Tyco Healthcare Group LP et al v. Ethicon Endo-Surgery Inc
ORDER: Plaintiffs' Motion 157 for Cost and Fees is GRANTED in part. Signed by Judge Janet Bond Arterton on 09/17/2012. (Flagg, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TYCO HEALTHCARE GROUP LP and UNITED
STATES SURGICAL CORP.,
Civil No. 3:10CV60 (JBA)
September 17, 2012
ETHICON ENDO–SURGERY, INC.,
RULING ON PLAINTIFFS’ MOTION FOR FEES
Plaintiffs Tyco Healthcare Group LP and United States Surgical Corporation
(collectively, “Tyco”) move [Doc. # 157] for an award of attorneys’ fees and costs, pursuant
to the Court’s December 30, 2011 Ruling [Doc. # 155] and Order granting in part Plaintiffs’
motion to disqualify Defendant’s attorneys. For the reasons that follow, Plaintiffs’ motion
is granted in part.
On the eve of trial in this complex, strenuously–litigated patent case, Ethicon’s
counsel from Akin Gump informed Tyco’s counsel that Akin Gump had hired and intended
to use for trial the trial graphics expert who had served as Tyco’s own trial graphics
consultant for the first phase of the trial related to these patents. Needless to say, Tyco’s
counsel, knowing the exposure to their trial and witness strategy, and attorney work product
that this man had had in their war room and throughout the trial of the first phase, were
understandably alarmed and after brief Court–ordered discovery moved to disqualify
defendant's attorneys, who had also been trial counsel in the first phase. What followed
Ethicon’s disclosure was a scramble by Tyco’s counsel to find out exactly what Michael Greer
had been doing for Defendant’s counsel, in the face of representations by Defendant’s
counsel vastly understating the nature, scope, and magnitude of his work, their resistance
to permitting Mr. Greer’s deposition and their failure to produce the category of documents
that would permit Tyco’s inquiry to proceed promptly and adequately. After these
difficulties were resolved by the Court, a hotly–disputed Motion to Disqualify was filed,
followed by two rounds of briefing and oral argument. The Court's ruling granting Plaintiffs’
disqualification motion with modifications was issued, the trial schedule was adjusted, and
a bench trial was recently concluded.
Tyco seeks $191,549.25 in attorney fees and costs for attorney and paralegal work on
this disqualification motion.1 While Ethicon agrees that Tyco is entitled to a fee award for
this “complicated and sensitive” matter, it maintains that there was no justification for six
attorneys and one paralegal to devote 445 hours, which it concludes reflects substantial
duplication of effort, Ethicon also disputes the reasonableness of the hourly rates claimed,
which further drive the size of fee sought.2
To calculate a fee award, “courts traditionally employed the ‘lodestar’ method: first
the court multiplied a reasonable number of hours worked by a reasonable hourly rate to
calculate the ‘lodestar’ amount, and then adjusted the lodestar amount up or down based on
case–specific factors.” Bridgeport & Port Jefferson Steamboat Co. v. Bridgeport Port Auth.,
No. 3:03 CV 599(CFD), 2011 WL 721582, at *3 (D. Conn. Feb. 22, 2011) (citation omitted).
This figure reflects a 10–percent discount applied by Tyco to the total fees sought
in this matter. (Pls.’ Mot. at 7.)
Defendant does not contest an award for costs of $3,065.26, and these costs will thus
However, the Second Circuit has moved beyond the lodestar method, Arbor Hill Concerned
Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182, 190 (2d Cir. 2008), directing
district courts to “first determine a ‘reasonable hourly rate,’ based on case–specific variables,
and then multiply that rate by the number of hours reasonably expended to arrive at a
‘presumptively reasonable fee.’” Bridgeport & Port Jefferson, 2011 WL 721592, at *3, quoting
Arbor Hill, 522 F.3d at 190. The amount is “only presumptively reasonable”; it is still within
the court’s discretion to adjust the amount upward or downward based on the case-specific
factors. See Robinson v. City of NY, No. 05 Civ. 9545(GEL), 2009 WL 3109846, at *3
(S.D.N.Y. Sept. 29, 2009) (citation omitted). “Hence, the process is really a four–step one,
as the court must: (1) determine the reasonable hourly rate; (2) determine the number of
hours reasonably expended; (3) multiple the two to calculate the presumptively reasonable
fee; and (4) make any appropriate adjustments to arrive at the final fee award.” Adorno v.
Port Auth. of N.Y. & N.J., 685 F. Supp. 2d 507, 511 (S.D.N.Y. 2010).
Reasonableness of Rate
Plaintiffs seek $850/hour for Drew Wintringham, who has been a patent attorney for
thirty years, a partner at DLA Piper. They seek $725/hour for Frank Ryan, a patent attorney
for eighteen years, and $680/hour for Mark Rueh, a patent attorney for sixteen years; both
are also partners at DLA Piper. $355/hour are sought for Melissa Reinckens and Airina
Rodrigues, then–fourth–year associates at DLA Piper specializing in intellectual property
litigation, and $225/hour is sought for Joanna Sykes–Saaveedra, a second–year associate in
commercial litigation in DLA Piper’s New Jersey office. Plaintiffs offer no evidence of what
patent counsel in Connecticut would charge in a comparably complex patent matter or
whether Connecticut firms are sufficiently staffed to handle a matter of this size, and instead
maintain that if a reasonable paying client is willing to pay, and does pay the rates claimed,
the hourly rates are presumptively reasonable. Plaintiffs also observe that Defendant offers
no contrary affidavit or other evidence on the unreasonableness of the rates sought. Indeed,
Defendant has offered nothing on this issue, including what rates it is paying and how much
attorney time it expended opposing the motion, which might be probative of what is
necessary or reasonable in the particular circumstances. Serricchio v. Washovia Securities,
LLC, 258 F.R.D. 43, 46 (D. Conn. 2009) (“[I]t may be proper to permit a prevailing party to
take discovery of its opponent’s billing records where that opponent claims that the hours
plaintiff’s counsel expended were grossly excessive.”).
The Second Circuit has required locality rates unless the qualifications of counsel are
such that a reasonable client would pay these rates and could not get comparable
representation from an in–state firm. See Simmons v. New York City Transit Auth., 575 F.3d
170, 175–76 (2d Cir. 2009) (“[I]n order to overcome the presumption [of the forum rule],
a litigant must persuasively establish that a reasonable client would have selected
out–of–district counsel because doing so would likely . . . produce a substantially better net
result.”). In 2010, this Court awarded what it believed was then the highest hourly rate for
work by Connecticut trial counsel of $465, see Serricchio v. Wachovia Securities, LLC, 706 F.
Supp. 2d 237, 255 (D. Conn. 2010), based on the attorney’s “extensive experience, high
reputation, and remarkably successful results, and to reflect the reality of rate increases over
National rates have been recognized as warranted where the expertise and speciality
justify it. Having presided over the bench trial in this case, the Court is persuaded that a
national rate is warranted here because of the high stakes, the technical complexity, and
multiplicity of claims and defenses regarding multiple patents and multiple products. The
fact that the work on this motion had to be conducted in a very compressed time frame and
raised issues of significant importance to both sides, of which Plaintiffs’ trial counsel was
already familiar—with both the patent issues and the disqualification factors—as a practical
matter, no other attorneys could have effectively handled this case and motion at this point.
See, e.g., Simmons, 575 F.3d at 176 (“Among the ways an applicant may make such a showing
[to justify a national rate] is by establishing . . . that no in–district counsel possessed such
expertise.”). Based on the Court’s evaluation of counsel’s expertise, the exigencies of
litigating this motion on the eve of trial, and the amount of work that needed to be
accomplished in a short time, the rates sought, despite the deficits in Plaintiffs’ evidentiary
support, are approved. Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (“Because
attorney’s fees are dependent on the unique facts of each case, the resolution of this issue is
committed to the discretion of the district court.”).
Reasonableness of Time Expended
Plaintiffs are seeking fees for 445.45 hours expended by three partners, three
associates, and one paralegal. Tyco argues that the novelty and difficulty of the issues in its
disqualification motion explain the time expended as reasonable and necessitated, because
it was particularly labor–intensive, requiring attorney time for fact–gathering, research, and
brief drafting. They claim that the contemporaneous time records of the respective attorneys
which it has submitted provides “detailed explanations of the time, labor and level of skill
required to address Defendant’s improper actions and the law that applies to the issues of
disqualification”3 in the eight categories of work it identifies. (Pls.’ Reply [Doc. # 160] at 1,
3.) These are all certainly areas in which Plaintiffs’ counsel were required to expend
resources. Further, given the novelty of challenging a trial graphics expert cross–over,
coupled with the tight time constraints in light of the imminency of trial, a ‘team approach’
was necessary to insure that all tasks were coordinated to permit timely completion of
sequential tasks and review of Defendant’s delayed disclosures of over 4,000 pages of
responsive documents, which counsel had to review in a sharply constrained period of time.
In light of these factors, however, Tyco misstates what can be determined from many
of the time/task disclosures because they are “block entries,” or use “block billing”—i.e.,
billing a large number of hours for multiple tasks—which do not permit the Court to
determine actual time spent on particular tasks, nor whether two lawyers are duplicating
each other. See Green v. City of New York, 403 F. App’x 626, 630 (2d Cir. 2010) (affirming
district court’s application of hours reduction due to pervasive block billing in time entries
submitted by counsel and concluding that the practice raised questions regarding the
reasonableness of the entries). For example, the associates’ entries which include
“teleconference,” or “multiple emails and telephone conferences,” or “multiple conferences,”
are overly vague and do not parse out the duration or purpose of each task. Moreover,
several of the entries utilize the term “attention to . . . ,” a phrase which gives no indication
of the work, if any, being performed.4 These entries will be excluded.
Plaintiffs have not provided any resumes to show the attorneys’ credentials, only
Attorney Ryan’s affidavit which detailed the number of years each attorney has been in
See id. at 29 (Ms. Rodrigues spent 6.70 hours on “attention to deposition prep. for
Greer deposition; draft rough deposition topics and document demand letter to opposing
Ethicon criticizes in particular Tyco’s attorney time spent preparing for and taking
the 3.5 hour deposition of Michael Greer. Under other circumstances, the 17 hours booked
by Mr. Ryan, 14.7 by Ms. Reinckens5 and 7.2 hours by Ms. Rodrigues6 might be excessive,
but the Court is willing to credit their necessity for this one, critical witness. Mr. Greer could
be expected to be an uncomfortable, non–expansive witness, especially as he was now in the
employ of Ethicon’s law firm and represented by one of Akin Gump’s associates, who
prepared him. Additionally, he had booked 80 hours on this case for Ethicon, in addition to
the 220 hours he billed previously to Tyco. Further, Tyco’s counsel had to review over 4,000
documents related to Greer’s involvement in the case and over 100 slides that he had created
thus far for trial. A careful and informed strategy and deposition plan was critical for this
deposition, and despite the shortcomings on time–task specificity, where collective
brainstorming had great value, no time will be deducted.
The same is not true for the over–215 hours spent for research and preparation of
briefs, particularly 160 hours on the reply brief.7 The exigencies of preparing the motion and
initial supporting memorandum, developing the factual record to track relevant case law and
counsel; review and analyze relevant caselaw.”). See also id. at 30 (Ms. Rodrigues spent 6.60
hours on “attention to review and analysis of Ethicon’s Opposition; . . . draft and revise
counterpoints to each argument and points to distinguish cases cited.”).
These are entries of 1 hour on September 29, 2.10 hours on October 3, 5.40 hours
on October 4, and 6.20 hours on October 5.
This is the sum of entries from October 3 (0.3 hours) and October 5 (6.90).
Defendant criticizes this time expenditure for only a “10 page reply.” As Henry
David Thoreau wrote, “[n]ot that the story need be long, but it will take a long while to make
it short.” Letters to Various Persons 169 (1879). The Court appreciates concise, focused
established principles, undoubtedly involved a multi–task team effort, justifying the nearly
60 hours billed by Ryan, Reinckens, and Rodrigues, because time spent in similar pursuit was
not necessarily duplicative or unecessary.8 However, the associate time on the reply briefing,
their 70 hours of “preparation for oral argument” which was argued only by Mr. Ryan, and
attending court proceedings must be reduced following judgment as either unnecessary or
apparently duplicative, particularly given the relatively identical block time entries.9 To
account for such redundancies, the Court reduces the fourth–year associates’ hours in
preparing the Reply brief by 33.5 hours.10 The Court further reduces the fourth–year
associates’ hours by 36.9, to account for the redundancy in hours spent “participating” in
However, the 1.50 and 3.50 hours of Mr. Wintringham’s time on October 2 and 10
spent on “‘attention to’ disqualification issues” is excluded, as are his 4 hours on October 11
billed as “further attention to disqualification cases,” and 2.25 hours on October 12, billed
as “further attention to Ethicon brief . . . and prep for court conference regarding
disqualification” after the brief was filed. The 3 hours billed on October 17 as “attention to
disqualification reply briefing” and the 1.80 hours billed on November 16 as “attn to Ethicon
supplemental court submission, analysis and discussion re same,” are deducted for the same
reason. The 2.30 hours of Mr. Rueh’s time on October 7 for “‘attention to’ motion to
disqualify and declaration” is similarly excluded.
Ms. Sykes–Saaveedra’s time which consists of much “email correspondence” and
“case summaries” is excluded since as a new attorney without IP expertise, it appears
duplicative of the other two associates, except for the 10.80 hours spent on October 15 when
sufficient specificity is provided to show her distinct, separate task of drafting an outline for
On November 11, Mr. Wintringham’s 4.50 hours for “attn. to cases cited by
Ethicon; confer on strategy. Work on oral argument on disqualification,” is reduced by 3
hours, due to duplicativeness of entries and vagueness.
The Court averaged the hours of Ms. Rienckens and Ms. Rodrigues on October 14,
15, 17, 18, and 19 and will award fees for the hours spent by one fourth–year associate
working that average amount of time, to account for nearly identical billing entries
pertaining to the preparation and drafting of the Reply brief. This totals 33.5 hours and will
be deducted from each fourth–year associate’s hours evenly.
and attending Greer’s deposition, oral argument and in telephone conferences with the
The Court’s determination of the number of hours reasonably expended in
connection with the Motion to Disqualify is reflected as follows in Table 1:
Court’s Adjustment (if
(-16.75, -2.00, -5.3, -9.3)
(-16.75, - 6.7, - 6.60, - 7)
(all but hours from 10/15)
Specifically, the Court excludes the 7 hours spent by Ms. Rodrigues attending the
Greer deposition on October 6, the 2 hours Ms. Rienckens spent “participating” in the
October 12 telephone conference with the Court, the 9.3 hours spent attending oral
argument on November 15, and the 5.3 hours spent “participating” in the November 23
telephone conference with the Court, in addition to the exclusion of 13.3 hours Ms.
Rodrigues spent giving “attention to” certain tasks which is discussed supra at 6. This
amounts to a total of 36.9 associate hours.
Defendants do not dispute the paralegal entries or rate and thus, $3,922.00 will be
awarded for Ms. Ruppert.
Presumptively Reasonable Fee
Taking into account the Court’s adjustment of hours reasonably expended, the Court
will award fees as follows:
Final Fee Award
With the adjustments made as to the reasonableness of hours expended, the Court
does not find that any other appropriate adjustments are warranted. Accordingly, the Court
awards to Tyco an attorney fee of $145,677.60, and costs in the amount of $3,065.26.
For the reasons discussed above, Plaintiffs’ motion [Doc. # 157] for costs and fees is
GRANTED in part. The Court awards $145,677.60 in attorneys’ fees and $3065.26 in costs,
for a total of $148,742.86.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 17th day of September, 2012.
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