Block Billing, Failure to Describe Tasks, and Insufficient Hourly Rate Proof Were the Main Infirmities.
Above: Ancient Greek iron sickle. Author: Giovanni Dall’Orto. Wikimedia Commons.
U.S. Magistrate Judge Paul S. Grewal of the Northern District of California, in Apple, Inc v. Samsung Electronics Co., Ltd., et al., Case No. C 11-1846 LHK (PSG) (N.D.Cal. Doc. No. 2123, filed Nov. 7, 2012), ruled on Samsung’s and Apple’s requests for awards of attorney’s fees as sanctions for discovery violations by both sides under F.R.Civ.P. 37. In doing so, he provided a nifty roadmap and tips for successfully garnering fees in these type of controversies (equally applicable to fee petition contests).
In discussing the legal standards applicable to fee requests, Magistrate Judge Grewal observed that although the court normally should grant an award in full if the opponent cannot come up with specific reasons for reducing the fee request, “[a]t the same time, nothing in this standard compels a court to overlook ambiguities in a requesting party’s supporting materials that it was in a position to argue”--a burden of proof point which is an excellent one.
Samsung requested $258,200.50 for fees associated with three discovery motions, but was only recovered $160,069.41 from Apple under the court’s award. The reasons for the reductions: lack of detailed records from Samsung showing the tasks performed; vague time descriptions which led to inferences that the case was overstaffed; rampant block-billing, which resulted in a 20% reduction in those entries (with the court citing a Califonia State Bar study indicating that block-billing inflates hours by 10-30%); and a vague reference to the 2011 National Law Journal billing survey on hourly rates, but not narrowing the inquiry to the San Francisco market such that the court adopted the American Intellectual Property Law Association’s annual survey of hourly rates using the AIPLA’s 75% Quartile rates. However, Magistrate Judge Grewal did believe time spent on meet-and-confer conferences was fairly included in Samsung’s fee request.
In contrast, Apple requested fees of $29,167 (which it derived by dividing $116,669 in fees for pertinent discovery motions by four so as to compensate for the one germane motion at issue), but was awarded instead $21,554.14 by the magistrate judge. The major reductions were for block billing (20% haircut for these entries also); failure to segregate tasks so that compensable activities could be determined; including fees for excludable activities (administrative relief and motions to seal); and unsubstantiated hours.
This order does show what fee petitions need to contain in order to pass muster: (1) a description of the activities for which fees are sought, substantiated with detailed billings (with no block billed or vague generic entries) and a summary of total time spent on important tasks per attorney; (2) attorney qualifications and proof (survey and likely expert) about the reasonable hourly rates for comparable attorneys in the litigation venue; (3) an explanation why the case was staffed as it was given the type of litigation involved and response by the opponent; (4) segregation of fee requests only to pertinent activities to which fee entitlement relates; and (5) support for a mutlipler if fee enhancement is being sought.