Slip Copy, 2005 WL 1578810 (E.D.La.)
United States District Court,
Kristen K. WHITE
IMPERIAL ADJUSTMENT CORPORATION et al.
No. Civ.A. 99-3804.
June 28, 2005.
SECTION "N" (2)
ORDER AND REASONS
*1 Plaintiff, Kristen K. White, brought this putative class action against Imperial Adjustment Corporation, Imperial Fire and Casualty Insurance Company (collectively referred to herein as "Imperial"), Equifax Credit Information Services, Inc. and Equifax, Inc. [FN1] under the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681 et seq. Equifax Information Services LLC ("EIS") was substituted as the successor in interest to Equifax Credit Information Services, Inc. and Equifax Inc.
FN1. Equifax, Inc. was dismissed without opposition from plaintiff. Record Doc. No. 240.
White alleged that Imperial, an insurance company, violated the FCRA when it obtained her credit report and the credit reports of other putative class members from EIS without their consent and for an impermissible purpose. She further alleged that EIS violated the FCRA by failing to maintain reasonable procedures for providing credit reports to insurance companies.
Imperial and EIS agreed to settle the action by paying each class member $900 for each member's credit report that Imperial had obtained. Imperial agreed to pay a specified amount of attorney's fees and costs, while EIS agreed to pay a reasonable amount of attorney's fees and costs, to be determined by the Court. The undersigned preliminarily approved the terms of the settlement, ordered plaintiff to submit an application for attorney's fees and costs, and referred the application to the assigned Magistrate Judge for findings and recommendation. Record Doc. No. 242. The settlement agreement was filed into the record. Record Doc. No. 251.
White timely filed an application seeking attorney's fees and costs from EIS, Record Doc. No. 245, and filed some corrected pages and supplemental exhibits. Record Doc. Nos. 248, 249, 252. In her original submissions, plaintiff seeks attorney's fees in the total amount of $924,300, plus enhancement by a factor of two, for a total of $1,848,600. Record Doc. Nos. 245, 248, 249, 252. EIS argues in its opposition that an appropriate attorneys' fee award would be approximately $180,000. Record Doc. No. 257. White filed a reply memorandum, Record Doc. No. 259, and obtained leave to file a new decision supporting her arguments. Record Doc. Nos. 268, 269. [FN2]
FN2. The Magistrate Judge denied plaintiff's requests for leave to file two additional reply memoranda and to supplement the record with an article from the National Law Journal. Record Doc. Nos. 262, 266.
On April 22, 2005, the Magistrate Judge entered his "Findings and Recommendation", recommending that plaintiff's motion be granted in part and denied in part. Record Doc. No. 274. In a letter to the undersigned and in a formal objection filed with the Court, Record Doc. No. 279, [FN3] plaintiff objected to the "Findings and Recommendation", in part on the basis that the Magistrate Judge had participated in prior settlement discussions between the parties concerning the attorney's fee dispute. Although White had not previously objected to the referral to the Magistrate Judge of her application for attorney's fees, she now argued that the Magistrate Judge's consideration of her application had been tainted, willfully or subconsciously, by his knowledge of the parties' settlement positions. The Magistrate Judge vacated his "Findings and Recommendation", recused himself and directed the Clerk of Court to reallot the case to another Magistrate Judge. Record Doc. No. 275.
FN3. White subsequently received leave to file a revised objection, Record Doc. Nos. 281, 282, and her original objection was ordered sealed. Record Doc. Nos. 293, 294.
*2 Following the reallotment, the undersigned vacated the order of reference to the Magistrate Judge, ordered that plaintiff's objection to the vacated "Findings and Recommendation" was moot and scheduled oral argument on plaintiff's application for attorney's fees and costs. The Court ordered that no further written submissions would be accepted concerning attorney's fees and costs and that the Court would consider only those materials that had been before the Magistrate Judge. [FN4]
FN4. The undersigned has also incorporated any positions taken by the parties at the Magistrate Judge's hearing that are not reflected in the written materials. Specifically, where a concession or correction was made at the hearing, it is accepted herein. Additionally, following independent review of the memoranda and supporting exhibits, the undersigned has adopted certain of the Magistrate Judge's work as logical, correct and well-supported, in addition to his statements of well-settled legal principles applied herein.
The parties agree that fees for attorney time spent exclusively on issues related to Imperial are not recoverable from EIS. Plaintiff deleted from her fee request some time entries that she acknowledges were related solely to Imperial. EIS argues that additional entries should have been deducted in this category.
Apart from the parties' dispute as to the amount of attorneys' fees, EIS does not dispute the costs sought by plaintiff's lead counsel, Dawn Adams Wheelahan, in the amount of $12,507.32. However, EIS argues that all of the costs in the amount of $7,529.75 sought by plaintiff's co-counsel, the law firm of Motley Rice LLC (formerly Ness, Motley, P.A., Inc.), should be disallowed.
At oral argument before the undersigned on May 25, 2005, plaintiff's counsel conceded that she was no longer seeking any fees in connection with another class action against EIS that had been filed in this Court by her lead counsel, Dawn Adams Wheelahan, styled Bernita Washington et al. v. CSC Credit Services Inc. and Equifax Credit Information Services, Inc., Civil Action No. 97-971 "C" (4), except the time spent taking the Rule 30(b)(6) deposition of EIS, which was used in the instant action and which EIS does not contest. This concession reduces the amount of attorney's fees sought by White from $924,300 to $899,675, enhanced by a factor of two to $1,799,350.
Following oral argument, the Court took plaintiff's application under advisement.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case has a perdurable procedural history that must be taken into account when considering plaintiff's fee application.
White was an uninsured motorist who was involved in an accident with an automobile driven by James Walker, in which his wife was a passenger. The Walkers sustained damages and filed a claim under their uninsured motorist policy, which was underwritten by Imperial Fire & Casualty Company. Imperial paid the claim.
In an attempt to locate White so it could file a subrogation lawsuit against her, Imperial obtained White's credit report six times from EIS without her permission and in violation of the FCRA's exclusive list of permissible purposes. 15 U.S.C. § 1681b.
White filed the instant lawsuit against the Imperial defendants on December 20, 1999, alleging that Imperial had violated the FCRA by obtaining her credit report and the credit reports of class members without their permission and for impermissible purposes. About one month later, White amended her complaint to add the Equifax defendants and alleged that EIS had also violated the FCRA by failing to maintain "reasonable procedures" for providing credit reports to insurance companies. Id. § 1681e.
*3 Imperial answered with an affirmative defense of set-off of the amount that White allegedly owed it and asserted a counterclaim against White based on subrogation. Record Doc. No. 40. The then-presiding District Judge, Carl J. Barbier, granted plaintiff's motion to strike Imperial's affirmative defense and to dismiss the counterclaim. Record Doc. No. 55.
Plaintiff initially sought certification of two classes in this matter: the Imperial class and the ChoicePoint class. She moved to certify the Imperial class in November 2000 and argued the motion in December 2000. Record Doc. Nos. 57, 81. The Imperial class consisted of approximately 186 members whose credit reports Imperial had obtained from EIS without the members' consent.
On March 15, 2001, before the Court ruled on her motion to certify, White moved to amend and expand the class definition and to certify a re-defined class and a subclass. Record Doc. No. 94. This motion sought to certify both the Imperial class, as previously defined, and the ChoicePoint class. The ChoicePoint class consisted of approximately 49,000 persons whose credit reports EIS had provided to ChoicePoint, Inc., a reseller of credit reports, for an allegedly impermissible purpose without the class members' consent. Plaintiff's previous class certification motion was denied as moot after she filed this motion. Record Doc. No. 95.
After hearing oral argument, Judge Barbier denied White's motion to certify the ChoicePoint class and granted her motion to certify the Imperial class on May 16, 2001. Record Doc. No. 109. Plaintiff did not appeal the denial of certification of the ChoicePoint class. With leave of court, Imperial filed an interlocutory appeal from the Imperial class certification under Fed.R.Civ.P. 23(f).
From June 20, 2001 until June 14, 2002, the matter was stayed in this Court pending the appeal. Record Doc. No. 118. On June 10, 2002, the Fifth Circuit vacated the certification of the Imperial class and remanded the case. Record Doc. No. 146; White v. Imperial Adjustment Corp., No. 01-30740, 2002 WL 1397072 (5th Cir. June 10, 2002).
White renewed her motion for class certification. Record Doc. No. 134. After hearing oral argument, the undersigned, to whom the case had been reassigned, granted plaintiff's motion to certify the Imperial class on August 6, 2002. The undersigned rejected White's argument that it should reconsider Judge Barbier's ruling on the ChoicePoint class, and denied Imperial's request to reconsider Judge Barbier's prior dismissal of Imperial's counterclaim. Record Doc. No. 147.
The Fifth Circuit denied plaintiff's petition to appeal from this order under Fed.R.Civ.P. 23(f) on September 18, 2002. Record Doc. No. 162.
However, on November 18, 2002, the Fifth Circuit gave defendants leave to appeal from the same order and granted White's cross-petition to appeal. Record Doc. No. 163. On October 2, 2003, the Fifth Circuit affirmed the District Court's order, dismissed plaintiff's cross-appeal as improvidently granted and remanded the case. Record Doc. No. 166 (issued as mandate on December 16, 2003); White v. Imperial Adjustment Corp., No. 02-31149, 2003 WL 22259633 (5th Cir. Oct.2, 2003).
*4 On February 3, 2004, White moved for partial summary judgment on liability. Record Doc. No. 169. In March 2004, the Court approved plaintiff's proposed class notice and she moved for partial summary judgment on damages, costs and attorneys' fees. Record Doc. Nos. 179, 185, 188, 190. Defendants cross-moved for summary judgment on liability and damages. Record Doc. Nos. 180, 183, 186.
Plaintiff's counsel mailed class certification notices to all class members on April 7, 2004. Record Doc. No. 219.
The Court heard oral argument on the summary judgment motions on May 19, 2004. Record Doc. No. 217.
The assigned Magistrate Judge conducted a settlement conference on September 23, 2004. The parties reached an agreement (subject to court approval after a fairness hearing) concerning all claims against Imperial and the substantive claim against EIS, leaving for resolution only the reasonable attorney's fees and costs to be awarded to White against EIS. Record Doc. No. 241.
As previously described, the Magistrate Judge's "Findings and Recommendation" concerning White's application for attorney's fees and costs was vacated and the application is now pending before the undersigned, based solely on the materials that were before the Magistrate Judge.
A. The Lodestar
A court may award reasonable attorneys' fees for any "successful action" to enforce liability under the FCRA. 15 U.S.C. §§ 1681n, 1681o. The parties agree that the "lodestar" method, originally developed under the civil rights fee-shifting statute, should be used to determine a reasonable attorneys' fee.
Determination of reasonable attorneys' fees is a two-step process that begins with determination of the lodestar amount. First, the court calculates a lodestar by multiplying the number of hours reasonably expended by an appropriate hourly rate in the community for such work. The district court may then decrease or enhance the lodestar based on the following twelve factors:
"(1) the time and labor required; (2) the novelty and difficulty of the issues; (3) the skill required to perform the legal services properly; (4) the preclusion of other employment by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or circumstances; (8) the amount involved and 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) the award in similar cases."
Heidtman v. County of El Paso, 171 F.3d 1038, 1043 & n. 5 (5th Cir.1999) (quoting Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714, 717- 19 (5th Cir.1974)) (additional citations omitted).
The United States Supreme Court subsequently barred any use of the sixth factor. See Walker v. United States Dep't of Housing & Urban Dev., 99 F.3d 761, 772 (5th Cir.1996) (citing City of Burlington v. Dague, 505 U.S. 557, 567, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)). In addition, three of the Johnson factors, complexity of the issues, results obtained and preclusion of other employment, are fully reflected and subsumed in the lodestar amount. Heidtman, 171 F.3d at 1043. "[T]he court should give special heed to the time and labor involved, the customary fee, the amount involved and the result obtained, and the experience, reputation and ability of counsel." Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th Cir.1998) (citation omitted).
*5 The lodestar is presumptively reasonable and should be modified only in exceptional cases. Watkins, 7 F.3d at 457. The fee-seeker must submit adequate documentation of the hours reasonably expended and of the attorney's qualifications and skill, while the party seeking reduction of the lodestar must show that a reduction is warranted. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319, 329 (5th Cir.1995) (hereinafter "LP & L" ).
B. The Hourly Rates Charged by Plaintiff's Counsel
When considering whether the hourly rates sought by plaintiff's counsel are reasonable, the Court has reviewed the submitted declarations of her attorneys, Dawn Adams Wheelahan, Harold M. Wheelahan, III and Donni Young, each attesting to his or her qualifications and experience, to the accuracy of their contemporaneous time records and that they exercised billing judgment when compiling those records. Record Doc. No. 245, Plaintiff's Exhs. 1, 2, affidavits of Dawn Wheelahan and Harold Wheelahan; Record Doc. No. 252, Plaintiff's Exh. 1, Young affidavit.
Dawn Wheelahan is a solo practitioner, has been licensed to practice in Louisiana since 1988 and has developed an expertise in federal class action and consumer rights litigation. Harold Wheelahan is also a solo practitioner, licensed to practice in Louisiana since 1975. Young has practiced law since 1989 and has experience representing class action plaintiffs since 1996.
A reasonable hourly rate for an attorney's fee award is the prevailing market rate for attorneys of comparable experience in cases of similar complexity. Satisfactory evidence of the requested rate "should include declarations or evidence of rates actually billed and paid by plaintiff's counsel; rates charged by attorneys in similar lawsuits; and the relative skill of the attorney involved ." Henderson v. Eaton, No. 01-0138, 2002 WL 31415728, at * 5 (E.D.La. Oct.25, 2002) (Vance, J.) (citing Blum v. Stenson, 465 U.S. 886, 895-96 n. 11, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)) (additional citations omitted). "Hourly rates are to be computed according to the prevailing market rates in the relevant legal market, not the rates that lions at the bar may command." Hopwood v. State, 236 F.3d 256, 281 n. 107 (5th Cir.2000) (quotation omitted). The relevant legal market is the community where the district court sits. Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir.2002) (citations omitted).
An attorney's requested hourly rate is prima facie reasonable when she requests that the lodestar be computed at her "customary billing rate," the rate is within the range of prevailing market rates and the rate is not contested. LP & L, 50 F.3d at 328. Here, the rate sought by White's attorneys is admittedly not their "customary billing rate" because, as they explain, they do not customarily bill on an hourly basis, but on a contingency fee basis. Not surprisingly, EIS contests the requested rates as excessively high.
*6 White seeks an hourly rate of $500 for each of her attorneys. [FN5] She contends that the Fifth Circuit in Johnson mandated that the court look to the attorney's "customary fee," which she asserts is not the same as a customary hourly rate, although courts generally have interpreted it that way. She contends that class action attorneys, who typically take cases on a contingency fee basis, earn a "customary fee" for their work that far exceeds, when computed on an hourly basis, the customary rates that plaintiffs' counsel or, more typically, defense counsel bill for hourly work. White contends that prosecuting a class action is quite different from defending one, and thus the customary hourly rates earned by defense firms in the New Orleans legal community are hardly relevant when establishing a "customary fee" for her counsel.
FN5. White cites the hourly rates awarded to her counsel by Judge Berrigan of this Court following a settlement in Steven LeBlanc et al. v. TransUnion Corporation, C.A. No. 98-2081 "C"(4), which was consolidated with Washington. Plaintiff contends, albeit incorrectly, that Judge
Berrigan awarded hourly rates of $420 for Dawn Wheelahan and $510 for Harold Wheelahan in that case. Judge Berrigan clearly found that hourly rates of $140 and $170 were reasonable for these two attorneys, respectively, and multiplied these rates by the reasonable hours to find the lodestar. Judge Berrigan then enhanced the lodestar by a factor of three because she found that three of the Johnson factors justified an enhancement. Record Doc. No. 245, Plaintiff's Exh. 6, Order and Reasons (entered on April 5, 1999 as Record Doc. No. 175 in Washington, C.A. No. 97-971, consolidated with LeBlanc, C.A. No. 98-2081).
Plaintiff submits the affidavit of Michael G. Crow, a New Orleans attorney who has practiced since 1973, who states that he has served as lead and co-lead counsel in numerous class actions and that "the usual hourly billing rates for lead counsel in class action matters ranges from $375 to $650 per hour." Record Doc. No. 245, Plaintiff's Exh. 3. This affidavit is deficient in that the rate White seeks is the prevailing rate in this legal community, and Mr. Crow does not limit his opinion to any particular area. [FN6] Thus, it is vague and of little edification.
FN6. Mr. Crow's affidavit also fails to disclose the name, court (venue), or docket number of a single such case, or more importantly,
whether such hourly rates were awarded in FCRA class actions.
White also submits an affidavit from Mark E. Andrews, who states that he agreed to pay Dawn Wheelahan $512 per hour for representing him in an appeal in the Fifth Circuit Court of Appeals. Record Doc. No. 245, Plaintiff's Exh. 5. Evidence that a single client agrees to pay an extraordinarily high rate for Wheelahan to represent him as an appellee in a one-issue procedural appeal, see Andrews v. Trans Union, LLC, No. 02-31252, 2003 WL 21849640, at *1 (5th Cir. Aug.8, 2003), does not establish that such a rate is customary for plaintiff's counsel when prosecuting a class action at the trial level.
Finally, White provides an agreement between Dawn Wheelahan and another class action attorney, Michael A. Caddell, who agreed to pay Wheelahan a lump sum (which would yield an hourly rate of $547.94) to settle her claim for attorney's fees in a class action in South Carolina in which she participated personally as an objector to a settlement agreement. Record Doc. No. 245, at p. 19 & Plaintiff's Exh. 4. A settlement agreement between attorneys, one of whom represented only herself as an objector, is not relevant to establish the customary fee for pursuing a class action of this type in this jurisdiction.
EIS argues that the hourly rates for plaintiff's counsel should be based on the prevailing market rates in New Orleans for attorneys with similar skill and experience. EIS submits the affidavit of A. Gregory Grimsal to support a suggested hourly rate of $225 for White's attorneys.
Grimsal, a partner at the New Orleans law firm of Gordon, Arata, McCollam, Duplantis & Eagan, L.L.P., was admitted to practice in 1979. He has extensive experience in the federal courts of Louisiana, including class action defense (though his affidavit, while much more specific than Mr. Crow's, does not evidence FCRA class action fee charges specifically). He attests that his hourly billing rate is $225, and that his senior litigation partners, John M. McCollam and Ewell E. Eagan, Jr., are authorized by the firm to bill at hourly rates of $375 and $325, respectively, but that Mr. McCollam, who has 45 years of litigation experience, actually bills no more than $300 per hour on any case. Grimsal avers that $500 per hour is not in line with the rates charged by attorneys in the New Orleans area who have experience similar to plaintiff's attorneys. He opines that hourly rates of $190 to $225 are consistent with the rates charged by local attorneys with experience similar to White's counsel. Defendant's Exh. 30.
*7 The Court finds helpful the summary of hourly rates that were awarded in FCRA cases nationally [FN7] from 1996 to 2004, ranging from a high of $300 to a low of $140. Most of the fees were in the $200 to $235 per hour range. Defendant's Exh. 21. Even more helpful is EIS's summary of the hourly rates awarded in the Eastern District of Louisiana in class actions from 1995 to 2004. The highest was $350, but most of the awards were in the $200 to $225 per hour range. Defendant's Exh. 22.
FN7. EIS eliminated the rates awarded in cases in California and Chicago, which are clearly not comparable legal markets to New Orleans. Record Doc. No. 257, EIS's memorandum in opposition to plaintiff's application for attorney's fees, at p. 52 n. 14.
Only three years ago, the Fifth Circuit affirmed an award of $175 per hour for an attorney who had practiced employment law in the New Orleans area for fourteen years. Green v. Administrators of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir.2002). Moreover, a survey of attorney's fee awards recently made in both similar and more complicated cases in the Eastern District reveal the following:
1. Last year, Magistrate Judge Wilkinson awarded an uncontested rate of $225 per hour to partner-level counsel in Camp v. Progressive Corp., No. 01-2680, 2004 WL 2149079 (E.D.La. Sept.23, 2004), in a settlement of a nationwide collective action brought under the Fair Labor Standards Act.
2. In a Voting Rights Act case, Judge Lemelle denied an hourly rate of $225 for a civil rights attorney with 30 years of experience and a former federal judge, and awarded $200 per hour as reflective of the rate in this market for very experienced counsel. Sorapuru v. Mitchell, No. 02-2524, Record Doc. No. 63 (E.D.La. July 13, 2004).
3. In Johnson v. ChoicePoint Servs., Inc., No. 03-1061, 2004 WL 253460 (E.D.La. Feb.10, 2004), Magistrate Judge Shushan awarded $200 per hour in an FCRA case to an attorney who had practiced law for 22 years.
4. In a Title VII case, Magistrate Judge Wilkinson awarded $150 per hour to a lawyer who had been practicing for eight years, and granted an upward adjustment to $160 because the case was undesirable and presented significant time constraints. Jimenez v. Paw-Paw's Camper City, Inc., No. 00-1756, 2002 WL 257691, at *22 (E.D.La. Feb.22, 2002), aff'd, 2003 WL 1524644 (5th Cir.2003).
5. In a class action under the Fair Debt Collection Practices Act, Judge Vance approved $225 per hour for an attorney who had more than 25 years experience, had appeared and argued before the United States Supreme Court and three United States Courts of Appeals, and had contributed to literature on federal civil procedure. Henderson v. Eaton, No. 01-0138, 2002 WL 31415728, at *5 (E.D.La. Oct.25, 2002).
6. In a Title VII case, Judge McNamara awarded an hourly rate of $150 to counsel "who has been recognized as a leading attorney in employment law." Dufresne v. J.D. Fields & Co., Inc., No. 99-3714, 2001 WL 1661833, at *1 (E.D.La. Dec.19, 2001).
7. In a civil rights case in 2001, Judge Vance awarded $150 per hour to an attorney who had been admitted to the bar in 1977. Oyefodun v. City of New Orleans, No. 98-3283, 2001 WL 775574, at *9 (E.D.La. July 9, 2001).
*8 8. Judge Livaudais awarded $185 per hour to a civil rights attorney with 25 years of experience. Lalla v. City of New Orleans, 161 F.Supp.2d 686, 699 (E.D.La.2001).
9. In Yousuf v. UHS of De La Ronde, Inc., 110 F.Supp.2d 482, 490-91 (E.D.La.1999), Judge Livaudais awarded $195 per hour to an attorney who had practiced civil rights litigation for 24 years.
10. In a qui tam case, Judge Duval awarded high-end hourly rates of $250, $175 and $150 for attorneys with substantial experience because of the particular difficulty of the case and the lucrative and less risky business the lawyers were precluded from accepting. United States ex rel. Garibaldi v. Orleans Parish Sch. Bd., 46 F.Supp.2d 546, 569 (E.D.La.1999), vacated on other grounds, 244 F.3d 486 (5th Cir.2001).
The undersigned is aware that some of the most skilled and experienced attorneys practicing in this district, such as Mr. McCollam and other extremely qualified and seasoned litigators, might charge hourly rates of $375 to $400. However, most of those attorneys customarily charge their highest rates only for trial work. Lower rates may, and indeed should, be charged for routine work requiring less extraordinary skill and experience. Leroy v. City of Houston, 906 F.2d 1068, 1079, 1086 (5th Cir.1990). This case did not proceed to trial. Based on the undersigned's familiarity with the range of customary billing rates in this legal community, the decisions cited above and the evidence submitted by EIS convince the Court that the requested hourly rate of $500 is surely not in line with the prevailing market rate in the New Orleans legal community for attorneys with skill and experience similar to plaintiff's counsel.
The Court will compensate White's counsel at the prevailing rates for comparable attorneys practicing in the New Orleans area. For consistency's sake, the undersigned will utilize Judge Berrigan's award of $140 and $170 per hour to these same attorneys in 1999 as a baseline to reference reasonable rates today. Plaintiff's counsel could reasonably expect to be compensated at incrementally, but not exponentially, higher rates now that they have five more years of experience and considering that the cost of doing business has also increased incrementally over the same period. Based on Judge Berrigan's award and the other factors and evidence just cited, the undersigned finds that an hourly rate of $225 is at the top of the range of prevailing rates for lawyers with comparable experience and expertise in litigation of this type, and that $225 per hour is reasonable for each of plaintiff's attorneys in this matter.
Whether there should be any upward adjustment or enhancement of the lodestar amount is considered below.
C. The Hours Expended by Plaintiff's Counsel
White provided contemporaneous time sheets for her attorneys, deleting certain hours devoted solely to work concerning the Imperial defendants. Record Doc. No. 245. She later submitted some corrected time sheets that deleted additional hours. Record Doc. No. 249. The Court thus considers the reasonableness of the number of hours expended.
*9 White seeks fees for 1,653.75 hours worked by Dawn Wheelahan in the instant action, 9.5 hours worked by Dawn Wheelahan in the Washington action, [FN8] 98.75 hours worked by Harold Wheelahan in the instant action and 46.75 hours worked by Young in the instant action.
FN8. As previously noted, Dawn Wheelahan stated at oral argument before the undersigned that she has abandoned her claim to recover for more than these hours that she expended in Washington.
The fee-applicant must prove the reasonableness of the hours expended. Mota v. University of Tex., 261 F.3d 512, 528 (5th Cir.2001). Generally, all excessive, duplicative or inadequately documented time should be excluded from any award. Watkins, 7 F.3d at 457. Attorneys must exercise "billing judgment" by "writing off unproductive, excessive, or redundant hours." Walker, 99 F.3d at 769. Plaintiff bears the burden to prove that her attorneys exercised billing judgment. Id. at 770. When billing judgment is lacking, the Court must exclude from the lodestar the hours that were not reasonably expended. Hensley, 461 U.S. at 434. When there is no evidence of billing judgment, the Court should "reduce the hours awarded by a percentage intended to substitute for the lack of billing judgment." Walker, 99 F.3d at 770.
Plaintiff's application for attorney's fees is, for the most part, sufficiently detailed and well documented. EIS challenges numerous specific time entries, but requests generally that Dawn Wheelahan's and Harold Wheelahan's time be reduced by 50% for excessive work on the complaint, discovery, drafting of pleadings and motions, and preparation time; by 60% for excessive legal research; by 75% for excessive conferences between counsel; by 100% for all work related to the ChoicePoint class; by 100% for work related to Imperial that plaintiff has not already deducted; by 100% for work that is unrelated to this case and/or administrative; and by 50% for all time related to unreasonable settlement demands. EIS requests that Young's time be reduced by 60% overall.
In light of these objections, the undersigned has reviewed the attorneys' time records in conjunction with the written submissions in an effort to exclude inadequately documented, excessive, redundant or otherwise unnecessary or unreasonable hours, under the standards set forth in Hensley and Walker.
1. Billing Judgment
White's attorneys assert in their affidavits that they exercised billing judgment when recording their time and before submitting their records to the Court, but the only evidence of such judgment is their deduction of hours spent on matters related exclusively to the Imperial defendants. In light of EIS's argument for extensive, specific reductions on numerous grounds, many of which have merit, no deduction in the form of a percentage for counsel's failure to exercise billing judgment will be made, as additional deductions would result in a double penalty for the same shortcoming. Green, 284 F.3d at 662.
2. Plaintiff's Attorney's Fees Incurred in a Different Action
White abandoned her claim to recover in this action for attorney's fees incurred in Bernita Washington et al. v. CSC Credit Services Inc. and Equifax Credit Information Services, Inc., Civil Action No. 97-971 "C"(4), except for those fees for Dawn Wheelahan's time spent taking the Rule 30(b)(6) deposition of EIS. EIS does not dispute those fees because the deposition was also used in the instant action. Therefore, White may recover for 5.25 hours on April 23 and April 30, 1999 spent preparing for and taking that deposition. (The Court deducted .75 hours from counsel's total time claimed on April 23, 1999 because that time was spent preparing a notice of deposition for ChoicePoint, which is not compensable, as discussed in detail below.) White may also recover for 4.25 hours of travel time, which is 50% of the actual travel time [FN9] associated with the EIS deposition.
FN9. Courts in this circuit typically compensate travel time at 50% of the attorney's rate. Watkins v. Fordice, 7 F.3d 453, 459 (5th Cir.1993); Hopwood v. State, 999 F.Supp. 872, 914 (W.D.Tex.1998), aff'd in relevant part & rev'd in part on other grounds, 236 F.3d 256, 281 n. 107 (5th Cir.2000); Jackson v. Capital Bank & Trust Co., No. 90-4734, 1994 WL 118322, at *26 (E.D.La. Mar.30, 1994) (Heebe, J.).
*10 Therefore, plaintiff's total recovery for the Rule 30(b)(6) deposition of EIS is 9.5 hours.
3. The ChoicePoint Class and Other Unsuccessful Items
EIS argues that White should not receive attorney's fees for hours spent on her unsuccessful attempt to certify the 49,000-member ChoicePoint class. White argues that "the threat of appeal and eventual certification of that larger class ... contributed to the significant recovery of the [Imperial] class members." Record Doc. No. 259, at p. 7.
This action's procedural history indicates that the "threat" of ChoicePoint class certification had not existed for quite awhile before EIS and White agreed to settle. Judge Barbier denied White's motion to certify the ChoicePoint class on May 16, 2001. After the case was remanded following Imperial's appeal of the Imperial class certification, the undersigned on August 6, 2002 refused to reconsider Judge Barbier's ruling on the ChoicePoint class but did certify the Imperial class.
All parties filed interlocutory appeals and the Fifth Circuit affirmed the Imperial class certification in October 2003. The Fifth Circuit dismissed White's appeal as improvidently granted because the undersigned had merely refused to reconsider Judge Barbier's ruling on the ChoicePoint class and had neither granted nor denied certification, as required for a Rule 23(f) appeal.
The parties settled almost one year later. White's assumption that EIS feared in September 2004 that she would successfully appeal the denial of ChoicePoint class certification, and thus desired a settlement, is unsupported, and rather unlikely.
White also argues that her counsel's work on the claims of the two classes cannot be easily separated. A court need not segregate fees when the facts and issues are so closely interwoven that the time spent on separate claims or against separate defendants cannot reasonably be divided. Mota, 261 F.3d at 528. To determine whether claims are so interrelated that they cannot be separated, the court must ask whether the losing claims included a common core of facts or were based on related legal theories linking them to the successful claim. Brady v. Fort Bend County, 145 F.3d 691, 717 (5th Cir.1998); LP & L, 50 F.3d at 327; Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir.1992). If the answer to this inquiry is yes, the prevailing party may recover for the fees reasonably incurred in pursuing the intertwined claims. LP & L, 50 F.3d at 327.
First, the only cognizable links between the claims of the ChoicePoint class and those of the Imperial class were the statutory basis for the cause of action and EIS's status as the provider of credit reports. The recipients of the reports were resellers in the ChoicePoint class context and an insurance company in the Imperial class context. The Imperial class consisted of 186 members, none of whose credit reports were obtained through ChoicePoint, and the ChoicePoint class consisted of 49,000 members. Moreover, White was not a member of the ChoicePoint class and could not satisfy the typicality or adequacy of representation prongs of the Rule 23(a) test. Memorandum Opinion and Order, Record Doc. No. 147, at pp. 16-17. Thus, the claims of each class were not so intertwined as to be inseparable.
*11 As EIS has demonstrated in its submissions, many of the time entries devoted to discovery, certification and appeal of the ChoicePoint class are easily segregable, and all time spent on ChoicePoint class discovery will therefore be disallowed.
Second, White argued her motion to certify the Imperial class in December 2000. Record Doc. Nos. 57, 81. Her motion to amend and expand the class definition and to certify the re-defined class and a subclass sought to certify both the Imperial and the ChoicePoint classes. Record Doc. No. 94. This motion adopted her definition of the Imperial class and her arguments relating to that class from her previous motion to certify that class. Record Doc. No. 94, at pp. 2-3. Thus, all work done on the amended motion related solely to the unsuccessful ChoicePoint class certification. The Court will deduct all time devoted to researching, drafting, filing, arguing and appealing that motion.
EIS also contends that White should not recover attorney's fees for time spent on procedural motions in which she was the unsuccessful party or for time spent preparing a corrected brief to the Fifth Circuit. White responds that the Court may not deduct for unsuccessful motions or procedural matters. Citing Hensley, 461 U.S. at 435, which refers to "losing claims," she argues that the Court may deduct only for work related to unsuccessful claims and that she had no unsuccessful claims. The undersigned, however, has already found that her ChoicePoint class claims were unsuccessful.
When using the lodestar method to award attorney fees, courts routinely deduct time spent on unsuccessful, unfounded or unnecessary pleadings, motions, discovery requests and memoranda. For example, the Fifth Circuit affirmed an award that contained such deductions in Raspanti v. Caldera, No. 01-31236, 2002 WL 494939, at *2 (5th Cir. Mar.15, 2002); see also Leroy, 906 F.2d at 1084 (reducing award because of hours allocable to issues on which plaintiffs were unsuccessful).
EIS has highlighted in pink on its exhibits the time entries for each attorney that were devoted to ChoicePoint work or to other unsuccessful motions, memoranda or appeals by plaintiff. The undersigned agrees with most of defendant's requested deductions in these areas and with its divisions of time within block time entries, which list work done on ChoicePoint and other unsuccessful matters without separately itemizing the time spent on each task.
White should not be penalized for every unsuccessful procedural motion or opposition; simply because White lost a motion does not mean that her position was frivolous. Plaintiff's attorneys are obligated to represent their clients zealously, and the Court will not second-guess every unsuccessful strategic decision of plaintiff's counsel during this litigation. Therefore, the undersigned does not accept and will not make defendant's proposed deductions of time for unsuccessful matters on Dawn Wheelahan's time sheets on June 12, June 20, June 30, July 1, July 10 and July 11, 2001, and on Young's time sheets on July 3, July 12, July 16 and July 19, 2001.
*12 The remainder of defendant's proposed reductions in this category, which consist entirely of hours devoted to the ChoicePoint class at the trial and appellate levels, are appropriate. Therefore, the following time spent on the ChoicePoint class is deducted: 227.25 hours from Dawn Wheelahan's time and 10.25 hours from Donni Young's time.
4. Work Related Solely to Imperial
EIS claims that many more time entries than White has already redacted should have been eliminated, as they were related solely to the Imperial defendants. Those entries for each attorney are designated by EIS by highlighting them in blue on its exhibits.
Dawn Wheelahan previously conceded at oral argument before the Magistrate Judge that 1.25 hours on July 31, 2000 and 2 hours on January 25, 2001 on her time sheets were related solely to Imperial and should be deducted. White argues that the other entries identified by EIS contained intertwined issues that cannot be segregated, and that her time spent defending against Imperial's counterclaim is compensable because EIS used the presence of the counterclaim to argue against class certification.
Imperial's affirmative defense and subrogation counterclaim were for the amount that White allegedly owed Imperial as a result of the car accident between White and Imperial's insureds. These issues involved White alone and had no legal or factual linkage with the class claims, as White herself argued and as Judge Barbier held when he granted plaintiff's motion to dismiss Imperial's affirmative defense and counterclaim. Imperial's counterclaim was wholly separate from the class claims. Thus, all attorney time related to the counterclaim is properly deducted: Dawn Wheelahan's 28.5 hours devoted to the counterclaim between July 31, 2000 and May 18, 2001 and 3.0 hours from Young's time.
Imperial alone took an interlocutory appeal of the first certification order. EIS cannot be held responsible for plaintiff's attorney's fees for an action in which it was not a party. Therefore, the Court deducts 32 hours from Dawn Wheelahan's time between June 1 and June 28, 2001 and on January 18, 2002, and deducts 1.5 hours from Young's time on July 2 and October 29, 2001. [FN10]
FN10. In her corrected time sheets, plaintiff has already deducted . 50 on June 11, 2001, for which EIS requests a deduction, from Young's time. Record Doc. No. 249.
Likewise, the Court also reduces Dawn Wheelahan's hours by 10 hours spent responding to Imperial's post-certification hearing reply brief on August 6 and 7, 2002 and by 5.5 hours expended on October 8, 2002, August 22, 2003, October 20, 2003 and October 22, 2003 related only to Imperial's interlocutory appeal of the second certification order.
The records submitted further reveal that Dawn Wheelahan billed 17.5 hours between November 8 and November 10, 2003 for responding to petitions for rehearing en banc filed by both Imperial and EIS, but she failed to segregate her time spent between the two defendants. The Court assumes that she spent her time equally on the two opposition memoranda and deducts 8.75 hours attributable to Imperial only.
*13 These deductions total 84.75 hours from Wheelahan's time and 4.5 hours from Young's time.
5. Clerical Tasks
Plaintiff's counsel billed for some tasks considered "clerical" and/or "administrative", such as filing, delivering, serving and faxing documents, which are not compensable. EIS has highlighted these entries in green on its exhibits. It is impossible to determine the total hours sought by plaintiff in this category because they are often set forth in block time entries, which list multiple tasks with a single total of the hours spent on all tasks.
Clerical or secretarial costs are part of an attorney's overhead and are usually reflected in the billing rate. Hagan v. MRS Assocs. ., Inc., No. 99- 3749, 2001 WL 531119, at *9 (E.D.La. May 15, 2001) (Africk, M.J.) (citations omitted). When an attorney performs a clerical task, the opponent should not be charged the attorney's hourly rate. Missouri v. Jenkins, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989); Abrams v. Baylor College, 805 F.2d 528, 535-36 (5th Cir.1986); Sassaman v. Heart City Toyota, 879 F.Supp. 901, 918 (N.D.Ind.1994).
Dawn Wheelahan stated at oral argument before the Magistrate Judge that, as a solo practitioner whose office is across the street from the courthouse, she files her own pleadings, hand-delivers a copy to chambers and has no one else to do this for her. She said that she always bills .25 hours for filing and hand delivery, unless it actually takes longer. Accordingly, the Court attributes .25 hours to each non-segregated time entry that includes filing and/or hand delivery and deducts a total of 4 hours from Dawn Wheelahan's time for filing and hand delivering documents to court. [FN11]
FN11. These entries are on 2/9/00, 7/27/00, 11/9/00, 1/29/01, 5/8/01, 6/14/02, 8/23/02, 11/10/03, 2/3/04, 3/15/04, 3/24/04, 3/26/04, 3/29/04, 4/13/04, 4/21/04, 5/17/04, 6/14/04 and 9/20/04.
6. Unknown, Unnecessary or Unrelated Matters
Time entries for work that EIS characterizes as unknown, unnecessary or unrelated to matters involving EIS are highlighted in green on its exhibits: these include drafting a deposition notice that was never served, counsel's duplicative attendance at a deposition, meetings and correspondence with lawyers who have never enrolled in the instant action, and preparation of a newspaper advertisement.
The Court deducts 2.25 hours of Harold Wheelahan's time on May 9, 2000 for drafting a Rule 30(b)(6) notice that was never served on EIS. However, Harold Wheelahan's time spent preparing for and attending White's deposition on July 18, 2000 was not excessive or duplicative. It is a common, reasonable practice for co-counsel to attend the depositions of important witnesses to observe the questioning and confer with co-counsel and the client during breaks.
As to Dawn Wheelahan's time, White argues that she is not required to identify "consulting experts" or the confidential content of her conversations with them and that EIS has failed to rebut her statement that these consultations were necessary to the prosecution of her case. Nonetheless, it is the movant's burden to adequately document the reasonable hours expended if recovery is expected. Mota, 261 F.3d at 528. Ms. Wheelahan's time sheets and conclusory explanation do not demonstrate the reasonableness of the travel and conferences with attorneys who never enrolled in the case. Similarly, White has not supported her contention that her counsel's communications with counsel in other FCRA cases and her communications with the Fifth Circuit concerning other cases were necessary for this case. Their particular relation to EIS remains a mystery. The Court subtracts the time that she spent in meetings or correspondence with attorneys who did not enroll as counsel of record, who often were located out of town (so that she billed for travel time) and who usually are not identified by name, but merely as "FCRA lawyers."
*14 EIS also objects to White's attempt to recover for her counsel's time spent preparing a newspaper advertisement or answering telephone calls in response to the advertisement. Defendant's Exh. 16. White counters that the advertisement "was a search for additional evidence from consumers, and not a search for potential clients." Record Doc. No. 259, at p. 9.
It seems rather clear that the advertisement on its face is a solicitation for clients, for which no award of attorneys' fees can be made. Haldeman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir.1995); Associated Builders & Contractors of La., Inc. v. Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.1990); In re Olson, 884 F.2d 1415, 1429 (D.C.Cir.1989).
Accordingly, 27.25 hours of Dawn Wheelahan's time spent conferring with attorneys not enrolled as counsel of record, 18.75 hours of her time between July 18 and August 31, 2001 related to the advertisement and 17 hours spent working on matters not directly related to the instant case are deducted, [FN12] for a total of 63 hours. Young's time is also reduced by .75 hours for her assistance in preparing the advertisement.
FN12. Wheelahan conceded at oral argument before the Magistrate Judge that 1 hour on May 31, 2000 and 7.5 hours on June 1, 2000 were unrelated to this case. The few unrelated matters not specifically discussed above are summarized in the charts in defendant's opposition memorandum at pp. 22- 23, 30-31 and 44-45.
7. Attorney Conferences and Travel Time
EIS contends that such entries (highlighted in orange on its exhibits) for attorney conferences and associated travel time should be reduced by 75%. When more than one attorney is involved, the Court should scrutinize the time entries for possible duplication of work. Walker, 99 F.3d at 768.
For the reasons previously stated, Dawn Wheelahan's conferences with Ness Motley attorneys Paul Doolittle and Terry Richardson, who never enrolled in this action, are non-compensable. These conferences total 15.25 hours and the associated travel time was 3.75 hours, for a total of 19 non-compensable hours.
Otherwise, conferences between White's attorneys do not appear to be excessive. A certain amount of attorney conferences are necessary to manage a case. Not including the 15.25 hours discussed in the preceding paragraph, Dawn Wheelahan spent only 74.25 hours in conferences with co-counsel over the five-year span of this lawsuit, while Harold Wheelahan billed for only 9.25 hours of conferences and Young billed for none. The attorneys exercised billing judgment in this regard by not billing duplicatively for conference time, and these charges appear to be reasonable under the circumstances.
8. Excessive Drafting and Legal Research
EIS argues that White's counsel expended excessive time in three major areas: (1) preparing the amended complaint and working on discovery during the first 19 months of the litigation, (2) drafting motions and opposition memoranda and preparation time between June 7, 2002 and the settlement date, and (3) legal research throughout the case. EIS argues that the time plaintiff's attorneys spent on these three areas exceeds the time that experienced litigators should need.
As to the time spent drafting the amended complaint, preparing discovery requests and reviewing discovery responses (highlighted in purple on defendant's exhibits), the undersigned finds that the total of 44.5 hours was slightly excessive but not unreasonable. Careful drafting of pleadings and discovery requests and thoughtful review and study of discovery responses is expected, and aids the parties and the Court in considering the respective contentions of the parties.
*15 EIS has highlighted in red all allegedly excessive hours that Dawn Wheelahan spent drafting motions and memoranda and preparing for oral argument, a total of 365.5 hours throughout this five-year litigation. EIS also argues that Dawn Wheelahan engaged in excessive legal research totaling 314 hours and that Harold Wheelahan's 9.5 hours of legal research were also excessive. EIS seeks a 50% reduction in Dawn Wheelahan's drafting and preparation time and a 60% reduction in both attorneys' legal research time (highlighted in gray).
The undersigned finds that Harold Wheelahan's legal research time was reasonable, but that Dawn Wheelahan billed far too much time for drafting, preparation and legal research, given her expertise in the area, the limited issues involved in this action and the scant FCRA case law. Quite simply, White's counsel cannot charge EIS for staying current in FCRA and class action law. Alberti v. Klevenhagen, 896 F.2d 927, 933-34 (5th Cir.), vacated in part on other grounds, 903 F.2d 352 (5th Cir.1990).
Moreover, White filed many voluminous briefs that were written in an academic, law review style and appeared to contain lengthy passages of generic, "canned" credit reporting law, instead of limiting her analysis to the particular facts and issues in the instant case. Although using previously researched and written materials is encouraged if it results in savings to the client, many of plaintiff's submissions were not sufficiently concise, or were so tangentially relevant to the issues before the Court that the memoranda were neither pertinent to the specific issues nor useful to the Court. Thus, White has failed to carry her burden to show how or why much of her legal research, which is more often than not vaguely described, was actually relevant.
The undersigned agrees with the vast majority of defendant's identifications of excessive entries in these categories, but finds that defendant's suggested percentage reductions are somewhat high. Therefore, the Court reduces Dawn Wheelahan's time for drafting, preparation and legal research, as identified by EIS, by 25%. This percentage reduction, although not the product of a line-by-line analysis of these extremely numerous time entries, reflects a balancing between what appears to be excessive time expended by plaintiff's counsel and the rather generous identification of such time by EIS.
Accordingly, the 365.5 hours spent by Dawn Wheelahan on drafting and preparation and the 314 hours she spent on legal research should be reduced by 25%, or by a total of 169.875 hours.
9. Settlement Negotiations
EIS suggests a 50% reduction in the hours spent by plaintiff's counsel on settlement negotiations because of allegedly excessive settlement demands before September 2004. These entries, highlighted in aqua in defendant's exhibits, total 95.25 hours.
If a party desires to continue to litigate rather than to settle, he/she is not required to settle at any particular point in time, and counsel's litigation strategy in that regard cannot be cavalierly disregarded. Considering that Dawn Wheelahan seeks compensation for more than 1,650 hours in this case, 95.25 hours spent on settlement negotiations over this time frame is not an unreasonable amount, even after the total hours are reduced by all of the reductions herein.
*16 While generally sufficient, Ms. Wheelahan's time sheets do contain some excessively vague entries, such as "study new decisions," "study case and options," "more computer research," "study previous filings," "more information to Ness Motley," "e-mails, counsel" and "study documents (discovery, etc.)," which are inadequate to support plaintiff's fee request. "Litigants 'take their chances' when submitting inadequately documented fee applications which provide little information from which to determine the reasonableness of the hours expended on tasks vaguely described or lumped together." Hagan, 2001 WL 531119, at *9 (citation omitted); accord Walker, 99 F.3d at 773.
On the other hand, time entries should not be so specific as to disclose privileged information or to require excessive preparation time. Therefore, giving White's counsel the benefit of every doubt, the Court deducts 5% from all of Dawn Wheelahan's entries remaining after the deductions explained above to account for vagueness. The deductions recommended in the preceding sections total 567.875 hours. Subtracting these hours from the total of 1,653.75 hours sought for Dawn Wheelahan's time leaves a balance of 1,085.875 hours. A 5% deduction from this time amounts to 54.3 hours.
11. Young's Hours
White seeks reimbursement for 46.75 hours expended by Young between November 2000 and November 2001. After making the deductions discussed in the preceding sections, those hours have been reduced to 26.75 hours.
EIS contends that Young's time sheets do not adequately support her contribution to this action. Young mostly reviewed pleadings, memoranda, letters and orders, often reviewing plaintiff's filings after they had been finalized. EIS argues that Young's smallest billing increment of one-quarter hour is excessive for review of very short, routine documents. Citing Young's lack of billing judgment and the "questionable benefit derived from her participation in the case," EIS asks that her hours (after making the specific deductions discussed in preceding sections) be reduced by 60%.
White contends that the presence in this action of Young and her large, national law firm favorably influenced the settlement in September 2004, although, according to Young's time sheets, she was no longer involved with the case after November 7, 2001. White also asserts that having Motley Rice associated on the case gave her the resources necessary to prosecute this class action. However, Motley Rice's cost statements show that it paid only for the Times Picayune advertisement and some associated computer research time.
Young's time sheets do not establish how most of her time benefitted the class. She evidently only communicated her advice to or attended conferences with Dawn Wheelahan on six occasions. The Court notes that the majority of her time was spent reviewing documents, which would have been necessary to keep her abreast of developments if she were actively litigating the case, but such notion is inconsistent with her other entries. Moreover, the vagueness of these entries does not support the full amount of time claimed. Accordingly, the Court reduces Young's remaining time by 25%, or by an additional 6.6875 hours.
D. Calculation of the Lodestar
*17 In summary, the undersigned has reduced the requested hours as explained above. These reductions yield the following reasonable hours for each attorney in the instant case.
Attorney Name Requested Less Specific Less Add'l % Reasonable
Hours Deductions Reductions Hours
------------- ------------ -------------- ----------------- ---------------
D. Wheelahan 1,653.75 567.875 5% (54.3000) 1,031.5750
H. Wheelahan 98.75 2.250 0 96.5000
Young 46.75 20.000 25% ( 6.6875) 20.0625
------------ -------------- ----------------- ---------------
TOTAL 1,799.25 590.125 60.9875 1,148.1375
In addition, the Court awards 9.5 hours of time for the Rule 30(b)(6) deposition of EIS taken in the Washington case. The combined total of reasonable hours recoverable for Dawn Wheelahan from Washington and the instant case is 1,041.075, for a grand total of reasonable hours for all three attorneys in this case of 1,157.6375.
After making these reductions in hours, the undersigned finds that the lodestar amount of reasonable hours multiplied by the rate set forth above ($225 per hour for each attorney) is reasonable in this case and that no further reduction or enhancement is appropriate or required, and plaintiff's request for enhancement by a multiplier of two is denied. "Enhancements based upon these factors are only appropriate in rare cases supported by specific evidence in the record...." Walker, 99 F.3d at 771-72 (quotation omitted).
After eliminating the Johnson factors that are subsumed in the lodestar or prohibited from consideration, only four factors remain for an adjustment analysis: the customary fee, the undesirability of the case, the nature and length of the professional relationship with the client and awards in similar cases. The customary fee and awards in similar cases have already been evaluated in establishing a reasonable hourly rate, and plaintiff concedes that the nature and length of the professional relationship with her attorneys is irrelevant.
Guided by the Fifth Circuit's opinion in Shipes v. Trinity Indus., 987 F.2d 311, 321 (5th Cir.1993) (novelty and difficulty of the case "simply do not render a case 'rare' or 'exceptional' for purposes of enhancing the lodestar amount."), the undersigned finds the remaining factor alone is insufficient to justify any enhancement. The other available factors have already been taken into account, and none justifies an enhancement.
In reaching these conclusions, the undersigned has also considered and applied the factors articulated in Johnson, as required by the Fifth Circuit. Riley, 99 F.3d at 760; LP & L, 50 F.3d at 331. Those factors have been evaluated as follows: (1) The time and labor required have already been considered in reaching the lodestar. (2) The questions involved in this case were somewhat novel but not very difficult. (3) The skill required to perform the legal service properly is connected to the second factor and has already been taken into account in the attorneys' hourly rates. (4) Although White states that Dawn Wheelahan was precluded from taking other employment, she acknowledges that this factor is subsumed in her hourly rate. (5) After the reductions discussed above, the fees charged were customary; this factor has already been taken into account. (6) Whether the fee was contingent cannot as a matter of law be used to affect the lodestar. (7) There were no significant time limitations imposed by the circumstances. (8) The result obtained was successful, which has already been taken into account in determining the lodestar. (9) The experience, reputation and ability of counsel has already been considered. (10) The case was somewhat undesirable. (11) White had no prior relationship with counsel. (12) Awards in similar cases have already been discussed.
*18 Based on the foregoing factors, no further adjustment need be made to the lodestar, as reduced. Accordingly, the reasonable hours multiplied by each attorney's reasonable hourly rate yield the following lodestar amounts.
Attorney Name Reasonable Hours Reasonable Hourly Rate Lodestar Amount
------------- ---------------- ---------------------- ---------------
D. Wheelahan 1,041.0750 $225 $234,241.88
H. Wheelahan 96.5000 $225 $ 21,712.50
Young 20.0625 $225 $ 4,514.06
TOTAL 1,157.6375 $260,468.44
Accordingly, IT IS ORDERED that plaintiff receive $260,468.44 in attorney's fees from EIS.
E. Prejudgment Interest
In addition to extremely high hourly rates and a multiplier, White seeks prejudgment interest on the attorney's fees award. The unenhanced award is based on current reasonable rates. Thus, no additional compensation for delay is necessary. Walker, 99 F.3d at 773.
Under the FCRA, a successful plaintiff may recover "the costs of the action together with reasonable attorney's fees as determined by the court." 15 U.S.C. § 1681n(a)(3); id. § 1681o(a)(2). EIS does not dispute the costs sought by plaintiff's lead counsel Dawn Wheelahan in the amount of $12,507.32. Plaintiff's Exhibit 12 summarizes Wheelahan's costs for which she is billing. Because EIS does not dispute these costs, the undersigned finds that they are reasonable.
However, the Court agrees with EIS that all of the costs sought by the Motley Rice firm, totaling $7,529.72, should be disallowed. Most of the costs billed by Motley Rice are for airfare for un enrolled counsel to come to New Orleans or for airfare and lodging expenses for Dawn Wheelahan to travel to meet with un enrolled counsel. There has been no showing that any of these conferences or travel were necessary or critical to plaintiff's advancement of her claim. Just as attorney time for these conferences should not be chargeable to EIS, neither should the expenses. The remaining costs are for computer research and courier charges, the necessity of which is undocumented, and for computer research related to the Times Picayune advertisement and the advertisement itself, which are not be chargeable to EIS.
Accordingly, only the reasonable costs incurred by Dawn Wheelahan in the amount of $12,507.32 are recoverable.
For all of the foregoing reasons, IT IS ORDERED that plaintiff's motion for attorneys' fees and costs be and hereby is GRANTED IN PART AND DENIED IN PART and that defendant, Equifax Information Services LLC, must pay to plaintiff $260,468.44 in reasonable attorney's fees and $12,507.32 in costs, for a total award of $272,975.76, conditioned upon approval by the Court of the overall proposed settlement after a fairness hearing.
White v. Imperial Adjustment Corp.
Slip Copy, 2005 WL 1578810 (E.D.La.)
When Can You Recover Them and How? Costs Under 28 USC 1920, Expert Witness Fees, and Other Non-Damage Awards;
Recoverable Costs Are Governed by 28 USC 1920 however Expert Witness Fees Are Not. There are various non-damage awards that you need to understand and how to seek them.
Recoverable Costs Are Governed by 28 USC 1920 however Expert Witness Fees Are Not. There are various non-damage awards that you need to understand and how to seek them.
- General Discussions, Forum Registration, and ID Theft and Credit-Related News Stories
- General Discussion
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- Impermissible Access: 15 U.S.C. 1681b[f] and 1681q
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- Causation to Damage [Proving Your Damages Are Related to and Caused by the Defendants
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- FCRA Preemption: 15 U.S.C. 1681t[b][F] and Related Discussions
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- The Mechanics of Credit Reporting
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- Defenses Asserted by Credit Reporting Defendants
- What Law Applies? Problems Barring Use of the Court and Law
- Arbitration, Forum Selection, Choice of Law, Choice of Venue and Other Adhesionary Clauses
- Conflicts of Laws Issues in FCRA and Related State Law Issues
- Standing and Statutes of Limitations
- Statute Of Limitation: 15 U.S.C. 1681p
- FCRA Legal Forms [Suits, Discovery, etc.]
- Discovery: Interrogatories, Requests For Production of Documents, Requests to Inspect, Requests For Admissions, Deposition Notices, Subpoenas, Deposit
- FCRA Sample Pleadings: Complaints, Motions, Oppositions and Other Standard Lawsuit Filings
- Defenses Frequently Asserted by Defendants to Consumer's Actions
- FCRA Class Actions and Class Issues
- FCRA Class Actions
- Special Evidentiary Issues: What is Evidence?
- Evidentiary Issues in FCRA Cases
- Expert Witnesses, Special Issues and Daubert and Related Challenges
- Appellate Issues, Rules, Law, Etc.
- Defenses Asserted by Industry and Abuse Stories
- Defense Counsel Abuses and War Stories
- Law Outlines: Various Topics
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