A recent AM Law Litigation Daily story, “Cooley Wins Attorney Fees After NexTag Patent Trial Win,” reports that Cooley has won an award of attorney fees for client NexTag Inc. in a patent case brought by Lending Tree LLC.  In an Oct. 9 ruling, U.S. District Judge Frank Whitney in Charlotte held that Lending Tree and its lawyers at Sheppard Mullin engaged in unreasonable tactics.  The amount of the fee award, which will include work done by Cooley since Jan. 10 of this year, will be determined later.

Lending Tree, which runs an online service that matches borrowers and lenders, had sued NexTag for patent infringement in 2010.  During a trial, which Lending Tree lost, evidence emerged that Lending Tree knew of NexTag’s allegedly infringing activity more than six years before suing. 

Cooley had argued Lending Tree’s claims were barred by the equitable doctrine of laches, which prevents litigants from waiting too long to sue.  The judge noted that some of this evidence came from data backup tapes that Lending Tree had initially refused to produce, even after a court order.

The judge cited other tactics by Lending Tree, including a failure to do a meaningful investigation before suing and a failure to review the company’s communications concerning NexTag.  “This case is exceptional under a totality of the circumstances,” Whitney wrote.

NexTag didn’t get the full fee award it sought.  The judge rejected it request for fees from the start of the case.  Instead, he awarded fees as of Jan. 10, the date that he rejected Lending Tree’s motion for summary judgment.  The judge declined to hold Sheppard Mullin jointly liable for fees as Cooley had asked, finding that the firm didn’t act in bad faith or intentionally abused the judicial process.  Whitney did, however, previously order Sheppard Mullin to pay sanctions during discovery.

The judge ordered NexTag to submit an accounting of its attorney fees.