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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 AMPHASTAR PHARMACEUTICALS 11 Case No. 5:09-cv-00023-SHK INC., 12 Plaintiff,

13 OPINION AND ORDER v. 14 AVENTIS PHARMA S.A., et al., 15 Defendants. 16 17 18 Defendants Aventis Pharma S.A., Aventis Pharmaceuticals, Inc., and Sanofi- 19 Aventis S.A. (collectively “Defendants”) filed their Supplemental Submission 20 Pursuant to the Court’s November 13, 2020 Fee Amount Order (“Submission” or 21 “Sub.”) against Plaintiff Amphastar Pharmaceuticals, Inc. (“Plaintiff”). Electronic 22 Case Filing Number (“ECF No.”) 634, Sub. Pursuant to

(c), the 23 parties have consented to the jurisdiction of the undersigned United States 24 Magistrate Judge. See ECF No. 607, Statement of Consent to Proceed before a 25 United States Magistrate Judge (“Consent Statement”). For the reasons discussed 26 below, the Court GRANTS Defendants’ Submission in part. 27 / / / 1 I. BACKGROUND 2 The procedural history of this case, which the parties are familiar with, is 3 lengthy. As such, the Court discusses only the procedural history relevant to the 4 instant Submission. 5 On July 14, 2017, Defendants applied for attorney fees and expenses under 6 31 U.S.C. 3730(d)(4)1 (“Previous Fee Application”). ECF No. 519, Previous Fee 7 Application. On November 20, 2017, the previously assigned United States 8 District Judge granted Defendants’ Previous Fee Application (“Order Granting 9 Previous Fee Application”) and ordered “Plaintiff-Relator, Amphastar 10 Pharmaceuticals Inc. [to] pay Defendants their reasonable attorneys’ fees and 11 expenses from the date the Complaint was unsealed to the final disposition of this 12 case.”2 ECF No. 541, Order Granting Previous Fee Application at 2, 22. The 13 Court noted that it would, “by separate Order, refer the matter to a magistrate 14 Judge to conduct such proceedings as may be necessary to provide a report and 15 recommendation [(“R&R”)] regarding the amount of the award to be made.”

at 16 23. 17 On November 21, 2017, the United States District Judge referred the matter 18 to the undersigned United States Magistrate Judge to provide an R&R “regarding 19 20 21 1 The Court observes that Defendants originally applied for attorneys’ fees and costs on July 27, 22 2015, after the previously assigned United States District Judge, on July 13, 2015, dismissed the 23 case for “lack of jurisdiction, with costs pursuant to 28 U.S.C. § 1919” but “retain[ed] jurisdiction to address matters, including the imposition of sanctions, in regard to the conduct of 24 Plaintiff’s counsel.” See ECF No. 379, Judgment Order; ECF No. 385, Application to the Clerk to Tax Costs Against Plaintiff; ECF No. 386, Request for Attorneys’ Fees. Defendants stated 25 that they filed their Request for Attorneys’ Fees at that time “to ensure that the issue of Defendants’ entitlement to attorneys’ fees [wa]s properly preserved.” ECF No. 386, Request for 26 Attorneys’ Fees at 2 (citing Local Rule (“L.R.”) 54-10). 27 2 The Court observes that “[o]n October 28, 2011, the Complaint was unsealed, and Amphastar 1 the amount of the award to be made.”3 ECF No. 543, Notice of Referral of Matter 2 to the Magistrate Judge at 1. 3 On August 7, 2018, Defendants filed their Application for Fees And 4 Expenses (“Application”) and, on May 21, 2019, the parties filed a Joint 5 Stipulation and Application for Order Re Non-Fee Expenses (“Expense 6 Stipulation” or “Expense Stip.”), which the Court granted the same day (“Order 7 Granting Expense Stip.” or “Order Granting the Expense Stipulation”). EFC No. 8 559, Application; ECF No. 620, Expense Stip.; ECF No. 621, Order Granting 9 Expense Stip. In the Court’s Order Granting the Expense Stipulation, the Court 10 observed that the parties “filed a joint stipulation stating that $672,086.85 is a 11 reasonable amount of Aventis’s non-fee expenses from the unsealing of the 12 complaint through April 30, 2018, in addition to the taxable costs previously paid 13 by Amphastar and that this amount is adequately supported by documentation 14 provided during discovery.” ECF No. 21, Order Granting Expense Stip. at 2. The 15 Court “accept[ed] the Parties’ stipulation” and stated that it would “incorporate this 16 amount in its forthcoming order on the amount of fees and expenses to be paid by 17 Amphastar to Aventis.” Id. 18 After Defendants’ Application was fully briefed, on November 13, 2020, the 19 undersigned United States Magistrate Judge granted Defendants’ Application in 20 part. ECF No. 626, Opinion and Order (“Fee Order”). Specifically, the Court 21 awarded Defendants: 22 1) $672,086.85 for non-fee expenses pursuant to the parties’ Expense 23 Stipulation and the Court’s Order Granting the Expense Stipulation; 24 2) $12,132,526.34 in attorneys’ fees; and 25 26 3 As discussed above, Pursuant to

(c), the parties have consented to the 27 jurisdiction of the undersigned United States Magistrate Judge. See ECF No. 607, Consent 1 3) “interest at the prime rate on Aventis’s claimed fee expenses” and 2 ordered Defendants to “provide fresh calculations to the Court[] . . . 3 demonstrating the interest amount due to Defendants through the date of 4 the Order based on the prime rate.” 5

. The Court also instructed that it would “award Defendants a delay-in- 6 payment-adjustment by separate order after Defendants submit the aforementioned 7 fresh calculations.”

8 On December 14, 2020, Defendants filed their instant Submission, which 9 contained fresh interest calculations, as well as a proposed delay-in-payment- 10 adjustment amount. ECF No. 634, Submission. Defendants also submitted the 11 Declarations of Mark A. Perry (“Perry Declaration” or “Perry Decl.”) and David 12 A. Schnitzer (“Schnitzer Declaration” or “Schnitzer Decl.”) in support of their 13 Submission. ECF No. 635, Perry Decl.; ECF No. 636, Schnitzer Decl. 14 On January 12, 2021, Plaintiff filed a Response in opposition to Defendants’ 15 Submission (“Response”) and the Declaration of Evan C. Borges (“Borges 16 Declaration” or “Borges Decl.”) in support of Plaintiff’s Response. ECF No. 642, 17 Response; ECF No. 643, Borges Decl. 18 On January 19, 2021, Defendants filed a Reply in support of their 19 Submission (“Reply”) and the Supplemental Declarations of Mark A. Perry (“Perry 20 Supplemental Declaration” or “Perry Supp. Decl.”) and David A. Schnitzer 21 (“Schnitzer Supplemental Declaration” or “Schnitzer Supp. Decl.”) in support of 22 their Submission. ECF No. 644, Reply; ECF No. 645, Perry Supp. Decl.; ECF No. 23 646, Schnitzer Supp. Decl. 24 The matter stands fully briefed and ready for decision. 25 II. LEGAL STANDARDS 26 “‘Generally, litigants in the United States pay their own attorneys’ fees, 27 regardless of the outcome of the proceedings.’” Camacho v. Bridgeport Fin., Inc., 1 965 (9th Cir. 2003)). “However, in order to encourage private enforcement of the 2 law . . . Congress has legislated that in certain cases prevailing parties may recover 3 their attorneys’ fees from the opposing side. When a statute provides for such fees, 4 it is termed a fee shifting statute.”

(internal quotation marks and alterations 5 omitted). The False Claims Act (“FCA”) is such a statute and provides that: 6 if the Government does not proceed with the action and the person bringing the action conducts the action, the court may award to the 7 defendant its reasonable attorneys’ fees and expenses if the defendant 8 prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought 9 primarily for purposes of harassment. 10

(d)(4). 11 To calculate the amount of fees that is reasonable, the Court must apply a 12 “lodestar” method, multiplying “the number of hours the prevailing party 13 reasonably expended on the litigation by a reasonable hourly rate.” Camacho, 523 14 F.3d at 978 (citation and internal quotation marks omitted). “In determining the 15 appropriate lodestar amount, the district court may exclude from the fee request 16 any hours that are ‘excessive, redundant, or otherwise unnecessary.’” Welch v. 17 Metro. Life Ins. Co.,

(9th Cir. 2007) (quoting Hensley v. 18 Eckerhart,

(1983)). “In rare and exceptional cases, the district 19 court may adjust the lodestar upward or downward using a multiplier based on 20 facts not subsumed in the initial lodestar calculation.” Welch,

21 (citing Van Gerwen v. Mut. Life Co.,

, 1045 (9th Cir. 2000)). “The 22 fee applicant bears the burden of documenting the appropriate hours expended in 23 the litigation and must submit evidence in support of those hours worked.” Welch, 24

(citing Gates v. Deukmejian,

(9th Cir. 1992)). 25 “Generally, when determining a reasonable hourly rate, the relevant 26 community is the forum in which the district court sits.” Camacho, 523 F.3d at 27 979 (citation omitted). “Rates outside the forum may be used if local counsel was 1 unavailable, either because they are unwilling or unable to perform because they 2 lack the degree of experience, expertise, or specialization required to handle 3 properly the case.” Id. (citation and internal quotation marks and alteration 4 omitted). “[T]he established standard when determining a reasonable hourly rate is 5 the rate prevailing in the community for similar work performed by attorneys of 6 comparable skill, experience, and reputation.” Id. (citation and internal quotation 7 marks omitted). 8 “‘To inform and assist the court in the exercise of its discretion, the burden 9 is on the fee applicant to produce satisfactory evidence—in addition to the 10 attorney’s own affidavits—that the requested rates are in line with those prevailing 11 in the community for similar services by lawyers of reasonably comparable skill, 12 experience and reputation.’” Id. at 980 (quoting Blum v. Stetson,

, 13 895 n.11 (1984)). The Ninth Circuit has found that “[a]ffidavits of the plaintiffs’ 14 attorney[s] and other attorneys regarding prevailing fees in the community, and 15 rate determinations in other cases . . . are satisfactory evidence of the prevailing 16 market rate.”

(citation and internal quotation marks omitted). 17 “However, declarations filed by the fee applicant do not conclusively 18 establish the prevailing market rate.”

Rather, “[t]he party opposing the fee 19 application has a burden of rebuttal that requires submission of evidence to the 20 district court challenging the accuracy and reasonableness of the . . . facts asserted 21 by the prevailing party in its submitted affidavits.”

(citation and internal 22 quotation marks omitted). 23 Further, “[t]he district court has discretion to compensate delay in payment 24 in one of two ways: (1) by applying the attorneys’ current rates to all hours billed 25 during the course of the litigation; or (2) by using the attorneys’ historical rates and 26 adding a prime rate enhancement.” In re Washington Pub. Power Supply Sys. Sec.

F.3d 1291, 1305 (9th Cir. 1994) (citation omitted). The Court may not, 1 without a prime rate enhancement,” because doing so “inadequately compensate[s] 2 the firm for the delay in receiving its fees[]” and “[t]he time value of money lost by 3 the firm is only partially recouped.”

Instead, “[f]ull compensation requires 4 charging current rates for all work done during the litigation, or by using historical 5 rates enhanced by an interest factor.”

6 III. DISCUSSION 7 A. Parties’ Arguments 8 1. Defendants’ Submission 9 In their Submission, Defendants seek a grand total of $17,335,811 for work 10 performed “from inception through April 30, 2018[,]” as well as for “work from 11 May 1, 2018 through November 13, 2020.” ECF No. 634, Submission at 2 12 (capitalization normalized). 13 Specifically, for work performed from the inception of the litigation through 14 April 30, 2018, Defendants seek: 15 • $12,212,8224 in fees; 16 • $672,102 in expenses; and 17 • $3,346,131 for “interest due through November 13, 2020 on the fees and 18 expenses awarded for work through April 30, 2018[,]” for a subtotal of 19 $16,231,056. 20

21 / / / 22 23 4 Defendants assert that “the correct amount of the fee award is $12,212,822 (rather than 24 $12,132,526)” because “[t]he Court ordered an 11.176% reduction[,] . . . [h]owever, in 25 converting that percentage to dollars, the Court provided a figure of $12,132,526, which appears to reflect an 11.76% reduction rather than the ordered 11.176% reduction.” ECF No. 634, 26 Submission at 3 (emphasis removed). Plaintiff “does not dispute this correction[,]” “which would result in an increase of $80,296 to the Court’s award[,]” ECF No. 642, Response at 2. 27 The Court agrees to the uncontested proposed adjustment. Consequently, Defendants’ fee award 1 Additionally, for work performed from May 1, 2018 through November 13, 2 2020, Defendants seek: 3 • $936,384 in fees; 4 • $101,258 in expenses; and 5 • $67,149 in interest for a subtotal of $1,104,755. 6

With respect to the $936,384 in fees Defendants seek for work performed from 7 May 1, 2018 through November 13, 2020, Defendants assert that: 8 The 10.176% discount imposed by the Court for block-billing thus does not apply to these more recent periods. Further, only five attorneys 9 worked on the matter at all during this period, and four account for 10 94.8% of the total hours. See

(c). Thus, the 1% discount imposed by the Court for transient billers does not apply to these more recent 11 periods. Nevertheless, and to avoid prolonging this litigation, Aventis 12 agrees that both of these discounts (totaling 11.176%), in addition to the 16% client-side discounts, should be taken so that the reasoning of 13 the Court’s Fee Amount Order applies to all fees awarded in this Court. 14

. 15 2. Plaintiff’s Response 16 Plaintiff raises the following objections to the amounts sought in 17 Defendants’ Submission: 18 First, Plaintiff “disputes the propriety of the application of the prime rate as 19 opposed to the federal pre-judgment interest rate[]” and “provides an alternative 20 calculation of interest based on the pre-judgment interest rate, which would result 21 in a reduction of the interest award to less than $1.5 million. ECF No. 642, 22 Response at 2. Specifically, Plaintiff asserts that “the prime rate enhancement is 23 not appropriate based on the uncontroverted evidence in this case” because “the 24 prime rate remedy is designed to be compensatory, making the party whole for the 25 cost of loss of use of funds.”

. Plaintiff asserts that “[i]n this case, the 26 uncontroverted evidence shows that, during the applicable time period, Aventis 27 was borrowing funds at interest rates of close to 0%[]” and, therefore, “an 1 enhancement based on the prime rate would not be compensatory but rather would 2 provide an improper profit and windfall to Aventis.”

3 Second, Plaintiff “submits that the appropriate time period over which to 4 award pre-judgment interest commences as of November 20, 2017 (when Judge 5 Garbis issued his order finding an entitlement of Aventis to an award of fees and 6 expenses) through the date of entry of judgment in this matter.”

Plaintiff 7 asserts that “[u]nder this calculation, the total interest award would be less than 8 $750,000.”

. Plaintiff also “requests that the Court exercise its discretion 9 to remove th[e] time period” when “this matter was under submission between 10 May 2019 and November 2020[] . . . from the period from which the interest award 11 is being applied,” because Plaintiff “should not pay an economic penalty due to 12 disruptions in the operation of the court system during the COVID-19 pandemic 13 and related shut-downs.”

at 6 n.1. 14 Third, Plaintiff asserts that Defendants seek “a blended hourly rate of $859” 15 for fees “incurred in bringing the underlying fee application that is the subject of 16 the Order[,] . . . which is higher than the $578 blended rate found to be reasonable 17 in the Order.”

. Plaintiff asserts that “[e]ven after the application of the 18 discounts conceded by Aventis, however, the [Submission] seeks a fee award 19 based on a blended hourly rate of $641.”

. Plaintiff argues that Defendants 20 do “not present any evidence to support its blended hourly rate of $641 per hour, as 21 compared to the blended rate of $578 that the Court, in its Order, found to be 22 reasonable.”

. Moreover, Plaintiff adds that “unlike the underlying fee 23 application, the [Submission] contains no evidence of the amounts, if any, of the 24 fees at issue that have been actually paid by Aventis[,]” which is problematic 25 because “the Court based its approval of a $578 blended hourly rate, in large part, 26 on the amount of fees that Aventis actually paid, after application of a 16% 27 discount negotiated between Aventis and its counsel.”

(emphasis removed and 1 Plaintiff concludes that based on the foregoing, “the maximum fees that can 2 be awarded are $811,072.97[,]” plus “costs of $101,258[,]” which “would result in 3 a total maximum additional award to Aventis of $912,330.97.”

. 4 3. Defendants’ Reply 5 Defendants reply that “[t]he only issue properly before the Court is a trivial 6 disagreement over the blended hourly rate for the supplemental period.” ECF No. 7 644, Reply at 2. Defendants assert that under Plaintiff’s “methodology, the award 8 for that period would be $1,104,755 with interest; whereas under Amphastar’s 9 methodology, it would be $972,648 with interest[,]” which “is a difference of just 10 $132,107.”

Defendants state that “[t]o put an end to this long-running 11 litigation, Aventis will simply accept Amphastar’s figure even though we do not 12 agree with it[]” and, therefore, “the Court should enter a final award in the amount 13 of $17,203,703, calculated as follows[.]”

14 For work performed from the inception of the litigation through April 30, 15 2018, Defendants seek: 16 • $12,212,822 in fees; 17 • $672,102 in expenses; and 18 • $3,346,131 for “interest due through November 13, 2020 on the fees and 19 expenses awarded for work through April 30, 2018[,]” for a subtotal of 20 $16,231,056. 21

22 Additionally, for work performed from May 1, 2018 through November 13, 23 2020, Defendants seek: 24 • $811,056 in fees; 25 • $101,258 in expenses; and 26 • $60,333 in interest for a subtotal of $972,648 and a grand total of 27 $17,203,703. 1 In support of the amounts requested above, Defendants first argue that “the 2 Court should reject [Plaintiff’s] effort to relitigate the Court’s award of prime 3 interest rate.”

(capitalization normalized). Defendants argue that Plaintiff 4 “does not dispute the accuracy of th[e] calculations” it submitted to the Court in its 5 Submission, and “[i]nstead, [Plaintiff] inappropriately attempts to relitigate the 6 Court’s finding that Aventis is entitled to prime rate interest.”

(emphasis 7 removed). Defendants assert that “[t]his is a question the parties briefed and 8 argued at the hearing—and that the Court considered and decided against 9 [Plaintiff].”

(citations omitted). Defendants add that Plaintiff “has filed what 10 amounts to a motion for reconsideration of the Court’s ruling, yet it has not even 11 tried to meet the standards for such a motion.”

(citation omitted). 12 Second, Defendants argue that the Court should reject Plaintiff’s argument 13 “that any interest should only start on the date of the Fee Entitlement Order in 14 2017, rather than as the fees and expenses were incurred.”

(citation 15 omitted). Defendants assert that “[i]n addition to being substantively incompatible 16 with the analysis in the Fee Amount Award, Amphastar waived these arguments by 17 not raising them in its original opposition to Aventis’s 2018 fee application.”

(citation omitted). Defendant argues that “[t]he Court has resolved the question of 19 the rate and starting point for interest, and there is no basis for revisiting those 20 issues at this late date.”

. 21 Third, with respect to the award from May 1, 2018 through November 13, 22 2020, Defendants argue that Plaintiff “does not dispute that Aventis’s counsel 23 reasonably worked 1461.1 hours on this matter during the supplemental period of 24 May 1, 2018 through November 13, 2020, or that Aventis’s claim of $101,258 in 25 expenses for that period is reasonable.”

Defendants add that “as with the main 26 award, Amphastar does not dispute Aventis’s calculation amount of interest for the 27 supplemental period” and, instead, Plaintiff “tries only to relitigate the previous 1 removed). Defendants also add that “Amphastar disputes the reasonable hourly 2 rate for the supplemental period, a disagreement with a value of $132, 107” but 3 that “[g]iven the small amount involved, [Defendants] simply accepts the lower 4 rate to advance these proceedings toward final resolution, even though Amphastar 5 is wrong.”

6 B. Analysis 7 Here, the Court separates the two categories of fee awards Defendants seek 8 and discusses each category below. 9 1. Award For Work Performed From October 28, 2011 10 Through April 30, 2018. 11 As noted previously, for work performed from the unsealing of the 12 Complaint on October 28, 2011 through April 30, 2018, the date the parties 13 stipulated to Defendants’ expense through, Defendants seek: 14 • $12,212,822 in fees; 15 • $672,102 in expenses; and 16 • $3,346,131 for “interest due through November 13, 2020 on the fees and 17 expenses awarded for work through April 30, 2018[,]” for a subtotal of 18 $16,231,056. 19 ECF No. 634, Submission at 2; ECF No. 644, Reply at 2. 20 As also noted previously, Plaintiff does not challenge the expenses for this 21 time period. See ECF No. 620, Expense Stip.; ECF No. 621, Order Granting 22 Expense Stip.; ECF No. 642, Response at 2. Consequently, the Court awards 23 Defendants $12,212,822 in fees and $672,102 in expenses for work performed 24 from the inception of the litigation through April 30, 2018. 25 Here, Plaintiff challenges only the amount Defendants seek in interest for 26 this time period. Specifically, Plaintiff takes issue with Defendants being awarded 27 interest: (1) at the prime rate; (2) commencing before November 20, 2017 when 1 Defendants were entitled to an award of fees and expenses; and (3) after the matter 2 was under submission beginning in May 2019. ECF No. 642, Response at 2-4, 6 3 n.1. The Court is not persuaded by Plaintiff’s arguments. 4 First, with respect to Plaintiff’s argument that interest should be awarded at a 5 rate other than the prime rate, this issue has already been argued by the parties and 6 decided by the Court in the Fee Order. See ECF No. 626, Fee Order at 56-61. 7 Specifically, the Court found that “awarding Defendants interest based on the 8 prime rate is appropriate here because doing so will adequately compensate 9 Defendants for the time value of the money they had tied up in this litigation.”

10 at 60 (emphasis added). Consequently, the Court ordered “Defendants to provide 11 fresh calculations to the Court, within thirty days of this Order, demonstrating the 12 interest amount due to Defendants through the date of the Order based on the 13 prime rate.”

(some emphasis removed). As such, because this issue has 14 already been litigated and decided, the Court declines to relitigate the issue again 15 here and, instead, refers Plaintiff to the Court’s analysis and conclusion in the Fee 16 Order. See

. 17 Second, with respect to Plaintiff’s argument that interest should not apply to 18 the time before November 20, 2017 when the previously assigned United States 19 District Judge found and ordered that Defendants were entitled to an award of fees 20 and expenses, the Court disagrees. Again, this issue has already been argued and 21 decided. As noted above, the previously assigned United States District Judge 22 granted Defendants’ Previous Fee Application and ordered “Plaintiff-Relator, 23 Amphastar Pharmaceuticals Inc. [to] pay Defendants their reasonable attorneys’ 24 fees and expenses from the date the Complaint was unsealed [on October 28, 25 2011] to the final disposition of this case.” ECF No. 541, Order Granting 26 Previous Fee Application at 2, 22 (emphasis added). As such, the Court declines to 27 disturb the previously assigned United States District Judge’s Order Granting 1 Finally, with respect to Plaintiff’s argument that interest should not be 2 awarded after the matter was under submission, the Court disagrees. Plaintiff has 3 not provided any authority to support the proposition that interest ceases to 4 accumulate upon a matter becoming fully briefed and taken under submission, and 5 the Court can find none. Moreover, as noted above, the previously assigned 6 United States District Judge ordered Plaintiff to pay reasonable attorney fees and 7 expenses until “the final disposition of this case[,]” which has yet to happen as the 8 parties are still litigating the total amount due to Defendants. See

Thus, it does 9 not follow that Defendants are due fees and expenses until the final disposition of 10 this case, but not interest on those same fees and expenses Defendants incurred and 11 are continuing to incur as this litigation, which has spanned over a decade, 12 continues. Consequently, because Defendants have not yet been restored to the 13 status quo ante for the money they have spent litigating this case, the Court finds 14 that interest shall continue to generate at the prime rate until the final disposition of 15 this case, which has not yet happened as the parties are still disputing Defendants’ 16 fees in this Court, and Plaintiff has also appealed this case to the Ninth Circuit 17 Court of Appeals. See ECF Nos. 637-40, Documents relating to Plaintiff’s appeal. 18 Consequently, the Court awards Defendants $3,346,131 for interest through 19 November 13, 2020 on the fees and expenses awarded for work through April 30, 20 2018. Thus, the subtotal for work performed from the unsealing of the Complaint 21 on October 28, 2011 through April 30, 2018 is $16,231,055. 22 2. Award For Work Performed From May 1, 2018 Through 23 November 13, 2020. 24 As noted previously, for work performed from May 1, 2018 through 25 November 13, 2020, Defendants seek, as amended by Defendants’ Reply: 26 • $811,056 in fees; 27 • $101,258 in expenses; and 1 • $60,333 in interest for a subtotal of $972,648 and a grand total of 2 $17,203,703. 3 ECF No. 644, Reply at 2. 4 Also as noted previously, Plaintiff challenges only: (1) the blended hourly 5 rate that Defendants seek; and (2) any interest for work performed after “the date 6 of entry of judgment in this matter.” ECF No. 642, Response at 2-3, 7-8. 7 Here, as an initial matter, the Court observes that Plaintiff does not contest 8 the expenses sought by Defendants for this time period. See ECF No. 642, 9 Response at 8 (Plaintiff arguing that “the maximum fees that can be awarded are 10 $811,072.97. Adding to this amount Aventis’s requested discounted costs of 11 $101,258 would result in a total maximum additional award to Aventis of 12 $912,330.97); see also

(Plaintiff providing no objection to the $101,258 13 in expenses Defendants seek here). Consequently, the Court awards Defendants 14 the undisputed amount of $101,248 for expenses for work performed from May 1, 15 2018 through November 13, 2020. 16 Turning now to Plaintiff’s arguments, the Court finds that Plaintiff’s first 17 argument is moot because Defendants agreed in their Reply to reduce their blended 18 hourly rate to the rate Plaintiff argued—$578 rather than the $641 originally 19 sought by Defendants—for a total fee award of $811,056. The Court also notes 20 that even the fees sought by Defendants—$811,056—are less than the $811,072.97 21 Plaintiff argues Defendants are due. See ECF No. 642, Response at 8 (Plaintiff 22 arguing that “the maximum fees that can be awarded are $811,072.97”); see also 23 ECF No. 644, Reply at 4 (Defendants rounding their fee request down by “$17 [as] 24 attributable to different approaches to rounding”). Consequently, the Court awards 25 Defendants the undisputed amount of $811,056 for fees for work performed from 26 May 1, 2018 through November 13, 2020. 27 Finally, the Court rejects Plaintiff’s argument that Defendants are not due 1 | discussed above in the previous section of the Order, this case has still not reached 2 | its final disposition as Defendants are still litigating the issue of fees in this Court 3 | and are now also litigating before the Ninth Circuit Court of Appeals. Thus, the 4 | Court finds that awarding Defendants interest for their ongoing work is appropriate 5 | here. 6 Consequently, the Court awards Defendants $60,333 in interest for work 7 | performed from May 1, 2018 through November 13, 2020 for a subtotal of 8 | $972,648 and a grand total of $17,203,703. 9 IV. CONCLUSION 10 For the reasons discussed above, IT IS HEREBY ORDERED that 11 | Defendants’ Submission is GRANTED in part. Specifically, Defendants are 12 | awarded $17,203,703 for fees, expenses, and interest for work performed in this 13 | case from October 28, 2011, when the Complaint was unsealed, through November 14 | 13, 2020, when the Court issued its Fee Order. 15 IT IS SO ORDERED. 16 AA se 17 | DATED: 05/03/2021 NN HONORABLE SHASHI H. KEWALRAMANI 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28