Merchant, Jr. v Equifax, Information Services, LLC

Filing 89

Judge Indira Talwani: ORDER entered granting in part and denying in part 74 Motion for Attorney Fees; denying 87 Motion for Attorney Fees. See attached order. (Talwani, Indira)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
KEVIN MERCHANT, JR.,
Plaintiff,
v.
EQUIFAX INFORMATION SERVICES,
LLC,
Defendant.

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Civil Action No. 4:20-cv-11136-IT

MEMORANDUM & ORDER
TALWANI, D.J.

September 29, 2023

Plaintiff Kevin Merchant, Jr., brought this action against Defendant Equifax Information
Services, LLC (“Equifax”) alleging willful and negligent violations of the Fair Credit Reporting
Act, 15 U.S.C. § 1681, et seq. Compl. [Doc. No. 1]. On August 11, 2022, Equifax made an Offer
of Judgment [Doc. No. 70-1], pursuant to Federal Rule of Civil Procedure 68, which Merchant
accepted, see Notice of Plaintiff’s Acceptance [Doc. No. 70]. Pending before the court is
Plaintiff’s Motion for Attorney’s Fees, Pursuant to 15 § 1681o (“Motion for Fees”) [Doc. No.
74] seeking $43,610 in fees and costs, and Plaintiff’s Application for Attorney’s Fees Incurred
During the Preparation of His Attorney Fee Request (“Motion for Further Fees”) [Doc. 87],
seeking an additional $20,430 in fees. For the foregoing reasons, Plaintiff’s Motion for Fees
[Doc. No. 74] is GRANTED IN PART and DENIED IN PART, and his Motion for Further Fees
[Doc. No. 87] is DENIED.
I.

Background
Much of the background relevant to the pending motions is laid out in the court’s Order

and Memorandum [Doc. No. 66]. In sum, Merchant alleged that as a result of mistaken identity

by Equifax in response to a credit inquiry, Merchant was unable to obtain refinancing and lost
out on hundreds of dollars in mortgage payments. Order and Mem. 2-3. [Doc. No. 66].
Merchant filed suit against Equifax, alleging two counts of violations of the Fair Credit
Reporting Act (“FRCRA”), 15 U.S.C. § 1681, et seq. Merchant’s First Claim for Relief, under 15
U.S.C. § 1681n, alleged willful violations of 15 U.S.C. §§ 1681e(b), 1681i, and 1681g. Verified
Compl. ¶¶ 52-57 [Doc. No. 1]. Merchant’s Second Claim for Relief, under 15 U.S.C. §1681o,
alleged negligent violations of 15 U.S.C. §§ 1681e(b), 1681(i) and 1681g. Id. ¶¶ 58-62. Plaintiff
sought actual damages, punitive damages, and attorney’s fees and costs, as well as declaratory
relief concerning the confusion of his credit report. Equifax moved for summary judgment as to
both counts, Defendant’s Motion for Summary Judgment [Doc. No. 37], and moved to strike,
Defendant’s Motion to Strike [Doc. No. 62], an affidavit submitted by Plaintiff with his
opposition to the summary judgment motion. The court denied Equifax’s Motion to Strike [Doc.
No. 32] and denied in part and granted in part Equifax’s Motion for Summary Judgment [Doc.
No. 37], see Order and Memorandum [Doc. No. 66], concluding that Plaintiff had standing, that
he had not demonstrated willful violations of 15 U.S.C. § 1681e(b) but had sufficient evidence to
go forward on the negligent violation of that statute, that he had not demonstrated willful or
negligent violations of 15 U.S.C. § 1681i, and that he had abandoned his claims for violation of
15 U.S.C. § 1681g. Order and Mem. 2, 6-7 [Doc. No. 66].
On August 22, 2022, Equifax filed a Notice of Plaintiff’s Acceptance of Equifax’s Offer
of Judgment [Doc. No. 70] and the Offer of Judgment Upon Plaintiff[] Kevin Merchant Pursuant
to Rule 68 (“the Offer of Judgment”) [Doc. No. 70-1], which provided for judgment in the
amount of $5,970.00, plus “reasonable attorneys’ fees and costs, incurred to the date of this
Offer, in an amount to be determined by the Court.” The court entered a judgment in favor of

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Merchant and against Equifax in the amount of $5,970.00, “plus reasonable attorneys’ fees and
costs incurred through August 11, 2022, in an amount to be determined by the court on a motion
filed in accordance with Fed. R. Civ. P. 54(d)[.]” Judgment [Doc. No. 71].
Merchant then filed the pending Motion for Fees [Doc. No. 74]. Merchant contends that
he is entitled to attorney’s fees and costs in the amount of $43,610 where “reasonable attorneys’
fees and costs” are provided for in the Offer of Judgment [Doc. No. 70-1] and are available to the
prevailing party under § 1681o. Pl. Mem. [Doc. No. 75]. Merchant seeks an additional $20,340
of fees incurred in connection with his fee request, under the general rule that fees incurred in
seeking fees pursuant to fee-shifting statutes may also be awarded under such statutes. Motion
for Further Fees [Doc. No. 87]. Equifax opposes both requests.
II.

Discussion
A.

Plaintiff’s Motion for Fees

Defendant argues that Plaintiff is not entitled to attorneys’ fees where he is not the
prevailing party under the Fair Credit Reporting Act, 15 U.S.C. § 1681o. Def. Opp’n to Pl. Mot.
for Atty’s Fees (“Opp’n”) 1 [Doc. No. 2-3]. However, this argument is foreclosed where the
Offer of Judgment expressly provides for Plaintiff’s “reasonable attorneys’ fees incurred through
[August 11, 2022], in an amount to be determined by the Court.” Id. [Doc. No. 70-1]. The Offer
did not suggest that the court need determine whether Plaintiff was the prevailing party, but only
whether the fees sought were reasonable. Accordingly, the court turns to that issue.
Plaintiff asserts that the $43,110 he seeks in fees is reasonable under the prevailing
lodestar method. Pl. Mem. 3-4 [Doc. No. 75]. Defendant responds that, if the court awards fees,
the award should be substantially reduced because (i) the relationship between the judgment
offered and fees sought is not justified, and (ii) Plaintiff’s counsel’s litigation strategy was the

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cause for the fees Plaintiff now seeks. Def. Opp’n 6 [Doc. No. 85]. Finally, Defendant asserts
that Plaintiff should not recover fees for time spent on claims that were ultimately dismissed as a
matter of law. Id. at 7. In reply, Plaintiff asserts that his claims were interrelated and cannot be
separated, and thus, the fees should not be reduced by any measure. Pl. Reply 10 [Doc. No. 86].
In calculating fees, the First Circuit has indicated that the lodestar method is the preferred
approach. Pèrez-Sosa v. Garland, 22 F.4th 312, 320 (1st Cir. 2022). “The lodestar amount equals
‘the number of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). In calculating the number
of hours reasonably expended, courts excludes those hours that are “excessive, redundant, or
otherwise unnecessary.” See Cent. Pension Fund of the Int’l Union of Operating Eng’rs and
Participating Emp.s v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014) (quoting Hensley,
461 U.S. at 434)). Next, the court considers whether the hourly rate sought is reasonable, often
by considering “the prevailing rates in the community for lawyers of like qualifications,
experience, and competence.” Cent. Pension Fund, 745 F.3d at 5. Finally, once the court has
determined the lodestar amount, i.e., the number of hours multiplied by the reasonable hourly
rate, the court may adjust the lodestar amount, “if the specific circumstances of the case warrant
an adjustment.” Pèrez-Sosa, 22 F.4th at 321.
As to the first step, Plaintiff’s submission reflects that his counsel, Jonas Jacobson,
expended 95.8 hours on the litigation between April 28, 2020, and November 4, 2021. See Pl.
Mot. Ex. A, August 3, 2022 Invoice [Doc. No. 75-1]. The court rejects Defendant’s objection to
Plaintiff’s litigation strategy, where nothing precluded Defendant from making a much earlier
offer of judgment. And although the fees incurred are greatly in excess of the result obtained,
where no earlier offer of judgment was made, the court finds it appropriate to award the fees

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necessary to obtain that offer. Nor does the court identify any specific entries as “excessive, [or]
redundant.”
Plaintiff’s entries do not parse between specific claims or legal theories. Plaintiff
contends that this is because the claims are interrelated and cannot be parsed. The summary
judgment record largely supports this contention, where Plaintiff’s briefing on summary
judgment focuses on the record before the court as a whole, Plaintiff’s Opposition to Defendant’s
Motion for Summary Judgment 10-11 [Doc. No. 53], and the dispute surrounding the affidavit
and motion to strike was necessitated by Defendant’s global argument that Plaintiff lacked
standing, spending little time on the question of the now-dismissed claim of willfulness
specifically. At the same time, some reduction in hours is warranted where the Offer of
Judgment [Doc. No. 70-1] pertained only to Plaintiff’s remaining count for negligent violations
of the Fair Credit Reporting Act. Accordingly, the court considers the time spent specifically on
Plaintiff’s willfulness claim in Plaintiff’s briefing (roughly one page of eight devoted to
Plaintiff’s argument), Plaintiff’s Memorandum in Opposition to Equifax’s Motion for Summary
Judgment 10 [Doc. No. 53] and the time devoted to that claim in the court’s summary judgment
order (one page of seven), See Order and Memorandum 6-7 [Doc. No. 66] as instructive to the
court’s conclusion that a limited reduction is warranted to assure that unnecessary fees are not
awarded. In light of the limited discussion devoted to this theory, the court concludes that a 15%
reduction in the hours, for a total of 81.4 hours sought by Plaintiff to be reasonable.
As to the second step, Defendant does not object to the Plaintiff’s counsel’s hourly rate,
and, where the evidence Plaintiff offers reflects that counsel’s hourly rate offered is in line with,
or below, rates of similar practitioners, see Motion for Fees Ex. B [Doc. No. 75-2], Ex. C [Doc.
75-3], the court concludes that $450 per hour is reasonable.

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Accordingly, the court determines fees in the amount of $36,630 to be reasonable
attorneys’ fees incurred through August 11, 2022, in an amount to be determined by the Court.
Where the Offer of Judgment [Doc. No. 70-1], provides for costs, and Defendant does not
dispute that the costs sought are improper under the Offer, the court also awards Plaintiff the
$500 in costs sought.
B.

Plaintiff’s Motion for Further Fees

Plaintiff seeks further fees incurred during the preparation of his attorney’s fee request,
arguing that fees or fees are appropriate under fee shifting provisions. Motion for Further Fees 1
[Doc. No. 87]. While Plaintiff correctly states the general rule, the court is unable to find him
entitled to statutory fees here where the Offer of Judgment [Doc. 70-1] specifically states that it
“shall not . . . be construed or used as an admission of liability on the part of Equifax.”
Nor may Plaintiff be awarded fees based on the Offer of Judgment’s fee provision where
that provision is limited to fees incurred before August 11, 2022. Accordingly, Plaintiff’s Motion
for Further Fees [Doc. No. 87] is denied.
III.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees [Doc. No. 74] is

GRANTED IN PART and DENIED IN PART and Plaintiff’s Motion for Further Fees [Doc. No.
87] is DENIED. The court awards Plaintiff Kevin Merchant, Jr. $37,143.50 in attorney’s fees
and costs.
IT IS SO ORDERED
September 29, 2023

/s/ Indira Talwani
United States District Judge

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