Imperium IP Holdings (Cayman), Ltd. v. Samsung Electronics Co., Ltd. et al
Filing
422
MEMORANUDM OPINION AND ORDER. Imperium's Motion for Attorneys' Fees (Dkt. # 363 ) is hereby GRANTED. Plaintiff is awarded $7,080,695.77 in attorneys' fees. Signed by District Judge Amos L. Mazzant, III on 4/3/2018. (rpc, )
United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
IMPERIUM IP HOLDINGS (CAYMAN),
LTD.
v.
SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA,
INC., SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, and SAMSUNG SEMICONDUCTOR,
INC.
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Civil Action No. 4:14-CV-00371
Judge Mazzant
MEMORANUDM OPINION AND ORDER
Pending before the Court is Imperium IP Holdings (Cayman), Ltd.’s (“Imperium”) Motion
for § 285 Attorneys’ Fees (Dkt. #363). After reviewing the relevant pleadings, the Court finds that
the motion should be granted.
BACKGROUND
On June 9, 2014, Imperium filed the instant action against Defendants, alleging
infringement of United States Patent Nos. 6,271,884 (the “’884 Patent), 7,092,029 (the “’029
Patent”), and 6,836,290 (the “’290 Patent”). On February 8, 2016, the jury returned a verdict
finding the following: (1) Defendants infringed Claims 1, 5, 14, and 17 of the ’884 Patent; (2)
Defendants infringed Claims 1, 6, and 7 of the ’029 Patent; (3) Defendants willfully infringed the
patents-in-suit; and (4) Claim 10 of the ’290 Patent was invalid for obviousness (Dkt. #253).
The jury awarded $4,840,772 in damages for infringement of the ’884 Patent and
$2,129,608.50 in damages for infringement of the ’029 Patent (Dkt. #253). The jury’s award
represents an implied royalty rate of four cents per product for the ’884 Patent and two cents per
product for the ’029 Patent. On August 24, 2016, the Court awarded enhanced damages for willful
infringement and entered final judgment (Dkt. #329; Dkt. #330).
On September 13, 2017, the Court granted in part and denied in part Imperium’s Motion
for § 285 Attorneys’ Fees and Non-Taxable Costs (Dkt. #401). The Court awarded Imperium
$581,681.44 in non-taxable costs or expenses. However, Imperium did not provide the Court with
enough information to determine the reasonableness of Imperium’s fair estimate of attorneys’ fees.
Particularly, Imperium did not provide the Court with the number of hours Imperium’s attorneys
spent on this case, necessary to calculate the lodestar. Therefore, the Court ordered Imperium to
submit documentation indicating the hours and billing rates for all legal assistants, associates, and
partners who worked on this case.
In response to the Court’s Order, on September 20, 2017, Imperium filed the Declaration
of Alan M. Fisch and submitted to the Court hard copies of the detailed billing records for in
camera review (Dkt. #406). On October 10, 2017, the parties filed a Joint Motion to Withdraw
and Resubmit Fees Submission and For Extension of Time to Respond (Dkt. #409), which the
Court granted the following day (Dkt. #410).
On October 20, 2017, Imperium filed a Notice of Submission of its Redacted Billing
Records in Support of its Motion for Attorneys’ Fees (Dkt. #414). On October 27, 2017,
Defendants filed their response (Dkt. #416). On November 3, 2017, Imperium filed its reply
(Dkt. #417).
LEGAL STANDARD
The district court has discretion in determining a reasonable amount for attorneys’ fees and
litigation expenses, “and, because of its superior understanding of the litigation, frequent appellate
review is to be avoided.” Lubrizol Corp. v. Exxon Corp., 957 F.2d 1302, 1308 n.14 (5th Cir.1992)
2
(citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)).
“[T]he awarding of attorney fees pursuant to 35 U.S.C. § 285 is unique to patent law and therefore
subject to Federal Circuit law.” Special Devices, Inc. v. OEA, Inc., 269 F.3d 1340, 1343
(Fed. Cir. 2001). The Federal Circuit has approved of use of the lodestar method in calculating an
award of § 285 attorneys’ fees. Mathis v. Spears, 857 F.2d 749, 755 (Fed. Cir. 1988) (citing
Hensley, 461 U.S. at 437). Therefore, the Court will apply the two-step lodestar method.
The Court first calculates the “lodestar” by multiplying the number of hours an attorney
reasonably spent on the case by an appropriate hourly rate, which is the market rate in the
community for this work. See Smith & Fuller, P.A. v. Cooper Tire & Rubber Co., 685 F.3d 486,
490 (5th Cir. 2012). “A reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills, experience, and
reputation.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988)
(citing Blum v. Stenson, 465 U.S. 886, 895–96 n.11 (1984)). The relevant legal community is the
community where the district court sits. See Tollett v. City of Kemah, 285 F.3d 357, 368
(5th Cir. 2002).
The party seeking reimbursement of attorneys’ fees bears the burden of establishing the
number of hours expended through the presentation of adequately recorded time records as
evidence. See Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996); La. Power & Light
Co. v. KellStrom, 50 F.3d 319, 324 (5th Cir. 1995); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.
1993). The Court should use this time as a benchmark and then exclude any time that is excessive,
duplicative, unnecessary, or inadequately documented. Id. The hours remaining are those
reasonably expended. Id. There is a strong presumption of the reasonableness of the lodestar
3
amount. See Perdue v. Kenny A., 559 U.S. 542, 552 (2010); Saizan v. Delta Concrete Prod. Co.,
448 F.3d 795, 800 (5th Cir. 2006).
After calculating the lodestar, the Court then considers whether the circumstances of the
particular case warrant an upward or downward lodestar adjustment. Migis v. Pearle Vision, Inc.,
135 F.3d 1041, 1047 (5th Cir. 1998). In making any lodestar adjustment, the Court looks to twelve
Johnson factors. Id. (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717–19
(5th Cir. 1974)). The Johnson factors are:
(1) time and labor required; (2) novelty and difficulty of issues; (3) skill required;
(4) loss of other employment in taking the case; (5) customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations imposed by client or circumstances;
(8) amount involved and results obtained; (9) counsel's experience, reputation, and
ability; (10) case undesirability; (11) nature and length of relationship with the
client; and (12) awards in similar cases.
Id. (citing Johnson, 488 F.2d at 717–19).
After considering the twelve Johnson factors, the court may adjust the lodestar upward or
downward. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993). “If the plaintiff obtained
limited success, the hours reasonably spent on the case times the reasonable hourly rate may be
excessive.” Verginia McC v. Corrigan-Camden Indep. Sch. Dist., 909 F. Supp. 1023, 1032
(E.D. Tex. 1995). “‘[T]he most critical factor’ in determining the reasonableness of an attorney's
fee award ‘is the degree of success obtained.’” Giles v. Gen. Elec. Co., 245 F.3d 474, 491 n.31
(5th Cir. 2001) (quoting Farrar v. Hobby, 506 U.S. 103, 113 (1992)); see also Migis v. Pearle
Vision, Inc., 135 F.3d 1041, 1047 (5th Cir. 1998). “The district court may attempt to identify
specific hours that should be eliminated, or it may simply reduce the award to account for the
limited success.” Verginia McC, 909 F. Supp. at 1032 (quoting Hensley, 461 U.S. at 436).
4
“Many of these factors usually are subsumed within the initial calculation of hours
reasonably expended at a reasonable hourly rate and should not be double-counted.” Jason D.W.
v. Houston Indep. Sch. Dist., 158 F.3d 205, 209 (5th Cir. 1998) (internal citations omitted).
The United States Supreme Court has barred any use of the sixth factor as a basis for
enhancement of attorneys’ fees. See Walker v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761,
772 (5th Cir. 1996) (citing City of Burlington v. Dague, 505 U.S. 557, 567 (1992)). In addition,
three of the Johnson factors – complexity of the issues, results obtained, and preclusion of other
employment – are fully reflected and subsumed in the lodestar amount. Heidtman v. Cty. of El
Paso, 171 F.3d 1038, 1043 (5th Cir. 1999). “[T]he court should give special heed to the time and
labor involved, the customary fee, the amount involved and the result obtained, and the experience,
reputation and ability of counsel.” Migis, 135 F.3d at 1047 (citation omitted).
The lodestar is presumptively reasonable and should be modified only in exceptional cases.
Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). The fee-seeker must submit adequate
documentation of the hours reasonably expended and of the attorney's qualifications and skill,
while the party seeking reduction of the lodestar must show that a reduction is warranted. Hensley,
461 U.S. at 433; La. Power & Light Co., 50 F.3d at 329.
ANALYSIS
A. Lodestar
1. Hours Expended
Imperium seeks $7,110,290.77 1 in attorneys’ fees for 13,178.6 hours expended. The hours
expended are divided as follows:
Total Hours
Alan Fisch
Billed
591.4
Cut
40.1
1
Total
551.3
Imperium originally requested $7,123,115.77 (Dkt. #406). However, in its reply (Dkt. #417), Imperium asserts that
it corrected an entry that resulted in a reduction in the fees by $12,825.00.
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R. William Sigler
John T. Battaglia
Jeffrey Saltman
Silvia Jordan
Desmond Jui
Sruli Yellin
Richard Zhang
David Saunders
Peter Scoolidge
Jennifer Robinson
Patrick Lee
Michelle Chatelain
Matthew Hesser
Maggie Dombrowsky
Alex DeGiulio
936.9
515.1
1,582.4
2,218.3
3,166.4
817.9
651.6
2,264.4
257.7
102.7
643.7
157.0
547.7
263.0
26.9
14,743.1
69.9
94.1
39.3
46.5
652.6
75.2
61.6
167.7
1.5
102.7
10.7
0.0
78.0
97.4
0.2
1,537.5
867.0
421.0
1,543.1
2,171.8
2,513.8
742.7
590.0
2,069.7 (2,096.7 – 27.0) 2
256.2
0.0
633.0
157.0
469.7
165.6
26.7____
13,178.6 (13,205.6 – 27.0)
Defendants request that the Court limit the fees to no more than $3,799,784.81. Defendants
assert that the evidence does not support the amount of hours Imperium presented because: (1)
Imperium failed to exclude unsuccessful claims and unrelated defendants; (2) Imperium did not
provide evidence of billing judgment, including failing to exclude clerical work, and (4) Imperium
statements include block billing. The Court will address each argument in turn.
i.
Apportionment
Imperium has “the burden of proving the reasonableness of the number of hours expended
on [its] prevailing claim.” Von Clark v. Butler, 916 F.2d 255, 259 (5th Cir. 1990) (citing Leroy v.
City of Houston, 831 F.2d 576, 585 (5th Cir. 1987)). “[W]here the plaintiff has failed to prevail
on a claim that is distinct in all respects from his successful claims, the hours spent on the
unsuccessful claim should be excluded.” Hensley, 461 U.S. at 440. The Court will address each
of Defendants’ apportionment arguments separately.
2
The corrected entry was for David Saunders who listed 30.0 instead of 3.0 hours, which resulted in a reduction in
the fees by $12,825.00 ($475 x 27.0 hours).
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Defendants argue that a 33% fee reduction is warranted because Imperium only succeeded
on the ‘029 and ‘884 Patents, which was a small fraction of their claims. (Dkt. #416 at pp. 2–3).
Defendants assert that “[n]ot only did Imperium not write off any time for work related to the ’290
patent, it included entries directed solely to the ’290 patent.” (Dkt. #416 at p. 2). Thus, because
the ’290 Patent was one of the three, “a fee reduction of 33% is warranted on the basis of the failure
to bill in such a way that time attributable to ’290 patent could be removed from its fee request.”
(Dkt. #416 at p. 2).
Defendants also assert that “[a]bout a year after serving its initial infringement contentions,
Imperium dropped five of the seventeen patent claims initially asserted against [Defendants], and
then dropped three more on the eve of trial.” (Dkt. #416 at p. 3). Further, Imperium settled with
separate defendants, Samsung Techwin Co. and Sansung-Opto. Defendants claim, however, that
“Imperium only removed entries where Samsung Techwin and Samsung-Opto Electronics were
expressly identified, and did not remove any of the thousand-plus pre-suit investigation hours not
attributable to any specific entity.” (Dkt. #416 at p. 3). Thus, Defendants claim Imperium failed
to adequately document how it divided this time between Defendants.
Imperium claims that it “raised wholly related claims, all stemming from [Defendants’]
copying of ESS’s technology and infringement of its intellectual property, and won substantial
relief.” (Dkt. #417 at p. 2). Imperium asserts that its requested amount follows the Supreme
Court’s Hensley decision, which set forth the general rule that a plaintiff “who has won substantial
relief” should recover reasonable attorney’s fees for “related” but unsuccessful claims that
“involve a common core of facts or [are] based on related legal theories.” Hensley, 461 U.S. at 435.
Work done by attorneys on unsuccessful claims cannot be considered to have been
expended for the result achieved. Hensley, 461 U.S. at 435. As the Supreme Court explained:
7
“The congressional intent to limit awards to prevailing parties requires that these unrelated claims
be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for
services on the unsuccessful claim.” Id. In determining which hours to include and exclude from
the lodestar, “[t]he district court may attempt to identify specific hours that should be eliminated,
or it may simply reduce the award to account for the limited success.” Id. at 436–37. A party
“cannot have prevailed on issues they did not pursue.” Walker, 99 F. 3d at 769.
In the present case, Imperium’s counsels’ work on “unsuccessful claims was intimately
related to the work done on successful claims.” Microtune (Texas), L.P. v. Broadcom Corp., No.
4:01CV23, 2004 WL 716697, at *6 (E.D. Tex. Mar. 18, 2004), vacated, No. 4:01CV23, 2004 WL
2358101 (E.D. Tex. Aug. 30, 2004). Most of Imperium’s counsels’ time was “devoted to the
litigation as a whole, making it impossible to divide the work done on each individual claim.” Id.
(citing Chem. Manuf. Assoc. v. E.P.A., 885 F.2d 1276, 1282 (5th Cir.1989) (finding a lawsuit based
on a common core of facts or related legal theories cannot be viewed as a series of discrete claims
for the purposes of determining reasonable attorneys’ fees)). The number of witnesses called at
trial did not increase as a result of the unsuccessful claims. Further, all of Imperium’s claims were
so closely related that allocating the amount of time spent litigating each individual claim would
have been impossible. A claim-by-claim reduction is inappropriate.
Furthermore, the Court already found that Imperium is the “prevailing party” in this case
and also that “there was ample evidence at trial of Defendants’ willful infringement that warranted
the Court’s enhancement of damages.” (Dkt. #401). The Court entered its Final Judgment in this
case on August 24, 2016, that Imperium shall recover from Defendants the enhancement of
damages by three times the jury verdict of $6,970,380.50, which would result in a total amount of
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$20,911,141.50. The Court is of the opinion that no reduction in Imperium’s attorneys’ fee award
based on apportionment is warranted because hours are inextricably intertwined.
ii.
Billing Judgment
Defendants claim that Imperium failed to exercise billing judgment, and therefore, there
should be a reduction of the award by twenty percent, intended to substitute for the exercise of
billing judgment. The party seeking fees has “the burden of showing . . . that the attorneys
exercised billing judgment.” Black v. SettlePou, P.C., 732 F. 3d 492, 502 (5th Cir. 2013) (citing
Saizan v. Delta Concrete Prods. Co., Inc., 448 F. 3d 795, 799 (5th Cir. 2006)). Billing judgment
is defined as “documentation of the hours charged and of the hours written off as unproductive,
excessive, or redundant.” Saizan, 448 F. 3d at 799.
Defendants maintain that certain Imperium senior attorneys did work that should have been
done by support staff or junior attorneys billing at a lower rate. Defendants point to one example,
that “Imperium’s senior trial lawyers—Alan Fisch, Bill Sigler, and John Battaglia—billed out at
rates ranging from $750 to $1050/hour, for ‘conduct[ing] research’ in conjunction with motion
briefing,” claiming that is a “task clearly inappropriate for their level of seniority.” (Dkt. #416
at p. 4). Additionally, Defendants claim Imperium failed to write off any time involved in the
ramping up of new associates in 2015 after the case was well underway.
“The Court recognizes that good attorneys litigate in their own manner and does not
require an attorney to practice in a certain way.” McClain v. Lufkin Indus., Inc., No. CIV. A. 9:97CV-063, 2009 WL 921436, at *5 (E.D. Tex. Apr. 2, 2009), aff'd in part, vacated in part, remanded,
649 F.3d 374 (5th Cir. 2011). While Imperium’s counsel “engaged in tasks often associated with
attorneys more junior than [themselves], it is possible that they completed those tasks more
quickly, and with less need for subsequent review and revision by another attorney.” Id. (citing
9
League of United Latin American Citizens No. 4552 (LULAC) v. Roscoe Independent School Dist.,
119 F.3d 1228, 1233, n.3 (5th Cir. 1997)). Therefore, the Court will not reduce the calculation of
the reasonable number of hours because Imperium’s counsel did not utilize a junior attorney for
research or spent time “ramping up” new associates.
Defendants argue that “Imperium excluded from its fee demand ‘certain’ clerical work; yet
it failed to exclude all clerical work such as the printing and filing of documents, as is required.”
(Dkt. #416 at p. 5). “Clerical work . . . should be compensated at a different rate from legal work.”
Walker, 99 F.3d at 770. See Cruz v. Hauck, 762 F.2d 1230, 1235 (5th Cir. 1985) (“A finding that
some of the hours claimed were for clerical work may justify compensating those hours at a lower
rate . . . .”); Johnson, 488 F.2d at 717 (“It is appropriate to distinguish between legal work, in the
strict sense, and investigation, clerical work, compilation of facts and statistics and other work
which can often be accomplished by non-lawyers . . . .”). The Court agrees that the filing of legal
documents, the calendaring of events, and communications regarding scheduling issues, are all
clerical in nature. See Lewallen v. City of Beaumont, No. CIV.A. 1:05-CV-733TH, 2009 WL
2175637, at *6 (E.D. Tex. July 20, 2009), aff’d, 394 Fed. Appx. 38 (5th Cir. 2010) (citation
omitted) (finding that basic communications and case organization are “largely clerical or
housekeeping matters and not legal work”).
Exhibit F attached to Defendants’ response lists seventy-five billing entries Defendants
allege to be all clerical and should be excluded. The alleged clerical work consists almost entirely
of work performed by current and former Fisch Sigler legal assistants, Matthew Hesser and Maggie
Dombrowsky, who all billed at a lower standard hourly rate of $200 (Dkt. #416, Exhibit F).
However, “[p]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless
of who performs them. Instead, paralegal fees can be recovered only to the extent that the paralegal
10
performs work traditionally done by an attorney.” Lewallen, 2009 WL 2175637, at *6 (internal
quotations and citations omitted). Some examples of such work are from entries on October 8,
2015, when legal assistant Matthew Hesser billed 0.50 hours to “File[d] Docket No. 141 Sealed
Reply in Support of Motion for Summary Judgment of No Equitable Estoppel” and billed 1.75
hours to “Correspond[] with Clerk of Court in ED Texas, Sherman Division to unlock Jury Trial
transcripts for Imperium v. Samsung trial prep and downloading unlocked trial transcripts” (Dkt.
#416 Exhibit F, Entry Nos. 3623, 3625). On October 9, 2015, he also billed 1.50 hours to “Compile
and Print deposition binder for Neirkirk deposition” (Dkt. #416, Exhibit F, Entry No. 3628).
The Court finds that such work included on Exhibit F is “largely clerical or housekeeping
matters and not legal work.” Speaks v. Kruse, No. 04–1952, 2006 WL 3388480, at *19–20 (E.D.
La. Nov. 20, 2006). Fees will not be awarded for such work. Only four billing entries listed on
Exhibit F are from attorneys, and the Court finds the designations of specific billed tasks were
legal tasks rather than clerical. (Dkt. #416, Exhibit F, Entry Nos. 1504, 1579, 2462, 3378).
Therefore, the Court will subtract the amount billed for clerical work from each legal assistant
listed in Exhibit F when calculating the reasonable attorneys’ fees. The fees should be reduced by
$29,595.00 ($33,965.00 - $1,852.50 - $2,090.00 - $237.50 - $190.00).
Finally, Defendants argue that “many entries are so vague it is nearly impossible to
determine whether the billed time was unproductive, excessive, or redundant.” (Dkt. #416 at p 4).
The Court disagrees in part. Upon a review of Alan Fisch’s affidavit, he details certain time that
was written off as unproductive, excessive, or redundant. The time he excluded includes travel
time, as well as certain administrative time devoted solely to the firm’s management of case files,
documents, and the like. Imperium also excludes “local counsel fees incurred in the action that
[Defendants] filed against Imperium in mid-November 2015 in the United States District Court
11
for the District of Delaware and attorneys’ fees for co-counsel in [Defendants’] inter partes
reviews of the patents-in-suit at the United States Patent & Trademark Office.” (Dkt. #406 at ¶ 5).
Imperium also
cut and excluded time recorded by my firm’s attorneys and legal assistants devoted
to (a) preparing for and defending the related Delaware action, (b) related work on
Samsung’s inter partes reviews and the associated appeals of certain of the Patent
Office’s decisions in those proceedings, (c) related work on the ex parte reexamination of the ’884 patent, and (d) litigating Imperium’s related claims against
Samsung Techwin.
(Dkt. #406 at ¶ 5). In total, Imperium removed 1,537.5 hours of time and $788,170.83 for these
categories. The bills submitted by Imperium identify the reductions and adjustments made to each
bill, and are sufficient to show the adjustments were based on work that was unproductive,
excessive, or redundant. As such, the adjustments, on their own, show that Imperium exercised
billing judgment. Accordingly, the Court declines to further reduce the number of hours billed by
Imperium based on billing judgment.
iii.
Block Billing
Defendants also challenge the billing statements because the statements include block
billing, which Defendants assert is insufficient to support Imperium’s claim for attorneys’ fees.
Imperium responds that block billing does not automatically result in a reduction “where, as here,
[the entries] are adequate to determine the reasonableness of the time billed.” (Dkt. #417 at p. 5).
Block billing is the practice of including “the total daily time spent working on a case,
rather than itemizing the time expended on specific tasks.” Fralick v. Plumbers & Pipefitters Nat’l
Pension Fund, No. 3:09-CV-0752-D, 2011 WL 487754, at *4 (N.D. Tex. Feb. 11, 2011) (quoting
Glass v. United States, 335 F. Supp. 2d 736, 739 (N.D. Tex. 2004)). The underlying concern with
block billing is that the information provided will be so general that it will not be sufficient
documentation to determine if the number of hours billed by counsel is reasonable. See Permian
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Power Tong, Inc. v. Diamondback E&P, LLC, No. 12-16-92-CV, 2017 WL 2588158, at *14
(Tex. App.—Tyler May 31, 2017) judgment set aside on other grounds, opinion not vacated sub
nom., 2017 WL 2824311 (Tex. App.—Tyler June 30, 2017); Humphrey v. United Way of Tex. Gulf
Coast, 802 F. Supp. 2d 847, 864 (S.D. Tex. 2011). “If the applicant’s documentation of the hours
claimed is vague or incomplete, the district court may reduce or eliminate those hours.” League
of United Latin Am. Citizens # 4552 v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1233
(5th Cir. 1997) (quotations and citations omitted).
Upon review of the bills submitted to the Court, the Court finds that Imperium did not
engage in block billing. Imperium itemized tasks and itemized time on a per-task basis. Here, the
entries did not “lump together tasks in such a way that it is impossible to tell whether, for any
particular task, the number of hours spent and claimed were reasonable.” Fralick, 2011 WL
487754, at *5.
B. Hourly Rate
Imperium asserts that the reasonable hourly rates for its counsel are as follows:
Hourly Rates
Alan Fisch
R. William Sigler
John T. Battaglia
Jeffrey Saltman
$650
Silvia Jordan
Desmond Jui
Sruli Yellin
Richard Zhang
David Saunders
Peter Scoolidge
Jennifer Robinson
Patrick Lee
Michelle Chatelain
Matthew Hesser
Maggie Dombrowsky
Alex DeGiulio
2013
$900
$680
$680
2014
$950
$713
$713
-
$530
$430
$430
$430
-
2015
$1,000
$750
$750
-
$561
$450
$450
$450
$450
$315
$190
$190
13
2016
$1,050
$790
$790
$590
$590
$475
$475
$330
$475
$475
$475
$330
$200
$200
$200
2017
$1,100
$830
$830
$620
$620
$500
$500
$350
$500
$210
-
$650
$525
$525
$370
$525
$220
-
(Dkt. #406). Defendants do not contest the reasonableness of these rates. “Because the rates are
not contested, they are considered prima facie reasonable.” Black Heritage Soc. v. City of Houston,
No. CIVA H-07-0052, 2008 WL 2769790, at *7 (S.D. Tex. July 11, 2008) (citing Islamic Center
of Miss., Inc. v. City of Starkville, Miss., 876 F.2d 465, 469 (5th Cir.1989)).
C. The Johnson Factors
Many of the lodestar factors are usually “subsumed within the initial calculation of
reasonably expended hours at a reasonable hourly rate.” Hensley v.. Eckerhart, 461 U.S. 424, 435
n. 9, 103 S.Ct. 1933, 1940 n. 9, 76 L.Ed.2d 40 (1983). The lodestar is presumptively reasonable
and should be modified only in exceptional cases.
Watkins v. Fordice, 7 F.3d 453, 457
(5th Cir. 1993).
“After determining the lodestar amount, the district court may adjust the lodestar up or
down in accordance with the relevant Johnson factors not already included in the lodestar.” Shipes,
987 F.2d at 320. The Court must be careful when applying the Johnson factors to make sure “not
to double count a Johnson factor already considered in calculating the lodestar when it determines
the necessary adjustments.” Id. “Four of the Johnson factors—the novelty and complexity of the
issues, the special skill and experience of counsel, the quality of representation, and the results
obtained from the litigation—are presumably fully reflected in the lodestar amount.” Id. If a factor
is presumably considered in the lodestar amount, the Court may still make an adjustment based on
that factor; however, only “in certain rare and exceptional cases supported by both specific
evidence on the record and detailed findings.” Id.
Here, the Court has already accounted for the apportionment of the successful claims, block
billing and billing judgment as part of the lodestar amount and the parties do not argue that any of
the other Johnson factors require the lonestar award should be adjusted in either direction. Still,
14
the Court has considered them on its own and all of the Johnson factors are presumably reflected
in the lodestar amount. There are no exceptional circumstances permitting the Court to adjust the
amount. As such, the Court will not further reduce the award based on the Johnson factors.
D. Calculation
Imperium seeks $7,110,290.77 in attorneys’ fees for 13,178.6 hours. In accordance with
this order, Imperium’s attorneys’ fee award calculates as follows:
.
Imperium’s Initial Request: $7,110,290.77
Clerical Reduction: ($29,595.00)
Total Attorneys’ Fee Award:
$7,110,290.77
($29,595.00)
$7,080,695.77
CONCLUSION
It is therefore ORDERED that Imperium’s Motion for Attorneys’ Fees (Dkt. #363) is
hereby GRANTED. Plaintiff is awarded $7,080,695.77 in attorneys’ fees.
SIGNED this 3rd day of April, 2018.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
15
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