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COOLEY LLP MICHAEL G. RHODES (116127) (rhodesmg@cooley.com) MATTHEW D. BROWN (196972) (brownmd@cooley.com) 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 Attorneys for Defendant FACEBOOK, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

ROBYN COHEN, SHANNON STOLLER, CHRISTOPHER MARSHALL, BRYAN SIGLOCK, and DEBRA LEWIN, individually and on behalf of others similarly situated, Plaintiffs, v. FACEBOOK, INC., a Delaware corporation, Defendant.

Case No. 10-cv-05282-RS FACEBOOK, INC.S MOTION FOR ATTORNEYS FEES AND COSTS Date: Time: Courtroom: Judge: December 15, 2011 1:30 p.m. 3 Hon. Richard Seeborg

FACEBOOKS MOTION FOR ATTORNEYS FEES AND COSTS NO. 10-CV-05282-RS

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TABLE OF CONTENTS Page I. II. INTRODUCTION .............................................................................................................. 1 RELEVANT FACTUAL AND PROCEDURAL HISTORY............................................. 2 A. Plaintiffs Allegations Against Facebook ............................................................... 2 B. Facebooks Attorneys.............................................................................................. 3 C. Cooleys Work on this Matter................................................................................. 3 1. Facebooks Motions to Dismiss .................................................................. 4 2. Discovery .................................................................................................... 5 a. Discovery Requests......................................................................... 5 b. Plaintiffs Motion to Compel and for Sanctions; Facebooks Motion to Stay Discovery ............................................................... 6 c. Document Collection, Review and Production............................... 6 FACEBOOKS FEE REQUEST ........................................................................................ 7 DISCUSSION ................................................................................................................... 12 A. Facebook Is Entitled to Attorneys Fees ............................................................... 12 B. Facebooks Fee Request Is Reasonable ................................................................ 15 1. Facebook Seeks Compensation for Reasonable Hours Spent Defending Itself......................................................................................... 16 2. Facebook Seeks Compensation at Reasonable Hourly Rates ................... 17 3. Facebook May Also Seek Reasonable Fees for Online Legal Research .................................................................................................... 19 4. The Total Fee Award Sought Is Reasonable............................................. 20 C. Facebook Seeks Costs in the Concurrently-Filed Bill of Costs ............................ 21 CONCLUSION ................................................................................................................. 22

III. IV.

V.

i.

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TABLE OF AUTHORITIES Page(s) 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

ii.

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TABLE OF AUTHORITIES (continued) Page(s) Hogar v. Cmty. Dev. Commn 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. Commn, 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

iii.

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TABLE OF AUTHORITIES (continued) Page(s) 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

iv.

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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. Facebooks 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 RELIEF 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 Facebooks 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 1.
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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.) Facebooks claimed fees are entirely appropriate for almost 12 months of work on this litigation. Second, Facebooks fees are reasonable considering the results achieved by counseldismissal with prejudice of all claimsand taking into account the complexity of the case and the quality of Facebooks presentation to the Court. Third, the hourly rates of Facebooks 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. RELEVANT 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 members1 names and/or likenesses without consent or compensation in connection with Facebooks 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 Facebooks display of users names and/or likenesses violated their common law and statutory publicity rights (Section 3344), the UCL, andin the original Complaintthe Lanham

Plaintiffs proposed class included: All Facebook users whose names, photographs or digital images and/or likenesses have been used without consent or compensation on Facebook.com for the purpose of advertising Facebooks Friend Finder service, commencing November 22, 2006 and continuing through the date of certification of this Class Action. (FAC 44.) 2.
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Act. As discussed below, the Court twice rejected Plaintiffs claims and ultimately dismissed the FAC with prejudice. B. Facebooks 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 Facebooks 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, Cooleys 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. Cooleys 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 3.
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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 Facebooks profits from its unlawful activity, and their fees and costs. (FAC at 24; Compl. at 18.) 1. Facebooks Motions to Dismiss

Plaintiffs brought claims under the common law and statutory rights of publicityclaims 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. Facebooks 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 Facebooks 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 Courts 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, 4.
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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, Facebooks counsel proposedbut Plaintiffs counsel refusedbifurcation of discovery between class and merits discovery. (Brown Decl. 10.) As a result, Facebooks counsel expended a significant amount of time and effort to respond to Plaintiffs discovery efforts. (Id.) Had Facebooks 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 5.
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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; Facebooks Motion 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, 2011the day after filing their First Amended ComplaintPlaintiffs 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 agreementfinalized on August 18, 2011to 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 6.
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the set of documents to be reviewed. Thereafter, as a part of stages one and two of the agreedupon discovery plan, Cooley attorneys, along with contract attorneys, reviewed over 6,000 documents for responsiveness to Plaintiffs requests. Cooley began producing responsive, nonprivileged documents in accordance with Facebooks 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 Facebooks 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. FACEBOOKS FEE REQUEST 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 Facebooks attorneys to defend a class action lawsuit seeking potentially over $500 million in damages and other significant relief. Cooleys time recordswithout text narrativeare attached as Exhibit G to the Brown Declaration.2 Furthermore, Facebook provides the following tables summarizing the time expended on this litigation. The hours Cooleys attorneys and other timekeepers expended in this matter, with the corresponding fee totals, are shown in Table 1 (see Brown Decl. 22):

Pursuant to Civil Local Rule 54-5(b)(2), Facebook has included a summary of the services rendered but has not included Cooleys 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 time records for inspection or in camera review (with appropriate, limited redactions for privilege). 7.
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Timekeeper Name Matthew D. Brown Benjamin H. Kleine Kelly A. Cooke Megan L. Donohue Raimondo A. Sardo Jeffrey M. Gutkin Kelly M. Murata Candace Jackman Michael G. Rhodes Jeannine A.R. Douglas James B. McArthur Steven M. Roberts

Table 1 Time Expended by Cooley LLP December 2010 through September 2011 Title Hours Hourly Rate Partner 3.5 $600 263.6 $630 Associate 6.6 $500 282.5 $580 Associate 314.3 $425 Associate 35.1 $305 166.4 $375 Associate 94.3 $525 Partner 30.1 $615 Senior Paralegal 39.6 $265 Associate 23.2 $375 Partner 5.9 $930 Paralegal Specialist $285 11.2 7.7 14.7 8.1 5 4.7 4.3 3.5 3 1327.3 $375 $195 $240 $235 $235 $200 $225 $205

Total $3,300.00 $166,068.00 $2,100.00 $163,850.00 $133,577.50 $10,705.50 $62,400.00 $49,507.50 $18,511.50 $10,494.00 $8,700.00 $5,487.00 $3,192.00 $2,887.50 $2,866.50 $1,944.00 $1175.00 $1104.50 $860.00 $787.50 $615.00 $650,133.00

Associate Litigation Support Systems Analyst Robert M. Conlon Senior Paralegal Richard A. Nieva Senior Paralegal Brian V. Zayas Senior E-Discovery Project Manager Claire M. Cochran Paralegal Michelle J. Hittle Senior Paralegal Lori D. Ramsey Senior Litigation Support Analyst Sub-Total for all Timekeepers:

Table 2 breaks down these fees by month, with a description of the primary work performed that month3 (see Brown Decl. 23): Table 2 Cooleys Work Performed by Month December 2010 through September 2011 Work Performed Review complaint; research claims; draft motion to dismiss Research, draft and file motion to dismiss Review and analyze opposition to motion to dismiss; prepare for and engage in Rule 26(f) Conference; draft and file reply in support of motion to dismiss; prepare Case Management Statement; work on initial disclosures; prepare for motion to dismiss hearing Prepare and serve initial disclosures; prepare for and

Month December 2010 January 2011 February 2011

Fees $16,105.50 $31,014.50 $91,935.50

March 2011
3

$26,163.50

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 case management issues. These are not reflected in the summary of work performed on Table 2. 8.
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April 2011 May 2011 June 2011

July 2011

August 2011

September 2011

Total:

present oral argument at hearing on motion to dismiss Analyze and work on responses to discovery requests Analyze discovery requests and prepare responses; prepare draft protective order to govern confidential documents and information disclosed during discovery Respond to discovery requests; meet and confer with Plaintiffs counsel regarding discovery; revise draft protective order to govern confidential documents and information disclosed during discovery, and meet and confer with Plaintiffs counsel regarding same; prepare and serve affirmative discovery requests to Plaintiffs; analyze order granting motion to dismiss Formulate strategy in light of order granting motion to dismiss; meet and confer with Plaintiffs counsel regarding discovery; analyze First Amended Complaint; research, prepare, and file motion for protective order to temporarily stay discovery; research and prepare an opposition to Plaintiffs motion to compel and motion for sanctions; prepare motion to dismiss First Amended Complaint Work on reply in support of motion for protective order to temporarily stay discovery; negotiate with Plaintiffs counsel regarding staged discovery; prepare and file administrative motion regarding scheduling; work with client to identify and collect documents and identify custodians for agreed-upon discovery; research and draft reply in support of motion to dismiss 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 regarding discovery; document agreement concerning suspension of discovery; research law on attorneys fees

$7656.00 $12,279.00 $89,995.00

$138,837.00

$111,437.50

$124,709.50

$650,133.00

Table 3 shows the time expended by timekeeper, broken down by month (see Brown Decl. 25):

9.

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Table 3 Cooleys Time Spent by Timekeeper by Month December 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 Cooleys direction and under Cooleys 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 Cooleys standard first-year associate rates ($320/hour) (Id. 27), this review would have resulted in Cooley fees of $30,272. Facebooks attorneys total fees for the case prior to preparation of the motion for attorneys fees therefore consist of $655,146.80 ($650,133 for Cooleys 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 Cooleys 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 10.
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devoted to ongoing case activities as well as analysis of the Courts 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 Motion October 2011 November 2011 Timekeeper Name Title Hourly Rate Hours Matthew D. Brown Partner $630/hr 10 Benjamin H. Kleine Associate $580/hr 18 Katie M. Krajeck Associate $475/hr 20 James B. McArthur Associate $375/hr 20 Erik Kruger Paralegal $210/hr 4 Total 72

Total $6,300 $10,440 $9,500 $7,500 $840 $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 not included 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 any such opposition, further briefing, or other arguments or actions taken by counsel with respect to the 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 attorney fees incurred at trial necessarily includes attorney fees incurred on appeal unless the statute specifically 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 with collecting upon the award. See Ketchum v. Moses, 24 Cal. 4th 1122, 1141 n.6 (2001) (fees expended in collecting a judgment, including an attorney fee award, are properly included in a fee award). 11.
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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. Commn, 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. Facebooks 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 attorneys 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.) 12.
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costs to defendants for their defense of claims brought under Section 3344), affd 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 Facebooks 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 plaintiffs 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 attorneys 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 13.
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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 Plaintiffs identity in the manner averred above).) In its opposition to Facebooks 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 Plaintiffs identity in the manner averred above).) Similarly, the Courts 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 Facebooks 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 Facebooks 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 Facebooks defense to Plaintiffs Lanham Act claim was related if not identical to its defense to Plaintiffs 14.
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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 claimslack 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. Facebooks 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 any fees 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 chilling effect on the willingness of plaintiffs to bring class action suits, this effect easily may be outweighed by the potential recovery. All potential litigants must weigh costs of suit against likelihood of success and possible recovery before deciding to file suit. Those who choose to take the risks of litigation should be the ones who bear the cost when they are unsuccessful, not those who 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 to opt-out should be liable for fees and costs is when the class prevails and the class members accept the benefit of a common fund recovery.) (emphasis in original). 15.
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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 Defending Itself

Under the lodestar method, a prevailing party is presumptively entitled to compensation for 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. Commn 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, Cooleys 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 attorneys and other professionals to defend this litigation. (Brown Decl. 21.) 16.
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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 Facebooks 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 Cooleys 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 Facebooks 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 partys 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). Facebooks counsels rates satisfy these criteria. Cooley is a prominent national law firm. 17.
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(Brown Decl. 30.) Mr. Rhodes is chair of Cooleys litigation department and was named one of The Daily Journals 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. Rhodess 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. Browns 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. Donohues 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.) Cooleys 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 LLPall national law firms with significant presences in Northern Californiais $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.) 18.
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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 $495500/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 LLPa national law firm based in San Franciscostated that its 2011 billing rates ranged from $635 to $1,075/hour for partners, $335660/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 LLPa national law firm based in San Franciscoof $600-645/hour, $505-$530/hour, and $330-430/hour, respectively, were reasonable for the San Francisco legal community. Facebook thus submits that Cooleys 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,

The hourly rate charged by Black Letter Legalthe contract attorney firm employed by Facebook to conduct first-pass document reviewof $53/hour is similar to the rates charged by other firms in Northern California. (Brown Decl. 27.) 19.
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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

Facebooks 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 attorneys 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. Cooleys fees thus represent less than 0.15% of the minimum damages Plaintiffs sought in this actionand 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, Cooleys fees are also reasonable considering the nature of the litigation, a putative class action alleging commercial misappropriation of millions of users names and/or 20.
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likenesses in connection with the Facebook servicea 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, Cooleys fees are reasonable in light of the success ultimately achieveda complete dismissal of all claims with prejudiceand the quality of the papers submitted and lawyering employed. See Church of Scientology, 42 Cal. App. 4th at 659 (listing the success of the attorneys 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 Cooleys, 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, Plaintiffs 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 Facebooks 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
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Civil Code 3344 expressly provides that the prevailing party in an action under that 21.

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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 attorneys 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

As discussed above, charges for WestLaw and LEXIS databases are treated as attorneys fees rather than costs under the case law. (Supra Section IV.B.3.) 22.
FACEBOOKS MOTION FOR ATTORNEYS FEES AND COSTS NO. 10-CV-05282-RS