Typically, parties on the same side of the V like to put up a united front. Whatever things might look like behind the scenes, in public, they make a big show of laughing loudly at each other's jokes and slapping one another on the back with more than necessary force.
Apparently, that all goes out the window when fees are on the line.
Earlier this year, Judge Andrews awarded the defendants attorneys' fees in M2M Solutions LLC v. Sierra Wireless America, Inc, C.A. No. 14-1102-RGA (D. Del. Aug 16, 2022) (Clarifying Order), largely because the plaintiffs had pressed an infringement theory contrary to the Court's claim construction.
As it happened, there were two unrelated plaintiffs in the case. M2M, was the original owner of the patents. Shortly after filing suit, M2M assigned their interest in the patents-in-suit to Blackbird, who was then joined as a party. Plaintiffs then attempted to simply substitute in Blackbird as plaintiff, but defendants objected on the grounds that they might need discovery from M2M. So M2M stayed on as a nominal plaintiff with little apparent role in the proceedings. In fact, while they continued to be represented by the same Delaware counsel as Blackbird, M2M's lead counsel withdrew from the case and were never replaced.
Despite this issue, neither side distinguished between the plaintiffs in briefing the fees motion. The only reference to M2M being differently situated was a letter from plaintiffs "to clarify statements in Plaintiffs’ Opposition to Defendants Motion for Fees" which added a note that, pursuant to the agreement between M2M and Blackbird, Blackbird was responsible for the litigation after assignment. D.I. 234. Unsurprisingly then, Judge Andrews' opinion granting attorneys' fees did not distinguish between the plaintiffs either, and simply granted the defendants' motion and ordered further proceedings on the amount.
This is when the real fissure formed. M2M immediately retained new Delaware counsel (as opposed to sharing with Blackbird) and moved for "clarification" of the Court's order granting fees. Defendants opposed this clarification for obvious reasons, but interestingly Blackbird neither joined nor opposed the request.
Noting that he "rarely grants" such motions, Judge Andrews clarified that "attorney fees are awarded only against Blackbird" because "it would be a manifest injustice to award attorney fees against M2M considering that, so far as I can see, M2M would have been out of the case long before 2020 but for Defendant's objection."
It's important to note that M2M set itself up for success on this motion early in the case. The key fact that the Court relied upon—that defendants objected to M2M leaving the case entirely—was actually stated in the unopposed motion adding Blackbird as a party. D.I. 51. I suspect that, without that clear concession, the issue could have been significantly more contentious.
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