A recent AM Law Litigation Daily story, “Cooley Wins Attorney Fees After NexTag Patent Trial Win,” reports that Cooley has won an award of attorney fees for client NexTag Inc. in a patent case brought by Lending Tree LLC. In an Oct. 9 ruling, U.S. District Judge Frank Whitney in Charlotte held that Lending Tree and its lawyers at Sheppard Mullin engaged in unreasonable tactics. The amount of the fee award, which will include work done by Cooley since Jan. 10 of this year, will be determined later.
Lending Tree, which runs an online service that matches borrowers and lenders, had sued NexTag for patent infringement in 2010. During a trial, which Lending Tree lost, evidence emerged that Lending Tree knew of NexTag’s allegedly infringing activity more than six years before suing.
Cooley had argued Lending Tree’s claims were barred by the equitable doctrine of laches, which prevents litigants from waiting too long to sue. The judge noted that some of this evidence came from data backup tapes that Lending Tree had initially refused to produce, even after a court order.
The judge cited other tactics by Lending Tree, including a failure to do a meaningful investigation before suing and a failure to review the company’s communications concerning NexTag. “This case is exceptional under a totality of the circumstances,” Whitney wrote.
NexTag didn’t get the full fee award it sought. The judge rejected it request for fees from the start of the case. Instead, he awarded fees as of Jan. 10, the date that he rejected Lending Tree’s motion for summary judgment. The judge declined to hold Sheppard Mullin jointly liable for fees as Cooley had asked, finding that the firm didn’t act in bad faith or intentionally abused the judicial process. Whitney did, however, previously order Sheppard Mullin to pay sanctions during discovery.
The judge ordered NexTag to submit an accounting of its attorney fees.
NALFA welcomes Nancy B. Rapoport as a qualified bankruptcy fee examiner. NALFA member Nancy Rapoport is a professor of law at UNLV Law School in Las Vegas.
She has served as a court-appointed bankruptcy fee examiner and as an expert for the fee examiner in a number of large, high-profile cases. Here are some of her expert witness activity:
Consultant for the Liquidating Trust for In re Residential Capital, LLC, U.S. Bankruptcy Court, Southern District of New York, Case No. 12-12020, regarding the reasonableness of fees (2014-present).
Expert for the Fee Examiner in Matter of Lehman Brothers Holdings, Inc., U.S. Bankruptcy Court, Southern District of New York, Case No. 08-13555 (2012).
Expert for the Fee Examiner in In re Motors Liquidation Co., U.S. Bankruptcy Court, Southern District of New York, Case No. 09-50026 (2011-2012).
Fee Examiner in the various Station Casino bankruptcy cases, U.S. Bankruptcy Court, District of Nevada, Case Nos. BK-09-52477 through BK-11-51219 (2011).
Court’s fee expert and chair of the Fee Review Committee in In re Pilgrim’s Pride Corp., U.S. Bankruptcy Court, Northern District of Texas, Case No. 08-45664 (2009-2010) (testified at hearing).
Court’s fee expert and chair of the Fee Review Committee in In re Mirant Corporation, U.S. Bankruptcy Court, Northern District of Texas, Case No. 03-46590 (2003-2006; 2011-2012) (testified in deposition and at hearing).
For more on Nancy, visit http://www.thenalfa.org/Network-Directory/rapoport/ and http://www.law.unlv.edu/faculty/nancy-rapoport.html.
A recent New York Law Journal story, “$1M Fees Ruling from Special Referee Spurs New Dispute,” reports that the law firm Herrick Feinstein is entitled to $1 million in fees and costs for defending a developer in a five-year contract dispute over a Staten Island waterfront parcel, a New York special referee ruled. The recommendation from Special Referee Lancelot Hewitt in Princes Point v. AKRF Engineering already fueled opposition from plaintiff’s counsel Rosenberg Cacilca & Birney, which argued that Herrick’s hourly rate were “unreasonable” and its block billing entries “redundant.”
That the fees’ issue has prompted a new round of legal wrangling is emblematic of the case; plaintiff Princes Point retained five separate law firms and appealed every lower court ruling and moved several times to reargue appellate decisions. Princes Point argues that a 50 percent across-the-board reduction of Herrick’s total hours billed “is more than appropriate,” saying the $920 per hour billable rate on the upper range was neither reasonable nor “in line with prevailing rates in the legal community.”
In his expert fee recommendation to the trial judge, Hewitt found Herrick’s rates were “not unreasonable within the New York legal community, given the documentary evidence submitted, including published articles of the subject, and fee applications charged by previous counsel of plaintiff.” Hewitt said that the facts comprised a “complicated, commercial litigation case” and cited the difficulty of issues presented; skill required to perform the services, the benefit resulting to the client; and the amount in dispute.
“If a party elects to engage in extensive discovery and motion practice, including unsuccessful motions to reargue, appeals and motions to reargue appellate decisions, it should not be heard to complain that the successful parties’ legal fees were too high,” said Scott Mollen, partner at Herrick Feinstein. “The amount of the fees was directly caused by the plaintiff’s unsuccessful ‘scorched earth’ approach to litigation.”
Legal bill auditors are companies who provide quantitative analysis of legal billing entries. Legal bill auditors help to categorize and summarize billing entries. Legal bill auditors are hired by clients such as insurance carriers, law firms, corporations, government agencies and municipalities to analyze legal billing entries in underlying litigation and transactional matters.
Legal bill auditing is part art and part science. No two legal bill auditing programs are the same. As a professional body, our mission is to ensure quality and reliability across the legal fee analysis profession. NALFA’s rating system will help fulfill part of this mission. Our rating system will also assist clients who use legal bill auditing.
Legal bill auditing programs will be rated by process, methodology, technology, personnel and customer service. NALFA has identified several of the most well-known legal bill auditing programs to be rated, regardless of membership status. “We look forward to working with members and non-members in rating the nation’s top legal bill auditing programs,” said Terry Jesse, Executive Director of NALFA.
A recent New York Law Journal story, “Judge OKs $7 Million in Fees in Citibank Class Action,” reports that a federal judge has approved more than $7 million in attorney fees for the plaintiffs’ counsel in a class action claim against Citibank, its affiliates and other defendants accused of making homeowners buy excessive insurance coverage.
Northern District Judge David Hurd, ruling from Utica, signed off on the attorney fee award on Aug. 22 and Oct. 1. He noted in both motions that none of the defendants objected to the proposed fees sought by the class counsel led by Nichols Kaster in Minneapolis and Berger & Montague in Philadelphia. Gilman Law of Bonita Springs, Fla., and Taus Cebulash & Landau of Manhattan also represented the plaintiffs.
Attorneys reported spending more than 4,700 hours on the litigation in Casey v. Citigroup and in a similar case that was consolidated before Hurd, Coonan v. Citigroup.
Under the settlement to which Hurd agreed in August, Citibank will make $110 million available to compensate consumers for what plaintiffs claimed were unnecessary insurance purchases between 2006 and February 2014. Just over 400,000 consumers were identified as potentially being in the class.
Citibank argued that federal banking statutes required special insurance coverages for residences located in high-risk areas, such as flood plains, and it denied receiving kickbacks from insurers who wrote polices for mortgage-holders.
Other defendants in the suit were Assurant, American Security Insurance Co., Standard Guaranty Insurance Co., MidFirst Bank and FirstInsure.
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