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Category: Fee Affidavit

Defense Calls $3M Fee Request Late, “Excessive’

October 9, 2023

A recent Law 360 story by Emilie Ruscoe, “Conn. Defendants Slams $3M Atty Fee Bid as Late, ‘Excessive’”, reports that two defendants on the hook for $6.75 million in damages for duping a Delaware company into an investment scheme have pushed back against the more than $3 million in fees and expenses requested by the investor's counsel, telling a Connecticut state judge that certain fee-related filings were untimely and that other requests were made for work that didn't have to do with the state court claims.  In an objection, Dean S. Barr and Joseph E. Meehan told Judge Sheila A. Ozalis that the plaintiff's counsel shouldn't get the nearly $3.1 million in legal fees and more than $210,000 in costs it sought last month.

The fee request came after Judge Ozalis determined after a nine-day bench trial that Barr and Meehan were jointly and severally liable for costing FIH LLC of Delaware millions of dollars by fraudulently enticing investments in Foundation Capital Partners LLC.  She ruled that the two men owed $6.75 million in damages over the negligent misrepresentation and intentional fraudulent misrepresentation counts and claims arising from Connecticut's Uniform Securities Act and Unfair Trade Practices Act.

In objecting to the subsequent fee motion, Barr and Meehan said that FIH sought fees and costs for five law firms involved in its representation, but submitted affidavits describing the basis of the requests for only three of those firms, Wiggin and Dana LLP, Phillips Nizer LLP and Epstein Becker & Green PC, by the Sept. 29 deadline.  The other two firms, Cozen O'Connor and Sadis & Goldberg LLP, "are in the process of preparing affidavits to support this attorneys' fees motion," FIH said in its filing, according to the objection.  The supplemental affidavits were filed Oct. 4, the objection said.

Barr and Meehan said any fee request for Cozen O'Connor and Sadis & Goldberg LLP should be rejected because the deadline for submitting those affidavits had been "clear and unambiguous" and that no extension was either requested or granted.  "FIH had more than enough notice, time and incentive to provide documentation for these fees," Barr and Meehan said.  The defendants also asserted that the requested fees were "unreasonable and excessive" because they "inappropriately encompass" FIH's separate litigation of its securities claims in federal district court and its appeal to the Second Circuit.

Over $1 million of the fees sought arose only from the federal litigation, the defendants said, and those fees "were clearly not incurred in connection" with the litigation alleging violations of Connecticut's Uniform Securities Act.  The defendants cited the example of the fees requested for FIH's appeal of a summary judgment order in favor of the defendants, noting that the appeal explicitly did not include FIH's state law claims.

And even before its appeal, "by its own admission, the time and costs spent litigating the federal trial were unrelated to FIH's [Connecticut's Uniform Securities Act] claim brought under Connecticut state law," the defendants said.  Barr and Meehan also highlighted that FIH hadn't prevailed in the federal trial, telling the court that "its lack of success on those claims must be taken into account" in calculating fees and costs.

The defendants also argued that nothing in the fee motion or supporting filings showed that the time counsel spent on various proceedings was reasonable.  "None of the affidavits filed offer any detailed descriptions attributing time to work performed," they said.  In its fee motion, FIH said that it "should be allowed to recover the fees and costs it was forced to expend in its nearly decade-long efforts to recover the $6.75 million that it invested in Foundation Capital Partners based on Dean S. Barr and Joseph E. Meehan's lies and material omissions."  FIH referred the court to a lengthy litigation history in support of its fee requests, noting various claims against the company it brought in state court and a federal district court action that twice was appealed to the Second Circuit.

City of Detroit Says $2M Fee Request is Unreasonable

April 13, 2023

A recent Law 360 story by Danielle Ferguson, “Detroit Says $2M Atty Fee is Unreasonable in Property Case,” reports that the city of Detroit asked a federal judge to deny a $2 million attorney fee request from a commercial property owner that won an inverse condemnation case against the city, saying some requests are "outrageous" and so vague that it would be a "Herculean" task to calculate individual fees.  HRT Enterprise's requests are unreasonable because the fees include time spent on issues not directly related to the case and because HRT didn't provide documentation detailing why the hourly rates they proposed would be appropriate, the city said in its response to the fee request.

"The Court should either require HRT to purge its billing records of all entries unrelated to this case and explain the ambiguous entries so that the Court and the City can properly review the entries, or the Court should award a fee of not more than $300,000," the city wrote.  Mark Demorest of the Demorest Law Firm, representing HRT, said the plaintiffs filed almost 300 pages alongside the motion that properly detail the hours spent working on the case, and that the hourly rates requested for lead attorneys are appropriate, given their more than 40 years of experience.

In its motion for fees, HRT said it understands the fees in the case are "substantial," but that they are reasonable because of how long the case has been active.  "We had to fight for 11 years to get the city to pay for our client's property that they took through their actions.  The City has still not paid, and we're entitled to every bit of the attorney's fees that were incurred to protect our client's constitutional rights," Demorest told Law360.

The attorneys spent thousands of hours on the case, responsibly managed the litigation for it and properly documented everything they did, HRT said.  The city cannot protest fees for a case it rigorously defended, Demorest said.  "We documented all the time we had to spend on this.  It's not a situation where the city can just say, 'Well, that's too much.'  It is what it is," he said.

HRT sued Detroit in federal court in 2012 for inverse condemnation, alleging the city took its property when the city was considering expanding or improving the Detroit City Airport, now known as the Coleman Young International Airport.  In state court, lawsuits from HRT's tenants resulted in the city paying $6.8 million and $4 million for claims the city's activities to expand the airport interfered with the tenants' use of the property.  The 2012 lawsuit – at issue here – alleges inverse condemnation based on events since those state jury verdicts.  In an initial trial, the jury sided with HRT and said the city owed HRT $4.25 million for the property it took. Detroit moved for a new trial, which the federal court granted. The second jury awarded just under $2 million.

In its response to the motion for attorney fees, Detroit said HRT put hours for the state lawsuits and city's bankruptcy issues into its fees for this case.  The attorneys billed for hours during the period in which this case was stayed due to the bankruptcy case, the city said, arguing the city's bankruptcy, while it does have an impact on HRT's case, is a different matter.

HRT made "no effort" to detail hours spent by the attorneys on the case, which the city said, wrongfully puts the onus on the city. The line items were vague or in block entries, according to Detroit.  "Because HRT did not separate its fees, it is a Herculean task to calculate the lodestar," the city wrote.  The city said the "most egregious" entry was 1.5 hours billed to drive to and from a location to pick up a check, something the city alleges isn't related to attorney's fees.  "Moreover, attempting to charge the city $427.50 to pick up the $3,800 payment when a stamp costs less than $0.50, is outrageous," the city said.

The city protested HRT's request to compensate it for travel arrangements for HRT's owner because it said HRT didn't pay for the travel in the first place.  The travel compensation requests are also done in blocks, "making it impossible" for the city to determine how much time was spent on a task, the city said.  The city also shouldn't have to pay for time HRT attorneys spent removing privileged documents from the court's docket when HRT shouldn't have uploaded them to the docket in the first place, the city said.

"The City should not have to pay attorney's fees for time spent on motions that should have been resolved between the attorneys in under ten minutes," according to the response.  HRT requested more than double the billable hours that it should have, the city said.  HRT said it billed about 3,000 billable hours.  The city said 1,200 hours is reasonable if the state and bankruptcy hours are removed.

Detroit also said the hourly rate for attorneys HRT is requesting isn't reasonable based on prevailing community rates.  Some attorneys didn't submit affidavits for their experience and skill to support their hourly rate request, so they shouldn't be awarded fees, the city said.

Crypto Trading Firm Must Justify Attorney Fees

October 24, 2022

A recent Law 360 story by Katryna Perera, “Crypto Trading Firm Must Justify Atty Fees in $1.5M Judgment reports that a Georgia federal judge has awarded digital-asset trading company GSR Markets Ltd. more than $1.5 million in its fraud suit against purported bitcoin dealer Valkyrie Group LLC, but he said he wouldn't grant a default judgment until GSR submits evidence supporting the roughly $174,000 in attorney fees it's seeking in the matter. 

GSR had moved for $1.5 million in compensatory damages and attorney fees in its June default motion, but U.S. District Judge Michael L. Brown granted only the damages, saying in his order that the affidavit in support of attorney fees submitted by GSR's attorney fell short of establishing a "reasonableness" for the fees.

According to the order, Richard L. Robbins of Robbins Alloy Belinfante Littlefield LLC testified that the fees GSR incurred are based on the firm's standard hourly rates and that from January 2019 through May 2022 the firm billed GSR approximately $174,000 in attorney fees. 

Robbins had also testified that the legal services and fees were "customary and necessarily incurred" by GSR and that the requested fees are similar to those of other attorneys in Georgia.  But Judge Brown said, "this is not enough" to warrant an award of the fees.

"Neither plaintiff nor Mr. Robbins indicate how much time was billed or what specific services were provided.  They also fail to attach any billing statements," he said.  The judge directed GSR and its attorneys to submit "clear and detailed evidence" supporting its fee request within 14 days.

NALFA Releases 2021 Litigation Hourly Rate Survey & Report

July 19, 2022

Every year, NALFA conducts an hourly rate survey of civil litigation in the U.S.   Today, NALFA released the results from its 2021 hourly rate survey.  The survey results, published in The 2021 Litigation Hourly Rate Survey & Report, shows billing rate data on the very factors that correlate directly to hourly rates in litigation:

City / Geography
Years of Litigation Experience / Seniority
Position / Title
Practice Area / Complexity of Case
Law Firm / Law Office Size

This empirical survey and report provides micro and macro data of current hourly rate ranges for both defense and plaintiffs’ litigators, at various experience levels, from large law firms to solo shops, in regular and complex litigation, and in the nation’s largest markets.  This data-intensive survey contains hundreds of data sets and thousands of data points covering all relevant billing rate categories and variables.  This is the nation’s largest and most comprehensive survey or study on hourly billing rates in litigation.

This is the second year NALFA has conducted this survey on billing rates.  The 2021 Litigation Hourly Rate Survey & Report contains new cities, additional categories, and more accurate variables.  These updated features allow us to capture new and more precise billing rate data.  Through our propriety email database, NALFA surveyed thousands of litigators from across the U.S.  Over 8,400 qualified litigators fully participated in this hourly rate survey.  This data-rich survey was designed to aid litigators in proving their lodestar rates in court and comparing their rates to their litigation peers.

The 2021 Litigation Hourly Rate Survey & Report is now available for purchase.  For more on this survey, email NALFA Executive Director Terry Jesse at terry@thenalfa.org or call us at (312) 907-7275.

Should Judges Police The Gender Hourly Rate Disparity?

June 1, 2022

A recent Law 360 story by Andrew Stricker, “Should Judges Police The Legal Industry Pay Gap?” reports that as the pay gap between male and female attorneys persists despite industry pledges to do better, the power of judges to potentially bridge the divide is coming into sharper focus.  Following an unusual decision by a federal magistrate, some members of the Philadelphia bar have endorsed the idea that other judges should follow suit and help police gender pay inequities, or at least call them out from the bench.

U.S. Magistrate Judge Timothy R. Rice recently issued the order critiquing elements of a notable employment firm's request and awards that put attorney "status" over performance.  "I don't think it's always my role, but in this instance, I felt I had to set the rates based on the performance of the attorneys who really tried the case, and not a rate that was maybe based more on age or seniority," Judge Rice told Law360 Pulse.

In April, Judge Rice was overseeing the last stage of an age discrimination case brought by Alison Ray, a former sales director at AT&T Mobility Services who was let go at age 49 after more than two decades at the company.  Following a five-day trial, Ray last year secured a $2.3 million award after a jury determined that a company restructuring plan had targeted older employees as "surplus."

In February, lawyers at the firm representing Ray, Console Mattiacci Law LLC, asked for $847,945 in "shifted" fees from AT&T.  That lodestar calculation, based on a 40% contingency agreement, was justified by the complexity of the plaintiff's case, Ray's counsel argued, as well as a "complete and total victory" on her claims that AT&T had willfully violated federal age discrimination law.  The fee petition included nearly 1,570 hours from partners Susan Saint-Antoine and Laura C. Mattiacci, a highly experienced lead trial counsel, and associate Daniel S. Orlow. Saint-Antoine and Mattiacci, who have practiced since 1989 and 2002, respectively, both listed their "usual and customary" rate of $730 an hour. Orlow, who has practiced since 2011, was at $320 an hour.

The petition also included 37 hours contributed by firm principal Stephen G. Console. Console, a nationally recognized employment law expert, charged $900 an hour for consulting on strategy decisions and filings, as well as settlement demands and other key elements of the case.  In an order granting a handful of reductions totaling about $83,000, Judge Rice said Saint-Antoine and Mattiacci should be entitled to the same per-hour rate as Console, who has been practicing for three decades.

"Historically, women in law earn less than their male counterparts, a discrepancy that may reflect hidden bias," he said, citing a 2020 report that found widening pay discrepancies at large law firms.  Referring to a fee schedule used widely in the Third Circuit to determine market rates for Philadelphia-area lawyers, Judge Rice said Saint-Antoine and Mattiacci should be in line for a "premium" over those numbers that put them in line with Console.  Even if the fee schedule "serves as a useful guide on setting hourly rates, its reference to experience should not serve as a cap that precludes exceptionally talented trial lawyers from receiving fair compensation simply because of age or gender," Judge Rice said.

The legal industry pay gap, and its role in women reaching firm leadership and a lack of diversity in many areas of the profession, has been under intense scrutiny for years, but without much in the way of real progress.  In the 2020 report cited by Judge Rice, legal recruiting firm Major Lindsey & Africa found that partner compensation soared between 2010 and 2018.  But in that same period, the pay disparity between male and female equity partners widened significantly, from 24% to 35%.

Nancy Ezold, a veteran Philadelphia employment lawyer, said it was "absolutely" appropriate for Judge Rice to consider rate disparities for lawyers in his court, even though AT&T counsel hadn't raised the issue in its fee-award opposition.  "I don't know of anything in the law that says you have to consider what a law firm pays people," Ezold said.  "But Judge Rice looks at the bigger picture and asks, 'Am I going to do something to perpetuate an inequality and authorize a fee for a male partner over two female partners who really handled this case?'"

Ezold, who once sued her own former law firm in the late 1980s for denying her a partnership based on her gender, argued that fee petitions often provide a substantive overview of who did what work over the history of a litigation.  Depending on the nature of the case, they can also be an opportunity for judges to compare requested rates across different firms and legal teams comprising different gender and experience makeups.

"Here the judge couldn't overlook a difference between male and female in this case because it related directly to the responsibility to decide what would be allowed for each of these attorneys," Ezold said.  "Judges speak out on a lot of things, and I don't see why this should be any different."  Judge Rice served as an assistant U.S. attorney for the Eastern District of Pennsylvania before being appointed as a federal magistrate in 2005.  He retired in April, just after issuing the Ray opinion.

In an interview with Law360 Pulse, Judge Rice said the timing was coincidental, noting that the issue of male-female pay disparities had never before been "so squarely presented" to him in a fee petition.  "From the [fee] affidavits I see, and from all I know about law firm pay structures, I do think the pay gap is huge, and there are just so many variables out there that have cut against giving women equal pay," such as lack of trial experience and other opportunities to advance, he said.

"When I see lawyers perform in an exemplary fashion, it's appropriate they be paid at higher rates commensurate with their skills, not just based on the years they've practiced," Judge Rice added.  Alice Ballard, another veteran Philadelphia employment lawyer who provided a fee affidavit in the Ray case, said Judge Rice's prior time as a trial lawyer was evident in the opinion, including in his positive assessment of the hours Console Mattiacci dedicated to mock trial runs and other "essential" advocacy preparation.

Judge Rice "really understands what it means to prepare for a trial like this, and everyone on my beat really appreciates that," she said.  But Ballard took issue with Judge Rice's ultimate reliance on what she described as an outdated fee schedule, rates that don't well reflect the special skills of trial work, Mattiacci's successful track record or the contingency fee model.

She also cautioned against reading the opinion as a critique of the hourly rate request for Console, whom she called a "lion" of the city's employment bar.  Regarding his reference to the legal industry's gender pay disparities,"it's great that he took the opportunity to bring it up, but I just don't think it has much to do with this specific case," Ballard said.