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Category: Lodestar / Multiplier

NCAA Rips $45M Fee Request in Student Athlete Pay Suit

May 24, 2019

A recent Law 360 story by Dave Simpson, “NCAA Rips $45M Atty Fee Bid in Student Athlete Pay Suit,” reports that the $45 million attorney fee bid from the legal team whose March victory barred the NCAA from restricting student athletes' education-related compensation is unreasonable because it seeks pay for "excessive, redundant, and unnecessary" hours worked, the NCAA said in California federal court.  The NCAA and several of its conferences said that rather than multiplying the requested $30 million attorney fee lodestar by 1.5, as proposed by the student players, it should be reduced by 10% to exclude non-compensable hours from the fee application, and then hit it with a negative multiplier to reflect the fact that the attorneys only scored a partial victory for their clients.

"The district court rejected much of plaintiffs' demands, retaining the cost-of-attendance cap on financial aid and permitting defendants to limit the levels of non-education-based compensation that Division I schools may offer their student-athletes," the organizations said.  The bid for attorney fees stems from the key injunction the student athletes won in March.

U.S. District Judge Claudia Wilken rejected the NCAA's arguments that its compensation rules promote demand for college sports and justify its antitrust violations.  She prohibited the association from enforcing rules that she considered "overly and unnecessarily restrictive."

Following that major win, the players' attorneys sought a compensation package of $29.9 million plus the multiplier for what they said was the economic value of the injunction, and submitted an economist's declaration to bolster their argument.  But the NCAA says that the proposal is off-base, starting with the calculation for hours worked by the attorneys.

"Their refusal to provide detailed billing records, submitting instead evidence only of the total number of hours spent by various attorneys by year — or in one instance across all years of the litigation — without identifying the subject matter of any individual's time expenditures has made it impossible for defendants or the court to evaluate whether the time spent on particular tasks was reasonable," the NCAA said.  Likewise, the requested 1.5 multiplier is meritless, the NCAA said, because the players' attorneys don't argue that the lodestar is unreasonably low, nor do they show that they took on unreasonable risks or won an exceptional victory.

The organizations also claim that the $1.3 million sought in costs is "unsupported, inappropriate and unreasonable," saying that almost $1 million of it is not supported "with even a single invoice or document."  Instead, the NCAA claims, the players' attorneys are "simply listing vague categories of purported costs for which they claim reimbursement."  As for the remaining costs, which the NCAA says are accounted for through invoices, much of it is not compensable as a matter of law, the motion claims.

The NCAA says that among these costs are bills for expenses that have already been covered, bills for video services on days when no video services were used, and more than $200,000 in unspecified color copy printing costs, which the NCAA says should be reduced by at least 50% because they are excessive.  "I think the time has come to see what defendants spent to put this in perspective," Steve W. Berman, who is representing the students, said in an email to Law360.  "I have a bet in the litigation team pool that they are twice what we spent!"

The March ruling followed a landmark 10-day bench trial that kicked off in Oakland, California, on Sept. 4 over allegations by Division I college football and basketball players that the NCAA's rules illegally restrict what they can receive to play.  For years, the rules limited athlete benefits to cost-of-attendance scholarships; student assistance funds, which cover certain school-related expenses; some need-based grants, like Pell Grants; and bowl participation awards, which are typically capped around $450.

During the trial, sports economists, former athletes, university officials and NCAA administrators took turns testifying on the impacts of the NCAA's compensation rules.  Three former athletes who didn't play professionally after college recalled how they struggled as students to pay for meals, clothes and trips home, while they spent between 40 to 60 hours a week on their sports, leaving little time for academics.

The case is In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation, case number 4:14-md-02541, in the U.S. District Court for the Northern District of California.

How Rohrmoos Ruling Could Change Attorney Fees in Texas

May 16, 2019

A recent Law 360 story by Michelle Cassady, “4 Ways Rohrmoos Could Change Fee Fights in Texas,” reports that the Texas Supreme Court's recent opinion laying out what evidence is needed to prove up attorney fees already is being called by some practitioners the seminal case on the topic and one that could have a major impact on fee fights in the state.

In its Rohrmoos Venture v. UTSW DVA Healthcare LLP ruling, issued, the court sought to dispel what it said was confusion on the part of lawyers and courts about two methods of calculating fees: the Arthur Andersen eight-factor test and the lodestar method.  It said the lodestar method — determining fees by multiplying the number of hours spent working on the case by a reasonable hourly rate — should be the starting point for calculating fees.

The state's high court intended the 56-page opinion to be a "big black-letter case," said Jadd Masso of Clark Hill Strasburger PLC, characterizing it as "the conclusion of an evolution on the part of the court" that encompasses its 2012 opinion in El Apple I Ltd. v. Olivas and its 2013 opinion in City of Laredo v. Montano.  Masso said the lengthy opinion amounts to a "treatise on attorneys fees in Texas."  "It is the way, the truth and the life, and the only way to get fees is through the lodestar method," he said.  The El Apple decision was a signal from the court it wanted to encourage the use of lodestar, Masso said.  And with Rohrmoos, there's no more question about whether there's more than one way to prove up fees, he said.

Here are four ways that the ruling could change fee fights in Texas.

Detailed Billing Records Will Become the Norm

The Rohrmoos opinion didn't mandate real-time billing records to prove up attorney fees, but the court said they are "strongly encouraged to prove the reasonableness and necessity of requested fees when those elements are contested."  While most defense attorneys already do keep such records, the ruling will likely have a bigger impact on plaintiffs attorneys and others who work on a contingent fee or flat fee basis, said Frank Carroll of Roberts Markel Weinberg Butler Hailey.

"I think they have put the final nail in the coffin that anything short of contemporaneous billing records is sufficient," he said.  "People need to avoid the idea that 'this doesn't apply to me.'"  Carrol said lawyers doing simple, flat-rate cases for small amounts of money may not need to worry about keeping those records.  "But for everyone else: Proceed at your own peril if you don't follow the mandate of El Apple, City of Laredo, and this case."

Some defense lawyers, like Michelle Hartmann of Baker McKenzie, already are being pushed by clients into alternative fee arrangements rather than the hourly rate model.  "But we still enter all of the hours that go toward the case.  Not because we're going to bill the client for them, but to double check profitability and see if that was a good fit for both the client and the firm," she said.  "I think most defense attorneys do it now, even with flat-fee arrangements.  But this is a reminder you still need to keep good billing records."

Lawyers Could Face Lengthy Cross-Examinations on Fees

The attorney who represented UTSW in the Rohrmoos case, Wade Howard of Liskow & Lewis, said he tried at oral arguments before the high court to stress that putting hundreds of pages of detailed billing records before the jury would "do nothing" to help them determine what costs are actually reasonable and necessary.  Other practitioners have said that while the jury panel might not be going through those documents page by page, it does provide the other side "better ammunition to cross examine a lawyer," said Kelli Hinson of Carrington Coleman Sloman & Blumenthal LLP.

"They can then ask the tough questions, like, 'Why did you spend 50 hours on a motion for summary judgment that never got filed?' or 'Why were three attorneys doing this when one would have been sufficient?'" she said.  "So the jury gets the advantage of that even if they themselves don't pore through the record."  The Texas Supreme Court seemed to understand that the new guidance could have unintended consequences and warned in its Rohrmoos ruling that it was not "endorsing satellite litigation as to attorney's fees."

But courtroom opponents could easily use the records "as an opportunity to try and make the burden that the claimant has to meet even harder than this decision intended it to be," Hartman said.  And finding that sweet spot could be a years-long process, Hinson said.

"They said we don't want attorneys on the stand for days going through the bills bit by bit," she said.  "I think that's going to be where we struggle over the next few years — trying to find that fine line between what's enough and what's too much."

Outside Experts Could Be Used to Back Up Fee Requests

The ruling could also mean that attorney fees — which in many cases are the largest element of damages — will stop being treated like the "stepchild" of litigation, said John W. Bridger of Strong Pipkin Bissell & Ledyard LLP.  Bridger said that for years he's been advising other attorneys on the value of having an outside expert testify to the reasonableness of requested fees rather than the attorney on the case taking the stand.

For one, it can keep defense lawyers out of the sometimes awkward position of attacking the plaintiffs' attorney fees in front of a jury, and secondly, he said, it would encourage attorneys to spend more time developing the evidence to prove fees.  "This case only pushes us more and more toward outside experts, particularly where the attorneys' fees are larger than the amount in controversy," he said.

And the increasing amount of fees being sought is another reason calling in an outside expert could be worthwhile, said Kurt Kuhn of Kuhn Hobbs PLLC.  "It's inevitable that you're going to see people develop that evidence more. It clearly can't be an afterthought," he said.  "To get an outside expert is going to give you, in front of a jury, a little more credibility."

Counsel-to-Counsel Fee Agreements Could Proliferate

Hinson also speculated that the guidance could cause an uptick in attorneys agreeing to their respective fees ahead of time, keeping that issue out of litigation entirely.  "I do think it will be interesting to see if attorneys veer more that way so at least they know they won't get overturned for not having enough evidence," she said.

In the Rohrmoos opinion, the court "hints at" and "suggests" that stipulating to fees before trial in an agreement with opposing counsel could be a way to avoid contentious fee fights, Masso said.  Because the ruling could be interpreted as requiring "more work" on the part of attorneys trying to prove up fees, Masso said it's possible you'll see more negotiation and agreement on fees.  "This opinion makes the litigation of attorneys' fees a little more complex than it was before," he said.  "And there's no way that it doesn't result in that litigation getting a little more complex, and a little more involved and lengthy."

The cases is Rohrmoos Venture et al. v. UTSW DVA Healthcare LLP, case number 16-0006, in the Supreme Court of Texas.

Article: Court Reduces Class Action Fee Award After Reversionary Clause

April 29, 2019

A recent New York Law Journal article by Thomas E.L. Dewey of Dewey Pegno & Kramarsky, “District Court Reduces Class Counsel’s Attorney Fee Award in Light of Reversionary Clause,” reports on a case, Grice v. Pepsi Beverages Co., where a district court reduced an attorney fee award in a class action by more than one-third based primarily on the reversionary clause in the settlement agreement.  This article was posted with permission.  The article reads:

When parties to a class action reach a settlement agreement and include a clause that defendant will not oppose class counsel’s attorney fee award, they may expect that the unopposed fee will be approved by the court.  But a recent decision from the Southern District of New York reminds us that courts have an interest in ensuring the reasonableness of attorney fees and protecting the members of the class. Courts are particularly wary of reversionary clauses, which allow the defendant to recoup portions of the settlement fund not claimed during a claims process.

In Grice v. Pepsi Beverages Co., No. 17-CV-8853 (JPO), 2019 WL 340714 (S.D.N.Y. Jan. 28, 2019), after reaching a class action settlement, class counsel sought approval of their attorney fees.  The court reduced the attorney fee award by more than one-third based primarily on the reversionary clause in the settlement agreement.

Background

In Grice, plaintiffs brought a class action against defendant Pepsi Beverages Company (Pepsi) based on Pepsi’s alleged violations of the Fair Credit Reporting Act (FCRA). Id. at *1  Plaintiffs alleged that Pepsi had violated the FCRA by procuring plaintiffs’ consumer reports for employment purposes without making the required disclosure in a stand-alone document. Id.  Less than eight months after the case was filed and before any significant discovery or motion practice, the parties engaged in a private mediation and settled the case. Id.

Under the proposed settlement, Pepsi agreed to pay approximately $1.2 million to a common fund, which would cover all payments owed under the settlement, including class member payouts, attorney fees and costs, the cost of settlement administration, and a service fee to the named class plaintiff. Id.  After deducting all costs and fees, the remaining amount in the settlement fund was $710,850, which was to be distributed to the class members submitting valid claims forms. Id.  However, only about 8 percent of the class members submitted valid claims forms. Id.  This low participation rate triggered a reversionary clause under the settlement agreement that allowed Pepsi to claw back 40 percent of the settlement fund, meaning that only $426,510 remained to be distributed among the participating class members. Id.

Class counsel then moved for an attorney fee award of $397,387. Id.  The $397,387 attorney fee figure represented one-third of the initial $1.2 million common fund. Id.  In support of their application, class counsel stated that they had worked over 450 hours at hourly rates ranging from $500-875 per hour, which resulted in a lodestar figure of $331,281. Id.

Per the terms of the settlement agreement, Pepsi agreed not to oppose the attorney fee award and no class member objected to the motion. Id.

District Court Reduces Attorney Fee Award

Even without a motion opposing class counsel’s proposed attorney fee award, Judge J. Paul Oetken performed an in-depth analysis of the reasonableness of the requested fees, and ultimately ruled that a lower amount was appropriate.

In determining the reasonableness of class counsel’s attorney fees, the court followed the three-step analysis set forth in Goldberger v. Integrated Res., 209 F.3d 43, 47 (2d Cir. 2000). Id. at *2.  The first step in the Goldberger analysis is to compare the attorney fee sought to fees in other common fund settlements of similar size and complexity. Id.  The court noted that recent studies of attorney fees in common fund settlements for similarly sized cases found the median percentage to be 26.4 percent to 30 percent of the settlement fund. Id.  The court also cited empirical evidence showing that for FCRA cases, the median fee is approximately 29 percent. Id.  In distinguishing the cases offered by class counsel, the court reasoned that those cases “differ[] materially” while the empirical studies offered a more comprehensive view. Id. at *3.

The court determined that the Grice class action was “not very complex” since it involved a “single claim” and a “single statutory provision.” Id.  Therefore, the “magnitude and complexity” of the case favored a baseline fee percentage on the lower end of the median fees found by empirical studies. Id. (citing McGreevy v. Life Alert Emergency Response, 258 F. Supp. 3d 380, 386 (S.D.N.Y. 2017)).  Furthermore, the court noted that the parties settled early in the litigation, without any extensive discovery. Id.  The court rejected class counsel’s arguments that the need to prove willfulness under the FCRA statute and the inherently complex nature of Rule 23 class actions justified a higher baseline fee percentage. Id.  As such, the court concluded that a reasonable baseline fee for this case was 27 percent. Id.

The second step in the Goldberger analysis is to consider (1) the risk of the litigation; (2) the quality of class counsel’s representation; and (3) any remaining public policy considerations to determine whether there is any basis to further adjust the baseline fee. Id.  With respect to the riskiness of litigation, the court determined that though class counsel would have had to prove willfulness in order to recover any statutory damages under the FCRA, the risks were “not so unusual as to merit a change in the reasonable baseline fee for this case.” Id. at *4 (quoting McGreevy, 258 F. Supp. 3d at 387).

Next, to analyze the quality of class counsel’s representation, the court compared the total possible recovery to that obtained in the settlement. Id.  The court noted that each class member had obtained a recovery of $51.54, which was only 5 percent of their maximum potential recovery, since the FCRA statutory damages range from $100 to $1,000. Id. (citing 15 U.S.C. §1681n(a)(1)(A)).  However, this payout was “generally in line with other FCRA class action settlement recoveries” and in light of the “factual and legal hurdles” the class would have had to overcome to obtain a favorable judgment, the court determined that the settlement was a “good result” for the class members. Id.  Despite finding that the settlement was favorable, the court ruled that it was “not so exceptional as to merit an increase in the baseline percentage, especially where the court does not have the benefits of an adversarial examination of the issues.” Id.

Finally, the court considered any other policy considerations to determine whether to adjust the baseline fee.  Significantly, the court found that the public policy consideration that “distinguish[ed] this case from other common fund cases is the reversionary nature of the settlement fund.” Id. at *5.  The court explained that the reversion clause in the settlement agreement, which allowed Pepsi to claw back 40 percent of the settlement fund since the participation rate was less than 60 percent, was the “least favored” way to distribute unclaimed common settlement funds due to its potential to create perverse incentives. Id.  The court pointed out that if class counsel’s fees were calculated based on the gross settlement amount prior to reversion, class counsel risk having an incentive to acquiesce in such reversion arrangements even if they are not in the best interest of the class. Id.  Here, the fee award requested by class counsel was calculated as one-third of the gross settlement prior to the reversion. Id.  As such, the court determined that a further reduction of the baseline percentage from 27 percent to 22 percent was appropriate, resulting in an attorney fee award of $262,300. Id.

The third step involved a lodestar “cross-check” on the reasonableness of the award. Id.  A reasonable fee under lodestar is generally “the product of a reasonable hourly rate and the reasonable number of hours required by the case.” Id. (quoting Millea v. Metro-North R.R. Co., 658 F.3d 154, 166 (2d Cir. 2011)).  Notwithstanding class counsel’s hourly rates of $500 and $875 in other states, the court determined that the “prevailing market rates in the Southern District of New York” for partners in consumer cases is $300 per hour. Id. at *5-6.  The court accepted class counsel’s representation that they had worked 450.4 hours on the case, despite their failure to “substantiate their representation.” Id. at *6.  Based on the lodestar cross-check, the court concluded that the $262,300 fee award was reasonable. Id.

Practice Tips

The Grice case provides helpful insight into the factors courts consider when faced with a class action attorney fee award motion.  Furthermore, this case reminds us that even if the class action settlement agreement includes a clause that defendant will not oppose class counsel’s attorney fee award and even if no other class member objects, the award may still be modified sua sponte by the court.  In class actions, courts typically take on a proactive role in approving settlements and awarding costs.  Here, the court reduced the proposed attorney fee award by more than one-third.

This case also shows that courts disfavor reversionary clauses and practitioners should be mindful that including such clauses may result in a lower attorney fee award.  As explained by Judge Oetken, there are other options to address a situation when some portion of a common fund goes unclaimed: (1) pro rata redistribution among the class members who did make claims; (2) escheat to the state; or (3) cy pres distribution to charitable organizations. Id. at *5.  The court described reversion as the “least favored” option due to “its potential to create perverse incentives.” Id.  In drafting settlement agreements, practitioners should consider whether including a reversion clause is in the best interests of the class and how such clauses may be perceived by courts.

Thomas E.L. Dewey is a partner at Dewey Pegno & Kramarsky.  Sarah A. Sheridan, an associate at the firm, assisted in the preparation of the article.

Texas Justices Clarify Evidence Needed to Prove Attorney Fees

April 26, 2019

A recent Law 360 story by Michelle Casady, “Texas Justices Clarify Evidence Needed for Atty Fees,” reports that the Texas Supreme Court clarified what evidence lawyers must present to support their claims for attorney fees and costs, saying an $800,000 fee request in a dialysis center lease dispute was "too general."  A private dialysis center affiliated with the University of Texas Southwestern Medical School, UTSW DVA Healthcare LP, didn’t present specific-enough evidence to support its attorney fee request after the clinic won a lease dispute with landlord Rohrmoos Venture, the court said.

The court also remanded a second fee dispute case, Barnett v. Schiro, to a lower court for reconsideration under its Rohrmoos ruling.  In the decision, the court sought to dispel what it said was confusion on the part of lawyers and courts about two methods of calculating fees — the “Arthur Andersen method” and the lodestar method.  It said the lodestar method of calculating attorney fees was “never intended to be a separate test or method” from eight factors the court set forth in its 1997 ruling in Arthur Andersen & Co. v. Perry Equip. Corp.

Instead, lodestar was developed as a shorthand version of the Andersen factors, the court explained.  The starting point for calculating fees is determining the reasonable hours worked, multiplied by a reasonable hourly rate, and it's the burden of the party seeking those fees to prove up the request, the court said.  The lodestar method arrives at the fee amount by multiplying the number of hours spent working on the case by a reasonable hourly rate.  The Arthur Andersen method requires a court to consider eight factors in awarding fees, including time and labor, how difficult a case is, what a customary rate is, the results obtained and the skill of the attorney.

In the Rohrmoos case, UTSW attorney Wade Howard of Liskow & Lewis, sought about $800,000 in fees, plus conditional fees for any appeal.  Howard testified that his hourly rate is $430, and that the number of hours spent on this case was between 750 and 1,000.  While that would mean his fees were between $300,000 and $400,000, he said his fees were closer to or exceeded $800,000 in this case because the discovery and deposition process was so intensive.

The Texas Supreme Court wrote it understood Howard's argument that the actions of opposing counsel caused the cost of litigation to increase.  “However true this may be, Howard’s justification for why his fees should be $800,000 — searching through 'millions' of emails and reviewing 'hundreds of thousands' of papers in discovery, more than forty depositions taken, and a forty-page motion for summary judgment — is too general to establish that the requested fees were reasonable and necessary,” the high court wrote.  “Without detail about the work done, how much time was spent on the tasks, and how he arrived at the $800,000 sum, Howard’s testimony lacks the substance required to uphold a fee award.”

Howard told Law360 that during oral arguments before the court he tried to stress that putting hundreds of pages of detailed billing records before the jury would “do nothing” to help them determine what costs are reasonable and necessary.  But he said the ruling was “about as painless as possible” because he kept detailed, contemporaneous billing records and now will just have to present those — which were already produced in discovery to the other side — to the trial court.  “The reality is this is a conservative court and they don't like the award of attorneys fees with limited proof,” he said.  “We had a strong suspicion that the court was going to start requiring more than the Arthur Andersen factors ... but for anyone who keeps billing records, it's not an issue.”

Citing the Rohrmoos ruling, the court also decided another case.  In that dispute, attorney Richard Schiro represented Daniel Barnett in a lawsuit brought by Kirtland Realty Group in 2011 that ended in a settlement agreement.  Schiro then sued to recover from Barnett $183,673 in unpaid legal fees, which the jury awarded him.  Schiro also sought “reasonable attorneys' fees and costs” in the suit, and the jury awarded him $131,786.

Barnett appealed, arguing there was insufficient evidence to support that award of fees and costs, and the lower appellate court affirmed the ruling.  But the Texas Supreme Court reversed that ruling and sent the case back to the trial court to redetermine what fees should be awarded in light of its holding in Rohrmoos.  Charles W. McGarry of Law Office of Charles McGarry, who represents Barnett, told Law360 he'll likely ask the Texas Supreme Court for rehearing because part of his argument was that the court should have rendered judgment in his favor rather than send it back to the trial court.

According to court documents, in the lease dispute between Rohrmoos and UTSW a jury found both parties breached the lease, but that Rohrmoos had breached first.  As the prevailing party, a jury awarded UTSW $800,000 in fees, and a conditional $150,000 for representation in the court of appeals, and $75,000 for representation in the Texas Supreme Court, totaling a little more than $1 million.  On appeal, Rohrmoos argued the evidence wasn't enough to support that total, but the lower appellate court disagreed and upheld the award.  On appeal to the Texas Supreme Court Rohrmoos again challenged the sufficiency of the evidence and argued that UTSW wasn't actually a prevailing party since the jury found both parties breached the lease, and therefore wasn't entitled to fees.

In its opinion, the Texas Supreme Court held that UTSW was a prevailing party in the lawsuit because it successfully defended against a counterclaim from Rohrmoos seeking $250,000 in unpaid rent.  The cases are Rohrmoos Venture et al. v. UTSW DVA Healthcare LLP, case number 16-0006, and Daniel S. Barnett et al. v. Richard B. Schiro, case number 18-0278, in the Supreme Court of Texas.

NCAA Seeks Billing Records in $45M Attorney Fee Dispute

April 22, 2019

A recent Law 360 story by Christopher Cole, “NCAA Demands Billing Records in $45M Atty Fees Fight,” reports that the NCAA is fighting a push for almost $45 million in attorney fees by the legal team that scored a March antitrust victory against the organization in California federal court on behalf of student athletes, saying the players’ lawyers won’t disclose their billing records.  The two sides filed joint legal papers laying out their positions on paying the lawyers after they won a groundbreaking decision that limits the college sports organization from enforcing rules that cap compensation for student athletes.

While the players’ side has asked the court for a baseline figure of $29.9 million to cover their fees, plus a multiplier of 1.5 based on the outcome, the NCAA’s lawyers said there is no way to justify that amount without actually seeing figures on paper as to how much the opposing lawyers worked on the case.  So far, they said, the plaintiffs have been unwilling to share those records.

The damages phase of the litigation has already wrapped up, with attorneys for the student athletes already getting more than $44 million from a settlement, the NCAA said.  Now the organization says it is critical to find out how much time the plaintiffs' lawyers spent on winning the injunction on grant-in-aid rules, as opposed to time spent on the earlier damages part of the lawsuit.  “Ninth Circuit law is clear that the burden is on the prevailing party to support their request for attorneys’ fees with detailed billing records,” the NCAA said.  “Plaintiffs’ failure to provide [them] is grounds to reduce their fee award or dismiss their motion entirely.”

In deciding what to do with the dueling stances on attorney fees, the court will have to figure out how to pin a dollar figure to the key injunction that the student athletes won in March.  U.S. District Judge Claudia Wilken in that 104-page order rejected the NCAA’s arguments that its compensation rules promote the demand for college sports and justify its antitrust violations.  She prohibited the association from enforcing rules that she considered “overly and unnecessarily restrictive.”

Following that major win, the players’ attorneys sought the compensation package of $29.9 million plus the multiplier for what they said was the economic value of the injunction, and submitted an economist’s declaration to bolster their argument.  But the NCAA said that wasn’t enough to show how much of the opposing legal team’s billable hours included in the requested total were actually spent on the injunction phase, and without the records, there is no way to tell for sure.  “Plaintiffs simply ask this court and defendants to take them at their word that all judgment calls have been made correctly, and seek to deny defendants the right to review and, where necessary, challenge the appropriateness of plaintiffs’ counsel’s assessments,” the NCAA said.

The players’ lawyers called the argument about the damages phase a “red herring” by the NCAA because they have already excluded time attributable to the damages portion of the case.  “Defendants never provided any compelling reason why [we] should be forced to turn over these voluminous records, which would require plaintiffs’ counsel to expend significant time and resources reviewing and redacting for attorney-client privilege and work product,” they said.