[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13167

Non-Argument Calendar

____________________

VITAL PHARMACEUTICALS, INC., 

d.b.a. VPX Sports, 

Plaintiff-Appellant,

versus

PEPSICO, INC., 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cv-62415-RAR

____________________

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2 Opinion of the Court 21-13167

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

Vital Pharmaceuticals, Inc. (“VPX”), appeals the district 

court’s decision to award Pepsico, Inc. (“Pepsi”), $116,684.81 in 

contractual attorney’s fees, in connection with Pepsi’s obtaining 

court confirmation of an interim arbitration award that granted 

preliminary injunctive relief against VPX. On appeal, VPX contends that the contract did not authorize recovery of attorney’s fees 

for seeking confirmation of an arbitration award, and that the court 

abused its discretion in calculating the number of hours Pepsi’s attorneys reasonably expended and in awarding them non-local 

rates. After careful review, we conclude that Pepsi was entitled to 

recover attorney’s fees in connection with confirming the arbitration award, but we vacate and remand for further proceedings as 

to the amount of its recovery. 

I.

In March 2020, VPX and Pepsi executed a contract making 

Pepsi the exclusive distributor of VPX’s BANG-branded energy 

drinks. VPX soon became dissatisfied with the arrangement, and it 

elected to terminate the agreement without cause in October 2020

and attempt self-distribution. In response, Pepsi initiated arbitration under the contract in New York, the state whose law governed 

the contract. It also moved for emergency relief to enjoin VPX 

from breaching the distribution agreement’s terms, which it said 

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21-13167 Opinion of the Court 3

required three years’ notice before a termination without cause 

took effect. Soon after, VPX sued Pepsi in federal court in the 

Southern District of Florida, seeking injunctive relief. 

After expedited briefing and a hearing, an emergency arbitrator issued an award granting in part Pepsi’s request for injunctive relief. This “Interim Award,” issued on December 7, 2020, preliminarily enjoined VPX from attempting to self-distribute and required it to honor Pepsi’s contractual distribution rights, which 

likely extended through October 2023, according to the arbitrator, 

pending a resolution of the matter by a full arbitration panel.

One day later, on December 8, 2020, Pepsi filed an expedited 

motion to confirm the Interim Award in VPX’s federal case in the 

Southern District of Florida. Pepsi contended that the award of 

injunctive relief was sufficiently final to be confirmable under the 

Federal Arbitration Act (“FAA”) and that there were no grounds to 

vacate or modify the award. VPX responded in opposition, asserting, among other things, that the Interim Award was not final or 

confirmable. Pepsi filed a reply responding to VPX’s arguments in 

detail. 

On December 21, 2020, the district court granted Pepsi’s 

motion and confirmed the Interim Award. VPX did not appeal at 

that time, although immediate review was available. See 9 U.S.C. 

§ 16(a)(1)(D) (“An appeal may be taken from an order confirming 

or denying confirmation of an award or partial award.”). Later, the 

court dismissed VPX’s complaint without prejudice, concluding 

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that VPX was collaterally estopped from seeking injunctive relief 

inconsistent with the confirmed Interim Award. 

II.

Having obtained confirmation of the Interim Award, Pepsi

sought attorney’s fees for that work under the distribution agreement. The relevant provision of the agreement states,

[I]f the [arbitration] award is confirmed by a court of 

competent jurisdiction, a Party challenging the award 

or resisting enforcement of a judgment entered upon 

the award will pay, to the extent permitted by law, all 

costs, attorneys’ fees and expenses incurred by the 

other Party in defending the award or seeking enforcement of the judgment. 

Pepsi sought fees for a total of 182.4 hours for four Gibson Dunn 

attorneys in connection with confirming the Interim Award, at

hourly rates ranging from $734 to $1,313, for a total of $159,441.90. 

Pepsi asserted that the hourly rates charged by Gibson Dunn were 

“comparable to prevailing market rates for national law firms 

across the country” and “nearly identical to the prevailing market 

rates in New York,” where Pepsi would have moved to confirm the 

award had VPX not already filed suit in Florida.

VPX objected to Pepsi’s request on several grounds. First, it

claimed that the distribution agreement authorized the recovery of 

attorney’s fees incurred post-confirmation only, not fees incurred 

seeking confirmation of an arbitration award. Second, it asserted 

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that the court should defer any fee award until the litigation had 

run its course. Finally, it contended that both the hourly rates and 

the number of hours requested were excessive. Pepsi replied.

In March 2021, a magistrate judge recommended that 

Pepsi’s motion for attorney’s fees be granted in part and denied in 

part. The magistrate judge rejected VPX’s interpretation of the 

agreement as authorizing fees incurred post-confirmation only, 

stating that Pepsi could recover the fees it “incurred in defending 

the Award” from VPX’s challenge to confirmation. The magistrate 

judge also recommended declining to defer the fee award, finding 

VPX’s caselaw inapposite and pointing to the court’s prior determination that the Interim Award was sufficiently final to be confirmable. Finally, the magistrate judge applied small reductions to 

the requested hours and hourly rates, arriving at a lodestar amount 

of $111,684.81.

In determining a reasonable hourly rate, the magistrate 

judge first stated that it was “reasonable to award New York market rates for Pepsi’s attorneys rather than limiting their rates to 

those that are reasonable in the South Florida market.” Although 

Pepsi did not “establish[] a lack of attorneys in South Florida who 

are willing and able to handle this case,” the magistrate judge 

stated, “it would have made little sense for Pepsi to proceed with 

any other attorneys in this case.” The judge noted that the attorneys had extensive prior experience with the factual situation, having obtained the Interim Award, that the dispute first arose in New 

York, where Pepsi commenced the arbitration proceeding, and that 

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Pepsi sought confirmation in the Florida case only “for the sake of 

efficiency and to avoid inconsistent results” and to defend its arbitration award.

So in the magistrate judge’s view, “[e]ven if New York is not 

technically the relevant market, it is reasonable to award New York 

rates to Pepsi based upon the circumstances of this case.” Ultimately, the magistrate judge recommended that the court approve 

the partner’s hourly rate of $1,313 and slightly reduce the associates’ hourly rates from $857 to $750 for one attorney and from $734 

to $650 for two other attorneys.1 

As for the number of hours, the magistrate judge agreed 

“with VPX that the hours incurred by Pepsi are excessive, but not 

nearly to the degree espoused by VPX.” The judge first rejected 

VPX’s focus on page length, noting that complexity was a better 

measure and that the “briefing in this case [wa]s of a more complex 

nature.” But he found that a “small reduction” was warranted to 

account for Pepsi’s work on the confirmation motion “before the 

Interim Award was even issued.” He observed that, while Pepsi 

appropriately completed work in advance, it was “unlikely that 

Pepsi would have spent the same amount of time if it did not begin 

addressing confirmation until it had an arbitration award in hand,”

since Pepsi likely “spent at least a small amount of time addressing 

issues before receiving the Award that it may not have otherwise 

1 The magistrate judge advised that, if he had limited Pepsi to South Florida 

rates, he would have recommended hourly rates ranging from $425 to $725.

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21-13167 Opinion of the Court 7

had to address.” But he could not “ascertain every issue Pepsi spent 

time addressing” because “some entries contain[ed] very limited 

descriptions regarding the tasks completed.” “Nevertheless,” he

opined, “it does appear likely that Pepsi would have incurred the 

substantial majority of the hours it did incur had it waited to work 

on the confirmation motion.” Accordingly, the magistrate judge 

recommended a “small reduction (of approximately 10 hours).”

Finally, the magistrate judge found that the hours requested 

by Pepsi were still “somewhat excessive” by approximately 25 to 

30 additional hours. In that regard, the magistrate judge cited excess billing related to a motion to seal and conferences, and a minor 

block-billing issue. Ultimately, the magistrate judge recommended 

an across-the-board reduction of 23% in hours for each attorney

(roughly 40 total hours), for a total of 140.44 hours. That resulted 

in a total fee award recommendation of $111,684.81. 

VPX submitted objections to the magistrate judge’s report 

and recommendation. VPX first reiterated its argument that the 

distribution agreement did not authorize fees “where a party exercises its right to oppose the confirmation of the award.” Second, 

VPX maintained that Pepsi was not entitled to non-local rates for 

its attorneys because it failed to show a lack of local attorneys who 

were able and willing to handle the case, as required by this Court’s 

decision in American Civil Liberties Union of Georgia v. Barnes, 

168 F.3d 423, 427 (11th Cir. 1999). VPX further asserted that a potential exception discussed in Barnes did not apply because, in 

VPX’s view, Pepsi’s use of non-local attorneys did not result in 

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substantial cost-saving efficiencies that would justify the higher 

non-local rates. 

In fact, according to VPX, Pepsi’s attorneys logged excessive 

hours by doing so much work before the Interim Award even issued—that is, “they had no idea what, if anything, the Interim 

Award would say and were undoubtedly researching issues and 

drafting arguments that were never used.” VPX found no support 

in the time entries for the magistrate judge’s claim that Pepsi would 

have incurred most of the requested hours had it waited for the 

Interim Award, noting the magistrate judge’s own observation that 

the time entries contained “very limited descriptions” regarding 

the tasks completed. It also contended more broadly that the motion to confirm and reply brief were not particularly lengthy or 

complex and that Pepsi’s requested hours were plainly excessive, 

particularly given its supposed expertise and familiarity with the 

case facts. VPX did not object to the recommendation not to defer 

consideration of fees. 

After Pepsi replied, the district court entered a short order 

adopting the magistrate judge’s recommendations. The court said

it had “conducted a de novo review” of the magistrate judge’s findings in response to VPX’s timely objections, but it did not otherwise address the objections. VPX now appeals.

III.

“We review awards of attorney’s fees and costs for abuse of 

discretion, reviewing questions of law de novo and reviewing 

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21-13167 Opinion of the Court 9

factual findings for clear error.” Kahane v. UNUM Life Ins. Co. of 

Am., 563 F.3d 1210, 1213 (11th Cir. 2009). The interpretation of a 

contractual provision authorizing attorney’s fees is a question of 

law, which we review de novo. Johnson Enters. of Jacksonville, 

Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1329 (11th Cir. 1998). 

A. Pepsi’s Entitlement to Attorney’s Fees

VPX first claims that the district court misapplied § 9.11(b) 

of the distribution agreement, the relevant attorney’s fees provision. As a reminder, that section states,

[I]f the [arbitration] award is confirmed by a court of 

competent jurisdiction, a Party challenging the award 

or resisting enforcement of a judgment entered upon 

the award will pay, to the extent permit-ted by law, 

all costs, attorneys’ fees and expenses incurred by the 

other Party in defending the award or seeking enforcement of the judgment.

In VPX’s view, this provision does not permit recovery for costs 

incurred in confirming the Interim Award, because the phrase 

“confirmed by a court of competent jurisdiction” shows an intent 

to “limit attorneys’ fees to those incurred in challenges to the 

award or resistance to enforcement after confirmation.” In other 

words, according to VPX, the provision applies to only those “fees 

incurred in the course of post-confirmation defense of the award.”

The district court correctly rejected VPX’s interpretation of 

the distribution agreement. The plain terms of the agreement 

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require “a Party challenging the award” to pay attorney’s fees “incurred by the other Party in defending the award” “if the award is 

confirmed by a court of competent jurisdiction.” Although confirmation by a court is required to obtain attorney’s fees, nothing in 

this language purports to require that the “challenging” or “defending” occur after confirmation. And we will not add unnecessary 

language to the provision. As written, the provision disincentivizes 

litigation against or resistance to arbitration awards, making attorney’s fees available to the defender of the award unless the challenge is successful. 

VPX’s proposed interpretation also renders other language 

in the provision superfluous. Under the distribution agreement, 

recovery for attorney’s fees may be triggered by either “challenging

the award or resisting enforcement of a judgment entered upon the 

award” (emphasis added), plus corresponding conduct by the other 

party. And as VPX itself points out, “[a]n arbitration award does 

not become a ‘judgment’ until a court confirms the award.” So 

“resisting enforcement of a judgment” already seems to cover the 

scenario where a party challenges an arbitration award after court 

confirmation, rendering the language “challenging the award” superfluous. VPX fails to explain how, in its understanding, “challenging the award” is distinct from “resisting enforcement of a 

judgment upon the award” in the post-confirmation context, or 

why the parties would draw that distinction. In our view, the more 

natural reading of this provision is that it permits recovery of attorney’s fees by a party who prevails in confirming an arbitration 

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21-13167 Opinion of the Court 11

award in court over the other party’s opposition. That’s the case

here. 

Nor are we persuaded by VPX’s argument that the distribution agreement did not authorize fees for “preliminary” or “interim” awards. In its December 2020 ruling, which VPX did not 

appeal, the district court determined that the Interim Order “granting equitable relief to Pepsi is sufficiently final to be confirmed under the FAA.” The court noted that the Interim Award had compelled VPX to perform the contract pending arbitration, and it reasoned that “[d]istrict courts must have the power to confirm and 

enforce such injunctive relief as ‘final’ for it to have teeth.” It also

rejected VPX’s arguments that the award was not final because it 

was subject to vacatur or reversal by the full arbitration panel.

VPX could have sought immediate review of that ruling

with this Court, but it did not. See 9 U.S.C. § 16(a)(1)(D) (“An appeal may be taken from an order confirming or denying confirmation of an award or partial award.”). The case then moved on to 

what was effectively a post-judgment motion for attorney’s fees, 

which is what this appeal concerns. This appeal is not an opportunity for VPX to make arguments it could have presented though 

a timely appeal of the December 2020 order.

And if, as the December 2020 order concluded, the Interim 

Award was a sufficiently final “award” to be confirmed under the 

FAA, see 9 U.S.C. § 9, it follows that it is likewise an “award” for 

purposes of the distribution agreement. VPX offers no reason why 

we should not read the two uses of “award” in harmony. We also 

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reject VPX’s assertion that Pepsi was not “defending” the award by 

seeking confirmation in VPX’s federal case. Though it filed suit 

before the Interim Award, VPX sought relief directly contrary to 

that award and then opposed Pepsi’s efforts to confirm the award. 

In our view, the attorney’s fees provision plainly applies to the circumstances here. Thus, Pepsi was entitled to recover attorney’s 

fees under the distribution agreement. 

B. Whether the Fee Award Should Have Been Deferred

The district court also did not abuse its discretion by refusing 

to defer consideration of attorney’s fees pending resolution of the 

arbitration. The magistrate judge addressed and rejected VPX’s arguments on this point, finding its proffered caselaw distinguishable 

and observing that “any decision to defer the fee award would be 

inconsistent with the Court’s earlier determination that the Award 

is sufficiently final to be confirmed under the FAA.” Because VPX 

did not object to this determination before the district court, despite being warned of the consequences, it waived review of that 

determination on appeal, except for plain error. See 11th Cir. R. 3-

1.2 

2 Eleventh Circuit Rule 3-1 states,

A party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in 

accordance with the provisions of 28 U.S.C. § 636(b)(1) waives 

the right to challenge on appeal the district court's order based 

on unobjected-to factual and legal conclusions if the party was 

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Nothing in the record suggests that plain-error review is appropriate here. See Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257 

(11th Cir. 2017), abrogated on other grounds by Bostock v. Clayton 

Cty., Ga., 140 S. Ct. 1731 (2020). As the magistrate judge stated, in 

this case, in contrast to the cases VPX cited, nothing was left to resolve in federal district court apart from attorney’s fees. The court 

had confirmed the arbitration award and dismissed VPX’s claims, 

leaving nothing but the issue of whether Pepsi was entitled to fees 

in relation to confirming that award. In these circumstances, the 

court reasonably decided not to defer ruling on this discrete issue 

pending the final resolution of the arbitration. 

C. The Amount of Pepsi’s Recovery

Having concluded that Pepsi was entitled to recover attorney’s fees under the distribution agreement, we turn to the amount 

of its recovery. VPX maintains that the number of hours awarded 

was plainly excessive, and that Pepsi’s attorneys cannot receive 

non-local rates without showing that local attorneys were unable 

or unwilling to do the work or that cost-saving efficiencies resulted 

from Pepsi’s use of non-local counsel.

At bottom, a reasonable attorney’s fees award is determined 

by multiplying hours reasonably expended by a reasonable hourly 

rate. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 

1292, 1299 (11th Cir. 1988). A district court has “wide discretion in 

informed of the time period for objecting and the consequences on appeal for failing to object.

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performing these calculations.” Am. Civil Liberties Union of Ga. 

v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quotation marks omitted). Still, its order “must allow meaningful review—the district 

court must articulate the decisions it made, give principled reasons 

for those decisions, and show its calculation.” Id. (quotation marks 

omitted). 

1. Hours Reasonably Expended

By adopting the magistrate judge’s report and recommendation, the district court found that Pepsi reasonably expended approximately 140 hours defending the award. That included a “minor reduction” of 10 hours to account for Pepsi’s incurring a substantial number of hours—by our rough count, approximately half 

of the 182.4 hours requested—before the Interim Award issued on 

December 7. While the court recognized that Pepsi may have done 

unnecessary work, it said it was “likely that Pepsi would have incurred the substantial majority of the hours it did incur had it 

waited to work on the confirmation motion.” 

We are unable to conduct meaningful review. The district 

court itself recognized that some of Pepsi’s time entries contained 

“very limited descriptions regarding the tasks completed,” which 

made it impossible “to ascertain every issue Pepsi spent time addressing” and whether each issue was relevant to defending the 

award or not. For example, Pepsi’s time records show roughly 30 

hours billed for “revis[ing] [the] motion to confirm”—not including 

hours “research[ing],” draft[ing],” “analyz[ing],” or “confer[ring]”—before the Interim Award issued, without further 

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detail. Without more, we cannot tell the court’s basis for concluding that Pepsi still would have incurred substantially all this time 

“had it waited to work on the confirmation motion,” or that the 

time could otherwise be considered time expended in defending 

the award. Cf. Barnes, 168 F.3d at 436 (stating that, with proper 

proof, preliminary or pre-litigation time may properly be considered time “reasonably expended on the litigation” for purposes of 

awarding fees under 42 U.S.C. § 1988). We therefore vacate and 

remand for further proceedings on this issue.

2. Reasonable Hourly Rate

 “A reasonable hourly rate is the prevailing market rate in the 

relevant legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation.” Barnes, 168 

F.3d at 436 (quotation marks omitted). “The general rule is that 

the relevant market for purposes of determining the reasonable 

hourly rate for an attorney’s services is the place where the case is 

filed.” Id. at 437 (quotation marks omitted). 

In Barnes, we stated that a fee applicant seeking non-local 

rates generally “must show a lack of attorneys practicing in that 

place who are willing and able to handle his claims.” Id. But we 

did not “rule out the possibility” of a case “where use of an attorney 

from a higher-rate market who had extensive prior experience with 

a particular factual situation could be justified because of efficiencies resulting from that prior experience.” Id. On the facts of 

Barnes, though, we concluded that “any finding that savings or efficiencies resulted from the use of non-local counsel . . . would be 

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clearly erroneous” because of excessive billing by the plaintiff’s 

non-local counsel. Id. at 438.

Applying Barnes, the district court awarded New York rates 

for Pepsi’s four attorneys, who were based in Washington, D.C., 

or Dallas, Texas. The court reasoned that, although local attorneys 

were able and willing to handle the matter, non-local rates were 

justified under Barnes by the need to act with haste, counsel’s extensive prior experience with the particular factual situation, and 

the peculiar circumstances of the case, which involved Pepsi’s defense of its New York arbitration award from VPX’s Florida lawsuit. Pepsi adds that it saved the parties substantial costs by seeking 

confirmation of the Interim Award in the Florida action, instead of 

pursuing a separate confirmation proceeding in New York, and 

that it should not be punished for promoting efficiency and judicial 

economy. 

However, the reasonableness of awarding non-local rates 

also depends in part on whether non-local counsel exercised billing 

judgment. See Barnes, 168 F.3d at 437–38 (“[I]n light of the fact 

that the plaintiffs’ attorneys billed 1072.95 hours for this case, many 

of which . . . were excessive, redundant, or otherwise unnecessary, 

any finding that savings or efficiencies resulted from the use of nonlocal counsel . . . would be clearly erroneous.”). Here, the district

court recognized that Pepsi’s requested fees were “excessive” to 

some degree. And the court’s assessment of that factor may—

though by no means “must”—change, given our remand regarding 

the number of hours reasonably expended defending the award. 

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Accordingly, we decline to resolve the issue of non-local rates at 

this time. 

IV.

In sum, the district court properly awarded attorney’s fees 

to Pepsi in connection with its efforts to obtain confirmation of the 

Interim Award, so we affirm that portion of the judgment. But we 

vacate and remand for further proceedings related to the amount 

of Pepsi’s award, with the caution that it “should not result in a 

second major litigation.” Barnes, 168 F.3d at 423 (quotation marks 

omitted).

AFFIRMED in part; VACATED and REMANDED in part. 

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