Limiting Prevailing Party Attorneys’ Fees
Recently, a federal judge in San Francisco limited the prevailing plaintiff’s attorneys’ fees in a Disabilities Act case, giving a blueprint for how to attack excessive fees.
Fees of $1.4 million were sought. The defendant restaurant argued the fees and costs should be no more than $400,000. The court found that “unsurprisingly, the appropriate amount falls somewhere along the million dollar spectrum between the parties’ requests,” awarding approximately $750,000.
In reducing the fee request, the court limited the attorney rates, reduced the requested hours, and imposed a negative “multiplier” of 20 percent due to limited success in the case.
In Rodriguez v. Barrita Inc., dba La Victoria Taqueria, plaintiff prevailed after five years of litigation in a case brought under the Americans With Disabilities Act (ADA) and the similar California statute establishing two violations at the defendant restaurant and failing on eight other alleged barriers.
Fees were recoverable on a lodestar basis, i.e., reasonable rates times reasonable hours. The question arose whether the fee award should reflect the attorneys’ current rates, which were higher than those in place when the case began in 2009. The court has discretion to apply the rates in effect at the time the work was performed. See Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997), but may also award fees at the attorneys’ current rate to compensate for the lengthy delay in receiving payment. Here, the court chose a middle route awarding 2013 rates, which were significantly lower than the rates in 2014 and consistent with previous rates for the same attorneys in earlier cases.
Defendant alleged overbilling concerning the 1,700 hours prosecuting a disability access case that culminated in a four-day bench trial. Defendant argued that the case was “relatively straightforward” and that plaintiffs’ attorneys were extensively experienced in litigating ADA cases and should have been more efficient. In response, plaintiffs’ counsel agreed to a 5 percent overall cut to guard against inefficiencies or inconsistencies in its billing practices. The court made further reductions, nonetheless.
The court found excessive conferencing between and among the five timekeepers who worked on the case. This was described as “excessive co-conferencing.” The main attorney spent 24 percent of his total time conferencing with his cocounsel. The court also found that it was “troubling” that “many of plaintiffs’ ‘conferencing’ entries simply do not match up.” The court analyzed trial counsel’s 38.8 hours spent conferencing with others at his firm and found that 24.4 of those hours could not be verified by a matching entry. All uncorroborated conferencing time was reduced.
The court reduced the time spent by one attorney observing an unrelated trial.
Two lawyers spent 39.1 hours preparing for and 18.5 hours attending a six-hour mediation. The court stated “even assuming it was reasonable for two attorneys to attend the conference, plaintiff makes little attempt to explain why two highly experienced attorneys and a paralegal needed to spend so much time preparing for the conference.” The preparation time was significantly reduced.
Plaintiffs used three attorneys and two paralegals for a total of 123.5 hours to prepare the motion for attorneys’ fees. The court reduced the time for the motion, but only by 25 hours.
Of particular interest, the court made a 20 percent reduction because plaintiff only achieved partial success on his claims. The court did not undertake to identify specific hours that should be eliminated concerning unsuccessful claims, but simply made a wholesale reduction, termed a “haircut.”
Most often, for a challenge for lack of success to prevail, specific hours should be identified which were unrelated to the successful claims, see Thorne v. City of El Segundo, 802 F.2d 1131, 1141. In this case, the court didn’t need such specificity and simply lopped 20 percent from the fee request.
The court’s decision in Rodriguez shows the level of analysis which is necessary to significantly reduce a prevailing party’s fees. In our experience, such fee requests may well be excessive, but success in challenging the fees will depend upon a detailed showing as to lack of success and the fees related to unsuccessful theories and specific areas of unreasonableness, quantified with particularity.
André E. Jardini