Superior Court of Massachusetts, Suffolk, Business Litigation Session
ABV Holding Company 3, LLC et al. 
Astra Tech, Inc. Other Parties ABV Holding Company 3, LLC et al.
CID Equity Capital VIII LP et al. No. 134716
MEMORANDUM OF DECISION AND ORDER ON: (1) ASTRA
TECH'S MOTION FOR ENTRY OF FINAL JUDGMENT; AND (2)
CERTAIN THIRD-PARTY DEFENDANTS MOTION FOR AN AWARD OF
ATTORNEYS FEES AND COSTS
Mitchell H. Kaplan, Justice
The Motion for Entry of Final Judgment
court refers the parties to its Memorandum of Decision and
Order dated January 13, 2016 (the Decision) for a description
of the all of the prior proceedings, decisions, and orders
that bring this unique litigation to its present posture and
final moment (subject, of course, to rights of appeal).
Defined terms in the Decision shall have the same meaning in
this memorandum of decision. The court must now determine the
amount of the final judgment to enter against the plaintiffs
on Counts I and II of Astra Tech's counterclaim.
respect to Count I, the only contested issue is the date from
which interest is to accrue on the damages awarded for the
period after " the effective date of the Settlement
Agreement." The plaintiffs argue that the "
effective date" is the date that their appeal of the
Settlement Agreement was finally decided adverse to them,
because, until then, under the terms of the Escrow Agreement
the Escrow Agent could not disburse funds and that prevented
the releases provided in the Settlement Agreement from
becoming binding. The court disagrees. The effective date of
the Settlement Agreement was the date it became effective
under its express terms, i.e., February 7, 2011. Briefly
stated, that was the date on which the Settling Shareholders
entered into their separate peace with Astra Tech.
Thereafter, the Settling Shareholders ceased to participate
in prosecuting or defending any claims against Astra Tech.
They could neither suffer loss nor receive gain as a result
of the Nonsettling Defendants' conduct.
plaintiffs' vigorous, but entirely unsuccessful,
litigation seeking to invalidate the Settlement Agreement
prevented the Escrow Agent from making distributions from the
Escrow Fund for more than three years, but that did not, and
should not, delay the effective date. In consequence, all the
additional legal fees and delays in the payment of damages
incurred thereafter were incurred solely as a result of the
plaintiffs' actions prolonging this litigation. As the
plaintiffs do not argue that, other than with respect to the
" effective date, " the damages requested by Astra
Tech under Count I were not calculated in accordance with the
Decision, final judgment under Count I shall enter in the
amount requested by Astra Tech, i.e., $3, 122, 331.83 ($80,
589.14 (plaintiff's share of excess damages) plus $3,
041, 742.69 (prejudgment interest)).
respect to Count II, the court refers the court to Judge
Billings' December 16, 2013 decision on the motion for
the entry of final judgment in Bailey I, which
contains an excellent review of the standards to be applied
by a court in determining the reasonableness of legal fees to
be awarded in favor of a party other than the party who
received the legal services. The court will apply these same
standards in its consideration of the legal fees incurred by
Astra Tech's counsel, Ropes & Gray, in defending
and prosecuting Bailey II .
Tech seeks $954, 264 for legal fees (and related expenses)
and $146, 367.51 in interest accrued on those fees,
calculated from the time that each invoice was paid. These
fees were incurred during the period January 2, 2013 through
April 2016. According to Astra Tech, fees associated with
Counts III through VI of its counterclaim, which were
dismissed, have been eliminated.
this three-year period no discovery or further factual
development of the issues raised by this case was required.
The case was resolved on motions for judgment on the
pleadings as to Count I and summary judgment as to Count II;
although, the latter was styled as a motion for summary
judgment only because damages, i.e., the legal fees that are
the subject of this motion, required factual support. While
the memoranda of law filed on behalf of Astra Tech and its
counsel's oral argument were all excellent, that is an
extraordinary sum for a case in which there was no evidence
to be mustered and no disputed issues of fact to be resolved.
While some of the expense was necessarily incurred in
response to the novel arguments asserted on behalf of the
plaintiffs, the costs seem beyond what is reasonable.
court is simply unable to review all of the fees billed over
this three-year period and correlate them with each of the
pleadings filed by the plaintiffs, especially because the
majority of those fees relate to motions decided by another
judge. Instead the court has focused on the fees requested
for work done in March and April 2016. The fees billed during
that period appear to apply to only two discreet tasks:
preparing a reply to the plaintiffs' limited opposition
to this motion for entry for judgment, and reviewing the
Settling Shareholders' motion for fees. As to the first
task, the reply brief is ten pages in length. It does not
address any new issues of law and cites very few cases, nor
should it. It is essentially practical argument that relies
on prior decisions issued in Bailey I and Bailey
II and logic. The court calculates the fees incurred in
writing these persuasive ten pages of thoughtful, but largely
common-sense, argument at approximately $55, 000 or $5, 500 a
page. There was also a charge of $1, 300 for reviewing the
Settling Shareholders' request for attorneys fees under
G.L.c. 231, § 6F and Mass.R.Civ.P. 11(a); a request that
may have generally interested Astra Tech's counsel, but
in which Astra Tech had no monetary interest. The court does
not find either of those amounts reasonable in relation to
the product. From this the court extrapolates that expenses
incurred in preparing other briefs went beyond what is "
reasonable" under the circumstances, which led to
aggregate fees of one million dollars.
in its Decision, the court rejected Astra Tech's position
that the plaintiffs were responsible for interest accrued on
the Settling Shareholders' share of damages up to the
date of settlement. While the court ruled in favor of Astra
Tech on other claims with substantially greater monetary
value, the plaintiffs should be afforded some discount for
defense of a discrete claim for damages that failed; in the
same way that the court did not allow recovery for fees
incurred with respect to counts that were dismissed.
reviewed all of the submissions in support of and opposition
to the request for fees under Count II, the court concludes
that the request should be reduced by $200, 000, which is
approximately 20% of the total requested, to arrive at a
figure for reasonable attorneys fees. Distributing this sum
in a weighted average over the period in which the fees were
incurred, the court has also reduced the accrued interest by
one fifth. Accordingly, judgment shall enter under Count II
of the counterclaim in the amount of $871, 358 ($754, 264
(fees) plus $117, 064 (interest)).
The Third-Party Defendants' Request for Fees
Third-Party Defendants have moved that they be awarded the
fees that they incurred in defending the third-party
complaint under both G.L.c. 231, § 6F and Mass.R.Civ.P.
11(a). The court denies their motion.
plaintiffs' third-party complaint was filed on October
14, 2014 and asserted a single-count for declaratory relief.
In effect, it asked the court to declare that if Astra Tech
was awarded damages in excess of the plaintiffs' interest
in the Escrow Fund, the court declare that the Settling
Shareholders are liable to the plaintiffs' for their
aliquot share of those excess damages under the Contribution
Agreement. The Settling Shareholders filed a motion to