Escapex IP LLC v. Google LLC

Background

Google moved for attorneys’ fees under 28 U.S.C. § 1927. That statute allows a court to require an attorney who unreasonably or vexatiously multiplies court proceedings to personally pay the excess costs, expenses, and attorneys’ fees reasonably caused by that conduct. The court stated that sanctions under § 1927 require at least reckless conduct.

The fee request arose from Escapex’s Rule 59(e) motion, which sought reversal of the court’s earlier fee order based on allegedly newly discovered evidence. Escapex submitted declarations from its president and from an engineer who drafted its claim charts. The court found that the information in both declarations was already known to Escapex when Google filed its original fee motion. The court explained that failing to submit known information earlier does not make it newly discovered evidence.

Court’s reasoning

The court found Escapex’s Rule 59(e) motion frivolous. The motion did not explain why the declarations qualified as newly discovered evidence, cited no authority supporting that position beyond the legal standard, and raised arguments that could have been made before the original fee award. The court also found that Escapex’s attorneys acted recklessly, at a minimum, by refusing to withdraw or amend the motion after Google’s counsel identified its problems.

The court separately addressed Escapex’s argument that it had filed the motion because it believed the original fee order was manifestly unjust. The court noted that this explanation did not appear in Escapex’s actual motion and stated that, if manifest injustice was the true basis, filing on the ground of newly discovered evidence provided an additional reason to find reckless or bad-faith conduct.

Fee calculation and ruling

Google requested $92,602.95 in attorneys’ fees and costs. The request included $34,447.65 for responding to the Rule 59(e) motion and preparing the fee motion, plus an additional $58,155.30 for later work, including filing the fee motion, preparing and filing a reply, and participating in a 13-minute hearing.

The court found the $34,447.65 request facially reasonable but found the $58,155.30 request unreasonable. It stated that the later work should not cost more than one and a half times the amount associated with responding to the Rule 59(e) motion and preparing the fee motion. The court therefore granted the motion for attorneys’ fees and ordered reimbursement of $63,525.30 in reasonable attorneys’ fees and costs, to be levied jointly and severally against Escapex’s attorneys William P. Ramey, III and Susan S.Q. Kalra. “Jointly and severally” means each attorney may be held responsible for the full amount, subject to any rights between them. The court also noted that Google’s request to impose the previously awarded fees and costs on those attorneys was untimely because Google had not made that request when it sought the original fee award.