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Category: Attorney Behavior / Civility

IP Jury Win Grows to $120M in Fees, Interest

November 1, 2023

A recent Law 360 story by Lauren Berg, “Columbia Univ.’s IP Win Grows to $600M With Fees, Interest”, reports that Columbia University and NortonLifeLock Inc. told a Virginia federal judge that the university should receive nearly $120 million in attorney fees and interest in an infringement case over anti-malware patents, bringing Columbia's total award to just over $600 million.  U.S. District Judge M. Hannah Lauck on Sept. 30 nearly tripled a jury's $185 million willful infringement verdict, bringing the total to more than $481 million, while ordering Norton — now known as Gen Digital Inc. — to pay attorney fees for its litigation misconduct.  She also held its counsel at Quinn Emanuel Urquhart & Sullivan LLP in contempt for not complying with a court order involving a witness whose testimony has been controversial.

In a stipulation, Columbia and Gen Digital agreed the university would receive nearly $20.7 million in attorney fees, $4.8 million in supplemental damages, $71 million in prejudgment interest and $22 million in post-judgment interest, among other costs, for a total award of $600 million.  However, Gen Digital has appealed the judgment to the Federal Circuit, and the parties have agreed they retain all rights, in the event that the court's final judgment is reversed, modified or vacated, according to the stipulation.  Gen Digital has also obtained a $600 million bond to stay execution of the judgment while the appeal plays out, the parties said.

The unanimous jury reached its verdict in May 2022 after three days of deliberation, following a two-week trial in the case brought by Columbia in December 2013.  The jury found that Gen Digital infringed two patents related to cybersecurity safeguards developed by Columbia's professors.  They also found that the intellectual property theft was willful, allowing the court discretion to treble the damages up to $555 million.  In her final judgment in September, Judge Lauck elected to multiply the jury's verdict by 2.6.

In a sanctions opinion unsealed earlier this month, the judge outlined years of "abhorrent litigation conduct" by Gen Digital's attorneys at Quinn Emanuel and found that when Latham & Watkins LLP took over as lead counsel for the company it likewise "impeded" the litigation.  "Norton's second lead counsel, Latham, poured fuel on the fire," the opinion stated, adding soon after that "the pattern of questionable conduct thus outlasted Quinn's direction of the litigation."

While Latham escaped sanctions, Judge Lauck cited an "extensive and unprecedented record" of "disquieting conduct of both sets of Norton's attorneys."  Quinn has represented Norton in the nearly decade-long litigation, while Latham was brought in two weeks before trial.  In just a single paragraph of her 42-page opinion, the judge ripped into Latham, stating that its attorneys "hid key communications" regarding Saudi Arabia-based expert Marc Dacier, who was central to the pretrial misconduct dispute.  Latham joined the case two weeks before trial but was still found to have acted improperly.

Judge Slams Attorney For Waste in Deepwater MDL

August 2, 2021

A recent Law 360 story by Mike Curley, “Judge Slams Atty For ‘Shameful’ Waste in Deepwater MDL”, reports that a Louisiana federal judge has sanctioned a plaintiff attorney involved in a sprawling multidistrict litigation over the 2010 Deepwater Horizon spill, calling his multiple lawsuits, duplicative motions and other actions "a colossal waste of time" intended to harass others and get around the court's previous orders.  U.S. District Judge Carl Barbier also required Brian J. Donovan of The Donovan Law Group PLLC to post the sanction on his website.

In a scathing written opinion, Judge Barbier barred Donovan from filing any further suits against other plaintiff attorneys Stephen J. Herman of Herman Herman & Katz LLC and James P. Roy of Domengeaux Wright Roy & Edwards LLC, as well as Patrick A. Juneau of Juneau David APLC, claims administrator for the MDL's economic settlement.

"No party should have had to respond to any of these suits, and no court should have had to entertain them," Judge Barbier wrote. "Donovan has weaponized civil litigation to harass those with whom he disagrees.  His behavior has been a constant drain on judicial resources.  The waste Donovan creates is shameful and appalling."

Donovan had initially represented plaintiffs in a suit over the spill that was rolled into the MDL, but after some of his clients were denied claims, he sued other attorneys and Judge Barbier, saying Barbier should recuse himself over his past ownership of Halliburton Co. and Transocean Ltd. assets and that the other attorneys had colluded on the settlement to the detriment of class members and the benefit of BP PLC, which had operated the oil platform where an explosion started the spill.  Judge Barbier refused to recuse himself in November 2019 and scolded Donovan over his recusal motions but didn't levy sanctions at the time, instead referring his briefs, as well as Herman's opposition to the motion, to the clerk of the court to start a disciplinary proceeding against Donovan.

That suit, which named Herman as a defendant, was dismissed in March 2020, and Donovan filed two more, making the same allegations but adding the judge, Roy and Juneau as defendants, and both were voluntarily dismissed before Herman, Roy and Juneau moved for sanctions earlier this year, and at a hearing July 23, Judge Barbier granted the motions.

In the written order, Judge Barbier held little back, slamming Donovan's suits, as well as response briefs that came with more than 1,000 pages of exhibits, as repetitive and baseless, and attempts to harass those in the suit he disagreed with.  "Throughout the life of this MDL Donovan has inundated the court with wave after wave of motions that often do no more than repeat previous arguments," the judge wrote. "These practices have wasted the court's time and that of his opponents."

The judge further added that neither Donovan nor his clients have standing to assert many of the arguments he makes, as he's never argued that he or his clients are class members and his objections to the settlement are far too late.  "The fact that Donovan lacks standing to press his arguments makes every moment spent addressing them — whether by the parties, this court, or any other judicial body — a colossal waste of time," Judge Barbier wrote.

He added that it's "telling" that Donovan never sued BP, even though his filings point out that BP is liable for damages from the oil spill, and if he had he might have had a chance of recovering money for his clients, but instead he's only shown that his purpose in bringing the suits was to harass others.  Thus, Judge Barbier found it proper to block Donovan from filing yet another suit against Herman and the others over the same allegations, and further ordered Donovan to pay Herman's, Roy's and Juneau's attorney fees.

While Judge Barbier stopped short of fining Donovan for his behavior, he ordered Donovan to post a copy of the order on his website, as well as any other websites or blogs he owns, operates or maintains, and to provide the court with proof that he has given a copy of the order to his clients from his initial suit in the MDL.

Judge Alsup Accepts Fee Recommendation from Former Alsup Clerk

July 27, 2021

A recent Law 360 story by Dave Simpson, “Alsup OKs $5.9M From Finjan, Slams Kramer Levin Attys,” reports that Finjan Inc. must foot a $5.9 million portion of Juniper Networks' legal bill but doesn't deserve sanctions, U.S. District Judge William Alsup ruled, while noting that "in no way" does his order vindicate three Kramer Levin Naftalis & Frankel LLP partners who represented Finjan in the patent infringement suit.  Judge Alsup adopted in its entirety the May recommendation from special master Matthew Borden of Braunhagey & Borden LLP, rejecting Finjan's bid to nix the fees and Juniper's bid to score sanctions against the patent-licensing company.  Borden had recommended that Finjan pay the networking infrastructure provider nearly $6 million in reasonable fees for work done that culminated in winning two summary judgment motions, defeating a summary judgment motion and prevailing in a five-day jury trial.

In addition to agreeing with Borden's recommendation, Judge Alsup singled out for criticism three Kramer Levin partners who'd previously represented Finjan in the case.  "In no way does this order vindicate attorneys James R. Hannah, Lisa Kobialka, and Paul J. Andre," the judge wrote.  "Their conduct was improper and frustrated the fairness of the proceedings.  Judges in the future should take this into account when dealing with them in future cases."

Juniper had argued that Finjan deserved sanctions for, among other things, flip-flopping on its patent infringement theory in an attempt to artificially boost damages, presenting its facts-only damages theory to the jury after its damages expert was excluded, and misrepresenting a previous court decision to the court.  "Finjan's misrepresentation of a district court decision was 'reckless' but, even if a finding of recklessness alone satisfies the ... standard, this order finds that act, by itself, would not warrant sanctions," Judge Alsup said.

Special fee master Borden's May report came after Judge Alsup in January ordered Finjan to pay a portion of Juniper's legal fees.  He said Finjan "flip-flopped" on the eve of trial when it sought to put forth a new infringement theory for one of its malware-detection patents after realizing its original one only covered a small part of Juniper's revenue.  "Finjan tried to sneak this theory in with its expert-damages report, but we caught it, and the Daubert order excluded that trick," Judge Alsup said in January.

Finjan, which sued Juniper in 2017 alleging it infringed nine patents covering technologies for storing and downloading security data, tried to claim $142 million in damages after Juniper provided evidence in discovery that, at most, it would owe less than $1.8 million if a jury found its products infringed the remaining patent in the case.  After the Federal Circuit affirmed Juniper's jury win on the only patent claim that had survived to trial, the company asked Judge Alsup to grant it attorney fees for fighting the nine patent claims.

At a hearing on Juniper's bid for attorney fees in January, Finjan pointed to its expert testimony, but Judge Alsup lamented the "standard patent BS by bought-and-paid-for experts." Finjan pushed back, saying it had a good-faith belief it wasn't altering its damages theory.  Judge Alsup appointed Borden, his former law clerk, to sort out the fee dispute and instructed Juniper to resubmit billing records distinguishing between time spent by its attorneys on the patents and time spent on other facets of the litigation.

Attorney Who ‘Overlitigated’ Case Sees Fees Reduced

March 16, 2021

A recent Law 360 story by Kevin Penton, “Atty Who ‘Overlitigated’ Contractor Dispute See Fee Reduced,” reports that a California state appeals court has upheld a trial court awarding nearly $200,000 less in fees than what a lawyer sought for working on a dispute over an unlicensed contractor, finding that the lawyer representing himself in the matter "overlitigated" and got "embroil[ed]" in the case.  A three-justice panel of the Second Appellate District upheld the trial court's "sound discretion" in rejecting David S. Karton's bid to collect $286,110 in attorney fees and awarding him $90,000 instead, according to the opinion.  The court noted that when the dispute originated, the lawyer and Ari Design and Construction Inc. were $22,096 apart on how much the contractor owed him and his wife for a home construction job.

"In this appeal the Kartons have come out swinging, apparently believing the best defense is a good offense," the opinion reads.  "This approach demonstrates the trial court was within its discretion to conclude the Kartons conducted litigation that was less than civil."  Because California laws allow consumers to collect the entire amount they have paid a contractor who is unlicensed, Karton and his wife collected the entire $92,651 they had paid Ari by the time the lawyer learned in November 2015 that the contractor was not properly licensed or insured, according to the opinion.  With other penalties, the judgment added up to $133,792, not including post-judgment interest and attorney fees, according to the opinion.

Karton then sought to collect on over 600 hours of work, which the trial court cut down to 200.  The appellate court noted that Karton "overlitigated" and engaged in "incivility" in his briefing, through actions such as calling comments by his opposing counsel "frivolous" and alleging that they made false statements, according to the opinion.  "The trial court fairly attributed some of the overlitigation to Karton's personal embroilment in the matter," read the opinion, which upheld the lower court's conclusion that it would "seem unreasonable" for an attorney fee award to total approximately three times the damages in the matter.

"A $23,000 argument must be resolved, but it does not justify launching a disproportionate litigation offensive," the opinion read.  "The Kartons' strategy netted them windfall gains: the harshness of contractor licensing laws allowed them to recoup all their construction monies, plus $10,000, and to retain the benefit of months of free construction work."

Karton took issue with the appellate court describing as a "windfall" what he was statutorily entitled to, asserting that it is meant as a deterrent against workers who are injured on the job not having their medical bills paid.  He told Law360 that during a settlement conference, he and his wife offered to settle the case for $125,000 — including attorney fees — but that Ari rebuffed them.

The Nation’s Top Attorney Fee Experts of 2020

June 24, 2020

NALFA, a non-profit group, is building a worldwide network of attorney fee expertise. Our network includes members, faculty, and fellows with expertise on the reasonableness of attorney fees.  We help organize and recognize qualified attorney fee experts from across the U.S. and around the globe.  Our attorney fee experts also include court adjuncts such as bankruptcy fee examiners, special fee masters, and fee dispute neutrals.

Every year, we announce the nation's top attorney fee experts.  Attorney fee experts are retained by fee-seeking or fee-challenging parties in litigation to independently prove reasonable attorney fees and expenses in court or arbitration.  The following NALFA profile quotes are based on bio, CV, case summaries and case materials submitted to and verified by us.  Here are the nation's top attorney fee experts of 2020:

"The Nation's Top Attorney Fee Expert"
John D. O'Connor
O'Connor & Associates
San Francisco, CA
 
"Over 30 Years of Legal Fee Audit Expertise"
Andre E. Jardini
KPC Legal Audit Services, Inc.
Glendale, CA

"The Nation's Top Bankruptcy Fee Examiner"
Robert M. Fishman
Cozen O'Connor
Chicago, IL

"Widely Respected as an Attorney Fee Expert"
Elise S. Frejka
Frejka PLLC
New York, NY
 
"Experienced on Analyzing Fees, Billing Entries for Fee Awards"
Robert L. Kaufman
Woodruff Spradlin & Smart
Costa Mesa, CA

"Highly Skilled on a Range of Fee and Billing Issues"
Daniel M. White
White Amundson APC
San Diego, CA
 
"Extensive Expertise on Attorney Fee Matters in Common Fund Litigation"
Craig W. Smith
Robbins LLP
San Diego, CA
 
"Highly Experienced in Dealing with Fee Issues Arising in Complex Litigation"
Marc M. Seltzer
Susman Godfrey LLP
Los Angeles, CA

"Total Mastery in Resolving Complex Attorney Fee Disputes"
Peter K. Rosen
JAMS
Los Angeles, CA
 
"Understands Fees, Funding, and Billing Issues in Cross Border Matters"
Glenn Newberry
Eversheds Sutherland
London, UK
 
"Solid Expertise with Fee and Billing Matters in Complex Litigation"
Bruce C. Fox
Obermayer Rebmann LLP
Pittsburgh, PA
 
"Excellent on Attorney Fee Issues in Florida"
Debra L. Feit
Stratford Law Group LLC
Fort Lauderdale, FL
 
"Nation's Top Scholar on Attorney Fees in Class Actions"
Brian T. Fitzpatrick
Vanderbilt Law School
Nashville, TN
 
"Great Leader in Analyzing Legal Bills for Insurers"
Richard Zujac
Liberty Mutual Insurance
Philadelphia, PA