909 F.3d 1186
D.C. Cir.2018Background
- Kenneth Feld was sued by his sister; he retained Fulbright & Jaworski to defend and FFIC (insurer) agreed to defend under a reservation of rights and to pay "reasonable and necessary" fees.
- FFIC proposed lower, fixed hourly rates ($250 partners; $225 associates; $100 paralegals) through communications between FFIC claims manager Kirk and Fulbright associate Mew in Sept–Oct 2009; Kirk followed with an email on Oct 4, 2009, restating those rates.
- Fulbright sent a non‑binding budget on Oct 28, 2009 that used FFIC’s proposed rates but expressly disclaimed that the budget was a binding fee commitment; Fulbright continued to bill at its usual (higher) rates.
- FFIC paid invoices adjusted to its preferred rates and ultimately paid about $2.1 million; Fulbright billed about $4.5 million and Feld sued FFIC for the $2.4 million difference after prevailing in the underlying suit.
- The District Court granted partial summary judgment for FFIC, finding a binding rate agreement; Feld appealed. The D.C. Circuit reversed the grant of summary judgment on the rate‑agreement issue and remanded for trial, but affirmed denial of Feld’s motion to compel FFIC–counsel communications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a binding rate agreement existed | No binding agreement: communications were disputed, the budget expressly non‑binding | Yes: Kirk’s email + budget incorporating FFIC rates = agreement | Reversed summary judgment; existence of agreement is a fact question for jury |
| Whether the Oct 28 budget constituted acceptance | Budget was a placeholder and disclaimed binding effect | Incorporation of rates in budget amounted to acceptance | Court: reasonable juror could find either way; not resolved on summary judgment |
| Whether alleged agreement lacked consideration | FFIC already obligated to pay reasonable fees, so no new consideration | Parties exchanged promises; agreement would be supported by consideration | Court rejected lack‑of‑consideration argument; parties can contract on rates |
| Whether FFIC waived privilege as to communications with its counsel (motion to compel) | Feld sought FFIC–Rivkin Radler communications; argued waiver like Feld’s own waiver | FFIC maintained privilege; communications distinct from Feld–Fulbright waiver | Affirmed: District Court did not abuse discretion in denying motion to compel |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and credibility/jury function)
- Feld v. Feld, 688 F.3d 779 (underlying appeal affirming verdict in underlying litigation)
- United States v. Spicer, 57 F.3d 1152 (summary judgment: reversible when contrary inferences plausible)
- Wash. Inv. Partners of Del., LLC v. Sec. House, K.S.C.C., 28 A.3d 566 (consideration and contract formation principles under D.C. law)
- Riggs v. Aetna Ins. Co., 454 A.2d 818 (consideration adequacy not for court to probe)
- Ideal Elec. Sec. Co., Inc. v. Int’l Fidelity Ins. Co., 129 F.3d 143 (attorney‑client privilege waiver in fee disputes)