United States District Court, D. Columbia
September 30, 2005.
HAKAN LANS, Plaintiff,
GATEWAY 2000, INC. Defendant. UNIBOARD AKTIEBOLAG Plaintiff, v. ACER AMERICA CORP. et al. Defendants.
The opinion of the court was delivered by: JOHN PENN, Senior District Judge
This matter is before the Court pursuant to Gateway 2000,
Inc.'s Petition For Attorney's Fees And Supporting Memorandum
[#s 131, 118]. Gateway 2000, Inc. is seeking attorneys fees and
costs, including pre-judgment and post-judgment interest. As
explained more fully below, the Court concludes that Gateway
should be awarded a specified amount in attorneys fees, costs,
and pre-judgment and post-judgment interest, with various
On September 6, 2001, the Court granted Gateway 2000, Inc.'s
("Gateway") Motion for Attorneys Fees against Hakan Lans ("Lans") and Uniboard
Aktiebolag ("Uniboard").*fn1 Gateway subsequently filed it's
fee petition against Lans and Uniboard ("Plaintiffs") on November
29, 2001. However, on January 14, 2002, Plaintiffs filed a Motion
for Reconsideration of the September 6, 2001 order. The Court
denied plaintiffs' motion on June 23, 2005; after which Gateway
filed a supplemental petition for fees, costs, and pre-judgment
and post-judgment interest.
In Gateway's first petition ("Petition I"), Gateway requests
$932,376.54 in attorneys fees, $35,661.72 in expenses, plus
pre-judgment and post-judgment interest. Gateway's supplemental
petition ("Petition II") requests $175,266.98 in attorneys fees,
$9,266.21 in expenses, and post-judgment interest.
I. Standard for Determining Attorney Fee Awards
When assessing whether an attorney fee request is reasonable,
the court must multiply the number of hours expended on the
litigation by a reasonable hourly rate. Bolden v. J & R, Inc.,
135 F.Supp.2d 177, 179 (D.D.C. 2001), citing Hensley v.
Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 (1983). An
attorney's billing rate is presumed reasonable if it is "in line
with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and
reputation." Cumberland Mountains, Inc. v. Hodel,
273 U.S.App.D.C. 78, 80-81, 857 F.2d 1516, 1518-19 (1988).
The fee applicant bears the burden of establishing entitlement
to an award, and documenting the appropriate hours expended and the hourly rates.
Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. The documentation
must be sufficient in detail and probative value to allow the
court to determine, with a high degree of certainty, that such
hours were actually and reasonably expended. Role Models America
v. Brownlee, 359 U.S.App.D.C. 237, 353 F.3d 962, 970 (2004).
"Where the documentation of hours is inadequate, the district
court may reduce the award accordingly." Hensley,
461 U.S. at 433, 103 S.Ct. at 1939. Hence, counsel for the prevailing party
should make a good faith effort to exclude hours that are
excessive, redundant, or unnecessary. Id. at 434, 1939.
II. Gateway's Petitions
A. Reasonableness of Hourly Rates
Plaintiffs claim that the hourly rates in Petitions I and II
are unreasonable and not properly supported. They argue that the
rates of Gateway's counsel are significantly above the rates
specified in the American Intellectual Property Law Association
("AIPLA") surveys for the relevant billing years, and therefore
the fee petitions should be reduced by at least 35 percent. See
Pls.' Opp. at 8-9; See also Pls.' Opp. To Suppl. at 5-7. In
support of Petition I, Gateway submitted a declaration from it's
lead counsel stating that the rates charged in the Lans/Uniboard
litigation are commensurate with the rates charged by the firm in
other complex patent litigation. See Cullum Decl. at ¶ 21.
Gateway also submitted a declaration from a partner at a
Washington, D.C. based law firm stating that the fees charged by
Gateway's counsel are reasonable for the Washington, D.C. area.
See Berger Decl. Nonetheless, the AIPLA surveys show that the
rates of some of Gateway's counsel are well above the 75th
percentile for attorneys of comparable experience. See Pls.'
Opp. at 9, Ex.1; See also Pls.' Opp. To Suppl. at 5-7, Ex. I.
Courts look to the AIPLA survey because it takes into account the practice area
and experience of the attorney. See Mathis v. Spears,
857 F.2d 749, 757 (Fed. Cir. 1988). Accordingly, Gateway's attorney
fees shall be reduced by 10 percent in both Petitions.
B. Vague Entries
Plaintiffs claim that some of the time entries in Petitions I
and II contain descriptions that are improperly vague. See
Pls.' Opp. at 4; See also Pls.' Opp. To Suppl. at 4. Petition
I includes such vague entries as "telephone conference," and
"review documents." Id. This circuit has held that such
"generic time entries are inadequate to meet a fee applicant's
`heavy obligation to present well-documented claims.'" Role
Models, 353 F.3d at 971, quoting Kennecott Corp. v. EPA,
256 U.S.App.D.C. 218, 222, 804 F.2d 763, 767 (1986). Accordingly,
Petition I shall be reduced by $86,974.50.*fn2 Upon review
of Petition II, however, the Court does not find any entries
sufficiently vague to warrant a reduction.
C. Unrelated Matters
Plaintiffs claim that Petition I includes time billed for work
performed in connection with other litigation.*fn3 Gateway
argues that it's counsel's factual investigation of other
litigation involving the patent-in-suit was the for the purpose
of formulating strategy. See Gateway's Reply Supp. Pet. I. at
6. Upon review of the entries, the Court agrees with Gateway and
will not take any deductions on this basis. Plaintiffs claim that Petition II includes fees for work
related to the malpractice action.*fn4 Petition II contains
various related entries such as "research posture of malpractice
suit." Since the malpractice case is a separate action before
this Court, Petition II should be reduced by $464. See Pls.'
Opp to Suppl. at 5.
D. Unjustified Time Entries
Plaintiffs claim that Petition I includes entries for time
spent reviewing dockets, and filing and preparing indexes. The
Supreme Court has held that "purely clerical or secretarial tasks
should not be billed at a paralegal rate regardless of who
performs them." Missouri v. Jenkins, 491 U.S. 274, 288 n. 10,
109 S.Ct. 2463, 2472 n. 10 (1989). Hence, entries for time spent
preparing indexes, organizing files, and reviewing dockets should
be excluded. Accordingly, Petition I should be reduced by
E. Inefficient & Excessive Billing
Plaintiffs argue that Gateway's timekeeping in Petition I was
inefficient where one senior attorney completed the majority of
the work on the litigation, and billed at a premium rate. See
Gateway's Reply Suppl. Pet. I. at 8. Gateway argues that the use
of one senior attorney was actually cost effective in that it
prevented additional attorneys from billing unnecessary hours in
order to familiarize themselves with the case. The Court agrees
with Gateway and will not reduce Petition I on this basis. Plaintiffs also argue that Petition I is replete with excessive
billing. Plaintiffs refer to extensive teleconferences,
conversations, and meetings between counsel. See Pls.' Opp. at
7-8. They also reference the time entries of an associate who
spent 30 hours on a meet and confer letter. Id. Gateway
counters that the various meetings and teleconferences were with
co-defendant counsel, and minimized costs by allowing Gateway to
file many documents jointly. See Gateway's Reply Supp. Pet. I.
at 9-10. They also argue that the excessive billing for the meet
and confer statement was necessitated by Lans' refusal to provide
patent assignments. See Mooreland Decl. at ¶ 6. Upon review of
the petition, the Court does not find any reason for a
F. Appeals Issues
Plaintiffs argue that Gateway is not entitled to fees incurred
as a result of plaintiffs' appeals. They claim that the appeals
were not frivolous, and therefore the fees incurred by Gateway in
defending against those appeals must be excluded. See Pls.'
Opp. at 9. However, the Federal Circuit has held that
35 U.S.C. § 285 is "applicable to cases in which the appeal itself is
exceptional." Rohm & Haas Co. v. Crystal Chemical Co.,
736 F.2d 688, 692 (Fed. Cir. 1984). This Court has already found the
above-captioned cases to be exceptional under Section 285, and
the appeals at issue resulted from those cases.*fn7 Hence,
Gateway is entitled to fees incurred as a result of those
G. Non-Taxable Expenses In Petition I, plaintiffs argue that Gateway is not entitled to
non-taxable expenses because 35 U.S.C. § 285 does not require an
award for costs.*fn8 However, the Federal Circuit interprets
attorney fees under 35 U.S.C. § 285 to include "those sums that
the prevailing party incurs in the preparation for and
performance of legal services related to the suit." Mathis,
857 F.2d at 757, quoting Central Soya Co. v. Geo. A. Hormel &
Co., 723 F.2d 1573, 1578 (Fed. Cir. 1983). Moreover, in
exceptional cases, "it would be inconsistent with intent of
Section 285 to limit the prevailing-party to something less than
fees and expenses." Id. at 758. Hence, Gateway is entitled to
reimbursement for expenses.
H. Pre-Judgment Interest
A district court has authority "in cases of `bad faith or other
exceptional circumstances' to award prejudgment interest on the
unliquidated sum of an award made under [35 U.S.C. § 285]."
Mathis, 857 F.2d at 761. In it's September 6, 2001 opinion,
this Court found that the above-captioned cases were
"exceptional" as required for an award of attorneys fees pursuant
to 35 U.S.C. § 285. See September 6, 2001 Mem. Op. at 11, 19.
Accordingly, Gateway is entitled to pre-judgment interest on it's
attorney fee award.
I. Post-Judgement Interest
In Petition II, plaintiffs contend that Gateway is not entitled
to post-judgment interest until the Court quantifies an
appropriate award. The Federal Circuit has held that interest on
an attorney fee award "runs from the date of the judgment
establishing the right of the award, not the date of the judgment
establishing its quantum." Mathis, 857 F.2d at 760. Moreover,
the Supreme Court has held that "the purpose of post-judgment
interest is to compensate the successful plaintiff . . . for the loss from the time between
ascertainment of the damage and the payment by defendant."
Kaiser Aluminum & Chem Corp. v. Bonjorno, 494 U.S. 827, 835-36,
110 S.Ct. 1570, 1576 (1990). Accordingly, Gateway is entitled to
post-judgment interest beginning from September 6, 2001.
For the foregoing reasons, Gateway shall be awarded $836,220.84
in attorneys fees minus a 10 percent reduction, $35,661.72 in
expenses, and pre-judgment and post-judgment interest for fees
requested in Petition I. With respect to Petition II, Gateway
shall be awarded $174,802.98 in attorneys fees minus a 10 percent
reduction, $9,266.21 in expenses, plus post-judgment interest. An
appropriate order accompanies this Memorandum Opinion.
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