Consulting Attorney Providing Most of the Work Needed Pro Hac Vice Admission For Purposes of Obtaining Fees Under Federal Fee-Shifting Statute.
U.S. District Judge Eduardo Robreno, in Gsell v. Rubin and Yates, Case No. 13-05723 (E.D. Pa. Sept. 4, 2014), denied attorney’s fees to a “consulting” attorney doing most of the work in an Eastern District of Pennsylvania case which resulted in a default judgment for his plaintiff client. (The case was subject to a fee-shifting statute under the Fair Debt Collection Practices Act.) The district court denied fee recovery, determining that pro hac vice admission was required when the “consulting” attorney did any significant substantive work—which happened to be the case.
California Law—The answer depends on the amount of work done. If the “consulting” attorney does minimal work (such as pleading review) or acts only as a true consultant, fees likely will be awarded. However, significant work probably would lead to the same result reached in Gsell. (See, e.g., Winterrowd v. Am. Gen Annuity Ins., 556 F.3d 815, 823-824 (9th Cir. 2009); Krapf v. Nationwide Credit Ins., 2010 WL 4261444 at *2-3 (C.D. Cal. Oct. 21, 2010).)
Two Recent U.S. Supreme Court Decisions Cause Federal Circuit to Remand Fee Award in Patent Infringement Case.
Allcare Health Management System, Inc. was earlier ordered by a district court to pay to Highmark, Inc. $4.7 million in attorney’s fees under the federal patent “exceptional” fee-shifting statutory language after Allcare was unsuccessful in a patent infringement suit. However, SCOTUS recently decided two decisions clarifying the standards for determining and reviewing “exceptional” fee awards. (See Highmark, 134 S. Ct. 1744, 1747-1748 (2014); Octane, 134 S. Ct. 1749, 1756-1756, 1758 (2014), both discussed in our May 8, 2014 post.) In light of Octane, the Federal Circuit in Highmark, Inc. v. Allcare Health Mgt. System, Inc., No. 2011-1219 (Fed. Cir. Sept. 5, 2014) (nonprecedential/per curiam) remanded for a revisiting of the fee award, although one aspect of the award stood intact given that the district judge used a stricter approach than countenanced under the two SCOTUS decisions.