A recent The Recorder story, “Apple, Samsung Clash Over Attorney Fees,” reports that a U.S. Supreme Court patent decision that had nothing to do with trade dress may have everything to do with whether Apple collects attorney fees from Samsung in the litigation over smartphone design.
Apple Inc. wants to recoup $16 million in attorney fees it incurred in the litigation that resulted in a $1 billion jury verdict before U.S. District Judge Lucy Koh of the Northern District of California in 2012. Apple moved for fees under the Lanham Act, based on jury findings of the trade press dilution, rather than under the Patent Act, where the standard for recovering fees has been higher.
But the Supreme Court changed the standard in April, when it threw out the rigid test for finding a patent case “exceptional,” instructing trial judges to simply consider the totality of the circumstances. The decision in Octane Fitness v. ICON Health & Fitness interpreted the Patent Act, but the Lanham Act uses identical language.
“Is that now the standard for Lanham Act fees in the Ninth Circuit?” Judge Koh asked Morrison & Foerster partner Rachel Krevans, representing Apple. Krevans argued that the jury had found that Samsung Electronics Co. acted willfully, and under U.S. Court of Appeals for the Ninth Circuit case law, attorney fees “naturally flow” from willfulness, though she acknowledged there’s no hard-and-fast rule.
NALFA will be hosting The Attorney Fees Webinar Series in November 2014. These three 90-minute CLE webinars will cover attorney fee and legal billing issues. NALFA is currently recruiting sponsors and panelists for these programs. Each day will cover a different topic.
With the growing body of attorney fee jurisprudence and attorney fee scholarship, attorney fees are developing into a substantive area of law. “We’re excited to be leading the way on attorney fee and legal billing issues. Our members are at the forefront of this new and growing practice area," said Terry Jesse, Executive Director of NALFA.
This will be the sixth program NALFA has hosted on attorney fee and legal billing. The CLE webinars will be free for NALFA members. For more information, visit http://www.thenalfa.org/CLE-Programs.
Sky Analytics, a leading corporate provider of legal spend management software for corporate legal departments, recently announced the release of the first ever gender study based on actual billings from law firms. The gender study (pdf) casts light on stark inequalities between men and women in the legal profession.
The study analyzes law firm invoices collected by Sky Analytics from corporate legal departments with annual legal spend ranging from $1 million to $1 billion. The data set spans over $3.4 billion in legal spend across over 40,000 attorneys and timekeepers and over 3,000 law firms in the U.S., including 73 of the AmLaw 100 firms.
“In light of the recent Pay Equality bill signed by President Obama, we decided to analyze the Sky Analytics’ database to see if we could cast light on any gender disparities in the legal market,” said Dr. Silvia Hodges Silverstein, Vice President of Strategic Market Development at Sky Analytics. “We were surprised not only by the pay inequality, but also the staffing role biases.”
“We set out to create the world’s deepest and most detailed legal spend database and analytics platform,” noted Jonathan Kash, Chief Data Scientist. “This study reveals the power that is locked in invoice data which can help drive positive change in the industry.”
Key findings of the study include:
Female partners earn an average 10% lower billable rate versus their male counterparts. This pay inequality is especially pronounced in the Mountain and South Central regions of the U.S. where rate disparity rises to 16% and 20% respectively.
Women are billed at significantly lower rates per hour than men, no matter what size of firm. The average female partner’s hourly rate is $47 less per hour or 10% less than her male colleague’s ($426 vs. $473) at top tier firms. The difference is even more significant at smaller firms where female partners are billed at $64 less per hour or 12% less than males at ($498 vs. $562).
Virtually no women are billed at over $1,000 per hour compared to 2% of men in top tier firms. While 6% of all male lawyers bill over $800, only 2% of female lawyers bill over $800. Furthermore, 51% of men in top tier firms charge over $500 per hour, compared to 31% of women in the same tier.
The differences in pay start early. At top tier firms, the average hourly rate of a female associate is $27 less per hour than her male colleague’s ($377 vs. $404). At smaller firms, 30% of women charge less than $150 per hour compared to 22% of men.
Based on invoice task codes, there are specific “female” jobs and “male” jobs. Only four jobs were “female” jobs (˃50% female): word processing (UTBMS code E103); fact investigation/fact development (L110); deposition (L330); and “other” (P280). By comparison, 177 jobs were “male” jobs: Juror research (Me210); Discovery On-Site Inspections (L360), International Patent Prosecution (PA600), Operations (B200), and Hosting Costs (L651) are most likely to be done by a man.
Female partners bill 24 minutes per day more than male partners. Male and female associates bill about the same number of hours per day, while female paralegals bill 121 minutes (or 22%) less than male paralegals.
“We value diversity and equality so hopefully law firms will look at their own data to make sure they’re sending the right message to clients in the marketplace. Also, it’s important to look at staffing and making sure women are staffed on the right matters,” Dr. Silvia Hodges Silverstein told NALFA.
“This is a groundbreaking study that’ll hopefully spur economic and social change in the legal profession. Plus, it’s good to see legal spend data used to drive positive change in the industry,” said Terry Jesse, Executive Director of NALFA.
Sky Analytics is the leader in legal spend management software. They analyze corporate legal invoices to give companies greater transparency into their legal spend and to benchmark their rates and matters against their peers. Their legal spend management platform is the only one that does not require a lengthy implementation or e-billing integration. For more information, visit http://www.skyanalytics.com.
A recent L.A. Times story, “L.A. Asks High Court to Reverse Fee Award in Homeless Case,” reports that the City of Los Angeles has asked the U.S. Supreme Court to overturn a $700,000 fee award to lawyers for skid row homeless people who successful challenged a ban on sleeping in the streets. The city, in a writ to the high court Wednesday, argued the case was resolved by private settlement, not a court judgment, and therefore the fee award was improper. Attorney fees generally go the winning party in a lawsuit.
With interest and other charges, the fees could top $1 million, a heavy burden for the city “with its precious resources already stretched to their limits and with the citizens of the City of Los Angeles enduring reductions in the most basic services,” attorneys for the city said in legal papers.
The suit was filed in 2003 by six skid row homeless people who claimed they were forced to sleep on the sidewalks because the city provided no other shelter. The U.S. Court of Appeals for the Ninth Circuit ruled the city’s ordinance against camping out in the street violated the Eighth Amendment barring cruel and unusual punishment.
While the city was appealing that decision, it reached a settlement with the homeless individuals. Under the settlement, the city promised to quit arresting people sleeping overnight on the sidewalks until it could provide 1,250 new units of supportive housing for homeless people.
The federal appeals court subsequently vacated its opinion, but the District Court awarded the plaintiffs’ lawyers fees, the city said. The fee award was later affirmed by the federal appeals court.
Attorney fee scholarship refers to empirical papers, reports and studies on attorney fees. These mostly academic works have been heavily sited by members of the bar in their fee applications and members of the bench in their fee rulings. Indeed, attorney fee scholarship drives attorney fee jurisprudence. NALFA would like to formally and officially acknowledge these seminal works on attorney fees.
Here are the nation’s most influential scholarship on attorney fees:
Theodore Eisenberg and Geoffrey P. Miller, “Attorney Fees and Expenses in Class Action Settlements: 1993-2008” (Journal of Empirical Legal Studies)
Brian T. Fitzpatrick, “An Empirical Study of Class Action Settlements and Their Fee Awards” (Journal of Empirical Legal Studies)
Brian T. Fitzpatrick, “Do Class Action Lawyers Make Too Little?” (University of Pennsylvania Law Review)
Lynn A. Baker, Michael A. Perino, and Charles M. Silver, “Setting Attorneys’ Fees in Securities Class Actions: An Empirical Assessment” (Vanderbilt Law Review)
Michael A. Perino, “Markets and Monitors: The Impact of Competition and Experience on Attorneys’ Fees in Securities Class Actions” (St. John’s University School of Law)
Theodore Eisenberg and Geoffrey P. Miller, “What is a Reasonable Attorney Fee? An Empirical Study of Class Action Settlements” (Cornell Law Faculty Publications)
Theodore Eisenberg, Geoffrey P. Miller and Michael A. Perino, “A New Look at Judicial Impact: Attorneys’ Fees in Securities Class Actions After Goldberg v. Integrated Resources, Inc.” (Washington University Journal of Law & Policy)
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A recent NLJ story, “Texas Fights Million-Dollar Legal Fee Award in Voting Case,” reports that a federal judge in Washington reached a “remarkable result” when she ordered...
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A recent Texas Lawyer story, “Is a ‘One-Sided’ Attorney-Fee Provision in an Arbitration Agreement Unconscionable?,” reports that the Texas Supreme Court held that allowing one...
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A recent Daily Report story, “Justices Say That Fee Shifting Can’t Rest Solely on Contingency Fee,” reports that how much in attorney fees to a plaintiff under Georgia’s offer...
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