MOZINGO et al v. OIL STATES ENERGY SERVICES, L.L.C. et al
Filing
516
MEMORANDUM re 507 MOTION for Attorney Fees and MOTION for Taxation of Costs filed by KARI GORDON, JEFFREY STEFFISH, ROBERT PICKEL, STEPHEN SOLTESZ-HAUGHTON, GEORGE BOLEN, JR., MICHAEL BURCHIK, MICHAEL GEORGE, DON BRATTON, WAYNE EDDY, RYAN KARMANN, SCOT POND, JASON LETT and MATT WILLIAMS. Signed by Judge Mark A. Kearney on 9/18/2018. (kly)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
SAMMY MOZINGO, et al.
CIVIL ACTION
v.
NO. 15-529
OIL STATES ENERGY SERVICES,
L.L.C., et al.
MEMORANDUM
KEARNEY,J.
September 18, 2018
Twenty-nine oil field employees treated as exempt from federal overtime laws sued their
employer over novel overtime exemption issues. The employees hired a well-known Pittsburgh
wage and overtime rights law firm. The employer hired Texas lawyers. All counsel vigorously
presented strong positions and properly disputed dozens of legal issues.
After two week-long trials for four similarly situated oil field employees each, the juries
returned verdicts for the eight employees who went to trial. Under federal law, the employees'
counsel are entitled to an award of reasonable fees and costs paid by the employer.
The
employer objects to the requested fees and costs, largely arguing they are unreasonable because
the lead Pittsburgh pre-trial lawyer left before trial for a large Washington, D.C. law firm and
then many of his Washington colleagues fully staffed and pursued the case at Washington hourly
rates.
Measuring an attorney's work through the prism of the relatively limited length of the
week-long trials is unfair. Good lawyers seek and marshal all material information and narrow
issues for the jury. The relatively limited amount of trial time in the courtroom is not a definitive
barometer of the necessary legal work by a lawyer or paralegals assisting her. Lawyers must
prepare for every possible contingency in ajury trial with.cutting-edge wage issues in the energy
industry. We expect the employees' counsel to strenuously work to maximize the verdict value,
including revising and proving larger damages models.
And we expect the employer will
strenuously work to limit damages. We cannot discount the lawyers' efforts because the jury
awarded some, but not all, of the overtime wages included in an extensively prepared (and
challenged) damages model.
After parsing through hundreds of pages comprising the employer's many objections, we
reject most, but not all, of the employer's objections. We find merit in its objections based on
hourly rates not tied to this legal community and limited merit in challenging certain hours and
costs. In the accompanying Order, we grant the employees' motion for reasonable fees and costs
in large part defining the attorney's fees and costs due for efforts in this Court to date.
I.
Background
Before Spring 2015, oil field workers in Texas filed a class action alleging their former
employer Oil States Energy Services, LLC misclassified them as exempt from overtime laws. In
Spring 2015, twenty-nine frac hands, grease operators, and crane operators opting out of the
Texas class action sued Oil States in this District for overtime wages under the Fair Labor
Standards Act and Pennsylvania Minimum Wage Act. They claimed Oil States misclassified
them as exempt from overtime payments and failed to pay them overtime wages.
The twenty-nine employees hired Pittsburgh's The Employment Rights Group LLC to
represent them in this District. Oil States hired experienced wage and overtime lawyers from
Texas. Because each employee brought their claim individually, Oil States sought discovery
specific to each employee and deposed each employee. Discovery originally closed in early
2
Summer 2016. Immediately before the dispositive motion deadline, fourteen employees settled
their claims with Oil States. Oil States and the remaining fifteen employees cross-moved for
summary judgment. Oil States submitted fifteen separate motions for summary judgment with
tailored statements of undisputed facts to each remaining employee. Upon reassignment to us,
we denied the pending motions for summary judgment in November 2016 as genuine issues of
material fact required a jury's consideration. 1
On the same day we denied summary judgment, Zachary K. Warren - the employees'
lead trial counsel by January 2016 - left Pittsburgh and The Employment Rights Group and
joined Williams & Connolly LLP, a large law firm based in Washington, D.C. 2 His old law firm
now claims it could not find anyone to continue representing the employees once Attorney
Warren left. 3 Its principal Joseph H. Chivers, Esquire swears his "small firm ... did not have the
resources or capabilities to take a case of this magnitude all the way through trial. " 4 We do not
find his statement credible given the work done by The Employment Rights Group in this
District and in this case. 5 The Employment Rights Group had already defeated summary
judgment. We find it hard to believe Attorney Chivers - a lawyer with over thirty years of wage
and hour experience commanding $550 an hour - could not try individual overtime cases. We
have no affidavit from an employee suggesting he would not continue to pursue his case with
Attorney Chivers. We find it much more likely Attorney Warren and his old employer agreed he
would continue representing the employees given his knowledge of the case. But, in joining a
new firm, Attorney Warren decided to seek more help. Upon arriving in Washington, he invited
his new Washington colleagues from Williams & Connolly to assist him. Attorney Warren
remained lead trial counsel.
At first, Attorney Warren asked permission for one other
Washington lawyer to join him. 6 He eventually sought pro hac vice admission for three other
3
Washington colleagues.
We have no evidence Attorney Warren reached an agreement with
either the employees or his new employer Williams & Connolly to charge its lawyers' time at
rates consistent with lawyers in this District.
After we denied dispositive motions, employees Matthew Frick and Brian Kubiak settled
with Oil States.
We divided the remaining thirteen employees into three trial groups and
scheduled three trials. We divided the trial groups based on the employees' job titles at Oil
States. 7 Before the group one trial, Oil States moved to exclude all the employees' evidence of
damages at trial because the employees submitted to Oil States a revised damages model after
the discovery deadline. Oil States argued the last minute revision of damages before trial caused
incurable prejudice. Finding both the employees and Oil States shared blame for the untimely
disclosure of the revised damages calculations and additional discovery could cure prejudice to
Oil States, we denied Oil States' motion and allowed supplemental discovery, including
deposing the remaining thirteen employees, regarding the revised damages calculations.
We repeatedly addressed - and sometimes re-addressed - complex and novel issues on
whether these oil field employees are exempt under the Act. Immediately before the group one
trial, we granted leave for the parties to address a dispositive issue raised in the proposed jury
instructions.
Oil States moved to dismiss the employees' claims under the Pennsylvania
Minimum Wage Act.
Oil States argued Pennsylvania law exempted Oil States from the
requirements under the Minimum Wage Act.
We agreed with Oil States and the parties
submitted revised jury instructions and verdict slips omitting the Pennsylvania Minimum Wage
Act claims.
We held the group one trial in October 2017.
Group one consisted of four crane
operators. Attorney Warren served as lead trial counsel. The Employment Rights Group did not
4
participate in the trial other than Attorney Joseph Chivers sat in the gallery for most but not all of
trial. The jury found Oil States liable for failing to pay the four crane operators overtime and
found its failure willful under the Act.
We scheduled the group two trial for late-February 2018. A week before the start of the
group two trial, we rescheduled trial for mid-March 2018 after learning a family emergency
would prevent Oil States' corporate representative from attending trial. By this time, Williams &
Connolly had already set up in a Pittsburgh hotel room and needed to break down operations and
move back to Washington for another month.
We held the group two trial in mid-March 2018. Group two employees consisted of four
grease operators.
Attorney Warren again served as lead trial counsel and The Employment
Rights Group did not participate in the courtroom presentation. The jury found Oil States liable
for failing to pay four grease operators overtime but did not find Oil States willfully violated the
Act. After the group two trial, Oil States and the group three employees settled their claims.
After each trial, the group one and two employees moved for liquidated damages under
the Act arguing Oil States failed to adduce evidence of its good faith and reasonable efforts to
determine whether it should pay overtime to the employees.
We granted both motions for
liquidated damages.
In Spring 2018, we entered judgment against Oil States and in favor of the eight
employees succeeding after trial. Oil States moved for a new trial and to remit the jury's award
of damages in the group one and group two trials.
Oil States also renewed its motion for
judgment as a matter of law in the group one trial. We denied Oil States' post-trial motions and
our Orders (and possibly Orders pre-dating our involvement) are now on appeal.
5
The employees now move for attorney's fees and costs under the Act. They ask us to
order Oil States pay: Williams & Connolly $1,664,747 in fees for 4,956 hours and $112,124.34
in costs; and, The Employment Rights Group LLC $765,337.50 in fees for 1,968 hours and
$28,162.39 in costs.
Attorney Warren presents a fulsome affidavit and detailed invoice
supporting Williams & Connelly's requested hours and costs. Attorney Joseph Chivers similarly
presents a fulsome affidavit and detailed invoice supporting The Employment Rights Group's
hours and costs. Neither law firm presents comparator affidavits to show the reasonableness of
their hourly rates in this community. Instead, they ask we accept fees awarded in other cases
where all parties agreed to pay the requested fees. We face a much different situation today as
we must carefully review Oil States' many objections to the requested fees and costs.
II.
Analysis
Section 216(b) of the Fair Labor Standards Act authorizes an award of reasonable
attorneys' fees and costs of the action to a prevailing party. 8 Under the Act, our court of appeals
instructs us to use the lodestar formula to determine the reasonableness of fees. 9 Under the
lodestar formula, we multiply the number of hours reasonably expended by a reasonable hourly
rate. 10 We have two examinations: reasonable number of hours and reasonable hourly rate.
The party seeking attorney's fees bears the burden to prove its request for fees is
reasonable. 11 "To meet its burden, the fee petitioner must 'submit evidence supporting the hours
worked and rates claimed. '" 12
The "party opposing the fee award then has the burden to
challenge, by affidavit or brief with sufficient specificity to give fee applicants notice, the
reasonableness of the requested fee." 13 We may reduce a fee award based only on objections
raised. 14 Once objections are raised, we have "a great deal of discretion to adjust the fee award
in light of those objections." 15
6
As our court of appeals reminded us earlier this month, district courts "have a positive
and affirmative function in the fee fixing process, not merely a passive role" and we should
"review the time charged, decide whether the hours set out were reasonably expended for each of
particular purposes described and then exclude those that are 'excessive, redundant, or otherwise
unnecessary. "'
16
A. We calculate reasonable hourly rates in this community, not in Washington.
Oil States objects to employees' counsels' offered hourly rates.
Oil States argues
employees' counsel failed to support their offered fees with evidence, apart from self-serving
affidavits, and therefore failed to meet its burden demonstrating its hourly rates are reasonable.
Oil States offers proof employees' counsels' offered rates are unreasonable relative to the
prevailing rates in the Pittsburgh legal market.
Employees' counsel cite to case law from our District where their offered hourly rates
have been previously approved. They also cite to affidavits submitted in entirely separate cases
in our District where attorneys attest to similar or higher rates as being consistent with the
prevailing market rate in Pittsburgh for "employment attorneys." Employees' counsel argue the
affidavits submitted by Oil States concluding the offered hourly rates are excessive do not
account for experience of counsel, only years of practice. The employees' proof is based on
other cases or in uncontested fee applications.
"Generally, a reasonable hourly rate is calculated according to the prevailing market rates
m the relevant community." 17
"The court 'should assess the experience and skill of the
prevailing party's attorneys and compare their rates to the rates prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and reputation. "' 18 "The
prevailing party 'bears the burden of establishing by way of satisfactory evidence, 'in addition to
7
[the] attorney's own affidavits,' ... that the requested hourly rates meet this standard." 19 The
prevailing market rate is measured at the time of the fee petition is submitted, not at the time of
services performed. 20 A district court must determine an appropriate hourly rate based on the
factual record and should not base its determination on other court's determinations of
reasonable hourly rates for the same attorney. 21
We are faced with a claim for hourly rates without proof as to the reasonableness of these
rates other than counsel agreeing to the rates in other cases. We cannot give complete deference
to hourly rates approved by courts without objection. Just because the parties agree to an hourly
rate does not make it the customary hourly rate in this community. Instead, we need evidence of
the hourly rates based on analysis and affidavits from comparators to provide evidence of the
proof of rates in this District and particularly in this type of complex wage case. Courts using
the parties' proposed rates as a lodestar comparison in contingency cases is not the same as
evaluating the reasonable hourly rates in a contested application for fees. By the same token, we
are mindful of judges' obligations in evaluating lodestar comparisons to ensure the calculation of
the lodestar is based on reasonable rates in the federal litigation in which counsel seeks a fee.
We must also examine the attorneys' respective experience along with their years at the Bar and
their ability to mount this kind of case.
Oil States argues the requested hourly rates are too high for this community. We agree
using rates charged by attorneys in Washington is not particularly helpful in determining the
rates charged in this community. While the employees presumably elected to proceed with
Attorney Warren's new firm in Washington, as is their right, there is no basis to find they could
not have proceeded with The Employment Rights Group which had already defeated multiple
summary judgment motions.
8
After considering the variety of factors and having the benefit of watching the
employees' counsel both in pretrial and during two trials, the $375 hourly rate sought to be
charged by Attorney Warren is a fair and reasonable market rate based on his experience. He
exceeded the skill level we may otherwise expect of someone of his level of experience and his
requested $375 hourly rate is fair. He is a talented trial lawyer and his rate is reasonable in this
District. While we did not watch Attorneys Joseph Chivers or Jeffrey Chivers work in Court,
their requested hourly rates given their experience, based on other Judges' review of their rates in
this District and under the obligations mandated in a lodestar analysis, are reasonable market
rates.
But employees' counsel do not provide us with evidence warranting the much higher
rates for associates, summer associates, case managers, litigation support persons and paralegals
in either Washington or in Pittsburgh. We have no basis to find these attorneys and paralegals
are billing at reasonable hourly rates based on rates in other cases and not relative to this case.
Absent proof relating to this case, we are left with examining the market including cases cited to
us by the employer and the employees. As you might expect, Oil States cites cases from .years
ago to set the hourly rates in this community. We accept these rates from this community as a
baseline, but we must account for the present market place. We also award fees based on the
present rate, recognizing these lawyers worked for many months without payment and should be
compensated for time at their present rates.
Neither side offers persuasive evidence of the
reasonable rates in this community today other than the actual rates charged by Attorneys
Chivers and Warren in this District.
We also look to the schedule of attorney's fees relied upon by Community Legal Services
in Eastern Pennsylvania, recognizing those rates in a larger city may be lower than a commercial
9
lawyer would charge a client for a complex protracted employment case. But the employees
have not offered much more. The Community Legal Services rates in Eastern Pennsylvania are
higher than Attorney Joseph Chivers' hourly rate but lower for Attorney Warren.
We cannot simply accept Washington billing rates as being reasonable in Pittsburgh. The
employees' counsel do not offer evidence allowing us to make this leap. Exercising considerable
discretion, we base the reasonableness of hourly rates upon blended rates for attorneys in this
community.
Absent comparator affidavits, we base these blended rates for the Washington
attorneys based on what we saw in the Courtroom and studied in Chambers.
As to each
Washington attorney, we approve hourly rates based on reasonable market rates in this
community: Samuel Bryant Davidoff at $550 an hour equal to Attorney Chivers; the associates
(other than Attorney Warren) at a blended rate of $300; and, summer associates at $145.
We have no evidence to support finding a paralegal rate in this District of $225 and
reduce this rate to $150 equal to the paralegal rate recently advocated by the employees'
Pittsburgh counsel in this District for his paralegal Ms. Grass. Employees' counsel swears "case
manager" is a title used to describe a senior paralegal in its Washington firm. Curious marketing
since courts recognize "paralegal" but we are not aware of a "case manager" - at least until now.
We are not second guessing the law firms' marketing nomenclature. We focus on the substance
of their work. In closely reviewing their time entries, these persons billing as either paralegals or
litigation support are doing work classically understood to be billable as a paralegal. But absent
contrary evidence, we will accept the $150 paralegal rate billed by The Employment Rights
Group for its paralegal.
We recognize Mr. Shanz of Williams & Connolly may be more
experienced than other paralegals, but we have no basis to increase his rate above the paralegal
rate for Ms. Grass of The Employment Rights Group working in this District. While we agree
10
with Oil States as to non-compensable overhead, the employees have shown us the work and
responsibilities of these support persons went far beyond overhead.
B. Oil States' challenges to billed time.
Oil States raises over thirty challenges to the amount of time billed by the employees'
counsel. Some challenges have merit but most want us to second-guess counsel's trial strategies
- after those strategies won both trials. We generally will not strike specific time entries or costs
or second-guess the amount of time an attorney spends in preparing for court. We are far more
skeptical of vague time entries often imbedded in block billing or billing by several lawyers on
the same task. Recognizing the issues with block billing, the employees' counsel prudently filed
a reply declaration specifically answering the objections.
"[I]n calculating the hours reasonably expended, the district court 'should review the time
charged, decide whether the hours set out were reasonably expended for each of the particular
purposes described and then exclude those that are 'excessive, redundant, or otherwise
unnecessary. "' 22 We have "a positive and affirmative function in the fee fixing process, not
merely a passive role." 23 "A fee petition is required to be specific enough to allow the district
court 'to determine if the hours claimed are unreasonable for the work performed. "' 24 "The party
seeking an award of fees should submit evidence supporting the hours worked and rates claimed.
Where documentation of hours is inadequate, the district court may reduce the award
according! y. " 25
1. Unnecessary work by The Employment Rights Group.
Oil States challenges the amount of time Pittsburgh counsel spent on researching the
effect of the earlier class action, obtaining and reviewing subpoenaed records from Chrysler,
preparing for the Kerry Hyde deposition which never occurred, reviewing Oil States' email
11
production and efforts to excuse employees from mediation. Employees' counsel answers each
of these challenges with specific reasons and we will not discount billed time because Oil States
disagrees with the work effort.
Oil States challenges 111.4 hours it claims involved services for settled plaintiffs. Oil
States cites to (1) 14 hours expended by employees' counsel on drafting the class action
complaint and pre-discovery discussions with settled employees; (2) 18. 7 hours expended on
settlement related tasks for "clients" without identifying which clients; and (3) 78.7 hours
expended on summary judgment briefing on Brian Kubiak's and Matthew Frick's claims, which
settled inclusive of attorney's fees and costs after summary judgment briefing. Oil States argues
the employees resolved their claims inclusive of fees and costs and employees' counsel should
not recover for hours spent the settled employees' cases.
They argue employees' counsel
attempted to scrub the settled employees' names from block billed time entries in an effort to
recover for time spent developing their claims. Oil States requests we should eliminate the 14
and 18.7 hours.
Oil States requests we reduce the total 590.25 hours spent on summary
judgment motions for all employees by 78.7 because Mr. Kubiak and Mr. Frick settled their
claims after moving for summary judgment.
The 78.7 hours reflects a reduction of
approximately 13% or 2/15ths of the 590.25 hours because Mr. Kubiak and Mr. Frick are two of
fifteen employees who moved for summary judgment.
Employees' counsel argue the time spent on drafting the class action complaint and prediscovery discussions identifying information needed from Oil States benefited all employees,
not just the settled employees. With respect to the 18.7 hours of settlement related tasks leading
up to settlement conferences in 2016, employees' counsel again argue the time benefitted all
employees, not just settled employees, because all employees attended the settlement
12
conferences.
Employees' counsel argues they already excluded time spent on summary
judgment briefing related to Mr. Kubiak and Mr. Frick's claims. Employees' counsel argue all
time submitted relating to summary judgment briefing benefited all employees as a group.
We agree with the employees on the time billed which benefitted the employees
proceeding to trial. Attorney Warren swears the employees are not seeking payment for hours
worked for employees who settled before the group one trial or before the group two trial. Oil
States' objections to work on the class action complaint and for time on settled claims do not
account for the employees' counsel lacking - as we all do - an ability to predict the future. We
cannot second guess counsel's strategies in first evaluating a class action claim or in later settling
some claims but not others.
We overrule Oil States' objections based on work for settled
employees or on issues which did not proceed to trial.
2. Excessive, duplicative, or unnecessary hours.
Oil States challenges hours expended by employees' counsel which it classifies as
excessive, duplicative or unnecessary hours.
These hours spread across the entirety of this
litigation, including jury instructions, motions in limine, trial attendance, legal research,
organizing exhibits, discovery, designating deposition testimony, and motion practice.
We review challenged hours to determine whether the hours spent for the work described
is reasonable. We exclude all "excessive, redundant, or otherwise unnecessary" hours. 26
a. Excessive hours for certain tasks.
Oil States challenges certain of the employees' counsels' hours spent on certain tasks as
excessive: (1) 29.75 hours spent researching the effect of a separate settled class action on the
employees' ability to proceed as a class should be reduced to 3 hours; (2) 61.25 hours spent
requesting and reviewing discovery lacking probative value to the litigation should be reduced to
13
10 hours; (3) 116.55 hours spent compiling deposition designations should be reduced to 25
hours; (4) 194 hours spent on deposition designations after the designation deadline should be
reduced to 10 hours; (5) hours spent on motions in limine for the group 2 trial totaling $90,000 in
fees should be reduced to $20,000; (6) 68.1 hours spent responding to a motion in limine should
be reduced to 10 hours; (7) 1, 150.4 hours spent on trial exhibits should be reduced to 100 hours;
and, (8) 336 hours spent on jury instructions should be reduced to 51 hours.
Employees' counsel argues Oil States grossly exaggerates the hours they spent on the
tasks and mischaracterizes the work performed. For example, employees' counsel swears they
spent approximately 65 hours on deposition designations, not the 310.55 hours claimed by Oil
States. Employees' counsel argue Oil States ignores the same entries include hours for several
tasks performed. The employees' counsel chose to block bill which fairly raise questions of
excessive billing on certain tasks.
But the employees' counsel's response to the objections
narrows and explains the work in the block billing.
Employees' counsel meets their burden to show the necessity of their efforts. Time spent
on reviewing the legal effect of the earlier class action settlement is appropriate. On deposition
designations, employees' counsel offers the specifics for the time entries.27
Similarly,
employees' counsel explains the time incurred on motions in limine, including time billed by
Attorney Hood which facially appears hard to believe but is later explained once we segregate
the block billing. We also will not discount time spent on preparing exhibits for trial. No trial
attorney can predict the amount of exhibits necessary for the jury.
Careful trial lawyers will
often include more exhibits than they ever think will reach the jury - the alternative of not
including an exhibit is much too risky in a jury trial.
We will not discount the specific time
billed to preparing jury instructions, particularly in this case involving a developing areas of
14
overtime law. Again, employees' counsel backs off the block billing to specific time spent on
jury instructions.
Employees' counsel essentially admits its block billing is not effective in fee-shifting
cases as they must now explain their hours, and futilely seek payment of fees for their reply
declaration which should have been partially unnecessary if they billed by task rather than block
billing.
b. Unnecessary work or billing.
Oil States challenges employees' counsels' hours for "unnecessary" work: (1) 198.2
hours spent observing trial should be completely eliminated; (2) 559.4 hours spent researching
legal issues having no nexus to the litigation should be reduced; and, (3) 34.7 hours spent on a
motion for continuance should be reduced to 4. 7 hours.
Block billing again causes the problem. Employees' counsel again argue Oil States
mischaracterizes the scope of work supporting the hours submitted. They again argue Oil States
did not account for the fact time entries describe numerous tasks for the hours submitted.
Employees' counsel swear they wrote off time spent by counsel observing trials before
submitting their hours for our review. 28
Employees' counsel specifically defines the time for lawyers in the courtroom which may
have become necessary had certain witnesses been called to trial.
parties are represented by a "team" of lawyers.
We see many cases where
We cannot fault trial counsel for streamlining
the proofs and not calling witnesses who may become cumulative at trial.
Trial counsel also
cannot guess her opponent's strategy for trial witnesses and must prepare cross-examination of
live witnesses.
We do not discount attorney effort because the listed trial witnesses did not
15
testify. Lawyers need to be ready in the room. Neither the judge nor jury may understand a trial
lawyer not being ready.
Employees' counsel does not justify some of the time billed to legal research which, from
the face of Oil States' declaration, raises questions. We again face block billing and are unable
to discern how much of the billed time is allocated to research. But we do not agree with Oil
States' requested discount because the research - now with the benefit of hindsight - is
unnecessary.
Employees' counsel explains he billed five hours to the motion for a continuance. Again,
his block billing now creates extra work for him as he needs to explain his time. But billing five
hours for a motion is reasonable.
c. Vague time entries
Oil States challenges 76.55 hours of time entries as vague. Oil States argues vague
entries are inappropriate particularly in this type of litigation with numerous plaintiffs because
some employees settled inclusive of costs and attorney's fees. Oil States argues vague entries
could be used to hide time spent on settled employees' cases or time used to train junior
associates.
The challenged time entries include descriptions such as "team meeting," "trial
prep," and "update pleadings." Oil States requests we eliminate all 76.55 hours of vague time
entries totaling $33,653.50 in fees. Employees' counsel argues the time entries are not
impermissibly vague and the time entries reflect hours reasonably spent preparing for trial.
A fee petition must be specific enough to allow us to determine whether the time spent is
reasonable for the work performed.
29
"A fee petition should include 'some fairly definite
information as to the hours devoted to various general activities, e.g. pretrial discovery,
settlement negotiations, and the hours spent by various classes of attorneys. " 30
16
We cannot properly evaluate attorney work effort if the attorneys do not fully describe
their effort. Vague references to "updating pleadings" or "team meeting" are not sufficient.
Neither is "research" a sufficient description. We need to know what the lawyer is doing at least
in general terms to assist the case.
We agree with Oil States as to many of the challenged "vague entries."
31
We will not
compensate for time described only as "team meeting", "update pleadings'', or "trial prep". We
grant Oil States' objection in part and deduct $29,433 from the employees' claimed fees.
3. Block billed hours.
Oil States challenges 1, 727 hours submitted by employees' counsel claiming counsel
improperly used the block billing method in keeping time. Oil States challenges most, but not all
time entries it characterizes as block billed. The challenged time entries equal $641,800.30. Oil
States again argues employees' counsel used block billing methods to hide hours spent on settled
cases and unsuccessful claims. Oil States requests we reduce block billed amounts by 35%.
Employees' counsel argues it need not provide exact time amounts for each task they
billed. They argue a percentage deductions to block billed entries is not appropriate. To the
extent we find improper block billed entries, employees' counsel argue the proper remedy is to
provide counsel an opportunity to re-format and re-submit its time entries.
"Block billing is a timekeeping method where lawyers record their daily time for various
tasks in one entry, rather than using itemized time entries for each separate task." 32 A fee
petition must be specific enough to allow us to determine whether the time spent is reasonable
for the work performed.
33
The petition should include "some fairly definite information"
regarding hours devoted to activities. 34 However, "it is not necessary to know the exact number
of minutes spent nor the precise activity to which each hour was devoted nor the specific
17
attainments of each attorney."35 Block billing is not an ideal practice, and "lawyers who use it
do so at their 'own peril. '"36 A court may accept a block billed entry "if there is a reasonable
correlation between the various activities listed in a block and the time spent completing those
tasks." 37
Employees' counsel cite a non-precedential court of appeals decision in Simring v.
Rutgers in support of the proposition counsel "must" be afforded an opportunity to re-format and
re-submit its bills should the court find any time entries unreasonably block billed. 38 Counsels'
reading of Simring is wrong.
In Simring, the court explained it is within a district court's
discretion, should the court deem it advisable, to order a fee petitioner to re-submit its block
billed time entries. 39 Simring does not mandate we provide counsel an opportunity to redo its
block billed time entries in a format in line with best practices. It is well settled in our Circuit
counsel must keep time using a method which allows us to determine whether counsel spent
° Counsels' failure to do so does not require we
reasonable hours for the services performed. 4
offer her a second chance.
Employees' counsel chose to block bill a fee-shifting case. The daily entries are specific
but not separated by task. We reviewed each of the hundreds of entries and they appear related
to this representation. Unlike vague instances of block billing on one topic for an extended
period, i.e., "trial prep" for 9 hours stricken above, the employees' counsel almost always detail
their task. When challenged, employees' counsel now provides sworn specifics as to the time
billed.
We also accept employees' counsel's sworn statement of striking time allocated to
parties not in the case.
We see no need for additional forensic examination. The employees'
counsel met their burden through their reply declaration.
18
But we will not allow reimbursement for time incurred in meeting this obligation through
the reply briefing and declaration.
We also caution counsel as to the use of block billing in fee
shifting cases where she knows of our obligation to scrutinize the billed time. Grateful clients
may pay but we cannot award fees paid by the unsuccessful litigant absent specifics.
Employees' counsel barely meets the standard today and we can understand another reasonable
judge finding block billing without specifics impermissible per se in a fee shifting case.
We
today overrule Oil States' objection to the block billing.
4. Hours spent on clerical tasks.
In addition to hours spent by attorneys, employees' counsel submit hours spent by
support staff including summer associates, litigation support analysts, litigation project managers
and paralegals. Oil States objects to hours spent by support staff. Oil States argues employees'
counsel cannot recover fees for time spent by litigation support staff because they performed
clerical non-billable work.
Oil States also argues employees' counsel failed to provide
supporting documentation regarding the support staffs' experience and qualifications. Oil States
also argues employees' counsel spent time on clerical tasks which should be excluded, including
7.5 hours on attempting to excuse certain employees from attending a mediation.
"Work performed by non-bar members may be considered billable when the work
product of an attorney relies on those services provided by clerks and paralegals."41 However, a
court may award fees at a reduced rate for performance of clerical tasks. 42 Clerical tasks include
"faxing, emailing, filing, scanning, assembling, and conforming. " 43
We carefully reviewed the challenged time entries from paralegals. 44 We agree with Oil
States as to the hourly rates for this work and reduce the hourly rate to $150 as reasonable in this
community.
But the time entries reflect compensable work, such as creating databases,
19
preparmg exhibits and working on damages models.
This effort 1s compensable at the
reasonable rates for this community.
5. Hours spent on damages spreadsheets.
Oil States argues employees' counsel should not recover attorney fees for creating
untimely damages models calculating each employees' claimed damages.
Oil States argues
employees' counsel failed to produce the damages model during discovery and produced the
spreadsheets at the eleventh hour before trial. We have addressed Oil States' argument regarding
the post-discovery deadline disclosure of the damages model numerous times. 45 We found both
Oil States and the employees contributed to the delayed disclosure and the delay did not cause
incurable prejudice. 46 Oil States now argues we should reduce the hours spent creating the
revised damages spreadsheets.
Oil States request we reduce the 516.5 hours spent creating the
damages model by 496.5 hours to 20 hours because 20 hours is a reasonable amount of time to
spend creating a damages model.
Employees' counsel argues Oil States miscalculated the amount of time they spent
creating the damages spreadsheets. Employees' counsel argue the time Oil States cites also
incorporates time analyzing Oil States' damages model and calculations and strategizing
oppositions to those models and calculations.
Employees' counsel also argue they spent a
reasonable amount of time on creating the employees' damages model because they needed to
create separate models for each of the thirteen individual employees.
Proving and challenging damages became a significant issue as we approached trial and
during the jury presentation.
We cannot discount or shortchange lawyers who are concerned
with proving the maximum amount of damages.
20
It is not our role to substitute our personal
experience in managing cases to second guess lawyers' need to possibly over-prepare.
We
cannot find the time is excessive.
6. Travel time
Oil States, through their Texas counsel, objects to employees' counsels' hours spent
traveling from Washington to Pittsburgh. Oil States requests we reduce the 28.7 hours spent
travelling to 3.9 hours.
Employees' counsel swear they wrote off all travel hours except for time and costs
incurred relating to the last minute continuance of the group two trial due to Oil State's corporate
representative's family emergency.
We only address attorney's fees here and address
employees' counsels' motion for costs below.
"[U]nder normal circumstances, a party that hires counsel from outside the forum of the
litigation may not be compensated for travel time, travel costs, or the costs of local counsel.
However, where forum counsel are unwilling to represent the plaintiff, such costs are
compensable."47 If we determine travel costs appropriate, we "must look to the practice in the
local community" to determine an appropriate hourly rate for travel time. 48
Employees' counsel is not seeking payment for its travel time. It seeks payment for time
travelling back to Pittsburgh after we postponed a trial due to a medical emergency for Oil
States' corporate representative. We will not allow for this travel either. But, we will allow time
for the logistics in moving materials from Pittsburgh after the last minute cancellation. We will
reduce the requested fees (at the Pittsburgh hourly rates) by $5,835.00 and award $2, 100.00 in
fees for only the reasonable time to take down the Pittsburgh trial room rendered unnecessary by
the requested necessary postponement of the group 2 trial date.
21
C. Oil States' challenges to billed costs.
In addition to attorney's fees, the Act provides we may award costs to the successful
employees. 49 Absent explicit statutory authority or contractual authorization, we are bound by
28 U.S.C. § 1920 defining taxable costs.so Employees' counsel seeks costs for transcripts,
printing and copying, electronic legal research services, and travel. Oil States objects to travel
costs for both attorneys and the employees, costs incurred in the settled employees' cases, and
copying costs.
Employees counsel argue the group one and two employees enjoyed the benefit of the
transcript and copying costs and the settlement agreements with other employees do not preclude
recovery of the costs. Employees' counsel argue travel costs are reasonable here because no
local firm wanted to pursue the employees' cases after lead trial counsel moved to Washington.
Employees' counsel argue its copying costs and transcript costs are reasonable and necessary for
presentation at trial.
1. Travel costs
Oil States objects to employees' counsels' travel costs including hotel, meal, tolls, and
parking. Employees' counsel argue travel costs should be paid because employees' lead trial
counsel, although located in Washington, is experienced in handling complex trials and held
intimate knowledge of the case having acted as lead trial counsel while employed in Pittsburgh.
A party hiring counsel outside the forum of litigation may not seek compensation for
travel costs or hours spent travelling unless the party can show local counsel was unwilling to
take the case.s 1 While Attorney Chivers claims he could not find someone to represent the
employees, we do not credit his speculation. We have no basis to find the employees would not
have remained with The Employment Rights Group.
22
To the contrary, they did retain Pittsburgh
counsel who, according to many cases in this District, is very experienced in wage and overtime
claims.
No employee offers evidence they would not have remained with Pittsburgh's The
Employment Rights Group.
But the Washington lawyers did the work and should not be
punished by paying out of pocket costs for traveling to mediations, depositions, and trials. They
need to pay tolls, rent and park cars and eat something. The lawyers attach receipts resulting in
Oil States not challenging the employees' counsel incurring these costs.
The expenses are
documented and should be awarded. 52
We agree with Oil States as to charges for hotel war rooms and internet which were used
during trial or even scheduled and then cancelled, all of which are provided by local counsel at
The Employment Rights Group. We strike $13,780 from the hotel costs for a hotel "war room"
in Pittsburgh. The lawyers presumably had a hotel war room at their office in Pittsburgh covered
in The Employment Rights Group's overhead. We also agree - as does the employees' counsel
- Oil States should not pay for hotel rooms for lawyers who observed the trials. We strike
$7,630.12 from the requested reimbursement for those hotel nights.
We also strike the
undisputed $50 on a hotel bill for pet-sitting.
We disagree with Oil States as to the taxi, tolls, parking and other charges incurred by
counsel in attending to this litigation.
These are the costs of litigation.
Counsel undertaking
representation under the Act should not have to pay ordinary incidental costs without
reimbursement when their opponent is being paid.
We do not want to discourage representation
in good cases because we will not aware incidental costs typical of litigation when the lawyers
win the case.
23
2. Copying costs
Oil States objects to employees' counsels' request for $9,995.99 in copy costs. Oil States
argues employees' counsel designated far more exhibits than needed at trial which resulted in
unnecessary copying costs. Confusingly, Oil States also argues employees' counsel incurred
large copying costs because employees' counsel "played games with exhibits" by shuffling
exhibits immediately before the group two trial and failing to include certain pages in exhibit
binders.
Oil States argues a 50% reduction is necessary because employees' counsel over-
designated exhibits.
We disagree with Oil States and find the copying costs are appropriate.
3. Costs associated with settled employees
Oil States objects to $13,632.59 in transcript, service, and video recording costs. Oil
States argues a portion of these costs should be reduced because a portion of these costs
benefited settled employees.
Oil States requests a nearly 50% reduction because 14 of 29
employees settled their cases inclusive of costs. Oil States request we reduce these fees to
$6,581.25.
Employees' counsel argue all plaintiffs benefitted from these services and describe the
costs necessary for trial. We agree with the employees. The employees proceeding to trial - and
their lawyers - could not have known who would settle before trial when they incurred the
copying charges. These are reasonable and expected costs of complex litigation.
24
III.
Conclusion
The lawyers on all sides performed well and should be paid a reasonable rate for the
reasonable hours incurred for their clients. The employer's counsel relies on their contracted
negotiated rate to get paid. The employees, having persuaded a jury of their right to overtime
pay under the Act, now ask us to award them reasonable attorney's fees and costs for their
efforts. After arduous scrutiny of hundreds of pages of time sheets and objections, we enter the
attached Order granting the employees' motion in large part but denying their request to bill
attorneys at Washington D.C. hourly rates and for limited hours which the lawyers did not
specify their effort. We award reasonable attorney's fees of $2,263,904.50 and reasonable costs
of $118,826.61.
1
ECF Doc. No. 201.
2
ECF Doc. No. 206. See also ECF Doc. No. 507-4, ~4.
3
ECF Doc. No. 507-4, ~ 17.
4
Id.
5
We understand, as described by Attorney Chivers, the hesitancy of other lawyers willing to
jump into his individual wage payment cases after summary judgment given the necessary
investment of time to catch-up on the facts. But Attorney Chivers undertook this representation
before Attorney Warren became lead counsel and we would expect he would continue the
representation. Attorney Warren properly kept his same hourly rate but, in bringing along his
Washington colleagues, he should have been mindful of the reasonable rates here.
6
ECF Doc. Nos. 207, 209.
7
ECF Doc. No. 224.
8
29 u.s.c. § 216(b).
9
Loughner v. Univ. of Pitts., 260 F.3d 173, 177 (3d Cir. 2001) (citing Hensley v. Eckerhart, 461
U.S. 424 (1983)).
25
10
Id.
11
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
12
Id. (citing Hensley, 461 U.S. at 433).
13
Id. (citing Bell v. United Princeton Props., Inc., 884 F.2d 713 (3d Cir. 1989)).
14
Id. (citing Bell, 884 F.2d at 720).
15
Id. (citing Bell, 884 F.2d at 721).
16
Clemens v. New York Central Mutual Fire Insurance Co., --F.3d --, No. 17-3150, 2018 WL
4344678, at *3 (3d Cir. Sept. 12, 2018)(quoting Maldonado v. Houstoun, 256 F.3d 181, 184 (3d
Cir. 2001 )(internal quotations omitted).
17
Loughner, 260 F.3d at 180 (citing Blum v. Stenson, 465 U.S. 886, 895 (1984)).
18
Id. (citing Rode, 892 F.2d at 1183).
19
Id. (quoting Washington v. Phi/a. Cnty. Ct. of Common Pleas, 89 F.3d 1031, 1035 (3d Cir.
1996)).
20
Lanni v. NJ, 259 F.3d 146, 150 (3d Cir. 2001) (citing Rode, 892 F.2d at 1188-89).
21
Smith v. Phi/a. Haus. Auth., 107 F.3d 223, 226 (3d Cir. 1997).
22
Loughner, 260 F.3d at 178 (quoting Pub. Interest Research Grp. Of NJ, Inc. v. Windall, 51
F.3d 1179, 1188 (3d Cir. 1995)).
23
Id.
24
Rode, 892 F.2d at 1190 (quoting Pawlak v. Greenawalt, 713 F.2d 972, 978 (3d Cir. 1983)).
25
Hensley, 461 U.S. at 433.
26
Loughner, 260 F.3d at 178 (quoting Pub. Interest Research Grp. Of NJ, Inc. v. Windall, 51
F.3d 1179, 1188 (3d Cir. 1995)).
27
28
29
ECF Doc. No. 511-1, ii 15.
Id.,
ii 21.
Rode, 892 F.2d at 1190 (quoting Pawlak, 713 F.2d at 97).
26
3
°Keenan v. City ofPhila., 983 F.2d 459, 473 (3d Cir. 1992).
31
ECF Doc. No. 510-1, Attachment 22.
32
Shihee Donvell Hatchett v. Cnty. of Phila., No. 09-1708, 2010 WL 4054285, at *4 (E.D. Pa.
Oct. 15, 2010) (citation omitted).
33
Rode, 892 F.2d at 1190 (quoting Pawlak, 713 F.2d at 978).
34
Rode, 892 F.2d at 1190 (quoting Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Std.
Sanatory Corp., 487 F.2d 161, 167 (3d Cir. 1973)).
35
Id.
36
Shihee Donvell Hatchett, at *4.
37
Id.
38
634 F. App'x 853 (3d Cir. 2015).
39
Id. at 859 n.2.
40
Rode, 892 F.2d at 1190 (quoting Pawlak, 713 F.2d at 978).
41
Brown v. City of Pittsburgh, No. 06-393, 2010 WL 2207935, at* 10 (W.D. Pa. May 27, 2010)
(citing Missouri v. Jenkins, 491 U.S. 274, 286 (1989)).
42
Id.
43
Id.
44
ECF Doc. No. 510-1.
45
ECF Doc. No. 237; ECF Doc. No. 512 at p. 20.
46
ECF Doc. No. 237.
47
Interfaith Cmty. Org. v. Honeywell Int 'l, Inc., 426 F.3d 694, 710-11 (3d Cir. 2005).
48
Id. (quoting Planned Parenthood of Cent. NJ. v. Attorney General of State of NJ., 297 F .3d
253, 267-68 (3d Cir. 2002)).
49
29 U.S.C. § 216(b).
27
50
See Crawford Fitting Co. v. JT Gibbons, Inc., 482 U.S. 437, 445 (1987).
51
Interfaith Cmty. Org., 426 F.3d at 710-11.
52
Watcher v. Pottsville Area Emergency Medical Service, Inc., 559 F.Supp.2d 516, 538
(M.D.Pa. 2008).
28
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