A recent Law 360 story by Emily Johnson, “Ford Asks Judge to Punt $550M Fee Bid in $1.7B Crash Case” reports that, as the company challenges a record-shattering $1.7 billion punitive damage verdict in a lawsuit over a fatal truck crash, Ford Motor Co. has urged a Georgia state judge to deny as premature a request for at least $549 million in attorney fees being sought in the case.  Ford asked a Gwinnett County State Court judge to delay weighing the request for attorney fees until its post-trial motions in the case are considered.

Ford has requested a new trial on both liability and damages after a Georgia jury awarded $24 million in compensatory damages and $1.7 billion in punitive damages in August to the children of Voncile and Melvin Hill, who were crushed by the roof of their 2002 Ford Super Duty F-250 when it rolled over in a 2014 accident on a rural Georgia road.

The jury in the design defect case found Ford 70% to blame for the deaths, and assigned 30% of the blame to Pep Boys Manny Moe & Jack Inc. and three employees, who settled with the Hills' children in 2018. Kim and Adam Hill claimed the Pep Boys defendants placed the wrong tire on their parents' truck, causing it to lose control.

Following the verdict, the Hills' children went on to file a motion last month seeking anywhere from $549 million to $686 million in attorney fees, offering the court three options for calculating the amount, plus more than $500,000 in litigation costs.  But Ford argued that the possibility of the verdict being either reduced or overturned meant it was too soon to decide how much it should pay in fees.

"These motions could moot or materially impact resolution of the fee motion, and Ford will appeal the verdicts if its motions are denied," Ford said in its response to the fee motion.  "The court should therefore refrain from ruling on the fee motion until, at a minimum, it has resolved Ford's post-trial motions."

Whether or not the court opts to wait to consider the fee request, Ford said the Hills' attorneys weren't eligible for an award under Georgia law.  Ford argued that the Hills didn't recover a final judgment that was more than 125% of the $50 million settlement offer that Ford rejected to resolve the siblings' wrongful death claims prior to trial.  Ford said that the compensatory damage verdict on the pair's wrongful death claims, which included a $6 million award for Melvin Hill and $10 million for Voncile Hill, did not meet the threshold.

"Plaintiffs had to recover more than $62.5 million on their wrongful death claims (or $31.25 million for each decedent) to satisfy the statutory requirements," Ford said. "They did not."  Ford also said that the Hills' attorneys don't qualify for attorney fees because they have not given specifics on hours spent working on the case from the time Ford rejected the Hills' settlement offer to the time of final judgment.  "Plaintiffs improperly have relied solely on the contingency fee agreement rather than providing evidence of hours, rates or other objective indications of value," Ford said.

A recent Law 360 story by Rosie Manins, “$40M Excessive Force Judgment Winner Wants Extra $3.4M” reports that the winner of a $100 million excessive force verdict has asked a Georgia federal court to add $3.4 million in attorney fees, litigation costs and interest to the final $40 million judgment against an Atlanta police officer.  Keith Edwards, as the guardian and conservator for Jerry Blasingame, said in a motion that post-judgment interest on the court's final judgment against officer Jon Grubbs is accumulating at a rate of almost $19,000 a day.

A jury awarded Edwards $100 million in late August at the end of an eight-day trial, apportioning $60 million in damages against the city of Atlanta and $40 million against Grubbs.  U.S. District Judge Steve C. Jones then scrapped the award against the city, granting its motion for a judgment as a matter of law that Grubbs' tasing of Blasingame — which rendered the 69-year-old a quadriplegic — was not the result of a city policy, custom or practice.

Edwards said the $60 million reduction in damages should not affect his bid for reasonable attorney fees, litigation costs, and pre-and-post-judgment interest.  "Plaintiff is still entitled to fees and costs on all the work completed," Edwards said.  "The fees and costs should not be reduced because the court set aside part of the jury's verdict award."

The team of plaintiff attorneys spent about 455 hours on the case, in addition to the extensive work of three paralegals, per the motion. Based on hourly rates between $350 and $1,000, the attorneys sought just over $300,000 in fees.  They also asked to be reimbursed nearly $60,000 for the paralegals' work, based on an hourly rate of $125, and for just over $50,000 in litigation expenses.  Edwards said he is additionally entitled to $2.7 million in prejudgment interest, as well as almost $300,000 in post-judgment interest as of Oct. 6.

The jury found that Grubbs used excessive or unreasonable force, and that Blasingame's injuries were a reasonably foreseeable consequence of the officer's conduct and would not have happened otherwise. The jurors also found that Grubbs' actions in attempting to arrest Blasingame were "under color" of law and that an official policy or custom of the city of Atlanta was the "moving force" behind Blasingame's injuries.  Grubbs is appealing the judgment against him to the Eleventh Circuit.

Edwards' lead counsel, Vernon "Ven" R. Johnson of Johnson Law PLC, is a litigator with 38 years of experience who in the last 12 years has racked up more than $650 million in verdicts and settlements, per the motion.  He charged $1,000 per hour for the 160 hours he spent on the case, the motion notes.  Ayanna D. Hatchett of Johnson's law firm assisted on the case and also spent about 160 hours, at an hourly rate of $500.  Darren M. Tobin of Tobin Injury Law also worked on the case for about 77 hours, at an hourly rate of $510.

Edwards' former counsel, Solomon M. Radner of Radner Law Group PLLC and Madeline Sinkovich of Mike Morse Law Firm spent about 58 hours on the case and both worked at Johnson's firm as well as Excolo Law during the relevant time frame, the motion notes.  The plaintiff's team, including paralegals, spent more than 830 hours on the case in total, per the motion.

A recent Law 360 story by Katryna Perera, “Firm Says DOL Must Pay Atty Fees After Losing ERISA Suit” reports that an architecture firm urged the Ninth Circuit to force the U.S. Department of Labor to pay its attorney fees and costs after the agency lost its suit claiming the firm broke federal benefits law, saying the case should not have been filed to begin with since it was not based in fact or law.  Attorneys for Bowers + Kubota Consulting Inc. and its former owners filed a brief saying the DOL's suit, which claimed the firm overcharged for its employee stock ownership plan in violation of the Employee Retirement Income Security Act, was meritless and that the district court abused its discretion in finding the DOL secretary had not acted in bad faith.

"The absence of any credible evidence of the alleged ERISA violations at trial merits the conclusion that there was no substantial justification for the [DOL] Secretary's complaint and litigating this case in the first instance," the brief said.  According to B+K, the DOL secretary has the power to build an entire case and obtain expert advice and opinions before filing a complaint to ensure that the claims "meet the hurdle of substantial justification."  Therefore, the DOL acted in bad faith by filing the complaint and for "knowingly or recklessly" raising "frivolous arguments," the firm said.

The brief also stated that while the DOL's investigation into the firm may have been warranted, that does not justify the initiation of the suit.  "The fact that the Secretary's investigation was justified has no bearing under the law on the lack of substantial justification and bad faith of the secretary filing a complaint after the investigation concluded and prosecuting that complaint for more than three additional years," the brief stated.

The firm further argued that it is entitled to attorney fees and costs under the Equal Access to Justice Act and that the district court erred by not awarding approximately $28,000 to B+K to cover nine depositions of Labor Department officials.  "The district court's ruling in that regard was clearly based upon the mistaken and clearly erroneous belief that those deposition costs were incurred after the district court's March 12, 2021, order denying appellants' motion for summary judgment on limitations grounds," the brief stated.  "At the time each deposition was taken … appellants reasonably expected that each deposition would be used for purposes of trial and were used as evidence in the summary judgment motions."

B+K had asked a Hawaii trial court for more than $78,300 in taxable costs in addition to attorney fees and non-taxable costs.  Under the EAJA, courts can award fees to parties that win lawsuits against the government — unless the court decides the government's position "was substantially justified."  Because the trial court decided the Labor Department had legitimate reasons to be suspicious of the B+K transaction, the court awarded the defendants a reduced taxable costs award — but no attorney fees or non-taxable costs — after a five-day bench trial.

B+K's brief is in response to a brief the DOL filed in September, claiming it should not have to cover the firm's attorney fees.  The DOL pushed back against B+K's argument that the trial court should have awarded it fees because the found "absolutely no proof of wrongdoing" on B+K's part.  This is not true, the Labor Department said, arguing that the trial court decided the department brought its lawsuit in good faith based on evidence provided during the trial.  The trial court also denied B+K's motion for summary judgment on the merits, the department added.

A recent Law 360 story by Lynn LaRowe, “5th Circ. Takes Up Atty Fees in Wrestler’s Failed IP Suit” reports that Activision Blizzard Inc. should be awarded attorney fees after a Texas jury found the company's Call of Duty character David "Prophet" Wilkes did not infringe pro wrestler Booker T's "G.I. Bro" copyright, the video game company told the Fifth Circuit during oral arguments.

After the issue of whether the Prophet character infringed Booker T's persona was decided in Activision's favor by a jury at the end of a four-day trial in June 2021,  Activision appealed U.S. District Judge Robert Schroeder III's decision to let both sides bear their own costs, arguing the judge abused his discretion by failing to properly analyze the merits of Booker T's lawsuit.

Activision attorney Jessica Lanier of Durie Tangri LLP argued Judge Schroeder was out of bounds when he ruled that it was reasonable for Booker T to have brought the suit, which led the panel to point out the case had survived numerous pretrial motions, including a motion to dismiss Judge Schroeder denied in February 2020.

Lanier also argued Judge Schroeder should have based his decision regarding fees on more than just the objective reasonableness of the factual and legal elements of the case, as established by the U.S. Supreme Court in Fogerty v. Fantasy Inc.  Fogerty provides a test for determining whether to award fees, which also provides for analyses based on frivolousness, motivation, and the needs for compensation and deterrence of bad faith litigation.

Patrick Zummo, an attorney representing Booker T, whose full name is Robert Booker Tio Huffman, argued the trial court had considered all of the Fogerty factors, but determined that the objective reasonableness component, which the trial court found weighed against awarding fees to Activision, was the most important in deciding the issue.  "First, we had a hearing," Zummo said, noting that hearings regarding attorneys fees in copyright cases are not routine.

A recent Law 360 story by Hayley Fowler, “Perkins Coie $2.35M Fee Bid Deemed Too Steep in NC Biz Spat” reports that a North Carolina state court judge has scrapped a request for more than $2.3 million in attorney fees by Perkins Coie LLP following a trial win, saying the requested rates are a far cry from what's typically charged in the state.  Superior Court Judge Adam Conrad said that the rates proffered by Perkins Coie — which exceeded $700 per hour — "dwarf(ed)" that of their local counsel at Womble Bond Dickinson LLP for their representation of a North Carolina-based knitting machine maker in a lawsuit accusing its CEO of self-dealing.

"These rates may be typical of firms and attorneys based in California and Texas but are significantly higher than rates customarily charged in North Carolina for cases of this type," he wrote.  The judge consequently denied the attorneys' request but said they can renew it once post-judgment motions and appeals are completed.

Perkins Coie's fee bid follows a multimillion-dollar jury verdict in March on behalf of high-speed knitting machine manufacturer Vanguard Pai Lung LLC and majority owner Pai Lung Machinery Mill Co. Ltd.  The case centered on claims that Vanguard's former CEO and president William Moody had "orchestrated a long-running scheme of self-dealing and other misconduct designed to benefit himself, his family, and his friends," Judge Conrad wrote.

Moody had also filed counterclaims accusing Pai Lung of forcing him out of the business and seeking to have the company dissolved, the judge said, most of which were resolved before the case went to trial.  The jury ultimately issued a verdict for Vanguard and Pai Lung on their claims for fraud, conversion, embezzlement, unfair and deceptive trade practices and unjust enrichment. Court documents show the resulting damages totaled more than $3.4 million.

Shortly thereafter, attorneys with Perkins Coie and Womble Bond submitted their request for fees, saying state law in North Carolina allows parties to collect reasonable attorney's fees in a civil action for embezzlement.  The request outlined $2.35 million for Perkins Coie and $240,499 for Womble Bond.

Judge Conrad said the motion was plagued by "several deficiencies," starting with the fact that state law only permits attorney's fees for the owner of property that was embezzled.  "Here, Vanguard is the owner of the property that Moody embezzled," he wrote. "Pai Lung is not the owner and had no claim for embezzlement.  Plaintiffs have offered no reason why Pai Lung should recover attorneys' fees based on a claim it did not assert and property it did not own."

The law also does not allow parties to collect fees for claims unrelated to embezzlement unless they are "inextricably interwoven," the judge said, which he determined was not the case here.  He also said the requested dollar amount was unreasonable, pointing in particular to two of the highest billing rates from counsel with Perkins Coie that exceeded $1,000 an hour.

Though Judge Conrad ruled the attorneys could collect fees on behalf of Vanguard for the embezzlement claim, he said they didn't submit any billing records to justify the amount requested.  "It is therefore impossible to determine whether Vanguard's attorneys spent a reasonable or unreasonable amount of time drafting or responding to motions, preparing for and conducting depositions, and handling other discovery matters," the judge wrote.

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