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Archive: 2021

Compare & Prove Hourly Rates with NALFA Survey

July 20, 2021

Every year, NALFA conducts an hourly rate survey of civil litigation in the U.S.  NALFA has released the results from its 2020 Litigation Hourly Rate Survey.  The survey results, published in The 2020 Litigation Hourly Rate Survey & Report, shows hourly rate data on the very factors that correlate to hourly rates in litigation:

  • Geography / Location / Jurisdiction
  • Years of Litigation Experience / Seniority
  • Practice Area / Complexity of Case
  • Law Firm / Law Office Size

This empirical survey and report provides macro and micro data of current hourly rate ranges for both defense and plaintiffs’ litigators, at various litigation experience levels, from large law firms to solo shops, in routine and complex litigation, and in the nation’s largest legal markets and beyond.  This is the nation’s largest and most comprehensive survey or study on hourly rates.  This data-intensive survey contains hundreds of data sets covering all the relevant hourly rate variables.  The survey was designed to aid litigators in comparing rates within a litigation peer group and proving rates in court and ADR.

The 2020 Litigation Hourly Rate Survey & Report is divided into two parts, a free public portion and a private portion.  The public portion contains only the survey totals.  The data-rich private portion has the complete survey results including the raw data responses with percentages.  The private portion is free to members of our network (i.e. members, faculty, and fellows) and the 2020 litigation survey respondents.  The private portion is available for purchase to others.     

This 2020 Litigation Hourly Rate Survey & Report is now available for purchase.  For more information on this, email NALFA Executive Director, Terry Jesse at terry@thenalfa.org or call us at (312) 907-7275.

Saxena White Secures $40.5M in Fees in DaVita Investor Settlement

July 16, 2021

A recent Law 360 story by Katryna Perera, “DaVita Investor Attys Score $40.5M in Fees From Settlement”, reports that the law firms that represented investors in a case against health care company DaVita Inc. were awarded $40.5 million Thursday for their work on a $135 million class-action settlement of claims that shareholders were hurt when it was revealed that the company pressured patients to enroll in high-cost, private insurance plans.

U.S. District Judge William Martinez of the District of Colorado awarded attorney fees of 30% of the settlement fund as well as reimbursement of $547,409.27 in litigation expenses and $10,000 in representative rebates after the lead plaintiffs requested it.

Attorneys from Saxena White PA and Shuman Glenn & Stecker represented the plaintiffs, led by the Peace Officers' Annuity and Benefit Fund of Georgia and the Jacksonville Police and Fire Pension Fund.

Judge Martinez said the attorney fees would be calculated using a percentage rather than the lodestar approach because the case is a common fund case.

In his order, Judge Martinez mentioned the "extensive and extremely comprehensive investigation" the attorneys conducted and how time-consuming the settlement negotiations were.

Over four years of litigation, the lead counsel expended more than 31,000 hours, equivalent to $14.7 million in attorney and staff time, the judge said.

Additionally, the lead counsel will continue to work and incur out-of-pocket expenses in connection with the distribution of the settlement, now that it has received final approval, Judge Martinez noted.

A 30% award fee is typical even in "megafund" settlements, the judge said, and he noted the prominence of the $135 million resolution, calling it an "exceptional" monetary result.

"The $135 million recovery represents the second-largest all-cash securities class action recovery ever obtained in this district, is among the top five such settlements in Tenth Circuit history, and is more than 20 times larger than the $6.7 million median for securities class action settlements in the Tenth Circuit from 2010 to 2019," Judge Martinez said.

The judge also pointed out the risk that law firms take with class actions, as there is no guarantee of success.

"To date, lead counsel has received no compensation for its prosecution of this case, and since the extensive commitment of time and resources devoted here necessarily entailed the preclusion of other projects, the primary focus of this factor is to acknowledge this incongruence by permitting a higher recovery to compensate for the risk of recovering nothing," he said.

DaVita settled with investors last year after it was accused of steering patients away from government health insurance plans and into high-cost, private insurance plans.

According to the original complaint brought in 2017, DaVita pressured patients to enroll in the high-cost plans to obtain dialysis reimbursement rates that were up to 10 times higher than the rates for the same dialysis treatment under government plans.

The class members alleged that DaVita stock prices plummeted after its "scheme" was revealed.

Trouble continued for the company on Thursday when the U.S. Department of Justice announced that DaVita and its former CEO, Kent Thiry, were indicted by a federal grand jury in Denver, charged with conspiring with competing employers not to solicit certain employees.

Judge Slams Hourly Rates in Wage Action

July 15, 2021

A recent Bloomberg Law story by Maya Earls, “Judge Slams Hourly Rates, Awards $1 Attorneys’ Fee in Wage Suit,” reports that a federal judge in Arkansas rejected a request for more than $30,000 in attorneys’ fees in an overtime pay dispute and awarded Sanford Law Firm $1 instead, saying the higher amount isn’t fair, proper, or just under the circumstances.  Sanford Law Firm represented a plaintiff in a Fair Labor Standards Act collective action filed against Eden Isle Corp.  The plaintiff accepted a $4,000 outstanding offer of judgment and later sought about $30,681 in lawyers’ fees and $1,225 in costs.

Sanford’s hourly rates “appear to be entirely arbitrary and unreliable,” according to the U.S. District Court for the Eastern District of Arkansas.  The firm requested between $240 and $383 an hour for attorneys, but other cases litigated by the firm during the same time period had lower hourly rates, the court said.  The more reasonable hourly rates are between $125 and $250 an hour, according to the ruling.

This case involved 13 timekeepers, ten of whom were lawyers.  Eden Isle noted that a large amount of time attributed to the lead lawyer was spent on in-house conferences and communication.  This is too much oversight for a lawyer who has been practicing for 11 years and focused her practice on employment law, the court said.  “As has been pointed out time and again, the random involvement of all of the lawyers and the constant oversight by the senior attorney are inefficient, unnecessary, and unreasonable,” wrote Judge Billy Roy Wilson.

Sanford sought more than $3,600 for work on a motion for summary judgment, but the motion was granted for Eden Isle before the plaintiff accepted the outstanding offer of judgment.  Wilson criticized the “frivolous request,” writing that this isn’t the first time the firm sought reimbursement for unsuccessful issues.

“Although plaintiff was, technically, the prevailing party, his ‘success’ was paltry, at best,” wrote Wilson.  The court cited other billing issues, such as duplicative billing and excessive time, that resulted in a petition that was “excessive and unreliable.”  Wilson reduced the costs from $1,241 to $416 because the $825 cost for a private process server isn’t recoverable.  The plaintiff will challenge the judge’s findings in the U.S. Court of Appeals for the Eighth Circuit, according to a notice filed.

NJ Attorney Can Pursue Fee Claim Without Written Retainer

July 14, 2021

A recent Law 360 story by Nick Muscavage, “NJ Atty Can Pursue $126K Fee Bid Without Written Retainer”, reports that a New Jersey attorney can pursue her bid for $126,000 in legal fees for a matter she never put into a retainer agreement after an appellate panel reversed an earlier court's dismissal of the case, noting that "it is well settled that an attorney-client relationship can be found without a written agreement."

On July 9, a two-judge appellate panel reversed the summary judgment granted to the clients of Theresa C. Grabowski, who retained the Marlton-based attorney to bring claims against their insurer for not fully covering lightning damage to their home.

The couple, William and Amanda Baskay, signed a written retainer agreement for Grabowski, according to court documents.

The retainer included a provision that said, "If, after completion of the matter at the trial level, either you or the opposing party appeals the result, a new retainer agreement will be drawn which will set forth our agreement with respect to the retention of this firm on appeal."

In May 2009, Grabowski filed a 16-count complaint against the insurance company that included breach of contract and violation of the Consumer Fraud Act, or CFA, among other things.

After the trial court dismissed the CFA and punitive damages claims, a jury returned a verdict in favor of the couple against the insurer in the amount of $9,025.

The accounts of what occurred next between Grabowski and her clients "are dramatically different," the appellate panel wrote in its July 9 opinion.

Grabowski claims that as she was leaving the courthouse with the couple following the jury's verdict, they asked her to pursue an appeal seeking to overturn the trial court's dismissal of their claims for damages under the CFA, punitive damages, and additional counsel fees and costs, according to court documents.

"Grabowski alleged she agreed to represent [the couple] on appeal, and further consented to continue representing them at no additional charge," according to court documents. "Grabowski alleged she did not insist that the parties execute a new retainer agreement because she would not be charging [the couple] any additional fees."

The couple disputed Grabowski's claims and said they did not ask her to file an appeal, but that the attorney "did so on her own," according to court documents. They also said they never signed a new retainer agreement for the appeal.

Grabowski filed a notice of appeal on the couple's behalf using the money from the jury verdict to fund the action. In response, the insurer filed a cross-appeal, challenging the verdict in the couple's favor.

Grabowski sent an email to the couple inquiring about her outstanding legal fees.

William Baskay responded by email, telling Grabowski, "As it stands now there is to be no appeal," according to court documents.

In response, Grabowski told William by email that "[t]he appeal has already been filed — which you knew, approved of and agreed to throughout (since the adverse rulings). As you know, the appeal was filed back in September, as I forwarded copies of it to you."

William did not reply to this email, according to court documents, and Grabowski continued to represent the defendants in the appeal and cross-appeal.

Ultimately, in April 2014, a state appellate panel affirmed the earlier dismissal of the couple's claims under the CFA and for punitive damages.

Three years later, Grabowski filed a complaint against the couple seeking to recover attorney fees "in excess of $126,678" for representing them against their insurance company. William and Amanda Baskay filed separate answers to the complaint, both claiming that Grabowski's claims were barred by the six-year statute of limitations.

New Jersey state law requires that a claim for breach of contract be filed within six years from the date the cause of action accrues, but the appellate panel noted that a "contract for legal services is not like other contracts."

Previous case law in New Jersey holds that because of "the unique and special relationship between an attorney and a client, ordinary contract principles governing agreements between parties must give way to the higher ethical and professional standards enunciated by our Supreme Court."

The appellate panel, in its July 9 opinion, further noted that the "facts of this case are disputed and far from settled."

"However, the law applicable to the statute of limitations in attorney fee collection actions is not," the appellate panel added.

If the six-year statute of limitations began when the couple's appeal concluded in April 2014, then Grabowski's claims against the couple were filed within the legally-permitted timeframe, the appellate panel noted.

The panel also rejected the couple's argument that Grabowski's representation ended in 2011 when William sent the attorney the email stating that, "As it stands now there is to be no appeal."

"This email is hardly an unambiguous statement that Williams intended to terminate Grabowski's services," the appellate panel wrote. "Indeed, when Grabowski informed him the next day that the appeal had already been filed, William failed to respond."

On remand, the appellate panel instructed the trial court to consider the couple's claim that Grabowski's complaint against them should have been barred because she did not give them "pre-action notice" of their right to seek fee arbitration.

Attorneys’ Invoices in Prior Case May Be Admitted to Support Testimony

July 13, 2021

A recent Metropolitan News story, “Attorneys’ Invoice in Prior Case May Be Admitted to Support Testimony”, reports that a landowner who was sued by a man induced by a real estate agent into believing he had a contractual right to purchase her property when no contract had been formed was given a second chance yesterday by the Court of Appeal to win recompense from the realty company in a “tort of another” case for the attorney fees she incurred in the prior action.

The opinion was authored by Justice William Dato of the Fourth District’s Div. One. It reverses a judgment to the extent that San Diego County Superior Court Judge Ronald L. Styn denied attorney fees to plaintiff Hue Thi Dong Mai.

Styn did so, with expressed reluctance, in light of the Oct. 19, 2018 decision by the Fourth District’s Div. Three in Copenbarger v. Morris Cerullo World Evangelism, Inc. He read the case as barring Mai’s introduction of invoices for attorneys fees she expended in the breach-of-contract action against her, as inadmissible hearsay, and precluding him from taking judicial notice of what work was done in the prior case, over which he had also presided.

Mai was sued by John Fike who had been told by realtor Victoria Robinson of Keller Williams that a deal for the purchase of Mai’s property had been reach, when it hadn’t. After telling Fike that an accord had been reached, Robinson—desiring to obtain a commission on a sale for more than $1 million—then sought to persuade Mai to sell at the price she had set, but she declined.

After Fike dropped his suit, Mai sued Robinson and the company that owns Keller Williams under the “tort of another” doctrine which, Dato noted, “allows for the recovery of attorney’s fees as damages when a plaintiff is forced into litigation with a third party due to the tortious conduct of the defendant.” She obtained a judgment for $50,000 for emotional distress but nothing for the attorney fees she had expended in the action brought by Fisk.

Once Styn realized that attorney fees were being sought as damages subject to proof at trial, and not as costs which could be reckoned by reference to his own assessment of the value of services, he expressed a powerless to deviate from what he saw as constraints set down by Copenbarger and denied an award of those fees. Dato said he would read Copenbarger narrowly to avoid a conflict with other decisions.

He said of Copenbarger: “We are… of the opinion that its commentary on the inadmissibility of the invoices would only apply to cases where plaintiffs attempt to read the detailed entries on the bills during their testimony to prove the specific repairs made or services rendered—and not where the invoices are offered for the more limited and appropriate purpose of corroborating testimony that they actually paid certain amounts and/or to make a prima facie showing that the charges were reasonably incurred.

“As pertinent to this case, Mai sought to introduce redacted copies of the attorney invoices only to support her testimony that she paid the billed amounts and as some evidence that the amounts were reasonable….The trial court erred in broadly reading Copenbarger to preclude both Mai’s testimony and receipt of the invoices for these limited and appropriate purposes.  This evidence would have satisfied Mai’s prima facie burden to establish how much she paid for legal services and the reasonableness of that amount.”

Dato went on to say that Copenbarger “strongly implies—though it does not hold” that judicial notice of the content of the file in a previous action would be improper. He said: “The sounder and long-established rule is that materials filed by attorneys on behalf of litigants can be judicially noticed and provide evidence to support an award of attorney’s fees.  As relevant to this case, the materials filed on Mai’s behalf by her attorneys in the Fike action were properly subject to judicial notice and provide some evidence of the work performed defending that case.” A remand was ordered for the limited purpose of setting attorney fees.