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Judge Bumb considers Section 285 fee award

In Bayer Cropscience AG, et al. v. Dow Agrosciences LLC, C.A. No. 12-256-RMG-JS (D. Del. June 18, 2015), Judge Renée Marie Bumb, sitting by designation, made determinations, based on Defendant’s attorney’s “almost entirely unredacted” billing statements, of fees to be charged against Plaintiffs to Defendant under 35 U.S.C. § 285.  Defendant requested over $6 million in fees.  Plaintiffs requested that Defendant produce completely unredacted records, and requested a reduction in the fees of at least $1.3 million.  The Court ultimately reduced the fee award by approximately $170K, id. at 86-87, and rejected Plaintiffs’ request for unredacted records, id. at 86.

Having reviewed each of the contested billing entries (redacted from the public version of this opinion), the Court rejected a number of Plaintiffs’ contentions that bills for various items, including preparation of key declarations, attendance at summary judgment hearings, getting attorneys “up to speed” for an appeal, and substantial document review, were excessive, redundant, or unnecessary and thus unreasonable.  See, e.g., id. at 13, 21, 23-24, 31-32, 59-60.  The Court also rejected Plaintiffs’ contention as “baseless” that it was unreasonable for Defendant to have hired lead counsel from New York and California where it could have hired lead and local counsel from Delaware, id. at 26, as well as its argument that Defendant should have utilized local counsel at various locations for depositions “in a case of this complexity,” id. at 83.  For several issues, the Court observed that it would have been helpful for Plaintiffs to provide it with how much time Plaintiffs’ attorneys had billed to these tasks, for comparison.  See, e.g., 31, 76.

For other items, however, the Court did reduce fees.  For example, the Court reduced fees involving “seemingly excessive edits to” a summary judgment motion and a motion for fees.  Id. at 18, 81-82. “While attorney review and editing are important, the Court has attempted to reasonably adjust the time to address Bayer’s legitimate concerns that it should not have to pay for excessive, multiple attorneys’ reviews.”  Id. at 18.  The Court further reduced some amounts for legitimate expenses where it concluded, for example, that the number of attorneys who billed to a task or attended a hearing appeared unnecessary.  See, e.g., id. at 22-23, 25.

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