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Category: Fee Dispute

$43M Trust Not on the Hook for Attorney Fees in Georgia

March 12, 2024

A recent Law 360 story by Emily Johnson, “Ga. Panel Finds $43M Trust Not On Hook For Legal Fees”, reports that the Georgia Court of Appeals rejected a request from beneficiaries of a $43 million furniture fortune, finding that the trust's ex-trustees should not be saddled with attorney fees and litigation costs while the trust's beneficiaries sued them for allegedly mishandling the trust and overpaying themselves.

At the same time, an appellate panel said that former trustees Phillip Faircloth and Ted Sexton were not faced with a threat of irreparable injury, so the lower court erred in granting the interlocutory injunction that ordered the trust to pay for Faircloth and Sexton's attorney fees while the trust sues them.  The lower court's interlocutory injunction required the current trustees to take up the cost of the former trustees' legal battle, including attorney fees and litigation costs.  "In sum, the record lacks evidence to support a finding that the interlocutory injunction is necessary to prevent an irreparable harm having no adequate legal remedy," the appellate panel said.

Beneficiaries of a trust tied to furniture tycoon Sherwin Glass, who founded Farmers Furniture Co., sued Faircloth and Sexton in 2017.  The appellate court panel found that because the trust has been lending money to Faircloth and Sexton for their legal costs, they were not harmed, a requirement for an interlocutory injunction.  "Due to the loan by Farmers, they have not been harmed by going unrepresented, and any monetary harm can be remedied by repayment of interest paid pursuant to the loan," the appellate panel said.

The appellate panel left in place a lower court's rejection of the request that the former trustees reimburse the trust about $4.6 million in legal fees that had already been paid.  This is the third time the case has been before the state's Court of Appeals, according to the decision.

Counsel for the Glass Dynasty Trust told the panel in September that the injunction required the trust to pay 50% of attorney fees and costs incurred by two of the firms representing Faircloth and Sexton, as well as 100% of the fees incurred by another, within 14 days of receiving an invoice.

Representing Faircloth and Sexton, J. Randolph Evans, partner at Squire Patton Boggs LLP, told Law360 Pulse on Monday that the court's decision is one of the biggest decisions this year in the state, saying this has "turned indemnity/insurance law on its head."

"The whole purpose of us having [a] duty to defend is so we don't have to front money to the lawyer," Evans said. "They pay the lawyer. Now they're saying, you pay the lawyer, and sue the insurance company and get back the money."  Evans said that the decision means that the former trustees and others won't be able to enforce a duty to defend from insurance carriers or indemnitors unless you can't pay for your defense.

The implications of the panel's decision for Georgia are enormous, he said.  "They went one step further, which made people really react," Evans said. "It's not just that you don't have the money; if you can borrow the money, you can't enforce the duty to defend."

Eleventh Circuit: No Fees After Voluntary Dismissal in Copyright Case

March 8, 2024

A recent Law 360 story by Carolina Bolado, “11th Circ. Says Broker Can’t Collect Fees in Copyright Case”, reports that the Eleventh Circuit has ruled that a Florida real estate broker cannot collect attorney fees incurred for defending himself from a copyright infringement suit by an aerial photography company because the broker was not a prevailing party once the photography company voluntarily dismissed the case.

In an opinion issued Feb. 28, the appeals court affirmed a district court decision denying a request by real estate broker John Abdelsayed and his company Trends Realty USA Corp. for an award of their attorney fees and costs from Affordable Aerial Photography Inc.  That company had sued over the use of a copyrighted photograph on Trends Realty's website.

Abdelsayed and Trends Realty argued that they are entitled to fees under Federal Rule of Civil Procedure 68, which mandates a fee award if an offer to settle is not accepted and ends up being more favorable than the judgment obtained, and under the Copyright Act's cost-shifting provision.

But the Eleventh Circuit said they are not entitled to fees under Rule 68 because it only applies when a plaintiff has obtained a judgment for an amount less favorable than the defendant's settlement offer.  It does not apply in cases where the defendant wins a judgment, the appeals court said.  And because Abdelsayed and Trends Realty did not obtain a judgment, they are not prevailing parties in the suit and are therefore not eligible for a fee award under the Copyright Act, according to the Eleventh Circuit.

"The order of dismissal does not prevent AAP from refiling its claims," the appeals court said.  "And even assuming future action by AAP may be unlikely or now barred by the statute of limitations, those facts are irrelevant because the court did not rebuff or reject AAP's claims on any grounds."

Abdelsayed, who operates in the Palm Beach County market, was sued in August 2021 in the Southern District of Florida by Affordable Aerial Photography for using a copyrighted photograph on Trends Realty's site.  AAP moved to voluntarily dismiss the suit without prejudice a year later.

After briefing and a hearing, the district court granted the motion and dismissed the case without prejudice. The court ruled that if AAP were to refile its case, it would have to pay the defendants' reasonable attorney fees incurred in defending this case.  Two months later, Abdelsayed and Trends Realty asked the court to reconsider that order, claiming they were entitled to immediate recovery of their fees under Rule 68 and the Copyright Act. But the court denied the request.

On appeal, the defendants argued to the Eleventh Circuit that allowing this would create an incentive for a plaintiff to drop a case just before an expected adverse ruling, but the appeals court pointed out that the plaintiff can't do this unilaterally and that a dismissal must be approved by the court.  In this case, the district court held a hearing and found that the defendants would not suffer legal prejudice because their counsel was pro bono or on a contingency agreement, according to the appeals court.

Duane Morris Legal Bill Called ‘Seriously Inflated’

March 7, 2024

A recent Law.com story by Amanda O’Brien, “’Seriously Inflated’ Duane Morris Bill Highlights Risk When Big Law and Public Clients Lack Alignment”, reports that, as Duane Morris faces scrutiny over publicly obtained emails alleging that the firm delivered “seriously inflated” bills to a suburban Philadelphia school district following its investigation into allegations of rampant bullying against LGBTQ+ students, the dustup underlines how law firms’ work on behalf of public-sector clients demands a heightened level of communication.

The firm landed in the spotlight in the aftermath of a 151-page internal investigation report for the Central Bucks School District put together in April 2023 by a team led by partners Bill McSwain, the former U.S. attorney for the Eastern District of Pennsylvania, and Michael Rinaldi.  The report ultimately refuted allegations made by the American Civil Liberties Union in 2022 claiming that the school district created a hostile environment for queer students.

The investigation leading to the report took approximately six months, with the district bringing on McSwain and the firm in November 2022.  The bills referenced in the memo span from November 2022 to the end of October 2023, and outside reporting by The Philadelphia Inquirer indicates the bills, totaling around $1.1 million, were paid in December 2023. 

“One could spend countless hours picking apart this bill,” the email, authored by Edward Diasio, a partner at Montgomery County-based Wisler Pearlstine, said.  “The bottom line, from my standpoint, is that it is seriously inflated, and should be reduced considerably.”

Among the issues highlighted in the email were complaints of inefficient time management, vague time entries for hundreds of thousands of dollars of work, and an excessive number of attorneys engaged in repetitive tasks.   “The issue is that the Engagement Letter indicated two attorneys would lead the matter, and rely on help (where appropriate) at lower hourly rates,” the email raids.  “This was a good strategy in theory, but it was poorly implemented by Duane Morris.  The District should have benefitted from the efficiencies such a structure should have generated…”

“What happened, though, was that an army of attorneys was brought in and any efficiencies that could have been achieved were dramatically outweighed by the inefficiencies associated with managing such a large team and all of the internal communication and coordination that come along with that,” the memo’s introduction concludes.

Keeping the Client in Mind

According to several consultants, establishing client expectations around billing practices is a weak point, even a “lost opportunity,” for law firms. At the center of the issue, consultants said, is keeping in mind the client’s expertise when it comes to litigation or other legal matters.

“With corporate clients, often the client is an in-house lawyer. With public sector clients, you’re frequently dealing with people who aren’t lawyers,” Mantra Partner founder and CEO Marci Taylor explained.  “It’s more of an incentive to be as descriptive as possible about the nature and complexity of the task.  You’re writing knowing that there’s a high likelihood that your invoices will be made public.”

Law firm consultant Tim Corcoran also acknowledged that billing isn’t a one-size-fits all practice.  “There is quite a bit of forethought that goes into billing strategies because different circumstances call for different approaches,” Corcoran observed, contrasting in-house lawyer clients to government and public sector clients, and these also to third-party bill reviewers used by many corporate clients. 

Corcoran and consultant Stephen Ruben indicated that billing strategies and professional responsibilities change slightly according to the type of client.   “Normally if you’re dealing with a large corporation or corporations that have a lot of legal matters, they’re [used to] dealing with legal matters over time and have a greater ability to manage the relationship … they know what to ask for, they know what to expect,” Ruben explained.  “The firm has a different obligation when a law firm is dealing with people who are less experienced and sophisticated in dealing with lawyers and litigation.  Litigation is messy by nature.  One would think that when you are dealing with people who are not as experienced in litigation, you have a greater obligation to take them through the process step by step.”

And as for third-party billing reviewers, Corcoran noted that some firms take into account that reviewers might shave off some of the bill.  “It’s like the shopping trick.  Some firms will bill accordingly knowing that clients who put them through this review process will shave off some eventually,” Corcoran said.  “They may also take the exact opposite approach by only billing for the specific things enumerated … in the outside counsel guidelines, because they don’t want to risk the relationship knowing anything outside of that scope will have to be justified or defended.”

Setting Expectations Early

Law firms often fail to set client expectations on billing, Corcoran noted.  As a result, Corcoran said, it is often on clients to take the initiative and set expectations on billing for law firms.  And while some corporate clients may have the sophistication and resources to take charge here, public sector clients—with a shorter history in turning to Big Law for complex engagements—don’t have the same knowhow.  That can be a recipe for frustrations, as the Central Bucks School District’s review demonstrates.

“Failure to set or manage client expectations … is probably the greatest missed opportunity [at law firms],” said Corcoran.  “What lawyers believe is that because they cannot predict with absolute certainty how long something will take, the outcome, and what it will cost, they view it as binary, so few will provide a budget or cashflow guidance to help a client squirrel away funds.”

“It’s up to the client then to impose restrictions or guidelines or checkpoints to say ‘you need to let us know what your work in progress is, we need to be ahead of the pace of your billing,’” Corcoran continued.  “As a former CEO myself who’s managed the law department, I cared about the total amount we’ve got to budget for this … [I’d ask to] get me in the ballpark [of how much something would cost], even on a quarterly basis.”

“Few law firms do that because clients don’t ask for it,” Corcoran added.  The risk, of course, of avoiding early billing discussions is an unhappy client when the bill comes due.  “Not giving a heads-up is zero risk unless the client is unhappy … [then] the risk is that [clients] will subject the invoices to deeper scrutiny,” Corcoran said.  “The risk is you will expect one income stream and get something less than that … [and that] repeated behaviors like that can cause clients to go elsewhere.”

“Client defections are based on dissatisfaction not with the legal work but how the client is treated by the firm almost as an afterthought,” Corcoran continued. “They’re missing out on the ability to retain the client.”  Ruben suggested that firms address billing expectations early on in the relationship with a client, noting that “in generally, a good law firm will state expectations.  That’s what the retainer agreement is about.”

“It should include terms about how [the client] is going to be billed, and there should be conversations about that,” Ruben said.  “You’re dealing with people and when people are involved in a transaction, there’s often going to be a miscalculation of expectations on either side … when you have a monthly bill, issues that need to be managed more quickly come to the attention of both parties.”

Epic Games Calls Apple’s $73M Attorney Fee Request An Overreach

February 27, 2024

A recent Law 360 story by Bryan Koenig, “Epic Calls Apple’s $73M Fee Bid An Overreach”, reports that Epic Games blasted Apple for seeking $73.4 million in legal fees following the pair's California federal court antitrust battle over App Store payment fees, arguing that antitrust claims like Epic's are immune from legal fees and that Apple cannot wrap its demands in successful contract breach counterclaims.

Apple's fee bid, according to Epic, "overreaches at every turn" after the U.S. Supreme Court refused to consider a Ninth Circuit decision upholding a district court ruling largely siding with the iPhone maker, except on Epic's California state law claims targeting Apple rules barring app developers from steering users to alternative payment options.

"Apple seeks recovery of unrecoverable fees and costs incurred in defending against Epic's antitrust claims; it seeks recovery of fees and costs it incurred in defending against other plaintiffs' antitrust claims; and it seeks recovery of categories of expenditures that go beyond what the Ninth Circuit's ruling in this case permitted," Epic said in its opposition brief. "Apple even seeks its fees and costs incurred in seeking its fees and costs, even though the vast majority of those fees and costs it seeks are not recoverable and Apple made no effort to meet and confer with Epic to determine the scope of any dispute before filing the motion."

According to Epic, Apple's mid-January bid for legal costs is grounded in the latter's win on claims that Epic breached its developer program licensing agreement when offering users an in-app workaround for the up to 30% commission that Apple charges on in-app purchases, such as through Epic's Fortnite game juggernaut. Epic is only the most prominent of multiple plaintiffs to target those commissions.

The problem with a fees bid based on the contract breach claims, Epic said, is that a California state appeals court held in Carver v. Chevron USA Inc. that defendants, even ones who successfully defeat antitrust claims, cannot claim any fees incurred in that defense.  According to the brief, it doesn't matter that the developer program licensing agreement otherwise calls for plaintiffs to reimburse Apple.

"Moreover, any fees and costs that are 'inextricably intertwined' with those incurred in defending against antitrust claims also cannot be recovered, even if they were incurred also in connection with a breach of contract claim," Epic said.  "Apple may thus recover only those fees and costs it incurred specifically to litigate separable, non-antitrust claims — i.e., fees and costs attributable to work performed for Apple's contract claims that did not overlap with its defense against Epic's (or other plaintiffs') antitrust claims."

But Apple hasn't tried to separate or identify those costs, according to the brief. "To the contrary, Apple completely ignores this binding precedent and seeks primarily and specifically the unrecoverable fees and costs it incurred in defending against Epic's antitrust claims," it said.

Epic also assailed Apple for seeking to recover costs incurred in defending against other plaintiffs who'd also targeted the Apple rules leaving the App Store as the only way to get apps on iPhones.  It attacked Apple for going beyond the Ninth Circuit mandate to pursue only attorney fees; according to Epic, around 40% of the fees Apple has claimed cover costs for things like expert witness and consulting fees, travel and logistical support.  And it assailed Apple for seeking costs incurred from putting together the motion for costs.

"Moreover, Apple did not meet and confer with Epic prior to filing its motion as required by Civil Local Rule 54-5, and, as a result, incurred attorneys' fees and costs that it could well have avoided," Epic said.  "Specifically, Apple unilaterally engaged two experts and a team of nine analysts from an expert consulting shop to review its invoices, without so much as checking whether Epic intended to dispute any of its calculations or the reasonableness of the fees and costs it incurred."

Epic said it hasn't tried to assess the accuracy of Apple's fees bid, preferring to leave that issue until after the court determines the appropriate scope of any fees bid.  It further called a detailed review "wasteful when Apple has sought to sweep in much to which it is not legally entitled" and it assailed Apple for providing "only an incomplete set of materials just days before this opposition was due."

Law Firm Can’t Collect Fees From Los Angeles County

February 26, 2024

A recent Law 360 story by Craig Clough“Quinn Emanual Can’t Collect On LA County’$280K Legal Bill”, reports that a Los Angeles judge dismissed Quinn Emanuel Urquhart & Sullivan LLP's lawsuit seeking to collect more than $280,000 in legal bills from Los Angeles County, saying the claims should have been filed in a counter-suit after the defendants sued the firm several years ago.

Los Angeles Superior Court Judge Jon R. Takasugi issued a tentative opinion ahead of a morning hearing that outlined a plan to dismiss the suit claiming the county is refusing to pay the firm for defending former Sheriff Alex Villanueva when the Board of Supervisors sued him over the rehiring of a deputy accused of misconduct.

The judge wrote in the tentative opinion that the suit is blocked by California's compulsory counterclaim statute, which "provides that any cause of action 'related' to a complaint must be brought as a cross-complaint or else not brought at all."  After hearing arguments from attorneys from both sides, including on if he should allow leave to amend the suit, the judge sustained the county's demurrer to the complaint without leave to amend by making his tentative opinion final.

"I'm very convinced that the tentative is correct," Judge Takasugi said.  "And I don't think we can get around the leave to amend forever because we're in a finite universe here."  "I don't think giving you leave to amend is going to make any difference because everything is already done," he added.

Quinn Emanuel's August suit against the county, the Los Angeles County Sheriff's Department and Villanueva claims it provided legal services to the former sheriff in a lawsuit over his decision to rehire a deputy.  The law firm claims the county blocked it from receiving a $280,075 payment for the "first few months of legal services."

The dispute stretches back to February 2019, when county counsel informed Villanueva that he would need to select independent counsel to represent him in a lawsuit filed by the Board of Supervisors over his decision to rehire Deputy Caren Carl Mandoyan after he had been fired over alleged personal and professional misconduct, according to the suit.

Villanueva then retained Quinn Emanuel, which drew up a written agreement effective March 4, 2019, the complaint states.  It included anticipated billing rates ranging from $695 per hour to $1,400 per hour, but also acknowledged that the Board of Supervisors had agreed to pay an unspecified amount of the sheriff's and LASD's legal bills, according to the suit.

After the county sought a temporary restraining order, Quinn Emanuel appeared at the hearing on March 6, 2019, on behalf of the sheriff and the LASD, the suit states. While there, none of the county's attorneys objected to Quinn Emanuel's representation, nor did they suggest that a contract between the Board of Supervisors and Quinn Emanuel was required, according to the complaint.

After litigating the case for about a month, county counsel suddenly demanded that Quinn Emanuel enter into a contract with it in order to be paid, the complaint states.  Quinn Emanuel eventually substituted out of the case in January 2020, according to the complaint.  Payment of several invoices for the first few months of legal services was approved internally by the county, but its counsel interceded and blocked payment to Quinn Emanuel, the suit stated.

The suit included claims for breach of contract and services rendered, among others. It sought compensatory damages, interest, attorney fees and litigation costs.