King & Spalding Drops Fee Request After Judge Orders Billing Rates Unsealed

King & Spalding has withdrawn a request for $665,000 in legal fees in a long-contested public records dispute after a Washington federal trial judge said the law firm cannot shield its billing rates and other information from public scrutiny.

U.S. District Judge Amit Mehta said the public should be able to see two documents the Am Law 100 firm filed in support of its request for attorney fees in a suit involving a medical device client. Those filings, including a declaration from a white-collar partner, would have been made public on April 9 if the law firm had not withdrawn its request for fees.

“What plaintiff fails to appreciate is that the public interest in disclosure is arguably at its zenith when the fee demand is made against the public fisc,” Mehta wrote in his April 7 order. “Indeed, there is something untoward about plaintiff asking to conceal their hourly rates and the work done from public view, while demanding hundreds of thousands of dollars from the public treasury as compensation.”

Law firms and advocacy groups that sue for records often seek compensation for successful cases, and in some instances the sides agree to settle any request for compensation. Six-figure attorney fee awards in public records cases are substantially more rare than other awards, according to a 2018 report at The FOIA Project.

Mehta’s ruling was a bit of a mea culpa on his part, after the judge had allowed King & Spalding to submit the two documents under seal. Mehta said his order permitting the sealing was made under the assumption that the U.S. government did not oppose the law firm filing nonpublic information. The Justice Department in February asked Mehta to reconsider the sealing order.

King & Spalding white-collar partner John Richter in Washington, a lead attorney in the case, was not reached for comment Wednesday evening.

King & Spalding sued the U.S. Department of Justice and the U.S. Department of Health and Human Services in 2016 for records about the federal investigation of the Massachusetts-based medical device company Abiomed Inc. The Justice Department investigated claims but did not bring any action against Abiomed over the marketing of the heart pump Impella 2.5, the company said in 2015.

Richter said in court filings that his law firm had a “complete” victory in its quest for documents, and that the government “dragged its feet, costing King & Spalding hundreds of thousands of dollars in attorneys’ fees and costs.”

“Although late-coming, the released documents have shed light on matters of public concern,” the firm said in its court papers seeking legal fees. “As King & Spalding long suspected, the government attorneys spearheading the Abiomed investigation acted at the urging of a former colleague who had left the Justice Department for private practice.”

The firm said its request for $664,955 in legal fees was “reasonable under the circumstances of this case.” The firm argued in court filings: “The reasonableness of the government’s legal position thus pales in comparison to its unreasonable and obdurate stall tactics. Those tactics will go unchecked unless this court awards King & Spalding reasonable fees and costs for its trouble.”

King & Spalding’s John Richter at the National Press Club in 2016. Credit: Diego M. Radzinschi / ALM

King & Spalding maintained that any public disclosure of hourly rates and “other details will harm the firm’s standing with respect to its competitors.” The sealed material detailed “the attorneys, rates, tasks, time, and other costs and expenses devoted to this litigation over the course of its long history.”

Justice Department lawyers argued that secrecy about King & Spalding’s billing rates and other information “will hamstrung defendants from fully arguing in their publicly filed opposition the reasons why the time incurred is patently unreasonable.” The government also pointed to public court filings in other cases where King & Spalding’s rates were revealed.

“As reflected by an internet search utilizing the term ‘King and Spalding billing rates,’ King & Spalding has publicly filed its billing rates in other cases, undermining the assertion of competitive harm in its motion to seal,” Jeremy Simon, an assistant U.S. attorney, said in a filing.

Mehta concluded the firm’s billing records “go to the very heart of what is before the court: questions concerning the reasonableness of plaintiff’s counsel’s hourly rates and the reasonableness of the time they expended on this matter.”

On Wednesday evening, when King & Spalding withdrew its request for attorney fees, Richter asked Mehta to order the Justice Department and HHS to “destroy all copies of the sealed exhibits in their possession.” The judge had not immediately responded.

Mehta on Thursday said the Justice Department has until April 16 to say whether it opposes King & Spalding’s request that pleadings be “destroyed.” The two filings, until then, will remain under seal, the judge said.

King & Spalding, home to an array of former government officials, including former U.S. deputy attorneys general Rod Rosenstein and Sally Yates, employs more than 1,100 lawyers. Profits per equity partner at the firm hit $3 million in 2019, according to ALM reporting. Revenue per lawyer was reported at about $1.1 million.

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