A recent Law 360 story by Travis Bland, “Missing Word Sinks $2.65M Honeywell Fee Bid in Royalty Row”, reports that Honeywell lost out on $2.65 million in attorney fees following a win in a scanner royalties dispute with a Japanese competitor in part because an agreement between the two companies didn't use the word "attorney" in a provision the American company invoked to try to receive the award.  In an order, a North Carolina federal court told Honeywell that it would not be awarding the attorney fees after the company prevailed in a jury trial against OPTO Electronics Co., reasoning that while other parts of the partners' contract referenced attorney fees, the part Honeywell cited to try to recover the money only says "fees."

"That provision, drafted by sophisticated counsel, does not mention 'attorney fees' (like every other case under governing Delaware law that has awarded attorney fees under a contract)," U.S. District Judge Kenneth D. Bell wrote in his order.  Judge Bell also reasoned that the provision doesn't have the "prevailing party" language that is the "hallmark" of contracts under Delaware law for a winning litigant to force an opponent to pay attorney fees.  The provision Honeywell cited might not even apply to court actions, Judge Bell said.

Evidence in the case made it clear that Honeywell knew how to craft a contract so that attorney fees would be awarded when it won a case, but it didn't do that in the agreement with OPTO Electronics, according to Judge Bell.  OPTO Electronics was also let down by Judge Bell's order.  He punted the Japanese company's requests to throw out the jury verdict, award it a victory or, at least, to grant a new trial.

OPTO Electronics had a "full and fair opportunity to present its evidence and arguments to the jury and the court," Judge Bell said. "While OPTO's arguments were potentially persuasive and the court would have upheld a jury verdict in OPTO's favor, the court finds that there was sufficient evidence to support the jury's and the court's verdicts."  In denying the company a new trial, Judge Bell also rejected arguments that the court made an error when it did not allow certain evidence that OPTO Electronic asserted was favorable to it.