Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—9th Cir.: Attorney fee award tossed in suit against dental implant maker, (Apr 21, 2016)

By Greg Hammond, J.D.

A dental implant manufacturer that settled claims the company violated California’s Unfair Competition Law (UCL) was entitled, under the Due Process Clause, to opposing counsel’s timesheets that were relied on to support an order for attorney fees. The U.S. Court of Appeals in San Francisco vacated the lower court’s fee order, finding that the lower court abused its discretion by denying the dental implants company such access (Yamada v. Nobel Biocare Holding AG, April 20, 2016, Marbley, A.).

Nobel Biocare Holding AG and its affiliated companies settled allegations that the company violated the UCL. A dentist brought the unfair and fraudulent business practices claims, alleging that Nobel’s dental implants failed at an unusually high rate. Nobel appealed the district court’s fee order, which awarded the dentist more than $2.3 million in attorney fees.

Due process. Nobel first argued that the lower court violated its due process rights by basing the fee order on an ex parte, in camera review of timesheets that Nobel could not review or challenge. The court rejected the dentist’s arguments that Nobel waived its due process argument by failing to raise the issue until after the briefing on the matter of attorney fees was complete. The issue did not arise until the first fee hearing, according to the court, at which time Nobel did request to view the timesheets. Further, Nobel renewed its request to examine the timesheets at the second fee hearing, but the district court told Nobel’s counsel that they “overstated the impact of their anticipated advocacy.” The record demonstrates that Nobel raised the issue with sufficient specificity and vigor, the appellate court concluded.

Next, the court held that the Due Process Clause requires that opposing counsel have access to the timesheets relied on to support he fee order, and that the district court abused its discretion by denying Nobel such access.

On remand, the appellate court instructed the district court to allow Nobel access to the timesheets so Nobel can inspect them and present any objections the company might have concerning the fairness and reasonableness of the dentist’s fee request. The dentist, in turn, must then be allowed to respond to Nobel’s objections and Nobel must be granted an opportunity to reply. The lower court will then decide what the appropriate fee award is, the appellate court ordered.

The case is No. 14-55263.

Attorneys: Eric Y. Kizirian (Lewis Brisbois Bisgaard & Smith LLP) for Nobel Biocare Holding AG, Nobel Biocare AB, and Nobel Biocare USA, LLC. William M. Audet (Audet & Partners, LLP) and Myron Moskovitz for Jason M Yamada, D.D.S.

Companies: Nobel Biocare Holding AG; Nobel Biocare AB; Nobel Biocare USA, LLC

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