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Category: Fee Shifting

Ninth Circuit Urged to Uphold $7M Fee Award in ConAgra Case

July 15, 2020

A recent Law 360 story by Kevin Penton, “9th Circ. Urged to OK $7M Atty Fees in ConAgra Label Fight” reports that the Ninth Circuit should affirm a California federal court's blessing of a settlement in which attorneys received nearly seven times what class members obtained in a dispute over ConAgra Foods Inc.'s labeling on oil products, as the deal conforms with legal precedent, the class has argued.  The deal, in which the class received $993,919 while its attorneys received $6.85 million, was fair and reasonable, as the case involved more than eight years of litigation, ConAgra agreed to pay up more than $68 million depending on the participation of class members, and the lawyers received compensation for only a portion of the work they put in, according to the brief by the class.

Objector M. Todd Henderson fails to recognize that the U.S. Supreme Court determined in a 1986 case known as City of Riverside v. Rivera that attorney fees may not only be based on a percentage of what their clients receive, but also based on statutory fees, according to the brief.  The class notes that Henderson's counsel at the Hamilton Lincoln Law Institute Center for Class Action Fairness repeatedly challenge class action settlements, alluding that lawyers and defendants collude to strike deals in which attorneys get paid and companies get to walk away.

"Appellant is eager to continue a crusade that finds plaintiffs' lawyer misconduct anywhere that plaintiffs prevail," the reads.  "No doubt there will be other windmills to tilt at, but this appeal concerns fees governed by specific state laws with statutory fee-shifting provisions, not appellant's 'high-level concerns.'"  In the suit, the buyers alleged that ConAgra mislabeled its Wesson oil products as "100% natural" even though they contain genetically modified ingredients. U.S. District Judge Margaret M. Morrow certified 11 classes in the case in 2015, and the settlement was given final approval in December, according to court records.

In the settlement, class members were eligible to receive 15 cents for up to 30 units of Wesson essential oils product they purchased without having to submit a proof of purchase, according to the brief.  Class members who sought reimbursement for more than 30 units would need to submit a proof of purchase.  Henderson told the Ninth Circuit in April that the Central District of California did not consider the deal's true value to the class when it granted the attorney fees — giving value to an injunction in the deal that is, in reality, worthless.

Fifth Circuit Says Fee Entitlement Needs Reconsideration

July 13, 2020

A recent Law 360 story by Michelle Casady, “5th Circ. Says $1M Atty Fee Request Needs Reconsideration” reports that the Fifth Circuit has determined that drilling data company Petrolink Services Inc. will get another chance to prove it's entitled to about $1 million in attorney fees for a lawsuit in which it beat back copyright infringement claims but was found by a jury to have unjustly enriched itself.  In an opinion, a three-judge panel agreed with Petrolink that a trial court had wrongly denied its request for fees without consideration in the lawsuit brought by competitor Digital Drilling Data Systems LLC, or Digidrill.  Digidrill accused Petrolink of hacking into its software at various oil rig sites in order to "scrape" valuable drilling data in real time.

Both companies appealed the trial court's judgment in early 2019.  After granting summary judgment dismissal on Digidrill's claims that Petrolink violated the Copyright Act and the Digital Millennium Copyright Act, the trial court denied Petrolink's request for about $1 million in attorney fees.  On appeal, Petrolink argued it was entitled to the award as the prevailing party on those claims.

Quoting the district court, the Fifth Circuit wrote that the lower court declined to award costs or fees to either side, because "both prevailed on different issues."  "It is difficult to make sense of this language in light of the fact that Petrolink only sought fees related to Digidrill's copyright and DMCA claims, on which Petrolink clearly and solely prevailed," the panel wrote.  "It matters not whether Digidrill ultimately prevailed on its state law unjust enrichment claim."  The Fifth Circuit sent the case back to the trial court for it to "properly analyze the motion" for attorney fees.

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
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
 
"Extensive Expertise on Attorney Fee Matters in Common Fund Litigation"
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 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

SCOTUS Stays Out of Fee Dispute in Humana ERISA Suit

June 22, 2020

A recent Law 360 story by Adam Lidgett, “High Court Stays Out of Fee Fight in Humana ERISA Suit” reports that the U.S. Supreme Court said it won't review the Fifth Circuit's finding that health insurer Humana doesn't have to foot a patient's six-figure attorney fees tab incurred in a suit over eating disorder treatment coverage.  The high court denied a petition from a plan beneficiary only referred to as Ariana M. that had asked the justices to review an appellate ruling that she wasn't entitled to attorney fees after she ultimately lost her attempt to get full coverage for a stay at a Utah treatment center.

A Texas federal court initially ruled in favor of Humana in the Employee Retirement Income Security Act case, and a Fifth Circuit panel later affirmed that decision.  Then in March 2018, a majority of the full Fifth Circuit breathed new life into the case when it adopted a lower standard for reviewing decisions by benefits plan administrators to deny coverage to workers.

Specifically, eight of 14 judges said in that 2018 decision that courts should apply de novo review — analyze a denial of benefits anew — unless the plan's documents explicitly give its administrator sole discretion to consider claims.  They overturned the court's 1991 Pierre v. Connecticut General Life Insurance Co. ruling, which held that de novo review applies to appeals challenging an administrator's interpretation of plan language but only lets courts analyze an administrator's interpretations of facts for abuse of discretion.

But even after Ariana M.'s case was kicked back down, Humana won summary judgment when the district court again said the insurer's denial was correct.  After she lost her bid to get about $140,000 in attorney fees, she again appealed to the Fifth Circuit.  The appellate court affirmed the second summary judgment ruling in Humana's favor, and also affirmed the denial of Ariana M.'s attorney fees bid.

She asked the high court for review earlier this year, arguing she could collect attorney fees under ERISA.  Ariana M.'s petition said the Supreme Court has already found that "an applicant need not be a 'prevailing party'" to be able to collect attorney fees under the applicable provision of ERISA.  She said she "need only achieve 'some success on the merits'" to be eligible for such fees.

Jenner & Block Win Attorney Fees in Pro Bono Case

May 14, 2020

A recent Law 360 story by Lauraann Wood, “Jenner & Block Gets Fees For Prevailing in Pro Bono Suit” reports that Jenner & Block LLP should receive attorney fees under the Illinois Civil Rights Act after the firm prevailed in a pro bono lawsuit launched on behalf of individuals who'd been denied birth certificates with changed sex designations, an Illinois state appeals court said.

A three-judge panel said a lower court incorrectly hinged its fee rejection on the fact that Jenner & Block's attorneys agreed to represent the individuals pro bono and direct any fee award to the American Civil Liberties Union's Roger Baldwin Foundation.  When statutes like ICRA say prevailing parties "shall" be awarded fees, "courts interpret it to mean that an award of fees is mandatory" unless some further qualification is statutorily required, it held.

"Nothing in the language or context of the statute indicates that the legislature intended anything other than that a circuit court is required to award reasonable attorney fees to a plaintiff who qualifies as a prevailing party under the Illinois Civil Rights Act," the panel said.  "Any other interpretation would disregard the plain and unambiguous meaning of the statutory language."

Illinois residents Victoria Kirk, Karissa Rothkopf and Riley Johnson sued Damon Arnold, the former state registrar for vital records, in 2009 after he'd cited certain interpretations of the state's Vital Records Act to deny their applications for new birth certificates.  Arnold issued the certificates after the residents sued and told them the department had stopped the practices that resulted in their application denials, which resulted in their suit getting dismissed as moot, according to the order.

The plaintiffs argued in their fee request that their case's resolution made them the prevailing party under ICRA's fee shifting statute, since their lawsuit was the catalyst for the registrar's changed position.  Arnold didn't dispute that position, according to the order.  The lower court awarded Jenner & Block $6,168 in costs but said Jenner & Block's pro bono counsel status meant it couldn't collect fees it hadn't actually incurred, according to the order.  However, that reasoning incorrectly reads extra qualifications into the ICRA's fee-shifting statute, the panel said.

Section 5(c) of the ICRA requires courts to award "reasonable" attorney fees to prevailing parties, but the statute "contains no additional qualifying language indicating that the fees must be 'incurred' by a prevailing party to be recoverable," the panel said.

The lower court also incorrectly found that courts tend not to allow statutory attorney fees where no fees were actually incurred, the panel said.  Fee availability is controlled by the language of the statute at issue in a case, and state courts follow the basic rule that "whether the attorney charges a fee or has an agreement that the organization that employs him will receive any awarded attorneys' fees are not bases on which to deny or limit attorneys' fees or expenses," the panel said, quoting case law on the issue.  The panel remanded the case for further proceedings because the lower court didn't outline any specific number of hours or fee amount that it would have provisionally allowed if it would have granted fees at all.