Alfasigma USA, Inc. v. EBM Medical, LLC et al

Filing 68

ORDER: ORDERED that the 58 Motion for Attorney's Fees is GRANTED. Plaintiff is awarded reasonable attorney's fees in the amount of $4,000.00. FURTHER ORDERED that Defendants and their counsel shall satisfy their obligation to the Plaintiff no later than twenty-one (21) days after the signing of this order. Signed by Magistrate Judge Karen Wells Roby. (mp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALFASIGMA USA, INC.

CIVIL ACTION

VERSUS

NO: 17-07753

EBM, ET AL.

SECTION: AB@ (4)
ORDER

Before the Court is Plaintiff Alfasigma USA Inc.’s Motion for Attorney’s Fees (R. Doc.
58). The motion is opposed. R. Doc. 60. The motion was heard on the briefs.
I.

Factual Summary
This suit alleges, inter alia, misappropriation of trade secrets, breach of contract, and false

advertising involving three types of medical foods specially formulated for patients, because the
Defendants allegedly had direct access to the Plaintiff’s confidential and proprietary trade secret
information. R. Doc. 1. Alfasigma USA, Inc. (“Alfasigma”) filed a motion to compel seeking
responses to discovery, which was granted by the court on April 16, 2018. The Court also found that
attorney’s fees were warranted and directed the Plaintiff to file the subject motion in compliance with
the order. Alfasigma now seeks the award of $8,128.00 (Norton Rose Fulbright US, LLP’s attorney’s
fees) and $600 (Chaffe McCall’s attorney fees) for a total of $8,728.00.
The Defendants oppose the motion noting that: (1) the amount sought as attorney’s fees is
excessive; (2) Alfasigma issued virtually the same discovery to other defendants making this
discovery neither extraordinary nor extensive; and (3) the hourly rates are excessive and not based
upon the New Orleans Market. They argue that the fee request is excessive and unreasonable. R. Doc.
60.
II.

Standard of Review
The Supreme Court has indicated that the “lodestar” calculation is the “most useful starting

point” for determining the award of attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The lodestar equals “the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Id. The lodestar is presumed to yield a reasonable fee. La. Power & Light
Co. v. Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995). After determining the lodestar, the Court must
then consider the applicability and weight of the twelve factors set forth in Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). 1 The Court can make upward or downward
adjustments to the lodestar figure if the Johnson factors warrant such modifications. See Watkins v.
Fordice, 7 F.3d 453, 457 (5th Cir. 1993). However, the lodestar should be modified only in
exceptional cases. Id.
After the calculation of the lodestar, the burden then shifts to the party opposing the fee to
contest the reasonableness of the hourly rate requested or the reasonableness of the hours expended
“by affidavit or brief with sufficient specificity to give fee applicants notice” of the objections.

Rode

v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
III.

Analysis
A. Reasonableness of the Hourly Rates
Plaintiff seeks to recover the attorney’s fees for Saul Perloff, Katharyn Grant, Andre Timothy

Hanson, Lauren Valkenaar of Norton Rose and Loretta Hoskins of Chaffe McCall as a result of work
performed on one motion to compel. The rates billed to the client range from $375 to $765 from

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The twelve Johnson factors are: (1) the time and labor involved; (2) the novelty and difficulty of the questions;
(3) the skill requisite to perform the legal services properly; (4) the preclusion of other employment by the attorney due
to this case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations; (8) the amount involved
and results obtained; (9) the experience, reputation, and ability of counsel; (10) the undesirability of the case; (11) the
nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 488
F.2d at 717-19.

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January to February 2018 and $500 to $800 per hour from March to April 2018. R. Doc. 58-3.
However, the rates requested by the Norton Rose attorneys range from $190 to $450 per hour. 2 Id.
The total amount billed by the Norton Rose attorneys was $10,674.00, but they seek to recover
$8,128.00 plus $600.00 for the Chaffe McCall attorney.
The Defendants contend that the rates charged by the Norton Rose attorneys exceed the rates
available in the New Orleans Market. The defendants contend that rates for the New Orleans Market
would have been generally been less than $300.00 per hour. Additionally, the defendants contend that
the rate of the Chaffe McCall partner seeks only $200 per hour. Therefore, they contend a rate of
$240.00 per hour is reasonable with regard to the years of the Norton Rose attorneys’ experience.
Attorney=s fees must be calculated at the Aprevailing market rates in the relevant community”
for similar services by attorneys of reasonably comparable skills, experience, and reputation. Blum v.
Stenson, 465 U.S. 886, 895 (1984). The applicant bears the burden of producing satisfactory evidence
that the requested rate is aligned with prevailing market rates. See NAACP v. City of Evergreen, 812
F.2d 1332, 1338 (11th Cir. 1987). Satisfactory evidence of the reasonableness of the rate necessarily
includes an affidavit of the attorney performing the work and information of rates actually billed and
paid in similar lawsuits. Blum, 465 U.S. at 896 n.11. However, mere testimony that a given fee is
reasonable is not satisfactory evidence of a market rate. See Hensley, 461 U.S. at 439 n.15.
Rates may be adduced through direct or opinion evidence as to what local attorneys charge
under similar circumstances. The weight to be given to the opinion evidence is affected by the detail
contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of
case and client, and breadth of the sample of which the expert has knowledge. Norman v. Hous.

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Perloff’s request rate is $450 per hour. Grant’s requested rate is $325 per hour. Hanson requested rate $325
per hour. Valkenaar’s requested rate $190.00 per hour. R. Doc. 58-3, p. 7.
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Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also White v. Imperial
Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (recognizing that
attorneys customarily charge their highest rates only for trial work, and lower rates should be charged
for routine work requiring less extraordinary skill and experience).
Defendants have attached the firm’s website profiles of their attorneys, including Saul Perloff
of Norton Rose. R. Docs. 58-3, pp. 16-20. Perloff is a partner with 27 years of experience and is the
head of the advertising practice of the firm who represents clients in advertising and unfair
competition litigation under the Lanham Act and state law. He is a cum laude graduate of University
of Pennsylvania Law School and licensed in California and Texas. Id. He seeks a rate of $450.00 per
hour.
Dr. Katharyn Grant joined the San Antonio office of Norton Rose in 2005 after graduating
from The University of Texas School of Law where she graduated with honors including being
inducted into the Order of the Coif. Dr. Grant’s practice focuses on pharmaceutical products,
including claims of false advertising and unfair competition under the Lanham Act, trademarks, and
copyrights. Before attending law school she was an officer in the U.S. Air Force and an engineer
officer in the U.S. Public Health Service. R. Doc. 58-3, pp. 21-23. She seeks a rate of $325.00 per
hour.
Andre Hanson is senior counsel in Norton Rose’s Minneapolis office and focuses his practice
on false advertising, products liability, and litigation. He has been practicing 23 years and graduated
magna cum laude from the University of Minnesota Law School. R. Doc. 58-3, pp. 27-28. He seeks
a rate of $325.00 per hour.
Lauren Valkenaar is a senior associate with Norton Rose and her practice focuses on complex

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commercial litigation including litigation under the Lanham Act. She also defends against complex
contractual, negligence, and breach of fiduciary duty claims. R. Doc. 58-3, pp. 27-28. She has five
years of experience, is a graduate of St. Mary’s School of Law, and is licensed in the state of Texas.
Id. She seeks a rate of $190.00 per hour.
Loretta Hoskins is the local counsel on the defense team. She is a partner with Chaffe McCall,
has been licensed to practice for 12 years, and her practice is focused on commercial litigation. She
is a 2006 graduate of Loyola University College of Law where she graduated cum laude. Hoskins rate
is $200.00.
Where an attorney’s customary billing rate is the rate at which the attorney requests the
lodestar to be computed and that rate is within the range of prevailing market rates, the court should
consider this rate when fixing the hourly rate to be allowed. When that rate is not contested, it is
prima facie reasonable.” La. Power & Light, 50 F.3d at 328.
Satisfactory evidence of the reasonableness of the rate, at a minimum, is more than the
affidavit of the attorney performing the work. Norman, 836 F.2d at 1299 (citing Blum, 465 U.S. at
896 n .11)). It must also speak to rates actually billed and paid in similar lawsuits. Thus, mere
testimony that a given fee is reasonable is not satisfactory evidence of market rates. See Hensley, 461
U.S. at 439 n. 15. Having considered the affidavit submitted by the mover, the Court finds that is
not adequate because it does not speak to the rates actually billed and paid in similar lawsuits.
However, this does not end the inquiry. The Court will proceed to look at the market rate for the New
Orleans area given the years of experience of the billing attorneys.
Rates may be adduced through direct or opinion evidence as to what local attorneys charge
under similar circumstances. The weight to be given to the opinion evidence is affected by the detail

5

contained in the testimony on matters such as similarity of skill, reputation, experience, similarity of
case and client, and breadth of the sample of which the expert has knowledge. Norman v. Housing
Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988); see also White v. Imperial
Adjustment Corp., No. 99-03804, 2005 WL 1578810, at *8 (E.D. La. Jun. 28, 2005) (recognizing that
attorneys customarily charge their highest rates only for trial work, and lower rates should be charged
for routine work requiring less extraordinary skill and experience).
Regarding the rate charged by Valkennar, given her five years of experience the Court finds
that her rate of $190 is reasonable. See Drs. Le and Mui, Family Med. v. St. Paul Travelers, No. 0610015, 2007 WL 4547491, at *2-3 (E.D. La. Dec. 19, 2007) (Roby, J.) (awarding hourly rates of
$175.00 to an attorney with seven (7) years of legal experience and $200.00 for an attorney with
eleven (11) years of experience); See also Creecy v. Metro. Prop. & Cas. Ins. Co., No. 06-9307, 2008
WL 553178, at *3 (E.D. La. Feb. 28, 2008) (Roby, J.) (Awarding $175.00 an hour to a lawyer who
had practiced law for five (5) years and $200.00 an hour to an attorney with eleven (11) years of
experience).
The Court also observes that Dr. Grant and Ms. Hoskins have been practicing for substantially
the same period; 13 and 12 years respectively. Hoskins actually charges in the New Orleans Market
$200.00 per hour compared to Dr. Grant at $225.00 per hour. The Court, in considering the rate
charged in this market for the years of experience, finds that the rate of $200.00 is reasonable for both
Dr. Grant and Ms. Hoskins.
Additionally, Perloff and Hanson’s years of experience are similar. Perloff has been practicing
27 years and Hanson some 23 years. Perloff’s rate is $450 per hour and Hanson’s rate is $325 per
hour. See Bd. of Supervisors of La. State Univ. v. Smack Apparel Co., No. 04–01593, 2009 WL

6

927996, at *4–5 (E.D. La. Apr. 2, 2009) ($325.00 per hour was a reasonable hourly rate for an attorney
with ten years of specialized experience in trademark litigation, and for an attorney who had twentynine years of experience, but not in the particularized field of intellectual property law.); See also
Who Dat Yat Chat, LLC v. Who Dat. Inc., 838 F. Supp. 2d 516 (E.D. La. Jan. 19, 2012). Considering
that Perloff and Hanson are specialists in the substantive area and further that there are no other cases
on point in this market, the Court will accept their rates as reasonable.
B. Determining the Reasonable Hours Expended
1.

Blocked Billing

The fee application submitted by the Norton Rose lawyers contains some entries that are
viewed as “block billing.” This term can be defined as the time-keeping method by which an attorney
lumps together the total daily time spent working on a case, rather than itemizing the time expended
on specific tasks. Robinson v. City of Edmond, 160 F.3d 1275, 1283 n.9 (10th Cir. 1998). “This
practice can make it impossible for the court to determine the reasonableness of the hours spent on
each task.” Canon U.S.A., Inc. v. S.A.M., Inc., No. 07-1201, 2009 WL 35334, at *4 (E.D. La. Jan. 6,
2009); See also Gulf Coast Facilities Management, LLC v. BG LNG Services, LLC, No. 09-3822,
2010 WL 2773208, at *8-*9 (E.D. La. July 13, 2010). While block billing creates impediments to the
analysis of the attorney’s fee bill, the Supreme Court has indicated that it is not a basis for refusing to
award attorney’s fees. Hensley, 461 U.S. at 437, n.12. The method most often used to compensate for
block billing is a flat reduction of a specific percentage from the award. See, e.g., Canon, 2009 WL
35334, at *5 (citing cases).
The Court notes that attorney invoices contain evidence of block billing for Valkenaar and
Hanson. Because these entries can be segregated, however, the Court finds that the appropriate

7

resolution is to decrease the total entries which block billing occurred by a percentage. In this case,
the Court finds that a reduction of those “block billed” entries for all three attorneys by 30% is
appropriate. See, e.g., Verizon Business Global LLC v. Hagan, No. 07-0415, 2010 WL 5056021, at
*5 (E.D. La. Oct. 22, 2010) (citing cases showing that reductions for block billing between 15% and
35% have been found reasonable), vacated on other grounds, 467 F. App’x 312, 2012 WL 1414448
(5th Cir. Apr. 24, 2012). The total number of blocked billed hours by Valkenaar equal 5.80 3 and
Hoskins 0.70. 4 The reasonable hours for the entries by Valkenaar is 4.06 hours and Hoskins is 0.49
hours.
2.

Duplicate Entries

The billing entries show that multiple attorneys were drafting and reviewing the discovery for
the individual defendants. The entries are not clear regarding which lawyer was preparing the
discovery for which defendant. Additionally, the entries show that Perloff travelled to New Orleans
to argue the motion and local counsel, Hoskins, also accompanied him to the hearing. As a result, the
entries appear to be duplicative.
Duplicate billing under a fee-shifting statute is not per se unreasonable, as long as the award
for time spent by two or more attorneys "reflects the distinct contribution of each lawyer to the case
and the customary practice of multiple-lawyer litigation." Thomas v. Frederick, No. 87-1950, 1992
WL 17273, *1 (W.D. La. Jan. 29, 1992)(citing Johnson v. University of University of Alabama, 706
F.2d 1205, 1208 (11th Cir. 1983)).

3

3.60 hours-Review case documents; research on motion to compel; draft motion to compel responses from
individual defendants. 2.20 hrs- Revise motion to compel and research case law concerning motion to stay impact on
obligations to serve discovery.
4
0.70 hours-Review motion to compel and memorandum in support, opposition, and reply memorandum in
order to prepare to attend hearing with Saul Perloff.
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The district court has considerable discretion in this area because of its familiarity with the
case and the attorney's work. See Associated Builders & Contractors, Inc. v. Orleans Parish School
Bd., 919 F.2d 374, 379 (5th Cir. 1990); Berberena v. Coler, 753 F.2d 629, 633 (7th Cir. 1985). A
central factor in evaluating the necessity of multiple attorneys at court hearings or trials is the degree
to which each attorney participated in or contributed to the proceedings. West Virginia University
Hosp., Inc. v. Casey, 898 F.2d 357, 365 (3rd Cir. 1990).
After thoroughly examining the defendant's billing records, the Court finds that the following
entries are unnecessarily duplicative.
DATE

DUPLICATE TASKS

02/20/2018
02/18/2018
02/21/2018

Review and revise draft motion to compel
individual Defendants to provide
discovery
Revise Motion to Compel

03/06/2018
03/07/2018

Valkenaar Grant

03/15/2018

Hearing on Alfasigma Motion to Compel

03/08/2018

.30

Prepare initial draft reply in support of
Alfasigma’s Motion to Compel discovery
from Individual Defendants.

3/28/2018

.70

Hoskins

.80

Review Individual defendants response to
plaintiff’s motion to compel

03/23/2018
03/25/2018
03/23/2018

2.20

Hanson Perloff

Review Motion to Compel

.10
4.3

.30
3.50

1.50

1.40

.20

.70

TOTAL

2.90

5.5

3.8

1.70

2.10

Allowed time

0

5.5

0

.40

0

Considering the duplicative work that was done on this one motion, the Court finds that
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Grant’s time of 5.5 hours is reasonable and will disallow time for Valkenaar and Hanson as
duplicative. Additionally, the time for Perloff reviewing the motion is allowed as reasonable. The
court however will also only allow 0.20 hours for Perloff for attending the hearing. According to the
Court record, the hearing only took ten (10) minutes and Alfasigma was the first case on the Court’s
docket. Further, Hoskins’s time for attending the hearing is disallowed as she did not say a word
during the hearing.
C. Reasonable Attorney’s Fees
The party seeking attorney=s fees bears the burden of establishing the reasonableness of the
fees by submitting adequate documentation and time records of the hours reasonably expended and
proving the exercise of billing judgment. Wegner v. Standard Ins. Co., 129 F.3d 814, 822 (5th Cir.
1997). Attorneys must exercise Abilling judgment@ by excluding time that is unproductive, excessive,
duplicative, or inadequately documented when seeking fee awards. Walker v. United States Dep=t of
Housing & Urban Dev., 99 F.3d 761, 769 (5th Cir.1996). Specifically, the party seeking the award
must show all hours actually expended on the case but not included in the fee request. Leroy v. City
of Houston, 831 F.2d 576, 585 (5th Cir. 1987). Hours that are not billed properly to one’s client also
are not properly billed to one’s adversary. Hensley, 461 U.S. at 434. The remedy for failing to
exercise billing judgment is to reduce the hours awarded as a percentage and exclude hours that were
not reasonably expended. Id. Alternatively, this Court can conduct a line-by-line analysis of the time
report. See Green v. Administrators of the Tulane Educational Fund, 284 F.3d 642 (5th Cir. 2002).
The Court has reviewed the contemporaneous billing sheets and finds that the following
entries are unreasonable as they are duplicative, block billed, vague, or unnecessary:
Date
02/21/2018

Grant
. 10

Perloff

Hoskins

10

03/06/2018
03/08/2018
03/26/2018
03/28/2018
03/28/2018
03/28/2018

. 30

1.10

.20

.20

03/28/2018
03/28/2018
03/28/2018
03/28/2018
03/29/2018
04/3/2018
04/16/2018

. 20
. 10
.30
.30

2.10

.30
1.20hrs

Total Hours 1.5 hrs.

7.2hrs.

Fee
Summary

$2,542.00

$300.00

$ 240.00

Initially, the Court notes that the travel costs were billed out at full rate, which is improper.
It is well settled that travel time is billed at ½ the hourly rate. See Verizon Business Global LLC v.
Hagen, 2010 WL 5157193, at * 13 (E.D. La. 2010) (“Attorney travel time should be compensated at
a lower rate than legal work. Courts in this Circuit typically compensate travel time at 50% of the
attorney's rate in the absence of documentation that any legal work was accomplished during travel
time.”) (citing Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir. 1993); Jiminez v. Paw–Paw's Camper
City, Inc., 2002 WL 257691, at *23 (E.D. La. Feb. 22, 2002); Paul v. CMC Mfg., Inc., 1998 WL
527102, at *2 (N.D. Miss. Aug.6, 1998)). Therefore, the hourly rate for Perloff’s travel is $225.00
per hour. The reasonable fees for Perloff’s travel is $720.00.
The Court also finds that the 0.70 hours billed by Hoskins are not reasonable. According to
the entries, he spoke with and “helped Perloff” prepare for the hearing, which are vague entries and

11

are disallowed.
The remaining hours for Valkenaar that were reduced because of block billing are 4.06 times
her hourly rate of $190.00 which equals $809.40 and Hoskins 0.49 hours at her hourly rate of $200
for a total of $98.00.
Regarding the reasonable hours and factoring in those hours which were duplicate billed, the
Court finds that Grants’s 5.50 hours are reasonable at a rate of $200.00 per hour for a total of
$1,100.00 and Perloff’s 0.40 hours at a rate of $425.00 per hour are reasonable for a total of $170.
The total fee award is $5,979.40.
D. Adjusting the Lodestar
As indicated above, after the lodestar is determined, the Court may then adjust the lodestar
upward or downward depending on the twelve factors set forth in Johnson, 488 F.2d at 717-19. To
the extent that any Johnson factors are subsumed in the lodestar, they should not be reconsidered
when determining whether an adjustment to the lodestar is required. Migis v. Pearle Vision, Inc., 135
F.3d 1041, 1047 (5th Cir. 1998).
In this case, the memorandum in support of the motion to compel is only four pages in length.
There were six lawyers who worked on this one non-complex motion. While the Court went through
the billing sheets, considering the ten minutes spent during oral argument, the simplistic nature of the
motion, and the over staffing of the matter, the Court finds that a downward departure pursuant to
Johnson is warranted and that a fee of $4,000.00 is reasonable.
IV.

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff’s Motion for Attorney’s Fees (R. Doc. 17) is GRANTED

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and that the Plaintiff is awarded reasonable attorney’s fees in the amount of $4,000.00.
IT IS FURTHER ORDERED that Defendants and their counsel shall satisfy their obligation
to the Plaintiff no later than twenty-one (21) days after the signing of this order.

New Orleans, Louisiana, this 15th day of August 2018.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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