United States District Court, W.D. Kentucky, Paducah
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge.
matter comes before the Court upon Motion by Defendant David
Griffin (“Griffin”) seeking an order from this
Court directing Plaintiffs to disclose the actual amount
which has been paid to counsel in this matter. [DN 311.]
Plaintiffs have responded, [DN 314], and Griffin has replied.
[DN 315.] This matter is ripe for adjudication and, for the
following reasons, IT IS HEREBY ORDERED that Griffin's
Motion [DN 311] is DENIED.
Global Education Holdings, LLC, along with several related
entities, (collectively, “Plaintiffs”) filed suit
against Griffin in 2012, bringing claims for copyright
infringement, falsification of copyright management
information, and trademark counterfeiting. Essentially, it
was alleged by Plaintiffs that Griffin and co-defendant
Charles Jones (“Jones”) were acquiring
foreign-edition textbooks at a much lower cost than that of
their domestic counterparts. After the acquisition of these
textbooks, alterations were made to give them the appearance
of domestic editions, and they were then sold at a
considerable profit. In June 2016, an offer of judgment was
presented by Griffin, pursuant to Federal Rule of Civil
Procedure 68, which was accepted by Plaintiffs.
then, there has been considerable debate concerning whether
the offer of judgment precluded an award of attorney fees to
Plaintiffs. In the end, the Sixth Circuit, on appeal from
Plaintiffs, determined that attorney fees could be included
in counsel's costs. [See DN 300.] The present Motion
filed by Griffin argues that he is entitled to present to the
Court the amount of money actually paid by Plaintiffs to
their counsel in litigating this matter, as opposed to the
detailed billing statement already proffered by Plaintiffs.
[See DN 292-11.] The merits of the Motion are discussed
district court's award or denial of attorney's fees
is reviewed for abuse of discretion.” Adcock-Ladd
v. Sec'y of Treasury, 227 F.3d 343, 348-49 (6th Cir.
2000) (internal citations omitted). The lodestar method of
fee calculation is the correct manner by which this Court
determines attorney fees in cases such as the one currently
before the Court. This calculation is accomplished “by
multiplying the proven No. of hours worked by a
court-ascertained reasonable hourly rate.” Ellison
v. Balinski, 625 F.3d 953, 960 (6th Cir. 2010) (citing
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
Crucially, “‘[t]he primary concern in an attorney
fee case is that the fee awarded be reasonable, ' that
is, one that is adequately compensatory to attract competent
counsel yet which avoids producing a windfall for
lawyers.” Adcock-Ladd, 227 F.3d at 349 (quoting
Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999)).
end, the lodestar is the initial figure to which the Court
looks in beginning its assessment of the
“reasonableness” of the fee. See Id.
Once that calculation is completed, “[t]he trial judge
may then, within limits, adjust the ‘lodestar' to
reflect relevant considerations peculiar to the subject
litigation.” Id. (citing Reed, 179 F.3d at
471-72). There is “a ‘strong presumption'
favor[ing] the prevailing lawyer's entitlement to his
lodestar fee.” Id. at 350 (quoting City of
Burlington v. Dague, 505 U.S. 557, 562 (1992), among
other cases). This means that “modifications to the
lodestar are proper only in certain rare and exceptional
cases, supported by both specific evidence on the record and
detailed findings by the lower courts.” Id.
(internal citations omitted). In assessing the reasonableness
of the hourly fee, the Court “should initially assess
the ‘prevailing market rate in the relevant community,
” that is, “that rate which lawyers of comparable
skill and experience can reasonably expect to command within
the venue of the court of record…at least where the
lawyer's reasonable home rate exceeds the reasonable
local charge.” Id. (internal citations
Griffin points out in his instant Motion, in assessing the
amount which is to be paid to the prevailing party, the Court
“may consider, either in determining the basic lodestar
fee and/or adjustments thereto, …the twelve [factors]
listed in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714, 717-19 (5th Cir. 1974).” Id.
Those twelve factors which the Court may consider are as
(1) The time and labor required by a given case; (2) the
novelty and difficulty of the questions presented; (3) the
skill needed to perform the legal service properly; (4) the
preclusion of employment by the attorney due to acceptance of
the case; (5) the customary fee; (6) whether the fee is fixed
or contingent; (7) time limitations imposed by the client or
the circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the ‘undesirability' of the case;
(11) the nature and length of the professional relationship
with the client; and (12) awards in similar cases.
Reed, 179 F.3d at 471-72 n.3; see also Adcock-Ladd,
227 F.3d at 349 n.8. In the Sixth Circuit, noticeably absent
from the lodestar calculation or the twelve permissible
Johnson factors, is the demand that the prevailing party
disclose the amount paid to date in pursuit of the matter;
that is, the amount of money actually doled out from litigant
to counsel throughout the life of the case.
Griffin's Motion, he argues that when the Court
undertakes to determine the amount of fees to be paid to
Plaintiffs in this case, one factor the Court should take
into consideration is the amount of money actually paid by
Plaintiffs to their counsel throughout the course of this
litigation, rather than the totals already provided. In
support of this argument, Griffin cites to a No. of cases,
one of which is the Second Circuit Court of Appeals'
decision in Crescent Publ'g Grp., Inc. v. Playboy
Enters., Inc.,246 F.3d 142 (2d Cir. 2001). There, the
Second Circuit noted that “[t]he actual billing
arrangement certainly provides a strong indication of what
private parties believe is the ‘reasonable' fee to
be awarded.” Id. at 151. More ...