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Category: Fee Dispute

Second Circuit Upholds Attorney Fee Reduction in FACTA Settlement

April 10, 2019

A recent New York Law Journal story by Colby Hamilton, “Second Circuit Upholds Judge’s Slashing Attorney Fees in Fair Credit Law Settlement,” reports that the U.S. Court of Appeals for the Second Circuit affirmed a Manhattan federal judge’s order to cut down a fee request in a Fair Credit Reporting Act lawsuit, finding she had properly exercised her discretion, over arguments to the contrary from the plaintiff’s attorneys.  The Second Circuit ruling upheld a decision entered last May in which U.S. District Judge Valerie Caproni of the Southern District of New York refused to allow attorneys to collect approximately $83,000 in fees in their Fair and Accurate Credit Transactions Act (FACTA) case.

The plaintiff in the underlying matter, Joan Pasini, had brought two other suits in Manhattan federal court under the exact same premises.  In the Godiva suit, she ultimately secured a $5,500 settlement with the chocolate maker, after opting out of a class action settlement that would have awarded her up to $80.

As Caproni noted in her order, the Godiva action involved “no motion practice, no discovery, no contested hearings, a single status conference, which lasted less than 30 minutes, two telephone conferences, which also lasted about 15 to 30 minutes each, and one mediation session.”

The district court found there was “nothing reasonable” about the $83,000 figure submitted by Glendale, California, attorney Chant Yedalian and local counsel, attorney Sameer Birring.  Rather, the litigators were using FACTA as a “cudgel to attempt to extract an unreasonable fee.”

“Attorneys who take on consumer protection lawsuits are sometimes pursuing a public good—the individual damages are generally quite modest but there is a public interest in ensuring compliance with federal consumer protection laws,” the district court wrote.  “Counsel is entitled to recover reasonable fees, but this court will not aid and abet extortion.”

The 10-page complaint in the underlying suit replicates claims similar to the other FACTA suits brought by Pasini.  She claimed the chocolatier printed out a receipt for a credit card transaction that included the first six digits and the last four digits of the card number.  Under FACTA, no more than the last five digits of the card number are allowed to be on a receipt provided to the cardholder.

After opting out of the settlement and an initial figure from the chocolatier of the statutory settlement maximum of $1,000, Pasini demanded a $75,000 payment from Godiva, according to court papers.

The suit was filed March 10, 2017. On Sept. 29, the parties alerted the court that the settlement amount for the plaintiff had been agreed to for the far smaller sum of $5,500, but Godiva stated to the court that attorney fees remained an issue.  Attorneys for Godiva argued in opposition to the fees that counsels’ “aim throughout this case has been to generate the maximum amount of attorneys’ fees possible.”

Caproni agreed, finding the hourly rates proposed by opposing counsel in the “exceedingly straightforward case” exorbitant.  She cut Yedalian’s requested fee range of $550 to $650 an hour down to a “generous” $350 an hour, while bringing Birring’s $350 an hour requested rate down to $275.

Similarly, Yedalian’s 152 hours of billable work was “so out of proportion to the tasks he purportedly undertook” that Caproni said she had to “question the accuracy of the bills.”  All but five hours of the claimed time “was spent on low-level work that could have been accomplished by an associate or paralegal; tasks any competent attorney (much less one with 15 years of experience practicing in an area of the law that is neither sophisticated nor intellectually challenging) could have accomplished far more quickly.”

Caproni ultimately cut Yedalian’s hours billable at the new rate by 90 percent, leaving him with an entitled fee of $5,325.83, while Birring was, at a reduction of 65 percent to his hours, granted $1,020.25 in fees.  With the reduced costs of $620 provided to the plaintiff, Caproni’s order amounted to less than 10 percent of what Pasini sought.

On appeal, the panel of Circuit Judges John Walker Jr., José Cabranes and Robert Sack said Caproni was within her right to the substantial reduction “in light of the pervasive errors and exaggerations in the fee application.”  The panel went on to likewise support the district court’s gutting of travel fees for Yedalian, as “there was no reason local counsel could not attend the initial status conference instead of lead counsel from California.”

Insurers Fight Over Paying Attorney Fees in Litigation

April 4, 2019

A recent Law 360 story by Frank Runyeon, “Equinox Gym Insurers Battle Over Sex Assault Suit Fees,” reports that one of Equinox Fitness’ insurers is not paying its fair share of the luxury gym’s legal fees in an ongoing sexual assault lawsuit involving two former employees, Beazley Insurance Co. alleged in a complaint filed in California federal court.  In its 21-page filing, Beazley said that National Casualty Co. stiffed the fitness company when a worker claimed in a Jane Doe suit in Los Angeles Superior Court that another employee assaulted her and that she was retaliated against when she complained.  When NCC failed to pay, Beazley was stuck with the bill, according to the suit.

“Without satisfactory explanation, consideration of the facts, or reliance on any legal authority, NCC wrongfully denied coverage for the Doe Lawsuit on a number of unsupportable bases,” Beazley said.  “A significant portion of the Doe Lawsuit falls squarely within the coverage provided by the NCC Policies.”

In the meantime, Beazley says it’s stuck paying advance legal fees for Equinox’s defense in a case where the central allegation — that an Equinox massage therapist sexually assaulted a Pilates instructor and others on the premises — fell under NCC’s coverage, but not Beazley’s.  Beazley argued that both NCC’s general liability and employment liability policies required it to provide coverage to Equinox for any damages or lawsuit seeking damages for bodily injury, which, it said, would include the alleged sexual assault.  Beazley said its policies did not provide coverage for sexual assault claims, but did provide coverage for other allegations in the suit.

“Beazley noted that the claims in the Doe Lawsuit for harassment, discrimination, retaliation, and wrongful termination appeared to involve covered Wrongful Acts, but the claims for assault, battery, and ratification did not,” the company said.  The sexual assault lawsuit was filed in Los Angeles Superior Court in 2017, seeking damages for 11 causes of action, including sexual assault and battery, sexual harassment, discrimination, retaliation, failure to investigate and wrongful termination.

In her complaint, the Pilates instructor said that she and the massage instructor were Equinox employees who traded services at the encouragement of the company.  After the massage instructor assaulted her after-hours on the premises, she said she reported the incident to a manager who told her that at least four employees and three clients had previously said they “felt uncomfortable during a massage” with the man.  Several women later told her “they, too, were victims,” she said.  The instructor accused the company of failing to warn its clients about the man and then firing her after she took a leave of absence.

The case is Beazley Insurance Company Inc. v. National Casualty Company, case number 2:19-cv-02175, in the U.S. District Court for the Central District of California.

Contractor Challenges Fee Request in False Claims Act Case

April 3, 2019

A recent Law 360 story by Michael Phillis, “Contractor Fights ‘Cash Grab’ Fee Request in FCA Suit,” reports that a joint venture that included Bechtel Group blasted a whistleblower's bid for nearly $2 million in attorney fees and expenses as a "cash grab" after the contractor agreed to pay $3.2 million to resolve claims it lied about its subcontractors at a nuclear waste cleanup.  Washington Closure Hanford LLC told a Washington federal court that whistleblower Salina Savage and Savage Logistics LLC’s request for nearly $2 million in attorney fees, expenses and “fees on fees” was based on an elevated hourly rate of $800 and was generally unreasonable.  According to the memorandum filed, an appropriate fee award would be roughly $300,000 after applying a $150 to $400 per-hour rate.

The U.S. Department of Justice in June announced it settled the False Claims Act case for $3.2 million, ending accusations that WCH — a joint venture of AECOM, Bechtel and CH2M Hill Cos. Ltd. — made misrepresentations about its subcontractors while doing nuclear waste cleanup work at the Hanford Site in Washington state.  Savage and her company Savage Logistics, which received a $643,000 cut of the settlement, originally filed the suit against WCH in 2010 after having unsuccessfully bid on subcontract work.  Any attorney fees awarded would be on top of that amount.

“If the court grants Savage’s exorbitant request, Savage would recover nearly $2.6 million from WCH for a case litigated primarily between WCH and the [U.S. Department of Justice] that settled for $3.2 million,” the memorandum said.  “Savage’s motion is nothing more than a cash grab by a relator whose efforts did little to bring the case to resolution.”  WCH responded to what it said was an overblown request by Savage in March for a too-large share of fees.

According to WCH, Savage’s fee request was based on an inflated hourly rate that was inappropriate for the local area in which the litigation occurred.  It asked for too many hours and Savage was only involved in part of the litigation, which mainly was pursued by the federal government, which intervened in the suit.  “WCH spent its time and resources after intervention defending against the DOJ, not against Savage,” the memorandum said.  “The small number of hours worked by Savage’s counsel reflects only her limited role after intervention.”

In its request for fees, Savage said her efforts and those of her attorneys took years and resulted in an important settlement.  That work should be properly considered and compensated, according to court filings.  “Work performed by the attorneys securing the government’s participation and presenting Savage’s case to the court has created invaluable precedent over the viability of — and measure of damages in — False Claims Act cases predicated on false small-business certifications,” Savage’s March filing said.

Marisa Bavand, an attorney with Groff Murphy PLLC who represents WCH, said the fee request was "inflated."  "[The memorandum] also highlights the highly improper costs Savage is seeking to recover including costs associated with her personal office, undisclosed “interns,” copy paper and various other costs that are not recoverable," Bavand told Law360 in an email.

The case is United States of America et al. v. Washington Closure Hanford LLC et al., case number 2:10-cv-05051, in the U.S. District Court for the Eastern District of Washington.

Pelvic Mesh MDL Fee Committee Accused of Self-Dealing

March 29, 2019

A recent Law 360 story by Andrew Strickler, “Pelvic Mesh MDL Fee Committee Accused of Self-Dealing,reports that a group of firms that worked on cases for plaintiffs in the multidistrict litigation over pelvic mesh implants has accused fee committee members of self-dealing and obscuring the process of divvying up the case's proceeds.  In one recent filing, New Jersey-based personal injury firm Mazie Slater Katz & Freeman said the committee's recommendations on a split of the "common benefit" fees had largely ignored its role as one of the “driving forces and largest risk-takers” in the massive litigation.

The firm also said some members of the fee and cost committee had raised concerns that committee leaders — chair Henry Garrard of Blasingame Burch Garrard & Ashley PC, Joseph Rice of Motley Rice, and Clayton Clark of Clark Love & Hutson GP — had “predetermined” to give themselves the lion’s share of the fund at the expense of other firms.  Adam Slater of the Mazie Slater firm also claimed that in the “most glaring example of self-dealing,” attorney Bryan Aylstock of Aylstock Witkin Kreis & Overholtz pressured Garrard to up his firm’s award by $10 million by threatening to stop an Aylstock firm partner who sits on the committee from backing the award recommendation.

Retired Judge Daniel Stack, who was appointed by the court to oversee fee allocations, “stated that he ‘was sickened’ and ‘angered’ by this conduct, which he described as Mr. Aylstock pressuring [Garrard] when he was particularly vulnerable,” according to the filing.

The litigation accusing Boston Scientific Corp. of making defective pelvic mesh implants was first centralized in West Virginia six years ago as three MDLs covering 150 cases.  It later grew into seven MDLs with some 53,000 lawsuits.  In January, U.S. District Judge Joseph R. Goodwin in West Virginia ordered that 5 percent of all proceeds should be set aside for attorneys at 94 common benefit firms, representing some $336 million.  Stack and the fee committee issued their fee allocation recommendations to the court in mid-March.

In another March 26 filing, personal injury firm Kline & Specter PC also objected to its $3.745 million award from the common benefit fund, and said fee committee members were attempting a “mass taking.”  The Philadelphia-based firm, which has raised previous objections about the fee committee, also accused Stack of “rubber stamping” the committee’s recommended awards and severely underestimating the firm’s contributions in mesh-focused state court litigation.  “Mr. Stack’s methodology, if one exists, is severely flawed,” the firm said, calling his contribution “worthless.”

A third law firm, Ohio’s Anderson Law Offices LLC, also told the court the eight-member fee committee had authorized for their own firms 66 percent of the total pool, leaving the rest to 79 other firms.  Garrard, Rice and Clark “alone are enriching themselves with 41 [percent] of the total fund; an astonishing $143,669,635,” the firm said.  “By definition, this is self-dealing pure and simple.”

Gibson Dunn Seeks $18M in Fees After Copyright Litigation Win

March 26, 2019

A recent Law 360 story by Mike LaSusa“Gibson Dunn Seeks $18M in Fees for HPE’s Win Over Oracle,” reports that Gibson Dunn & Crutcher LLP lawyers have asked a California federal court to award Hewlett Packard Enterprise Co. nearly $18 million in attorney fees after the firm helped the tech giant fend off a software copyright suit by Oracle Corp. earlier this year.  HPE said its request for $17,879,638 in fees was less than the estimated $20 million it had spent defending itself against Oracle’s claims that HPE offered illegal updates to customers of Oracle's Solaris operating system as part of a scheme concocted by another company, Terix Computer Co. Inc.

Additionally, HPE pointed out that U.S. District Judge Jon S. Tigar dismissed all of Oracle's claims, though court records show Oracle has appealed the judgment to the Ninth Circuit. HPE also criticized the "inappropriately" aggressive litigation strategy of its Silicon Valley rival.  "Given HPE's complete success in the case, Oracle's unreasonable and aggressive approach in the litigation, and the need to compensate HPE and to deter Oracle, the court should grant HPE's motion and award HPE the reasonable fees it requests," the company said.  The parties met earlier this month to try to come to an agreement on the fee issue but weren't successful, HPE said in its filing.

The company said its request for $17.9 million was fair "given the complex, contentious and high-stakes nature of this lawsuit," and the fact that Oracle itself had received comparable attorney fees awards in similar cases, like a $28.5 million award in a case against Rimini Street Inc. and $120 million in a case against SAP AG.  A hearing on the motion for attorney fees is set for June 13, court records show.

The case is Oracle America Inc. et al. v. Hewlett Packard Enterprise Co. et al., case number 3:16-cv-01393, in the U.S. District Court for the Northern District of California.