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Pacific Packaging Products, Inc. v. Barenboim

Superior Court of Massachusetts, Middlesex

July 25, 2017

Pacific Packaging Products, Inc.
James Barenboim et al


          Bruce R. Henry, Associate Justice.

         Before the Court for determination is the Plaintiff's Motion For Attorneys Fees and Costs incurred in litigating the Plaintiff's Emergency Motion For Judgment On All Claim Based Upon Defendants' Fraud On The Court . In that motion the plaintiff had asserted that the defendants had violated a preliminary injunction entered by another judge, had spoliated evidence, and had committed fraud upon the Court. After ten days of hearings and review of voluminous exhibits, I found that the defendants did violate the terms of the injunction, that certain evidence was spoliated by the defendants; and that the defendants did commit fraud upon the Court. One sanction which I ordered as a result of those findings was that the defendants were to compensate the plaintiff for the attorneys fees and costs incurred by the plaintiff in litigating the issues of fraud, spoliation, and violations of the injunction.

         The plaintiff submitted the Affidavits of Daniel Sheeran, David Varsano, and Michael Gottfried which set forth the credentials and experience of the attorneys at Duane Morris LLP who worked on the relevant matters and which included the time entries for which compensation is sought; the invoices for the work done by Elysium and Evidox; and a listing of disbursements for legal research, transcripts, and copying charges associate with the applicable issues. The plaintiff is seeking $1, 187, 855.01 in attorneys fees; $125, 595.34 for forensic work done by Elysium and Evidox; and $31, 833.68 for disbursements. Ms. Gottfried attests that the time spent on these matters was reasonable and necessary, that the staffing was efficient, that the rates charged were reasonable and in line with those of attorneys of comparable skill, experience, and reputation; and that the fees of the forensic experts were reasonable.

         The defendants submitted affidavits of Alan Rose, Lawrence Slater, Thomas Gallitano, and of Douglas Seaver in support of their attack on the plaintiff's request for fees. They make a number of arguments challenging the necessity and reasonableness of the fees charged. They assert that the fees and costs sought are excessive considering the amount of the damages the plaintiff could possibly recover and are grossly disproportionate to the nature of the case and the issues involved. Further, the defendants argue that the plaintiff over-lawyered the case and that fees should not be awarded for unsuccessful arguments made by the plaintiff, or for contentions that were unproven or abandoned. Finally, the defendants assert that the plaintiff is seeking fees for work that was unrelated to the fraud on the court motion.


          In making an award of attorneys fees, I keep in mind the various factors on which I must focus: " the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation, and ability of the attorney[s], the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases." Linthicum v. Archambault, 379 Mass. 381, 388-89, 398 N.E.2d 482 (1979). " No one factor is determinative, and a factor-by-factor analysis, although helpful, is not required." Berman v. Linnane, 434 Mass. 301, 303, 748 N.E.2d 466 (2001). While in making my determination as to the fees, I am not required to review and address each individual item and I can consider the bill as a whole, id., I have carefully reviewed the bills and the invoices and have considered the defendants' objections to the requests.

         Experience, Reputation, and Ability of Attorneys

         There is no real challenge by the defendants to the experience, reputation, or ability of the attorneys involved for the plaintiff or to the rates charged for the services of those attorneys. I find the rates to be reasonably consistent with rates for similarly experienced attorneys in the Boston area. While the defendants do challenge what they view as " over-lawyering" by the plaintiff, I do not find in the circumstances of this case that the use of two partners for attendance at hearings was excessive.

         Nature of the Issues Presented

         Whether ultimately this case is a " bet the company" type of case can be debated by the parties. My focus is on the issues presented by the fraud on the court motion. While there are not an extraordinary number of cases dealing with the issues raised by the fraud on the court motion, such motions are not routine and would require some research. Although there are no novel issues of law involved, I would expect that some amount of legal research required. The fraud which is alleged must be established by clear and convincing evidence, so the plaintiff's burden is heavier and I would expect it to be somewhat more labor-intensive.

         Amount of Damages Involved

         The plaintiff asserts that, for it, this was a " bet the company" litigation given what was involved and given the actions of the defendants. The defendants dispute that assessment of the case and argue that the " extraordinary" number of hours expended by the plaintiff's attorneys was not justified by what was at stake in this case. I do not know at this point what damages the plaintiff may be able to establish at trial; however, I note that the plaintiff has established what it sought to prove by the fraud on the court motion and has obtained sanctions against the defendants.

         Results Obtained

         The plaintiff succeeded in establishing by clear and convincing evidence that the defendants had committed fraud on the court, had violated a court-ordered injunction, and had spoliated evidence. While the plaintiff has succeeded on those claims, ...

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