We would like to thank the National Association of Legal Fee Analysis (NALFA) blog for providing us with information to blog on breaking developments in the attorney’s fees area.
SHIELD Act Introduced in House of Representatives to Discourage Patent Troll Litigation.
As it stands now, attorney’s fees can be awarded in patent infringement litigation if “exceptional circumstances” are demonstrated under 35 U.S.C. § 285, with the fee shifting being two ways–both to plaintiffs and defendants making the requisite showing. Now, Congressman Peter Defazio has introduced H.R. 6245–known as the “Saving High-Tech Innovators Egregious Legal Dispute Act of 2012” (SHIELD Act)–to permit only successful defendants (not plaintiffs) accused of infringing computer patents to recover fees if the action “did not have a reasonable likelihood of succeeding.” The stated purpose of the legislation is to reduce the amount of patent litigation by “patent trolls.”
Fifth Circuit Clarifies Fee Enhancement Law in the Bankruptcy Arena.
The Fifth Circuit Court of Appeals in CRG Partners Group LLC v. Neary, No. 11-10774 (5th Cir. Aug. 10, 2012) has held that Perdue v. Kenny A., 130 S.Ct. 1662 (2010) did not curtail the authority of district judges to award fee enhancements, upwards or downwards, in the bankruptcy arena. However, it did rule that upward adjustments are only permissible in rare and exceptional circumstances where outstanding results occurred and the bankruptcy court made specific findings from specific evidence to that effect.
D.C. Court of Appeal Applies Federal FOIA Test to Determine If Successful Party Under D.C.’s FOIA Statute Entitled to Fees.
Fraternal Order of Police v. District of Columbia, No. 11-CV-545 (D.C. Ct. App. Aug. 23, 2012) decided the criteria to be used by courts in awarding fees to prevailing parties in a suit brought under D.C.’s Freedom of Information Act (FOIA), not the federal statute. The appellate court determined that federal FOIA factors should apply to fee recovery under D.C.’s FOIA statute. After deciding that the state statute like the federal one does not provide for automatic entitlement to fees, Fraternal Order of Police adopted the four-factor federal test for fee recovery set forth in Tax Analysts v. U.S. Dept. of Justice, 965 F.2d 1092, 1093 (D.C. Cir. 1992), namely, (1) the public benefit derived from the case, (2) the commercial benefit to plaintiff, (3) the nature of plaintiff’s interest in the records, and (4) the reasonableness of the agency’s withholding. (BLOG OBSERVATION–It remains to be seen if California practitioners attempt to persuade state courts to adopt this test in California Public Records Act cases.)