This is not a patent case, but fee agreements are state law contracts, and so the lessons learned would seem to transfer to patent litigators.
Lawyer wins a contingent fee case for his client where he’s supposed to get 33% of the award. There’s a statute that awards attorney fees. Does the lawyer add the fee award and the damages award, and take 33% of that, or the greater of the two, or the lesser, or…?
In Albunio v. City of New York, (N.Y. Ct. App. Apr. 3, 2014), the court adopted this approach:
“absent a contractual provision to the contrary, the trend is to calculate the contingency fee based on the amount of the judgment exclusive of the fee award, and then credit the fee award to the client as an offset against the contingency fee owed. Under this approach, the attorney should be entitled to receive either the contingent fee calculated on the amount of the damage recovery exclusive of any court-awarded fees, or the amount of the court-awarded fee, whichever is greater”
It could be that some of you need to take a look at your contingent fee agreements, especially given Octane’s new interpretation of 285…