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US Appeals Court Considers Law Firm Size in Antitrust Fee Dispute

By  |  October 2, 2025

A federal appeals court is weighing whether the size of a law firm should play a role in determining attorney fee awards, a question that could have broad implications for antitrust litigation across the western United States. The San Francisco-based 9th U.S. Circuit Court of Appeals heard arguments this summer and is expected to rule soon, according to Reuters.

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    The case stems from a 2023 jury verdict won by Gaw Poe, a five-lawyer San Francisco firm, against Prestige Consumer Healthcare, the maker of Clear Eyes. The jury found that Prestige violated the Robinson-Patman Act, a rarely invoked antitrust law that restricts discriminatory pricing, by charging wholesalers more for eye drops than it charged retailer Costco. Per Reuters, Prestige is appealing that outcome, while Gaw Poe is separately challenging a $3.1 million fee award it says undervalued its work.

    Gaw Poe had sought over $7.6 million in fees, citing top partner rates of $1,314 per hour and junior attorney rates of $1,000. Because antitrust law provides for mandatory fee-shifting, Prestige would be responsible for payment if the higher fees were approved. Prestige’s lawyers at Duane Morris opposed the request, arguing the small firm was seeking rates more common at “Big Law” firms in Los Angeles.

    Read more: 9th Circuit Revives Privacy Lawsuit Against Shopify Over Data Tracking

    U.S. District Judge Michael Fitzgerald ultimately set lower hourly rates ranging from $975 to $1,070, ruling that granting large-firm rates to a boutique firm risked setting a new standard for future fee requests. “Notwithstanding Plaintiffs’ counsel’s background, accolades, and expertise in this area of the law, it is simply unreasonable to award big law rates to a four-person firm representing mom-and-pop warehouses,” the judge wrote.

    At the July hearing, some 9th Circuit judges questioned whether firm size should factor into fee awards at all. “Logically, why would firm size make a difference?” asked Judge Kim McLane Wardlaw, according to Reuters. Gaw Poe co-founder Mark Poe argued that tying fees to firm size creates an imbalance between what defendants can pay their lawyers and what plaintiffs’ counsel can recover.

    Legal experts told Reuters the outcome could influence fee awards in California and other states under the court’s jurisdiction. Nancy Rapoport, a law professor at the University of Nevada, noted that while large firms often charge higher rates due to overhead, the issue is not absolute. Jessica Erickson of the University of Richmond added that firm size should not affect awards, while Georgetown University’s Adam Levitin stressed that fees should reflect attorneys’ skills, reputation, and the demands of a case — not the structure of their firms.

    Source: Reuters