , [3] 860 (9th Cir. 1986). [4] III. DISCUSSION [5] A. Lanham Act [6] Nike seeks recovery of all attorneys’ fees it incurred in defending against Plaintiffs [7] claims totaling $1,983,684.25. See Mot. at 14:6–8. Nike argues that this case is exceptional [8] because of the way in which it was litigated, specifically Plaintiffs’ discovery misconduct. [9] 10 See Mot. at 14:12–15:24. Robinson’s declaration opposed only the requested fees relating 11 to the terminating sanctions motion, Dkt. 158, not the motion for fees under the Lanham 12 Act. See generally Robinson Decl. Further, while the Court notes that the terminating 13 sanctions fees are technically opposed, Robinson’s declaration did not oppose or address 14 the amount of fees sought by challenging the hourly rates or hours spent. Id. Therefore, 15 the instant motion is unopposed. 16 i. “Exceptional” Case 17 Considering the totality of the circumstances, this is an exceptional case both in 18 terms of the substantive strength of Plaintiffs’ claims and the way in which it was 19 litigated. Robinson engaged in a “pattern of deception and deletion” through 20 misrepresentations regarding his relationship with Clover Dallas and widespread ESI 21 spoliation. Dkt. 153 at 11:9–10. The motivation for this bad faith discovery conduct was 22 to bolster his priority claim with fabrications while preventing the discovery of 23 information that undercut his claim. Robinson would not have gone to such great 24 lengths to mislead the Court and hide the truth if his claims were substantively strong. 25 The only logical deduction that can be made from Robinson’s conduct is that Plaintiffs’ 26 claims were frivolous. Further, the considerations of compensation and deterrence 27 compel an award of fees. Defendants spent years defending against NTAA’s claims and Declaration of Tamar Y. Duvdevani (“Duvdevani Decl.”) ¶ 53, Ex. 51. And as opposed to [1] demonstrating remorse for such misconduct, Robinson’s declaration only reflects his [2] belief that “this case was unfairly dismissed” and “Nike and Nordstrom should be the [3] ones compensating Plaintiffs.” Robinson Decl. ¶¶ 3, 8; see id. at ¶¶ 7, 9. Robinson has [4] already shown that the Court’s prior monetary award against him was insufficient to [5] deter him from engaging in abusive litigation conduct. See Dkt. 143; see also Dkt. 153 at [6] 11:18–24. Accordingly, the Court finds that this case is exceptional and now turns to the [7] appropriate amount of fees to award. [8] ii. Amount of Fees [9] 10 Nike alleges it is entitled to $1,983,684.25 in attorneys’ fees from Plaintiffs. Courts 11 use the lodestar figure, which is calculated by multiplying the number of hours 12 reasonably expended on the litigation by a reasonable hourly rate, to determine a 13 reasonable attorneys’ fee award. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A “court’s 14 role in reviewing unopposed fee requests is a modest one.” United States. v. $28,000 in 15 U.S. Currency, 802 F.3d 1100, 1109 (9th Cir. 2015) (Reinhardt, J., concurring). However, 16 while courts cannot “do the target’s homework,” for them, a court’s intervention is 17 warranted to ensure fairness, particularly considering the respective sophistication of the 18 parties, and to uphold the integrity of the courts. See id. Thus, the Court evaluates the 19 reasonableness of Nike’s requested fees under the Lanham Act, even though unopposed. 20 As an initial matter, the Court must address that Nike’s current motion is seeking 21 a single award of fees that includes the previous award $107,349.96 in attorneys‘ fees and 22 costs, Dkt. 143. See Mot. at 14:24-28. The prior award consisted of $43,827.15 in costs and 23 $63,522.81 in attorneys’ fees. Dkt. 143. Nike alleges that it has excluded from its 24 calculation the fees the Court excluded in its prior sanctions award. However, cross25 referencing line by line the invoices submitted in connection with the prior motion and 26 the invoices submitted in connection with this motion, it is apparent that Nike has 27 requested repayment of fees the Court has already found duplicative and declined to award.3 Compare Dkt. 115, Declaration of Tamar Y. Duvdevani, ¶8, Exs. 1–2 with [1] Duvdevani Decl. ¶53, Ex. 51. In total, Nike is seeking $146,735.31 in fees the Court [2] explicitly excluded in connection with the prior fee award.4 See Appendix B (calculating [3] fees currently sought that were requested in previous motion). Accordingly, the Court [4] subtracts this amount from the fee request for a total of $1,836,948.94. See Appendix A. [5] Turning to Nike’s hourly rates, the Court finds such rates are reasonable. A [6] reasonable hourly rate is determined by the prevailing market rates in the relevant [7] community for “similar work performed by attorneys of comparable skill, experience, [8] and reputation.” Camacho v. Bridgeport Financial, Inc., 523 F.3d 973, 979 (9th Cir. 2008); see [9] 10 Gonzalez v. City of Maywood, 729 F.3d 1196 , (9th Cir. 2013). The Court starts from the 11 presumption that Nike’s requested rates are reasonable as the rates were unopposed. See 12 $28,000 in U.S. Currency, 802 F.3d at 1106 . 13 Further, Nike has submitted sufficient evidence, through counsel’s declaration, 14 that the requested hourly rates are reasonable in light of the size and reputation of DLA 15 Piper and the experience and expertise of its attorneys and staff. See generally Duvdevani 16 Decl. Duvdevani’s declaration describes DLA Piper as “an international law firm that 17 includes approximately 3,700 U.S.-based attorneys,” and “nationally recognized” in 18 “trademark, copyright, and media practice.” Id. at ¶ 71. Duvdevani’s declaration notes 19 the numerous accolades the firm and individual attorneys have received in the 20 intellectual property field. Id. at ¶¶ 71, 76, 78, 79, 82. Biographies outlining the 21 experience and intellectual property expertise of the principal attorneys are attached to 22 the declaration. Id. at ¶¶ 76–87, Exs. 46–53. [24] 25 3 In calculating the hours now sought that had been previously submitted with the prior motion, the Court did not include any hours that were not sought in the pervious motion nor did the Court include any hours [26] that Nike excluded from its’ calculation (i.e. unhighlighted time entries). [27] 4 The Court also notes that Nike included in this request certain time entries it had chosen not to seek The rates sought are consistent with the prevailing market rates within the Central [1] District of California. The requested hourly rates for partners and senior counsel who [2] contributed to Nike’s defense range from $848 to $1,364.70. See Appendix A; see also [3] Duvdevani Decl. ¶ 96. Courts within this district have approved of such rates as [4] reasonable for attorneys of similar experience and expertise. See e.g., Netlist Inc. v. [5] Samsung Elecs. Co., 341 F.R.D. 650 , 675 (C.D. Cal. 2022) (finding rates ranging $1,160 to [6] $1,370 for Gibson Dunn partners reasonable given size and reputation of the firm as well [7] as the experience and expertise of the attorneys); Hope Med. Enterprises, Inc. v. Fagrgon [8] Compounding Serv., LLC, No. 2:19-cv-07748, 2022 WL 826903 , at *3 (C.D. Cal. Mar. 14, [9] 10 2022) (finding rates of $870 to $1,295 for King & Spaulding partners and counsel in the 11 business torts and unfair competition fields reasonable); AK Futures LLC v. Smoke Tokes, 12 LLC, No. 8:21-cv-1061, 2022 WL 3574280 , at *2 (C.D. Cal. Jan. 13, 2022) (finding rate of 13 $1,137.50 for a partner reasonable given his expertise in intellectual property). Likewise, 14 the requested hourly rate range of $565 to $808 for associates has been found reasonable. 15 See e.g., Netlist Inc., 341 F.R.D. at 675 (finding Gibson Dunn associate rates ranging from 16 $845 to $1,060 reasonable); Hope Med. Enterprises, 2022 WL 826903 , at *3 (finding rates of 17 $565 to 985 for associates at King & Spaulding reasonable); AK Futures LLC, 2022 WL 18 3574280, at *1-2 (finding rates ranging from $590.63 to $962.50 reasonable for associates). 19 The paralegal and support staff rates are also within or only slightly above the prevailing 20 rates. See e.g. AK Futures LLC, 2022 WL 3574280 , at *1-2 (finding $393.75 to be a 21 reasonable hourly rate for a paralegal with over two decades of experience); Perfect 10, 22 Inc. v. Giganews, Inc., 2015 WL 1746484 , at *15 (C.D. Cal. Mar. 24, 2015) (finding support 23 staff rates of $240 to $290 reasonable and an hourly rate of $345 for a paralegal with over 24 two decades of experience reasonable). Thus, the Court approves of the requested 25 hourly rates as reasonable. 26 However, though the hourly rates requested are reasonable, the hours expended 27 are not. Hours not “reasonably expended” such as those that are “excessive, redundant, of hours through an hour-by-hour analysis or, “when faced with a massive fee [1] application,” by making “across-the-board percentage cuts either in the number of hours [2] claimed or in the final lodestar figure as a practical means of trimming the fat from a fee [3] application.” $28,000 in U.S. Currency, 802 F.3d at 1108 (internal quotations omitted). [4] The billing invoices contain several instances in which time was adjusted upward [5] for attorneys or staff without explanation. Compare Appendix C with Duvdevani Decl. [6] ¶ 53, Ex 51. For example, one partner billed for a total of 5.72 hours of upward [7] adjustments. See id. Often the individual claiming an adjustment had not done any [8] accounted for work during that billing period, which indicates these adjustments cannot [9] 10 reflect salary increases or an adjustment of a previous entry. See e.g. Duvdevani Decl. ¶ 53, 11 Ex. 51, Invoice # 4393628. Thus, the Court has totaled all instances of upward 12 adjustments, and subtracted this amount of $14,873.16 from Nike’s request for a new 13 total of $1,822,075.78. See Appendix C. 14 The Court finds it is also necessary to reduce the hours by a percentage. The more 15 than 3,000 hours Nike alleges it spent defending itself in this case is excessive considering 16 the experience and expertise of the attorneys and that, other than Robinson’s discovery 17 misconduct, this case was a relatively straightforward run of the mill trademark case. See 18 Appendix A; see also Duvdevani Decl. ¶ 96. Additionally, the Court finds it unreasonable 19 that the majority of time logged by the primary partner on the case, over 650 hours, was 20 billed in exact hour or half hour increments, i.e. 2.5 hours or 8 hours. See generally 21 Duvdevani Decl. ¶ 53, Ex 51. There are also numerous instances in which employees 22 logged phone calls, emails, or meetings that took exactly 0.5 hours which seems unlikely. 23 See generally id. 24 Further, several time entries seem redundant or excessive. For example, a partner 25 spent a total of 5 hour reviewing the 21-page complaint and 5 pages of supporting 26 documents Plaintiffs initially filed. See Duvdevani Decl. ¶ 53, Ex 51, Invoice #4067394 and 27 #4084118. There are also several instances in which the same amount of time or more 2021, an associate spent approximately 20 hours drafting and revising a motion to [1] dismiss but a partner spent roughly 30 hours editing the motion. Id. at Invoice # 4094664. [2] Similarly, the hours spent on hearing preparation are unreasonable. In October 2023, a [3] partner spent nearly 20 hours preparing for the terminating sanctions hearing, which [4] lasted less an than an hour and was conducted via zoom, including 7 hours on the day of [5] the hearing, after spending dozens of hours reviewing and revising the brief supporting [6] the motion. Id. at Invoice #883087670. Additionally, Nike spent time on unnecessary [7] filings. For example, over 50 hours of firm time was spent opposing the withdrawal of [8] Alvin Pittman as Plaintiffs’ counsel. Id. at Invoice #883000938 and #883912203. [9] 10 Ultimately, having closely examined the billing invoices the Court finds a 30% 11 reduction in the final lodestar figure is necessary to “trim the fat” from the application. 12 Therefore, the Court awards Nike $1,275,453.05 in attorneys’ fees. 13 i. Costs 14 Though Nike has not specified a request for costs from Plaintiffs in the current 15 motion, the Court finds it is appropriate to include in this award certain costs as this 16 order shall supersede the prior award of costs, Dkt. 143, and address the costs associated 17 with Dkt. 153. Nike is still entitled to recover the $43,827.15 in costs related to the Clover 18 Dallas investigation the Court previously awarded. See Dkt. 143. Further, the Court has 19 already found cost shifting is warranted in connection with the ESI investigation. Dkt. 20 153 at 13:4–5. 21 Magistrate Judge Rosenberg ruled that Nike could engage an ESI vendor and 22 ordered Plaintiffs to “make available to the professional ESI vendor the electronic devices 23 to be searched for responsive information.” Dkt. 107 at 7. Though the ESI vendor was to 24 be engaged initially at Nike’s expense, Magistrate Judge Rosenberg stated that Nike 25 could “move for re-allocation of the cost in the event that additional responsive 26 information [was] discovered” because Plaintiffs claimed they had already turned over 27 all responsive ESI. Id. The massive spoliation and attempted spoliation uncovered Dkt. 153 at 12–13. In total, Nike is entitled to recover $172,354.17 in costs related to the [1] iDS investigation and report. See generally Dkt. 158 at 10–11. This includes $149,821.92 in [2] ESI Handling Costs and $22,532.25 in costs associated with drafting the Regard [3] Declaration. Id. [4] Accordingly, Nike is entitled to $216,181.32 in costs related to the Clover Dallas [5] and ESI investigations. 6 B. 28 U.S.C. § 1927 [7] Nike also requests sanctions to be awarded under 28 U.S.C. § 1927 against [8] Plaintiffs’ former attorney Pittman and current attorney Williams, either as an alternative [9] 10 to awarding fees against NTAA or joint and severally with NTAA and one another. Mot. 11 20:4–6. Specifically, Nike is seeking $1,152,880.34 against Pittman and $977,004.75 against 12 Williams in attorneys’ fees. Mot. 21:13-17. Nike also seeks $460,503.36 in expert and 13 consultant costs from Pittman and Williams. Mot. 21:17-18. Nike alleges that such an 14 award is justified by Pittman’s and William’s failure to verify the veracity of Plaintiffs’ 15 claims and failure to timely respond to discovery requests and motions. See Mot. at 16 15:27–16:3. The Court disagrees. 17 There is nothing in the record that establishes bad faith conduct by either Pittman 18 or Williams. Neither Williams nor Pittman knowingly or recklessly raised frivolous 19 arguments on Plaintiffs’ behalf. And Nike has not alleged that Plaintiffs’ claims were 20 filed to harass the Defendants. See generally Mot. Both Pittman and Williams seem to 21 have believed Plaintiffs’ claims were meritorious. See Declaration of Alvin L. Pittman, 22 ¶¶ 5–7; see also Williams Decl. ¶¶ 3–5. It was only after Nike brought to light Robinson’s 23 misconduct that the lack of merit to Plaintiffs’ claims became apparent. Though Nike 24 alleges that Williams and Pittman should have investigated Robinson’s statements about 25 his relationship with Clover Dallas or the lack of responsive ESI, there is no indication 26 that either attorney was complicit in or aware of Robinson’s misconduct. Additionally, 27 the few instances in which Plaintiffs’ counsel sought deadline extensions or failed to 1 out the litigation to warrant sanctions. Therefore, the Court does not find either Pittman > and Williams acted in bad faith and Nike’s request for fees and costs under 28 U.S.C. 3 § 1927 is DENIED. 4 IV. CONCLUSION 5 For the foregoing reason, Defendant Nike’s Motion for Attorneys’ Fees and Costs 6 Under the Lanham Act and 28 U.S.C. § 1927 is GRANTED IN PART and DENIED IN 7 PART. Plaintiffs are hereby ordered to pay $1,491,634.37 in attorneys’ fees and costs. See 8 Appendix A. This order supersedes the prior award of $107,349.96, Dkt. 143. [9] 10 IT IS SO ORDERED. 12 |] Dated: April 19, 2024 HONORABLE DEAN D. PREGERSON UNITED STATES DISTRICT JUDGE [28] Appendix A Timekeeper Position Rate(s) Billed Hours Billed Tamar Y. Duvdevani Partner $995.00 - $1,200.00 659.2 Tamany J. Vinson Bentz Partner $848.06 - $901.00 33.9 Marc E. Miller Partner $980.00 10.5 Other Partners Partner $950.00 - $1,219.30 10.34 Andrew J. Peck Senior Counsel $1,325.00 - $1,364.70 26.7 Joshua Schwartzman Associate $600.00 - $693.00 1,283.1 Oscar M. Orozco-Botello Associate $808.50 14 Jared J. Greenfield Associate $593.60 3.0 Emily A. Green Associate $560.00 - $576.80 502.5 Gaby Velkes Associate $575.00 - $602.20 224.1 Maegan N. Stanley Associate $565.00 - $581.90 144.0 Valerie Ruppert (Valerie Paralegal $352.47 - $398.60 176.2 Fadis) Michelle Burch Paralegal $150.00 11.3 Russ Richardson Senior Financial $655.00 2.4 Investigation Specialist Research and E-Discovery Specialist/Staff $330.00 - $469.86 108.2 Specialists and Staff Total Hours Billed 3,196.84 Requested Fee Award $1,983,684.25 Reduction for Prior Award Exclusions $146,735.31 Reduction for Upward Adjustments $14,873.16 Subtotal $1,822,075.78 30% Across-the-board Reduction $1,275,453.05 Costs Previously Awarded $43,827.15 Costs Awarded re: Dkt. 153 $172,354.17 Total Costs $216,181.32 Total Attorneys’ Fees and Costs Award $1,491,634.37 Appendix B September 26, 2022 — September 30, 2022 Tamar Y. 20 $1,114.40 $22,288.00 Duvdevani Joshua 4.1 $660.00 $2,706.00 Schwartzman Emily A. Green $576.80 $11,882.08 Gaby Velkes $676.00 $4,934.80 Valerie Ruppert $387.00 $464.40 Total $42,275.28 October 1, 2022 — October 31, 2022 Tamar Y. 85.1 $1,114.40 $94,835.44 Duvdevani Tamany J. Vinson | 3.9 $901.00 $3,513.90 Bentz Joshua 65.6 $660.00 $43,296.00 Schwartzman Emily A. Green $576.80 $16,438.80 Gaby Velkes $676.00 $5,002.40 Maegan N. Stanley $565.00 $678.00 Valerie Ruppert $387.00 $4,218.30 Total $167,982.84 Appendix C Invoice Number Upward Adjustment @ Rate Total Upward Adjustment Invoice Date Invoice #: 4094664 0.18 @ $848.06 $152.65 April 14, 2021 Invoice #: 4111869 0.5 @ $357.40 $178.70 May 19, 2021 0.52 @ $848.15 $441.04 Invoice #: 4124635 0.089 @ $367.50 $32.71 June 15, 2021 0.31 @ $854.13 $264.78 Invoice #: 4142284 1.93 @ $560.94 $1,082.61 July 21, 2021 0.08 @ $372.75 $29.82 0.08 @ $892.63 $71.41 Invoice #: 4221140 0.53 @ $352.47 $186.81 December 22, 2021 1.49 @ $330.22 $492.03 Invoice #: 4249372 0.89 @ $382.06 $340.03 February 28,2022 Invoice #: 4263739 0.44 @ $909.02 $399.97 March 29, 2022 0.29 @ $465.38 $134.96 0.27 @ $1,307.15 $352.93 Invoice #: 4273510 0.63 @ $896.27 $564.65 April 14, 2022 Invoice #: 4293883 0.36 @ $423.69 $152.53 May 23, 2022 1.08 @ $468.58 $506.07 Invoice #: 4310226 0.3 @ $392.77 $117.83 June 27, 2022 0.42@ $670.31 $281.53 0.36 @ $1,316.92 $474.09 Invoice #: 4325763 1.95 @ $898.76 $1,752.58 July 25, 2022 0.97 @ $1,328.53 $1,288.67 Invoice #: 4337738 1.34 @ $359.81 $482.15 August 17, 2022 Invoice #: 4356222 0.14 @ $375.64 $52.59 September 22, 2022 1.16 @ $899.30 $1,043.19 0.27 @ $465.11 $125.58 Invoice #: 4367150 0.45 @ $891.62 $401.23 October 13, 2022 0.98 @ $469.86 $460.46 Invoice #: 4393628 1.51 @ $1,009.15 $1,523.82 November 29, 2022 0.53 @ $1,219.30 $646.23 Invoice #: 4423003 0.63 @ $385.63 $242.95 January 27, 2023 Invoice #: 4435340 0.88 @ $677.91 $596.56 February 23, 2023 Total Adjustments $14,873.16