Amarte USA Holdings, Inc. v. Kendo Holdings Inc.

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 AMARTE USA HOLDINGS, INC., Case No. 22-cv-08958-CRB

9 Plaintiff,

ORDER GRANTING DEFENDANTS’ 10 v. MOTION FOR FEES

11 KENDO HOLDINGS INC., et al., 12 Defendants.

13 Plaintiff Amarte USA sued Defendants Kendo, Marc Jacobs International, Sephora 14 USA, and the Neiman Marcus Group for trademark infringement. See Compl. (dkt. 1). 15 The Court granted Defendants’ motion for summary judgment. See MSJ Order (dkt. 173). 16 Defendants now move for attorney fees. See Mot. (dkt. 190). The Court finds the matter 17 suitable for resolution without a hearing pursuant to Local Civil Rule 7-1(b) and GRANTS 18 Defendants’ fees motion based on Amarte’s unreasonable conduct in this litigation. 19 I. BACKGROUND 20 The Court’s prior order, available at 2024 WL 4093910, describes the facts of this 21 case in detail. The following high-level overview provides only the context necessary to 22 address this fees motion. 23 Plaintiff Amarte sells high-quality skincare products, including its trademarked 24 EYECONIC eye cream. MSJ Order at 1–3. Defendants sell beauty products, including 25 Kendo and Marc Jacobs’ MJB EYE-CONIC eye shadow. Id. at 3. In 2021 Amarte sent a 26 cease-and-desist letter to Marc Jacobs. Id. at 2. Kendo’s general counsel responded and 27 explained to Amarte that MJB EYE-CONIC had been discontinued. Id. at 2–3. Sephora 1 In December 2022 Amarte sued Defendants for federal trademark infringement and 2 several related counts. The Court ultimately granted summary judgment for Defendants. 3 In doing so, the Court found that there was no likelihood of confusion between Plaintiff’s 4 EYECONIC eye cream and Defendants’ MJB EYE-CONIC eye shadow. Id. at 9–21.1 5 Defendants now move for attorney fees, arguing both that Amarte engaged in 6 unreasonable litigation conduct and that its case was substantively weak. As evidence of 7 Amarte’s unreasonable conduct, Defendants point to Amarte’s repeated attempts to expand 8 the scope of the case to ancillary parties (such as parent companies and retailers), 9 Amarte’s factual misstatements at various stages of litigation, and Amarte’s uncooperative 10 behavior during discovery. Mot. at 9–16. They further state that Amarte was improperly 11 motivated by an interest in extracting a settlement from Defendants. Id. at 16–17. As 12 evidence of Amarte’s allegedly weak case, Defendants point to the lack of any direct 13 evidence of consumer confusion between the EYECONIC and MJB EYE-CONIC 14 products, as well as clear dissimilarities between the products’ packaging. Id. at 17–19. 15 Defendants assert that their timekeepers billed over 2,300 hours and incurred over 16 $2 million in legal fees, of which they seek to recover approximately $1.3 million (plus 17 fees associated with this motion, which would be calculated later). Id. at 8–9. 18 II. DISCUSSION 19 The Lanham Act provides that “[t]he court in exceptional cases may award 20 reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). “[A]n 21 ‘exceptional’ case is simply one that stands out from others with respect to the substantive 22 strength of a party’s litigating position (considering both the governing law and the facts of 23 the case) or the unreasonable manner in which the case was litigated.” SunEarth, Inc. v. 24 Sun Earth Solar Power Co., 839 F.3d 1179, 1180 (9th Cir. 2016) (quoting Octane Fitness, 25 LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014)). There is no “precise rule 26 or formula for making these determinations,” but “district courts analyzing a request for 27 1 fees under the Lanham Act should examine the ‘totality of the circumstances’ to determine 2 if the case was exceptional.” Id. at 1181 (quoting Octane Fitness, 572 U.S. at 554). The 3 Supreme Court has identified several factors for courts to weigh, including “frivolousness, 4 motivation, objective unreasonableness (both in the factual and legal components of the 5 case) and the need in particular circumstances to advance considerations of compensation 6 and deterrence.” Id. (quoting Octane Fitness, 572 U.S. at 554 n.6). Amarte challenges the 7 appropriateness of attorney fees at all, as well as the reasonableness of the fees that 8 Defendants request. See Opp. (dkt. 197). 9 A. Whether to Award Attorney Fees 10 At the outset, the parties dispute whether a motion for fees can be granted based 11 solely on a party’s unreasonable litigation conduct or whether the party’s litigation position 12 must also have been substantively weak. Both purport to rely on Octane Fitness. Compare 13 Opp. at 2 (“Defendants cite no authority that a court can ignore the merits of a claim in 14 order to award fees under Octane Fitness.”), with Reply (dkt. 211) at 5 (“[T]he Supreme 15 Court itself said that a case can be exceptional on the basis of litigation conduct alone.”). 16 Defendants have the better interpretation of Octane Fitness, which states that “an 17 ‘exceptional’ case is simply one that stands out from others with respect to the substantive 18 strength of a party’s litigating position … or the unreasonable manner in which the case 19 was litigated.” 572 U.S. at 554 (emphasis in original). “Or” means “or,” and Amarte 20 points to no language in Octane Fitness that would suggest a contrary interpretation. 21 Accordingly, the Court can, and does, grant Defendants’ motion on the basis of 22 Amarte’s conduct alone. Some of the analysis bleeds into the merits of Amarte’s case, but 23 the merits are not so obviously weak to warrant attorney fees on their own.2 Amarte’s 24 conduct, however, crosses the line from acceptable to unreasonable. Specifically, Amarte 25 (1) filed multiple meritless, dilatory motions; (2) repeatedly misrepresented material facts; 26 2 To be sure, the facts that (1) Amarte never had any evidence that any consumer was ever 27 confused between the marks and (2) the products’ packaging looked nothing alike made 1 and (3) was uncooperative to the point of stonewalling in discovery. Moreover, this 2 conduct, taken as a whole, strongly suggests that Amarte was improperly motivated by an 3 effort to extract settlement money rather than good-faith trademark enforcement. This 4 case is therefore “exceptional” under the Lanham Act, and attorney fees are proper.3 5 1. Repeated meritless motions to add defendants 6 Amarte sought leave to amend its complaint three times—once to add seven of 7 Defendants’ parent companies and twice to add nearly a dozen retailers. The Court denied 8 all of these attempts. Indeed, Amarte’s repeated attempts to expand the scope of this 9 litigation were not only without merit; they needlessly prolonged litigation and 10 demonstrated Amarte’s defiance of adverse rulings. 11 In Amarte’s first effort to amend its complaint, it sought to add parent companies as 12 defendants based solely on the fact that the parents were listed on Defendants’ Rule 7.1 13 disclosures. First Mot. to Amend (dkt. 52) at 6–7. But Amarte’s allegations as to the 14 parents’ alleged misconduct were “sparse,” limited to allegations that the parents “direct, 15 own, and control” the existing Defendants. Order Denying First & Second Mots. to 16 Amend (dkt. 72) at 3 (quoting Proposed Second Am. Compl. (dkt. 66-1) ¶¶ 42, 44, 46, 49). 17 Amarte’s allegations as to personal jurisdiction were similarly so “bare” as to be “plainly 18 insufficient.” Id. at 4–5. Amarte did not go into any greater depth as to its theory of 19 liability for Defendants’ parents in its motion to amend. Instead, it recited the boilerplate 20 legal standard for evaluating proposed amendments and then asserted, without any 21 explanation, that its proposed amendment would not be futile. First Mot. to Amend at 7–8. 22 In Amarte’s second attempt at amendment, it sought to add various retailers on the 23 sole basis that they “sell, advertise, market, and promote the Infringing Goods bearing 24 3 The fact that this case is primarily about Amarte’s conduct, rather than the merits of its 25 position, makes this case different from Blue Bottle Coffee, LLC v. Liao, No. 21-cv-6083- CRB, 2024 WL 2061259 (N.D. Cal. May 7, 2024), on which Amarte heavily relies. In that 26 case, the Court denied a motion for attorney fees, but the defendants’ primary argument was that the plaintiff’s case was frivolous. See id. at *2–4. There were only a handful of 27 allegations about alleged litigation misconduct, such as “sloppy” references to nonexistent 1 Defendants’ EYE-CONIC Mark on their respective websites, social media platforms, other 2 advertising media, in their retail locations nationwide, including retail stores in this judicial 3 district, or otherwise direct their infringing activities in this judicial district, or have done 4 so in the past.” Proposed SAC ¶ 51. The Court found this single allegation insufficient to 5 allege either infringement or personal jurisdiction over the proposed retailer defendants. 6 Order Denying First & Second Mots. to Amend at 5. Undeterred, Amarte tried again, 7 seeking for a third time to amend its complaint—this time to add “the same insufficient 8 pleading from its Second Proposed Amended Complaint.” Order Denying Third Mot. to 9 Amend (dkt. 96) at 14 (quoting Proposed First Am. Compl. (dkt. 73-2) ¶¶ 39–44). 10 Because Amarte did not “allege new facts” or “provide additional clarity as to each 11 Proposed Defendant’s allegedly infringing conduct,” the Court once again denied 12 Amarte’s attempt. Id. 13 Defendants argue that Amarte knew that its motions to amend were baseless and 14 filed them anyway “in the hopes that Defendants would fold and pay Amarte multiples of 15 Amarte’s annual product revenue.” Mot. at 10. Amarte counters that the mere fact that the 16 Court ruled against it on these motions does not make its conduct “exceptional” for 17 purposes of attorney fees under the Lanham Act. Opp. at 9. Of course, the mere fact that 18 Amarte lost several key motions does not in itself warrant attorney fees. See Blue Bottle 19 Coffee, LLC v. Liao, No. 21-cv-6083-CRB, 2024 WL 2061259, at *4 (N.D. Cal. May 7, 20 2024). Still, Amarte’s conduct rises to the level of unreasonable in two ways. 21 First, Amarte’s effort to add the parent companies comes on the heels of its failed 22 effort to do so in another case, Amarte USA Holdings, Inc. v. G.L.E.D. Cosmetics, US 23 Ltd., No. 20-cv-768-CAB. In that case, the district court rejected Amarte’s attempt to add 24 parent companies to litigation on the grounds that its boilerplate allegations were 25 conclusory (and therefore insufficient) as to both liability and personal jurisdiction. 2020 26 WL 10322586 (S.D. Cal. Dec. 15, 2020). Amarte should therefore have been on notice of 27 the consequences of trying to sue parent companies without sufficiently specific 1 complaint in this case. Amarte contends that the Court should ignore the other litigation 2 because “a district court’s consideration of a party’s ‘unreasonable’ conduct is limited to 3 the case at bar.” Opp. at 12 (citing Whitewater W. Indus., Ltd. v. Pac. Surf Designs, Inc., 4 No. 17-cv-1118-BEN, 2021 WL 1265210, at *5 (S.D. Cal. Apr. 5, 2021)). That is only 5 partially correct. Courts should not award attorney fees based on parties’ conduct in other 6 cases. See id. But there is no reason that a party’s involvement in other litigation cannot 7 be relevant for the purpose of assessing whether that party acted unreasonably in this 8 litigation. Cf. Gametek LLC v. Zynga, No. 13-cv-2546-RS, 2014 WL 4351414, at *4 9 (N.D. Cal. Sept. 2, 2014) (concluding that the party seeking fees had failed to explain why 10 its opponent’s conduct in prior litigation “is relevant to the question of fees in this case”). 11 Here, it is proper for the Court to consider Amarte’s conduct in the G.L.E.D. litigation to 12 the extent that it colors Amarte’s actions in this litigation. 13 Second, Amarte received a clear ruling on its first failed attempt to amend its 14 complaint to add more retailers as defendants. The Court expressly stated that Amarte 15 “might be able to amend its complaint in the future to plead facts that support direct 16 infringement or personal jurisdiction as to each of the proposed defendant.” Order 17 Denying First & Second Mots. to Amend at 6. But Amarte did not bother to address in its 18 third attempted amended complaint the problems that the Court had identified; instead, it 19 used “the same insufficient pleading” as before. Order Denying Third Mot. to Amend at 20 14. Amarte’s belated assertion now that it sought leave to amend to add the retailers 21 because “it believed those parties were liable,” Opp. at 11, is belied by Amarte’s failure 22 twice over to allege facts consistent with that belief. 23 Amarte’s repeated attempts to add nonviable parties to this litigation—especially in 24 light of clear direction from multiple district courts—constitute unreasonable conduct. 25 They also highlight some concerning aspects of Amarte’s litigation strategy. Amarte 26 showed clear disregard for adverse rulings (from this Court and from other courts) and 27 took every chance at its disposal to expand the litigation as broadly as possible. It strains 1 fact-based arguments, were made in good faith rather than for the impermissible purpose 2 of pressuring Defendants to settle regardless of the suit’s actual merits.4 3 2. Factual misrepresentations 4 In its interrogatory responses and its submissions to the Court, Amarte made 5 repeated factual misrepresentations that crossed the line into unreasonable territory. Such 6 conduct is grounds for the Court to find this case an “exceptional” one warranting attorney 7 fees. See Dropbox, Inc. v. Thru, Inc., No. 15-cv-1741-EMC, 2017 WL 914273, at *3 8 (N.D. Cal. 2017) (misleading and incomplete interrogatory responses, the problems with 9 which were later revealed at deposition, justify award of attorney fees); Elem Indian 10 Colony of Pomo Indians v. Ceiba Legal, LLP, 230 F. Supp. 3d 1146, 1150–51 (N.D. Cal. 11 2017) (“[P]laintiff’s unreasonable conduct, including misrepresentations and misleading 12 statements to the Court, makes this action exceptional.”). 13 Regarding Amarte’s interrogatory responses, Amarte misrepresented the scope of 14 its products soled with the EYECONIC mark. Defendants asked Amarte to “[i]dentify all 15 goods offered by Amarte under the [EYECONIC] Mark from first use in commerce to 16 present.” Pl.’s Resps. to First Set of Interrogs. (dkt. 98-4) at 3. Amarte responded with a 17 vague bullet-point list: “Cosmetics, skin care products, cosmetic creams, skin care creams, 18 eye cosmetics, and eye creams.” Id. at 3–4. But later, in Amarte’s 30(b)(6) deposition, its 19 corporate representative stated that it had only ever offered one product, Eyeconic Eye 20 Cream, with the EYECONIC mark. Kraffert Dep. Tr. (dkt. 98-3) at 28:14–23. Amarte 21 now argues that its Eyeconic eye cream could be characterized as an eye cream and an eye 22 cosmetic, thus making its interrogatory response correct—from a certain point of view. 23

24 4 Amarte contends that Defendants “never made any formal request to address any of these issues” and argues that they “should not be rewarded for ‘simply hiding under a rock, 25 quietly documenting all the ways they’ve been wronged, so that they can march out a “parade of horribles” after all is said and done.’” Opp. at 10 (cleaned up) (quoting Stone 26 Basket Innovations, LLC v. Cook Med. LLC, 892 F.3d 1175, 1181 (Fed. Cir. 2018)). But as Defendants explain, they made clear at every step of the way that Amarte had no 27 legitimate basis for its motions. Id. at 11 (citing Defs.’ Opp. to Pl.’s Second Mot. to 1 Opp. at 11–12. Amarte’s reasoning twists Defendants’ interrogatory and its response 2 beyond recognition. Defendants asked Amarte to list “all goods” sold with the 3 EYECONIC mark, not to list all potential marketing categories for Amarte’s EYECONIC 4 eye cream. At best, Amarte’s response was misleading. And either way, it undermined 5 the purpose of interrogatories, which is “to narrow the issues that will be addressed at 6 trial.” Lexington Ins. Co. v. Commonwealth Ins. Co., No. C98-3477CRB (JCS), 1999 WL 7 33292943, at *7 (N.D. Cal. Sept. 17, 1999). 8 As for Amarte’s submissions to the Court, Amarte repeatedly misrepresented facts 9 that were material to the likelihood-of-confusion analysis. Two clear-cut examples 10 illustrate this: Amarte (1) contended that its EYECONIC eye cream and Defendants’ MJB 11 EYE-CONIC eye shadow were sold “on the same displays in stores,” Amarte MSJ 12 (dkt. 181) at 6, and (2) that Defendants sold MJB EYE-CONIC eye shadow on Amazon, 13 Amarte Opp. to Defs.’ MSJ (dkt. 180) at 21–22. Amarte now acknowledges that the first 14 statement was false, see Opp. at 6, and the Court has already observed that Amarte 15 “dropped” the second argument altogether, see MSJ Order at 18 n.10. Instead of 16 attempting to establish that these statements were factually sound, Amarte challenges 17 Defendants’ assertion that these misstatements were intentional, suggesting that they were 18 “unfortunate typographical error[s]” that were “never repeated elsewhere.” Opp. at 6. But 19 as Defendants note, that statement itself is untrue: for instance, Amarte made the same 20 argument about the EYECONIC and MJB EYE-CONIC products being sold on the same 21 displays in multiple motions, even after Defendants demonstrated that there was no factual 22 basis for the argument. Compare Amarte Opp. to Defs.’ MSJ at 16 (filed Dec. 1, 2023), 23 and Amarte MSJ at 6 (filed Dec. 23, 2023), with Reply ISO Defs.’ MSJ (dkt. 176) at 14 24 (filed Dec. 8, 2023). Amarte’s decision to double down on its misrepresentations is at 25 odds with its current position that those misstatements were nothing more than stray typos. 26 Amarte has repeatedly played fast and loose with facts—from its interrogatories to 27 its summary judgment briefs and even in its arguments on this fees motion. And while 1 cross “the line between ‘zealous advocacy’ and misrepresentations to the court.” Caputo 2 v. Tungsten Heavy Powder, Inc., 96 F.4th 1111, 1163–64 (9th Cir. 2024) (recommending 3 that attorneys face discipline for misconduct that included factual misrepresentations in 4 motions). That amounts to unreasonable litigation conduct that warrants attorney fees 5 under the Lanham Act. 6 3. Discovery stonewalling 7 Amarte also refused to engage in good-faith discovery, even beyond its deficient 8 interrogatory responses discussed above. And while discovery disputes are unfortunately 9 all too common in litigation, a party’s consistent stonewalling can constitute unreasonable 10 behavior that makes a case “exceptional” under the Lanham Act. See Digital Reg of Tex., 11 LLC v. Adobe Sys., Inc., No. C 12-1971 CW, 2015 WL 1026226, at *4 (N.D. Cal. Mar. 9, 12 2015); Universal Elecs., Inc. v. Universal Remote Control, Inc., 2015 WL 12733442, at 13 *5–6 (C.D. Cal. Mar. 10, 2015). Two instances in particular showcase Amarte’s 14 unreasonableness. 15 First, Amarte refused to produce its settlement agreements in similar trademark 16 litigation, initially stating that they were “not relevant.” Williams Decl. (dkt. 190-1) ¶ 42 17 & Ex. B. Yet in its summary judgment briefs, Amarte referenced its enforcement efforts— 18 which would have included settlements. See Amarte’s Opp. to Defs.’ MSJ at 20; Amarte’s 19 MSJ at 11. Even still it resisted Defendants’ renewed efforts, now obviously appropriate, 20 to discover its settlement agreements with other parties before ultimately relenting and 21 turning them over. Williams Decl. ¶ 42 & Ex. B. Amarte argues that its behavior was not 22 unreasonable because it never cited the settlement agreements and because Defendants 23 never moved to compel production. Opp. at 11. But the scope of discovery is not limited 24 to cited material; rather, it encompasses “any nonprivileged matter that is relevant to any 25 party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26 26(b)(1). And the fact that Amarte eventually disclosed the settlement agreements does 27 not justify its misconduct leading up to the summary judgment motions. 1 disclosures, and it never supplemented those disclosures as required by Rule 26(e). 2 Amarte tried to excuse its refusal using the Ninth Circuit’s decision in Skydive Arizona, 3 Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012), but that opinion does not actually help 4 Amarte. Rather than stating that a plaintiff need not disclose or supplement damages 5 calculations under Rule 26(a)(1)(A)(iii), Skydive Arizona holds only that a Lanham Act 6 plaintiff has various methods at its disposal to calculate damages. Id. at 1113. Amarte’s 7 refusal to comply with the requirements of the Federal Rules of Civil Procedure is yet 8 another example of its uncooperative approach to discovery. 9 To be sure, given how common discovery disputes are, they rarely make a case 10 “extraordinary” on their own. But Amarte’s uncooperative behavior is unreasonable in 11 large part because it is consistent with its other misconduct, which across the board had the 12 effect of obfuscating issues, delaying proceedings, expanding the scope of the litigation, 13 and ultimately pressuring Defendants to settle regardless of the merits. Indeed, given all of 14 Amarte’s misconduct, it is very likely that the unnecessary bloating of this litigation was 15 Amarte’s intent all along. 16 * * * 17 These three categories of Amarte’s litigation conduct—repeated meritless motions, 18 factual misrepresentations, and uncooperativeness in discovery—all factor together in the 19 Court’s decision to award attorney fees to Defendants. Defendants raise several other 20 points that they assert weigh in favor of attorney fees, including Amarte’s alleged refusal 21 to recognize binding Ninth Circuit precedent and filing of at least one allegedly frivolous 22 Daubert motion. Mot. at 13–14, 16. While Amarte’s actions in these areas do not rise to 23 the level of misconduct, they do expose another concerning trend: Amarte’s apparent 24 disregard for factual, legal, and procedural limitations on its approach to litigation. It is 25 proper for the Court to award attorney fees to deter of that kind of unreasonable conduct. 26 See SunEarth, 839 F.3d at 1181 (quoting Octane Fitness, 572 U.S. at 554 n.6). 27 B. Reasonableness of Fee Award 1 the “lodestar,” which entails “multiplying the hours reasonably worked by a reasonable 2 hourly rate.” Lanard Toys Ltd. v. Dimple Child LLC, 843 F. App’x 894, 897 (9th Cir. 3 2021). Fees so calculated are presumed reasonable. City of Burlington v. Dague, 505 U.S. 4 557, 562 (1992). Nevertheless, Amarte challenges Defendants’ counsel’s rates and hours.5 5 As to counsel’s rates, the cases on which Amarte relies are either fairly similar to 6 those rates, Morrow v. Travelade, Inc., No. 23-cv-4593-NC, 2024 WL 1511904, at *4 7 (N.D. Cal. Mar. 1, 2024) (approving $750 per hour for a partner, $500 per hour for an 8 associate, and $125–$250 per hour for paralegals), or outdated, Cairns v. Franklin Mint, 9 292 F.3d 1139, 1157 (9th Cir. 2002); Dropbox, 2017 WL 914273, at *4. They therefore do 10 not provide grounds for the Court to reject counsel’s rates, which are in line with similarly 11 situated counsel’s current rates. Compare HP Inc. v. Wiseta, No. 23-cv-344-RFL (AGT), 12 2024 WL 1699564, at *4 (N.D. Cal. Mar. 15, 2024) (approving $1,075 per hour for a 13 partner and $625–$725 for associates). 14 As to the hours that counsel spent on this matter, Amarte cannot in good faith claim 15 that the work Defendants’ counsel performed in response to Amarte’s repeated efforts to 16 balloon the scope of this litigation are unreasonable.6 See Thiebes v. Wal-Mart Stores, 17 Inc., 220 F. App’x 750, 751 (9th Cir. 2007) (“When a defendant employs a scorched earth 18 strategy, unreasonably increasing a plaintiff’s litigation expenses, the defendant can expect 19 to pay for the attorney fees it forces the plaintiff to incur.”). Nor is the Court persuaded by 20 Amarte’s brief argument based on the ratio of partner hours to associate hours given the 21 significant work performed on this case by paralegals and other legal professionals. Those 22 timekeepers often do similar work as an associate but at a much lower billable rate, and the 23 Court will not penalize such cost-saving measures. 24 5 This District’s Local Rules require parties to meet and confer regarding motions for fees. 25 Local Civ. R. 54-5(a). But Amarte refused, Williams Decl. ¶ 9, lodging its objections to Defendants’ fee calculations for the very first time in its opposition brief. Amarte’s refusal 26 to meet and confer is further evidence of Amarte’s unreasonable behavior in this case. 6 Amarte argues that the Court should require Defendants to submit billing records, but 27 that is not required under this District’s Local Rules. See Local Civ. R. 54-5(b)(2). 1 III. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Defendants’ motion and AWARDS 3 attorney fees to Defendants in the amount of $1,383,663.50, plus an amount to be 4 determined for the time that Defendants spent preparing and litigating this motion. The 5 parties are instructed to meet and confer and provide the Court with the updated amount of 6 attorney fees. 7 IT IS SO ORDERED. 8 Dated: December 5, 2024 CHARLES R. BREYER 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27