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Bimbo Bakeries USA, Inc. v. Sycamore

United States District Court, D. Utah, Central Division

March 5, 2019

BIMBO BAKERIES USA, INC., Plaintiff,
v.
LELAND SYCAMORE and UNITED STATES BAKERY, INC., Defendants.

          MEMORANDUM DECISION AND ORDER AWARDING ATTORNEY'S FEES

          David Nuffer, United States District Judge.

         District Judge David Nuffer Plaintiff Bimbo Bakeries USA, Inc. (“Bimbo Bakeries”) filed a motion seeking an award of attorney's fees and nontaxable costs totaling $1, 231, 463.29 against Defendants Leland Sycamore (“Sycamore”) and United States Bakery, Inc. (“U.S. Bakery”) under Utah Code Ann. § 13-24-5.[1]

         Both defendants acknowledge that Bimbo Bakeries is entitled to an award of reasonable attorney's fees attributable to its trade secret claim.[2] However, U.S. Bakery contends that the amount sought by Bimbo Bakeries is not reasonable because (1) Bimbo Bakeries failed to adequately apportion its fees to only its trade secret claim; (2) Bimbo Bakeries' attorneys inappropriately used “block billing;” (3) Bimbo Bakeries' out-of-state attorney billing rates are excessive; and (4) fees requested include time that is inadequately supported.[3] U.S. Bakery also contests any award of non-taxable costs, including expert fees.[4]

         Sycamore does not object to the amount of fees and costs claimed to have been incurred by Bimbo Bakeries, but instead argues that the fees and costs assessed against Sycamore should be limited to those incurred by Bimbo Bakeries in connection with proving its claims against Sycamore alone.[5] For the reasons discussed below, Bimbo Bakeries' Motion for Attorney's Fees[6] is granted in part and denied in part.

         Contents

Standard .......................................................................................................................................... 2
Discussion ....................................................................................................................................... 3
Bimbo Bakeries is entitled to an award of attorney's fees based upon local counsel's billing rates ....... 3
Bimbo Bakeries is awarded its reasonable incidental and necessary expenses as part of its attorney fee award...6
The attorney fee award should be apportioned between the defendants based upon the jury's finding of fault..... 8
Order….. ........................................................................................................................................................ 9

         STANDARD

         “An award of attorneys' fees is a matter uniquely within the discretion of the trial judge who ‘has intimate knowledge of the efforts expended and the value of the services rendered.'”[7]To determine the reasonableness of a fee request, a court must begin by calculating the so-called ‘lodestar amount' of a fee, and a claimant is entitled to the presumption that this lodestar amount reflects a ‘reasonable' fee.”[8] “The lodestar calculation is the product of the No. of attorney hours ‘reasonably expended' and a ‘reasonable hourly rate.'”[9] The “determination of fees should not result in a second major litigation.”[10] The goal is to “do rough justice, not to achieve auditing perfection.”[11] Accordingly, “trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.”[12]

         DISCUSSION

         Bimbo Bakeries is entitled to an award of attorney's fees based upon local counsel's billing rates.

         Bimbo Bakeries states that its reasonable and compensable attorney's fees attributable to its trade secret claim are $821, 712.50.[13] This amount includes work performed by out-of-state counsel and local counsel.[14] Bimbo Bakeries and U.S. Bakery disagree over the reasonableness of the fees charged by out-of-state counsel.[15] U.S. Bakery also argues that Bimbo Bakeries improperly included fees attributable to other claims, block billing entries, and other inadequately supported time, including some support staff fees.

         This case involved complex claims, extensive discovery, multiple dispositive motions, several experts, and a two-week jury trial. In support of the fees requested, Bimbo Bakeries submitted the invoices that were sent to Bimbo Bakeries by its attorneys. These invoices identify the scope of the work performed, the No. of hours expended, and the hourly rates claimed. Bimbo Bakeries also explained its process for apportioning the fees to its trade secret claim:

a. If a fee entry solely involved trade secret subject matter, then 100% of that fee entry was allocated to the trade secret misappropriation claim.
b. If a fee entry partially involved trade secret subject matter, and partially a different cause of action, then only a portion of that fee entry was allocated to the trade secret misappropriation claim. The portion of each fee entry that was allocated to the trade secret claim involved a judgment call based upon my experience as lead counsel in this action.

c. If a fee entry involved subject matter that was not specific to any particular cause of action but to the pursuit of this litigation in general, then one-half of that entry was counted as relating to the trade secret misappropriation claim prior to October 20, 2014, when Bimbo Bakeries' began to prepare its motion to amend to add the false advertising claim, and one-third thereafter until June 5, 2017, when the Court dismissed the trade dress claim at summary judgment. After June 5, 2017, one-half of nonspecific fee entries were counted to the trade secret misappropriation claim. In sum, non-claim-specific fee entries were allocated to the trade secret claim as follows: (a) May 20, 2013 - October 19, 2014 (one-half); (b) October 20, 2014 - June 5, 2017 (one-third); June 6, 2017 - forward (one-half).[16]

         A claimant “need not segregate its compensable and noncompensable claims if they sufficiently overlap and involve the same nucleus of facts.”[17] Given the complexity of the issues involved in this case and the overlapping nature of some of the claims, the approach taken by Bimbo Bakeries to apportion its attorney's fees is reasonable.[18] Additionally, block billing does not necessarily preclude an award of attorney's fees.[19] In this case, Plaintiffs billing records do not include suspect entries. The amount of time spent in the largest time entries seem to be warranted by the underlying task-e.g., research and writing a brief. Therefore, no reduction in fees is required due to block billing.

         Finally, U.S. Bakery objects to the inclusion of time entries for two paralegals to attend trial.[20] Paraprofessional fees may be properly included as an element of attorney's fees when it promotes lawyer efficiency and decreased client litigation costs.[21] Trial in this matter occurred over the course of two weeks and involved a substantial No. of witnesses and exhibits. It was not unreasonable to have two support paralegals assist at trial. Experience in court confirms that they are best suited to manage evidence and witnesses and use trial presentation technology, along with their general duties. ...


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