1 The Court’s exceptional-case finding and related factual findings are

set out in detail in the April 1 opinion and order. 

 2 To be clear, in the April 1 opinion and order, the Court made a number

of other determinations that either are not relevant here or have since been

affected by subsequent orders (e.g., Opinion and Order Reconsidering and Vacating

Sanctions, doc. 633). For purposes of the instant order, the Court’s

exceptional-case finding and grant of Highmark’s request for attorneys’ fees are

the important aspects of the April 1 opinion and order, and the subsequent orders

do no effect the Court’s exceptional-case finding. See Op. and Order Vac. Sanct.

47 n.5 (doc. 633).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

HIGHMARK, INC. §

 §

VS. §

 §

ALLCARE HEALTH MANAGEMENT § CIVIL NO. 4:03-CV-1384-Y

SYSTEMS, INC. §

ORDER AWARDING ATTORNEYS’ FEES

On April 1, 2010, this Court entered an Opinion and Order Granting

Motion for Exceptional-Case Finding and Attorneys’ Fees (doc. 566).

In that order, the Court determined that the instant action is an

exceptional case under 35 U.S.C. § 285 as a consequence of certain

acts of defendant Allcare Health Management Systems, Inc. (“Allcare”).1

The Court also determined that there is no cause to exercise its

discretion to deny the request for fees made by plaintiff Highmark,

Inc. (“Highmark”).2 Accordingly, pursuant to Federal Rule of Civil

Procedure 54(d)(2), the Court directed Highmark to submit a brief

on the reasonableness of the attorney and expert fees it requests.

The Court cautioned Highmark to request only those attorney and expert

fees that it incurred as a result of the conduct of Allcare and its
 3 Highmark already received $88,998.58 in the Bill of Costs (doc. 511).

 4 Highmark does not request any fees for work performed after September

2009 when the Court determined that there was a substantial basis for an

exceptional-case finding.

2

attorneys as discussed in that opinion and order (“exceptional

conduct”). See Takeda Chemical Industries, Ltd. v. Mylan Laboratories,

Inc., 549 F.3d 1381, 1390 (Fed. Cir. 2008) (noting that fees for an

entire suit are rarely awarded). Therefore, the only issue before

the Court is the reasonableness of the amount of fees that Highmark

seeks to recover. 

I. Reasonable Attorneys’ Fees

A. Highmark’s Request

Highmark requests $4,846,710.02 in attorneys’ fees and $209,626.56

in expenses.3 Highmark indicates that its “requested fees encompass

the entirety of work directed to the asserted patent-related claims

and defenses because none would have been incurred if Allcare had

acted reasonably before asserting infringement.” (Pl.’s Br. 1 (doc.

603).) In other words, according to Highmark, it may request the

entire amount of fees and expenses it incurred litigating the patentrelated issues in this case4 and, at the same time, comply with the

Court’s directive to request only those attorney and expert fees it

incurred as a result of the Allcare’s exceptional conduct.

Nevertheless, in Volume 3 of Highmark’s confidential appendix
5 The Trigon system was the subject of an infringement action that Allcare

filed against Trigon Healthcare, Inc., in the United States District Court for

the Eastern District of Virginia. The Eastern District granted summary judgment

in favor of Allcare, concluding, among other things, that the ‘105 patent (which

was at issue in this case) is enforceable. As the Court explains in more detail

in the April 1 opinion and order, Allcare filed and maintained its infringement

counterclaims against Highmark based on the Trigon system’s alleged similarities

to the Highmark system (although Allcare failed to, among other things, inspect

the Highmark system prior to filing its counterclaims). (Op. and Order 2-5.)

3

(doc. 602), Highmark provides a chart that divides its fee request

into time periods based on events in the litigation in an effort to

demonstrate that its fee request, although comprehensive, is tailored

to Allcare’s exceptional conduct. (Conf’l App. to Pl.’s Br. 1283-85.)

And in its brief, Highmark explains how the fees incurred during each

time period are attributable to Allcare’s improper conduct. (Pl.’s

Br. 22-25.) For example, Highmark asserts that the work it performed

in response to Allcare’s cease-and-desist letter of April 16, 2002,

was only necessary because of Allcare’s failure to adequately

investigate the merits of its infringement claims before threatening

suit against Highmark. (Id. at 2-3, 23.) In addition, Highmark

contends that the fees and expenses it incurred after filing suit

in 2003 were the direct result of Allcare’s blind reliance upon the

Trigon system5

 in filing and maintaining its infringement counterclaims.

(Id. at 23-24.) Moreover, Allcare attributes the fees it incurred

after April 2004 to Allcare’s failure to take an expert to inspect

the Highmark system and to Allcare’s maintenance of its infringement

allegations even after this Court’s adoption of the special master’s

claim construction in 2007. (Id. at 24.)
4

Highmark asserts that application of the hybrid lodestar analysis

explained in Maxwell v. Angel-Etts of Cal., 53 F. App’x 561 (Fed.

Cir. 2002) supports the conclusion that Highmark’s fee request is

reasonable. “Under this approach, the [C]ourt first determines a

lodestar figure by multiplying the number of hours reasonably spent

on the litigation by a reasonable hourly rate.” Id. at 568 (citing

Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983)). The Court may

then adjust the lodestar figure “based on a variety of factors, such

as skill and time required, novelty of the questions involved, fixed

or contingent fee basis, results obtained, and/or relationship between

attorney and client.” Id. (citing Kerr v. Screen Extras Guild, Inc.,

526 F.2d 67, 70 (9th Cir. 1975)). If it does so, however, the Court

must articulate its reasons for the adjustment. Id. (citation

omitted). “In cases where the fee application is complex, the district

court is not required to do a line-by-line analysis, but may make

across-the-board cuts, so long as it sets forth a concise reason for

its cuts.” Id. (citations omitted). 

Highmark indicates that some 16,019.67 hours were expended by

attorneys working on its case and that an additional 2640.54 hours

were expended by non-attorneys. Highmark’s three-volume confidential

appendix (docs. 600-602) contains detailed documentation of these

hours in the way of invoices and billing statements. It appears that

these hours date from May 2, 2002, after receiving Allcare’s cease-anddesist letter, to September 30, 2009, after the Court determined that
 6 The fees that Reed Smith charged for Highmark’s lead counsel, Cynthia

Kernick, and partner Eugene LeDonne ranged from $290 per hour in 2002 to $380 per

hour in 2009. Further, Reed Smith billed its associates at $190 per hour in 2002

and $265 in 2009. Reed Smith charged $500 per hour for senior partners Fred

Colen and James Martin, both of whom served discrete roles in the case. And

Highmark’s local counsel, the Gardere Firm, charged rates ranging from $235 to

$510 (this latter figure was charged by Craig Florence in the last year).

7 According to the 2003 AIPLA survey, the median hourly rate charged in

2003 by partners practicing patent law with 15 to 19 years of experience was

$325, while partners with 20 to 24 years of experience charged a median hourly

rate of $348. (App. to Pl.’s Br. 1291.) Associates with 5 to 6 years of

experience earned a median of $226 per hour and associates with 7 to 9 made a

median of $250 per hour. (Id.) Based on the 2009 AIPLA survey, the median

hourly rate for partners with 15 to 24 years of experience was $445 per hour,

while the average hourly rate for such partners was $467 and the seventy-fifth

percentile rate for them was $570. (Id. at 1293) The median hourly rate for

partners practicing patent law in Texas was $450, the average was $472, and the

seventy-fifth percentile amount was $590. (Id.) Full-time intellectual property

lawyers at firms of more than 150 attorneys charged an average of $599 an hour

5

there was a substantial basis for an exceptional-case finding.

Moreover, the appendix contains numerous redactions for hours that

Highmark has excluded from its fee request. According to Highmark,

these hours were either not sufficiently related to the patent claims

or they were expended by attorneys with limited involvement in the

case. 

Furthermore, with the exception of two senior partners serving

“discrete” roles in this litigation, Highmark explains that it had

a special billing arrangement with the law firm Reed Smith LLP (“Reed

Smith”) “whereby all partners working on this case were billed at

a single rate and all associates were billed at a single rate, each

increasing slightly as the years progressed.”6 (Pl.’s Br. 13.)

Highmark offers the 2003 and 2009 Reports of the Economic Survey of

the American Intellectual Property Law Association (“AIPLA”) as support

for its assertion that its hourly rates are reasonable.7 (App. to
and a median hourly rate of $598. (Id.) Moreover, the 2009 AIPLA survey

indicates that the average litigation costs for patent-infringement lawsuits in

Texas with more than $25,000,000 at risk was $6,120,000 and the median was

$6,000,000. 

6

Pl.’s Br. 1290-94.) As Highmark notes, the Federal Circuit has

previously upheld district courts’ consideration of the AIPLA surveys.

See, e.g., View Eng’g, Inc. v. Robotic Vision Systems, Inc., 208 F.3d

981, 987 (Fed. Cir. 2000); Mathis v. Spears, 857 F.2d 749, 755-56

(Fed. Cir. 1988). Given the foregoing, the Court will consider the

AIPLA surveys in its evaluation of Highmark’s fee request.

B. Allcare’s Challenges to Highmark’s Request

Allcare challenges Highmark’s fee request on number of grounds.

Initially, Allcare contends that by requesting fees for the entirety

of work spent on the asserted patent-related claims and defenses,

Highmark has “blatantly disregarded this Court’s order and implicitly

seeks reconsideration of it.” (Def.’s Resp. 1 (doc. 630).) Similarly,

Allcare contends that Highmark’s broad request does not permit Allcare

to respond “point for point as to the reasonableness of Highmark’s

requested fees and the impact any alleged litigation misconduct by

Highmark should have on that amount.” (Def.’s Resp. 5.) In its brief,

Highmark expressly acknowledges, however, the limitations that this

Court imposed on its fee request. Moreover, as previously explained,

Highmark has broken down its fee request into various periods and

litigation events, explaining how each period corresponds to Allcare’s

objectionable conduct and providing documentation of its work.

Admittedly, Highmark’s fee request is expansive. Nevertheless, it
7

is detailed enough to allow this Court to assess its merit and to

allow Allcare to respond. Indeed, Allcare does respond to the

reasonableness of Highmark’s request, taking issue with several

specific aspects of the fee request over the course of 1,907 pages.

(Conf’l App. to Def.’s Resp. (doc. 631).) And likewise, Allcare

manages to argue for limitations based on Highmark’s conduct. (Def.’s

Resp. 7-9 (asserting that the Court should reduce Highmark’s fee award

based on Highmark’s failure to withdraw its non-infringement claim

as to Claim 1).) Thus, the Court does not find persuasive Allcare’s

argument that Highmark blatantly disregarded the Court’s April 1 order

and opinion, nor does the Court find merit in Allcare’s argument that

the broad scope of Highmark’s fee request precludes Allcare from being

able to adequately respond.

Allcare next challenges Highmark’s entitlement to fees for work

performed in connection with Highmark’s unenforceability and invalidity

defenses. Allcare states that Highmark withdrew these defenses before

judgment and that the Court did not discuss these defenses in the

April 1 opinion and order. In reply, Highmark insists it should

recover for time spent on its unenforceability and invalidity defenses

because those defenses are “related” to its non-infringement claim,

which Highmark asserted in response to Allcare’s infringement

allegations. Highmark is correct that it should be permitted to

recover for the time it spent defending against Allcare’s frivolous

infringement allegations. However, Highmark is not entitled to recover
8 Claim 1 was one of four claims originally at issue in this case, along

with claims 52, 53, and 102.

8

for work done in connection with its unenforceability and invalidity

defenses because these were not incurred as a direct result of

Allcare’s exceptional conduct as described in the April 1 opinion

and order.

In addition, Allcare contends that Highmark should not be

permitted to recover any fees for work performed in connection with

discovery. To support this contention, Allcare quotes the portion

of the April 1 opinion and order stating “that most of the remaining

acts alleged by Highmark appear to be discovery disputes that are

likely in a complex and hotly contested case.” Def.’s Resp. 7. That

comment, however, was in regards to particular discovery-related

actions--not discovery-related actions in general. While Allcare

is correct that Highmark should not recover for discovery-related

work not incurred as a result of Allcare’s exceptional conduct,

Allcare’s contention is too broad. Highmark should be allowed to

recover fees for any discovery-related work incurred as a result of

Allcare’s exceptional conduct. 

Allcare also contests Highmark’s request for fees incurred in

connection with Claim 1.8

 Allcare asserts that “Highmark insisted

for over four years that Claim 1 remain a topic of this litigation”

despite learning in July 2004 that Allcare had eliminated its

counterclaim for infringement as to Claim 1. (Def.’s Resp. 8.)
9

Allcare further asserts that Highmark’s refusal to withdraw Claim

1 required claim-construction analysis to occur with respect to that

claim when it otherwise might have been avoided. In reply, Highmark

states, that it “maintained Claim 1 in this case because it was the

‘apparatus’ reflection of the Claim 52 ‘method’ and was the most

cogently stated [c]laim.” (Pl.’s Reply 6.) According to Highmark,

the fact that the special master began its claim-construction analysis

with Claim 1 is evidence that “maintaining Claim 1 in this action

was appropriate.” (Pl.’s Reply 6.) Highmark maintained Claim 1 in

this action as part of its defense against all of Allcare’s

infringement allegations (e.g., Claim 502). Therefore, because Claim

1 was the predicate “system” claim for its other “method” claims,

Highmark’s maintenance of Claim 1 was a permissible part of its defense

against Allcare’s infringement allegations.

Allcare also contends that Highmark should not receive fees for

work performed on its various Trigon motions. Highmark points out

that Highmark filed multiple motions to strike reference to the Trigon

rulings and that the Court denied each one. The issue, however, is

not necessarily whether Highmark persuaded the Court as to each of

its contentions but whether the fees Highmark incurred working on

those contentions were “incurred as a result of the conduct of Allcare

and its attorneys as discussed in [the April 1] opinion and order.”

As this Court explained in the April 1 opinion and order, Allcare

misused the Trigon rulings throughout this litigation and even before.
10

With respect to Allcare’s inadequate pre-filing investigation, this

Court made the following observations: 

“[t]he rulings in Trigon are relevant to the issue of

whether Highmark’s system infringed the ‘105 patent only

to the extent that Highmark’s system and the system in

Trigon are the same. There is no indication in the record

that Allcare investigated Highmark’s system or compared

it to Trigon’s system before filing counterclaims against

Highmark. Yet Allcare points to the Trigon rulings as

justification for its claims of infringement against

Highmark.” 

(Op. and Order 21.) The Court also noted that “once a claim

construction was issued in this case, the issue became whether

Highmark’s system infringed the ‘105 patent as so construed,” and

“[t]he Trigon rulings became irrelevant.” Id. at 38. The Court then

concluded that Allcare’s persistent reliance upon the Trigon rulings

as support for Allcare’s infringement allegations was not without

knowing, or at least having reason to know, that the allegations were

baseless. See id. at 38-39 (citing Eltech Sys. Corp. v. PPG Indus.,

Inc., 903 F.2d 805, 810-811 (Fed. Cir. 1990)). Furthermore, after

concluding that Allcare had included in its original answer the

defenses of res judicata and collateral estoppel despite knowing that

they were meritless, the Court stated that “[t]he evidence of these

actions firmly convinces the Court of Allcare’s use of frivolous and

vexatious tactics and supports an exceptional-case finding . . . .”

Id. at 40. Therefore, the work Highmark performed as a result of

Allcare’s improper reliance on the Trigon rulings or the Trigon system

was incurred because of Allcare’s exceptional conduct, even if not
11

every contention was successful.

Finally, in addition to challenging the reasonableness of

Highmark’s fee request, Allcare challenges Highmark’s entitlement

to fees at all. According to Allcare, Highmark “waited too long to

pursue its claim that Allcare’s infringement claims were frivolous”

 and has “not provided the Court with a record upon which it can rule.”

(Def.’s Resp. 11-12.) But as Highmark points out in its reply, section

285 only allows for the recovery of attorneys’ fees in exceptional

cases to the prevailing party, a status that cannot be determined

until judgment. See 35 U.S.C.A. § 285. And with regard to Allcare’s

challenge to the record, the Court has reviewed Highmark’s evidence

and finds it both thorough and adequately organized. As previously

explained, despite Allcare’s assertion to the contrary, much of

Highmark’s appendix contains an adequate break-down of the fees it

requests and an explanation of how those fees relate to Allcare’s

exceptional conduct. In any event, the Court has already determined

that Highmark should recover attorneys’ fees under § 285, and the

sole issue before the Court is the reasonableness of those fees. 

C. Determination of Reasonable Attorneys’ Fees

“In determining the reasonableness of the award, there must be

some evidence to support the reasonableness of, inter alia, the billing

rate charged and the number of hours expended.” In re Electro-Mech.

Indus., 359 F. App’x 160, 165 (Fed. Cir. 2009) (quoting Lam, Inc.

v. Johns-Manville Corp., 718 F.2d 1056, 1068 (Fed. Cir. 1983)). As
12

previously discussed, Highmark submits the AIPLA surveys in support

of its assertion that its requested hourly fees are reasonable. Given

that Highmark’s hourly rates fall within the ranges in the AIPLA

surveys and in light of the fact that Allcare does not appear to

challenge the reasonableness of Highmark’s hourly rates, the Court

concludes that the hourly rates submitted by Highmark’s attorneys

in this case are reasonable. See View Eng’g, Inc., 208 F.3d at 987;

Mathis, 857 F.2d at 755-56. Additionally, based on the invoices,

billing statements, and charts contained in Highmark’s three-volume

appendix, the Court is satisfied that the hours Highmark’s attorneys

have purportedly expended in this litigation are substantiated by

the evidence. Therefore, the Court will accept, as a starting place,

the lodestar calculation proposed by Highmark. Cf. Takeda, 549 F.3d

at 1390-91 (affirming the district court’s award of $16,800,000 for

attorney and expert fees and expenses). 

However, an award by the court of the total amount of a fee

request is unusual. Takeda, 549 F.3d at 1390 (citing Beckman

Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1553 (Fed. Cir.

1989)). And Highmark’s fee request encompasses slightly more than

just the fees it incurred as a result of Allcare’s exceptional conduct

as discussed in the April 1 opinion and order. Highmark’s argument--

that it should recover the entirety of work directed to the asserted

patent-related claims and defenses because it would have incurred

none if Allcare had acted reasonably before asserting infringement--is
13

persuasive given how intertwined Allcare’s exceptional conduct is

with each phase of this litigation. Nevertheless, the April 1 opinion

and order notes specific instances of exceptional conduct on the part

of Allcare, and those instances are all that Highmark’s fee request

should cover. Thus, the lodestar figure should be reduced accordingly.

See Maxwell, 53 F. App’x at 568. 

Accordingly, the Court concludes that two reductions are

necessary. First, Highmark’s fee request should be reduced by the

time attributable to its invalidity and unenforceability defenses.

The Court did not find exceptional Allcare’s assertions that the‘105

patent was valid and enforceable. Therefore, the time Allcare spent

responding to these assertions are outside the scope of fees allowed

by the April 1 opinion and order. Second, Highmark’s fee request

should be reduced to account for the discovery disputes that the Court

found “likely [to occur] in a complex and hotly contested case.”

(Op. and Order 41.) While much of the discovery-related work that

Highmark performed in this case appears to be the result of exceptional

conduct on the part of Allcare, some of it is not. 

Based on the evidence that Highmark has submitted, it appears

that from May 2004 through September 2009, Highmark incurred

approximately $60,793 per month in fees. It also appears that around

the beginning of this period, particularly in April and May 2004,

Highmark performed a significant amount of discovery-related work

(e.g., drafting opposition to motion to compel). (Conf’l App. to
 9 These figures are based on the Court’s determination that about seventyfive percent of the work performed in the months of April and May 2004 were

attributable to mere discovery disputes and that about half of the work it

performed in September and October 2007 on its summary-judgment briefing is

attributable to the invalidity defense. (Conf'l App. to Pl.'s Br. 185-224,

786-807.)

 10 In the April 1 opinion and order, the Court stated that there was no

need to exercise its inherent authority to award fees and expenses in light of

its conclusion that the instant action is an exceptional case under § 285 and

that sanctions are appropriate under Rule 11. Since that opinion, however, the

Court has vacated its imposition of Rule 11 sanctions. Therefore, in the instant

order, the Court will invoke its inherent power to award expert fees, as § 285

does not provide for them.

14

Pl.’s Br. 185-224.). Further, it is apparent that Highmark spent

much of September and October 2007 working on its summary-judgment

briefing, which included arguments concerning invalidity. (Conf’l

App. to Pl.’s Br. 786-807.) In light of this information, a reduction

of $91,189.52 seems fair and proportionate to the amount of work

Highmark committed to mere discovery-related work during that time.

The Court similarly concludes that an additional reduction of $60,793

is appropriate for the work Highmark spent working on its invalidity

and unenforceability defenses.9

II. Reasonable Expert Fees

In addition to attorneys’ fees, Highmark seeks $378,650.05 in

expert fees and expenses. As is evident in the April 1 opinion and

order, the Court has already determined that Highmark should recover

reasonable expert fees. However, as Highmark notes in its brief,

“[s]ection 285 does not provide for the award[ing] of expert fees.”10

In re Electro-Mech., 359 F. App’x at 165 (citing Amsted Indus. Inc.
 11 Highmark already obtained $200.00 in § 1821 witness fees in the Bill

of Costs (doc. 511).

15

v. Buckeye Steel Castings Co., 23 F.3d 374, 379 (Fed. Cir. 1994)).

For the Court to award expert fees in excess of the statutory fees

under 28 U.S.C. § 1821,11 it must “invoke its inherent power to impose

sanctions.” Takeda, 549 F.3d at 1391 (citations omitted). Doing

so requires either “a finding of fraud or abuse of the judicial

process.” Amsted, 23 F.3d at 378-79 (citations omitted). In other

words, because “not every case qualifying as “exceptional” under

section 285 will qualify for sanctions under the court's inherent

power,” the Court must “assess whether this case goes sufficiently

beyond ‘exceptional’ within the meaning of section 285 to justify

an award of expert fees as a sanction under the [C]ourt's inherent

power.” Id. (citations omitted).

 The Court concludes that this standard is met in the present

case. In the April 1 opinion and order, the Court concluded that

Allcare had filed and continually pursued frivolous counterclaims

even after it became clear that those counterclaims were meritless.

(Op. and Order 28-36.) The Court also concluded that Allcare asserted

defenses despite knowing they were meritless. (Id. at 39-40.)

Moreover, the Court based its exceptional-case finding in part on

Allcare’s use of “vexatious tactics.” (Id. at 40.) Based on these

findings, and pursuant to its inherent authority, the Court concludes

that expert fees should be awarded in this case. 
 12 This figure is based on the 6.5 hours Nobel spent working on his

invalidity report at an hourly rate of $500. (Conf’l App. to Pl.’s Br. 1279.)

16

As with attorneys’ fees, Highmark’s expert-fee recovery must

be limited to those fees incurred as a result of Allcare’s exceptional

conduct. After reviewing the evidence, it appears that the vast

majority of Highmark’s expert fees were incurred while defending

against Allcare’s allegations of infringement. However, expert Jeremy

Noble appears to have done some work on invalidity-related defenses

as well. (Conf’l App. to Pl.’s Br. 1279.) The fees attributable

to this work are nominal in amount when compared to the overall

request; but in an effort to remain consistent with the April 1 opinion

and order and in fairness to Allcare, the Court concludes that a

reduction of $3,250 is appropriate.12

III. Post-Judgment Interest

Lastly, Highmark seeks post-judgment interest running from the

date of “this Court’s judgment awarding attorney fees.” (Pl.’s Br.

22.) Under 28 U.S.C. § 1961(a), “[i]nterest shall be allowed on any

money judgment in a civil case recovered in a district court.” 28

U.S.C.A. § 1961(a). The phrase “any money judgment” in § 1961 includes

a judgment that awards attorney fees. Mathis, 857 F.2d at 760. The

purpose of this provision is to “deter[] use of the appellate process

by the judgment debtor solely as a means of prolonging its free use

of money owed the judgment creditor.” Thus, “[i]nterest on an attorney
 13 Highmark received a judgment that conferred upon it “prevailing-party”

status well before the April 1 opinion and order. However, because attorneys’

fees under § 285 are within the discretion of the district court and are not

automatic, that judgment is not the point at which Highmark became entitled to

the fees or the point when post-judgment interest should begin to accrue. See

Mathis, 857 F.2d at 760. In any event, Highmark has not requested that the postjudgment run from the earlier judgment. Thus, the judgment from which interest

shall accrue is the April 1 opinion and order.

 14 Pursuant to 28 U.S.C. § 1961(a), this rate is “equal to the weekly

average 1-year constant maturity Treasury yield . . . for the calendar week

preceding.” 28 U.S.C.A. § 1961(a).

 15 The breakdown is as follows:

Reed Smith - $ 4,491,196.80 in attorneys’ fees and $193,833.5 in expenses;

Gardere Wynne - $203,530.60 in attorneys’ fees and $15,793.06 in expenses;

Mark Gleason - $253,671.25 in expert fees and $3,583.89 in expenses; and

Jeremy Nobel - $108,625.00 in expert fees and $9,519,91 in expenses.

17

fee award . . . runs from the date of the judgment establishing the

right to the award, not the date of the judgment establishing its

quantum.” Id. (citing Copper Liquor, Inc. v. Adolph Coors Co., 701

F.2d 542, 544-45 (5th Cir. 1983); Spain v. Mountanos, 690 F.2d 742,

747-48 (9th Cir. 1982)). Therefore, because Highmark became entitled

to attorneys’ fees pursuant to the April 1 opinion and order,13 postjudgment interest is appropriate and should accrue as of April 1,

2010, at a rate of .42%.14

V. Conclusion

Accordingly, Highmark shall recover attorneys’s fees in the amount

of $4,694,727.40 and $209,626.56 in expenses.15 Highmark shall also

recover expert fees and expenses in the amount of $375,400.05.

Interest shall accrue on these amounts, beginning April 1, 2010, at
TRM/dc 18

a rate of 0.42% pursuant to 28 U.S.C. § 1961.

SIGNED November 5, 2010.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE