Andersen's attorney, Lory Lybeck, is looking for just under $300,000 in fees from his defense of Andersen. The $298,995 figure submitted to the court includes a "multiplier" of two times the "reasonable" hourly rates due to the "high risk, successful" defense (Oregon law allows for multipliers).
In a brief filed earlier this month, the RIAA called the $298,995 figure "excessive" and said that it should be drastically slashed to something along the lines of $30,000. In the RIAA's opinion, Atlantic v. Andersen was a "straightforward copyright infringement claim," and the labels' independent expert believes that the fees sought are excessive "in numerous respects."
Lybeck takes issue with the RIAA's characterization of the case in his reply to the RIAA's brief. "Contrary to plaintiffs' argument, this copyright case was anything but typical or 'straightforward,'" argues Lybeck. "As the court has previously found, the proceedings were complicated, prolonged, and made more expensive by the plaintiffs' unreasonable tactics throughout the case."
Indeed, the mere existence of a malicious prosecution case accusing the RIAA of all sorts of questionable tactics seems to belie the labels' claim that Atlantic v. Andersen was "straightforward." The RIAA stands accused of racketeering, fraud, deceptive business practices, and a host of underhanded tactics such as seeking to directly contact Andersen's then-eight-year-old daughter under false pretenses.
Recently retired Judge Donald Ashmanskas, who presided over Atlantic v. Andersen, took issue with the labels' tactics, writing "[w]hatever plaintiffs' reasons for the manner in which they have prosecuted this case, it does not appear to be justified as a reasonable exploration of the boundaries of copyright law." The RIAA did not act "in an objectively reasonable matter," Judge Ashmanskas wrote in one ruling.
Lybeck is seeking payment for over 540 hours of work. That's way too much, argue the labels, because those hours include time spent on counterclaims that were voluntarily dismissed as well as on "talking to the media" and working on the attorneys' fees question. Lybeck replies that all of those things are covered and notes that the argument the RIAA makes is "exactly the opposite" of those made throughout the case.
That's not the only double standard from the RIAA, Lybeck says. He notes that the RIAA frequently had multiple attorneys present in court, including six at a single hearing. Despite that, the RIAA says that Andersen's having just two lawyers present at a hearing or deposition is "duplicative" and that only one should be reimbursed. "Defendants like Ms. Andersen... should be allowed to defend themselves as aggressively as the RIAA prosecutes claims against them," Lybeck counters.
The labels are also upset about Lybeck's travel expenses. Lybeck told Ars earlier this month that the RIAA was digging its heels in on that issue. "Andersen tried to get a local lawyer," he told us. "But no one would take the case unless she agreed to default on the judgment and file bankruptcy."
Ultimately, the dustup over attorneys' fees isn't that surprising. Losers seldom like writing checks for the winners, and the RIAA is no exception. After exonerated defendant Debbie Foster won an attorneys' fees award in the case the RIAA brought against her, the RIAA appealed and dragged its feet before finally cutting a $68,685 check.
As was the case with Capitol v. Foster, there's likely going to be more back and forth before a final fee is agreed upon—or ordered by the judge. One thing is certain: the RIAA sued, lost, and the judge has said it is going to have to pay up.