District Court Will Not Award Requested $2 Million in Fees Sought by Individual Plaintiffs.
In early August 2008, the Ninth Circuit decided that anything more than a 10% fee "haircut" to prevailing civil rights plaintiffs is seldom justifiable unless specific reasons are set forth for more drastic reductions. See Moreno v. City of Sacramento, discussed in our August 2, 2008 post. The next case shows the methodology a Southern California federal district judge used in reducing fee requests to winning civil rights plaintiffs by about 54%.
On September 3, 2008, U.S. District Judge Gary Allen Feess of the Central District of California granted prevailing plaintiffs about $1.1 million out of requested $2 million in fees for two law firm's work in obtaining nullification as well as issuance of a permanent injunction to prevent enforcement of Measure E, a biosolids ban ordinance implemented by defendant Kern County. See City of Los Angeles v. County of Kern, Case No. CV 06-5094 GAF (VBKx) (9/3/08 Order Regarding Individual Plaintiffs' Third Motion For Attorney's Fees).
Neither side disputed that individual plaintiffs were entitled to a fee recovery as the prevailing parties under the civil rights statute, 42 U.S.C. sec. 1988, especially based on the results they did obtain with respect to Measure E. Individual plaintiffs moved for fees twice previously, but District Judge Feess denied the requests based on incomplete briefing or inadequate fee substantiation. That brought everyone to plaintiffs' third fee motion.
Judge Fees had no difficulty with the blended rates -- $395 and $380 per hour – being claimed; they were deemed reasonable in nature. He did take issue with the number of hours claimed to have been expended in prosecuting the action.
The first "check" on reasonableness was the fact the defense spent 764.20 hours in total defending the action compared to plaintiffs' effort to recover compensation for 738.60 hours in just "preparing" the 29-page Complaint. (See Democratic Party of Washington State v. Reed, 388 F.3d 1281, 1287 (9th Cir. 2004) [while not dispositive, one good indicator of how much time is necessary is "how much time the other side's lawyer spent"].)
The second "check" on reasonableness was Judge Feess taking his experience as a prior litigator of complex matters and comparing it with the testimony of defense expert Gary Bresee, a partner at Barger & Wolen LLP and 20-year litigator. Judge Feess found Mr. Bresee's testimony highly persuasive. The reductions, by category, broke down this way:
· Complaint preparation, motions to dismiss oppositions, preliminary injunction motion, intervenor motion oppositions, and summary judgment oppositions—Judge Feess was shocked that it would take 19 40-hour weeks and more than 25 hours a page to prepare a complaint that alleged many of the same claims as the City of Los Angeles' prior state court action. He also found that the other motions could have been prepared with more efficiency or involved fairly straightforward issues. Judge Feess adopted Mr. Bresee's 35% reduction for requested fees, although scaling it back to 25% for one of the firms.
· Excessive conferences—Judge Fees was bothered that 21% of one firm's time was spent on inter-office conferencing with the other law firm or intra-office conferencing. Mr. Bresee had never seen such a high amount of conferencing, suggesting a 50% reduction that was adopted by the district judge. (See Guckenberger v. Boston Univ., 8 F.Supp.2d 91,100-101 (D. Mass. 1998) [over-conferencing condemned; "just as there can be too many cooks in the kitchen, there can be too many lawyers on a case."].)
· Multiple attendance by attorneys ("attorney stacking")—Judge Feess rejected 60% of these hours on the basis there was no need for having 3-5 attorneys attend specific hearings. (See Democratic Party, supra, 388 F.3d at 1286 [courts should look askance when three lawyers attend a hearing when one would do].)
· Excessive research hours—Judge Feess found that 23% of total fees were billed on research, which he found excessive given that the two law firms were retained based on their expertise in environmental law litigation. Also, many entries of research items were billed for investigating basic civil procedure principles that should not have required that much effort. Judge Feess reduced research hour requests by 30%.
· Transient billers—These are timekeepers that were only involved on the case for "spot" projects or had a small amount of participation in the case before moving to other ventures. Although Mr. Bresee suggested a reduction, Judge Feess found the transient biller time was compensable.
· Clerical and documentation activities—Judge Feess did not disagree that pure clerical tasks—such as investigation or compilation activities—should be billed at lesser rates. (See Doran v. Vicorp Restaurants, Inc., 407 F.Supp.2d 1120, 1125 (C.D. Cal. 2005.) However, he did find that preparing binders, entering documents into databases, and organizing case materials involved some exercise of insight and discretion, requiring legal training, so as to not justify a reduction in this particular circumstance.
· Excessive "fees on fees" (prosecuting the fee claims themselves)—Judge Feess primarily disallowed time expended on the first two motions based on inadequate briefing and deficient substantiation of the fee requests. He also reduced time on supplemental paperwork which was ordered because the original submissions were not presented in a "readable, consistent manner."
· Vague entries—Several vague entries—"review correspondence"—were disallowed for not allowing meaningful review of the nature of the services that were being performed.
City of Los Angeles is must reading on the methodology that can be used by a federal district judge to reduce the lodestar in civil rights cases. However, it also highlights many pet peeves of clients – in-house counsel, insurance carriers, or otherwise – that pop up when attorney billings are being reviewed for payment.
Judge Feess' ruling is available here: Download haircut.pdf
For her September 6, 2008 article entitled, "Legal bill tossed as excessive," DailyNews reporter Kerry Cavanaugh spoke with California Attorney's Fees contributor Mike Hensley.