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Category: Fee Request

Judge Approves Plaintiffs’ Fee Award, Citing Defense Fees

April 3, 2020

A recent Law 360 story by Dorothy Atkins, “Judge Oks $4.7M Atty Award, Citing Opponent’s Legal Bill,” reports that a California federal judge reduced a $50.4 million antitrust judgment against a Chinese telescope maker by $3.1 million, but awarded the rival plaintiff's counsel $4.7 million in fees and costs, pointing to the fact that Sheppard Mullin's defense bill was roughly twice the amount.  In a 29-page order, U.S. District Judge Edward J. Davila said Sheppard Mullin Richter & Hampton LLP has billed Ningbo Sunny Electronic Co. Ltd. more than $9 million to defend against Orion Telescopes & Binoculars's price-fixing claims.  That is approximately double the amount that Orion's counsel at BraunHagey & Borden LLP seeks in its post-trial fee bid, the judge said.

"The court finds that this disparity in billing between the two firms is strong evidence that BHB's bills and costs are reasonable," the order says.  The ruling is the latest in an antitrust lawsuit that the California-based Orion filed against Ningbo Sunny and other telescope makers in 2016, alleging that they conspired to fix the consumer telescope market.

After a six-week trial, a jury in November hit Ningbo Sunny with $16.8 million in antitrust damages, which were later trebled for a total judgment of $50.4 million, payable to Orion.  But in post-trial motions, Ningbo Sunny asked Judge Davila for a new trial or alternatively to slash damages from the judgment by more than $12 million to account for settlements from other companies and profits from its supply agreements.

Meanwhile, Orion's counsel asked Judge Davila to award nearly $5 million in attorneys' fees and costs and to sanction Ningbo Sunny and its chairman, Peter Ni, for falsely stating under oath that Ningbo Sunny wouldn't transfer assets to China while post-trial motions were pending.  After a hearing on the motions in March, Judge Davila hit Ningbo Sunny and Ni with sanctions.  The judge also denied Ningbo Sunny's request for a new trial and its alternative request for judgment as a matter of law.

Additionally, the judge wouldn't alter the judgment based on Orion's purported profits from supply agreements, concluding that Ningbo Sunny relied on an inadmissible expert report and "failed to carry its burden" to prove Orion made millions off of its supply agreements.  However, Judge Davila agreed in part with Ningbo Sunny's arguments that the judgment should be altered due to certain settlements and assets it required, and deducted $3.1 million from the $50.4 million judgment.

Additionally, the judge awarded Orion $4.7 million in attorney fees and costs for an amended judgement totaling $52 million.  The judge said BraunHagey & Borden's hourly rates, which range from $425 to $795, are reasonable and in line with rates that have been approved in other cases, particularly since this case was complex and hard-fought.

The judge also rejected Ningbo Sunny's arguments that the fee bid should be rejected altogether since the firm didn't submit its billing records for review.  "The court finds that significant difference in bills between the two law firms indicates that the claimed hours are reasonable under the circumstances, so the court may rely on Hagey's declaration — which was made and signed under penalty of perjury — without reviewing contemporaneous billing records," the order says.

$3.8M in Attorney Fees Sought in Sorin MDL

March 30, 2020

A recent Law 360 story by Matthew Santoni, “Anapol Weiss Seeks Much of $3.8M Sorin MDL,” reports that Anapol Weiss is seeking nearly $2 million for helping clients reach a global settlement over allegations that the former Sorin Group USA’s heater-coolers put heart surgery patients at greater risk of contracting dangerous bacterial infections, according to a filing in Pennsylvania federal court.  In its filing, the firm sought approval of a total of $3.8 million in fees and $441,000 in expenses for itself and 14 other firms that had worked toward a $225 million global settlement with Sorin, now known as Livanova PLC, which would leave about $334,000 in a common fund established for payment of fees and expenses to benefit all the cases gathered together under the multidistrict litigation.

“The size of the global settlement fund is approximately [$225 million] and a substantial number of individuals benefitted from the settlement program devised by lead counsel and members of the [plaintiffs’ executive committee], including plaintiffs with suits in the MDL and various state courts as well as others with unfiled claims,” the petition said.

As lead counsel, Anapol Weiss sought $1.7 million in fees and more than $250,000 in expenses for nearly 2,000 hours of “common benefit” work, with other firms —  including Johnson/Becker PLLC, Hayes Lorenzen Lawyers PLC and Chaffin Luhana LLP —  claiming the rest of the request for $3.8 million in fees and $440,000 in expenses from the fund.  Anapol Weiss also asked U.S. District Judge John E. Jones III to reduce the 6 percent assessment he’d put on all monetary recoveries in the MDL that fed into the common benefit fund.

In the original lawsuit, filed in 2016, lead plaintiffs Edward Baker and Jack Miller had sought medical monitoring and a declaration from the court that the Sorin 3T heater-cooler device, used to control the temperature of a patient’s blood during open-heart surgeries, was defective.  The devices allegedly made patients more susceptible to a slow-growing but potentially fatal bacterial infection from a family of bacteria known as nontuberculosis mycobacterium, or NTM.

Spearheaded and hosted by Johnson/Becker, the executive committee gathered data on potential claimants and negotiated the proposed settlement with Livanova, the petition said. Livanova and Anapol Weiss announced that they had reached a global settlement in March 2019, while the Baker case reached its own settlement in October.

The petition said the fees were reasonable given the amount of work required, the complexity of the case and the relative size of the global settlement.  “The current request for a total fee award of $3,750,000 represents less than 2% of the global settlement and is well within the range deemed reasonable in similar cases,” the petition said.

An earlier case management order had set an assessment of 6%  from each claimant’s monetary awards, including 2% for common-benefit fees and 4% for expenses.  Though it did not set a new target, Anapol Weiss requested that the court lower the assessment based on costs so far, and streamline the allocation of money from the fund.

“The actual common benefit costs were only 0.19% of each claimant’s gross monetary award,” the petition said. “Lead counsel requests that CMO 5 be modified to reduce the cost assessment and eliminate the need for a CPA to review the time and expenses as there is an agreement for the allocation among all counsel receiving a common benefit fee award and/or common benefit expense reimbursement.”  The remainder of the common benefit fund would be reserved for any future common work and the estimated $3,200-a-month cost of maintaining an online document repository, the petition said.

Class Counsel Earn $8.3M in Fees in Resistor Antitrust Action

March 25, 2020

A recent Law 360 story by Nadia Dreid, “Cotchett Pitre Gets $8.3M in Fees in Resistor Antitrust Fight,” reports that Cotchett Pitre & McCarthy LLP will walk away with $8.3 million for its role in securing a $33.4 million deal for indirect buyers who say that Panasonic Corp. and other electronics companies overcharged them for resistors.  A California federal judge gave the settlement and accompanying attorney fee request his final blessing, finding that both were "fair and reasonable" and that the firm asked for less than it could have.

"Counsel for [indirect purchaser plaintiffs'] requested fee award represents less than 73% of their reasonable lodestar, a negative multiplier.  This further supports the reasonableness of class counsel for [indirect purchaser plaintiffs'] attorney fee request," U.S. District Judge James Donato said in his ruling.  The firm requested — and will be pocketing — about 25% of the settlement as attorney fees, as well as an additional $1.4 million as reimbursement for expenses, according to the court's order.

Class counsel ended up going with the percentage method to calculate its fees.  In cases where classes opt for the percentage method, 25% is normally used as a benchmark in California, with a possibility for attorneys to receive up to 30% of the settlement fund, depending on the circumstances.  But Cotchett Pitre won't get all those funds yet.  A quarter of the $8.3 million in attorney fees will be held back until the firm has finished up its post-distribution accounting, Judge Donato said in his order.

The fee approval was smooth sailing for the indirect purchaser attorneys compared to the ordeal faced by their colleagues representing direct purchasers of the resistors.  Judge Donato ripped into their $10 million fee bid for being "insufficient" in a September order, scolding Hagens Berman Sobol Shapiro LLP and Cohen Milstein Sellers & Toll PLLC for failing to provide enough detail and reasoning in their fee request in what he called a "disservice to the class and the court."  The judge did eventually greenlight the $10 million in attorney fees at a second hearing, after receiving billing charts that assured him everything was on the up-and-up.

Judge Reduces Attorney Fees in Target Class Action

March 24, 2020

A recent Law 360 story by Brian Dowling, “Target Class Settlement Doesn’t Merit Hefty Fee, Judge Says,” reports that a Massachusetts federal judge has slashed a plaintiffs' firm's cut of a $2.3 million class action settlement with Target over harassing debt collections calls by nearly a third, saying the case wasn't as risky as lawyers claimed and not complex enough to warrant the $758,333 requested.  Approving the settlement, U.S. District Judge Timothy S. Hillman trimmed back the fees requested by Lemberg Law LLC, citing the quick six months it took to settle.  Judge Hillman also rejected the firm's arguments that the "high risk" case warranted taking 33% of the settlement fund.

"The mere fact that there was some risk does not justify a fee request of such magnitude when contrasted with the lack of complexity of the present case and the relatively short time between the filing of the complaint and a negotiated settlement in principle," Judge Hillman wrote.  Instead, the judge awarded $523,250 to the attorneys, representing 23% of the total settlement, plus about $7,000 for expenses.  The judge gave the named plaintiff, Gabrielle Carlson, an incentive award of $7,500.  With about 5,500 claims filed as of December, that leaves enough in the settlement funds for about $315 per claim.

Lemberg said in a statement to Law360 the firm is happy the state's consumer protection statute is being enforced and "thousands of people will receive money" from the settlement.  The finalized settlement wraps up the class action that Carlson filed against Target Enterprises Inc. in 2018, claiming the retailer violated debt collection regulations and the state's consumer protection laws by calling Massachusetts residents more than twice in a single week.

Judge Hillman held the Target settlement up against a handful of others that lawyers took on contingency but still resulted in lower than a 33% cut from the overall fund.  Lemberg attorneys Sergei Lemberg and Stephen Taylor, and one paralegal, together filed for 570 hours in the case, at rates ranging from $650 for Lemberg to $125 for the paralegal, according to the order.

In addition to the case being less complicated, the firm didn't offer the court "full and specific accounting of the tasks performed by each attorney, the dates of performance, [and] a breakdown of the number of hours spent on specific tasks," Judge Hillman said, another factor that led to the court reducing the attorneys' cut.

Tech Firm Slams $24M Fee Request in IP Litigation

March 23, 2020

A recent Law 360 story by Hannah Albarazi, “Emerson Electric Slams BladeRoom’s $24M Atty Fee Bid,” reports that Emerson Electric told a California federal judge that BladeRoom doesn't deserve $24.5 million in attorney fees and costs, arguing that the data center manufacturer has gotten more than enough from a $77.4 million verdict in their favor over Emerson's use of stolen trade secrets to win a lucrative Facebook contract.  Emerson Electric Co. told U.S. District Judge Edward J. Davila via telephonic hearing that BladeRoom Group Ltd. overbilled for its work and shouldn't be granted its bid for $21 million in attorney fees and $3.5 million in costs.

BladeRoom also overredacted its billing statements, which made it impossible for Emerson to see what activity BladeRoom billed for and whether there was duplication of effort by counsel, said Emerson's counsel, Rudolph A. Telscher Jr. of Husch Blackwell LLP.  "Everything is blacked out," Telscher told the court. "The law does not allow redactions at this level."  But BladeRoom's counsel disagreed, arguing that they have worked hard to redact as little as possible.

Jeffrey M. Fisher of Farella Braun & Martel LLP, counsel for BladeRoom, told the judge that Emerson and Facebook's misconduct "overlapped so much" that it made it a challenge to differentiate the litigation, but that BladeRoom is only seeking to recover money for work that contributed to their victory against Emerson, not Facebook.

U.K.-based BladeRoom sued Facebook and Emerson five years ago, accusing the pair of stealing its method for manufacturing and installing prefabricated data centers, which it had pitched separately to 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 using its stolen trade secrets to land a $200 million contract to build a Facebook data center in Sweden.  Judge Davila ruled last year that Emerson owed BladeRoom $77.4 million comprising $30 million in compensatory damages, $30 million in exemplary damages and $17.4 million in prejudgment interest on the compensatory damages.

Emerson's counsel urged Judge Davila to adopt a special master's recommendations, which identified overbilling by BladeRoom from duplication of attorney effort and inefficient staffing.  The special master found last year that 40 percent of BladeRoom's billings were either improper or problematic, and recommended a 40 percent reduction in BladeRoom's lodestar, or a reduction of about $8.1 million.

Emerson's counsel told the court that the $77.4 million verdict more than makes BladeRoom whole.  Emerson also challenged BladeRoom's bid to recover in-house counsel fees, saying that they merely acted as a liaison and that BladeRoom failed to provide documentation to the contrary.  Emerson further expressed concern that the Facebook settlement may have funded part of BladeRoom's defense, and if so, that should be considered by the court in determining fees and costs.