Former Employees of BMC Software, Inc. v. United States Sec'y of Labor, (2007)

Extract

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Former Employees of BMC Software, Inc. v. United States Sec'y of Labor, (2007)

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UNITED STATES COURT OF INTERNATIONAL TRADE _______________________________________:

FORMER EMPLOYEES OF

BMC SOFTWARE, INC., :

Plaintiffs, :

Court No. 04-00229 v. :

UNITED STATES SECRETARY OF LABOR, :

Defendant. : _______________________________________ [Granting in part Plaintiffs' application for attorneys' fees and expenses under the Equal Access to Justice Act.]

Dated: October 15, 2007

Miller & Chevalier Chartered (Alexander D. Chinoy, Hal S. Shapiro, Kevin P. DiBartolo, and James B. Altman), for Plaintiffs.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Michael D. Panzera); Stephen R. Jones, Office of the Solicitor, U.S. Department of Labor, Of Counsel; for Defendant.

OPINION

RIDGWAY, Judge:

In this action, former employees of Houston, Texas-based BMC Software, Inc. ("the Workers") successfully challenged the determination of the U.S. Department of Labor denying their petition for certification of eligibility for trade adjustment assistance ("TAA") benefits. See generally Former Employees of BMC Software, Inc., 30 CIT ____, 454 F. Supp. 2d 1306 (2006) (BMC); Notice of Revised Determination on Remand, 69 Fed. Reg. 76,783, 76,784 (Dec. 22, 2004).

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Now pending before the Court is Plaintiffs' Application For Fees and Other Expenses Pursuant to the Equal Access to Justice Act, which the Government opposes. See generally Application For Fees and Other Expenses Pursuant to the Equal Access to Justice Act; Memorandum in Support of Application for Attorneys' Fees; and Accompanying Exhibits ("Pls.' Application"); Defendant's Response to Plaintiffs' Application for Attorney Fees and Expenses ("Def.'s Response"); Memorandum in Reply to Defendant's Response to Plaintiffs' Application for Attorney Fees and Expenses ("Pls.' Reply").

For the reasons discussed more fully below, Plaintiffs' Application For Fees and Other Expenses is granted in part.

I. Background

The Workers' former employer, BMC, is a "Fortune 1000" company, and one of the largest software vendors in the world. Among other things, BMC designs, develops, produces and sells business systems management software, which is distributed both in "object code" form and on a "shrink-wrap" basis. BMC's competitors include industry giants and household names such as IBM, Computer Associates, Microsoft, Sun Microsystems, and Hewlett Packard. See BMC, 30 CIT at ____, 454 F. Supp. 2d at 1313.

The four former employees who filed the TAA petition at issue here were involved in the production and distribution of BMC software products. Those products were mass-replicated at the Houston facility where they worked (as well as at several other BMC facilities), and were often shipped on physical media including CD-ROMs, packaged with user manuals. See BMC, 30 CIT at ____, 454 F. Supp. 2d at 1313.

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The Workers' employment at BMC was terminated in early August 2003, as part of a round of lay-offs reported in an article published in the Houston Chronicle. The news article explained:

The company will spend $60 million this year to restructure. Jobs in sales, research and development, information technology, and administration will be shed.

The company will offset some of the cuts by adding research and development jobs and positions in information technology to offshore facilities in India and Israel, making the net reduction more like 8 percent when all is done.

BMC, 30 CIT at ____, 454 F. Supp. 2d at 1313-14 (quotation omitted) (emphases added).

A copy of the Houston Chronicle article was enclosed with the petition for TAA benefits that the Workers filed with the Labor Department in late December 2003. The petition alleged, inter alia, that the company was shifting jobs "offshore to India and Israel." Appended to the Workers' petition were some 25 pages of announcements of job vacancies - primarily at BMC facilities in India and Israel - printed out from the company's website. See BMC, 30 CIT at ____, 454 F. Supp. 2d at 1314.

In mid-January 2004, the Labor Department contacted BMC management concerning the Workers' TAA petition. Asked to "[b]riefly describe the business activities of BMC Software, Inc.," the company's Senior Manager for Human Resources responded by parroting - verbatim - a marketing pitch on BMC's website:

BMC Software, Inc. (NYSE: BMC), is a leading provider of enterprise management software solutions that empower companies to manage their IT infrastructure from a business perspective. Delivering Business Service Management, BMC Software solutions span enterprise systems, applications, databases and service management. See BMC, 30 CIT at ____, 454 F. Supp. 2d at 1314-15 (citation and footnotes omitted).

The Labor Department also asked BMC to advise whether the company's Houston

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employees "produce an article of any kind or . . . were engage...

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