$5.5 Million Fee Award Affirmed on Appeal.
In our June 7, 2009 post, we talked about a judgment that E*Trade had obtained against Deutsche Bank AG for around $17.5 million in damages. At that time, a hefty request was anticipated to be filed by E*Trade in an effort to recoup its attorney’s fees for prevailing in the litigation.
Well, we have the late breaking news on what happened.
On February 5, 2010, U.S. District Judge Sweet of the U.S. District Court for the Southern District of New York awarded E*Trade a total of $5,529,291.23 in fees, expert expenses, direct billed expenses, and out-of-pocket expenses. He found entitlement based on an indemnity clause which, unlike just a third party-oriented clause, allowed for recovery of fees by the winning party. (E*Trade Financial Corp. v. Deutsche Bank AG, 2010 WL 423111 (S.D.N.Y. Feb. 5, 2010); see also our category “Indemnity” for California law governing fee shifting in the indemnity clause context.)
You know that Deutsche Bank appealed.
Recently, on March 30, 2010, the Second Circuit Court of Appeals came down with its decision, affirming both the merits and fee judgments in favor of E*Trade. It read the indemnity clause, also, as allowing for fee entitlement by E*Trade. (E*Trade Financial Corp. v. Deutsche Bank AG, 2010 WL 1196814 (2d Cir. Mar. 30, 2010).)
We note that Judge Sweet (born 1922) must be rather busy this year. On March 29, in Association for Molecular Pathology and ACLU v. USPTO and Myriad Genetics, Judge Sweet ruled that a patent on genes linked to breast cancer was invalid because the genes do not constitute patentable subject matter. His decision was 156 pages long. Sweet!