A recent Law 360 story by Piper Hudspeth Blackburn, “Judge Wants Sabre to Pay Fees in Airline’s $1 Antitrust Win,” reports that a federal magistrate judge has recommended that airline booking giant Sabre should cover the costs of attorney fees for US Airways, which pursued antitrust claims that ultimately resulted in a mere $1 jury award after more than a decade of litigation.  In a report, U.S. Magistrate Judge James L. Cott determined that the airline is entitled to fees because of the "plain language" of federal antitrust law despite the nominal damages award. Judge Cott also noted that the amount could be reduced after looking at billing records.

Because a jury returned a verdict for US Airways on its monopolization claim under Section 2 of the Sherman Act, "a plain reading" of Section 4 of the Clayton Act allows US Airways to recover the cost of the suit, "including a reasonable attorney's fee," the report stated.  In 2022, a Manhattan federal jury found, after a three-week trial, that Sabre willfully maintained monopoly power through exclusionary conduct. It was a redo of a 2016 trial that had awarded US Airways $15 million in damages before the Second Circuit scrapped the verdict on technical legal grounds.

Sabre has argued that U.S. Supreme Court precedent shows that when a party recovers only nominal damages, the only reasonable fee is "usually no fee at all."  However, US Airways insists that the damages it received shouldn't affect its ability to recover costs and attorney fees.  According to Judge Cott, Sabre's argument fails because the precedent the booking company pointed towards, Farrar v. Hobby, doesn't apply to this case but rather to the reasonableness of fee awards in civil rights cases. Farrar holds that the reasonableness of a fee award is indicated by the size of damages awarded.

"Farrar concerned the entitlement to fees under § 1988 of the U.S. Code, not the Clayton Act or any other mandatory fee statute, and there is no suggestion in the opinion itself that its holding extended beyond § 1988," the report stated.  Judge Cott pointed toward a Second Circuit decision on "an identical issue" to this one, United States Football League v. National Football League, instead.  In that case, the court had to determine whether a plaintiff is entitled to reasonable attorney fees "after decade-long antitrust litigation resulting in a $1 jury verdict only on Sherman Act Section 2 grounds."

Not only did the court decide that the plaintiff could recover attorney fees, it "further explained that civil rights cases are inapposite as they concern discretionary awards of fees, while Section 4 mandates them," the report continued.  Judge Cott also rejected Sabre's argument that in the event it must pay attorney fees, the amount should be reduced by 99% because US Airways only "obtain[ed] .0000003% of its alleged damages ... and no injunctive relief."

While no legal rule requires that fees be proportional to the requested amount and the recovered damages, Judge Cott, wrote that the court can reduce the requested fees after analyzing billing records.  While "a downward adjustment is undoubtedly warranted" in this case, Judge Cott noted that the court couldn't determine the amount without first calculating the lodestar.

"The court's eventual reduction will be guided by comparable cases in this circuit, which do not necessarily dictate the extreme slashing that Sabre seeks," the report stated.  The litigation began in 2011, when US Airways sued Sabre, alleging that the company had monopolized the market for systems that connect airlines to travel agents and violated federal antitrust laws.

A recent Law 360 story by Ben Zigterman, “6th Circ. Won’t Rehear Attorney Fee Coverage Decision” reports that the Sixth Circuit declined to rehear an appeal decided earlier this month against two attorneys seeking coverage of attorney fee awards that Wesco Insurance Co. said were excluded "sanctions."  After the July 1 decision, Ohio attorneys Jason Wallace and Daniel Bache asked to have the full circuit rehear the appeal, arguing that a three-judge panel improperly interpreted the policy from an average attorney's perspective, rather than whether it was subject to multiple interpretations.

"The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case," the order said.  "The petition then was circulated to the full court.  No judge has requested a vote on the suggestion for rehearing en banc."  In its decision, the panel found that the attorney fee award qualified as sanctions because the Individuals with Disabilities Education Act the claims were brought under make attorney misconduct a prerequisite for an attorney fee award.

Because Wesco's policy included an exclusion for sanctions under federal law, the panel said the insurer didn't owe coverage.  The case stems from suits filed by four northern Ohio school districts seeking to recover what they spent on attorney fees fighting litigation filed on behalf of parents and children under IDEA, according to court documents.

"This misconduct element makes clear that any awarded fees would constitute a 'sanction' under the ordinary meaning of that term (and so under Wesco's policy)," the panel wrote.  In their petition for a rehearing, Wallace and Bache argued that the panel should have interpreted the policy's terms liberally in its favor, not under their ordinary meaning or as an average attorney would define them.

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.

A recent Law 360 story by Max Jaeger, “Sanctioned NFL Player Must Cover Atty Fees in Poaching Suit” reports that New York Giants wide receiver Kenny Golladay must cover more than $15,000 in attorney fees for his former agency after flouting a subpoena in litigation over whether he was poached by a rival, a Michigan judge said.  In an order, U.S. Magistrate Judge Anthony P. Patti overruled Golladay and approved $14,929 in attorney fees to cover Honigman LLP's representation of the wideout's former agents at Clarity Sports International LLC.  The judge refused to award fees for work by Dowd Bennett LLP, finding them "excessive and redundant" of work by Honigman's lawyers.

Clarity said it cost them a little over $20,000 to get Golladay to comply with a third-party subpoena for his deposition and document production.  The agency says in a separate suit that sports memorabilia sellers helped non-party Creative Arts Agency steal Golladay from them.  The wide receiver is not a party to that suit, but he ignored a 2020 subpoena, so Clarity sued to compel.  The court hit him with sanctions for his "cavalier and reckless attitude" and ordered him to pay Clarity's legal bills for giving them the "run-around."

Golladay opposed most of the Honigman fees, arguing that partner Jeff Lamb's four hours at $580 per hour merely duplicated 19.75 hours of work that partner Andrew Clark did at $455 per hour.  But the court disagreed.  "Although much of attorney Lamb's relevant work appears to have involved review and conference with other attorneys, the court considers such collaboration between partners and associates typical and substantive, as opposed to duplicative and redundant," Judge Patti wrote.

That was "especially true" given Clark was out on leave for two months, the judge said.  He also approved 11 hours that associate Nicholas Burandt contributed at $350 an hour.  Some work was duplicative, however, and the judge denied $5,400 to Dowd Bennett for the roughly 7.5 hours each contributed by Dowd Bennett partner John D. Comerford and associate James B. Martin, who charged $420 an hour and $300 an hour respectively.

Golladay argued he shouldn't have to pay their fees because Clarity retained them on a contingency basis in the underlying tortious interference case against CAA that's separately playing out in Pennsylvania federal court.  Because it is ongoing, Clarity had not "incurred" any fees yet, he argued.  "The court, however, struggles to find the logic in this latter argument, as it would imply that parties (or non-parties) would be shielded from sanctions for poor behavior whenever the opposing side has a contingency-fee relationship," Judge Patti said in his order.

Instead, the judge said Dowd Bennett LLP's contribution amounted to sending emails to Honigman counsel and editing filings, and awarding fees would be excessive.  "Although Respondent's behavior throughout this matter has undoubtedly been unacceptable and necessitated additional work by Petitioners, that work was frustrating more so than complicated," Judge Patti said.

A recent Law 360 story by Jon Hill, “NY Judge Cuts ‘Excessive’ Atty Fee Sanction For UBS Investor” reports that a New York state judge ordered a UBS investor to pay $30,000 in legal costs over a rejected effort to revive his derivative suit against the bank's top officials, saying his opponents' original request for him to pay more than double that to their counsel at Sullivan & Cromwell was "excessive."  In an order, Manhattan County Supreme Court Justice Jennifer Schecter declined to grant the full fee award submitted by the UBS Group AG defendants in the case, whose Sullivan & Cromwell LLP attorneys wanted a total of more than $61,000 from plaintiff Ezra Cattan.

Their request came after the judge sanctioned Cattan last month for making what she deemed an ill-conceived motion to re-argue his case, ruling that he would have to cover his opponents' legal bills for fighting his motion.  In response, UBS' Sullivan & Cromwell team requested $45,000 for its work opposing the motion and another roughly $16,000 for its time spent preparing the fee award application.  But Justice Schecter concluded that this $61,000 total was too much.

Although Sullivan & Cromwell's opposition to Cattan's motion had been "understandably thorough" given the circumstances and "notwithstanding the quality of defense counsel's work and the reasonable though expensive hourly rates they charge, spending more than 60 hours on the opposition papers and this fee application was excessive," Justice Schecter wrote.  Cattan, for his part, had objected to the UBS defendants' $61,000 fee award request as unreasonable and urged that it be slashed to about $25,000, if not less.

Instead, Justice Schecter said that a total award of $30,000 "would be reasonable ... for having to oppose plaintiff's frivolous motion for re-argument and renewal."  Cattan's motion sought to reopen his derivative suit against top officials at UBS.  Filed in 2020, the case pinned blame on the bank's leaders — including then-CEO Sergio Ermotti — for what Cattan, a shareholder, claimed has been an "endless train" of damaging scandals, investigations and lawsuits for the bank going back more than a decade.

Justice Schecter threw out the case in December, ruling that Cattan's claims were covered by a forum selection clause in the bank's corporate charter that designated Switzerland as the proper venue.  But Cattan subsequently moved to keep the case alive by filing both a notice of appeal and a motion for re-argument.  In that February motion, he contended that the judge lacked the power to dismiss his suit on "forum non conveniens" grounds and should grant a do-over.

That challenged was slapped down last month by Justice Schecter, who said that it misconstrued her dismissal reasoning and "should never have been made."  At the same time, the judge granted a request by the UBS defendants to impose sanctions on Cattan for what they called his "frivolous" motion.  "Plaintiff shall therefore reimburse defendants for the reasonable costs and attorneys' fees incurred in opposing this motion," Justice Schecter ordered last month.

A recent Law 360 story by Abby Wargo, “Honeywell Wants Workers To Cover Atty Fees in ERISA Suit” reports that Honeywell International Inc. told a Michigan federal judge to grant it attorney fees...

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A recent article by Charles H. Dick, Jr., “Recovering Attorney Fees in Arbitration,” reports on recovering attorney fees in arbitration.  This article was posted with permission.  The article...

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