Gibson et al v. Credit Suisse Securities USA, LLC et al

Filing 674

MEMORANDUM DECISION & ORDER Credit Suisses Motion for Attorneys' Fees (Docket No. 551 ) is GRANTED. The previously-identified Plaintiffs' counsel, jointly and severally, shall pay $27,834.50 to Credit Suisse. Cushman & Wakefield' ;s Motion for Costs and Attorney Fees in Accordance with Sanctions Order (Docket No. 552 ) is GRANTED. The previously-identified Plaintiffs' counsel, jointly and severally, shall pay $29,903.50 to Cushman & Wakefield. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

L.J. GIBSON, BEAU BLIXSETH, AMY KOENIG,
VERN JENNINGS, MARK MUSHKIN,
MONIQUE LEFLEUR, GRIFFEN
DEVELOPMENT, LLC, JUDY LAND, CHARLES
DOMINGUEZ, ET AL,

Case No.: CV 10-1-JLQ
MEMORANDUM DECISION AND
ORDER RE:
CREDIT SUISSE’S MOTION FOR
ATTORNEYS’ FEES
(Docket No. 551)

Plaintiffs,
vs.
CREDIT SUISSE AG, a Swiss corporation;
CREDIT SUISSE SECURITIES (USA), LLC, a
Delaware limited liability company, CREDIT
SUISSE FIRST BOSTON, a Delaware limited
liability corporation; CREDIT SUISSE AG,
CAYMAN ISLAND BRANCH, an entity of
unknown type; CUSHMAN & WAKEFIELD,
INC., a Delaware corporation,

CUSHMAN & WAKEFIELD’S
MOTION FOR COSTS AND
ATTORNEY FEES IN
ACCORDANCE WITH SANCTIONS
ORDER
(Docket No. 552)

Defendants.

Now pending before the Court are (1) Credit Suisse’s Motion for Attorneys’ Fees
(Docket No. 551), and (2) Cushman & Wakefield’s Motion for Costs and Attorney Fees in
Accordance with Sanctions Order (Docket No. 552). Having carefully reviewed the record and
otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
I. BACKGROUND
Defendants’ currently-pending motions relate back to the undersigned’s March 29, 2013
Memorandum Decision and Order (“ 2013 Order”), in which the Court considered the
Defendants’ then-pending Motion for Sanctions and Motion for Order to Show Cause. See

MEMORANDUM DECISION AND ORDER - 1

3/29/13 MDO (Docket No. 352). The 2013 Order framed the issue presented at that time as
follows:
The motions decided in this Memorandum Decision and Order concern a nettlesome
and troubling dispute between the parties regarding statements made by Michael
Miller – a witness described by Plaintiffs’ counsel as a “whistle blower” – and a
decision made by Plaintiffs’ counsel not to file Mr. Miller’s signed May 2011
affidavit with the Court. When that affidavit was signed by Mr. Miller, Plaintiffs’
counsel had already presented, relied upon, and filed with the Court Mr. Miller’s
previous, unsigned, and arguably substantively different March 19, 2011 declaration.
Defendants contend that by not filing with the Court Mr. Miller’s signed May 2011
affidavit (while consistently relying upon Mr. Miller’s earlier, unsigned March 2011
declaration), Plaintiffs and their counsel breached duties required of them by Court
rules, federal statutes, and ethical standards.
Id. at p. 13 (emphasis in original).
Ultimately, the undersigned was “convinced, after considering the written and oral
arguments of counsel, that there ha[d] been a material failure on the part of Plaintiffs’ counsel in
their responsibilities to this Court, as officers of this Court, in the circumstances under the
pending motions. Id. at pp. 17-18. Specifically, the 2013 Order found that, because Plaintiffs’
counsel had repeatedly relied upon and made representations on the record regarding Mr.
Miller’s unsigned declaration, they had a duty to inform the Court and opposing counsel when
Mr. Miller subsequently provided a signed affidavit that was arguably materially different. See
id. at pp. 18-23. Because Plaintiffs’ counsel failed to file the signed statement of Mr. Miller at
the time it came into their possession, they were sanctioned. See id. at pp. 23-28.
The sanctions were severalfold: (1) Plaintiffs’ counsel will not be permitted to use Mr.
Miller’s testimonial evidence in this case for any purpose, other than as obtained in deposition or
courtroom testimony; (2) certain Plaintiffs’ counsel were sanctioned $6,000.00 apiece; and (3)
certain Plaintiffs’ counsel were responsible for reimbursing Defendants “for the attorneys’ fees

MEMORANDUM DECISION AND ORDER - 2

and costs necessitated by the motions filed seeking sanctions as a result of the failure to file the
sworn affidavit of Mr. Miller.” See id.
Relevant here, the following procedural events then took place:
•

On April 8, 2013, Plaintiffs moved to stay the 2013 Order’s application until the

Court could consider and resolve their forthcoming objections. See Pls.’ Mot. for Stay of
Sanctions (Docket No. 358).
•

On April 12, 2013, Plaintiffs opposed/objected to the 2013 Order. See Pls.’ Opp.

to Sanctions Order (Docket No. 367).
•

On April 22, 2013, the undersigned granted Plaintiffs’ Motion for Stay of

Sanctions, staying those deadlines relating to the imposition of sanctions outlined within the
2013 Order. See 4/22/13 Order (Docket No. 384).
•

On April 24, 2013, Plaintiffs requested reconsideration of the 2013 Order. See

Mot. for Recon. (Docket No. 392).
•

On August 15, 2013, the undersigned denied Plaintiffs’ reconsideration request.

See 8/15/13 Order (Docket No. 408).
•

On October 17, 2014, U.S. District Judge Edward J. Lodge denied Plaintiffs’

objections and affirmed the 2013 Order. See 10/17/14 Order (Docket No. 531). Further, Judge
Lodge lifted the April 22, 2013 stay, ordering Defendants to file their respective motions for
costs and attorneys’ fees in accordance with the 2013 Order (see supra) on or before December
1, 2014. See id.
•

Also on October 17, 2014, this case was reassigned to the Honorable Justin L.

Quackenbush, Senior United States District Judge for the Eastern District of Washington, for all
further proceedings. See Order of Reassignment (Docket No. 532).

MEMORANDUM DECISION AND ORDER - 3

•

On October 30, 2014, Plaintiffs moved to stay Judge Lodge’s October 17, 2014

Order. See Pls.’ Mot. for Order Staying Order, p. 2 (Docket No. 535) (“Plaintiffs’ Counsel
request that the above mentioned Orders[1] be STAYED pending resolution by the Ninth Circuit
Court of Appeals of their forthcoming Petition for Writ of Mandamus and/or appeal, whichever
occurs later.”).
•

On October 31, 2014, Judge Quackenbush referred Plaintiffs’ October 30, 2014

Motion to Stay to Judge Lodge. See 10/31/14 Order Referring Mot. to Stay (Docket No. 537).
•

On or around November 6, 2014, Plaintiffs appealed the 2013 Order as well as

Judge Lodge’s October 17, 2014 Order affirming the 2013 Order to the United States Court of
Appeals for the Ninth Circuit. See Pet. for Writ of Mandamus (Docket No. 538); Not. of Appeal
(Docket No. 540).2
•

Consistent with Judge Lodge’s directive within his October 17, 2014 Order, on

December 1, 2014, Defendants filed the at-issue motions, seeking reimbursement of $109,244.22
in attorneys’ fees ($45,885.27 for Credit Suisse and $63,358.95 for Cushman & Wakefield). See
Credit Suisse’s Mot. for Attys’ Fees (Docket No. 551); Cushman & Wakefield’s Mot. for Attys’
Fees (Docket No. 552).

1

Plaintiffs sought to stay Judge Lodge’s October 17, 2015 Order which, according to
Plaintiffs, “affirmed and incorporated therein by reference the Magistrate’s Order of March 29,
2013.” Pls.’ Mot. for Order Staying Order, p. 1 (Docket No. 535). Therefore, Plaintiffs’ efforts
to stay this action at this point relates not only to Judge Lodge’s October 17, 2014 Order, but
also the undersigned’s March 29, 2013 Memorandum Decision and Order.
2

The exact specifics of Plaintiffs’ appeal or appeals are unclear from the record. The
Ninth Circuit appears to have issued two separate appeal notices with different case numbers.
See, e.g., 11/06/14 Not. (Docket No. 539) (identifying Case No. as 14-73423 and stating that “[a]
petition for writ of mandamus and/or prohibition has been received . . . .”); 11/10/14 Not.
(Docket No. 541) (identifying Case No. as 14-35952 and stating that “[a] copy of your notice of
appeal/petition has been received . . . .”).
MEMORANDUM DECISION AND ORDER - 4

•

On December 3, 2014, the Ninth Circuit dismissed Plaintiffs’ “appeal” because

“the orders challenged in the appeal are not final or appealable.” 12/3/14 Order (Docket No.
553) (relating to Case No. 14-35952).
•

On December 17, 2014, Plaintiffs filed a Petition for Rehearing En Banc as to

Case No. 14-35952. See Pet. for Rehearing En Banc, attached as Appx. 2 to Pls.’ Attorney Rpt.
(Docket No. 572, Att. 2).
•

On December 22, 2015, Judge Quackenbush referred the at-issue motions to

Judge Lodge. See 12/22/15 Order (Docket No. 562).
•

On January 7, 2015, Judge Lodge stayed the action for a second time, ordering, in

part, that the at-issue motions (and the remaining briefing deadlines relating to thereto) be stayed
“pending the Ninth Circuit’s ruling on the appeal filed in this case.” See 1/7/15 MDO, p. 4
(Docket No. 567).
•

On January 13, 2015, the Ninth Circuit denied Plaintiffs’ “petition” because

“Petitioners have not demonstrated that this case warrants the intervention of this court by means
of the extraordinary remedy of mandamus.” 1/13/15 Order (Docket No. 568) (relating to Case
No. 14-73423).
•

On January 16, 2015, Plaintiffs’ counsel updated the Court as to its December 17,

2014 Petition for Rehearing En Banc (as to Case No. 14-35952), further advising the Court that:
[S]hould their Petition for en banc Hearing be denied as to their Notice of Appeal,
they are considering moving this Court for a Rule 54(b) Certificate and for
permission to file an Interlocutory Appeal, without stay of this case, because such
an appeal can certainly be prosecuted contemporaneously with continued processing
of the above-captioned case. If Rule 54(b) certification were denied, Plaintiffs would
respectfully request that the Sanctions Order be stayed until there is a final judgment
in the case.
Pls.’ Attys’ Rpt. (Docket No. 572).

MEMORANDUM DECISION AND ORDER - 5

•

On February 18, 2015, the Ninth Circuit construed Plaintiffs’ Petition for

Rehearing En Banc as a motion for reconsideration of its December 3, 2014 order dismissing the
appeal for lack of jurisdiction. See 2/18/15 Order (Docket No. 587). Construed thusly, the Ninth
Circuit denied Plaintiffs’ “motion” and indicated that “no further filings will be entertained in
this closed case.” Id.
•

On February 24, 2015, Plaintiffs moved the Court to either (1) extend the January

7, 2015 stay until the case-in-chief is completed, or, alternatively, (2) “[e]nter a Rule 54(b)
Certificate of Final Judgment re liability for sanctions and permit an Interlocutory Appeal
thereon (without any delay or stay of the proceedings on the case-in-chief).” Pls.’ Mot. for Alt.
Relief (Docket No. 595).
•

On April 10, 2015, Judge Lodge denied Plaintiffs’ request (1) to the extend the

stay, and (2) for Rule 54(b) certification. See 4/10/15 Order (Docket No. 616). In doing so,
Judge Lodge effectively lifted the stay, ordered Plaintiffs to comply with the 2013 Order (to the
extent applicable at that point), and referred the at-issue motions to the undersigned. See id.
•

On April 15, 2015, the undersigned outlined the remaining briefing schedule for

the at-issue motions. See 4/15/15 Order (Docket No. 620).
•

On June 3, 2015, Plaintiffs responded to the at-issue motions. See Pls.’ Resps. to

Defs.’ Mots. for Attys’ Fees (Docket Nos. 645-648).
•

On July 2, 2015, Defendants submitted their replies in support of the at-issue

motions. See Credit Suisse’s Reply in Supp. of Mot. for Attys’ Fees (Docket No. 660); Cushman
& Wakefield’s Reply in Supp. of Mot. for Attys’ Fees (Docket No. 661).

MEMORANDUM DECISION AND ORDER - 6

II. DISCUSSION
To be clear, as one of the three avenues of relief sought by Defendants, and expressly
outlined in the 2013 Order (and affirmed by Judge Lodge’s October 17, 2014 Order), Defendants
are to be reimbursed for the costs and attorneys’ fees in bringing their successful motions – in
Credit Suisse’s case, its Motion for Order to Show Cause (Docket No. 253); and, in Cushman &
Wakefield’s case, its Motion for Sanctions (Docket No. 246). To the extent Plaintiffs oppose
these efforts based on any substantive argument that such relief should not have been ordered in
the first place, that argument is rejected. See, e.g. Pls.’ Resp. to Credit Suisse’s Mot. for Attys’
Fees, pp. 1-7, 11-12 (Docket No. 645); Pls.’ Resp. to Cushman & Wakefield’s Mot. for Attys’
Fees, pp. 1-6, 10-11 (Docket No. 646). By virtue of the already extensive briefing on that issue,
followed by appeals to the Ninth Circuit, that ship has already sailed.
Still, the Court must consider the appropriateness of Defendants’ attorneys’ fees requests.
On this point, the 2013 Order reads:
Any such request shall carry sufficient detail and explanation so as to allow the Court
to find, by a preponderance of the evidence submitted to it, that the requested costs
are directly connected to the motion for sanctions, and the follow-up work in
response to this ruling. If there is any doubt left by the evidence in that regard, the
Court will not award any costs represented by the doubtful evidence.
3/29/13 MDO, p. 25 (Docket No. 352). Plaintiffs protest the making of any award, contending
that: (1) attorneys’ fees are not recoverable for the preparation of a motion for sanctions and the
defense of a sanctions order; (2) Defendants’ hourly rates are “grossly excessive”; and (3) the
hours expended on Defendants’ motions for sanctions are unreasonable. See Pls.’ Resp. to
Credit Suisse’s Mot. for Attys’ Fees, pp. 7-20 (Docket No. 645); Pls.’ Resp. to Cushman &
Wakefield’s Mot. for Attys’ Fees, pp. 6-20 (Docket No. 646).

MEMORANDUM DECISION AND ORDER - 7

A.

Attorneys’ Fees Relating to Defendants’ Motions Are Recoverable
Citing 28 U.S.C. § 1927's reference to the recovery of “excess costs, expenses, and

attorneys’ fees reasonably incurred” by an attorney’s actionable conduct, Plaintiffs argue that the
“motions for sanctions by four law firms on the same issue is neither an excess cost caused by
the failure to disclose to the Court that there was a signed declaration in addition to Miller’s
unsigned one nor are such attorneys’ fees includable in an award of sanctions.” Pls.’ Resp. to
Credit Suisse’s Mot. for Attys’ Fees, p. 9 (Docket No. 645); Pls.’ Resp. to Cushman &
Wakefield’s Mot. for Attys’ Fees, p. 7 (Docket No. 646). The undersigned disagrees.
First, Plaintiffs ignore the 2013 Order’s explicit recitation of how Plaintiffs’ counsel’s
conduct unreasonably multiplied the proceedings:
Plaintiffs’ counsel’s failure to file the signed statement when it came into their
possession had the inevitable, and intended, effect of unreasonably multiplying the
proceedings in this case pertaining to briefing, argument, consideration and decision
upon motions to dismiss, and motions to amend. Whether or not Judge Lodge
ultimately changed any of his decision upon objections (or reconsideration of his
decision) to the undersigned’s Report and Recommendation dated February 17, 2012
does not change this analysis or the finding made here. The failure to file the signed
affidavit necessarily meant that the nature of the briefing and the argument, and the
court’s consideration of the evidence and decision upon the same, was different than
it would have been with the addition of such evidence to the record. The Court
acknowledges that Plaintiffs’ counsel would have been free to argue, and no doubt
would have argued, that the signed statement was of no different evidentiary
importance than the unsigned affidavit. But, defense counsel would also have the
argument that the signed statement was substantively different, that the
characterization of a whistle blower witness worried about retaliation was
unfounded, and the Court would have had that full panoply of evidence and
argument to consider. When the signed statement came to light, a new round of
motion practice ensued and even the very fact of this Memorandum Decision and
Order is evidence that proceedings have been multiplied and additional resources
of the parties and the court have been drawn upon.
3/29/13 MDO, p. 22 (Docket No. 352) (emphasis added). Indeed, it was such conduct that
generated Defendants’ motions for sanctions and, eventually, the Court’s multiple orders

MEMORANDUM DECISION AND ORDER - 8

awarding and upholding a corresponding sanctions award. The relief awarded required, in no
uncertain terms, Defendants’ reimbursement of “attorneys’ fees and costs necessitated by the
motions filed seeking sanctions as a result of the failure to file the sworn affidavit of Mr. Miller.”
Id. at p. 24. Therefore, the attorneys’ fees going into Defendants’ motions for sanctions are
“excess costs” caused by Plaintiffs’ sanctioned conduct and are recoverable.3
Second, courts within the Ninth Circuit have awarded attorneys’ fees associated with
prosecuting a successful motion for sanctions. See, e.g., In re Girardi, 611 F.3d 1027, 1067 n.53
(9th Cir. 2010) (Special Master, Ninth Circuit Judge Atsushi Wallace, believing “better view” to
be recovery of attorneys’ fees incurred in sanctions proceedings); Montoya v. Orange Cnty.,
2013 WL 6705992, *15 (C.D. Cal. 2013) (“The Court finds that Plaintiff is entitled to an award
of attorneys’ fees in the amount of $8,000 which Plaintiff incurred in the preparation and filing
of this Motion [for Sanctions].”); In re SPECS, 2012 WL 5372583, *2 (N.D. Cal. 2012) (“For
July 2012, the fees requested relate entirely to Defendants’ sanctions motion as well as work
regarding Plaintiffs’ ongoing document production deficiencies. The court finds that none of the
hours sought in July 2012 are unnecessary, duplicative, or excessive, and awards the entire
requested amount of $22,175.44.”); Garcia v. Bana, 2012 WL 2119157, *9 (N.D. Cal. 2012)

3

Plaintiffs also claim that Defendants’ respective oppositions to Plaintiffs’ subsequent
challenges to the 2013 Order (be it a reconsideration of, or an objection to) are similarly not
“excess costs” resulting from the decision not to file Mr. Miller’s signed May 2011 affidavit.
See Pls.’ Resp. to Credit Suisse’s Mot. for Attys’ Fees, p. 10 (Docket No. 645) (“Thus, even
though no fees can be awarded for bringing the motions for sanctions, defending the award of
sanctions was not ‘excess costs, expenses, and attorneys’ fees reasonably incurred because of the
failure to disclose the existence of the signed Miller Declaration to the Court.”) (emphasis in
original); Pls.’ Resp. to Cushman & Wakefield’s Mot. for Attys’ Fees, pp. 8-9 (Docket No. 646)
(same). To the contrary, these fees are also the consequence of Plaintiffs’ sanctioned conduct
and are recoverable. See 3/29/13 MDO, p. 25 (Docket No. 352) (implying recovery of costs
“directly connected to the motion for sanctions, and to the follow-up work in response to this
ruling.”) (emphasis added).
MEMORANDUM DECISION AND ORDER - 9

(sanctions award included “reasonable amount of time for the preparation of this particular
motion for sanctions”); In re NCAA Student-Athlete name & Likeness Licensing Litig., 2012 WL
5372477, *7 (N.D. Cal. 2012) (“Accordingly, the Court is inclined to impose monetary sanctions
upon Terrell under Rule 37, 28 U.S.C. § 1927, and the Court’s inherent powers, requiring
payment to CLC of all attorneys’ fees and costs that it incurred in filing the instant motion [for
sanctions] . . . .”); Parker v. Upsher-Smith Labs., Inc., 2009 WL 418596, *9 (D. Nev. 2009)
(“Pursuant to the court’s inherent power, 28 U.S.C. § 1927, and LR IA 4-1, plaintiff’s counsel
shall pay all defendant[s] all attorney’s fees and costs incurred in connection with the motion for
sanctions . . . .”).
In other words, the 2013 Order is not unique in allowing for the recovery of those
attorneys’ fees associated with bringing an underlying motion for sanctions. With all this in
mind, there is no basis to outright preclude Defendants’ recovery of attorneys’ fees related to
their motions. Recovery of such fees was expressly contemplated by the 2013 Order’s terms and
is permitted within the Ninth Circuit. Plaintiffs’ objections are without merit in this respect.
B.

Defendants Are Not Entitled to All of Their Requested Attorneys’ Fees
“The most useful starting point for determining the amount of a reasonable fee is the

number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The product of this computation – the
‘lodestar figure’ – is a ‘presumptively reasonable’ fee . . . .” Gonzalez v. City of Maywood, 729
F.3d 1196, 1202 (9th Cir. 2013). The Court may adjust the loadstar figure upward or downward
based on the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.

MEMORANDUM DECISION AND ORDER - 10

1975), that are not subsumed in the loadstar calculation.4 Here, Plaintiffs take issue with both of
the lodestar factors, claiming that Defendants’ attorneys’ hourly rates are “grossly excessive” as
are the total hours worked on Defendants’ motions for sanctions. See Pls.’ Resp. to Credit
Suisse’s Mot. for Attys’ Fees, pp. 12-20 (Docket No. 645); Pls.’ Resp. to Cushman &
Wakefield’s Mot. for Attys’ Fees, pp. 11-20 (Docket No. 646). The Court agrees.
1.

Reasonable Hourly Rate

An hourly rate is reasonable if it is “in line with those prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation.” Blum v.
Stenson, 465 U.S. 886, 896 n.11 (1984); Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th
Cir. 2007). “[N]ormally the relevant legal community for determining the prevailing market
rates for attorneys’ fees is the community in which the forum is situated.” Gates v. Deukmejian,
987 F.2d 1392, 1405 (9th Cir. 1992). “[R]ates outside the forum may be used if local counsel
was unavailable, either because they were unwilling or unable to perform because they lack the
degree of experience, expertise, or specialization required to handle properly the case.”
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008).
The hourly rates cited within Defendants’ Motions for Attorneys Fees reflect an
considerable arc – from $841.50 (for a Paul Hastings partner) to $225.25 (for a Weil Gotshal
paralegal). See Credit Suisse’s Mem. in Supp. of Mot. for Attys’ Fees, pp. 5-6 (Docket No. 551,
Att. 1); Cushman & Wakefield’s Mem. in Supp. of Mot. for Attys’ Fees, pp. 5-6 (Docket No.

4

Kerr lists the following factors as: (1) the time and labor required; (2) the complexity
of the case; (3)the skill requisite to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations imposed by the client or other circumstances; (8)
the amount involved and the 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) awards in similar cases. Kerr, 526 F.2d at 70.
MEMORANDUM DECISION AND ORDER - 11

552, Att. 1). Lost in the middle are the hourly rates for each Defendant’s local counsel –
$335.00 for Credit Suisse’s James Martin and Tyler Anderson, and $395.00/$405.005 for
Cushman & Wakefield’s Richard Boardman. See id.6
This case is complex, with enormous financial stakes here and with potential ripples
through other jurisdictions. However, there was nothing particularly thorny, esoteric or cuttingedge about the actual subject of Defendants’ Motions for Attorneys’ Fees – that is, the
complained of conduct, and the question of whether that conduct ran afoul of expected standards.
That is to say, whatever expertise or urban marketplace may justify the particular hourly rates
charged by Defendants’ outside counsel, there was nothing in such expertise or other
community’s marketplace that was needed for work upon Defendants’ motions for sanctions.
Therefore, the undersigned must assign an hourly rate consistent with this forum, recognizing
that the motions for sanctions could have been (and, indeed, were, for a considerable part)
largely handled by Defendants’ local counsel.
Accordingly, the reasonable attorney rate under the circumstances present here is
determined to be the average of Credit Suisse’s local counsel’s hourly rate ($335.00) and
Cushman & Wakefield’s local counsel’s hourly rate ($395.00)7 – $365.00. This hourly rate will
be applied to the number of attorney8 hours reasonably expended in connection with Defendants’

5

According to Cushman & Wakefield, the discrepancy in Attorney Boardman’s rates is
due to different rates billed in 2012 and 2013. See Cushman & Wakefield’s Mem. in Supp. of
Mot. for Atty’s Fees, p. 6 (Docket No. 552, Att. 1).
6

The undersigned’s “conservative estimate” of a $300/hour billing rate in the 2013
Order appears to be just that. See 3/29/13 MDO, p. 26 (Docket No. 352).
7

As to Attorney Boardman, the undersigned adopts the lower 2012 hourly rate given that
the majority of Mr. Boardman’s billed time was incurred for these purposes in 2012.
8

This applies to all attorneys except Moffatt Thomas attorneys James Martin and Tyler
Anderson, and Paul Hastings attorney Kimberly Singer whose hourly rates are already lower –
$335.00 and $361.25 respectively. Additionally, a flat $150.00 hourly rate will be applied to the
hours billed by paralegals Nancy Cade at Weil Gotshal and Manel Wijemanne at Paul Hastings.
MEMORANDUM DECISION AND ORDER - 12

motions for sanctions (see infra) to arrive at the lodestar figure representing the reasonable
attorneys’ fees recoverable via Defendants’ Motions for Attorneys Fees.
2.

Hours Reasonably Expended

Courts have discretion in determining the number of hours reasonably expended on a
particular case. See, e.g., Hensley, 461 U.S. at 437. The fee applicant bears the burden of
“documenting the appropriate hours expended” in the litigation and therefore must “submit
evidence supporting the hours work.” Id. “Those hours may be reduced by the court where the
documentation of the hours is inadequate; if the case was overstaffed and hours are duplicated; if
the hours expended are deemed excessive or otherwise unnecessary.” Chalmers v. City of Los
Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986) (citing Hensley, 461 U.S. at 433-34).
The overall breakdown of Defendants Credit Suisse’s and Cushman & Wakefield’s
billed/requested hours is contained in the following two tables:
CREDIT SUISSE
Law Firm
Moffatt Thomas
(Local Counsel)
Weil Gotshal

Legal Professional and Hours Billed

Total Hours Billed

James Martin (46.8)
Tyler Anderson (11)

57.8

John O’Connor (14.6)
David Sillers (11.6)
Olivia Miller (7.6)
Matthew Leung (21.7)
Nancy Cade (1.0)

56.5

TOTAL:

9

114.39

This increase in hours from the calculation provided in Credit Suisse’s briefing reflects
an additional six hours billed for Matthew Leung – time spent preparing for Credit Suisse’s
Motion for Attorneys’ Fees. See Credit Suisse’s Mot. for Attys’ Fees, pp. 6-7 (Docket No. 551,
Att. 1).
MEMORANDUM DECISION AND ORDER - 13

CUSHMAN & WAKEFIELD
Law Firm
Perkins Coie
(Local Counsel)
Paul Hastings

Legal Professional & Hours Billed

Total Hours Billed

Richard Boardman (28.8)

28.8

Donald Morrow (9.9)
Barry Sher (7.4)
Ryan Fawaz (59.1)
Kimberly Singer (9.8)
Manel Wijemanne (4.8)

91.0

TOTAL:

119.8

Relative to these hours, the Court has carefully reviewed the Defendants’ billing
statements submitted in justification of the requested award of attorneys’ fees pursuant to the
Court’s 2013 Order. See Ex. A to Guy Decl. (Docket No. 551, Att. 3); Ex. A to Martin Aff.
(Docket No. 551, Att. 5); Ex. A to Morrow Decl. (Docket No. 552, Att. 3); Ex. 1 to Boardman
Decl. (Docket No. 552, Att. 5). Additionally, the Court has consulted the helpful templates
provided by Plaintiffs, chronologically incorporating into two separate charts, each Defendant’s
respective law firms’ billed time. See Stillman Decl. (Docket No. 647); Ferrigno Decl. (Docket
No. 648). After doing so, the undersigned is convinced that Defendants’ attorneys undertook
legitimate legal work and performed it earnestly and in good faith. However, owing to the clear
similarities between Credit Suisse’s Motion for Order to Show Cause and Cushman &
Wakefield’s Motion for Sanctions, that work occasionally overlapped to render the total number
of hours billed (234.1) excessive/unreasonable under the circumstances.
In its “Prayer for Relief,” Credit Suisse’s Motion for Order to Show Cause asked this
Court “to issue an order for the Plaintiffs to show cause as to why they should not be sanctioned
for misleading the Court in violation of their duty of candor” and, relatedly, “to order Robert
MEMORANDUM DECISION AND ORDER - 14

Huntley to explain under oath his recollection of the facts underlying the Miller affidavits.”
Credit Suisse’s Mem. in Supp. of Mot. for Order to Show Cause, p. 19 (Docket No. 253, Att. 1).
Similarly, Cushman & Wakefield’s Motion for Sanctions concluded by saying:
Plaintiffs’ failure to bring to the Court’s attention their receipt of the signed Miller
affidavit constitutes fraud on this Court. Plaintiffs’ continued misrepresentations as
to what Miller said or meant by his statements at the March 2011 meeting only
perpetuated and magnified this fraud. This deception by Plaintiffs’ counsel cannot
stand. They have deliberately misled the Court about the state of the record for the
last year. Sanctions should be imposed pursuant to the Court’s inherent powers, and
the remainder of the TAC should be dismissed in its entirety as to C&W with
prejudice (if not already dismissed pursuant to C&W’s motion for reconsideration).
The Court also should impose monetary sanctions against Plaintiffs’ counsel.
Mem. in Supp. of Mot. for Sanctions, p. 20 (Docket No. 246, Att. 1). These motions essentially
asked for the same thing – for Plaintiffs to be sanctioned – and the Court considered them in
unison in its subsequent 2013 Order. Therefore, it should be no surprise that Defendants’
attorneys – each pulling in the same direction with respect to their interconnected motions for
sanctions (each premised upon the exact same reasons) – would not only be performing
analogous legal work, but doing that work in concert with one another.10 There is nothing wrong

10

For example, the attorneys for each side would frequently consult with one another
regarding their motions for sanctions. See, e.g., 11/8/12 Martin Entry, attached as Ex. A to
Martin Aff. (Docket No. 551, Att. 5) (“Receive and review order setting hearing on C&W’s
motion for sanctions and CS’s motion for order to show cause and analyze issues regarding
same”); id. at 11/9/12 (“Follow up with best strategy for handling of hearing on motion for
sanctions and motion for order to show cause with Cushman’s counsel . . . ”); id. at 11/14/12
Martin Entry (“Analyze issues with Cushman’s local counsel on handling of sanctions
motions”); id. at 11/29/12 Martin Entry (“E-mail exchanges and conferences with defense
counsel on strategy for hearing next week”); id. at 12/3/12 Martin Entry (“Conference with all
defense counsel to discuss strategy for this week’s hearing”); id. at 12/4/12 Martin Entry
(“Prepare for hearing tomorrow on sanctions motions and motion for order to show cause . . .
and e-mail and conferences with Cushman’s counsel”); id. at 12/6/12 Martin Entry (“Receive
and review and e-mail exchanges with other defense counsel plaintiff’s motion for leave to file
expedited five page brief”); id. at 12/7/12 Martin Entry (“E-mail exchange with co-counsel and
Cushman’s counsel regarding today’s filings”); id. at 3/29/13 Martin Entry (“Receive, review,
and e-mail exchanges with Court staff, Cushman’s counsel and co-counsel . . . ”); id. at 4/1/13
Martin Entry (“E-mail exchange with Cushman’s counsel regarding sanction order”); id. at
MEMORANDUM DECISION AND ORDER - 15

with such an approach in general; to be sure, the Court understands the parties’ interest in
preserving their own rights and putting their own “gloss” on the issues before the Court, even if
those interests are shared. But, at the end of the day, Defendants’ conduct as to their motions for
sanctions (and with their overall defense of this action thus far) marched in lock-step (and shared
conversation) with each other. Such a “belt and suspenders” approach may be justified to meet
the client’s request, or it may be justified out of an abundance of caution and exhaustive

4/8/13 Martin Entry (“Receive, review and e-mail exchanges with Cushman’s counsel . . . ”); id.
at 4/9/13 Martin Entry (“E-mail exchanges and conferences with defense counsel regarding best
approach to motion to Stay sanction . . . ”); id. at 4/15/13 Martin Entry (“Analyze issues with
Cushman’s counsel and R. Guy on whether to file response to motion to stay and what to file if
Cushman does file objection”); id. at 4/17/13 Martin Entry (“Analyze issues and e-mail
exchanges regarding Cushman attorney’s calls to Miller and latest development on that front”);
id. at 4/17/13 Martin Entry (“Analyze issues and e-mail exchanges with defense counsel
regarding latest communications on Miller affidavit chronology . . . ”); id. at 4/22/13 Martin
Entry (“Receive, review and analyze issues and e-mail exchanges with defense counsel
regarding the three attorney affidavits filed this afternoon by plaintiffs’ counsel . . . ”); id. at
4/23/13 Martin Entry (“Receive, review and e-mail exchanges with defense counsel regarding
today’s various filings by plaintiff’s counsel . . . ”); id. at 4/23/13 Martin Entry (“Receive,
review and e-mail exchange with R. Guy and R. Boardman regarding order issued by Court
granting stay motion”); id. at 4/25/13 Martin Entry (“E-mail exchanges with defense counsel on
strategy for responding to motion for reconsideration . . . ”); id. at 4/30/13 Martin Entry
(“Extended conference with R. Boardman regarding best strategy to deal with plaintiffs’ ‘motion
for reconsideration’ . . . ”); see also 6/27/12 Boardman Entry, attached as Ex. 1 to Boardman
Decl. (Docket No. 552, Att. 5) (“Emails and conferences with co-counsel and co-defendant’s
counsel regarding [opposition to motion for sanctions]”); id. at 11/9/12 Boardman Entry (“Emails with co-defendant’s counsel regarding arguments on sanctions motion . . . ”); id. at 12/3/12
Boardman Entry (“conference call with defense counsel regarding arguments on motion; emails
with co-defendant’s counsel regarding presentation of arguments, visual aids and related
issues”); id. at 12/4/12 Boardman Entry (“emails and conference with co-defendant’s counsel
regarding [sanctions motion and show cause motion]”); id. at 12/5/12 Boardman Entry (“emails
with co-counsel and co-defendant’s counsel regarding hearing”); id. at 12/14/12 Boardman Entry
(“Emails and conference with co-defendant’s counsel regarding sanctions motion hearing and
supplemental briefing”); id. at 3/29/13 Boardman Entry (“emails with co-counsel and codefendant’s counsel regarding [Court’s Order on Motion for Sanctions]”); id. at 4/1/13
Boardman Entry (“conference with co-defendant’s counsel regarding sanctions Order”); id. at
4/24/13 Boardman Entry (“emails with co-counsel and co-defendant’s counsel regarding
response to [2013 Order]”); id. at 4/26/13 Boardman Entry (“emails with co-counsel regarding
revisions to draft memorandum; receive and review co-defendant’s memorandum in response”).
MEMORANDUM DECISION AND ORDER - 16

advocacy. Or, it may be more than was necessary and in that setting, as in any similar setting,
the Court is not required to impose the full weight of such an effort upon the party against whom
a fee award is made.
In the exercise of its discretion, the Court declines to turn the fee award here into a
figurative wrecking ball. In choosing that course, the Court notes that it is difficult to parse out
the overlapping instances of “reviewing,” “analyzing,” “discussing,” and/or “conferencing” from
Defendants’ billing statements. Fortunately, “trial courts need not, and indeed should not”
moonlight as a “green-eyeshade accountant” to make sense of things to resolve fee petitions.
Latta v. Otter, 2014 WL 7245631, *10 (D. Idaho 2014) (quoting Fox v. Vice, 131 S.Ct. 2205,
2216 (2011). “The essential goal in shifting fees (to either party) is to do rough justice, not to
achieve auditing perfections.” Id. Accordingly, the Court will impose a 30% reduction to
Defendants’ counsels’ requested hours to achieve a reasonable number of expended hours,
multiplied by the above-referenced reasonable hourly rate.
The following charts summarize the Court’s calculations of the lodestar figures for
Defendants Credit Suisse and Cushman & Wakefield, recoverable here as Defendants’
reasonable attorneys: fees:
CREDIT SUISSE
Law Firm

Legal Professional

Billing Rate

Hours Reasonably Expended

Lodestar

Moffatt
Thomas

James Martin Tyler
Anderson

$335.00
$335.00

32.8 (46.8 x .70)
7.7 (11 x .70)

$10,988.00
$2,579.50

Weil
Gotshal

John O’Connor
David Sillers
Olivia Miller
Matthew Leung
Nancy Cade

$365.00
$365.00
$365.00
$365.00
$150.00

10.2 (14.6 x .70)
8.1 (11.6 x .70)
5.3 (7.6 x .70)
15.2 (21.7 x .70)
.7 (1.0 x .70)

$3,723.00
$2,956.50
$1,934.50
$5,548.00
$105.00

TOTAL

MEMORANDUM DECISION AND ORDER - 17

$27,834.50

CUSHMAN & WAKEFIELD
Law Firm

Legal Professional

Billing Rate

Hours Reasonably Expended

Lodestar

Perkins
Coie

Richard Boardman

$365.00

20.2 (28.8 x .70)

$7,373.00

Paul
Hastings

Donald Morrow
Barry Sher
Ryan Fawaz
Kimberly Singer
Manel Wijemanne

$365.00
$365.00
$365.00
$361.25
$150.00

6.9 (9.9 x .70)
5.2 (7.4 x .70)
41.4 (59.1 x .70)
6.9 (9.8 x .70)
3.4 (4.8 x .70)

$2,518.50
$1,898.00
$15,111.00
$2,493.00
$510.00

TOTAL

$29,903.50

III. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
1.

Credit Suisse’s Motion for Attorneys’ Fees (Docket No. 551) is GRANTED. The

previously-identified Plaintiffs’ counsel, jointly and severally, shall pay $27,834.50 to Credit
Suisse.
2.

Cushman & Wakefield’s Motion for Costs and Attorney Fees in Accordance with

Sanctions Order (Docket No. 552) is GRANTED. The previously-identified Plaintiffs’ counsel,
jointly and severally, shall pay $29,903.50 to Cushman & Wakefield
DATED: September 8, 2015

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 18