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Federal Circuit: Misconduct Might Merit Attorney Fees

April 13, 2015 | Posted in : Ethics & Professional Responsibility, Expenses / Costs, Fee Award, Fee Entitlement / Recoverability, Fee Issues on Appeal, Fee Jurisprudence, Fees as Sanctions

A recent NLJ story, “’Misconduct’ Might Merit Attorney Fees, Circuit Rules,” reports that a federal judge abused her discretion in denying attorney fees to a patent litigant after finding “an egregious pattern of misconduct” by the other side, a federal appeals court has ruled.  The U.S. Court of Appeals for the Federal Circuit sent Oplus Technologies v. Vizio back to the Central District of California and told Senior Judge Mariana Pfaelzer to reconsider whether to award fees.

“Given that the district court found counsel’s behavior ‘inappropriate,’ ‘unprofessional,’ ‘vexatious’ and ‘harassing,’ it is difficult to imagine how Vizio Inc. had not incurred additional expenses defending against such filings,” Judge Kimberly Moore wrote in Friday’s ruling.  Moore’s ruling relied on the U.S. Supreme Court’s 2014 Octane Fitness v. ICON Health & Fitness decision, which loosened the legal standard for awarding attorney and expert witness fees.

“In light of this change in the law, we believe it appropriate to vacate and remand this case in order for the district court to reconsider the propriety of awarding fees,” Moore wrote.  It’s always unusual for the Federal Circuit to find that a lower court abused its discretion, but Pfaelzer “didn’t really explain why she just sort of backtracked” after her extensive finding detailing Oplus’ litigation misconduct, Pruetz said.