November 01, 2019 Feature

Danger! Heed Warnings or Risk Fees

Courts use fee-shifting statutes as swords against recalcitrant attorneys

By Andrew J. Kennedy

Litigators, beware: bad behavior during litigation may lead to unexpected—and undesirable—results under fee-shifting statutes. Two cases illustrate that under certain fee-shifting provisions, persistent misconduct and repeated failure to heed court warnings may result in paying your opponent’s attorney fees, denial of your own attorney fees, monetary sanctions, and disciplinary action.

Beware the consequences of attorney misconduct

Beware the consequences of attorney misconduct

Photo illustration by Elmarie Jara | Getty images

$600,000 Fee Award in “Exceptional” Patent Case

In Drop Stop LLC v. Zhu, the U.S. Court of Appeals for the Federal Circuit considered the propriety of a $600,000 fee award under 35 U.S.C. § 285, which allows the prevailing party in patent infringement actions to recover reasonable attorney fees “in exceptional cases.” Drop Stop owned a patent for a product that prevents items from falling between a car’s front seat and the center console. It sent a cease-and-desist letter requesting the defendants to stop selling a competing product, alleging infringement. The defendants did not comply with the request, relying on an attorney’s informal non-infringement opinion, but omitted the attorney’s disclaimer that his “informal opinion cannot be relied upon definitely” and that further analysis was required for a “reliable outcome.”

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