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.