What’s A Reasonable Hourly Rate For A Copyright Litigator? Hint: Not $595/Hour According To Judge Boyle

On January 14, 2016, Judge Boyle issued an Order (available here) in Spear Marketing v.  BancorpSouth Bank ruling on the prevailing defendants’ requests for attorney’s fees. The Court found that the defendants were entitled to attorney’s fees under the Texas Theft Liability Act or, alternatively, the Copyright Act. However, Judge Boyle refused to award the defendants the amounts they requested.

More specifically, Defendant Argo sought $1,190,255 in attorney’s fees, and Defendant BancorpSouth sought $711,422.74.

Argo’s requested (2015) rates ranged from $595/hour for its senior principal partner to $261/hour for its (apparently, most junior) associate. Argo requested $261/hour for its paralegals’ time.  Judge Boyle found that Argo’s requested rates were not reasonable:

[T]he Court finds that [Argo’s firm’s] hourly fees charged are unreasonably inflated. Other district courts in the Northern District of Texas have found reasonable hourly rates for copyright litigation attorneys of comparable skill, experience, and reputation to range from $100 to $400 dollars. . . . Generally, fee awards for rates above $500 per hour are reserved for specialized tasks in complex cases that few attorneys are capable of handling. As for paralegals, reasonable rates range between $60 and $125 per hour.

(citations and quotations omitted).

The Court decided to “adhere to a general rate of $150 to $400 per hour for attorneys and $100 per hour for paralegals”, selected a “general rate” of $300/hour for partners (with the exception of $400/hour for Argo’s senior principal partner), $200/hour for associates, and $100/hour for paralegals. Applying these rates to the number of recoverable hours resulted in an award to Argo of $604,715—about half of what it had requested.

Defendant BancorpSouth’s firm “provided a twenty-percent discount to their standard rates lowering their rates to the range ‘from $200.00 to $228.00 for paralegals, $212.00 to $296.00 for associate attorneys, $476.00 to $532 for partners, and $748 for senior partners[.]” The Court again found that the hourly rates were not reasonable, and that the time spent on the case by Defendant BancorpSouth’s firm was “slightly excessive” resulting in a 20% reduction in the hours billed by the firm to be used when calculating the fee award. For Defendant BancorpSouth’s firm’s rates, “the court select[ed] a general rate of $250 per hour for partners, $150 per hour for associates, and $100 per hour for paralegals and legal assistants.” These rates were lower than the allowable amounts for Defendant Argo’s firm because Defendant BancorpSouth’s firm “did not act as lead counsel in this matter.” The Court ultimately awarded Defendant BancorpSouth $325,106 in attorney’s fees—again, approximately half of what it had requested.

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Judge McBryde Tosses Purported Class Action Against Texas Wesleyan and Texas A&M

On January 14, 2016, Judge McBryde entered an Order (available here) that dismissed the first amended complaint filed by plaintiffs in a purported class action lawsuit against Texas Wesleyan and Texas A&M. Plaintiffs, graduates of Texas Wesleyan School of Law, graduated from law school prior to Texas A&M purchasing the assets of Texas Wesleyan School of Law from Texas Wesleyan in 2013.

“Plaintiffs allege that after A&M acquired the assets of TWU Law and began the operation of Texas A&M University School of Law, the A&M Defendants refused to recognize them as A&M Law graduates.” Apparently, the plaintiffs wanted to be able to list themselves as Texas A&M law graduates and have Texas A&M issue them new diplomas—i.e., “[a]t best, plaintiffs wish that Wesleyan Defendants had done something to assure that A&M would acknowledge them as graduates.”

Judge McBryde found that the first amended complaint failed to state a claim, and rejected all of the plaintiffs’ claims.

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Federal Civil Practice Seminar To Be Held On January 20, 2016 at the Belo

The 30th Annual Federal Civil Practice Seminar (“What Every Lawyer Should Know Before Entering Federal Court”) will be held this Wednesday, January 20, 2016, at the Belo. It should be a great event. The keynote speaker is Judge Kenneth Starr, and the Presenters/Panelists will be Judge Douglas Lang; Judge Scott Brister; Hon. William Royal Furgeson, Jr.; Prof. Fred Moss; Derek Dickinson (AT&T); Jennifer Wells (Ericsson); and Brian Jobe (ARGO Data). The event will provide 5 hours of CLE credit (including 2 hours of ethics). More information can be found here.

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Northern District Implements Two Modifications Affecting The Electronic Record on Appeal

The Clerk of the Northern District of Texas recently announced that, “[u]nder the direction of the Fifth Circuit Court of Appeals, the Northern District of Texas has implemented two key modifications that will impact the electronic record on appeal.”

Specifically, with respect to hearing/trial exhibits:

The Fifth Circuit requires the electronic record on appeal to include all exhibits that were admitted into evidence in a trial or other proceeding. ECF users must transmit copies of their proffered exhibits that were admitted into evidence in the district court case through ECF within 14 days of the date the notice of appeal was filed. A specific ECF docket event has been created for exhibits that are not sealed, and instructions for uploading both public and sealed exhibits into the district court case can be found here: http://www.txnd.uscourts.gov/exhibit-guide.

With respect to accessing the record on appeal:

After the district court notifies the parties that the electronic record on appeal has been certified, attorneys will be able to access a copy of the paginated record on appeal through the Fifth Circuit’s ECF system rather than on a disk provided by the district clerk. The record will contain only the public documents, and, if the appeal is of a criminal judgment, the presentence investigation report and related materials. The district court may only release sealed portions of the paginated record upon order of the Fifth Circuit.

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Judge Godbey Rejects Texas’ Temporary Restraining Order Application Seeking To Prohibit Syrian Refugees From Being Settled In Texas

Yesterday, Judge Godbey issued an Order (available here) that rejected Texas’ application for a temporary restraining order that sought to enjoin the United States government from resettling Syrian refugees due to arrive in Texas. The application was premised on the federal government’s alleged failure to consult and cooperate with Texas. Judge Godbey, focusing on the immediate injury prong of the temporary restraining order inquiry, stated:

[Texas] argues that terrorists could have infiltrated the Syrian refugees and could commit acts of terrorism in Texas. The Court finds that the evidence before it is largely speculative hearsay. The Commission has failed to show by competent evidence that any terrorists actually have infiltrated the refugee program, much less that these particular refugees are terrorists intent on causing harm. . . . [O]n the record before the Court, the Court finds that the Commission has failed to establish by a preponderance of the admissible evidence that there is a substantial threat of irreparable injury, and therefore denies the application for TRO.

 

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Facebook’s Mark Zuckerberg Ordered To Sit For Deposition in Zenimax Case

On December 7, 2015, Magistrate Judge Stickney issued an Order (available here) resolving Facebook’s motion for a protective order, which sought to preclude Plaintiffs from deposing Facebook’s CEO, Mark Zuckerberg. Judge Stickney ultimately ruled that the plaintiffs could depose Zuckerberg after other depositions concluded. Judge Stickney allowed the deposition because “[g]iven Mr. Zuckerberg’s active participation in Facebook’s acquisition of Oculus, he has unique knowledge, as Facebook’s Founder, Chairman, and CEO, regarding his own decision to acquire Oculus and his valuation of Oculus based on his testing of the Rift headset which ZeniMax alleges includes misappropriated ZeniMax technology.”

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Magistrate Judge Tolliver Issues Order Denying Discovery Extension and Motion to Compel Based on Defendants’ Delay

On December 4, 2015, Magistrate Judge Toliver issued an Order (available here) in the S-Line v. B2B Supply case. Defendants sought an extension of time to complete discovery and also an order compelling plaintiff to respond to discovery. The case serves as a good example as to why a litigant should serve discovery and file any motions to compel in a diligent manner. Here, Defendants (i) served their first set of interrogatories “a mere 30 days before the discovery deadline, leaving no time in the discovery period should a motion to compel become necessary,” (ii) scheduled depositions for the last three days of the discovery period, “leaving no room for timely objection”, and (iii) filed their motion four days after the discovery deadline after waiting more than ten months to seek the Court’s resolution of issues with Plaintiff’s responses and objections to Defendants’ requests for production. Based largely on this delay, the Court rejected Defendants’ requested relief.

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33 New Patent Cases

Here’s a list of new patent cases filed in the Northern District of Texas recently:

  • Advanced Media Networks v. AT&T (complaint available here)
  • Varidesk LLC v. Brunswick Corp. (complaint available here)
  • Texas LFP v. CiES (complaint available here)
  • High Quality Printing v. Printograph & Safeguard Business Systems (complaints available here and here)
  • Jack Henry & Associates v. Plano Encryption Technologies (complaint available here)
  • Galderma v. Teligent (complaint available here)
  • Zix v. DataMotion (complaint available here)
  • Icon Laser Solutions v.
    • Abercrombie & Fitch (complaint available here)
    • American Eagle (complaint available here)
    • Aeropostale (complaint available here)
    • Diesel (complaint available here)
    • Guess? (complaint available here)
    • PVH Corp. (complaint available here)
    • Express Fashion Operations (complaint available here)
    • Iconix Brand (complaint available here)
    • Kohl’s (complaint available here)
    • Lucky Brand Dungarees (complaint available here)
    • Ann Inc.  (complaint available here)
    • Wal-Mart Stores (complaint available here)
    • The Buckle (complaint available here)
    • Pacific Sunware (complaint available here)
    • Citizens of Humanity (complaint available here)
    • H&M Hennes (complaint available here)
    • Tommy Bahama Group (complaint available here)
    • Hudson Clothing (complaint available here)
    • Macy’s (complaint available here)
    • NYDJ Apparel (complaint available here)
    • Ralph Lauren (complaint available here)
    • J.C. Penney (complaint available here)
    • True Religion (complaint available here)
    • Koo’s Manufacturing (complaint available here)
    • Nine West (complaint available here)
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Texas Sues Federal Government in Northern District of Texas To Prohibit Re-Settlement of Syrian Refugees

Yesterday, Texas sued the United States (complaint available here) in the Northern District of Texas. The lawsuit notes that, on November 19, 2015, Texas wrote the United States asking that it advise Texas whether it intended to resettle Syrian refugees in Texas and that, “until further notice, [Texas] will refuse to cooperate with the resettlement of any Syrian refugees in Texas.” The United States then advised that it intends to resettle six Syrian refugees in Dallas, Texas on Friday, December 4.

Texas brought suit seeking, among other things, a temporary restraining order and a preliminary injunction enjoining “any and all activities of the Defendants regarding placement of Syrian refugees in Texas unless and until the Defendants have complied with their [] statutory and contractual obligations of consulting with Texas before placement and sharing information and working in close cooperation and advance consultation with [Texas].” The case has been assigned to Judge Godbey.

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Mere Employees of Adverse Parties Must Be Subpoenaed To Sit For Deposition

Magistrate Judge Horan’s decision in Jackson v. Stevens Transp., Inc., 3:14-CV-1416-M, 2015 WL 221087 (N.D. Tex. Jan. 15, 2015), notes the rule that, in general, employees of one’s opponent must be subpoenaed to sit for deposition, absent the opponent’s agreement to produce them voluntarily. Judge Horan wrote:

“A corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45.” Karakis v. Foreva Jens Inc., No. 08–61470, 2009 WL 113456, at *1 (S.D. Fla. Jan.19, 2009) (citing authorities). “A party need not comply with Rule 45 and issue a subpoena if a non-party will consent to having his deposition taken by notice alone.” Morawski v. Farmers Tex. Cty. Mut. Ins. Co., No. 3:14–mc–21–D–BN, 2014 WL 717170, at *1 (N.D. Tex. Feb.25, 2014). “Absent such consent, however, to obtain an order compelling a non-party to appear for a deposition, the party seeking the deposition must not only notice the deposition, but must also properly serve the non-party with a deposition subpoena pursuant to Rule 45.” Id. (internal quotation marks omitted); see also McMahon v. Presidential Airways, Inc., No. 6:05–cv–1002–Orl–28JGG, 2006 WL 5359797, at *1 (M.D. Fla. Jan.18, 2006) (“Although most corporate litigants voluntarily produce subordinate employees, if the corporate party refuses to produce the person, the person must be subpoenaed.”).

In the case at hand, Judge Horan ruled that the relevant individual was not a “managing agent” of the opposing party such that he could not be compelled to sit for a deposition absent a subpoena:

Absent consent for Mr. Spratling to simply be noticed for deposition, which is lacking here, Plaintiff therefore must seek Mr. Spratling’s deposition through a Rule 45 subpoena. Plaintiff’s counsel admits that Plaintiff has not done so, and Plaintiff’s notice to Defendant’s counsel cannot qualify as a valid subpoena where there is no evidence that, among other requirements that Rule 45 imposes, Plaintiff personally served Mr. Spratling with a subpoena or tendered the required witness fees and mileage allowance.

Jackson, 2015 WL 221087, at *5.

I note that it typically costs less than $200 to serve someone with a subpoena (i.e., the required mileage and witness fee, plus the process server’s fee is not terribly expensive). This is presumably far less than it cost the parties to brief the motion-at-issue in Jackson, and attend and argue the Court’s hearing. A couple of things that could have justified the parties’ dispute (I have no idea, of course, what motivated the parties here)—the subpoenaing party thought the witness was a “managing agent” of the party (in which case a subpoena would not be necessary), the witness could not be located so that a subpoena could be served on him, unsettled (or relatively unsettled) law (i.e., whether non-N.D. Tex. case law would be found to control the situation at issue here), parties’ taking stands on principle (regardless of the cost), or the witness being located in a far-flung jurisdiction such that any enforcement proceedings would be relatively expensive (i.e., generally, if a subpoenaed witness is not within the Northern District of Texas, a motion to enforce the subpoena has to be filed in the court where compliance with the subpoena would take place).

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