No, this is not a lead-in to a light bulb joke. It’s an introduction to an Alexandria federal judge’s review of a fee award in a case that may have been overlawyered.
If you want to know how many lawyers should attend a summary judgment hearing, eight probably is too many, according to the Feb. 14 decision in BMG Rights Mgmt. v. Cox Communications Inc.
To be sure, the plaintiff’s lawyers earned a hefty fee for the $25 million award they won in music company BMG’s copyright infringement suit against Cox. BMG alleged that internet service provider Cox was lax in penalizing its subscribers who illegally downloaded copyrighted music files.
The complexity of the litigation, culminating in a two-week trial, justified application of the Vienna Metro matrix for hourly rates topping $800 for the winning lawyers, according to Judge Liam O’Grady’s opinion. In fact, the Vienna Metro matrix originally was developed by Cox’s own lawyer, Craig C. Reilly, O’Grady said.
Fenwick & West LLP joined Reilly in representing Cox, while Steptoe & Johnson LLP and local counsel Hausfeld LLP represented the plaintiffs.
Entitled to a fee award under federal copyright law, BMG asked for $10,479,335 in fees.
O’Grady reduced the fee award by 20 percent. The court noted the plaintiffs already had knocked their fees down by $1 million. O’Grady then made a 10 percent reduction based on degree of success, and another 10 percent deduction for “block billing, vague entries and duplicative work.”
The judge went into some detail on duplicative efforts by counsel.
O’Grady understood that “large law firms are often hired to cinch every belt, tighten every suspender and scrutinize every Bluebook citation. But while this may be expected in the context of large law firms, it is not necessarily ‘reasonable’ in the legal sense, and oftentimes a more focused expenditure of hours from fewer attorneys could have achieved the same task with the same results.”
Most telling in the BMG case was the fact that 13 attorneys worked on the case, with each lawyer billing between 400 and 2,200 hours. This included five partners, three of counsel and five associates.
“Even the process of keeping 13 attorneys apprised of case developments has a level of transactions costs that cannot be easily measured,” O’Grady said. Meetings of whole teams of attorneys preparing for trial could easily rack up fees of $7,000 to $15,000, the judge said.
And BMG did not show or tell why it needed eight attorneys at the summary judgment hearing on Oct. 30, 2016.
There might be circumstances in which a specific lawyer is needed to assist with an argument, or hearing the argument can help the lawyers decide how to proceed later with the case, O’Grady allowed.
“But this principle does not extend to every member of a trial team, and BMG has not offered any explanation for why this day of billing was reasonable,” the court concluded.
The court signed off on a fee award of $8,383,468.