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Citing Billing Practices, Judge Slashes Attorney Fees

April 20, 2020 | Posted in : Billing Practices, Billing Record / Entries, Ethics & Professional Responsibility, Expenses / Costs, Fee Award, Fee Request, Hourly Rates, Lawyering, Litigation Management

A recent Law 360 story by Brian Dowling, “ ‘Excessive’ Robins Kaplan Fee Bid Slashed in Covidien Case,” reports that citing "pervasive shortcomings" in the firm's billing practices, a Massachusetts federal judge has slashed Robins Kaplan LLP's $2.7 million fee request for its work representing Covidien in an employment contract fight, calling out attorneys for lumping together work through "block billing" and counting hours from other litigation.   After U.S. District Judge Nathaniel M. Gorton finished picking through the firm's "excessive" request, he left just $798,500 for the six attorneys and four paralegals, who together had filed 6,609 hours during the three-year case, according to the order.

The order glossed over the background of the "protracted and unduly contentious litigation" stemming from a decision by former high-level Covidien employee Brady Esch to leave the medical device company and start a competing business, Venclose Inc., allegedly based on Covidien's confidential information.  A jury in 2019 sided with Covidien on its breach of confidentiality claims but didn't find that Esch broke obligations regarding fair dealing or requirements to disclose inventions to his former employer.

Judge Gorton hammered Robins Kaplan's "pervasive pattern" of block billing, or lumping together total time working on a case rather than for specific tasks.  More than half of the firm's entries were block billed with increments of one hour or more, the court said.  "Such a pervasive shortcoming warrants a 25% reduction of all fees that were block-billed in increments of one-hour or more," Judge Gorton said, lopping off $380,000 from the request and taking a deeper cut than the cases he cited that settled on 15% and 20% reductions.

Robins Kaplan also filed for "unwarranted" or "duplicative fees," the court said. It noted overstaffing of local and out-of-town attorneys, as well as "duplicative entries, inefficient use of junior attorneys, vague work descriptions and unreasonable hourly rates of support staff."

For that, the court took another $300,000 from the fee award.  Judge Gorton also stripped out $50,000 for work the firm did for Covidien on related litigation in Delaware and California.  Noting that Covidien won on only a portion of its allegations in the Massachusetts action and saying the requested attorney fees pale in comparison to the damages awarded by the jury, the judge settled on a clean 70% cut from what Robins Kaplan had requested.

The medical device company had argued the $2.7 million request was "reasonable and conservative," given it has spent $4.8 million litigating the dispute in other jurisdictions.  The court also trimmed back Covidien's request for $531,008 in costs for the case, scolding the company for $18,346 in "unreasonably and unnecessarily expended costs" on out-of-state attorneys and $2,531 in unrecoverable expenses like printing its own deposition transcripts.

Judge Gorton slashed the remaining cost request in half based on Covidien's partial trial success, leaving $255,065 in costs.  Covidien did come out with a win in the order. Judge Gorton called on Esch to pay prejudgment interest of 12% on the $794,892 in damages, calculated from Nov. 28, 2016, the date that the lawsuit was filed.