My wonderful research assistant Lee Ann Hughes prepared the attached chart (link below) examining what courts are doing post-Octane. Her research showed:
- 39 cases – attorney’s fees not awarded
- 23 cases – attorney’s fees awarded
- 5 – remanded
That’s a huge shift, I suspect, from pre-Octane practice.
In the next Landslide magazine, I analyze whether section 285 can directly apply to lawyers (can I make opposing counsel jointly and severally liable with its client?) and explain how clients will be bringing malpractice claims against their lawyers when fees are awarded against them. Those cases have already been filed, even under the old standard.
Think about how you want to address Octane in fee agreements, in discussions with clients, and other things…