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Category: Fees & Litigation Tactics

Judge Rejects $5.2M Fee Request in Poultry Farm Loan Suit

February 21, 2024

A recent Law 360 story by David Minsky, “Judge Rejects $5.2.M Atty Fee Bid In Poultry Farm Loan Suit”, reports that a New York federal judge rebuffed attorneys' attempt to collect a nearly $5.2 million fee for representing an affiliate of two billionaire brothers that accused an investment adviser of fraudulently inducing the affiliate to provide a loan for a Russian poultry operation, saying the adviser wasn't improperly defending himself.

In the order, U.S. District Judge Victor Marrero denied an attorney fee motion by Reed Smith LLP lawyers representing Bloomfield Investment Resources Corp., which accused adviser Elliot Daniloff of needlessly stretching out the firm's lawsuit against him over the course of several years before he was ultimately ordered to pay millions in compensatory and punitive damages.

Bloomfield — a British Virgin Islands company and affiliate of billionaire brothers David and Simon Reuben — sued Daniloff in 2017 and a judgment of more than $34 million was entered against him in 2023, a year after a bench trial was held, court records show.

"To prevail on a motion to shift fees, the moving party must provide 'clear evidence' that the losing party's claims were (1) 'entirely without color,' and (2) 'were made in bad faith,'" Judge Marrero said in his order.  "The court finds that Bloomfield has not established that Daniloff engaged in the sort of dilatory and vexatious litigation tactics that satisfy the standard for the 'bad faith' exception in this circuit."

In the 2017 case, the plaintiff accused Daniloff of misdirecting $25 million intended as a loan into a bank account opened for the Russian poultry farm and failing to return the money.

Following the judgment, in June 2023, Reed Smith attorney Steve Cooper filed a motion seeking attorney fees from Daniloff.  In the accompanying memo, Cooper said Daniloff failed to show credible evidence of his theory, which is that "Bloomfield made an investment in the Synergy Hybrid Fund as an investor and that the $25 million did not represent a loan."

"Daniloff's actions led to prolonged and expensive litigation," Cooper stated in his motion.  "He caused the collection, review and/or production of almost 150,000 pages of documents, and the taking or defending of 13 depositions.  He made numerous frivolous motions and appealed the dismissals of his first action to the Second Circuit twice."

Opposing the attorney fee motion, Daniloff said that the plaintiff couldn't show that his defense wasn't "colorable" and used for an "improper purpose."

"Efforts to delay proceedings are not sufficient to establish that the litigant is acting with an 'improper purpose' as required for the 'bad faith' exception," Daniloff said in his July opposition filing.  "Moreover, any assertion that Mr. Daniloff was defending against Bloomfield's claims to give himself leverage in resolving the dispute would be insufficient to establish that Mr. Daniloff litigated this dispute with an improper purpose."

The court found Daniloff's arguments "legally and factually baseless," according to Judge Marrero, who also noted that the "court found that Daniloff persisted in making baseless arguments without support and in conflict with the clear evidence showing that he (and Bloomfield) always understood the $25 million would be a loan and not an equity investment."

While Judge Marrero acknowledged Bloomfield's arguments that Daniloff convinced the parties to engage in lengthy negotiations that delayed the case and ultimately failed, he added the court wasn't persuaded that these tactics amounted to bad faith dealings.

Judge Marrero cited the "American rule" in which parties pay their own attorney fees, "absent statutory authority or by contract," but recognized that these costs can be shifted in limited circumstances.  One deviation from the rule is the "bad faith exception," the judge said, in which the non-prevailing party's actions are conducted "vexatiously, wantonly or for oppressive reasons."

The judge, however, found that Bloomfield hadn't established the required "high degree of specificity" in showing Daniloff litigated with the intent to harass or delay, saying that it has never been held in his circuit that a "frivolous position may be equated with an improper purpose."

"Without such evidence, the court cannot conclude that Daniloff's actions were taken with an improper motive," Judge Marrero said.  "Courts in this circuit have consistently declined to award attorneys' fees simply on the basis that the defendant improperly delayed the proceedings, even when the delay was accompanied (or even caused) by meritless legal positions."

Why Federal Circuit Affirmed Patent Attorney Fee Award

January 2, 2024

A recent Law 360 article by Thomas Makin, David Cooperberg, and Adi Williams, “Why Fed. Circ. Affirmed Attorney Fee Award in PeronalWeb”, reports on the recent patent attorney fee award in PersonalWeb Technologies case before the U.S. Court of Appeals for the Federal Circuit.  This article was posted with permission.  The article reads:

In the recent majority opinion In re: PersonalWeb Technologies, the U.S. Court of Appeals for the Federal Circuit affirmed the U.S. District Court for the Northern District of California entry for a $5.2 million award of attorney fees pursuant to Title 35 of the U.S. Code, Section 285.  Federal Circuit Judges Jimmie V. Reyna, Timothy B. Dyk and Judge Alan D. Lourie reviewed the district court's exceptional case determination and fee award calculation and found no abuse of discretion.

This article explores the ramifications of the Federal Circuit's Nov. 3 decision and underscores district courts' discretion to sanction unreasonable arguments and litigation tactics.

Section 285, provides that, "[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party."  Attorney fees, however, are not awarded merely for "failure to win a patent infringement suit," as per the U.S. Supreme Court's 2014 Octane Fitness LLC v. ICON Health & Fitness Inc. decision.

According to the Federal Circuit's 2017 Checkpoint Systems Inc. v. All-Tag Securities SA decision, "The legislative purpose behind § 285 is to prevent a party from suffering a 'gross injustice,'" such as having to defend itself against baseless claims, and not to punish a party for losing.  But according to Octane, "The Patent Act does not define 'exceptional.'  [However, the Supreme Court has construed it] in accordance with [its] ordinary meaning."

The Supreme Court has further explained in Octane that an exceptional case is

simply one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated [and] District courts may determine whether a case is "exceptional" in the case-by-case exercise of their discretion, considering the totality of the circumstances.

When reviewing an exceptional case, the Federal Circuit is "mindful that the district court has lived with the case and the lawyers for an extended period ... and [it is] not in a position to second guess the trial court's judgment," as per the Federal Circuit's 2011 Eon-Net LP v. Flagstar Bancorp decision. 

PersonalWeb is the owner of U.S. Patent Nos. 5,978,791; 6,928,442; 7,802,310; 7,945,544 and 8,099,420 — collectively, the true name patents.  These patents are generally directed to what the inventors termed the "true name" for identifying data items.  True names are unique identifiers that depend on the content of the data item.

The activities that led to the Nov. 3 exceptional case determination started in 2011, when PersonalWeb sued Amazon.com Inc. in the U.S. District Court for the Eastern District of Texas, alleging that Amazon's Simple Storage Service, or S3, cloud technology infringed PersonalWeb's true name patents.  After the district court construed the claim terms, PersonalWeb stipulated to a dismissal, resulting in the district court dismissing with prejudice the infringement claims against Amazon and entering final judgment against PersonalWeb.

Seven years later, in 2018, PersonalWeb asserted the same true name patents against 85 Amazon customers across the country for their use of Amazon's S3 technology.  Amazon intervened and filed a declaratory judgment action against PersonalWeb.  The declaratory judgment action sought an order, barring PersonalWeb's infringement actions against Amazon and its customers based on the Texas action.

The declaratory judgment action and customer cases were then consolidated into a multidistrict litigation and assigned to the Northern District of California.  Upon consolidation, PersonalWeb represented that if it lost its case against Twitch, a customer case, it would not be able to prevail in the other customer cases.  The California district court then stayed the other customer cases and proceeded with Amazon's declaratory judgment action and the Twitch customer case.

In the declaratory judgment action, PersonalWeb counterclaimed against Amazon, alleging that Amazon's S3 technology infringed its true name patents and later added claims against another Amazon product, CloudFront.  The district court granted summary judgment of noninfringement as to the S3 product in favor of Amazon, based on both the Kessler doctrine and claim preclusion.

The Kessler doctrine generally precludes a patentee from pursuing follow-on infringement suits against the customers of a manufacturer that previously prevailed against the patentee on the same allegedly infringing products.  The district court later granted summary judgment of noninfringement as to the CloudFront product based on PersonalWeb's concession that it could not meet its burden of proving infringement under the district court's claim construction.

The Federal Circuit affirmed both decisions.  The district court then granted Amazon and Twitch's motion for attorney fees and costs, pursuant to Title 35 of the U.S. Code, Section 285.

In determining that the case was exceptional, the district court found that:

  •     PersonalWeb's infringement claims related to Amazon S3 technology were objectively baseless and not reasonable when brought, because they were barred due to a final judgment entered in the Texas action;

  •     PersonalWeb frequently changed its infringement positions to overcome the hurdle of the day;

  •     PersonalWeb unnecessarily prolonged the litigation after claim construction foreclosed its infringement theories;

  •     PersonalWeb's conduct and positions regarding the customer cases were unreasonable; and

  •     PersonalWeb submitted declarations that it should have known were inaccurate.

PersonalWeb appealed to the Federal Circuit, contending that the district court erred as to each of its exceptional case findings.  The Federal Circuit addressed each argument, starting with PersonalWeb's alleged objectively baseless infringement claims.

Objective baselessness relates to "[t]he substantive strength of a party's litigating position" and can "independently support an exceptional-case determination," according to Octane — with these factors also cited in the Federal Circuit's 2017 Nova Chemicals Corp. (Canada) v. Dow Chemical Co. decision.  Thus, according to Octane, "a case presenting ...  exceptionally meritless claims may sufficiently set itself apart from mine-run cases to warrant a fee award."

In this regard, the Federal Circuit said, quoting Octane, in the 2015 SFA Systems LLC v. Newegg Inc decision: "It is the 'substantive strength of the party's litigating position' that is relevant to an exceptional case determination, not the correctness or eventual success of that position."

At the Federal Circuit, PersonalWeb argued that, with respect to objective baselessnes, the reach of Kessler had not been a well-settled issue and that the Federal Circuit's affirmance of the district court's summary judgment decision extended Kessler to cover cases against manufacturers that had been dismissed with prejudice pursuant to stipulation without adjudication of noninfringement.

The majority rejected PersonalWeb's arguments, and reiterated that the Kessler doctrine precludes a patentee who is first unsuccessful against the manufacturer from then suing the manufacturer's customers for those acts of infringement that post-dated the judgment in the first action. 

The majority opined that a straightforward application of Kessler barred PersonalWeb's claims because the order in the Texas action dismissing with prejudice all claims against Amazon and its S3 product operated as an adverse adjudication on the merits of PersonalWeb's infringement claims.

The Federal Circuit likewise found that claim preclusion rendered claims of customer infringement prior to the final judgment in the Texas action objectively baseless.  The Federal Circuit's remaining exceptional case analysis relates to litigation conduct.  And under the Supreme Court 's Octane Fitness standard, "a district court may award fees in the rare case in which a party's unreasonable conduct — while not necessarily independently sanctionable — is nonetheless so 'exceptional' as to justify an award of fees."

On appeal, with respect to the district court's finding regarding PersonalWeb's "frequently changing infringement positions," PersonalWeb argued that its conduct constituted zealous advocacy.

The Federal Circuit disagreed because the record showed that PersonalWeb's alternative infringement theories were constantly changing throughout the case, ranging from emphasizing one, or the other, or both.  The Federal Circuit found that PersonalWeb's pattern of flip-flopping infringement theories made the case "stand out from others with respect to the substantive strength" and "the unreasonable manner in which the case was litigated."

PersonalWeb challenged the district court's finding that PersonalWeb unnecessarily prolonged litigation on the basis that the district court had expressly credited PersonalWeb's efforts to streamline the case post-claim construction.

The Federal Circuit disagreed, holding that the district court's finding was not an abuse of discretion because:

  •     PersonalWeb refused to immediately stipulate to noninfringement despite an adverse claim construction and an obligation to continually assess the soundness of its claims; and

  •     PersonalWeb's offering of expert opinion relying on alleged ambiguity in the district court's claim construction amounted to an impermissible attempt to relitigate claim construction.  The Federal Circuit further noted that, while PersonalWeb may have taken other actions that did not prolong the case, the above misconduct sufficiently supported the district court's finding.

PersonalWeb challenged the district court's finding that PersonalWeb's conduct and positions regarding the issue of customer case representatives were unreasonable on the basis that it was only during discovery, in July 2019, that PersonalWeb discovered that Twitch was not representative of certain categories of the customer cases.

The Federal Circuit rejected this argument.  The court said PersonalWeb could not change horses in February 2020, after PersonalWeb had represented that it could not prevail against other customers if it could not prevail against Twitch, and after the district court granted summary judgment of noninfringement in favor of Amazon and Twitch.

The Federal Circuit also concluded that PersonalWeb's seven-month delay in raising its allegedly newly discovered nonrepresentativeness issue was unreasonable.  PersonalWeb also challenged the district court's finding that two inaccurate declarations submitted on behalf of PersonalWeb in support of its opposition to summary judgment were relevant to the exceptionality analysis.

The Federal Circuit agreed with the district court that the testimony was contradicted by the record and supported a finding of unreasonable litigation conduct.  The Federal Circuit dismissed PersonalWeb's argument that the testimony was not inaccurate as frivolous.

The appellate court concluded its analysis of the district court's exceptional case determination with an admonition that counsel, as officers of the court, "are expected to assist the court in the administration of justice, particularly in difficult cases involving complex issues of law and technology." 

The Federal Circuit found no clear error in the district court's finding that PersonalWeb's counsel fell short of this expectation by litigating with "obfuscation, deflection and mischaracterization" to make the case exceptional under Section 285.

With respect to the calculation of $5.2 million in attorney fees, which PersonalWeb also challenged on appeal, the Federal Circuit found no abuse of discretion in the district court's calculation.  The Federal Circuit found that the district court thoroughly analyzed the extensive record, considered conduct that both supported and detracted from its award of attorney fees, and explained the award's relation to the misconduct.

In a dissenting opinion, Judge Dyk contended that PersonalWeb's position on Kessler could not be objectively baseless because — in an amicus brief to the Supreme Court — the solicitor general agreed with PersonalWeb that the dismissal with prejudice of the Texas action should not trigger the Kessler doctrine. 

As Judge Dyk put it, "[T]he solicitor general is not in the habit of making objectively baseless arguments to the U.S. Supreme Court."  Judge Dyk asserted that the majority effectively punished PersonalWeb for making an argument on which it did not succeed rather than one that was unsupported.

Despite the dissent, this case underscores district courts' discretion to sanction unreasonable arguments and litigation tactics under Section 285.  Attorneys should be mindful when zealously representing their clients not to present to the court cases that may be deemed "exceptional" under Section 285.

When deciding to prosecute a patent infringement lawsuit, attorneys should conduct adequate pre-suit investigation, ensuring that each and every element of the claim is likely present in the accused product or process, either literally or as an equivalent, and that a prospective plaintiff is not barred from bringing suit.

The pre-suit investigation should also include researching and staying current on the controlling authority for the suit's specific fact pattern.  It naturally follows that attorneys should not ignore or mischaracterize evidence or controlling authority that undermines their clients' claims.

After filing suit, attorneys have a responsibility to dismiss the suit if subsequent developments foreclose the possibility of victory.  Importantly, attorneys should always remember that, while advocates for their clients they are also officers of the court, and owe the court a duty of candor and must abide by court rules and assist the court in the expeditious administration of justice.  Losing sight of these obligations risks exposing clients to an award of fees and costs under Section 285.

Pursuant to Section 285, a court may look to the totality of the circumstances, using, as per Octane, a "'nonexclusive' list of 'factors,' including 'frivolousness, motivation, objective unreasonableness (both in the factual and legal components of the case) and the need in particular circumstances to advance considerations of compensation and deterrence.'"

Parties should be aware that while an individual argument or litigation tactic might be characterized as mere zealous advocacy, an award of attorney fees may be supported when that conduct is viewed under the governing totality of circumstances standard.

Thomas R. Makin is a partner, David Cooperberg is a special attorney and Adi Williams is an associate at Shearman & Sterling LLP.

$2.5M Supplemental Fee Award in PersonalWeb Patent Case

December 28, 2023

A recent Law 360 story by Henrik Nilsson, “Amazon Lands Another $2.5M in Fees in Personal Web IP Fight”, reports that a California federal judge awarded Amazon $2.3 million in attorney fees plus another $193,000 in court costs in a patent feud with licensing outfit PersonalWeb, adding to an already more than $5 million fee award, while slamming PersonalWeb's "disgraceful" litigation tactics.

U.S. District Judge Beth L. Freeman granted and denied in part Amazon's motion for supplemental fees in the infringement litigation lodged against it and its various customers by PersonalWeb Technologies LLC, whose allegations over patented cloud-computing technology were ultimately found to be "objectively baseless" in 2020.

"The court notes with grave displeasure that the overriding theme of PersonalWeb's post-judgment conduct has been one of bad-faith evasion of the court's judgment and abuse of due process protections," Judge Freeman wrote her order.  "PersonalWeb's two-track strategy of attempting to avoid this court's jurisdiction, has been disgraceful, and as clear an example of bad faith as any that this court has had the displeasure of observing from the bench."

Judge Freeman saddled PersonalWeb with what was initially $4.6 million in fees in 2021, owed to Amazon's lawyers at Fenwick & West LLP for billing more than 9,260 hours of work on PersonalWeb-related litigation.  Amid appeal, the number has since ballooned to about $5.2 million, which a split Federal Circuit panel upheld Nov. 3.

Amazon said in May that it's entitled to $3.2 million worth of extra fees for work performed between March 2021 and March 2023, which it partly attributed to related Federal Circuit appeals over claim construction, non-infringement and the previous fee award.  In addition, Amazon argued that it incurred fees "attempting to secure or enforce the fee award."  The company later revised that number and asked for almost $3 million in fees and costs.  Judge Freeman said Amazon was entitled to approximately $2.5 million.

The sprawling litigation goes back to early 2018, when PersonalWeb filed around 50 patent suits in a handful of jurisdictions against Amazon Web Services customers, including Airbnb Inc., MyFitnessPal Inc., Reddit Inc., Venmo Inc., Kickstarter, Blue Apron LLC and FanDuel Inc.  But Amazon fired off its own suit in February 2018 arguing PersonalWeb had already lost its case against its customers when it dropped claims against Amazon itself in prior litigation.  A California federal court sided with Amazon in 2019, and the Federal Circuit upheld that decision in June 2020 in a precedential decision.

Judge Freeman approved Amazon's initial request for attorney fees in October 2020, calling the litigation "objectively baseless."  The judge declined to determine the amount at that time, but deemed the case "exceptional."  During a hearing on attorney fees in November, Judge Freeman expressed her frustration with the lengthy litigation, noting that she doesn't "really know what to say," and she's been ruling consistently in favor of Amazon for years, and so far "the Federal Circuit has agreed with me every step of the way."

Throughout the hearing, Judge Freeman criticized PersonalWeb's litigation tactics and its purported attempts to dodge judgment and fee payment by filing appeals and replacing counsel repeatedly, as well as filing a receivership action in state court and obtaining an injunction barring the company from having to meet certain deadlines to pay in the patent infringement cases.

Among the attorney fees awarded to Amazon include approximately $1.1 million for 1,931 hours of work in post-judgment enforcement matters in federal court from March 2021 to March 2023.  Judge Freeman awarded another $562,068 for about 776 hours of work in state court proceedings and $209,582 related to PersonalWeb's petition for certiorari with the U.S. Supreme Court following the Federal Circuit's decision in 2020. The high court denied the petition.

Judge Grants $2.7M Fee Award in $1M Class Settlement

April 19, 2023

A recent Law 360 story by Collin Krabbe, “Wis. Judge Awards Attys $2.7M in Fees Over $1M Settlement,” reports that a Wisconsin federal judge has awarded attorneys a dollar figure for fees and costs that is more than double the amount of a $1.05 million settlement negotiated to resolve claims by residents of the town of Superior who had to evacuate their homes following a 2018 explosion at a nearby refinery owned by Husky Energy Inc.

U.S. District Judge William M. Conley said in an opinion that Zimmerman Reed LLP will receive $2.7 million in fees and costs, reducing the fees requested by 25%, in the suit against Husky Oil Operations Ltd. and Superior Refining Company LLC. Still, the judge noted the defendants' perceived aggressive litigation tactics "at virtually every turn in this case."

"Taking into account theJu degree of counsel's success in achieving a class settlement, the time spent on unsuccessful claims and theories, and excessive fees driven by defendants' aggressive tactics, therefore, the court concludes that a reduction of 25% in fees is appropriate," the judge noted.  Zimmerman Reed submitted billing records reflecting 6,251 hours of work with hourly rates ranging from $350 to $845 for attorneys and $200 to $315 for paralegals, for a grand total of $3,151,017 in attorney fees and $359,948 in costs, according to the order.

But the judge reduced the fee amount to $2.3 million, noting that the settlement award was "significantly less" than plaintiffs initially sought.  Less than a third of the potential class ultimately submitted claims, and under the settlement, each class member got around $167.23 — not including "offsets for earlier, voluntary reimbursements by defendants," the order said.  The $1.05 million settlement was given final approval last year in a suit that stems from an explosion at a refinery in Superior on April 26, 2018, which caused a fire that allegedly created a risk of hydrogen fluoride being released and potentially harming residents.

In ruling on fees and costs, Judge Conley took issue with compensation for time spent on unsuccessful claims and legal theories.  "From the court's own review, plaintiffs appear to have billed at least several hundred hours relating to claims and theories that were unsuccessful, particularly in developing its unsuccessful classwide damages theory and in opposing defendants' successful motion for summary judgment," Judge Conley's order said.  "However, it is not possible to determine precisely how many of plaintiffs' 6,251 hours were allocated to successful versus unsuccessful claims," according to Judge Conley.

Finally, the judge said a review of the fees incurred by defendants reflect total fees of about $4 million, which is roughly $1 million more than Zimmerman Reed was asking to be awarded.  The judge added that "this substantially larger fee paid is certainly consistent with this court's perception of the aggressive litigation tactics by defendants at virtually every turn in this case."

The judge also disregarded the defendants' argument that Zimmerman Reed's rates were unreasonable.  Zimmerman Reed Partner Gordon Rudd told Law360 that "this was an extremely hard-fought case.  The litigation involved residents who were forced to evacuate their homes due to a refinery fire and explosion in Superior, Wisconsin.  Both Husky Oil Operations and Superior Refining Company aggressively litigated the case and aggressively challenged the attorneys' fees being requested by the homeowners."

"We are pleased with the result that the homeowners achieved and with the Court's recognition that scorched earth litigation strategies by companies can result in the award of increased fees and costs incurred by plaintiffs in responding to these tactics," Rudd added.  The judge also disregarded the contention that class counsel agreed in contingency fee contracts to accept only 33% of any recovery acquired in litigation, noting that Zimmerman Reed's retainer agreements with individually named plaintiffs had separate fee clauses for "individual and class recovery."

Judge Increases Attorney Fees in New York Rent Contact Dispute

January 7, 2022

A recent Law 360 story by Max Jaeger, “Judge Ups Atty Fees in Wolf Haldenstein Rent Row,” reports that if anything is rising from the ashes of Wolf Haldenstein Adler Freeman & Herz LLP's "scorched earth" rent dispute, it's the firm's award for attorney fees, which a New York state judge more than doubled from $300,000 to $700,000.

The award, some $125,000 shy of what the Manhattan firm sought, was necessary "since the overwhelming majority of the tenant's attorneys' fees were generated in response to discovery demands from the landlord and/or the conduct of the bench trial," Justice Barry Ostrager wrote in an order, explaining that he had erroneously limited the potential award to $300,000 in November.

Wolf Haldenstein sued its longtime Madison Avenue landlord in April, alleging it was owed rent credits and damages because the landlord failed to complete office renovations required under a 2019 lease agreement.  While Justice Ostrager mostly sided with Wolf Haldenstein in November, he chided the parties for turning an "exquisitely simple" case into "scorched earth" litigation through protracted discovery.

"This case should have been resolved early," Wolf Haldenstein counsel Scott Mollen of Herrick Feinstein LLP told Law360 in a statement.  "Clearly Herrick's legal fees were a direct result of the scorched earth tactics of the landlord.  This highly respected plaintiffs class action firm sought to resolve this matter through negotiation or mediation.  However, a settlement requires that each side be reasonable."

Once the court resolved the rent dispute, the battleground shifted to fees.  Justice Ostrager said in November that Wolf Haldenstein could seek $300,000 to pay attorneys at Herrick Feinstein LLP but acknowledged in a Dec. 15 order that Wolf Haldenstein sought more and that he'd relied on incorrect numbers.  On Dec. 14, Wolf Haldenstein told the judge in a letter that the landlords had blown a deadline to oppose the full $827,000 request.  In a response that same day, the landlords claimed they thought the firm was only asking for $300,000.

That led Justice Ostrager to issue the Dec. 15 order clarifying himself the following day.  "Nothing is either simple or non-contentious in this case which could have been consensually resolved last April if reason and common sense had prevailed.  Regrettably, in describing the tenant's claim for attorneys' fees in its [Nov. 22] decision, the court referenced the amount of fees Wolf Haldenstein had paid Herrick Feinstein, rather than the amount of attorneys' fees Wolf Haldenstein had incurred," Justice Ostrager wrote, adding the landlord "knows full well [$300,000] is not the sum plaintiff requested."

In opposition papers filed Dec. 20, the landlord argued Wolf Haldenstein's request was excessive, because Herrick Feinstein LLP allegedly overstaffed hearings, inflated bills for what amounted to public relations work, and engaged in imprecise block-billing practices that should trigger "a substantial reduction" in the award.

Justice Ostrager agreed "that the tenant's fee application is excessive inasmuch as multiple tasks for which attorneys' fees are sought did not require the number of attorneys whose time was submitted to the court for approval," but again pointed out that none of the fees would have been generated had the landlord not dragged out litigation.

Herrick Feinstein charged its standard hourly rates, less a 10% courtesy discount, the justice said in his Dec. 15 order.  While he said it had no bearing on his ruling, the judge called it "telling" that the landlord's attorney fees were some 30% higher than Wolf Haldenstein's, at $1.2 million.