Citation. Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866, 1979-2 Trade Cas. (CCH) P62,750 (9th Cir. Cal. July 5, 1979)
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Brief Fact Summary.
Respondent is disputing an elaborate fee agreement for Petitioner’s appellate work on an antitrust appeal, arguing that it was excessively high and unconscionable under applicable California law.
Synopsis of Rule of Law.
Excessive fees are to be determined on a case-by-case basis, taking into account the circumstances of both parties.
Facts.
Respondent, Telex Corporation, retained Petitioner, attorney Moses Lasky of Brobeck, Phleger & Harrison to appeal an $18.5 million counterclaim judgment awarded against it in a massive antitrust case against IBM. Lasky was retained under an elaborate fee structure, under which his compensation would vary depending on the outcome of the case. Days before the certiorari petition was to be decided by the Supreme Court, Respondent reached a settlement with IBM. Respondent’s subsequent refusal to pay Lasky’s $1 million bill resulted in this action.
Issue.
Was Petitioner’s fee in this matter excessively high to the point of unconscionability?
Held.
No. Although the minimum fee was high, it was not unconscionable. The court found that Lasky’s certiorari petition had provided the necessary leverage to reach the settlement, and that Respondent had
“This is not a case where one party took advantage of another’s ignorance, exerted superior bargaining power, or disguised unfair terms in small print. Rather, Telex, a multi-million corporation, represented by able counsel, sought to secure the best attorney it could find.
