A recent Metropolitan News story, “Attorney with Disbelieved Time Records to Receive No Fee,” reports that an attorney who sought nearly $25 million in attorney fees based on her successful representation of plaintiffs in class action was properly awarded nothing, a California Court of Appeal held. In a published opinion (pdf) by Justice Jeffrey Johnson said that Los Angeles Superior Court Judge Anthony J. Mohr also was correct in imposing $165,000 in discovery sanctions on the attorney, Lori J. Sklar.
Sklar was lead counsel in an action against Toshiba America Information Systems, which culminated in a 2006 settlement, finally approved by the court the following year. Nearly one million consumers who had purchased a model Toshiba’s laptop computer—which, based on a defective cover, tended to shut down and lose date—received allowances with a value totaling about $99 million.
Mohr was skeptical of Sklar’s claim as to the hours she put in. Toshiba balked that it showed that she worked on the case “nearly all day (sometimes as much as 16.75 hours) every day, seven days a week, including holidays, for some 22 months.”
The lawyer resisted Toshiba’s discovery attempts in connection with the fee request. It wanted the original records from her computer to see how they matched up with her hard-copy compilations, but it turned out Sklar had wiped them from her computer. Mohr ordered that she permit an expert from Toshiba to try and pull the erased files from her hard drive, but she refused access.
Johnson said that Sklar’s conduct “amply supports the sanctions award.” He rejected her contention that the court had no right to order an inspection of her hard drive, declaring: “[T]he sizable nature of Sklar’s fee request and her resistance to the court’s inquiries regarding her seemingly excessive rates made the court’s inspection orders reasonable and necessary.”
In connection with the lawyer’s bid for fees, Johnson pointed to this finding by Mohr: “Sklar’s billing records are, for purposes of calculating the lodestar, unusable. They contain troubling inconsistencies and omissions. There are numerous instances of what appear to be inaccurate and even contradictory billing entries. Moreover, the total number of hours claimed is excessive. The only conclusion that this court can reach is that the attorney’s records of the time actually spent cannot be fairly relied upon.”
Although Mohr is quoted as saying in his order that Sklar had “relinquished her entitlement to a fee” by virtue of her conduct, Johnson later in the opinion dismissed Sklar’s contention that the denial of attorney fees was a form of a sanction. Johnson responded: “To the contrary, the fee order as described above shows the trial court’s careful consideration of the evidence…” Mohr did award $179,600 for work done by Sklar’s staff, valued at $100 an hour. The Court of Appeal affirmed, except as to $2,400 of that amount based on a calculation error, and remanded for a recomputation.
The case is Ellis v. Toshiba American Information Services, Inc.