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Attorney Fee Dispute in Rembrandt MDL Headed to Mediation

January 28, 2019 | Posted in : Fee Award, Fee Dispute, Fee Jurisprudence, Fee Request, Practice Area: Class Action / Mass Tort / MDL

A recent Law 360 story by Anne Cullen, “Attys’ Fee Battle in Rembrandt MDL Headed for Mediation,” reports that Rembrandt Technologies LP and a slew of cable companies it roped into patent suits stretching back more than a decade will try to mediate their dispute over the millions in attorneys’ fees racked up over the course of the litigation after an appeals court upended the companies' $51 million fee win in 2018.  A Delaware federal judge signed off on both sides’ push to bring the issue into mediation before Chief Magistrate Judge Mary Pat Thynge — who the parties said helped them in earlier attempts to mediate these cases — and ordered them to fill the court in on their progress by late March.

Rembrandt scored a partial win last year when the Federal Circuit upended the trial court’s multimillion-dollar fee ruling that called for Rembrandt to pay $51 million, a number equal to almost all the fees requested by the cable companies, broadcast networks and cable equipment makers caught up in the litigation.  In the ruling, which was made public in August, the panel agreed that Rembrandt’s misconduct was “exceptional” enough to justify a fee award — based on its failure to preserve evidence, its pursuit of patents it should’ve known were unenforceable and ethical violations surrounding witness payments — but they took issue with the lack of causal connection between the hefty fee award and Rembrandt’s behavior.

The panel later rejected Rembrandt’s push to overturn the trial court’s characterization of Rembrandt’s conduct as “exceptional,” and the case ended up back before U.S. District Judge Leonard P. Stark last week.  The group heading into talks with Rembrandt includes Comcast Corp., Charter Communications Inc. and NBCUniversal Inc., and both sides expressed their “interest in seeking an efficient resolution to the dispute.”  The parties told Judge Stark that if mediation fails, they’ll pull together a plan and a timeline for tying up the matter when they reach that point.

The long-running litigation dates back to 2005, when Comcast was hit with the first lawsuit in what would ultimately wind up as sprawling multidistrict litigation centered primarily on Rembrandt’s cable modem technology patents.  After the cases were consolidated in Delaware, a federal judge entered final judgment against Rembrandt as to all claims.

The case is In re: Rembrandt Technologies LP Patent Litigation, case number 1:07-md-01848, in the U.S. District Court for Delaware.