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Louis R. Vallies, Individually and On Behalf of All Similarly v. Sky Bank

June 18, 2012


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing


Presently before this court is plaintiffs' class counsel's September 19, 2011, Supplemental Declaration for Statutory Attorney's Fees, which has been construed as a supplemental motion for attorney's fees and costs. See Doc. No.s 179, 180 & 186. This motion seeks compensation for the additional time and costs expended in preparing the initial petition on fees and costs ("fees-on- fees"). Pursuant to court order, class counsel filed a supporting brief on October 11, 2011, and then substituted his supplemental fees-on-fees submissions with a new brief on October 28, 2011. See Doc. No.s 192, 194. Therein, class counsel seeks $201,271.50 in additional attorney fees and $19,759.85 in costs. Class counsel's reply brief in support of fees-on-fees added an additional increase in fees of $31,000, resulting in a grand total of $251,031.35. See Doc. No. 196.*fn1 For the reasons set forth below, the petition for fees-on-fees will be granted in part and denied in part. After making adjustments to the requested amounts to eliminate unreasonable, unnecessary and/or irrelevant expenditures of time and resources and the potential for inefficient/excessive use of time, the court will approve an additional award of $160,979.00 in costs and fees.

The background and underlying facts of this protracted litigation as they relate to plaintiffs' status as prevailing parties are set forth in the September 28, 2011, Opinion resolving plaintiffs' initial motion for attorney fees, costs and expenses. See Doc. No.s 188 & 189. That award considered and resolved a number of contested issues regarding the appropriate recovery of fees and costs. The troubling adversarial zeal underlying that phase of the litigation continues.

Class counsel's current fees-on-fees request is divided into eight categories that encompass time periods spanning from November 2010 to the present.

Category I includes time spent by class counsel in November of 2010 as part of the underlying litigation and prior to counsel seeking statutory fees and costs. Class counsel requests compensation for 8.5 hours related to the class action settlement hearing that was not included in the initial fee petition.

Category II covers charges between February 2010 and October 19, 2010, during which class counsel researched and prepared the initial fee petition. During this phase class counsel selected, contacted, and worked with several local attorneys to determine and garner support for his requested community hourly rate; in doing so class counsel obtained affidavits from seven area counsel frequently involved in or who were familiar with fee petitions. He also hired an economics expert to attest to non-monetary benefits of litigation, an expert on TILA cases to advocate the necessity and significance of underlying litigation and an additional expert to attest to the reasonableness of the time spent in conducting the litigation. Class counsel's time logs from this category reflect activities like "fee research", "review re: experts (fee), research", "review and conference with Erin begin (re: experts)", "review, prepare fee declaration", "Fee issues, experts" and so forth.

Category III includes the period from November 2010 through January 2011 when counsel expended time working on defendant's discovery requests pertaining to issues raised by the initial fee petition. In addition to the time spent gathering material from three separate law firms, class counsel retained the services of "bit-x-bit, LLC" to search the hard-drives of computers in order to satisfy defendant's ESI-related interrogatories and requests for production.

Category IV encompasses the time and cost expended in court-ordered mediation with neutral Louis Kushner, Esquire. The mediation was conducted in an effort to resolve the parties' differences reflected in the initial and instant supplemental fee petitions.

Category V encompasses class counsel's preparation of plaintiffs' fee discovery and Category VI includes class counsel's attempt to compel defendant to answer this discovery.

Category VII contains expenses incurred on or after September 15, 2011, which reflects the time spent in preparing the supplemental fees-on-fees request as revised.

The final grouping, Category VIII, is for time after October 11, 2011, which initially was estimated to be ten hours that class counsel anticipated would be spent on the final submissions in reply. This estimate subsequently was increased to reflect the actual time used to prepare those submissions.

A fees-on-fees award may be necessary to compensate the prevailing party for the cost of obtaining redress. In this regard the litigants generally are expected to settle their differences without resorting to a second or third round of major litigation. Notwithstanding this expectation, as Hensley v. Eckerhard, 461 U.S. 424 (1983), recognizes, disputes in this area do arise between the parties which require judicial resolution.

The standards governing an award of fees and costs and the parties' respective burdens are set forth in the September 28, 2011, Opinion. There, the court canvassed and applied the law governing an award of fees and costs in general as well as where the prevailing party has obtained less than a full recovery on all claims and seeks compensation for tasks or amounts that are challenged on the ground that they were not expended in pursuit of the ultimate result achieved. It also highlighted and applied the general principles controlling percentage reductions for inadequacies and the lack of meaningful detail in an attorney's time logs. Those standards are incorporated as if fully set forth herein.

Here, defendant contends that the fees-on-fees requested by class counsel are "outrageously" excessive and unreasonable. It notes that while class counsel generated a claimed fee award of approximately $700,376.00 over the course of eight years of hard-fought litigation, in a matter of a few months class counsel managed to generate a claimed amount of $226,431.35 in formulating and defending the fee petition. This amount is purportedly the product of inadequate time documentation, unreasonable and dilatory tactics, and the overworking of the issues surrounding the determination of a reasonable fee.

In its brief in opposition, defendant highlights ten areas where it believes reductions are necessary to reach a reasonable award. These challenges will be analyzed in ...

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