A fee request from Ropes & Gray and other lawyers representing beleaguered medical testing company LabMD Inc. in a federal appeal sheds light on the law firm’s billing rates, how much it discounts for pro bono cases and how its rates compare to rates at other firms.
On Oct. 4, lawyers for LabMD, including a team from Ropes & Gray that offered its services pro bono, asked the U.S. Court of Appeals for the Eleventh Circuit to approve $1.72 million in fees—a request that follows the company’s appellate victory in June against the FTC.
As part of LabMD’s motion for legal fees, Ropes & Gray counsel David Cohen submitted a declaration that lays out the billing rates for the various lawyers who worked on LabMD’s case—the market rates include $1,550 per hour for the most senior partner, Douglas Meal, and associate rates that top out at $920 per hour for David Nordsieck, who joined the firm in 2011. Ropes & Gray included those details about the market rates, however, to demonstrate the steep discount it is applying in light of its taking the case pro bono.
The Am Law 100 firm ultimately asks for an amount of $676,008, based on a partner billing rate of $725 per hour, $557.50 per hour for lawyers at the counsel level and an hourly associate rate of $430—totals that amount to less than half the market rates, the firm said. The remainder of the proposed $1.72 million fee award would be split among LabMD’s other lawyers, including Atlanta-based attorney James Hawkins and a number of other big firms that contributed to LabMD’s defense in a long-running battle with the FTC. Other defense firms included Dinsmore & Shohl, Kilpatrick Townsend & Stockton, Katten Muchin Rosenman and Wilson Elser.
The fee motion marks the latest in a legal saga that began in 2013 with an FTC data breach enforcement action against LabMD, a cancer screening business that still exists as a company but has ceased its testing operations.
Initially, FTC Chief Administrative Law Judge D. Michael Chappell ruled for LabMD, which the agency accused of lax data protection services that led to the leak of a file containing personal information on some 10,000 patients. Chappell held that the FTC failed to prove that any patients suffered harm in light of the file’s exposure on a peer-to-peer network. In 2016, however, the commissioners at the FTC reversed Chappell’s findings and ordered LabMD to establish a wide-ranging data security program.
LabMD appealed, and the 11th Circuit in June found that the FTC overreached with its order against the company, which the court held was too vague to be enforced. In light of the decision, which could have wider implications for the FTC’s efforts to regulate cybersecurity, the ALM publication Litigation Daily recognized Ropes & Gray partner Meal as litigator of the week for his role leading LabMD’s appeal.
Since securing the appellate win, LabMD has been looking to recover legal fees and litigation costs under the Equal Access to Justice Act. Although, in this case, Ropes & Gray seeks a discounted fee, the information it provides in support of its request provides insight into what lawyers at a top-earning firm charge for their work.
Particularly with a market rate of $920 per hour for a senior associate, Ropes & Gray appears to be in the same ballpark as other top-flight firms, according to data compiled by ALM Intelligence based on hourly rates published in bankruptcy court proceedings in 2017.
Across the full survey conducted by ALM Intelligence—which includes some Am Law 200 firms but a majority of firms that are not among the highest revenue earners in the country—the average associate billing rate is $341 per hour.
ALM Intelligence data also shows a handful of firms surpassed Ropes & Gray with their top rates for associates. At Kirkland & Ellis, a top-billing associate could charge an hourly rate as high as $955; at Willkie Farr & Gallagher the top associate rate was $965 per hour. Some broke the $1,000 per hour rate, with the top associate hourly rate at Paul, Weiss, Rifkind, Wharton & Garrison recorded at $1,040; and the associate rate at Simpson Thacher & Bartlett going as high as $1,080 per hour.
Other firms came in a little lower, such as Cooley, which had a maximum associate billing rate of $835 per hour; DLA Piper, which had a top associate rate of $850 per hour; and Gibson, Dunn & Crutcher, which had a maximum associate rate of $875 per hour, according to ALM Intelligence.
At all of those firms, however, the average associate rate is lower, as less experienced lawyers tend to charge less.