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Category: UK / International

Dentons Wants Out of Japanese Billionaire’s $50M Fee Dispute

December 18, 2021

A recent Law360 story by David Thomas, “Dentons Wants Out of Japanese Billionaire’s $50M Fee Fight With Law Firm,” reports that Global law firm Dentons asked to withdraw from representing a Japanese pachinko billionaire in a $50 million legal fee fight with Chicago-based litigation firm Bartlit Beck.  Dentons partners Alex Gude, Meaghan Klem Haller and Robert Richards told U.S. District Judge John Kness in Chicago that there was "an irretrievable breakdown" in their attorney relationship with client Kazuo Okada.

They did not say why the relationship soured but said Okada consents to the firm's withdrawal.  They asked for deadlines in the case to be extended by two months so Okada can find new counsel.  The Chicago-based 7th U.S. Court of Appeals last month appeared skeptical of Dentons' arguments that Okada shouldn't be forced to pay $50 million in legal fees to Bartlit Beck stemming from an earlier court fight with Wynn Resorts Ltd.

Okada hired Bartlit Beck to represent him in a lawsuit against Wynn Resorts after the U.S. casino giant forced Okada's Universal Entertainment Corp to sell back its stake in the company at a discount following an internal anti-corruption investigation.  That case settled in March 2018 for $2.6 billion.

Bartlit Beck, a firm specializing in high-stakes litigation founded by ex-Kirkland & Ellis partners, took Okada to arbitration after he failed to pay $50 million it claimed he owed in legal fees.  Okada withdrew from the arbitration proceedings days before a U.S.-based evidentiary hearing in October 2019, arguing his engagement agreement with the firm was invalid.  Okada also said he was unable to travel due to his health.  The arbitration panel awarded Bartlit Beck $50 million by default in 2019.  Kness ordered Okada to pay Bartlit Beck in March, sparking the appeal.  The 7th Circuit's decision is still pending.

IMF Says It’s Immune From Attorney Fee Dispute

December 10, 2021

A recent Reuters story by Mike Scarcella, “IMF Says It’s Immune From Legal Fee Fight -- Again,” reports that a lawyer for the International Monetary Fund told a federal appeals court that the organization is shielded from a case that seeks to have a judge hear a dispute over millions of dollars in legal fees.  Seyfarth Shaw's James Newland Jr, arguing for the IMF before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, asserted that the IMF has judicial immunity from the litigation and that the organization never "expressly waived" such immunity in a legal-services contract with one of its outside lawyers.  A lower court judge in March dismissed the lawsuit.

The plaintiff, Leonard A. Sacks & Associates, in 2017 filed an arbitration action against the IMF that questioned how much the organization had paid him to resolve a construction-related dispute with contractors who'd been hired for work on the IMF's office in Washington, D.C. Leonard Sacks said in court filings his work saved the IMF about $45 million.  Sacks contested in court an arbitrator's decision to award him about $39,000 in fees beyond the $2.36 million he had received in 2016.

Newland did not immediately return a message seeking comment.  A lawyer for Sacks, Donald Spence Jr of Spence & Becker, and Sacks did not immediately return messages seeking comment.  Sacks had a 20-year professional services relationship with the IMF.  He said in court filings that the IMF, without his input, had determined his fee for the legal services on the construction project would be $4.15 million.  Sacks said he asked for an accounting on the fees but did not receive one.  The IMF ended its contract with him in 2017, court filings show.

Spence, arguing for Sacks at the D.C. Circuit, said the courts should have a role in reviewing the arbitrator's fee award.  The contract at issue, Spence argued, referenced D.C. law and the American Arbitration Association rules, which permit lawsuits seeking to modify or vacate an award.  Sacks had a contractual right to a court's review, Spence told D.C. Circuit Judges Cornelia Pillard, Laurence Silberman and Karen Henderson.  "Without a remedy, the contract is essentially illusory," Spence wrote in a brief.

No Arbitration for Attorney-Client Fee Dispute

August 11, 2021

A recent Law 360 story by Caroline Simson, “No Arbitration For King & Spalding Client Fight, Court Hears”, reports that a Dutch citizen who accuses King & Spalding LLP of fraudulently colluding with Burford Capital to maximize fees ​​in a treaty claim​ against Vietnam​ is fighting the law firm's efforts to send the fee dispute to arbitration, arguing that an arbitration clause in the funding agreement is inapplicable.

Trinh Vinh Binh sued King & Spalding and two of its international arbitration partners in Houston, Reggie R. Smith and Craig S. Miles, in June, alleging they made a "mockery of the fiduciary obligations an attorney owes to their clients" by "colluding" with litigation funder Burford to take more of the arbitration proceeds than Binh had agreed to.  The law firm had represented Binh in a treaty claim against Vietnam over the confiscation of certain real estate that ended in a $45 million award against the country in 2019.

King & Spalding pressed a federal court in Houston last month to send the dispute with Binh to arbitration, citing an arbitration clause in the funding agreement and alleging that Binh excluded Burford from his suit in an attempt to skirt the clause.  The law firm claims that even though it is not a signatory to the funding agreement, the broad scope of the clause provides for arbitration of any dispute arising out of the pact.

But Binh argued that the clause governs disputes only between him and Burford, and not with any third parties. He said that the engagement agreement he signed with King & Spalding when he retained the firm for the Vietnam matter makes no mention of arbitration for disputes.  "Defendants are attorneys, and they certainly know how to draft an arbitration clause.  But the engagement agreement between Binh and defendants contains no arbitration clause," Binh's attorneys said. "Try as they might, defendants have not shown — and cannot show — that they may properly invoke the [funding agreement's] arbitration clause.  Binh therefore respectfully requests that this court deny defendants' motion."

King & Spalding had represented Binh in an arbitration matter filed against Vietnam in 2015, in which Binh accused the country of improperly taking several valuable properties he says were worth an estimated $214 million.  Under their deal, the law firm agreed to hold back 30% of billings for fees and defer the payment of those amounts until work had concluded in the arbitration.  At the same time, Binh entered into a funding agreement with Burford Capital with a $4.678 million spending cap, according to the suit.

Binh claims that King & Spalding told him the firm could complete the arbitration work within that cap.  But by May 2016, the firm had already billed and been paid some $1.9 million, leaving about $1.8 million after initial costs and expenses had been paid out.

Binh alleges that at that point the firm, "motivated by securing continued, guaranteed immediate payment of their fees, colluded with Burford" to contrive a scheme to increase the amount potentially owed by Binh by increasing the cap on King & Spalding's legal fees and, consequently, increasing Burford's potential entitlement to an increased return.  The way the agreement worked was that the more King & Spalding billed against the cap amount in legal spending, the more Binh was at risk of paying a so-called success return, to be paid if Binh prevailed in the arbitration.  The success return was to be split between King & Spalding and Burford based on the relative portion of their investments in the arbitration.

Binh alleges that King & Spalding tried to make him agree to increase the cap on expenditures for legal fees — and potentially, provide more of a return for Burford — but that he refused.  Thereafter, Burford and the law firm allegedly executed a side agreement between themselves.

In addition to accusing King & Spalding of breaching its fiduciary duty, Binh's lawsuit includes claims for negligence if the overpayment of fees was due to a mistake, as well as claims of misrepresentation and fraud.  He also accuses the firm of negligence after the tribunal in the case against Vietnam rejected an expert report the firm provided stating that Binh's property was worth some $214 million.  The tribunal instead awarded $45.4 million.

AIG Unit Denied Attorney Fees in $7.2M Coverage Win

August 6, 2021

A recent Law 360 story by Ben Zigterman, “AIG Unit Denied Fees Following $7.2M Coverage Win”, reports that an AIG subsidiary has lost its New York federal court bid to have its reinsurer pay more than $300,000 in attorney fees, following a ruling last year that the reinsurer must cover $7.2 million of a $20 million payment to Dole Food Co. to settle pollution claims.  The Insurance Co. of the State of Pennsylvania had sought the fees from London-based reinsurer Equitas Insurance Ltd. under English law, but U.S. District Judge Laura Taylor Swain adopted a magistrate judge's recommendation that the fees are not permitted by New York law.

On U.S. Magistrate Judge Sarah L. Cave's recommendation last month, ICSOP said it wouldn't object in an effort to speed up Equitas' appeal of the $7.2 million judgment, which is now up to $8.4 million with prejudgment interest.  After ICSOP covered the $20 million settlement of claims over lingering petrochemical pollution at a Dole subsidiary's housing development in California, it asked Equitas to pay $7.2 million of that under two reinsurance policies it had with Equitas.  Judge Swain upheld that request last year under English law.

Because the case was decided under English law, ICSOP asked the court to also apply it to the insurer's attorney fees of about $348,000, as British courts generally require the losing party to pay them, according to the insurer's motion.  ICSOP also said that its attorney fees were "eminently reasonable" compared to the total judgment and that it paid discounted hourly rates of $566.40 and $380 to the two attorneys working on the case.

But while the reinsurance policies were interpreted under English law, Judge Cave found that the question of attorney fees is a procedural matter that should be interpreted under the procedures of the court where the suit was filed.  Under New York law, losing parties in a lawsuit don't pay attorney fees unless a law or contract states otherwise, which was not the case with these reinsurance policies, she said.

"While it may have been predictable that, because the reinsurance policies were sold in the London market, English law would govern their interpretation, the reinsurance policies do not dictate that litigation be brought in an English court, contain a fee-shifting provision, or provide that the English Rule would apply in a United States court in which the parties chose to litigate," Judge Cave wrote.

Judge Orders Attorney Fee Dispute to Arbitration

March 9, 2021

A recent Law 360 story by Emma Whitford, “Atty Must Arbitrate Fee Dispute With Racehorse Trader,” reports that a California judge ordered an attorney to arbitrate her dispute with a U.K. racehorse auctioneer company, her former client, over fees allegedly due when she represented the company accusing a financier of failing to pay for a racehorse.  Attorney Diana Courteau of California claimed in her April complaint that Tattersalls Ltd., the racehorse company, failed to pay her $73,255.34 for the months of February and March 2020, after firing her that March.  The six-claim complaint also accused Tattersalls and Bracher Rawlins LLP, the company's English counsel, of fraud and intentional misrepresentation.

But Tattersalls and Bracher Rawlins pushed back with a motion to dismiss, pointing to an arbitration provision in their contract with Courteau and claiming that she failed to give them proper notice under the California Mandatory Fee Arbitration Act, which lays out rules for the handling of attorney-client fee disputes.  "Here, it is undisputed that [the] plaintiff did not provide the mandatory notice form to defendants," U.S. District Judge Dolly M. Gee ruled, adding that the case will be stayed while arbitration goes forward.

"Moreover," Judge Gee added, "the agreement between plaintiff and Tattersalls contains a broad arbitration provision governing the very dispute at issue."  Specifically, a "dispute over legal bills that alleges breach of contract and related claims."  Courteau had argued that Bracher Rawlins could not compel her to arbitrate because the firm is not a signatory to her agreement with Tattersalls.  But Judge Gee disagreed, saying that Bracher Rawlins will be part of the arbitration as an "agent" of Tattersalls.

It is "well settled that a nonsignatory may compel a signatory to arbitrate based on agency principles," Judge Gee wrote, adding that Bracher Rawlins "was only in a position to direct or authorize plaintiff to perform legal work for Tattersalls in its capacity as Tattersalls' agent."  The order is just the latest development in the litigious fallout of Tattersalls' working relationship with Courteau, who represented the company in various matters from 2011 until March of last year.

Last June, in the case Courteau worked for Tattersalls until they fired her, U.S. District Judge Karen S. Crawford ordered Courteau to pay $31,772.62 in sanctions to defendants Gerald Wiener and his entity Finance California Inc., court records show.  The sanctions covered attorney fees for a two-day deposition last January in which the court found that Courteau coached the witness, as well as the cost of preparing the sanctions motion, court records show.

Wiener and Finance California had also sought termination sanctions, a serious sanction that would have ended the case, for Courteau's alleged "abusive" and "hardball" tactics.  But Judge Crawford denied that motion, saying the "worst of this conduct has been addressed" and "monetary sanctions have been imposed which should be enough to deter future misconduct."  Courteau has yet to pay the sanctions, court records show.  Attorneys for Wiener filed a notice of lien in the instant suit on Jan. 15.

In a Feb. 4 declaration to the court, Courteau urged Judge Gee to proceed with a trial for her fee dispute or, in the alternative, send the case to "global mediation" along with the Wiener case, which is currently on appeal to the Ninth Circuit.  "Plaintiff is willing to stipulate (notwithstanding meritorious grounds for appeal) that ... the $31,772,62 (sanctions) can be paid from fees owed by defendants," Courteau wrote.