Lawyers for the Ed O'Bannon plaintiffs are seeking $52.4 million in attorneys' fees and recoverable costs from the NCAA due to their recent victory in the five-year-old case. The O'Bannon plaintiffs filed the motion late Friday night as the appeals process gets set in the case.
The O'Bannon plaintiffs, led by Michael Hausfeld's law firm Hausfeld LLP, are seeking attorneys' fees of $46,856,319 and recoverable costs of $5,555,739. The plaintiffs also added they reserve "all rights to amend" their motion and documentation because they have "not yet had sufficient time to audit these submissions thoroughly" and some attorneys' time cited could be covered under video-game settlements with Electronic Arts and Collegiate Licensing Company.
In the motion, the attorneys said Hausfeld LLP supervised and coordinated the work of 43 law firms "who contributed resources to this landmark limitation in an effort to match the dozens of attorneys litigating on the NCAA's behalf ... as well as the hundreds of attorneys representing the NCAA's member schools and conferences across the country. Each plaintiffs' firm shared in the considerable risk of non-payment given the unique aspects of this litigation and the NCAA's past success in attaining dismissal” based on a 1984 U.S. Supreme Court ruling.
The hourly rates cited by the O'Bannon lawyers range from $985 for partners with more than 40 years of experience to $250 for the most junior associate. “These historical rates are reasonable first because they are the standard rates charged by Plaintiffs' counsel and comparable to the rates that the NCAA has paid for their own counsel in fiercely defending this litigation,” the O'Bannon lawyers wrote.
The O'Bannon lawyers cited other antitrust litigation they have been involved in with similar rates approved by courts. They argued they obtained a “stellar result” for the O'Bannon class members.
On Aug. 8, U.S. District Judge Claudia Wilken ruled that the NCAA violates antitrust law by prohibiting college players from being paid off their names, images and likenesses. Wilken's injunction would allow schools to pay players licensing money into a trust fund starting in 2016-17. Damages were not part of the trial, but Wilken ruled "the plaintifffs shall recover their costs from the NCAA."
The O'Bannon lawyers cited how they have survived seven motions to dismiss, won a partial victory at class certification, obtained a partial summary judgment, and won a three-week bench trial.
"The resulting injunction will have considerable financial benefits for the class, as it may well amount to tens of millions of dollars each season," the O'Bannon lawyers wrote. "... Moreover, and of critical importance, this is pioneering litigation -- without any precedent and lacking any preceding public enforcement. Plaintiffs' counsel contributed staggering resources to this litigation despite considerable uncertainty of any recovery."
Hausfeld claimed his law firm has spent 29,874 hours working on the case since 2009 that totals $17,078,140 in billing based on historic hourly rates. In addition, Hausfeld's firm claims $2,625,802 in expenses. These costs were advanced to Hausfeld LLP during the case "by a client that has hired my firm by the hour," Hausfeld wrote.
Hausfeld claimed nearly 3,100 billable hours at a rate of $969 per hour, totaling $3,003,394 for his attorney's fees from O'Bannon. Jon King, the former lead attorney for the O'Bannon plaintiffs who was fired by Hausfeld in 2012, claims $3,083,940 in attorneys' fees for 6,016 total hours. King's hours and fees are the highest cited by Hausfeld.
The rates used to calculate those figures "are the usual and customary hourly rates charged for each attorney or staff member's services," Hausfeld wrote.
Bill Isaacson, a partner at Boies who helped try the case, claimed $536,300 in attorney hours for 571 billable hours at an hourly rate of $938.74. Isaacson had the highest attorney fees at Boies.
The filings also show in part how the O'Bannon lawyers paid for the case. Throughout the case, Hausfeld LLP maintained a litigation fund "into which co-counsel firm paid assessments and which was used to pay for many case-related expenses," Hausfeld wrote. For instance, Boises Schiller & Flexner LLP contributed $300,000 to the litigation fund. Of the expenses that came from the fund, Hausfeld is seeking $195,663 from taxable costs and $3,243,533 in expenses for categories such as photocopying, deposition expenses and trial graphics specialists.
The NCAA has yet to document how much it has spent on the O'Bannon case, but NCAA chief legal officer Donald Remy responded to the plaintiffs' request.
"In submitting their request for attorney's fees, plaintiffs' counsel notes that they have not thoroughly reviewed the time used to calculate the fees and also concedes that a portion of the amount may be more suitably recovered from the settlement with Electronic Arts Inc. and the Collegiate Licensing Company," Remy said in a statement. "We have agreed with plaintiffs' counsel that both parties should be given additional time to work through the details of a proper fee submission and have requested that time from the court."
There are many more billable hours ahead in the future. On Friday, the 9th Circuit Court of Appeals set the initial briefing schedule for the NCAA's appeal. The schedule runs through January 2015, meaning if the appeal goes to oral arguments, that may not happen until late 2015 or early 2016.