GBS: A Little on the Fee Motion

I am systematically digging through last week’s filings. I’ll start by giving a quick rundown of the motion for attorneys fees. Perhaps unsurprisingly, given how big this case has become, the counsel for the author sub-class are asking for the full $30 million in fees and reimbursement of their out-of-pocket costs.

As set out in their memorandum of law in support, you can get to that number in one of two ways. First, there’s the “lodestar” method: calculate how much you’d have billed if you’d been working for a normal, paying client, then multiply by some figure to reflect the uncertain chances of recovery. Under that method, they’ve invested a little over $10 million in billable time, so they’re asking for a multiplier a little under 3. Here are some salient details about how the $10 million figure was calculated:

Boni declaration in support of the motion for attorneys fees, ex. C: Michael Boni and Joanne Zack bill at $675 an hour. Boni has spent 4997.5 hours on the case; Zack has spent 3326 hours. Boni & Zack LLC as a whole has spent 9778.75 hours.

Id., ex. D: Boni & Zack has incurred $151,700.37 in out-of-pocket expenses on the case. That includes $86,511.16 on expert witnesses and consultants, and $44,742.66 on travel-related expenses.

Id., ex. F (declaration of Sanford Dumain), p.5: Milberg LLP put 4,519 hours into the case, spread out among more attorneys. One partner, two associates, and five contract attorneys worked more than a hundred hours on the case. NYU professor (and head of Milberg’s appellate practice) Arthur Miller logged 18 hours and claims a rate of $995 an hour.

Id., ex. G (declaration of Robert LaRocca), p. 6: While at Kohn, Swift & Graf, P.C., Boni worked another 1342.70 hours on the case, out of a total of 4718.80 hours of firm time.

The other method of calculation is to look at benefits to class members. Out of the $109.5 million Google is to pay (not counting the separate attorney fees for the publishers’ counsel), $30 million is about 27 percent.

The numbers used for total benefits include minimum of $45 million pool for the $60 per principal book, but as pointed out by Prof G, under GBS par 5.1 (b) Google has to continue to pay more as required by proof of claimed books. With Clancy confirming over 10 million books now scanned from over 40 libraries each million of principal books charges Google $60 million, so this fund grows to $240 million, real money, if 4 million of these books are principal works.And there is more for inserts.Adding into the balance the open ended future revenue streams from the advertising splits, thats a lot of money from this endeavor to trickle down to authors and publishers via the BRR.
Well, $30 million is alot of money for lawyers, but the number is not unconscionable if Google in fact will be paying over $120 (say for 2 mill principal claimed books) for its scanning violations. Whether $30 million is reasonable as opposed to unconscionable, well that is up to Judge Chin to say.