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Category: Fee Discovery

Judge to Decide on Access to Skadden Billing Records

January 11, 2021

A recent Legal Intelligencer story by Ellen Bardash, “Dela.’s TransPerfect Saga Reassigned to Pa. Fed Court as Bouchard Takes Step Toward Opening Skadden Billing Records” reports that Chancellor Andre Bouchard of the Delaware Court of Chancery has asked lawyers in the TransPerfect custodianship case whether billing records need to remain sealed.   If custodian Robert Pincus and attorneys with Skadden, Arps, Slate, Meagher & Flom consent to the records being opened, a complaint TransPerfect and CEO Phil Shawe filed against Bouchard demanding those documents Dec. 24 could become moot.

The move came the day after the long-running legal saga was transferred from a federal court in Delaware to the U.S. District Court for the Eastern District of Pennsylvania.  Bouchard’s letter to counsel in the original Court of Chancery case gave Pincus and his counsel with Skadden a Jan. 11 deadline to respond.

He said he wanted the lawyers to provide any reason that nine billing records need to remain sealed, or if they plan to file any additional fee petitions under seal.  As of the end of business Thursday, no response had been filed, and three Skadden attorneys working with Pincus in the custodianship did not respond for comment on whether they have objections to the documents being unsealed.

Based on his review of those documents in the previous few days, Bouchard wrote the billing documents didn’t appear to contain specific names or other information Pincus previously categorized as privileged.  With the bulk of those sealed records consisting of “billing minutiae” that wouldn’t fall under the court’s definition of confidential information and with the documents in question set to be discussed at a February motions hearing along with other loose ends in the custodianship case, Bouchard wrote he questions whether there’s a need to keep them sealed.

Martin Russo, an attorney for Shawe and TransPerfect, expressed concern Thursday that such a review of the documents hadn’t been done earlier.  “It’s a shame that we had to resort to suing the judge in federal court to get him to look at the documents that he should have looked at in the first instance, before he put a restraint on speech,” Russo said.  On Dec. 30, TransPerfect’s case was assigned to the District of Delaware’s Judge Leonard P. Stark, U.S. Court of Appeals for the Third Circuit Judge D. Brooks Smith reassigned the case to Judge Mark A. Kearney of the Eastern District of Pennsylvania.

TransPerfect and Shawe allege not being allowed to see or publicize the sealed billing records constituted First and 14th Amendment violations by not allowing them to both view and share information they say is key for the public to understand how the Court of Chancery operates.  Between August 2015 and May 2018, Bouchard ordered TransPerfect to pay almost $44.5 million to Pincus and his advisers.

By mandating the parties sign a gag order in order to view the sealed records, the complaint states, the court has made Shawe decide between being able to talk publicly about the records and being able to know exactly what those records say.  Not being allowed to view billing details behind fee petitions approved by the court is also a violation of due process rights, the complaint states.  Shawe and TransPerfect have asked for a declaratory judgment against Bouchard and an injunction requiring him to open the records if that declaration is ignored.

The Nation’s Top Attorney Fee Experts of 2020

June 24, 2020

NALFA, a non-profit group, is building a worldwide network of attorney fee expertise. Our network includes members, faculty, and fellows with expertise on the reasonableness of attorney fees.  We help organize and recognize qualified attorney fee experts from across the U.S. and around the globe.  Our attorney fee experts also include court adjuncts such as bankruptcy fee examiners, special fee masters, and fee dispute neutrals.

Every year, we announce the nation's top attorney fee experts.  Attorney fee experts are retained by fee-seeking or fee-challenging parties in litigation to independently prove reasonable attorney fees and expenses in court or arbitration.  The following NALFA profile quotes are based on bio, CV, case summaries and case materials submitted to and verified by us.  Here are the nation's top attorney fee experts of 2020:

"The Nation's Top Attorney Fee Expert"
John D. O'Connor
O'Connor & Associates
San Francisco, CA
"Over 30 Years of Legal Fee Audit Expertise"
Andre E. Jardini
KPC Legal Audit Services, Inc.
Glendale, CA

"The Nation's Top Bankruptcy Fee Examiner"
Robert M. Fishman
Cozen O'Connor
Chicago, IL

"Widely Respected as an Attorney Fee Expert"
Elise S. Frejka
Frejka PLLC
New York, NY
"Experienced on Analyzing Fees, Billing Entries for Fee Awards"
Robert L. Kaufman
Woodruff Spradlin & Smart
Costa Mesa, CA

"Highly Skilled on a Range of Fee and Billing Issues"
Daniel M. White
White Amundson APC
San Diego, CA
"Extensive Expertise on Attorney Fee Matters in Common Fund Litigation"
Craig W. Smith
Robbins LLP
San Diego, CA
"Highly Experienced in Dealing with Fee Issues Arising in Complex Litigation"
Marc M. Seltzer
Susman Godfrey LLP
Los Angeles, CA

"Total Mastery in Resolving Complex Attorney Fee Disputes"
Peter K. Rosen
Los Angeles, CA
"Understands Fees, Funding, and Billing Issues in Cross Border Matters"
Glenn Newberry
Eversheds Sutherland
London, UK
"Solid Expertise with Fee and Billing Matters in Complex Litigation"
Bruce C. Fox
Obermayer Rebmann LLP
Pittsburgh, PA
"Excellent on Attorney Fee Issues in Florida"
Debra L. Feit
Stratford Law Group LLC
Fort Lauderdale, FL
"Nation's Top Scholar on Attorney Fees in Class Actions"
Brian T. Fitzpatrick
Vanderbilt Law School
Nashville, TN
"Great Leader in Analyzing Legal Bills for Insurers"
Richard Zujac
Liberty Mutual Insurance
Philadelphia, PA

Judge Won’t Destroy Hourly Rate & Attorney Fee Data

April 22, 2020

A recent Law 360 story by Andrew Stricker, “King & Spalding Denied Destruction of Fee Docs in FOIA Case, reports that a federal judge in Washington, D.C. refused to grant a request from King & Spalding LLP to "turn back the clock" and destroy court records that included the firm's billing rates and other fee data.  Partially denying a recent motion from the law firm in a Freedom of Information Act case with the federal government, U.S. District Judge Amit P. Mehta also said he would not order officials at the U.S. Department of Health and Human Services and the Department of Justice to destroy or return copies of the documents they were served.

King & Spalding "asks the court to turn back the clock and treat the sealed material as if [the firm] had never intentionally placed it on the court's docket," Judge Mehta said.  "That the court cannot do."  The decision springs from the firm's attempt to cloak the billing rates of King & Spalding lawyers who sued the HHS and DOJ after the agencies refused to hand over information related to an investigation into medical implant manufacturer Abiomed, a King & Spalding client.

After winning the FOIA case, King & Spalding petitioned for attorney fees early this year, and attached sealed exhibits containing billing rates and information about the work the firm had done to support the fee motion.  But on April 8, one day after Judge Mehta said it was "untoward" of the firm to keep the information out of the public domain as it sought federal dollars, the firm moved to withdraw its fee motion as well as the sealed exhibits.  The firm's motion also requested a court order for its clerk and the government to "destroy all copies of the sealed exhibits in their possession."

The defense opposed the request, telling the court that it was unaware of any authority requiring them "to destroy copies of non-privileged documents that, upon service on the government, became part of a government system of records."  In his decision, Judge Mehta agreed that the firm had offered no justification for destroying the records, despite its citation of a New York federal court decision about courts' inherent powers over their own processes to prevent injustices.

King & Spalding "does not assert that defendants must destroy or return their service copy to prevent abuse, oppression or injustice," the judge said.  "Indeed, it seems that plaintiff's demand for relief is premised on little more than its mistrust of defendant's continued retention of the records.  But that is not a sufficient reason."

While Judge Mehta had previously ruled that the fee exhibits could not remain sealed, he reasoned that the firm's about-face on the fee request "changes that calculus[.]"  "Although the court continues to believe that the likelihood of competitive harm is low if the exhibits were made public, that factor does not override the absence of any genuine public interest in their unsealing," he wrote.

King & Spalding filed FOIA requests in 2016 seeking correspondence within the government about Abiomed.  The agencies dragged their feet for years and cost the firm "hundreds of thousands of dollars" in fees and costs in the ensuing litigation, which the government ultimately lost at summary judgement, according to the firm's Feb 3 fee motion.

PNC’s Says Legal Bills Are Off-Limits to Assault Victim

April 13, 2020

A recent Law 360 story by Cara Salvatore, “PNC’s Legal Bills Are Off-Limits in Assault Case, Bank Says,” reports that PNC Bank told a New Jersey court that a former wealth manager who won $2.4 million after being attacked by a customer has no right to see billing records from two PNC-hired law firms as she prepares a motion to recover legal fees.  PNC Bank NA asked a court to block former employee Damara Scott's March 19 subpoenas for billing records from two firms that are outside counsel to PNC, Ronan Tuzzio & Giannone and Goldberg Segalla.

A jury awarded Scott $2.4 million in February in her lawsuit claiming the bank failed to protect her from an attack by a man known for targeting female employees and customers of the bank for harassment.  Scott served the document requests "without leave of court," PNC said.  "Post-trial discovery is not permitted without leave except in proceedings to enforce a judgment." Further, the requests "improperly seek information protected by the attorney-client privilege and attorney work-product doctrine," the bank said.

PNC expects Scott to file a request for legal fees, but it said there should be no need for Scott to see any of PNC's legal bills at this time.  PNC hired Ronan Tuzzio after Scott sued in the fall of 2015 and hired Goldberg Segalla in July 2019, it said.

Scott's lawyer, Nancy Erika Smith, said that PNC's likely future challenge to the reasonableness of Scott's future fee request would open the door for a view of PNC's legal bills as well.  "If PNC wants to claim that plaintiff spent [an] unreasonable amount of time winning the case, I am allowed by law to look at the amount of time PNC lawyers spent losing it," Smith said.

Plaintiffs’ Must Produce Billing Records in NCAA $45M Fee Request

August 21, 2019

A recent Law 360 story by Dorothy Atkins, “NCAA Athletes Must Produce Billing Records in $45M Fee Ask,” reports that a California magistrate judge granted the NCAA's request for attorneys representing student-athletes to produce five years of billing records to support their bid for $45 million in fees for winning a ban on certain pay restrictions but said the cost of producing records can be added to their fees.

During a hearing in San Jose, U.S. Magistrate Judge Nathanael Cousins ordered the athletes to produce the records so that the NCAA's attorneys can review them and ensure there aren't clerical errors, double billing or charges for time the attorneys spent doing media interviews.  He said the records can be subject to a protective order if necessary and he's not waiving any attorney-client privilege.

He also acknowledged that the time and expense it takes for the athletes' counsel to produce the records might not justify the amount of money the NCAA could potentially save in reviewing the records.  However, Judge Cousins said the athletes' counsel can charge the NCAA for the work.  "That's clearly what the defense has asked for," the judge said.

The judge's ruling came at the end of a hearing on the athletes' request for $45 million in fees for securing a permanent injunction in March after a weekslong landmark antitrust bench trial that bars the NCAA from restricting student-athletes' education-related compensation.  After the decision, counsel for the athletes sought to recoup the $30 million they said they sank into the long-running litigation, plus another $15 million based on a 1.5 multiplier, in light of "the exceptional nature of the outcome," and roughly $1.3 million in costs.

During the hearing, Karen Hoffman Lent of Skadden Arps Slate Meagher & Flom LLP, who argued on behalf of the NCAA defendants, said they wouldn't object to awarding the five lead plaintiffs between $10,000 and $15,000 each.  However, she complained that the athletes' attorneys only submitted a list of attorneys and their work hours, which totaled 51,000 hours, to support their $45 million fee request.  "It's a lot of money they're asking for, with virtually no evidence or support," she said.  Lent argued that the NCAA is entitled to more details about the records so that they can review them with a "much more critical eye."

However, the athletes' counsel, Jeffrey L. Kessler of Winston & Strawn LLP, pushed back, arguing that the NCAA is trying to conduct an unfair "fishing expedition" into their billing records.  Kessler said there's no evidence that lead counsel's hourly rates are excessive or they've duplicated their work.  He said it would also be "enormously burdensome" to redact five-years worth of billing records, which he argued contains privileged work-product material.

Kessler added that if they have to produce their billing records, then the NCAA's legal counsel should also have to produce their records, which he said they don't want to do.  Kessler pointed out that approximately a dozen law firms representing the NCAA defendants have "dwarfed" the athletes in their legal fees and those firms had charged the NCAA defendants $60.7 million as of June 2018, which was months before a trial was held before U.S. District Judge Claudia Wilkin in November.  "The idea the size of [our request] warrants it is just false," Kessler said of the NCAA's demand for its billing records.

Kessler also argued that the injunction they achieved against the NCAA is an extraordinary result for athletes.  He noted that the athletes' expert, University of San Francisco professor Daniel Rascher, conservatively estimates that the injunction will provide NCAA athletes with $235 million a year in additional benefits.  Therefore, he said, a 1.5 multiplier is on the low end, considering $45 million represents 12.7% of the $235 million a year in additional benefits.