389 F.Supp.2d 443 (2005) | Cited 7 times | D. Connecticut | September 28, 2005

Ruling Awarding Sharp Electronics Corporation Attorneys Fees

On July 12, 2005, this Court granted in part the Non-SoundviewParties'1 Motion for Attorneys Fees [Doc. #473], awardingattorneys fees pursuant to 28 U.S.C. § 1927. See Ruling onMotion for Attorneys Fees [Doc. # 506], at 23. The Court directedthe non-Soundview parties to submit their claim for reasonablefees and costs and supporting documentation within 30 days, withSoundview's response due 21 days thereafter. See id.Subsequent to the Court's ruling, Mitsubishi Digital ElectronicsAmerica ("Mitsubishi") withdrew its motion for attorneys fees andMitsubishi and Soundview stipulated to the dismissal of allclaims by and against Mitsubishi and Soundview [Doc. # 522].Additionally, the Consumer Electronics Association ("CEA") and the Electronic Industries Alliance ("EIA") notified the Courtthat they had reached an agreement with Soundview to dispose ofthe attorneys fees issue. This ruling will therefore determinethe only remaining claim for an award of attorneys fees and costsof Sharp Electronics Corporation ("Sharp").

I. Discussion

The Court's ruling on attorneys fees provided that reasonablefees and costs would be awarded for defending against Soundview'santitrust counterclaim after the ruling of non-infringementissued September 25, 2002, see Sony Elecs. Inc. v. SoundviewTechs., Inc., 225 F. Supp. 2d 164 (D. Conn. 2002).2 Inthe October 16, 2002 conference with the parties, the Courtdirected the parties to brief the Non-Soundview Parties' motionseeking summary judgment on Soundview's antitrust counterclaim onthe representation that the issue was "a simple one" that "thereis no antitrust liability without infringement." SeeSoundview's Response to Sharp's Fee Calculation [Doc. # 523], Ex.D at 24. The Court subsequently granted the Non-SoundviewParties' motion for summary judgment on Soundview's antitrustcounterclaims on August 28, 2003. See Sony Elecs. Inc. v.Soundview Techs., Inc., 281 F. Supp. 2d 399 (D. Conn. 2003).

As a threshold matter, the Court notes that much of Soundview'sbriefing in response to Sharp's attorneys fees claim amounts toan invitation to this Court to reconsider its previous rulingawarding attorneys fees and costs pursuant to 28 U.S.C. § 1927.Indeed, Soundview begins its response by previewing itsanticipated appellate arguments. See Soundview's Response toSharp's Fee Calculation [Doc. #523], at 2-3. Similarly, Soundviewalso asserts that Sharp has not demonstrated that the fees itclaims constitute "excess fees caused by Soundview" becauseSoundview had urged staying briefing on the antitrust claimswhile the Non-Soundview parties urged proceeding beforecompletion of the appeal of the Court's summary judgment rulingon non-infringement. Id. at 5-6. These arguments miss the markbecause, as detailed in the Court's earlier ruling on attorneysfees, Soundview persisted in its claim of a viable antitrusttheory even after the Court granted summary judgment to thenon-Soundview parties on non-infringement, at which point itshould have been obvious that its antitrust claim was frivolous.Given this persistence, the fees and costs borne by Sharp in itsdefense against Soundview's antitrust claim subsequent to thenon-infringement decision constitute "excess costs, expenses andattorneys fees" under 28 U.S.C. § 1927. These fees would havebeen incurred at some point (whether pre- or post-appeal of the non-infringement decision),3 absent any change inSoundview's position, therefore the timing of when Sharp's feeswere incurred does not alter the Court's ruling.

Soundview's argument that the hours billed and fees claimed bySharp's counsel are excessive for the work performed, see id. at3-5, 7, is addressed below.

A. Reasonable Billing Rate

The traditional lodestar method for determining reasonableattorneys fees calculates a figure "based upon the number ofhours reasonably expended by counsel on the litigation multipliedby a reasonable hourly rate." Luciano v. Olsten Corp.,109 F.3d 111, 115 (2d Cir. 1997) (citing Blanchard v. Bergeron,489 U.S. 87, 94 (1989)).4 "The `lodestar' figure should be in linewith those [rates] prevailing in the community for similarservices by lawyers of reasonably comparable skill, experience,and reputation." Id. (citation and internal quotation marksomitted). The "prevailing community" used to determine thelodestar figure is typically, with few exceptions, "the district in which the court sits," in this case, the District ofConnecticut. See id. (citation and internal quotation marksomitted). "[T]here is . . . a strong presumption that thelodestar figure represents a reasonable fee." A.R. ex rel. R.V.v. N.Y. City Dep't of Educ., 407 F.3d 65, 79 (2d Cir. 2005)(citations and internal quotation marks omitted).

Sharp submitted the declaration of Robert W. Adams, Esq. insupport of its motion for reasonable attorneys fees and costs.See Sharp Electronics Corp.'s Declaration in Support of Motionfor Attorneys Fees [Doc. # 515] ("Adams Decl."). The declarationseeks a total of $57,931.23 in fees and costs, see id. at ¶10, and provides copies of the monthly invoices for all fees andcosts generated, billed, and paid in defending against theantitrust claim after the Court's summary judgment decision onnon-infringement.5 See id. at ¶ 3, Exh. A. Thedeclaration states that Sharp's law firm — Nixon & Vanderhye,P.C. — created separate billing matters for the patent matter andthe antitrust matter and that therefore the fees and costsincurred for each were easily separated. See id. at ¶ 4. Themonthly invoices establish that Robert W. Adams's hourly ratecharged ranged from $440 to $490 between 2002 and 2004 (the years in which time wasbilled for which attorneys fees are sought). The hourly rates ofMr. Adams's colleagues, Mickey Gill and Sheryl L. Scharmach, were$375 and $250, respectively. In his declaration, Mr. Adamssubmits no declarations from other attorneys, fee surveys, orother information to support Sharp's conclusion that these hourlyrates constitute reasonable rates "prevailing in the communityfor similar services by lawyers of reasonably comparable skill,experience, and reputation." See Luciano, 109 F.3d at 115.His declaration merely catalogs his own litigation experience andthat of his colleagues. See Adams. Decl. at ¶¶ 6-8.

While Soundview does not specifically dispute thereasonableness of the hourly rates claimed, the hourly ratesbilled by Nixon & Vanderhye, P.C. for the work of AttorneysAdams, Gill, and Scharmach exceed the highest prevailing hourlyrates awarded to date in Connecticut.

At the time the work was performed, Mr. Adams was a litigationpartner with substantial experience in the litigation of patentand antitrust issues. See Adams. Decl. ¶ 6.

The hourly rate billed for the work he performed ranged from$440 to $490, whereas the relevant prevailing rate awarded todate in Connecticut is $375 per hour for counsel with Mr. Adam'sexperience in cases with the sophisticated subject matter in thiscase. See Bristol Tech., Inc. v. Microsoft Corp., 127 F.Supp. 2d 64, 76 & n. 15 (D. Conn. 2000) (finding that $375 per hour was"an appropriate rate for a trial lawyer with almost 30 yearsexperience in complex civil litigation").6 See alsoConn. State Dep't of Social Servs. v. Thompson,289 F. Supp. 2d 198, 203-207 (D. Conn. 2003) (determining that an hourly rate of$375 per hour for a partner in private practice, in a complexcase requiring attorneys with expertise in Medicare law, was"fully consistent with hourly rates charged by comparableattorneys practicing in this District"); Stuart v. Stuart, No.X08 CV 020193031, 2005 WL 590433, at *5 (Conn. Super. Feb. 10,2005) (determining that $350 per hour for an experienced triallawyer was "reasonable and in line with prevailing market ratesin this area"). Reflecting some passage of time since theseprevailing rate rulings, but without evidence of actual rateescalation in the interim, the Court concludes on this recordthat the reasonable hourly rate for Attorney Adams is $400.

Similarly, the rates for Mr. Adams's colleagues Mr. Gill andMs. Scharmach have not been shown to be the prevailing rates inConnecticut. At the time of the litigation, Mr. Gill was apartner at Nixon & Vanderhye, P.C., had "been involved in several cases involving patent and antitrust issues," see Adams ¶ 7, and from a review of the firm's website was a lawyer ofat least 9 years' experience. See Nixon & Vanderhye P.C.Attorney Directory, (lastvisited September 16, 2005). The Court finds that the reasonablehourly rate for Mr. Gill's time is $325. See Bristol Tech.,127 F. Supp. 2d at 76 (finding that experienced trial partnersmay bill as high as $350-$375 per hour and a first-year partnermay bill in the $200-$250 per hour range). At the time of thiscase, Ms. Scharmach was an associate at Nixon & Vanderhye P.C.(she is now a partner), see Adams Decl. at ¶ 8, and appearsfrom the firm's website to have been in practice for at leastfour years. See Nixon & Vanderhye P.C. Attorney Directory, (lastvisited September 16, 2005). The Court concludes that areasonable hourly rate in Connecticut for a fourth year associateattorney such as Ms. Scharmach, taking into account thecomplexity of the issues in this case, is $175. See Fabri v.United Techs. Int'l, Inc., 387 F.3d 109, 128-29 (2d Cir. 2004)(affirming reduction of hourly rate for associate attorneys to amaximum of $150 for a case litigated in Connecticut);Tsombanidis v. City of West Haven, 208 F. Supp. 2d 263, 277 (D.Conn. 2002) (concluding that an hourly rate of $150 wasreasonable for an attorney with five years of experience inpractice). Having determined the applicable hourly rates for Sharp's threeattorneys, the Court next addresses Soundview's contention thatthe hours billed by Attorney Adams were "excessive" and"unreasonable." See Soundview's Response to Sharp's FeeCalculation [Doc. # 523], at 3-4. Soundview argues that theremust be a reduction of Sharp's claim of "$58,000 in fees forreviewing and commenting on 30 pages of text written by others,and for writing 4 pages of its own." See id. at 3.Specifically, Soundview characterizes the hours billed byAttorney Adams as "facially unreasonable," pointing to, interalia, billings of 51 hours "to read and comment on someoneelse's ten page brief" and 43.25 hours "in commenting on a replybrief and writing a 4-page supplement." See id. at 4.

It is well established that if claimed hours "appear`excessive, redundant, or otherwise unnecessary,' the courtshould reduce the award accordingly." Webb v. Bd. of Educ. ofDyer County, 471 U.S. 234, 254 & n. 16 (U.S. 1985) (citingHensley v. Eckerhart, 461 U.S. 424, 433-34 (1983)). After areview of the invoices submitted by Sharp, and in light of therepresentations made by counsel for the Non-Soundview Partiesconcerning the simplicity of the antitrust issues, the Courtconcludes that the hours billed by Sharp's counsel are excessive,and thus unreasonable, particularly in light of his expertise andexperience, and must be reduced. First, it is apparent from a review of the invoices that manyof the hours billed by Attorney Adams are for reviewing briefsdrafted by counsel for Sony and consulting with counsel for theother Non-Soundview parties regarding the drafts. See AdamsDecl., Ex. A. While some review, comment, and teleconferencing isto be expected where several parties are involved with some"divergence in interests" (see Sharp's Reply to Soundview'sResponse to Sharp's Fee Calculation [Doc. #524], at 2-3), morethan fifty hours to review, research, comment and conferenceregarding another attorney's work product is clearly excessive,particularly when assisted by Attorney Gill. See Adams Decl.,Ex. A (documenting 51 hours billed for "review," "comment,""research," and "telecons" on Sony's summary judgmentbrief).7 Similarly, more than forty hours spentcommenting and conferencing regarding Sony's reply brief anddrafting a four-page supplemental brief is also excessive. SeeAdams Decl., Ex. A (42 hours billed to "[c]onsideration andreview," "preparation of comments," and "discussion . . . with[co-counsel]" regarding the summary judgment reply brief and"preparation of [Sharp's] supplemental brief").

Second, in addition to being excessive on their face, Attorney Adams's time entries are particularly unreasonable inlight of the representations made to the Court regarding thesimplicity of the antitrust issues. At the October 16, 2002conference, the Non-Soundview Parties — including counsel forSharp — urged the Court to proceed with briefing on the antitrustissues, rather than stay adjudication pending appeal of thenon-infringement decision. While Sharp's counsel now contendsthat "the billing records of Sharp . . . indicate the complicatednature of this antitrust briefing process" (Sharp's Reply toSoundview's Response to Sharp's Fee Calculation [Doc. # 524], at2), this was not the contention of the Non-Soundview parties atthe October 2002 conference: MR. ADAMS [Counsel for Sharp]: This motion, Sony motion, as narrowed by the Court's suggestion in its order, is a motion that's going to need to be filed no matter what happens and it's better to do it now, is why Sharp recommends that approach, it's better to do it now than put it off until later, and that's why we believe that would be the most cost effective procedure. THE COURT: And that's because your theory is a simple one of there is no antitrust liability without infringement. MR. GRESALFI [Counsel for Sony]: Yes, your Honor.See Soundview's Response to Sharp's Fee Calculation [Doc. #523], Ex. D at 24 (emphasis added).

Accordingly, the Court concludes that it is appropriate toreduce the hours billed by Attorney Adams by 50%, except for the 14 hours billed exclusively for the researching and drafting ofSharp's 4-page supplemental reply brief. See Adams Decl. Ex. A(Dec. 6, 2002 and Dec. 10, 2002 time entries). This reductionwill bring Sharp's total award in line with the fees incurred byone of the other Non-Soundview Parties.8

Thus, applying the hourly rates determined above for the hoursbilled for each of the three attorneys, the final lodestar figureis $32,132.50.9

B. Costs

In further support of its application, Sharp has submittedinvoices for costs incurred in connection with defending againstSoundview's antitrust claim after the non-infringement decision.Sharp submits invoices documenting costs in the amount of $36.17for document reproduction, research, and long distance telephonecharges. Soundview does not dispute the reasonableness of thesecosts and they are awarded to Sharp.

II. Conclusion

For the foregoing reasons, Sharp is awarded $32,168.67 as reasonable attorneys fees and costs. The Clerk is directed toclose this case.


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