Update (September 23, 2016): Mysteriously, plaintiff Minnesota Vikings Football Stadium (“MVFS”), having won its lawsuit against Wells Fargo, and the corresponding rights to an injunction and to its attorneys’ fees (claimed to be $655,020.00), has confidentially settled the matter with its erstwhile opponent. And, as part of that settlement, MVFS has withdrawn its claim to its attorneys’ fees. So we will never see Wells Fargo’s response to MVFS’ fee claim nor the Court’s evaluation of it.
Incidentally, I often commute past the usbankstadium (sic) (see photo to the left). The branding of U.S. Bank on the stadium and Wells Fargo immediately across the street are both extremely visible. The >$1 million in combined legal fees were spent on a fight about Wells Fargo’s signage on the roofs of its buildings (only visible from the blimp camera that hovers over football stadiums on game days). How is it possible, in a world in which so many people live in dire circumstances, that corporations can fritter away so much for so little?
Original post (July 11, 2016): For a battle that took place over a period of six months (late December, 2015 to late June, 2016) about whether or not Wells Fargo could have certain signage near the new Vikings football stadium, the Minnesota Vikings seek $655,020.00 for their attorney’s fees, plus $17,068.21 in costs. Does that sound reasonable to you? Who is to say? How would you know? How would I? How would the U.S. District Court for the District of Minnesota?
That was 2,237 hours of lawyer time, apparently, divided up unequally between six Hinshaw & Culbertson lawyers (senior associate Jessica Magnuson, H&C “capital partner,” Kevin Coan, and newly minted junior associate M. Annie Santos putting in about 2,000 of the 2,237 hours).
It will be interesting to see Wells Fargo’s response. I will go out on a limb and predict that it will NOT include any indication of Wells Fargo’s own lawyers’ hours or billing rates. (If one side argues that the other side’s fees are excessive, wouldn’t it be a relevant metric to divulge how much your side’s fees were? I don’t see that very often (if ever) in responses to fee petitions.) I will go out on a thicker limb and also predict that Wells Fargo will not respond by saying, “Looks good to us! They beat us fair and square and, although we respectfully disagree with the outcome, this lean and mean adversary earned every penny claimed!”
And, finally, I won’t hazard a prediction of whether we will have another example of the proverbial “Minnesota hair-cut” (examples here, here, here, and here). Anyone want to hazard a guess as to how this will play out?
Not me. But while on the subject, I will take the opportunity to raise some questions for general reflection:
Why is it that fee agreements are generally not submitted with fee requests? Or actual redacted bills (removing privileged communications that are often discernible in billings) to the client? Or evidence of receipt of payments from the client? Instead, Hinshaw & Culbertson submits declarations of the billing lawyers and a declaration by a well-known and distinguished Minneapolis lawyer, Eric Magnuson. “Mr. Magnuson is …personally familiar with the Vikings’ counsel in this matter, having litigated matters against them and served as co-counsel over the years…Mr. Magnuson opined that, overall, the standard hourly rates charged by the Vikings’ attorneys in this case are consistent with reasonable and customary rates charged in the Minneapolis and St. Paul legal community and are reasonable given the circumstances of this case.”
Do I have to point out that Mr. Magnuson is being paid by the people for whom he offers an opinion as to the reasonableness of their fees? Anyone see a potential conflict there? In fact, it seems that Mr. Magnuson has a bit of a practice in opining on the reasonableness of fee petitions. And Mr. Magnuson, personally, has one of the highest hourly billing rates in the state of Minnesota, and works for a large law firm with some of the highest rates for lawyers in the state. See a little bit of potential bias there?
Still further, does Mr. Magnuson being “personally familiar” with Vikings counsel mean he is friends with them? If so, is this not a problem?
Finally, I note that Mr. Magnuson testifies:
I have reviewed the bills submitted by Hinshaw to the Vikings for the work that its attorneys performed during the litigation. I have also reviewed the extensive pleadings and transcripts of proceedings in the litigation. During this litigation, the Vikings’ attorneys engaged in: (i) strategy analysis; (ii) legal research; (iii) consulting with and advising clients; (iv) drafting and revising briefs, pleadings, and other court submissions in this litigation; (v) engaging in extensive discovery activities; (vi) analyzing the pleadings, briefs, and arguments of opposing counsel and devising strategy and arguments responsive to same; (vii) participating in a settlement conference; (viii) preparing for and presenting oral arguments to the Court; and (ix) preparing for trial. The work performed by the Vikings’ counsel was reasonable in time and scope and was typical of litigation and necessary to properly represent the Vikings.
I am curious whether anyone at any time is ever able to question such an authority on whether a fee petition is “reasonable” on his review. How long did that review take? What was his hourly rate? Did he find any billing to be unnecessary, duplicative, or excessive?
Would it not make more sense to have an accounting firm or some kind of auditing firm “certify” the legitimacy of fee petitions? Is that feasible? Maybe such a regime would make it easier on courts and fairer for the litigants?
I conclude by expressly disavowing any aspersions as to the accuracy of the Vikings’ lawyers fee petition. Obviously, I have not undertaken any analysis and nothing said here should be construed to mean that I think the fee petition is excessive in any way. I do, on the other hand, question the standard practice for how our system determines the reasonableness of fees. I wonder if courts’ frequent (often unexplained) “haircuts” are not tacit findings that the system that we have might be flawed.