Sony Electronics, Inc. v. Soundview Technologies, 3:00CV754(JBA).

• Decision Date: 28 September 2005
• Docket Number: No. 3:00CV754(JBA).,3:00CV754(JBA).
• Citation: 389 F.Supp.2d 443
• Parties: SONY ELECTRONICS, INC., et al. v. SOUNDVIEW TECHNOLOGIES, INC.
• Court: U.S. District Court — District of Connecticut

389 F.Supp.2d 443

SONY ELECTRONICS, INC., et al. v. SOUNDVIEW TECHNOLOGIES, INC.

No. 3:00CV754(JBA).

United States District Court, D. Connecticut.

September 28, 2005.

COPYRIGHT MATERIAL OMITTED

Elizabeth A. Gardner, Thomas R. Makin, Kenyon & Kenyon, Richard L. Delucia, Richard S. Gresalfi, Kenyon & Kenyon, Richard M. teuer, Mayer Brown Rowe & Maw LLP, New York City, Gary M. Hoffman, Jorge Kotelanski, Kenneth W. Brothers, Dickstein, Shapiro, Morin & Oshinsky, Washington, DC, Jacqueline D. Bucar, S. Peter Sachner, Timothy P. Jensen, Tyler, Cooper & Alcorn, New Haven, CT, Jaime A. Siegel, Park Ridge, NJ, for Sony Electronics, Inc., et al.

David S. Monastersky, John J. Bogdanski, Howd & Ludorf, Hartford, CT, David M. Mundt, Eugene M. Cummings, Cook, Alex, McFarron, Manzo, Cummings & Mehler, John C. Janka, Paul C. Gibbons, Raymond P. Niro, Robert P. Greenspoon, Niro, Scavone, Haller & Niro, Chicago, IL, John-Henry McKim Steele, Middlefield, CT, Joseph L. Clasen, Robinson & Cole, Stamford, CT, Kenneth A. Votre, Votre & Rini, New Haven, CT, Michael S. Culver, Oliff & Berridge, Alexandria, VA, Richard M. Steuer, Mayer Brown Rowe & Maw LLP, New York City, for Soundview Technologies, Inc.

Ruling Awarding Sharp Electronics Corporation Attorneys Fees

ARTERTON, District Judge.

On July 12, 2005, this Court granted in part the Non-Soundview Parties'¹ Motion for Attorneys Fees [Doc. # 473], awarding attorneys fees pursuant to 28 U.S.C. § 1927. See Ruling on Motion for Attorneys Fees [Doc. # 506], at 23. The Court directed the non-Soundview parties to submit their claim for reasonable fees and costs and supporting documentation within 30 days, with Soundview's response due 21 days thereafter. See id. Subsequent to the Court's ruling, Mitsubishi Digital Electronics America ("Mitsubishi") withdrew its motion for attorneys fees and Mitsubishi and Soundview stipulated to the dismissal of all claims by and against Mitsubishi and Soundview [Doc. # 522]. Additionally, the Consumer Electronics Association ("CEA") and the Electronic Industries Alliance ("EIA") notified the Court that they had reached an agreement with Soundview to dispose of the attorneys fees issue. This ruling will therefore determine the only remaining claim for an award of attorneys fees and costs of Sharp Electronics Corporation ("Sharp").

I. Discussion

The Court's ruling on attorneys fees provided that reasonable fees and costs would be awarded for defending against Soundview's antitrust counterclaim after the ruling of non-infringement issued September 25, 2002, see Sony Elecs. Inc. v. Soundview Techs., Inc., 225 F.Supp.2d 164 (D.Conn.2002).² In the October 16, 2002 conference with the parties, the Court directed the parties to brief the Non-Soundview Parties' motion seeking summary judgment on Soundview's antitrust counterclaim on the representation that the issue was "a simple one" that "there is no antitrust liability without infringement." See Soundview's Response to Sharp's Fee Calculation [Doc. # 523], Ex. D at 24. The Court subsequently granted the Non-Soundview Parties' motion for summary judgment on Soundview's antitrust counterclaims on August 28, 2003. See Sony Elecs. Inc. v. Soundview Techs., Inc., 281 F.Supp.2d 399 (D.Conn.2003).

As a threshold matter, the Court notes that much of Soundview's briefing in response to Sharp's attorneys fees claim amounts to an invitation to this Court to reconsider its previous ruling awarding attorneys fees and costs pursuant to 28 U.S.C. § 1927. Indeed, Soundview begins its response by previewing its anticipated appellate arguments. See Soundview's Response to Sharp's Fee Calculation [Doc. # 523], at 2-3. Similarly, Soundview also asserts that Sharp has not demonstrated that the fees it claims constitute "excess fees caused by Soundview" because Soundview had urged staying briefing on the antitrust claims while the Non-Soundview parties urged proceeding before completion of the appeal of the Court's summary judgment ruling on non-infringement. Id. at 5-6. These arguments miss the mark because, as detailed in the Court's earlier ruling on attorneys fees, Soundview persisted in its claim of a viable antitrust theory even after the Court granted summary judgment to the non-Soundview parties on non-infringement, at which point it should have been obvious that its antitrust claim was frivolous. Given this persistence, the fees and costs borne by Sharp in its defense against Soundview's antitrust claim subsequent to the non-infringement decision constitute "excess costs, expenses and attorneys fees" under 28 U.S.C. § 1927. These fees would have been incurred at some point (whether pre- or post-appeal of the non-infringement decision),³ absent any change in Soundview's position, therefore the timing of when Sharp's fees were incurred does not alter the Court's ruling.

Soundview's argument that the hours billed and fees claimed by Sharp's counsel are excessive for the work performed, see id. at 3-5, 7, is addressed below.

A. Reasonable Billing Rate

The traditional lodestar method for determining reasonable attorneys fees calculates a figure "based upon the number of hours reasonably expended by counsel on the litigation multiplied by a reasonable hourly rate." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997)(citing Blanchard v. Bergeron, 489 U.S. 87, 94, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989)).⁴ "The `lodestar' figure should be in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id. (citation and internal quotation marks omitted). The "prevailing community" used to determine the lodestar figure is typically, with few exceptions, "the district in which the court sits," in this case, the District of Connecticut. See id. (citation and internal quotation marks omitted). "[T]here is ... a strong presumption that the lodestar figure represents a reasonable fee." A.R. ex rel. R.V. v. N.Y. City Dep't of Educ., 407 F.3d 65, 79 (2d Cir.2005) (citations and internal quotation marks omitted).

Sharp submitted the declaration of Robert W. Adams, Esq. in support of its motion for reasonable attorneys fees and costs. See Sharp Electronics Corp.'s Declaration in Support of Motion for Attorneys Fees [Doc. # 515] ("Adams Decl."). The declaration seeks a total of $57,931.23 in fees and costs, see id. at ¶ 10, and provides copies of the monthly invoices for all fees and costs generated, billed, and paid in defending against the antitrust claim after the Court's summary judgment decision on non-infringement.⁵ See id. at ¶ 3, Exh. A. The declaration states that Sharp's law firm — Nixon & Vanderhye, P.C. — created separate billing matters for the patent matter and the antitrust matter and that therefore the fees and costs incurred for each were easily separated. See id. at ¶ 4. The monthly invoices establish that Robert W. Adams's hourly rate charged ranged from $440 to $490 between 2002 and 2004 (the years in which time was billed for which attorneys fees are sought). The hourly rates of Mr. Adams's colleagues, Mickey Gill and Sheryl L. Scharmach, were $375 and $250, respectively. In his declaration, Mr. Adams submits no declarations from other attorneys, fee surveys, or other information to support Sharp's conclusion that these hourly rates constitute reasonable rates "prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." See Luciano, 109 F.3d at 115. His declaration merely catalogs his own litigation experience and that of his colleagues. See Adams. Decl. at ¶¶ 6-8.

While Soundview does not specifically dispute the reasonableness of the hourly rates claimed, the hourly rates billed by Nixon & Vanderhye, P.C. for the work of Attorneys Adams, Gill, and Scharmach exceed the highest prevailing hourly rates awarded to date in Connecticut.

At the time the work was performed, Mr. Adams was a litigation partner with substantial experience in the litigation of patent and antitrust issues. See Adams. Decl. ¶ 6. The hourly rate billed for the work he performed ranged from $440 to $490, whereas the relevant prevailing rate awarded to date in Connecticut is $375 per hour for counsel with Mr. Adam's experience in cases with the sophisticated subject matter in this case. See Bristol Tech., Inc. v. Microsoft Corp., 127 F.Supp.2d 64, 76 & n. 15 (D.Conn.2000) (finding that $375 per hour was "an appropriate rate for a trial lawyer with almost 30 years experience in complex civil litigation").⁶ See also Conn. State Dep't of Social Servs. v. Thompson, 289 F.Supp.2d 198, 203-207 (D.Conn.2003) (determining that an hourly rate of $375 per hour for a partner in private practice, in a complex case requiring attorneys with expertise in Medicare law, was "fully consistent with hourly rates charged by comparable attorneys practicing in this District"); Stuart v. Stuart, No. X08 CV 020193031, 2005 WL 590433, at *5 (Conn.Super.Feb.10, 2005) (determining that $350 per hour for an experienced trial lawyer was "reasonable and in line with prevailing market rates in this area"). Reflecting some passage of time since these prevailing rate rulings, but without evidence of actual rate escalation in the interim, the Court concludes on this record that the reasonable hourly rate for Attorney Adams is $400.

Similarly, the rates for Mr. Adams's colleagues Mr. Gill and Ms. Scharmach have not been shown to be the prevailing rates in Connecticut. At the time of the litigation, Mr. Gill was a partner at Nixon & Vanderhye, P.C., had "been involved in several cases involving patent and antitrust issues," see Adams Decl. at ¶ 7, and from a review of the firm's website was a lawyer of at least 9 years' experience. See Nixon & Vanderhye P.C. Attorney Directory, http://www.nixon-vanderhye.com/attorneys/usgill.html (last visited September 16, 2005). The Court finds that the reasonable hourly rate for Mr....