It Is Looking More Likely That Judge Labson-Freeman Will Decide Whether Merck Pays $15 Million Of Gilead’s Legal Fees, Even Before The Appeals Are Decided…

Overnight, the very able federal Disrtict Court Judge Beth Labson-Freeman ordered Gilead, by July 27, 2016 — one week before the hearing on August 4, and one week from now — to provide her with a complete set of so-called “task-based” deeply detailed by time-keeper spreadsheets. These sorts of breakdowns show the number of hours expended by each billing attorney, and on which tasks those hours were expended. She has not required a breakdown of the billing rates for these attorneys (yet). What the Judge is after is a sense of whether the lodestar amount Gilead is seeking from Merck is reasonable.

In addition she has ordered that Merck be allowed to see the aggregated, and individualized breakdowns of hours by task, by lawyer — with client confidences redacted, of course — so that Merck may assess whether the fees sought are reasonable, under the circumstances.

Here is that two page order, for the record — as a PDF file.

For its part, Merck had just asked that the fees motion not be heard until the appeals are completed. It would seem that Judge Labson Freeman is not inclined to wait — as she’d likely rather collect this data while it is right at hand, and everyone’s memories of the to and fro’ of the trial — and trial prep efforts — are fresh.

The August 4, 2016 9 AM PDT in-court appearances, and argument, portend to be rather dramatic, in my experienced estimation. Over $15 million in fees reimbursement hangs in the balance for Merck. We will keep you informed. Were I a betting man, I’d guess that over $13 million will be ordered paid by the judge, in the end. [Again, as she quite sagely did, with the overall original $200 million verdict — she is clearly hinting here that the two ought to get together and settle on a number — from Merck to Gilead — and that she’d likely be disposed to bless it. But if they couldn’t get there on the verdict (now vacated in its entirety), it is not clear they’ll be able to negotiate their way to get to agreement, on the fees, either. She does seem to be hinting that she will award some part of these fees, in seeking this level of detail, right now. Just my $0.02 — to Mr. Frazier.]

Okay — out now, on foot — to find a tart, freshly cool summer fruits salad, on a muggy, heat-domed Thursday early afternoon. . . but outdoor-dining, and with live music, to boot — will be in order, for certain. . . .

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