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Compare & Prove Hourly Billing Rates with NALFA Survey

December 4, 2021

NALFA conducts custom hourly rate surveys for clients such as law firms, corporate legal departments, and government agencies.  Our hourly rate surveys provide accurate data on hourly rates within a given geography market and/or practice area(s).  Indeed, our hourly rates surveys have been cited by litigators in court documents and referenced by court adjuncts in court proceedings.  Our surveys can also be used for internal purposes, such as rate comparisons.  Some of our recent hourly rate survey engagements include:

  • A boutique law firm in Boston engaged NALFA to conduct a survey of associate and partner level billing rates in litigation in the greater Boston area.
  • A large Miami law firm hired NALFA to conduct a survey of plaintiffs’ and defense rates in commercial litigation in South Florida.
  • A small plaintiffs’ law firm in Dallas engaged NALFA to conduct a survey and report of hourly rates in consumer class actions in the Dallas-Fort Worth area. This survey was cited by a federal judge in his attorney fee award.
  • An insurer hired NALFA to conduct a survey of billing rates of defense counsel in insurance coverage litigation throughout California.
  • A large law firm in Seattle engaged NALFA to conduct a survey of hourly billing rates in regular and complex litigation in the U.S. District Court for the Western District of Washington jurisdiction.
  • A small law office in Albany hired NALFA to conduct a national survey of billing rates in public interest and civil rights litigation in federal court.
  • A technology firm engaged NALFA to conduct a survey of hourly rates in large and mid-size law firms in patent litigation in the San Francisco and Silicon Valley region.
  • A defense law firm with offices throughout North Carolina hired NALFA to conduct an hourly rate survey of similarly sized law firms in the Charlotte area so they could compare billing rates with their litigation peers.
  • A government agency engaged NALFA to conduct a survey of hourly rates in large Chapter 11 bankruptcy cases, nationwide.
  • A mid-size law firm in Atlanta hired NALFA to conduct a survey of hourly rates in IP litigation in several major markets.

NJ Judge Denies Attorney Fees Awarded By Magistrate

November 24, 2021

A recent Law 360 story by Nick Muscavage, “NJ Judge Denies $991K Atty Fees Awarded By Magistrate,” reports that a New Jersey federal judge ordered a magistrate judge to recalculate attorney fees for Arent Fox LLP in a patent dispute, finding that the jurist failed to apply prevailing precedent addressing applicable forum rates.  U.S. District Judge Robert Kugler ordered the magistrate judge to reconsider the $991,624 award through the lens of the Third Circuit's decision in Interfaith Community v. Honeywell International, a 2005 decision holding that counsel fee awards should be calculated using the forum of the dispute, subject to exceptions.

The award at issue was computed using the rates in Arent Fox's home forum of Washington, D.C., which are pricier than the dispute's forum of New Jersey federal court in Camden.  The Interfaith decision held that a party seeking to use the home forum of its counsel in the attorney fee calculation versus the dispute forum must show that the firm has expertise unavailable in the dispute forum or that the local counsel wasn't available.

"In the final analysis, then, since the order did not rely upon Interfaith as the prevailing precedent, Sabinsa had not been tasked to meet its legal burden under Interfaith and fully prove the reasonableness of its requested fees," Judge Kugler wrote, directing the magistrate judge to first determine the proper forum rate before recalculating the fees.

The award stems from a patent infringement case, in which Arent Fox and Saiber LLC represented the plaintiff, East Windsor, New Jersey-based Sabinsa Corp., which claimed that Prakruti Products Pvt. Ltd. was selling a turmeric supplement for which Sabinsa held the patent.  During a "contentious" discovery process, U.S. Magistrate Judge Karen M. Williams found that "Prakruti had withheld certain information from Sabinsa and also spoliated pertinent evidence," according to court documents.  She sanctioned Prakruti with an adverse inference, finding that Sabinsa's legal efforts to prove Prakruti's misconduct warranted an award of attorney fees against Prakruti.

Saiber claimed it billed $98,352 for legal services to Sabinsa, while Arent Fox claimed it billed $980,169.  On May 21, Judge Williams awarded Sabinsa's counsel $991,624 in attorney fees and costs in the amount of $13,035.  However, Judge Kugler said that Sabinsa showed "neither that Arent Fox had special expertise as patent attorneys not available from local attorneys in this vicinage nor that Sabinsa was unable to get needed patent expertise from local firms."

In its challenge to the magistrate judge's award, Prakruti also targeted the inclusion of Saiber, Sabinsa's local counsel, in the fee calculation.  Since Sabinsa cannot show Saiber was unwilling to represent the company as its patent counsel, the calculation of fees based on two different rates — the non-forum rate of the Arent Fox patent litigators and the forum rate of Saiber as local counsel — goes against the proper application of Interfaith, Prakruti argued.

Judge Kugler granted Prakruti's motion as to the time entries of Arent Fox, but denied the exclusion of Saiber in the fee calculation.  He remanded the time entries of Arent Fox to the magistrate judge for recomputation using the specific, relevant forum rate for the legal skill level with which the entry was executed, unless an Interfaith exception is demonstrated.  Judge Kugler said that the proper forum rate for the patent litigation expertise expended by Arent Fox must be first established.  He rejected Prakruti's assertion that Saiber's fees were duplicative of Arent Fox's and shouldn't have been factored in the attorney fee.

$23M Fee Award in $500M Wells Fargo Auto Loan Class Settlement

November 17, 2021

A recent Law 360 story by Katryna Perera, “Class Attys in Wells Fargo Loan Suit Get $23M Fee Award,” reports that attorneys for Wells Fargo customers who sued over certain auto loan fees will receive an award of $23.1 million for their role in securing a nearly $500 million class settlement after a California federal judge gave his final stamp of approval.  According to the order from U.S. District Judge James V. Selna, the plaintiffs' counsel will receive approximately $261,000 for cost reimbursement in addition to the fee award, and $46,375 will be split among the lead plaintiffs based on their level of participation in the lawsuit as a service payment.

Judge Selna rejected the plaintiffs' initial request that all 15 named plaintiffs be paid $7,500 as an incentive fee for sticking through a case that has lasted three years.  In a previously filed motion in September, the lead plaintiffs argued in support of the incentive fees, saying the case garnered media and congressional attention and that the lead plaintiffs are not receiving any personal benefit that is not being provided to other class members.

The judge said he found the requested amount to be "excessive in light of the amount of work they each performed on behalf of the settlement class."  Judge Selna said he believed it would provide the named plaintiffs with excessive compensation since most of them only spent between 12 hours and 41 hours participating in the litigation.  There was only one plaintiff, James Atkins, who spent close to 100 hours in connection with the case, Judge Selna said.

If each named plaintiff were to receive a $7,500 award, it would "constitute an hourly rate of compensation between $182 and $625," the order states, which is "unreasonably large."  Judge Selna decided to reduce the service payments so that each plaintiff's "hourly rate" would be $125.  While Atkins will receive the full $7,500, the remaining 14 plaintiffs will receive awards ranging from $1,500 to $5,125.

Judge Selna also certified the settlement class, finding that it meets all the requirements of numerosity, typicality and commonality and that the class representatives and class counsel adequately represented the class members.  "Over the three years since the complaint was initially filed, class counsel analyzed more than a million pages of documents produced by Wells Fargo; subpoenaed and reviewed thousands of pages of documents from third-party dealers, GAP Administrators, and Wells Fargo's government submissions; took eight depositions ... responded and served hundreds of interrogatories and requests for admission; and engaged in extensive motions practice," the order states.

Shareholder Attorneys Win $31.4M in Attorney Fees in GCI Liberty Merger Deal

November 9, 2021

A recent Reuters story by Sierra Jackson, “Shareholder Attorney Fees in GCI Liberty Merger Row Rise to $31.4 mln,” reports that a Delaware judge has awarded shareholder attorneys in a suit challenging GCI Liberty Inc and Liberty Broadband Corp’s merger an additional $9.35 million in fees.  Vice Chancellor Sam Glasscock III of the Delaware Chancery Court awarded four firms including Bernstein Litowitz Berger & Grossmann and Kessler Topaz Meltzer & Check the money for negotiating an agreement that decreased top executives' voting power in the post-merger company.

GCI Liberty and Liberty Broadband, which both own stakes in cable operators, announced in August 2020 that they had agreed to merge in a roughly $8.7 billion deal.  A GCI Liberty shareholder sued in October 2020, alleging that GCI Liberty board chair John Malone and CEO Gregory Maffei had pushed for an unfair transaction to increase their voting stakes.

The GCI Liberty board has denied wrongdoing.  Glasscock approved a $110 million settlement and $22 million in attorney fees in October.  The firms had argued they were owed an additional $22 million for working on the deal, according to the opinion.

In awarding a lower amount, Glasscock said stockholders’ voting power in the company "was certainly improved, but not so dramatically as to invite an award of fees well exceeding the precedential ranges."  Attorneys for the shareholders did not immediate respond to request for comments.  Neither did the Skadden, Arps, Slate, Meagher & Flom and Baker Botts attorneys representing Malone and Maffei.

The case is Hollywood Firefighters' Pension Fund v. GCI Liberty Inc, Delaware Court of Chancery, No. 2020-0880.

Judge May Not Base Fee Award On Previous Awarded Rates

November 8, 2021

A recent story by Metropolitan News, “Judge May Not Base Fee Award on Previous Awards to Firm,” reports that a judge must make a fresh determination in each case of whether attorney fees that are sought are in line with prevailing rates in the community, rather than comparing the amounts claimed with those awarded to the same law firm in other cases of the same nature, the Ninth U.S. Circuit Court of Appeals held.  Circumstances unique to that case must also be weighed, according to the memorandum opinion.  A three-judge panel—comprised of Ninth Circuit Judges Daniel Aaron Bress and Lawrence VanDyke, joined by Tenth Circuit Judge David M. Ebel, sitting by designation—reversed a $11,349 award in favor a client of the Center for Disability Access (“CDA”).  The amount sought was $20,459.

CDA—which files torrents of actions throughout the state under the federal Americans with Disabilities Act and Callifornia’s Unruh Civil Rights Act—is a division of the San Diego firm of Potter Handy, LLP.  The plaintiff, Brian Whitaker, according to defendants SMB Group and Yoon Jeong Row, has filed more than 1,100 for in the Central District of California since 2014 claiming disability discrimination.  In the present case, the Ninth Circuit declared, District Court Judge Michael W. Fitzgerald of the Central District made some reasonable downward adjustments in the amount awarded, but erred in relying on past awards in actions brought by CDA “instead of considering other evidence of the prevailing community rates.”

The opinion says: “We cannot discern that, in its explanation of why it reduced the hourly rates sought by CDA, the district court analyzed the complexity of the case, the type of work involved, rates for non-CDA lawyers of comparable skill in the relevant community, whether the legal work was performed by lawyers at the appropriate levels of seniority, or other relevant factors….  “It may be that the district court here considered the above factors and thus the hourly rates the district court applied were appropriate.  But we cannot make that determination on the current record.  Accordingly, the district court’s fee award is vacated and the case is remanded for review consistent with this memorandum.”

The appellate judges said Carter did justify his reduction in hours spent—including subtracting hours supposedly spent at a hearing that did not take place and on an unnecessary motion—and paring block-billed hours.  At oral argument on Aug. 8, Dennis J. Price II of Potter Handy argued that the lodestar system of calculating attorney fees—multiplying hours spent times the hourly rate—“is not advisor—it’s a mandatory system” that judges must use.  He alleged that Fitzgerald “effectively ignored these rules.”

The hourly rates that were sought ranged from $450 to $595.  Those awarded went from $350 to $425.  Bress questioned whether the rates that were set by the judge would have been supportable had Fitzgerald “put in more than he did in his order.”  Price responded that the evidence would not support the lower rates.  However, asked the same question by VanDyke, he said that if Fitzgerald had “done the leg work,” he “wouldn’t have any argument that the rate was incorrect,” later reverting to his original position that “the evidence doesn’t support” the rates that were set.  Janice Ryan Mazur of the El Cajon firm of Mazur & Mazur argued for SMB Group and Row.  She said Fitzgerald did apply the lodestar method, but then adjusted it downward.