Federal Decision Highlights Differences Between Federal Versus California State Approaches; Second Circuit Does Allow Attorney an Equitable “Fallback” Approach.
At the California state law level, although it is a good idea to keep them, contemporaneous time records are not required substantiation in fee proceedings. (Chavez v. Netflix, Inc., 162 Cal.App.4th 43, 64 (2008).) Beyond that, the trial judges can base fee awards on their own independent determinations of the value of the legal services rendered. (PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084, 1096 (2000).) However, a much different set of constructs governs fee awards at the federal level, as a recent federal appellate decision reveals.
Scott v. City of New York, __ F.3d __, 2011 WL 1990806 (2d Cir. May 24, 2011) involved a district judge’s award of $515,179.28 in attorney’s fees to plaintiff’s attorney pursuant to the Fair Labor Standards Act’s fee shifting provision, 29 U.S.C. § 216(b). The problem was that attorney failed to keep contemporaneous time records, such that the district judge even on remand sustained the fee award based on her “personal observation” of the attorney’s work.
The Second Circuit vacated and remanded for reconsideration.
The reason was that New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983) essentially established a hard-and-fast rule that contemporaneous time records were needed as fee substantiation in all but the rarest of cases. The district court’s reliance on “personal observation” of attorney’s work did not suffice because “it is difficult if not impossible for courts of appeal to meaningfully review awards based entirely on a district court’s sense of fairness.” (Scott, supra, 2011 WL 1990806 at *2.)
However, it did attempt to come up with an equitable compromise. Despite the absence of contemporaneous time records, the Second Circuit did allow the attorney to present his time by analysis of official court records (such as the docket, minute entries, and transcriptions of proceedings) as substitute reliance documentation of compensable hours. The onus was on the attorney, not the district court, to make this analysis, with this approach not running afoul of Carey and with “such a regime prevent[ing] a totally inequitable result in cases such as this . . . .”
The appellate court also found that a $550 hourly rate was reasonable in nature.
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