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Cases: Special Fee Shifting Statutes

Block Billing, Special Fee Shifting Statute: Nike Is Awarded About $260,000 In Attorney’s Fees Against Michael Avenatti Under The Mandatory Victims Restitution Act

Block Billing Hampered Apportionment Of Fees, With District Judge Only Awarding About A Third Of The Ask.

            It is not often that we post on a criminal case, but the publicity generated and interesting fee-shifting statute involved in USA v. Avenatti, Case No. (SI) 19 Cr. 373 (PGG) (S.D.N.Y. Doc. 34, Mem. and Order Feb. 14, 2022) invited a post on this decision.

            Under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A(b)(4), attorney’s fees can be paid to a criminal victim where that victim’s attorneys render assistance at the request or inducement of a governmental criminal case.  However, only governmentally-related work can be awarded, with the need to apportion out private investigation by the victim such as analyzing court pleadings or attending motion hearings.  (Lagos v. U.S., 132 S.Ct. 1684, 1690 (2018).) 

            Nike was found to be a victim in the criminal extortion case brought by the U.S. against attorney Michael Avenatti.  Nike’s attorneys Boies Schiller sought $856,162 in attorney’s fees for helping federal prosecutors bring charges against Mr. Avenatti.

            U.S. District Judge Paul G. Gardephe agreed Nike was entitled to fees under MVRA, but he found the need to segregate out compensable and noncompensable work efforts.  The problem which handicapped apportionment was block billing by Boies Schiller.  So, District Judge Gardephe disregarded entirely all block billed entries which contained one or more noncompensable entries.  When that was done, $259,800.50 was the fee award, around a third of the request.


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