Pickman v. American Express Company et al

Filing 43

ORDER RE ATTORNEY'S FEES AND COSTS AND VACATING HEARING by Hon. William Alsup entered 27 Motion for Attorney Fees.(whalc2, COURT STAFF) (Filed on 4/17/2012)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7
FOR THE NORTHERN DISTRICT OF CALIFORNIA
8
9

11
For the Northern District of California

United States District Court

10

HEIDI PICKMAN, Acting as private attorney
general on behalf of the general public of the
state of California,

12
13
14
15
16

Plaintiff,
v.
AMERICAN EXPRESS COMPANY,
AMERICAN EXPRESS TRAVEL RELATED
SERVICES, INC, AMERICAN EXPRESS
CENTURION BANK, and AMERICAN
EXPRESS BANK, FSB,

17

ORDER RE ATTORNEY'S
FEES AND COSTS AND
VACATING HEARING

Defendants.
/

18
19

No. C 11-05326 WHA

In light of the accompanying order regarding defendants American Express Company,

20

American Express Travel Related Services, Inc, American Express Centurion Bank, and

21

American Express Bank, FSB’s, entitlement to recover attorney’s fees and costs, defendants are

22

entitled to an award of fees and costs. The following procedure will be used to determine the

23

amount of an award herein. It will be structured to allow meaningful evaluation of the time

24

expended.

25

1.

No later than MAY 24, 2012, defendants’ attorneys must file and serve a detailed

26

declaration, organized by discrete projects, breaking down all attorney and paralegal time

27

sought to be recovered. For each project, there must be a detailed description of the work,

28

giving the date, hours expended, attorney name, and task for each work entry, in chronological
order. A “project” means a deposition, a motion, a witness interview, and so forth. It does not

1

mean generalized statements like “trial preparation” or “attended trial.” It includes discrete

2

items like “prepare supplemental trial brief on issue X.” The following is an example of time

3

collected by a project.

4
5

PROJECT: ABC DEPOSITION (2 DAYS IN FRESNO)
Date

Timekeeper

Description

Hours x

Rate =

Fee

01-08-01

XYZ

Assemble and photocopy exhibits for
use in deposition.

2.0

$100

$200

01-09-01

RST

Review evidence and prepare to
examine ABC at deposition.

4.5

$200

$900

10

01-10-01

XYZ

Research issue of work-product
privilege asserted by deponent.

1.5

$100

$150

11

01-11-01

RST

Prepare for and take deposition.

8.5

$200

$1700

12

01-12-01

RST

Prepare for and take deposition.

7.0

$200

$1400

6
7
8

For the Northern District of California

United States District Court

9

13
14

Project Total:
2.

23.5

$4350

All entries for a given project must be presented chronologically one after the

15

other, i.e., uninterrupted by other projects, so that the timeline for each project can be readily

16

grasped. Entries can be rounded to the nearest quarter-hour and should be net of write-down for

17

inefficiency or other cause. Please show the sub-totals for hours and fees per project, as in the

18

example above, and show grand totals for all projects combined at the end. Include only entries

19

for which compensation is sought, i.e., after application of “billing judgment.” For each

20

project, the declaration must further state, in percentage terms, the proportion of the project

21

directed at issues for which fees are awardable and must justify the percentage. This percentage

22

should then be applied against the project total to isolate the recoverable portion (a step not

23

shown in the example above).

24

3.

A separate summary chart of total time and fees sought per individual

25

timekeeper (not broken down by project) should also be shown at the end of the declaration.

26

This cross-tabulation will help illuminate all timekeepers’ respective workloads and roles in the

27

overall case.

28
2

1

4.

The declaration must also set forth (a) the qualifications, experience and role of

2

each attorney or paralegal for whom fees are sought; (b) the normal rate ordinarily charged for

3

each in the relevant time period; (c) how the rates were comparable to prevailing rates in the

4

community for like-skilled professionals; and (d) proof that “billing judgment” was exercised.

5

On the latter point, as before, the declaration should describe adjustments made to eliminate

6

duplication, excess, associate-turnover expense, and so forth. These adjustments need not be

7

itemized but totals for the amount deleted per timekeeper should be stated. The declaration

8

must identify the records used to compile the entries and, specifically, state whether and the

9

extent to which the records were contemporaneous versus retroactively prepared. It must state
the extent to which any entries include estimates (and what any estimates were based on).

11
For the Northern District of California

United States District Court

10

Estimates and/or use of retroactively-made records may or may not be allowed, depending on

12

the facts and circumstances.

13

5.

Ordinarily, no more than one attorney and one paralegal need be present at a

14

deposition; more will normally be deemed excessive. Ordinarily, no more than one attorney

15

need attend a law-and-motion hearing; more will normally be deemed excessive. To allow for

16

symmetry, however, the award will take into account the staffing used by the opposing party.

17

6.

If the opposing party doubts the accuracy of the declaration, then the moving

18

party must immediately produce the original underlying time records for inspection upon

19

request. The opposing party must then file and serve any opposition. In this case, the

20

opposition will be due FOURTEEN CALENDAR DAYS after defendants’ detailed declaration is

21

filed. If the opposing party contends that any item or project was excessive, then the opposition

22

must explain why and provide a declaration setting forth completely all time expended by the

23

opposing party on the same and on similar projects, in the same format described above, so that

24

symmetry may be considered, making available the underlying records for inspection if

25

requested. If any billing rates are challenged, then the opposition must state the billing rates

26

charged to the opposing party for all professionals representing the opposing party in the case

27

and their experience levels. The opposing declaration must also state, as to each project, the

28

percentage of the project the opposition contends was directed at issues on which fees are
3

1

awardable, stating reasons for the percentage. This percentage should then be applied against

2

the project total to isolate the recoverable portion.

3

7.

The opposing submissions may not simply attack the numbers in the application.

4

It must also set forth a counter-analysis. The counter-analysis should be in the same format

5

required of the applicant, arriving at a final number. The opposition must clearly identify each

6

line item in the application challenged as excessive, improper or otherwise unrecoverable and

7

explain why. The opposition, for example, may annotate (legible handwriting will be

8

acceptable) the applicant’s declaration to isolate the precise numbers at issue.

9

8.

With the benefit of both sides’ filings, representatives of the parties with final

decision authority shall meet in person and confer to try to resolve all differences as to the

11
For the Northern District of California

United States District Court

10

amount. If no agreement is reached, the moving party must file and serve a declaration showing

12

full compliance with this paragraph, explaining when, where and who met, their decision

13

authority, how long they met, what documents were reviewed together, and the principal points

14

of disagreement. This must be done within 28 CALENDAR DAYS of the filing of movant’s

15

detailed declaration.

16

9.

If no agreement is reached, a special master shall be appointed. If the parties

17

cannot agree on a special master, then the Court shall select a special master. The parties must

18

so advise the Court on this within 28 CALENDAR DAYS of the filing of movant’s detailed

19

declaration.

20

10.

The special master shall have all the powers set forth in FRCP 53(c) and

21

FRCP 54(d)(2)(D). The parties shall provide the special master with copies of all motion

22

papers and other documents relevant to this dispute. The special master shall review the briefs

23

and declarations by the parties on the pending motion, hear argument, and then determine a

24

reasonable amount to award, including any fees on fees. The special master shall also

25

determine the extent to which any discovery should be permitted — with the caution that further

26

discovery should be the exception and not the rule. The special master shall then prepare and

27

file a report on recommended findings and amount.

28
4

1

11.

Absent any supplementation allowed by the special master, the foregoing

2

submissions (together with the briefs already filed) shall be the entire record for the motion.

3

There will be no replies unless allowed later by the special master. Any further submissions for

4

the special master’s use should not be filed with the Court. If objections are later made to the

5

special master’s report, the objecting party must file a declaration submitting to the Court a

6

complete appendix of relevant communications with the special master.

7

12.

The Court will allocate the fees of the special master in a fair and reasonable

8

manner, taking into account the reasonableness of the parties’ respective positions and the

9

special master’s recommendation in this regard. If the movant must pay, then the special
master’s compensation shall be deducted from the attorney’s fee award. If the opposing party

11
For the Northern District of California

United States District Court

10

must pay the special master, then it shall pay the special master and pay the award. The Court

12

will, however, reserve final judgment on allocation of the expense of the special master until a

13

final determination of the fee issue. A final award shall then be entered.

14

13.

Costs will be determined in strict compliance with the local rules. If a review is

15

sought regarding taxable costs, then the issue may also be referred to a special master (or may

16

not).

17

The hearing set for April 19, 2012 is VACATED.

18
19

IT IS SO ORDERED.

20
21
22

Dated: April 17, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28
5