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Category: Fee Request

NALFA Announces The Nation’s Top Attorney Fee Experts of 2019

August 20, 2019

NALFA, a non-profit group, has a 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 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.  The following NALFA profile quotes are based on bio, CV, case summaries and case materials submitted and verified by us.  Here are the nation's top attorney fee experts of 2019:

"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
 
"Outstanding Skills Assessing Reasonable Attorney Fees in Class Actions"
Stephen J. Herman
Herman Herman & Katz LLC
New Orleans, LA

"The Nation's Top Bankruptcy Fee Examiner"
Robert M. Fishman
Fox Rothschild LLP
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
 
"Strong on Fee and Billing Issues in Mass Torts"
Craig W. Smith
Robbins Arroyo 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
JAMS
Los Angeles, CA
 
"Understands Fees, Funding, and Billing Issues in Cross Borders 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 Rejects $200K Fee Request for $5K Settlement

August 15, 2019

A recent Law 360 story by Lauraann Wood, “$200K Fee After $5K Deal ‘Makes No Sense,’ Ill. Judge Says,” reports that an Illinois federal judge granted photo agency FameFlynet Inc. $10,500 of its request for $241,000 in attorney fees after settling a copyright suit for $5,000, saying awarding anything more after two-and-a-half years of avoidable litigation “makes no sense.”  FameFlynet and Jasmine Enterprises Inc. stipulated to the $5,000 in damages under the Copyright Act after U.S. District Judge Thomas Durkin ruled Jasmine was liable for publishing three photos of Nicky Hilton and James Rothschild’s wedding on a blog in 2015.

But the photo agency’s case only reached summary judgment issues because it canceled settlement talks and litigated discovery disputes after learning the parties were $1,000 apart during negotiations that happened three weeks after serving of its complaint on Jasmine, Judge Durkin said.  “For FFN to then incur hundreds of thousands of dollars in fees simply makes no sense, and it should not be rewarded for what should have been a straightforward case,” Judge Durkin said.  “This case exemplifies the familiar adage of cutting off your nose to spite your face,” he said.

The fee award represents a little more than the FFN incurred when it rejected Jasmine’s initial $15,000 settlement offer in November 2016 plus its filing fee and process server costs, since “the fault does not lie exclusively with FFN for failing to settle, and its early work advanced the goals of the Copyright Act,” Judge Durkin said.  But awarding FFN its entire fee request “would not advance considerations of compensation and deterrence,” since Jasmine removed the infringing photos the day it received notice of infringement and hasn’t posted to the blog since 2015, he ruled.

The agency argued that declining to award it fees would deter future plaintiffs from pursuing claims, but Judge Durkin said his concerns over awarding FFN's request was different.  “Far from advancing the Copyright Act’s goals, awarding FFN its requested fees would incentivize parties to reject reasonable settlement offers in hope of cashing in on enormous attorneys’ fees down the line,” he said.

Craig Sanders of Sanders Law PLLC, who represents FFN, told Law360 in an email that the judge’s decision to award fees was proper.  But he “appears to have committed reversible error” by failing to comply with Seventh Circuit and Supreme Court precedent by using the so-called lodestar method to calculate a reasonable fee in the photo agency’s case, Sanders said.

Jasmine claimed its photo publication was fair use before Judge Durkin sided with FFN on liability and said Jasmine likely would not win on that defense.  FFN argued that Jasmine’s defense was objectively unreasonable given “existing case law,” so fighting it warranted a fee award.  But Judge Durkin disagreed, saying the agency inaccurately “conflates whether a defense was successful with whether it was reasonable.”

“Losing on the merits does not establish that a party’s position was objectively unreasonable.  Otherwise, a losing defendant would ‘virtually always be found to have done something culpable,’” Judge Durkin ruled, quoting the U.S. Supreme Court’s ruling in Kirtsaeng v. John Wiley & Sons Inc.

FFN had demanded $16,000 to settle its copyright suit, and ended negotiations after Jasmine offered $15,000, according to Judge Durkin’s order.  Jasmine offered $15,000 to settle the case at several other times during litigation, including after the agency filed its bulky fee bid.  But assuming that constitutes poor litigation conduct would mean Jasmine’s offer was unreasonable in the first place, Judge Durkin said.

Major Fee Reduction Because of Whistleblower’s Conduct

August 13, 2019

A recent Law 360 story by Bill Wichert, “Novartis Attys Get Reduced Fees Over Whistleblower’s Antics,” reports that a New Jersey state judge awarded fees and costs to Nukk-Freeman & Cerra PC and McCusker Anselmi Rosen & Carvelli PC as counsel to Novartis Pharmaceuticals Corp. based on a onetime executive's misconduct during a trial in her successful whistleblower suit. But the award was much less than the firms requested.  Superior Court Judge Louis S. Sceusi awarded a total of $8,466 to the two firms — less than a third of what they had been seeking — as a result of Min Amy Guo's "contemptuous, disruptive conduct" on three occasions, including when she purportedly told a defense witness in a restroom, "[s]ave your soul and tell the truth," court records show.

"Because plaintiff's actions disrupted the trial, they required defendant's attorneys to allocate trial and research time to respond and address these matters," Judge Sceusi said in his statement of reasons.  The two firms had sought about $32,000 in fees and costs with respect to Guo's misconduct, according to the judge's opinion.

That request was based on 4.6 hours each of trial attendance for lead attorneys John B. McCusker of McCusker Anselmi and Patricia Prezioso of Nukk-Freeman & Cerra, at $395 and $390 per hour, respectively; three hours for Novartis' trial technician and equipment rentals; and 110.57 hours for "research, production of written memorandum, and strategy," the opinion said.  The judge found that the hours and rates attributed to the trial attendance of McCusker and Prezioso were reasonable, citing the attorneys' "experience, reputation, and the complexity of the case."

"After each incident, the court recessed the jury, called counsel to sidebar or into chambers to discuss what happened and to air opinions of counsel on the remediation," Judge Sceusi said.  "This court agrees that both counsels' assessment of the time misdirected on these matters is reasonable and quite conservative."  The judge awarded $1,817 and $1,794, respectively, for McCusker's and Prezioso's trial attendance.  He also awarded the requested $855 to Nukk-Freeman & Cerra for the technician's time and the equipment rentals.

But Judge Sceusi concluded that the 110.57 hours for research and writing "exceeds the bounds of necessity and fairness."  Instead, the judge awarded each firm eight hours at $250 per hour for that work.  "The court does not believe it was necessary for both defense law films to expend so much manpower or hours on these specific issues," the judge said.  "The 110.57 hours of combined research, in this court's view, 'exceed those that competent counsel reasonably would have expended to achieve a comparable result' and must be excluded as redundant and unnecessary."

Ambiguous Settlement Proposals Doom Insurer’s Request for Attorney Fees

August 9, 2019

A recent Daily Business Review story by Steven Meyerowitz, “Ambiguous Settlement Proposals Doom Insurer’s Bid for Attorney Fees,” reports that the Third District Court of Appeal affirmed an order denying an insurer’s motion for attorney fees and costs, concluding the indemnity provision in settlement proposals was ambiguous and would cause additional litigation rather than fair settlement of the dispute.  On July 31, 2015, Shanika Brown and Juanita Reid filed a claim with their insurer, Safepoint Insurance Company, for water damage. Brown and Reid subsequently sued Safepoint to recover damages for the alleged loss.

On May 11, 2017, Safepoint served separate proposals for settlement on both Brown and Reid, offering $2,500 each.  If either accepted the proposal, she would agree to indemnify Safepoint for attorney fees and costs, including any incurred from continuing litigation should the other party not settle.

Safepoint’s proposal to Reid stated: “Upon acceptance of this Proposal, Plaintiff shall defend and indemnify Safepoint Insurance Company, against any and all claims in any way related to the subject matter of this litigation, including, but not limited to, any remaining claims by Shanika Brown, any other named or omnibus insured(s), any mortgagees, any public adjusters, and any and all attorney’s fees, costs, and expenses incurred by Safepoint Insurance Company in defending the same, as well as any attorney’s fees and costs incurred in defense of such claims.”  Brown received an identical proposal, except it required indemnification against Reid.

On Sept. 27, 2017, the trial court granted summary judgment in favor of Safepoint. The company then moved to recover attorney fees and costs.  After a hearing, Miami-Dade Circuit Judge Bronwyn Miller denied Safepoint’s motion, concluding its proposals were, “at a minimum ambiguous, and violate[d] the differentiation requirement under Florida Rule of Civil Procedure 1.442(c)(3).”

Safepoint appealed, and the appellate court affirmed.  In its decision, the appellate court explained Rule 1.442(c)(3) requires that a joint proposal for settlement “state the amount and terms attributable to each party.”  It added that Florida Statutes Section 768.79(6)(b) requires courts to weigh “the amount of the offer” against “the judgment obtained.”

The appellate court then pointed out that, in Attorneys’ Title Insurance Fund v. Gorka, 36 So. 3d 646 (Fla. 2010), the Florida Supreme Court held that a proposal by an insurance company to multiple offerees was invalid because the proposal did not allow each individual offeree “to settle the suit knowing the extent of his or her financial responsibility.”  The Florida Supreme Court reasoned that if a proposal required mutual agreement and only one party agreed, he or she was forced to participate in further litigation out of his or her control, which went against the goal of ending litigation through settlements.

The Third DCA found Safepoint’s proposals “would only cause further litigation.” If Brown accepted Safepoint’s proposal and Reid continued litigation, Brown would be obligated to pay Safepoint “an indeterminable amount of money,” which went against the particularity requirement of Rule 1.442.  The appellate court ruled the trial court could not weigh the proposed amount versus the judgment as required by Section 768.79 because the future legal fees were an unknowable variable to be subtracted from the offered $2,500.

The appellate court observed the proposals prevented Brown and Reid from independently evaluating the offer.  “Absent joint acceptance, a settling plaintiff would be unable to evaluate her true financial exposure,” Judge Ivan Fernandez wrote for a unanimous panel.  The proposals divested Brown and Reid “of independent control of the decision to settle,” were tacitly contingent upon joint acceptance, failed to identify financial exposure and were “patently ambiguous,” he wrote.

Special Fee Master to Review Billing Entries in $21M Fee Request

August 8, 2019

A recent Law 360 story by Dorothy Atkins, “BladeRoom’s $21M Fee Bid for IP Win Sent to Special Master,” reports that a California federal judge said he’ll appoint a special master to review BladeRoom's billing records and decide whether Emerson Electric Co. owes the data center manufacturer $21 million in attorney fees after a jury found the company used stolen trade secrets to land a $200 million Facebook contract.

During a hearing in San Jose, U.S. District Judge Edward J. Davila said he doesn’t have the staff or time to review all of the billing records of BladeRoom Group Ltd.'s counsel to determine if $21 million in attorney fees and $3.5 million in costs is appropriate and warranted, but he said a special master would be able to do it efficiently.  The judge also acknowledged that close review of the records is warranted, given the large amount in fees that BladeRoom is seeking.  “Nobody is indicating that this is an insignificant amount of fees in this case,” the judge said. “The plaintiffs say in their motion it’s a big number, because it’s big work done.  We all recognize it’s a large number."

Judge Davila suggested he appoint a local retired state judge, James P. Kleinberg, to serve as a special master, but he gave the parties until Aug. 13 to suggest alternatives.  He said he’ll appoint one within the next few weeks.  The fee request is the latest in a hotly contested legal battle that the U.K.-based BladeRoom launched in March 2015 against Facebook and Emerson. In the suit, BladeRoom accused the pair of stealing its method for manufacturing and installing prefabricated data centers, which it had pitched separately to both Facebook and Emerson in 2011.  After those meetings, BladeRoom claimed the two larger companies began secretly working together to steal BladeRoom's proprietary techniques for the Facebook project.

Facebook settled BladeRoom’s claims mid-trial in April 2018 and a month later, a jury found that Emerson owed BladeRoom $30 million for willfully using two of four asserted trade secrets to build a Facebook data center in Lulea, Sweden.  In March, Judge Davila found that the California Uniform Trade Secrets Act entitles BladeRoom to reasonable attorney fees and costs, but he didn’t determine the amount owed at the time.

In its motion for fees, BladeRoom said it's owed $21 million in fees and $3.5 million in costs to cover its litigation expenses and the time the company’s attorneys spent conducting a year-long investigation leading up to its suit.  But in its opposition, Emerson argued BladeRoom's “staggering” fee request is too high, unprecedented and unjustified, particularly because BadeRoom was only successful on two of the 29 trade secrets it originally asserted against the company.  “There is simply no fee award in an intellectual property case that even approaches what BladeRoom seeks here,” the opposition brief says.

During the hearing on the motion, Emerson’s counsel, Rudolph A. Telscher Jr. of Husch Blackwell LLP, also asked Judge Davila for the third time to let them review Facebook’s settlement so they can determine how BladeRoom's fee request compares to how much Facebook paid.  Telscher noted that if confidentiality is a concern, only the attorneys would review the deal, and they wouldn’t make the settlement public or show it to their client.

But Facebook’s counsel, Kristine Anne Forderer of Cooley LLP, disagreed, arguing that the settlement was entered with the understanding that the deal would be confidential.  Forderer noted that the record explicitly says the parties agreed to pay for their own litigation costs, so Emerson's counsel wouldn’t be learning anything new regarding BladeRoom’s fees.