Pacific Packaging Products, Inc.
James Barenboim et al
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR ATTORNEYS FEES AND COSTS (PAPER #142)
R. Henry, Associate Justice.
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.
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.
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.
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.
Reputation, and Ability of
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.
of the Issues Presented
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.
of Damages Involved
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.
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, ...