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Category: Fee Statute

FL Appeals Court Orders Reconsideration of “Fees on Fees’ Ruling

July 9, 2020

A recent Daily Business Review story by Michael Mora, “Appeals Court Orders Reconsideration of $115K Legal Award for ‘Fees on Fees’ Litigation” reports that a Florida appeals court said a Miami law firm’s $115,000 fee award, already reduced from $200,000, must be reduced further because that award improperly encompassed the law firm’s work in asking for fees.  The ruling by the Third District Court of Appeal on cross-appeal ultimately stated the Silver Law Group is entitled to fees for its work in the underlying litigation, but ordered the Monroe County Circuit Court to reevaluate that amount.

The main takeaway lawyers should get from the ruling, said John W. Annesser, a partner at Annesser Armenteros in Miami, is that “fees on fees would not be awarded as a sanction” under Florida Statutes Section 57.105.   Annesser represents Silver Law, which saw its fee reduced in the ruling.  Annesser is planning to appeal the Third DCA’s decision to the Florida Supreme Court.  He said the ruling, if allowed to stand, would encourage needless litigation that is expensive to challenge.

According to the amended complaint filed in the circuit court, Silver Law sought fees for work that took place between June 2009 and December 2014 for “numerous legal matters” in which it represented Paul Bates and Coconut Cove Resort & Marina.  Silver Law eventually sued Bates and the resort for attorney fees amounting to nearly $203,500.  Bates, through his original counsel, Chepenik Trushin, filed a counterclaim alleging malpractice by Silver Law, according to the amended complaint.

The Circuit Court found the counterclaim was “malicious and frivolous,” which formed the basis for the sanctions award against Bates, the resort and their counsel.  Lawyers for Bates and the resort argued that the lower court abused its discretion by awarding any fees at all to Silver Law.  The Third DCA cited its 1995 decision in Eisman v. Ross, which found no statutory basis for a lower court to grant a portion of an award that represented cost and attorneys’ time spent litigating the amount of fees.

Annesser disputed that ruling, and cited to Florida Statutes Section 57.105, which states that when the “moving party proves by a preponderance of the evidence that any action taken by the opposing party … was taken primarily for the purposes of unreasonable delay,” the court should award damages for the reasonable expenses, including attorney fees and “other loss resulting from the improper delay.”  “As the court pointed out in oral arguments in the case, the effect for not rewarding the attorneys’ fees for litigating the amount of fees when it comes to a sanction,” Annesser said, “is to dilute the sanction itself and to encourage more litigation arising from the underlying sanctionable activity.”

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
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

Feds Urge DC Circuit to Deny Novel Fee Request in IP Case

June 12, 2020

A recent Law 360 story by Britain Eakin, “Gov’t. Urges Fed. Circ. To Deny Novel Fee Bid in IP Appeal” reports that after failing to fend off a $4.4 million fee award on top of a $200,000 judgment for infringing a metal treatment technology patent, the government has told the Federal Circuit it has no authority to grant an inventor's untested bid seeking supplemental fees for defending the fee award.

In a response filed to a May 29 request from Hitkansut LLC and Acceledyne Technologies Ltd. LLC for appellate fees — a matter the Federal Circuit hasn't addressed before under Section 1498 of the Patent Act — the government argued that only the U.S. Court of Federal Claims can grant fee requests under that provision of the law.  "There is no indication in the statute or its legislative history that Congress intended to include post-judgment attorneys' fees within the ambit of those recoverable.  By including the fees in the underlying compensation award, the statute is open to only one interpretation: that the ability to award ... attorneys' fees ends with the final judgment of the Court of Federal Claims," the response said.

The companies, owned by late inventor Donna Walker, who passed away in 2018, asked the appeals court for supplemental attorney fees after a three-judge panel on May 1 affirmed the U.S. Court of Federal Claims' March 2019 grant of fees.  The lower court found in 2017 that government researchers at the Oak Ridge National Laboratory directly took Hitkansut's patent-pending technology, which can be used to relax stressed metal in large metal structures like airplanes, without giving Walker any credit, funding or contracts.

Hitkansut and Acceledyne were able to recoup fees at the claims court under a provision of the Patent Act that allows independent inventors, nonprofits and small businesses to recover fees when the government infringes, provided they can show the position of the United States was not "substantially justified."  The Federal Circuit said in its May 1 opinion that the government's litigation position was not substantially justified because its arguments were contrary to the evidence in the case and the testimony of government employees, and that its invalidity argument was "contradicted by its own expert witness."  The court, however, instructed the parties to bear their own costs.

But Hitkansut and Acceledyne contend that the court has the authority to order the government to pay additional fees under Section 1498, which they argued is not limited to the claims court action and so entitles them to recoup all of their costs, including those associated with defending their initial fee bid.  And although the appeals court hasn't addressed whether fees for defending an initial fee bid can be recouped under Section 1498 before, Hitkansut and Acceledyne argued that the court has done so in Wagner v. Shinseki under an analogous law — the Equal Access to Justice Act.

The court in Wagner said that because he partially prevailed in defending against the government's challenge to his initial bid for fees, "he was entitled to supplemental fees."  The Wagner court reasoned that a prevailing party can recoup fees not just for underlying litigation but also for defending an initial EAJA fee request.  Hitkansut and Acceledyne urged the court to apply the same reasoning it did in Wagner to this case, but the government contends its reliance on Wagner is "misplaced" because it says the EAJA is "fundamentally different" from Section 1498, which it said doesn't give the Federal Circuit jurisdiction over supplemental fee requests.

Congress enacted the Section 1498 fee provision because it believed the EAJA was unavailable for such claims, the government said.  "Had it wanted to do so, Congress had a clear model in EAJA to insure recovery of appellate fees and costs.  But Congress selected a different path," the government said.

Federal Circuit: No Attorney Fee Awards for PTAB Cases

June 4, 2020

A recent Law 360 story by Ryan Davis, “Fed. Circ. Says It Can’t Award Atty Fees Tied to PTAB Cases” reports that the Federal Circuit said that it cannot award attorney fees for allegedly unreasonable conduct during a Patent Trial and Appeal Board case, saying such awards are only available for judicial proceedings and rejecting drugmaker Almirall's bid for fees from rival Amneal.  Almirall SA argued that Amneal Pharmaceuticals Inc.'s failed inter partes review challenge to its acne drug was so "exceptional" that it should have to pay attorney fees, which the Federal Circuit said appeared to be the first time it has been asked to consider how the fee-shifting statute applies to IPR appeals.

While Almirall said the law authorizes the Federal Circuit to award fees incurred during PTAB proceedings before an appeal is filed, the court disagreed.  It said it can award fees related to district court infringement actions, but "appeals from the board are a different matter."  The statute says "the court" may award fees, and that "speaks only to awarding fees that were incurred during, in close relation to, or as a direct result of, judicial proceedings," the Federal Circuit said.  "This language is simply inconsistent with Almirall's position that we can award fees incurred for work in patent office proceedings before this court has ever asserted its jurisdiction," it said.

Amneal had moved to voluntarily dismiss its appeal of the PTAB's decision that it hadn't shown Almirall's patent is invalid.  Almirall said it would agree on the condition that it was awarded fees, but the Federal Circuit granted the dismissal motion and denied the fee request.  As it prepared to market a generic version of Almirall's acne medication Aczone, Amneal challenged two of the patents on the drug in inter partes reviews. Almirall then filed an infringement suit in district court.

According to the Federal Circuit, Almirall offered Amneal a covenant not to sue over one of the patents during settlement talks, but the parties could not finalize a deal.  The IPR on that patent proceeded and the PTAB upheld the patent.  Amneal appealed, but then moved to dismiss the appeal.  That led Almirall to argue that Amneal should have to pay its fees associated with the IPR and the appeal, saying that because Amneal knew it wouldn't be sued over that patent, its decision to continue the IPR was "exceptional."

"It is beyond reasonable that trial was justified once Almirall offered to assure Amneal it would not sue for infringement," it said.  Amneal told the Federal Circuit that Almirall's position was "extraordinary," and that just because Almirall offered not to sue doesn't mean Amneal was bound to drop its IPR.

The Federal Circuit did not get into the merits of whether fees were warranted, and instead concluded its authority to award fees extends only to district court and appellate litigation, not PTAB cases.  "Almirall is impermissibly seeking fees that were incurred for work at the patent office before this case was commenced," it said.  It noted that the PTAB has its own means for regulating misconduct, including awards of attorney fees.

Article: Recovering Attorney Fees Under ‘Tort of Another’ in California

June 2, 2020

A recent article by Gregory G. Brown, “Recovery of Attorneys’ Fees in CA Under the ‘Tort of Another’” reports on the recovery of attorney fees under the Tort of Another doctrine in California.  This article was posted with permission.  The article reads:

Under the “American Rule” each party to a lawsuit is responsible for their own attorney’s fees and costs absent a contractual agreement or statutory exception. (Cal. Code Civ. Proc. § 1021).  This rule can often lead to inequitable results, particularly where the cost of defending a lawsuit exceeds the damages at issue.  One exception to the “American Rule” which allows a defendant to recovery their attorney’s fees is the “tort of another doctrine.”

What is the Tort of Another Doctrine?

The tort of another doctrine is an exception to the “American Rule” which allows for recovery of attorney’s fees which are incurred as a result of another party’s wrongful actions.  Consider the following scenario: a real estate agent lists a property for sale.  Buyer makes an offer to the agent, and the agent tells Buyer that the Seller has accepted.  Several months later however, the agent tells Buyer that Seller has pulled out of the deal, resulting in Buyer filing a lawsuit against Seller and the agent.  At trial the Court finds that the Seller never accepted Buyer’s offer, and the agent had lied when he had made that claim to Buyer.  Under that scenario, the tort of another doctrine would allow Buyer to recover its attorney’s fees from the real estate agent for causing Buyer to incur attorney’s fees by suing the innocent Seller.

When Does the Tort of Another Doctrine Apply?

In order for the tort of another doctrine to apply, an actual tort claim must be committed by the party required to pay attorney’s fees. If there is no tort by a third party, the tort of another doctrine does not apply.  Further, the doctrine only applies where “exceptional circumstances” are present and not where attorney’s fees are incurred by a party solely in defense of their own alleged wrongdoing.  Thus if a party’s own wrongful conduct is part of the reason it is forced to defend a lawsuit, the doctrine would not be applicable.

Who Can Seek Fees Through the Tort of Another Doctrine?

Both Plaintiffs and Defendants in a lawsuit can seek fees through the tort of another doctrine.  The doctrine applies to any person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person.