Situated v. Anderson

• Decision Date: 16 August 2010
• Docket Number: No. 10-2010.,10-2010.
• Citation: 616 F.3d 1098
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Elsa ANCHONDO, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. ANDERSON, CRENSHAW & ASSOCIATES, L.L.C., Defendant-Appellant.

616 F.3d 1098

Elsa ANCHONDO, on behalf of herself and all others similarly situated, Plaintiff-Appellee,

v.ANDERSON, CRENSHAW & ASSOCIATES, L.L.C., Defendant-Appellant.

No. 10-2010.

United States Court of Appeals,Tenth Circuit.

Aug. 16, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Submitted on the briefs: ^*

Steven R. Dunn, Dallas, TX, for Defendant-Appellant.

Rob Treinen, Feferman, Warren & Treinen, P.A., Albuquerque, NM, O. Randolph Bragg, Horwitz, Horwitz & Associates, Chicago, IL, for Plaintiff-Appellee.

Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Defendant Anderson, Crenshaw & Associates, L.L.C. (ACA) appeals from a district court order awarding plaintiff Elsa Anchondo $63,333.52 in attorney fees, gross receipts tax, and costs under 15 U.S.C. § 1692k(a) after ACA agreed to a settlement in favor of Ms. Anchondo and the class she represents on their claims against ACA under the Fair Debt Collection Practices Act (FDCPA). ACA contends the district court erred in certain respects in determining the amount of the attorney fee award. We review the district court's award for an abuse of discretion, see, e.g., Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir.1995), and affirm for the reasons expressed below.

I. District Court's Calculation of Fee Award

The district court arrived at its fee award by methodically proceeding through a calculation of the lodestar amount pursuant to Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), and relevant Tenth Circuit precedent applying Hensley. The lodestar, of course, is the “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” id. at 433, 103 S.Ct. 1933, which produces a presumptively reasonable fee that may in rare circumstances be adjusted to account for the presence of special circumstances, Perdue v. Kenny A. ex rel. Winn, --- U.S. ----, ----, 130 S.Ct. 1662, 1673, 176 L.Ed.2d 494 (2010).

After summarizing the substantively straightforward but procedurally somewhat complicated litigation ¹ -which led, after some fourteen months, to a favorable settlement of the underlying FDCPA claims-the district court began its lodestar analysis by determining the proper hourly rate for the two lawyers who served as co-counsel for Ms. Anchondo and the plaintiff class. The court looked to prevailing market rates in the New Mexico community for attorneys of their experience and found $195 per hour reasonable for local counsel Rob Treinen and $300 per hour reasonable for national FDCPA class action specialist O. Randolph Bragg. ² See Memorandum Opinion and Order at 4-5 (Dec. 16, 2009).

The court then turned to the number of hours expended. Mr. Treinen and Mr. Bragg each submitted extensive billing records in support of the hours they claimed to have worked on the case. See Aplt.App. at 35-56 (seven-page declaration and fifteen-page billing record for Mr. Treinen), 58-89 (eighteen-page declaration and eleven-page billing record for Mr. Bragg). The district court “reviewed carefully the detailed billing records,” concluded they “demonstrate that counsel exercised appropriate billing judgment and avoided duplicative efforts,” and found “the number of hours expended on this litigation is reasonable.” Memorandum Opinion and Order at 6. The court further determined “neither an upward nor a downward adjustment of the lodestar amount is necessary under the circumstances of this case.” Id. at 7.

II. ACA's Objections to the Fee Award

ACA argues that the district court erred in its fee analysis by (1) failing to explicitly address the Johnson factors ³ ; (2) awarding fees to Mr. Bragg when his participation was unnecessary for the prosecution of the case; and (3) failing to reduce excessive hours claimed by both Mr. Treinen and Mr. Bragg. We take up these objections in order below.

A. Application of Johnson Factors

ACA's objection regarding the Johnson factors is meritless. ACA concedes that “the Tenth Circuit has never held that a district court abuses its discretion by failing to specifically address each Johnson factor”-indeed, that we expressly held to the contrary in Gudenkauf v. Stauffer Communications, Inc., 158 F.3d 1074, 1083 (10th Cir.1998). Aplt. Opening Br. at 13. Yet ACA goes on to assert that “[a] failure to consider the Johnson factors constitutes an abuse of discretion,” id. at 16 (citing an unpublished decision from the Southern District of Texas), and insists we reverse the fee award here because “the Johnson factors ... were not discussed by the district court,” id. No particularized argument, tying specific Johnson factors to specific circumstances, is offered to lend concrete substance to this conclusory objection. Absent such argument-which it is not appropriate for this court to develop on ACA's behalf-we decline to look behind the district court's affirmation that it carefully reviewed the relevant materials and determined that the hours counsel recorded were reasonable. ⁴ ACA's perfunctory complaint about undiscussed Johnson factors is an insufficient basis upon which to disturb the district court's lodestar fee determination, to which we must defer absent the demonstration of an abuse of discretion.

The Supreme Court's very recent decision in Perdue only confirms our reluctance to disturb a presumptively valid lodestar fee determination on the basis of a conclusory objection that Johnson factors were not discussed. In Perdue the Court appears to significantly marginalize the twelve-factor Johnson analysis, which it discounts as just “[o]ne possible method” that “gave very little actual guidance” and, due to its “series of sometimes subjective factors[,] ... produced disparate results.” 130 S.Ct. at 1671-72 (quotation omitted). The Perdue Court clearly embraces the lodestar approach as the preferable alternative to the Johnson analysis, noting that the lodestar approach “achieved dominance in the federal courts after ... Hensley, Gisbrecht v. Barnhart, 535 U.S. 789, 801[, 122 S.Ct. 1817, 152 L.Ed.2d 996] ... (2002),” and has “become the guiding light of our fee-shifting jurisprudence.” 130 S.Ct. at 1672 (also noting that “unlike the Johnson approach, the lodestar calculation is objective” and hence “produces reasonably predictable results”) (quotations omitted). We do not suggest that the Johnson factors have become irrelevant; Perdue did not overrule Hensley's allowance that under appropriate circumstances they may be useful in determining subsequent ad hoc adjustments to the lodestar, ⁵ see Hensley, 461 U.S. at 434 & n. 9, 103 S.Ct. 1933 (also noting, however, “that many of [the Johnson ] factors usually are [already] subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate”). But, after Perdue, it has only become clearer that the lodestar determination is primary and that the propriety of such a determination is not automatically called into doubt merely because the trial court did not expressly discuss the Johnson factors.

B. Objection to Participation of Mr. Bragg

ACA argues that the district court erred in awarding any fee for Mr. Bragg, because Mr. Treinen and his firm, particularly a senior partner in the firm, could have handled the case adequately without Mr. Bragg's added experience. This unusual position-basically asserting that highly experienced, nationally prominent lawyers may not work (at least for compensation) on any but the most demanding cases, and even then may not act as co-counsel if another attorney with arguably commensurate experience is available from co-counsel's firm-is not supported by a single on-point authority, and we decline to adopt it here. We emphasize that this is not a case of compensating an expert attorney at a rate unsustainable in the local legal community; as noted earlier, the district court substantially reduced Mr. Bragg's hourly rate to bring it in line with the New Mexico market.

ACA seeks to bolster its argument by insisting that plaintiff's counsel's position in the underlying litigation, where they asserted that the facts and law plainly supported their FDCPA case, demonstrates that the participation of a national FDCPA expert was unnecessary. Of course, ACA's own litigation position hardly conceded such a straightforwardly meritorious case to plaintiff. To focus on such assertions-the standard rhetoric of adversarial legal argument-is to be distracted from the real point. Ultimately, the trial court must decide for itself whether an action was so simple as to undercut a subsequent fee request, and its uniquely informed on-the-spot judgment is owed much deference by an appellate court, see, e.g., Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249 (10th Cir.1998) (citing cases expressing in various ways trial court's superior vantage for determining reasonable fee to which appellate court must defer). We are not persuaded that the district court abused its discretion in declining to categorically strike all compensation for Mr. Bragg. Of course, that does not mean Mr. Bragg was necessarily entitled to compensation for all of the hours recorded in his billing records; to the extent ACA objects to particular hours as excessive or redundant, we consider its objections in the next section below.

C. Particular Objections to Hours Claimed

ACA advances several objections to hours claimed by Mr. Bragg. First, it contends that the twelve hours he spent working on plaintiff's (successful) motion to dismiss one of ACA's counterclaims should have been struck. Picking up on its prior theme, ACA insists this work could have been done by a less experienced attorney. But, again, ACA does not cite any authority holding that an experienced attorney must work for free whenever the task at hand might not call for the full measure of his expertise (assuming ACA's factual premise here). ACA notes that the motion focused on a single counterclaim, as...