District Judge Sustained $990 Hourly Rates As Reasonable For Some Senior Defense Attorneys With Large U.S. Firms.
On May 23, 2018, U.S. District Judge William Walls (D.N.J.) unsealed a 39-page decision by which he articulated reasons for awarding defendant Zimmer Corp. $13,296,559 (out of a requested $13.5 million) in attorney’s fees and $513,258 (the entire request) in costs as against plaintiff Howmedica Osteonics Corp. in 13-year-old patent infringement litigation over polymers used in medical implants for purposes of extending the implants’ usable life, finding that the litigation was “exceptional” in nature under the patent fee-shifting statute after Zimmer defensed plaintiff’s claims. However, he did reject Zimmer’s requests for $1.01 million in expert fees and $5.8 million in prejudgment interest. Among other things, the case was deemed “exceptional” because (1) an individual testifying before a patent examiner for plaintiff failed to disclose at trial that he was an employee of plaintiff; (2) plaintiff failed to withdraw its infringement claims once it knew they were baseless; and (3) selective disclosure of data and evasive responses to a patent examiner.
With respect to reasonableness of hourly fees, Zimmer was represented by high-power firms Kirkland & Ellis, Lathan & Watkins, and the local firm of Thompkins, McGuire, Wachenfeld & Barry (the latter a Roseland, N.J. firm). District Judge Walls agreed that the AmLaw 500 average was an appropriate basis for evaluating the hourly rates claimed by Kirkland and Latham attorneys, focusing on the specialized nature of patent law, the expertise required, and the need to combat plaintiff’s exorbitant $2 billion in claimed damages. Although some Kirkland attorneys charged as much as $1,295 an hour, the district judge found rates over $900 to be unreasonable, reducing the time charged by three lawyers.
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