Wednesday, April 11, 2007, 4/11/2007 10:47:00 AM

Plaintiff's Counsel in Motorola Trade Secrets Case Seeks $11,000 Per Hour Attorney's Fee Sanction

By Todd
Daily Business Review is reporting that Stuart, Fla., litigator Willie Gary has upped the stakes in his post-trial sanctions case against electronics giant Motorola. He's asking for as much as $93 million in attorney fees for the plaintiffs lawyer team in a trade secret case that ended with a deadlocked jury.

Gary, 59, who represents the now-defunct SPS Technologies of Fort Lauderdale, Fla., also is asking Broward Circuit Judge Leroy Moe to levy a $100 million sanction against Schaumburg, Ill.-based Motorola for violating a court order sequestering witnesses and allegedly hampering the plaintiff's chances in a new trial.

Moe had granted a motion made by Motorola on Oct. 9 to sequester witnesses. He also removed witnesses from the courtroom. But the judge later said in a January hearing that he "almost threw up" when two witnesses for Motorola testified they had read the testimony from the plaintiff's experts before taking the stand.

The eight-week, $10 billion trial over trade secrets ended in a mistrial in November when jurors deadlocked on whether Motorola stole SPS's idea for a vehicle-tracking technology.
"What they did was taint the whole process," Gary said in an interview Tuesday. "They were going to win at any cost."

But Motorola blasted the plaintiffs lawyers' fee request. "This is outrageous," said Paul Alfieri, a Motorola spokesman, in an e-mailed statement about the fee request by Gary and his firm.
Faith Gay, a New York City attorney representing Motorola, said Gary's request for attorney fees is unreasonable because it goes back long before the allegedly tainted testimony occurred. She said Gary's fee request, if granted, could be record setting.

"They couldn't win at trial, so they come back for a second bite of the apple," said Gay, who's with Quinn Emanuel. "The violations didn't make them lose this case. They lost this case because they didn't have the appropriate evidence."

A hearing on the fee request and sanctions is expected to last the rest of this week. Minor motions were scheduled for Tuesday afternoon with testimony from witnesses to start this morning.

Both sides are gearing up for a dramatic hearing this week. Motorola has lined up former Florida Supreme Court Justice Major B. Harding to testify on the issue of reasonable attorney fees. SPS has scheduled veteran Fort Lauderdale litigators David Bogenschutz and Bruce Rogow to testify.
In January, Gary estimated the plaintiffs attorneys' fees at $11 million. But that was before his firm, Gary Williams Parenti Finney Lewis McManus Watson & Sperando, went back and reconstructed the case and found more than 19,000 billable hours during a five-year time period, for a base cost of $31 million, he said.

But Gary is seeking far more than that.

Citing the so-called lodestar calculation, in which a judge can determine the product of reasonable hours and reasonable rate, SPS attorneys argue that Moe can triple the billable hours in this complicated case and award lawyers $93.1 million. In addition, SPS lawyers are asking for $3.1 million in costs.

Gary said the lodestar precedent protects plaintiffs from deep-pocket defendants who otherwise could run out the clock in cases like this one.

Gary proposed an hourly fee for himself of $11,000 for 2,200 hours of work. That is 11 times more than any other lawyer on the case is seeking. Manuel Socias, Gary's co-lead counsel, is asking for an hourly fee of $1,000 for 2,920 hours. Paul Finizio of Finizio & Finizio in Fort Lauderdale billed at $750 an hour for 1,743 hours.

Lester Brickman, a law professor at Yeshiva University in New York, said it is unlikely that Gary will win such a high fee award even if Moe sides with the plaintiff on the sanctions issue.
"It is highly unlikely that any court would consider an $11,000 [hourly] fee," Brickman said. "I would guess that a reasonable hourly rate to be awarded by the court in this case would be in the range of $300 to $600 an hour."

The fee request could be moot, however, if Moe doesn't agree with the $100 million sanction requested by SBS. The plaintiff alleges that Motorola's violation of Moe's witness sequestration order led to tainted testimony that severely injured its case for re-trial.
Moe himself has said he was convinced that Motorola's violation of his order affected the jury outcome.

In the underlying suit, SBS contended that Motorola stole its technology to develop a roadside assistance system with a satellite global-positioning system after the companies broke off negotiations for a joint venture in 2000. Juan Canto and Roberto La Rocca, the two principals of SPS, testified that they developed the technology.

Moe granted a motion by Motorola on Oct. 9 to sequester witnesses. Moe reiterated his ruling during trial by saying defense experts could not remain in the courtroom while one of SPS's experts testified. He also denied SPS' request to have one its experts remain in the courtroom during Motorola testimony.

But then, during testimony, Motorola's damages expert, Daniel McGavock, and trial witness Douglass Locke admitted to reading expert testimony before taking the stand. Locke admitted to reading the transcripts a day after Moe had admonished the company for providing the testimony to McGavock.

The judge has prohibited both men from testifying at any new trial in the case.

"Motorola's multiple violations of the sequestration rule and this court orders were intentional deliberate, blunt, willful and contumacious," Moe wrote in a Jan. 12 order setting the date for this week's hearing.

Motorola's position is that even though mistakes were made, they were not deliberate and that no harm was done to the plaintiff's case. "It's one thing to run a red light," Gay said. "It's another thing to run a red light and hit someone."

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