O'Bannon, Jr. v. National Collegiate Athletic Association et al, No. 4:2009cv03329 - Document 477 (N.D. Cal. 2016)
Court Description: ORDER GRANTING THE NCAAS MOTION FOR DE NOVO REVIEW AND ADOPTING IN PART MAGISTRATE JUDGE COUSINS ORDER ON ATTORNEYS FEES AND COSTS by Judge Claudia Wilken granting in part 415 Motion ; granting 416 Administrative Motion to File Under Seal; granting 420 Administrative Motion to File Under Seal; granting 425 Administrative Motion to File Under Seal. (jebS, COURT STAFF) (Filed on 3/31/2016)
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O&#039;Bannon, Jr. v. National Collegiate Athletic Association et al Doc. 477 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 EDWARD O’BANNON, et al. 5 6 7 8 9 United States District Court For the Northern District of California 10 11 No. C 09-3329 CW Plaintiffs, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; ELECTRONIC ARTS INC.; and COLLEGIATE LICENSING COMPANY, Defendants. ORDER GRANTING THE NCAA’S MOTION FOR DE NOVO REVIEW AND ADOPTING IN PART MAGISTRATE JUDGE COUSINS’ ORDER ON ATTORNEYS’ FEES AND COSTS (Docket No. 415) ________________________________/ 12 On July 13, 2015, Magistrate Judge Cousins entered an order 13 granting Plaintiffs’ request for attorneys’ fees and granting in 14 part Plaintiffs’ request for costs and expenses. 15 National Collegiate Athletic Association (NCAA) has now filed a 16 motion for de novo review of Magistrate Judge Cousins’ order. 17 Plaintiffs oppose the motion and the NCAA has filed a reply. 18 After the Ninth Circuit affirmed this Court’s decision and 19 permanent injunction in part and reversed it in part, the Court 20 granted the NCAA’s motion to file a supplemental brief. 21 has filed its supplemental brief and Plaintiffs have responded. 22 Having considered the parties’ papers and the record in this case, 23 the Court GRANTS the NCAA’s motion to review the fee order de novo 24 and adopts the fee order in part. 25 26 Defendant The NCAA BACKGROUND Plaintiffs are former and current student athletes who played 27 Division I men’s football or basketball. 28 a putative class action in 2009, alleging that the Collegiate They filed this case as Dockets.Justia.com 1 Licensing Company (CLC), the NCAA and its members conspired to fix 2 at zero the amounts paid to Division I football and basketball 3 players for the use of their names, images and likenesses in 4 violation of the Sherman Act, 15 U.S.C. § 1. 5 consolidated this action with Keller v. Electronic Arts Inc., Case 6 No. 09-1967, a putative class action alleging right of publicity 7 and related claims against the NCAA, CLC and Electronic Arts (EA). 8 Plaintiffs filed a consolidated amended complaint, which included 9 antitrust claims against EA as well as the NCAA and CLC. United States District Court For the Northern District of California 10 In 2010, the Court On August 31, 2012, Plaintiffs filed a motion to certify a 11 class of current and former Division I men’s football and 12 basketball players to pursue claims for declaratory and injunctive 13 relief. 14 former student-athletes to pursue money damages. 15 They also moved to certify a subclass of current and In September 2013, Plaintiffs, along with the plaintiffs in 16 Keller v. Electronic Arts Inc., Case No. 09-1967, settled their 17 claims against EA. Plaintiffs in both cases continued to litigate 18 against the NCAA. In November 2013, the Court granted in part and 19 denied in part Plaintiffs’ motion for class certification, 20 certifying a class of current and former Division I men’s football 21 and basketball players whose images, likeness and/or names may be, 22 or have been, included in game footage or in videogames licensed 23 or sold by the NCAA. 24 to certify the damages sub-class, finding that Plaintiffs failed 25 to present a feasible method for determining which players 26 appeared in videogames and were therefore eligible for monetary 27 damages. Docket No. 893. 28 2 However, the Court declined 1 Plaintiffs filed a motion for summary judgment and opposed 2 the NCAA’s cross-motion for summary judgment. 3 the Court granted in part and denied in part Plaintiffs’ motion 4 for summary judgment and granted in part and denied in part the 5 NCAA’s cross-motion. 6 On April 11, 2014, While Plaintiffs’ motion for summary judgment was under 7 submission, they, along with the plaintiffs in Keller, attended 8 two settlement conferences with Magistrate Judge Cousins in an 9 unsuccessful attempt to settle their claims against the NCAA. The United States District Court For the Northern District of California 10 Keller plaintiffs continued to negotiate with the NCAA and reached 11 an agreement in principle, which they announced on June 9, 2014, 12 the first day of Plaintiffs’ bench trial against the NCAA.1 13 A bench trial on Plaintiffs’ claims against the NCAA was held 14 between June 9, 2014 and June 27, 2014. 15 findings of fact and conclusions of law in favor of Plaintiffs, 16 determining that the NCAA’s rules were an unlawful restraint of 17 trade. 18 alternatives to the NCAA’s rules and enjoined the NCAA and its 19 member schools from agreeing to (1) prohibit deferred compensation 20 of an amount less than $5,000 per year for the licensing or use of 21 Plaintiffs’ names, images, and likenesses, or (2) prohibit 22 scholarships up to the full cost of attendance at Plaintiffs’ 23 schools. The NCAA timely filed a notice of appeal to the Ninth 24 Circuit. Plaintiffs filed the instant request for attorneys’ fees 25 and costs, which the Court referred to Magistrate Judge Cousins. The Court entered The Court concluded that there were less restrictive 26 1 27 28 On August 19, 2015, the Court granted final approval to O’Bannon and Keller Plaintiffs’ settlement with EA and Keller Plaintiffs’ settlement with the NCAA. 3 1 On July 13, 2015, Magistrate Judge Cousins entered a report and 2 recommendation that the Court grant the motion for fees and costs 3 with certain reductions. 4 instant motion. 5 On July 27, 2015, the NCAA filed the On September 30, 2015, the Ninth Circuit decided the NCAA’s 6 appeal. 7 violation and affirmed the remedy relating to scholarships. 8 However, the majority reversed the portion of the permanent 9 injunction related to deferred compensation. The panel affirmed the Court’s finding of an antitrust Plaintiffs filed a United States District Court For the Northern District of California 10 petition for rehearing en banc, which the NCAA opposed. 11 December 16, the Ninth Circuit denied the petition for rehearing 12 en banc. 13 NCAA’s application for an extension of time to file its petition 14 for a writ of certiorari. 15 by April 14, 2016. 16 for writ of certiorari in the United States Supreme Court, 17 challenging the Ninth Circuit’s holding regarding deferred 18 compensation. 19 20 On On March 7, the United States Supreme Court granted the Any petition by the NCAA must be filed On March 15, 2016, Plaintiffs filed a petition LEGAL STANDARD Decisions on dispositive motions, such as motions for 21 attorneys’ fees, rendered by Magistrate Judges are to be reviewed 22 de novo by the district court. 23 667, 673 (1980); see 28 U.S.C. § 636. 24 made upon the record before the Magistrate Judge or after 25 additional evidence is taken. 26 district judge may accept, reject, or modify the recommended 27 decision, receive further evidence, or recommit the matter to the 28 magistrate judge with instructions.” United States v. Raddatz, 447 U.S. This determination may be Fed. R. Civ. Pro. 72(b). 4 Id. “The 1 2 DISCUSSION I. 3 Entitlement to Fees In its supplemental brief, filed after the Ninth Circuit issued its opinion affirming in part this Court’s findings and 5 permanent injunction, the NCAA argues that the Ninth Circuit’s 6 reversal of the portion of this Court’s decision and injunction 7 allowing for deferred compensation renders Plaintiffs ineligible 8 to recover fees. 9 § 26 provides for an award of attorneys’ fees only to a plaintiff 10 United States District Court For the Northern District of California 4 who “substantially prevails” and, given that the NCAA previously 11 allowed schools to fund student-athletes’ full cost of attendance, 12 requiring the NCAA to allow schools to do so, Plaintiffs’ case 13 will not cause the NCAA to change its behavior in any way. 14 Specifically, the NCAA argues that 15 U.S.C. The NCAA argues that, even before this case was filed, 15 Division I schools were permitted to allow student athletes to 16 receive total financial aid packages equal to the cost of 17 attendance by combining athletics-based grants in aid with need- 18 based financial aid. 19 change permitting Division I schools to award athletics-based 20 grants-in-aid equal to the cost of attendance was not made until 21 2015, while this Court’s findings and permanent injunction were on 22 appeal to the Ninth Circuit. 23 recognized, “Although the NCAA now permits schools and conferences 24 to elect to raise their scholarship caps to the full cost of 25 attendance, it could reverse its position on that issue at any 26 time. 27 setting a cap any lower than the cost of attendance thus remains However, as the NCAA itself admits, the rule Moreover, as the Ninth Circuit The district court’s injunction prohibiting the NCAA from 28 5 1 in effect. . .” 2 Cir. 2015). 3 O’Bannon v. NCAA, 802 F.3d 1049, 1074 n.18 (9th The fact that the NCAA changed its rules before the order 4 requiring it to do so became effective does not preclude a finding 5 that Plaintiffs are the prevailing party. 6 obtain formal relief to recover fees. 7 ‘prevailing party,’ there must simply be a causal relationship 8 between the litigation brought and the practical outcome 9 realized.” “[A] plaintiff need not Rather for there to be a Southwest Marine, Inc. v. Campbell Indus., 732 F.2d United States District Court For the Northern District of California 10 744, 747 (9th Cir. 1984). 11 behavior before it is ordered to do so, the “lawsuit must be a 12 catalyst motivating the defendant to provide the relief sought.” 13 Braafladt v. Bd. Of Governors of Oregon State Bar Ass’n, 778 F.2d 14 1442, 1444 (9th Cir. 1985). 15 rule that chronological events are important, although not a 16 definitive factor, in determining whether or not a defendant can 17 be reasonably inferred to have guided his actions in response to a 18 plaintiff’s lawsuit.” 19 favorable decision and the result he seeks is then implemented, a 20 cause and effect inference may ordinarily be drawn.” 21 United States Dist. Court, 817 F.2d 480, 482 (9th Cir. 1987) 22 (analyzing award of fees under the Equal Access to Justice Act). 23 Although the court “must consider all other relevant facts and 24 circumstances, the [defendant] has the burden of rebutting the 25 inference and persuading us that the causal link has not been 26 established.” 27 28 Id. Where, as here, a defendant changes its The Ninth Circuit has adopted “the Where, as here, a plaintiff “obtains a Armster v. Id. The NCAA has failed to rebut the inference that Plaintiffs’ lawsuit and this Court’s order were factors in its decision to 6 1 change its rules. 2 were the prevailing party in this litigation and are entitled to 3 recover fees. 4 to be awarded in light of Magistrate Judge Cousins’ report and 5 recommendation, the NCAA’s objections to the report and 6 recommendation, and the Ninth Circuit’s opinion in this case. 7 II. 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Accordingly, the Court finds that Plaintiffs The Court proceeds to consider the amount of fees Weight to be afforded to the Magistrate Judge’s Report and Recommendation The parties disagree about the weight to be afforded to Magistrate Judge Cousins’ report and recommendation. The NCAA argues that it is entitled to de novo review, which must include an independent assessment of all of the records submitted. However, as Plaintiffs argue, 28 U.S.C. § 636(b)(1)(B), which governs the review of reports and recommendations on dispositive motions such as this one, provides that a district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(B). “[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations.” Raddatz, 447 U.S. at 676. Here, the Court finds that, while conducting its de novo review, it is appropriate to give significant weight to Magistrate Judge Cousins’ report and recommendation. In addition to the instant motion, this Court referred discovery and case management issues to Magistrate Judge Cousins. He conducted numerous in- person and telephonic hearings and conferences and issued many 28 7 1 written orders on motions in the case, including on discovery 2 issues related to the instant motion. 3 Judge Cousins also conducted two mediations in an effort to settle 4 this case. 5 familiar with this case and Plaintiffs’ counsel’s performance in 6 it. 7 more weight than a report and recommendation on attorneys’ fees 8 might usually be afforded. 9 III. NCAA’s Objections United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 As noted above, Magistrate In sum, Magistrate Judge Cousins is extraordinarily Therefore, his assessment of the motion for fees carries even A. Conclusion that the unsuccessful claims were related to the successful claims (Objections One and Two) The NCAA argues that Magistrate Judge Cousins’ recommended finding that “all of plaintiffs’ unsuccessful claims were related to the successful claims” is erroneous. Docket No. 405 at 10. In his report and recommendation, Magistrate Judge Cousins recognized that Plaintiffs’ theory of their case changed over the course of the litigation. Nevertheless, he rejected the NCAA’s argument that (1) Plaintiffs should not be allowed to collect $23,084,122.89 in fees for 46,464.06 hours of work performed prior to August 31, 2012, when Plaintiffs filed their motion for certification of a class of current and former Division I men’s football and basketball players to pursue declaratory and injunctive relief, as well as a subclass of current and former student-athletes to pursue monetary damages; (2) Plaintiffs’ fees between the filing of the motion for class certification and the Court’s November 8, 2013 order certifying the injunctive relief class but denying the request to certify the damages class should be reduced by eighty percent; and (3) the Court should deduct 28 8 1 $32,835,828.85 in fees for “all hours after November 8, 2013 2 related to damages, group licensing or live broadcast, products 3 like jerseys or trading cards, monitoring the Keller litigation, 4 time related to any specific plaintiff, or other unsuccessful 5 claims[.]” 6 NCAA asserts that the Court should reduce Plaintiffs’ fees by 7 fifty percent to account for their “limited success.” 8 9 Docket No. 354-41 at 12-13. In the alternative, the Id. at 13. The NCAA argues that all fees incurred prior to the class certification motion concerned claims that Plaintiffs voluntarily United States District Court For the Northern District of California 10 abandoned. 11 between the time of the motion for class certification and the 12 order on class certification must be reduced because the Court 13 denied certification of the damages class. 14 Moreover, the NCAA argues that the fees incurred The NCAA cites Hensley v. Eckerhart, which holds that, if “a 15 plaintiff has achieved only partial or limited success, the 16 product of hours reasonably expended on the litigation as a whole 17 times a reasonable hourly rate may be an excessive amount.” 18 U.S. 424, 436 (1983). 19 found that Plaintiffs obtained excellent results in this case. 20 “Where a plaintiff has obtained excellent results, his attorney 21 should recover a fully compensatory fee.” 22 435. 23 the course of the litigation, their abandoned claims “involve[d] a 24 common core of facts or [were] based on related legal theories.” 25 Id. 26 461 However, Magistrate Judge Cousins properly Hensley, 461 U.S. at Although Plaintiffs refined their theory of the case over Finally, in its supplemental brief, the NCAA argues that the 27 Ninth Circuit’s reversal of this Court’s findings and injunction 28 related to deferred compensation requires a reduction in fees for 9 1 limited success. 2 F.3d 805 (9th Cir. 1994), the NCAA suggests that it would be an 3 abuse of discretion not to reduce the fee award in light of the 4 partial reversal by the Ninth Circuit. 5 awarded the plaintiff $234,000 in damages, including $200,000 in 6 punitive damages. 7 plaintiff approximately $148,000 in fees and costs and stated that 8 it would award the same amount, even if the punitive damages award 9 were to be reversed. Citing McGinnis v. Kentucky Fried Chicken, 51 Id. at 807. In McGinnis, the jury The district court awarded the Id. at 807, 809. The Ninth Circuit reversed United States District Court For the Northern District of California 10 the punitive damages award and found that “the district court 11 abused its discretion by expressly refusing to relate the extent 12 of success to the amount of the fee award.” 13 the Court has considered the Ninth Circuit’s holding. 14 Id. at 810. Here, Moreover, unlike McGinnis, a case where “the relief sought 15 and obtained is limited to money” in which “the terms ‘extent of 16 success’ and ‘level of success’ are euphemistic ways of referring 17 to money,” 18 under 15 U.S.C. § 26, in which the award of fees to a prevailing 19 plaintiff is mandatory. 20 amendment to section 26 suggests that awards of attorney’s fees 21 are essential if private attorneys-general are to enforce the 22 antitrust laws.” 23 portion of the injunctive relief ordered by this Court was 24 reversed, the finding of liability and the remaining injunctive 25 relief are together an excellent result. 26 Circuit observed, the decision obtained by Plaintiffs “is the 27 first by any federal court to hold that any aspect of the NCAA’s 28 amateurism rules violate the antitrust laws, let alone to mandate 51 F.3d at 810, this a case for injunctive relief “The legislative history of the 1976 Southwest Marine, 732 F.2d at 746. 10 Although a Indeed, the Ninth 1 by injunction that the NCAA change its practices.” 2 F.3d at 1053. 3 4 O’Bannon, 802 Accordingly, the Court overrules the NCAA’s first and second objections. 5 B. 6 The NCAA argues that Plaintiffs cannot recover fees related State Law Issues and Claims (Objection 3) 7 to their state law claims for unjust enrichment and accounting, 8 which they voluntarily dismissed. 9 Magistrate Judge Cousins properly found that the work related to However, as discussed above, United States District Court For the Northern District of California 10 abandoned claims shares a common core of facts with the successful 11 antitrust claims. 12 Act, Plaintiffs are not entitled to compensation for state-law 13 claims. 14 in which a panel of the Third Circuit held that a plaintiff could 15 not recover fees under the Clayton Act for work done in connection 16 with a state-law claims for tortious interference with business 17 relationships. 18 Baughman was decided before Hensley and the Third Circuit panel 19 did not address whether the state-law claim in that case shared a 20 common core of facts with the successful claim. 21 overrules the NCAA’s third objection. 22 23 24 25 26 27 D. The NCAA also argues that, under the Clayton The NCAA cites Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1216 (3d Cir. 1978). However, The Court Conclusion that Plaintiffs obtained “Excellent Results” (Objection 4) The NCAA next objects to Magistrate Judge Cousins’ conclusion that Plaintiffs obtained “excellent results.” The NCAA argues that Hensley, which instructs that a “reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole,” requires a 28 11 1 reduction in Plaintiffs’ fee award. 2 discussed above, the Court finds that Plaintiffs obtained 3 excellent results in this case. 461 U.S. at 440. 4 The NCAA’s fourth objection is overruled. 5 E. 6 7 8 9 10 United States District Court For the Northern District of California As 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Fees Related to Damages and Jury Trial Preparation (Objection 5) The NCAA argues that Plaintiffs should not be able to recover fees for work related to their claim for damages or in preparation for a jury trial because they abandoned their damages claims and did not have a jury trial. In their motion for fees, Plaintiffs stated that they “excised . . ., to the extent separable, time concerning damages claims; the pursuit of a damages class under Rule 23(b)(3); draft jury instructions, voir dire, and questionnaires[.]” Docket No. 341 at 12. However, the NCAA asserts that Plaintiffs failed to remove all of the fees related to these matters. Further, the NCAA asserts, Plaintiffs’ fee request must be further reduced because that “[w]ork related to damages and a jury trial did not contribute to plaintiffs’ success at a bench trial for injunctive relief.” Docket No. 415 at 11. However, this objection is based on the premise that Plaintiffs are not entitled to receive fees for their unsuccessful related claims. As discussed above, Plaintiffs obtained an excellent result in this case and are entitled to recover fees for work on unsuccessful related claims. Moreover, as Plaintiffs point out, many of the entries that the NCAA identifies as related to damages or jury trial are directly related to their successful claim. For example, the NCAA argues that Plaintiffs should not be able to recover fees related 28 12 1 to the defense of Dr. Daniel Rascher’s deposition. 2 Rascher was Plaintiffs’ damages expert, he testified at the bench 3 trial. 4 damages was a strategic decision, which one could reasonably 5 assume contributed to Plaintiffs’ success on their claim for 6 injunctive relief. 7 work, while related to damages or to preparation for a jury trial, 8 contributed to Plaintiffs’ success on their antirust claim for 9 injunctive relief. Although Dr. In fact, the decision to abandon the claim for monetary One can also reasonably conclude that other The fact that their mock trial was conducted United States District Court For the Northern District of California 10 before they abandoned their claims for damages, and thereby waived 11 their right to a jury trial, does not mean that conducting the 12 mock trial was unrelated to their success. 13 assert that the mock trial “sharpened Plaintiffs’ trial 14 presentation” even though that trial was a bench trial. 15 No. 421 at 11. Plaintiffs reasonably Docket 16 The NCAA’s fifth objection is overruled. 17 F. 18 The NCAA next argues that Magistrate Judge Cousins 19 erroneously failed to reduce Plaintiffs’ fee request based on 20 block-billed entries. 21 representing $22,913,777.59 in fees are block-billed. 22 argues that these fees should be reduced by thirty percent, or 23 $6,874,133.28. 24 “block billing has been accepted in this district.” 25 v. Qi, 2015 WL 224970, at *3 (N.D. Cal.) (citing Stonbrae, L.P. v. 26 Toll Bros., Inc., 2011 WL 1334444, at *8 (N.D. Cal.)) (“Block 27 Billing is a typical practice in this district, and blocked-bills Block-Billing (Objection 6) The NCAA asserts that over 13,000 entries, The NCAA Magistrate Judge Cousins properly found that 28 13 PQ Labs, Inc. 1 have been found to provide a sufficient basis for calculating a 2 fee award.”). 3 The NCAA faults Magistrate Judge Cousins for discussing only 4 two of the purportedly block-billed entries in his order. 5 However, Magistrate Judge Cousins’ report and recommendations make 6 clear that the two entries discussed are only examples. 7 reviewed the entries identified in Exhibit 3 to the NCAA’s 8 opposition to Plaintiffs’ motion for fees, the Court agrees with 9 Magistrate Judge Cousins’ finding that the identified entries Having United States District Court For the Northern District of California 10 “contain enough specificity as to individual tasks to ascertain 11 whether the amount of time spent performing them was reasonable.” 12 Garcia v. Resurgent Capital Servs., L.P., 2012 WL 3778852, at *8 13 (N.D. Cal.). 14 reasonable amounts of time for the tasks described. Moreover, it appears that Plaintiffs claimed 15 The Court further notes that it is unreasonable for the NCAA 16 to expect the Court to discuss all, half or even one-tenth of the 17 over 13,000 entries the NCAA identified. 18 true because it appears that the NCAA challenged any entry that 19 includes more than a single task. 20 entries are for .10 hours. 21 Plaintiffs actually claimed less, not more, time than if they had 22 made a separate time entry for each task. 23 354-4 at 10 (0.10 hours claimed on July 7,2011: “Review notes from 24 MDH re draft 2nd req for admissions to NCAA; Email to case team re 25 same”). 26 to the tasks performed. 27 on October 30, 2013: “Discuss motion for partial summary judgment 28 with B. Glacking; review rule of reason case law; edit motion for This is particularly However, many of the identified By “block-billing” these entries, See, e.g., Docket No. Other entries very clearly contain enough specificity as See, e.g., id. at 39 (6.80 hours claimed 14 1 partial summary judgment.”). 2 be block-billed. 3 August 1, 2012: “Reviewing draft RFA responses to NCAA RFAs. 4 Commenting.”); id. (0.40 hours claimed on August 7, 2012: 5 “Conference call with Plaintiffs’ counsel re: NCAA document 6 review[.]”); id. at 47 (3.90 hours claimed on April 24, 2014: 7 “Research case law for motions in limine; edit motions in 8 limine.”). 9 Still others do not even appear to See, e.g., id. at 29 (2.30 hours claimed on The NCAA’s sixth objection is overruled. United States District Court For the Northern District of California 10 G. 11 The NCAA identified 4,292 entries it contends are Vague Entries (Objection 7) 12 impermissibly vague because they do not allow it “to determine 13 what claims or which defendant the work was directed to or whether 14 the time expended was unreasonable.” 15 NCAA seeks a reduction of $2,192,858.38, representing a fifty 16 percent reduction in fees requested for these entries. 17 Judge Cousins found that the challenged entries were sufficiently 18 detailed to permit the court fairly to evaluate the reasonableness 19 of the time expended. 20 Cousins for discussing only one example in his written order. 21 However, as noted above, it is unreasonable for the NCAA to expect 22 the Court to address even a fraction of the entries it identifies 23 as potentially vague, particularly when the NCAA includes multiple 24 entries that clearly involve recoverable fees. 25 certain entries may appear vague, considered in the context of the 26 billing records as a whole, or the case record, they contain 27 sufficient information to assess their reasonableness. 28 example, the NCAA identifies an April 6, 2011 entry claiming 1.50 Docket No. 415 at 12. The Magistrate The NCAA again faults Magistrate Judge 15 To the extent For 1 hours of work for “preparation for hearing” as vague. 2 354-5 at 28. 3 discloses that the Court heard oral argument on Defendants’ 4 motions to dismiss on April 7, 2011. 5 sufficient information standing alone. 6 hours claimed on January 6, 2012: “Review defendants’ case 7 management conference statement.”); id. at 66 (one hour claimed on 8 April 4, 2012: “team call re case status”); id. at 89 (1.20 hours 9 claimed on November 8, 2012: “Review Defendants’ reply ISO motion Docket No. However, a brief review of the Keller docket Other entries contain See, e.g., id. at 54 (0.20 United States District Court For the Northern District of California 10 to strike Plaintiffs’ motion for class certification.”); id. at 11 multiple pages (entries claiming time for “document review”). 12 The NCAA’s seventh objection is overruled. 13 H. 14 The NCAA argues that Magistrate Judge Cousins erred when he 15 allowed Plaintiffs to recover fees based on ninety-five redacted 16 and five hundred thirty-six partially redacted entries. 17 reply, the NCAA contends that the entries “are redacted such that 18 the NCAA cannot determine whether the fees were reasonable.” 19 Docket No. 427 at 8. 20 must determine whether the fees requested are reasonable. 21 Magistrate Judge Cousins reviewed unredacted entries in camera and 22 determined both that the entries were sufficiently detailed to 23 make a reasonableness determination and that the time expenditures 24 documented in the redacted entries were reasonable. 25 reviewed the redacted entries, the Court adopts Magistrate Judge 26 Cousins’ recommendation. 27 overruled. Redactions (Objection 8) In its However, it is the Court, not the NCAA, that Having also The NCAA’s eighth objection is 28 16 1 I. 2 Magistrate Judge Cousins reduced by five percent certain Quarter-Hour Time Entries (Objection 9) 3 entries which were billed in quarter-hour increments. 4 that only a small number of the entries identified were for tasks 5 that likely took one- or two- tenths of an hour rather than a 6 quarter hour. 7 the practice was not widespread or excessive. 8 Welch v. Metropolitan Life Ins. Co., in support of its argument 9 that the fees based on the quarter-hour time entries should have He found In addition, Magistrate Judge Cousins found that The NCAA cites United States District Court For the Northern District of California 10 been reduced by twenty percent. 11 2007). 12 the district court’s decision to impose a twenty percent 13 reduction. 14 best position to determine in the first instance whether counsel’s 15 practice of billing by the quarter-hour resulted in a request for 16 compensation for hours not reasonably expended on litigation” and 17 noted the deference afforded to such determinations. 480 F.3d 942, 948-49 (9th Cir. However, in Welch, the Ninth Circuit panel simply affirmed The panel held that the “district court was in the Id. at 948. 18 Having reviewed the challenged entries, the Court finds that 19 the practice of billing in quarter-hour increments did not result 20 in any significant overstatement of hours spent on tasks. 21 Welch, the twenty percent reduction was based on a finding that 22 “the hours were inflated because counsel billed a minimum of 15 23 minutes for numerous phone calls and e-mails that likely took a 24 fraction of the time.” 25 challenged entries in this case are not “replete with quarter-hour 26 or half-hour charges for the drafting of letters, telephone calls 27 and intra-office conferences.” 28 Id. at 949. Unlike in Welch, the Id. The NCAA’s ninth objection is overruled. 17 In 1 J. 2 The NCAA asserts that it has “identified 12 timekeepers whose Alleged Rounded Quarter-Hour Time Entries (Objection 10) 3 time entries always end in .0, .3, .5 or .8, suggesting that they 4 were rounding up quarter-hour entries to avoid detection.” 5 No. 415 at 14. 6 entries by twenty percent.2 7 that almost all of the twelve timekeepers the NCAA has identified 8 have time entries that do not end in .0, .3, .5 or .8. 9 other challenges to specific time entries, the NCAA was vastly Docket The NCAA argues that the Court should reduce these As an initial matter, the Court notes As with United States District Court For the Northern District of California 10 overinclusive when it compiled the ninety-five pages of challenged 11 time entries it asks the Court to review. 12 Having reviewed the entries the NCAA challenges, the Court 13 finds that only one type of entry appears likely to have been 14 rounded up resulting in an overstatement of the time reasonably 15 spent on the litigation. 16 entries claiming .3 hours of time for “receiv[ing] and review[ing] 17 correspondence from U.S. District Court” regarding filings. 18 Court understands these entries to be reviewing and receiving 19 notices of electronic filing from the Electronic Case Filing 20 system. 21 many of these entries, regardless of whether the notice of filing 22 related to a substantive order of the Court, a simple notice of 23 appearance by an attorney, or even a ministerial action, such as a 24 clerk’s notice continuing a case management conference, an order 25 granting an application to appear pro hac vice, or the filing of a The Court notes that there are many The However, Plaintiffs’ counsel claimed .3 hours of work for 26 27 28 2 It appears that Magistrate Judge Cousins did not directly address this argument. 18 1 certificate of service. 2 filing cannot reasonably have taken eighteen minutes. 3 Review of every notice of electronic Accordingly, the NCAA’s tenth objection is sustained in part. 4 The Court will reduce the challenged entries by five percent or 5 $40,111. 6 K. 7 The NCAA argues that Magistrate Judge Cousins improperly Media-Related Activities (Objection No. 11) 8 found that Plaintiffs are entitled to fees for media-related 9 activity. However, the Ninth Circuit has held, “Where the giving United States District Court For the Northern District of California 10 of press conferences and performance of other lobbying and public 11 relations work is directly and intimately related to the 12 successful representation of a client, private attorneys do such 13 work and bill their clients.” 14 F.2d 1536, 1545 (9th Cir. 1992), reh’g denied and opinion vacated 15 in non-relevant part, 984 F.2d 345 (1993). 16 Circuit has allowed counsel to recover fees for media-related 17 activities. 18 related work was part of their successful representation of the 19 class. Davis v. City of San Francisco, 976 Accordingly, the Ninth In this high-profile class action, counsel’s media- The NCAA’s eleventh objection is overruled. 20 L. 21 The NCAA argues that Plaintiffs are not entitled to recover Claims against EA or CLC (Objection No. 12) 22 fees from it based on work related to their claims against EA and 23 CLC, which they settled. Instead, the NCAA argues, Plaintiffs 24 25 26 27 28 19 1 must recover such fees from EA and CLC through the settlement.3 2 Accordingly, the NCAA argues that Magistrate Judge Cousins erred 3 when he found that “the claims against EA and CLC involve a common 4 core of facts with the claims brought against the NCAA” and 5 allowed Plaintiffs to recover $3,554,108.15 in fees Plaintiffs 6 identified as specific to their claims against EA and CLC as well 7 as other fees that the NCAA believes were specific to the claims 8 against EA and CLC. 9 reduction of $3,634,334.54 on this basis. United States District Court For the Northern District of California 10 Docket No. 405 at 16. The NCAA seeks a As discussed above, the Supreme Court in Hensley allows a 11 plaintiff that is not successful on all of its claims to recover 12 all of its fees if it obtains “excellent results.” 13 435. 14 successful claims and “involve a common core of facts or [are] 15 based on related legal theories.” 16 is based on an assumption that, in such cases, “[m]uch of 17 counsel’s time will be devoted generally to the litigation as a 18 whole, making it difficult to divide the hours expended on a 19 claim-by-claim basis.” 20 “[s]uch a lawsuit cannot be viewed as a series of discrete claims. 21 Instead the district court should focus on the significance of the 22 overall relief obtained by the plaintiff in relation to the hours 23 reasonably expended on the litigation.” 461 U.S. at This is true when the unsuccessful claims are related to the Id. Id. However, this conclusion The Supreme Court explains that Id. 24 25 26 27 28 3 While the instant motion was pending, the Court awarded Plaintiffs $4,000,000 in fees and placed $2,000,000 in escrow as part of the EA settlement. The Court held, “If the fee award related to the O’Bannon trial [i.e. the fee award at issue in this order] is not paid by the NCAA, the $2,000,000 will be paid to O’Bannon Plaintiffs’ counsel.” Docket No. 459 at 24. 20 1 However, in this case, Plaintiffs themselves have identified 2 nearly 8,000 hours spent on work specific to their claims against 3 EA and CLC. 4 Plaintiffs, this is not a situation where it is “difficult to 5 divide the hours expended on a claim-by-claim basis.” 6 Accordingly, whether or not the claims are related, Plaintiffs may 7 not recover the fees they themselves have identified as related 8 solely to their claims against EA and CLC. 9 will reduce the fee award by $3,554,108.15. United States District Court For the Northern District of California 10 At least with respect the hours identified by Id. Accordingly, the Court The NCAA asserts that it has identified 2000 additional 11 entries that are for work on Plaintiffs’ claims against EA and 12 CLC. 13 not exclusively for work on the claims against EA and CLC. 14 e.g., Docket No. 354-19 at 7 (claiming 1.10 hours on September 17, 15 2009 to “review NCAA’s opposition to motion to consolidate 16 cases”); id. at 76 (claiming 3.50 hours on July 14, 2012 for 17 “Continued drafting responses to contention interrogatories and 18 requests for admission.”); id. at 89 (claiming 2.50 hours on 19 November 12, 2012 to “Review complaint and background materials in 20 preparation for document review assignment.”). The Court has reviewed those entries and finds that they are See, 21 M. 22 The NCAA next objects to time it asserts that Plaintiffs’ Communication with Clients (Objection No. 13) 23 counsel spent soliciting clients. 24 is not compensable, citing ACLU v. Barnes, 168 F.3d 423 (11th Cir. 25 1999). 26 looking for and soliciting potential plaintiffs” is not 27 compensable “because until the attorney has a client, there is no 28 case to litigate.” The NCAA argues that such time In Barnes, the Eleventh Circuit held that “hours spent 168 F.3d at 435. 21 Accordingly, the NCAA argues 1 that Plaintiffs should not be able to recover fees for work 2 performed before the O’Bannon complaint was filed. 3 NCAA has made no showing that any of the challenged entries are 4 for work performed before counsel had even one client. 5 in a complex class action such as this one, it is reasonable to 6 conclude that the identification of class representatives is a 7 strategic decision that contributed to the success of the 8 litigation and that necessary legal research into the viability of 9 claims would take place before potential class representatives However, the Moreover, United States District Court For the Northern District of California 10 were identified. 11 argument that Plaintiffs should not be able to recover fees 12 incurred before the O’Bannon complaint was filed. 13 Accordingly, the Court rejects the NCAA’s The NCAA further argues that much of the time billed after 14 the O’Bannon complaint was filed is non-compensable solicitation 15 by other law firms seeking to file “copycat” lawsuits, which were 16 later merged into the O’Bannon case. 17 entries identified by the NCAA include descriptions of work that 18 go beyond bare solicitation. 19 time billed to “Investigate facts and research legal issues. 20 Correspond and discuss w/colleagues and possible plaintiffs cases, 21 claims, damages, complaints and allegations, and status and 22 strategy.” 23 entry includes a discussion with possible plaintiffs, entries such 24 as these involve work that contributed to the substance of the 25 case. 26 final draft of complaint. 27 another lead client and type.” 28 these involve legal strategy that likewise goes beyond the simple However, the relevant time For example, the NCAA objects to Bateman Decl., Dkt. 424-1 at ¶ 22. Although this Similarly, the NCAA objects to time billed to “Look over Discussion with Eugene Spector re Id. at ¶ 17. 22 Entries such as 1 solicitation of an individual to act as a client. 2 these entries claim time related to the identification and 3 “solicitation” of plaintiffs, the Court finds, as discussed above, 4 that the identification and solicitation of class representatives 5 in a case such as this involves strategic decision-making that 6 impacts the success of the case. To the extent 7 Moreover, the NCAA does nothing to identify which entries it 8 believes fall into this category of solicitation of plaintiffs in 9 “copy-cat” cases. The fee applicant “has an initial burden of United States District Court For the Northern District of California 10 production, under which it must ‘produce satisfactory evidence’ 11 establishing the reasonableness of the requested fee.” 12 States v. $28,000.00 in United States Currency, 802 F.3d 1100, 13 1105 (9th Cir. 2015) (citing Blum v. Stenson, 465 U.S. 886, 895 14 n.11 (1984)). 15 opposing the fee application has a burden of rebuttal that 16 requires submission of evidence to the district court challenging 17 the accuracy and reasonableness of the hours charged or the facts 18 asserted by the prevailing party in its submitted affidavits.” 19 Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1993) 20 (citing Blum, 465 U.S. at 892 n.5). 21 that burden. 22 N. 23 The NCAA next argues that Plaintiffs cannot recover fees for United However, once that burden is met, “[t]he party The NCAA has failed to meet Accordingly, its thirteenth objection is overruled. Motion to be Lead Counsel (Objection No. 14) 24 time spent on motions to be lead counsel. 25 objection on language in Hensley, which provides, “Hours that are 26 not properly billed to one’s client also are not properly billed 27 to one’s adversary.” 28 However, the NCAA cites no support for a finding that a client The NCAA bases this 461 U.S. at 434 (emphasis in original). 23 1 would not pay its attorney to file a motion to act as lead counsel 2 in a complex case. The NCAA’s fourteenth objection is overruled. 3 O. 4 The NCAA next seeks a $1,719,551.35 reduction in fees to Clerical Work (Objection No. 15) 5 account for time it argues was spent on clerical tasks. 6 clerical or secretarial tasks should not be billed at a paralegal 7 rate or lawyer’s rate, regardless of who performs them.” 8 City of San Francisco, 976 F.2d 1536, 1543 (9th Cir. 1992) 9 (quoting Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)) “[P]urely Davis v. United States District Court For the Northern District of California 10 (internal alteration marks omitted). 11 entries it contends are for purely clerical work and faults 12 Magistrate Judge Cousins for citing only one of the 6,086 entries 13 when he found that “what the NCAA calls ‘clerical or secretarial 14 work’ actually involved substantive work that substantially 15 differs from the ‘purely clerical or secretarial tasks’ in Davis.” 16 Docket No. 405 at 18. The NCAA identified 6,086 17 Again, the Court notes that it is unreasonable for the NCAA 18 to expect Magistrate Judge Cousins to discuss even a fraction of 19 the more than 6,000 entries it identified. 20 true when many of the entries identified are unquestionably for 21 substantive work. 22 claimed on July 19, 2009 to “Proof and edit draft complaint to be 23 filed on Tuesday in USDC ND CA”); id. at 38 (1.20 hours claimed on 24 January 7, 2011: “Reviewed motion for leave to file separate 25 motions to dismiss; notice of presentation of oral appellate 26 argument; MDL pleadings.”); id. at 39 (.40 hours claimed on 27 January 13, 2011: “Reviewed CL’s and NCAA’s Oppositions to Motion 28 to Relate case.”); id. at 230 (12.30 hours claimed on June 22, This is particularly See, e.g., Docket No. 354-23 at 3 (5 hours 24 1 2014: “Assisted lawyers in the preparation for and administration 2 of next trial day including legal and factual research, making 3 witness binders, preparing admitted exhibits for submission to 4 Court and reviewing documents.”). 5 many non-clerical entries included in the NCAA’s 234 page exhibit 6 listing purportedly clerical time entries. 7 there are a number of entries that are purely clerical, including 8 entries for making travel arrangements, opening bank accounts and 9 printing or copying documents. These are only a few of the The Court notes that However, the Court finds that United States District Court For the Northern District of California 10 these entries make up a very small portion of the entries 11 challenged. 12 $34,391, representing two percent of the $1,719,551.35 reduction 13 sought by the NCAA for purportedly clerical work. Accordingly, the Court will reduce the fee award by 14 P. 15 The NCAA next objects to various staffing decisions made by Staffing Decisions (Objection No. 16) 16 Plaintiffs’ counsel. 17 arguing that Plaintiffs “inefficiently assigned” work to partners 18 that could have been performed by junior attorneys or non- 19 attorneys. 20 spent conducting legal and factual research, drafting pleadings, 21 briefs and discovery requests, preparing for depositions, and 22 preparing for trial. 23 finding that this type of work cannot be reasonably assigned to 24 partners as well as associates. 25 534 F.3d 1006, 1115 (9th Cir. 2008) (“The difficulty and skill 26 level of the work performed, and the result achieved--not whether 27 it would have been cheaper to delegate the work to other 28 attorneys--must drive the district court’s decision.”). The NCAA first challenges 3,491 entries, However, the entries identified are primarily for time The NCAA provides no authority to support a See Moreno v. City of Sacramento, 25 The 1 NCAA’s next challenge fails for similar reasons. 2 that all document review should be billed at a rate of “$100 per 3 hour, commensurate with work typically done by contract attorneys 4 or paralegals.” 5 Magistrate Judge Cousins, the NCAA provides no authority for its 6 position that document review may only be performed by contract 7 attorneys or paralegals, or that contract attorneys and paralegals 8 may only be compensated at $100 per hour. 9 Docket No. 415 at 20. The NCAA argues However, as noted by The NCAA also argues that Plaintiffs’ counsel overstaffed United States District Court For the Northern District of California 10 depositions and trial. 11 Magistrate Judge Cousins’ reliance on the fact that the NCAA had 12 comparable levels of staffing at the challenged depositions and at 13 trial was flawed because, the NCAA argues, Plaintiffs miscounted 14 some non-billing technical staff in its tally of NCAA timekeepers. 15 Even if Plaintiffs had more timekeepers than the NCAA present for 16 trial on any given day, the staffing levels were comparable. 17 Moreover, when considering an overstaffing challenge, “[c]ourts 18 must exercise judgment and discretion, considering the 19 circumstances of the individual case, to decide whether there was 20 unnecessary duplication.” 21 Reed, 388 F.3d 1281, 1286 (9th Cir. 2004). 22 complexity of this case, the Court finds that Plaintiffs’ 23 attorneys’ staffing levels were reasonable. 24 Specifically, the NCAA argues that Democratic Party of Wash. State v. Given the scope and The NCAA next argues that Plaintiffs held excessive 25 conferences and, accordingly, should not be able to recover full 26 fees based on 9,779 of their entries. 27 reduce fees for every entry that mentions a meeting or conference, 28 arguing that the conferencing was “excessive” and “clearly a 26 However, the NCAA seeks to 1 result of plaintiffs’ counsel’s inefficient decision to staff this 2 case with nearly 400 individuals from 33 firms.” 3 at 21. 4 specifically discussing only thirty-one of the 9,799 entries and 5 Magistrate Judge Cousins’ order for discussing only one of the 6 entries. 7 discussion of those instances as examples, rather than a 8 comprehensive itemization of the issue. Docket No. 415 The NCAA also faults Plaintiffs’ opposition for However, as discussed above, the Court interprets the Moreover, the NCAA itself makes only the most general 10 United States District Court For the Northern District of California 9 objection to these nearly 10,000 entries, without discussing any 11 specific entries. 12 motion for de novo review, the NCAA identifies 104 entries “for 13 conferencing” over the course of one work-week in April 2012. 14 NCAA does not explain its objections to these entries. 15 documented in those entries ranges from deposition preparation, 16 propounding discovery, planning for Plaintiffs’ motion for class 17 certification, reviewing discovery and discussing potential 18 experts. 19 litigation, the Court finds that the entries identified in the 20 NCAA’s declaration are reasonable. 21 nearly 10,000 entries the NCAA identifies as “conferencing 22 entries” reveals reasonable discussion among attorneys and legal 23 staff regarding case strategy and the work necessary to pursue 24 their clients’ claims. 25 “conferencing entries” also include many entries that do not 26 include any conferencing among Plaintiffs’ counsel at all. 27 e.g., Docket No. 354-29 at 365 (two hours claimed on August 20, 28 2013: “review defendants reply briefs on motion to strike and In the declaration filed in support of its The The work Given the busy time in the case and the scope of the Similarly, review of the The Court notes that the NCAA’s claimed 27 See, 1 motions for leave to file MTD”); id. at 439 (one hour claimed on 2 May 14, 2014: “Conference call with court regarding pre trial 3 issues); id. at 457 (4.70 hours claimed on June 23, 2014: “Review 4 trial transcript, court rulings, and misc. correspondence with 5 defense counsel”). 6 The NCAA next challenges 1,758 entries as “excessive and 7 duplicative.” 8 objection, that multiple timekeepers independently circulated each 9 ECF notice. However, the NCAA makes only one specific The Court finds that, when multiple law firms are United States District Court For the Northern District of California 10 working on a case, it is reasonable for someone at each firm to 11 monitor and circulate ECF notices. 12 that each firm would keep its own case file. 13 entries include many other types of entries, none of which are 14 unreasonable. 15 Plaintiffs spent excessive time preparing for depositions or 16 summarizing depositions or hearings. 17 entries related to the preparation for the June 2012 deposition of 18 Greg Shaheen. 19 reasonable amount of work to prepare for the deposition of an 20 executive at the NCAA. 21 spent preparing for other depositions, or summarizing depositions 22 or hearings, the Court has reviewed the challenged entries and 23 finds that the NCAA has not carried its burden of rebuttal. 24 Moreover, it is reasonable The challenged The NCAA also makes a broad argument that The NCAA points out time The Court finds that the entries identified claim a To the extent the NCAA challenges time The NCAA makes similar broad assertions when challenging 750 25 entries it asserts are for preparing and filing “copycat” 26 complaints, which the NCAA asserts “added nothing to the 27 litigation,” and 3,996 entries it identifies as “churning” that 28 “did nothing to advance the litigation.” 28 Docket No. 415 at 21. 1 The Court notes that, as with every other list of challenged 2 entries, the NCAA has included many entries that do not even 3 arguably fit into the category challenged. 4 has reviewed the challenged entries and finds that they are not 5 unreasonable. 6 with respect to these entries. 7 Moreover, the Court The NCAA has not carried its burden of rebuttal Finally, the NCAA identifies 960 entries that are for 8 timekeepers who the NCAA argues only billed for training or 9 reviewing case materials rather than contributing to the case. United States District Court For the Northern District of California 10 However, the challenged entries include conducting legal research, 11 meeting with clients, and drafting motions. 12 354-38 at 3 (1.70 hours claimed on October 26, 2009: “Draft 13 administrative motion to relate cases”); id. at 27 (one hour 14 claimed on May 15, 2014: “Conference call with court regarding pre 15 trial issues”). 16 See, e.g., Docket No. The NCAA has not met its burden of rebuttal with respect to 17 its staffing decision arguments. 18 objection is overruled. Accordingly, its sixteenth 19 Q. 20 The NCAA argues that Magistrate Judge Cousins erred when he Negative Multiplier (Objection No. 17) 21 declined to apply a negative multiplier to Plaintiffs’ fee 22 request. 23 appropriate in light of Plaintiffs’ limited success in this case. 24 However, as discussed above, the Court finds that the excellent 25 results achieved by Plaintiffs entitles them to their full fee, 26 with only minimal specific reductions, in this case. 27 seventeenth objection is overruled. The NCAA argues that a negative multiplier is 28 29 The NCAA’s 1 R. 2 The NCAA argues that Magistrate Judge Cousins erred when he Copying and Printing Costs (Objection No. 18) 3 allowed Plaintiffs to recover $143,542.49 for copying and printing 4 costs. 5 Plaintiffs’ records “identify only the firm name, the date, a non- 6 substantive description (e.g. “Photocopying Expense”), and the 7 amount spent.” 8 law requires that a party seeking copying and printing costs 9 provide records with “sufficient detail to show the reasons the In his order, Magistrate Judge Cousins acknowledged that Docket No. 405 at 24. The NCAA argues that case United States District Court For the Northern District of California 10 copies were necessary.” 11 in the cases cited by the NCAA found that the documentation was 12 insufficient in those cases, Magistrate Judge Cousins found that 13 Plaintiffs’ documentation and explanation were sufficient in the 14 context of this case. 15 submitted by Plaintiffs and finds that the copying and printing 16 costs claimed by Plaintiffs are reasonable in the context of the 17 litigation. 18 recover reasonable costs that would ordinarily be paid by a paying 19 client. While the magistrate and district judges The Court has reviewed the records As the NCAA concedes, Plaintiffs are entitled to 20 Accordingly, the NCAA’s eighteenth objection is overruled. 21 S. 22 The NCAA next contends that Magistrate Judge Cousins Long-Distance Travel Expenses (Objection No. 19) 23 erroneously concluded that Plaintiffs were entitled to 24 compensation for long distance travel. 25 there is a rule that a party seeking reimbursement of travel 26 expenses must provide the dates, description and cost for each 27 item claimed. 28 from a single judge in this district, directing counsel in that The NCAA asserts that However, the NCAA bases this assertion on an order 30 1 case to submit more detailed records in support of their motion 2 for fees and costs. 3 Sky Bell Asset Mgmt., LLC, 2012 WL 3257799 (N.D. Cal.)). 4 Court finds that the records submitted by Plaintiffs are 5 sufficient to meet their burden of production. 6 provided no argument or evidence that the entries are unreasonable 7 to carry its burden of rebuttal. 8 9 See Docket No. 415 at 24 (citing Tuttle v. The The NCAA has The NCAA also argues that other claimed expenses were excessive. As with other objections, the NCAA fails to argue with United States District Court For the Northern District of California 10 specificity why any single entry represents an excessive claim. 11 Instead, the NCAA attaches a declaration to its motion, which 12 identifies ten entries as examples of purportedly excessive travel 13 expenses. 14 the most egregious examples. 15 expenses related to a trip from Minneapolis to Washington, D.C. 16 The costs in these entries and in the others identified by the 17 NCAA are not patently excessive and the NCAA has provided no basis 18 for finding that they are excessive in this case. The Court assumes that the NCAA believes that these are Each of those entries contains 19 The NCAA’s nineteenth objection is overruled. 20 T. 21 The NCAA seeks a reduction of $173,629.51 in costs claimed Legal Research Expenses (Objection No. 20) 22 for legal research database access, internet access while 23 traveling and PACER and other online court record database fees. 24 The NCAA argues that Plaintiffs are required to provide 25 information about the amount of time spent performing legal 26 research or a description of the tasks requiring legal research to 27 support their claim for legal research costs. 28 simply cites cases in which courts found, in the context of those 31 Again, the NCAA 1 cases, that the plaintiffs failed to provide sufficient evidence. 2 Given the scope of this case and the number of motions filed, the 3 Court finds that the legal research costs claimed are reasonable. 4 The NCAA’s twentieth objection is overruled. 5 U. 6 Finally, the NCAA objects to $56,750.03 in expenses it claims Description of Expenses (Objection No. 21) 7 are inadequately identified. 8 objections, the NCAA makes a broad assertion that the entries 9 listed in the five-page exhibit are too vague to establish that As with many of its other United States District Court For the Northern District of California 10 they are reasonable but does not provide argument specific to any 11 of those entries. 12 provide sufficient description to determine that the expenses are 13 for purchasing video games and books for factual research for the 14 case or NCAA programs to be used as exhibits for trial. 15 entries are for compensable travel expenses such as airport 16 baggage carts or internet access fees on airplanes. 17 entries are for room rentals for depositions or deposition 18 transcripts which are also expenses that could reasonably be 19 charged to a paying client. Review of the entries shows that many of them Other Still other 20 However, other entries are not clearly reasonable. 21 example, there are multiple entries under the “Investigation 22 Hours” category that have only “Kenny Byrd” as the description. 23 It is not clear if Kenny Byrd is the investigator being paid or 24 the subject of the investigation. 25 any such investigation is reasonably related to the litigation. 26 Similarly, there are entries for items that appear to be office 27 supplies, which are overhead that should not ordinarily be billed 28 to a client. For Moreover, it is not clear that See Missouri v. Jenkins, 491 U.S. 274, 296 (1989) 32 1 (“[A] prudent attorney customarily includes . . . office overhead 2 . . . in his own hourly billing rate.”). 3 entries for “phone/fax” and for a supply shelf for storage. 4 Accordingly, the Court will sustain in part the NCAA’s twenty- 5 first objection and will reduce by ten percent, or $5,675, the 6 costs identified by the NCAA as vague. 7 CONCLUSION 8 For the reasons stated above, the Court GRANTS the NCAA’s 9 For example, there are motion for de novo review of Magistrate Judge Cousins’ fee order United States District Court For the Northern District of California 10 and adopts the fee order in part. 11 orders the following reductions in addition to the reductions 12 ordered by Magistrate Judge Cousins. 13 reduce Plaintiffs’ attorneys’ fees by $3,628,610.15, to 14 $40,794,245.89, and will further reduce Plaintiffs’ costs by 15 $5,675.00, to $1,540,195.58. Docket No. 415. The Court The Court will further 16 The NCAA’s motions to file under seal portions of the 17 declaration and amended declaration of Paul Bateman are GRANTED 18 because the redacted portions contain time-detail information 19 protected by the attorney-client privilege or work-product 20 doctrine that Magistrate Judge Cousins previously ordered to be 21 filed under seal. 22 Docket Nos. 416, 420, 425. IT IS SO ORDERED. 23 24 25 Dated: March 31, 2016 CLAUDIA WILKEN United States District Judge 26 27 28 33
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