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Category: Billing Record / Entries

Florida Panel Finds Attorney Fee Error in Irma Coverage Suit

May 19, 2022

A recent Law 360 story by Ben Zigterman, “Fla. Panel Finds Atty Fees Error in Irma Coverage Suit” reports that a Florida state appellate panel reversed a lower court's award of attorney fees to counsel for homeowners suing underwriters at Lloyd's of London for coverage of damage from Hurricane Irma in 2017.  Instead of being paid for more than 550 hours of work to get a $52,000 jury verdict for Roniel Candelaria and Amelia Padura, the three-judge panel agreed with the underwriters that the homeowners' attorney fees should be recalculated based on 480.5 billed hours.

The panel said Judge Martin Zilber should have gone through the time records of the homeowners' counsel line by line, but instead applied an arbitrary 15% cut.  The judge awarded the homeowners' counsel a lodestar amount of $312,000, applying a 1.8 multiplier to that amount and adding other legal costs, for a total award of more than $600,000.

"The lodestar amount is not supported by competent substantial evidence because the trial court did not make 'specific findings' as to its determination," Judge Kevin Emas wrote for the panel.  While the homeowners' expert suggested a 7.5% billing hours cut, the judge instead applied a 15% cut, according to the opinion.

"The insureds' expert did not conduct a line-by-line analysis of the billing," Judge Emas wrote.  "The trial court adopted plaintiff's expert's arbitrary methodology.  Indeed, in the instant case the trial court did not merely adopt the expert's methodology but added its own across-the-board reduction of 15%."  The panel said its previous decisions require "specific findings as to disputed time entries" and "particularized reductions."

"The trial court's comments at the conclusion of the hearing reveal that it had only examined 'several' of the timesheets," instead of making a line-item review, Judge Emas wrote.  The panel also said the trial judge improperly applied the 1.8-contingency multiplier.  The trial judge lacked "competent substantial evidence to address whether the attorney was able to mitigate the risk of nonpayment in any way — specifically, whether the client could afford to pay a retainer or hourly fees," Judge Emas wrote.

Feds Push Back on $1.9M Fee Request in GMO Salmon Action

April 28, 2022

A recent Law 360 story by Mike Curley, “Feds Push Back On Bid For $1.9M Fees in GMO Salmon Suit” reports that the federal government has opposed a motion from environmental groups seeking $1.9 million in attorney fees and costs in a suit alleging the U.S. Food and Drug Administration wrongly approved the first genetically modified salmon for human consumption, saying the "excessive" fees request follows a "narrow" suit victory.  In an opposition brief, the government said the groups, led by the Institute for Fisheries Resources, saw limited success and repeated losses in the suit, prevailing narrowly on only three of the 14 claims, including losing all claims under the Food, Drug and Cosmetic Act.

That limited success should in turn limit the amount that the court awards in fees, according to the brief, and the government said if the court decides to award fees at all, they should be capped at $246,333.37, while expenses should max out at $1,135.91.  In particular, the government said, the groups should not be able to recover fees for their unsuccessful claims, such as the claims under the FDCA and the bulk of their claims under the National Environmental Policy Act.

The plaintiffs sued the FDA in March 2016, claiming the agency's groundbreaking 2015 approval of a genetically engineered salmon for human consumption poses unknown dangers to food, health and the environment.  AquaBounty used genetic material from a Pacific Chinook salmon and from another fish, the ocean pout, to create a line of fish that grow to full size in about half the standard time, according to court documents.  U.S. District Judge Vince Chhabria in November 2020 found the FDA should have looked deeper into regulating genetically modified salmon, saying the agency didn't meaningfully analyze what might happen to normal salmon if the genetically engineered salmon were able to establish a population in the wild.

The environmental groups asked for the $1.9 million in attorney fees in March, after a previous bid — seeking $2.9 million — was rejected in February.  In March's motion, the groups said they had cut down their billable hours to 3,190.6.  In the brief, the government further argued that the plaintiffs had used "unreasonable" hourly rates that go beyond the market standards in the attorneys' home markets by using the benchmark of San Francisco rates despite three out of four core counsel working out of Portland, Oregon and Seattle.

And the hours claimed are excessive, the government wrote, with the plaintiffs presenting vague time entries and block billing that make it impossible for the government defendants to figure out what hours apply to which claims.  In addition, the time sheets include hours that are not compensable, the government wrote, such as hours spent in separate regulatory proceedings, client solicitation, media activities and challenges to the FDA's deliberative processes.

In other cases, the attorneys' time sheets included duplicative time entries for overlapping efforts among multiple attorneys, resulting in excessive hours for which they should not be billed.  The government also challenged particular time entries linked to tasks that they say were well in excess of the actual time spent on those actions, such as 240 hours marked as being spent on a procedural motion that "did not necessitate so many hours."

Finally, the government argued that the plaintiffs should not be granted any fees under the Equal Access to Justice Act, which allows fees to be granted to the prevailing party unless the government shows its actions were substantially justified.  Both the FDA's approval decision and its conduct in the litigation were substantially justified, the government argued, saying the FDA had diligently examined AquaBounty's application and the U.S. Fish and Wildlife Service concurred with its determination.  That the government prevailed on the bulk of the claims in the suit is further evidence that its position was reasonable, according to the brief, and therefore no fees should be awarded under the EAJA.

Brown Rudnick Accused of $22M in Overbilling

February 25, 2022

A recent Reuters story by David Thomas, “Ex-Client Wans $22 mln From Brown Rudnick, Saying Lawyers Overbilled” reports that an Austrian multinational construction company went on the offensive in a fee dispute with U.S. law firm Brown Rudnick, claiming the firm routinely overbilled it and demanding $22 million.  Brown Rudnick sued Christof Industries Global GmbH in September, alleging the industrial plant builder owed $8 million in attorney fees and interest from an international arbitration over a failed construction project.

But the law firm racked up more than $6 million in fees after promising in writing to not exceed a $2 million fee estimate, Christof alleged in its countersuit, filed in Boston federal court.  The law firm improperly overbilled, Christof alleged, saying one attorney billed more than $145,000 for 231 hours preparing to examine one witness.  The law firm billed more than 40 hours for assembling binders, the company said.

"In a number of time entries that verge on satire, Brown Rudnick attorneys even billed for drafting and corresponding about a proposal for their 'binder compilation strategy,'" Christof said in its suit.

The dispute stems from Brown Rudnick's work arbitrating a conflict arising from a Christof subsidiary's work as a contractor during the construction of a fiberboard production plant in South Carolina.  Christof said it signed an agreement with the firm so that its legal costs would not exceed $40,000 a month, plus a $200,000 retainer up front.  But it said Brown Rudnick billed more than $250,000, not including the retainer, just in its first month.

A panel awarded Christof more than $24.5 million in damages in the underlying arbitration, which was offset by about $20 million in advanced contract payments the company had received.  The final award was for $6.68 million.

Philip Morris Attorneys Earn $575K Fee Award in E-Cig Suit

February 23, 2022

A recent Law 360 story by Lauren Berg, “Philip Morris Attys Nab $575K Fee in Extinguished E-Cig Suit” reports that a Georgia federal judge on awarded Philip Morris $575,000 in attorney fees after the tobacco giant beat an electronic nicotine device pipe maker's patent infringement suit, saying the complaint included attached evidence that revealed the futility of the infringement allegations. 

U.S. District Judge Timothy C. Batten Sr. awarded Philip Morris USA Inc. and Philip Morris Products SA $575,529 in attorney fees — about $64,000 shy of their $639,043 request — finding that Healthier Choices Management Corp.'s suit is exceptional because it ignored that two U.S. Food and Drug Administration documents attached to the complaint refuted its infringement claims.

"By knowingly alleging a baseless claim of infringement, continuing to pursue that claim in the face of the court's rebuke, and then, in its proposed amended complaint, simply omitting the exhibit that rendered its claims futile, plaintiff's litigation conduct reflects 'studied ignorance' about the futility of its patent claims," Judge Batten said.  Instead of citing case law supporting the reasonableness of its litigation conduct, Healthier Choices used its opposition to Philip Morris' request for attorney fees to relitigate why the suit should not have been dismissed, according to the order.

In his order, Judge Batten found that the billing rates and number of hours reported by the Philip Morris defendants' counsel are reasonable, but said a few series of billing entries were too vague, including one labeled "attention to motion to dismiss" and another called "case development and strategy."  The judge made a 10% reduction to the total award to account for the vague entries, according to the order.  The judge said he would also subtract some money for clerical tasks performed by paralegals.

Judge Reduces Billing Rates in FCRA Case

February 9, 2022

A recent Law 360 story by Vince Sullivan, “Ariz. Firm Gets Bulk of $370K Fee Bid in Mass. FCRA Case,” reports that an attorney with Arizona consumer protection firm Price Law Group APC was awarded $204,200 in fees that he earned while representing a former debtor in a Fair Credit Reporting Act lawsuit against a mortgage servicer in Massachusetts federal court.  In an order from U.S. Magistrate Judge M. Page Kelley, the court found that the $675 per hour rate sought by attorney David Chami was too high and wasn't reasonable given the rates generally charged by lawyers with similar experience in the Boston area.  The judge said a $350 per hour rate suggested by Selene Finance LP, which is on the hook for the fees under a settlement with plaintiff Robert Sullivan, was too low.

"From its overall sense of the suit … the court finds that Sullivan's proposed rates of $550-675/hour and Selene's proposed rate of $350/hour are unreasonable," Judge Kelley said in her order.  "It finds that a rate of $500/hour is reasonable."  The court further reduced the requested fees based on the time reports kept by Chami and another attorney that worked on the beginning phase of the case in 2016, saying that many entries submitted included block billing, which isn't permitted.

In fee-shifting cases, the court said, the party seeking the payment of their fees must keep contemporaneous time records so the court can accurately determine the reasonableness of the request using a lodestar method.  That method calls for the court to come up with a reasonable hourly rate for the attorney and then multiply by the number of hours worked on the case.  Using that method, Judge Kelley determined that Chami was entitled to payment of $248,550 in fees based on 497.1 hours of work, reflecting some reductions in the hours billed by Chami.  But the block-billing practice employed by Chami and co-counsel Nicola S. Yousif led the court to reduce the fee award by 10%.

"The block billing has prevented the court from applying separate rates for the 'core' and 'noncore' work performed by attorneys Chami and Yousif," Judge Kelley said in the order.  That reduction, coupled with other time adjustments made by the court, drops Chami's fee entitlement to $204,200 based on 408 hours of work.  Yousif is entitled to $13,825 in fees for 39.5 hours of work and a paralegal employed by Chami's firm is entitled to $1,250 in fees.  The court also approved $2,310 in expenses incurred during the case.