The Defend Trade Secrets Act (“DTSA”) lays out specific circumstances under which attorneys' fees may be awarded, all involving some form of misconduct by the party from whom fees are sought: “[I]f a claim of the misappropriation is made in bad faith, . . . a motion to terminate an injunction is made or opposed in bad faith, or the trade secret was willfully and maliciously misappropriated, [the court may] award reasonable attorney's fees to the prevailing party.” 18 U.S.C. § 1836(b)(3)(D). Interpreting other statutes that use the term “reasonable attorney's fees,” the U.S. Supreme Court has held that such language allows recovery of paralegal time as well, but not out-of-pocket costs, such as expert witness fees. See West Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 99-100 (1991) (allowing recovery of “separately billed paralegal and law clerk time” but not “expert services” under 42 U.S.C. § 1988). And because the statute is phrased in permissive terms using the word “may,” whether to award attorneys' fees is a matter of discretion for the court. 

Courts often consider fee awards under the DTSA using the familiar “lodestar approach” to calculating fee awards. See, e.g., KPM Analytics N. Am. Corp. v. Blue Sun Sci., LLC, 2024 WL 4476538, at *3 (D. Mass. Oct. 11, 2024). Under that approach, a district court has “broad” discretion to determine what reasonable fees and costs should be awarded. United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir. 1988). The court need not accept the hours and rates offered by the prevailing party. Indeed, the attorneys' records should be “scrutinized with care.” Grendel's Den, Inc., 749 F.2d at 950. However, “trial courts need not, and indeed should not, become green-eyeshade accountants,” because “[t]he essential goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011).

The lodestar approach first “requires the district court to ascertain the number of hours productively expended and multiply that time by reasonable hourly rates.” Spooner v. EEN, Inc., 644 F.3d 62, 68 (1st Cir. 2011). The party seeking the award bears the burden of establishing both the time and rate components of the calculation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This may include providing “contemporaneous time and billing records and information establishing the usual and customary rates in the marketplace for comparably credentialed counsel,” Spooner, 644 F.3d at 68 (citation omitted).

In fashioning the lodestar, the court first determines “how much compensable time counsel spent on the case, deleting any ‘duplicative, unproductive, or excessive hours.'” Spooner, 644 F.3d at 68 (quoting Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001)). “[T]he court has a right—indeed, a duty—‘to see whether counsel substantially exceeded the bounds of reasonable effort.'” Metro. Dist. Comm'n, 847 F.2d at 17 (quoting Pilkington v. Bevilacqua¸ 632 F.2d 922, 925 (1st Cir. 1980)).

After determining the number of hours reasonably expended, the court then multiplies the compensable time by the prevailing rates in the community, thereby yielding the lodestar amount. Gay Officers Action League, 247 F.3d at 295. In deciding a reasonable hourly rate, the court must consider “the type of work performed, who performed it, the expertise that it required, and when it was undertaken.” Hefter Impact Techs., LLC v. Sport Maska, Inc., 2017 WL 5798642, at *2 (D. Mass. Nov. 28, 2017) (quoting Grendel's Den, 749 F.2d at 950).

Although the calculated lodestar amount “represents a presumptively reasonable fee,” Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992), the court retains “extremely broad” discretion to adjust it up or down based on other factors not captured in the calculation, see, e.g., Pérez-Sosa v. Garland, 22 F.4th 312, 320-21 (1st Cir. 2022). Those factors include: 

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 

Diaz v. Jiten Hotel Mgmt., 741 F.3d 170, 177 n.7 (1st Cir. 2013) (quoting Hensley, 461 U.S. at 430 n.3) (internal quotations omitted).

In Insulet Corp. v. EOFlow Co. Ltd., No. 23-11780-FDS (D. Mass. Feb. 5, 2026), the District of Massachusetts awarded $14,874,000 in attorneys' fees to the DTSA plaintiff who faced substantial damage to its business from what the jury found was willful and malicious misappropriation of its trade secrets involving the wholesale theft of the design of its principal product. Plaintiff had sought $30 million in fees, but “oversized staffing of trial teams leads inevitably to substantial inefficiencies that in turn generate fees far beyond what is reasonably necessary.” Accordingly, the Court reduced the requested fees “by 30 percent for an unreasonable number of hours billed and by a further 10 percent for failing to provide sufficient descriptive information to the Court, for a total of a 40 percent reduction.”

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