Shepherd v. American Broadcasting Companies, Inc.

• Decision Date: 13 September 1994
• Docket Number: Civ. A. No. 88-954 (RCL).
• Citation: 862 F. Supp. 505
• Parties: Michele E. SHEPHERD, et al., Plaintiffs, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

862 F. Supp. 505

Michele E. SHEPHERD, et al., Plaintiffs, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants.

Civ. A. No. 88-954 (RCL).

United States District Court, District of Columbia.

September 13, 1994.

Mark Lane, Nkechi Taifa, Washington, DC, for plaintiffs.

A. Douglas Melamed, Wilmer, Cutler & Pickering, William H. Jeffress, Jr., Randall J. Turk, J. Bradley Bennett, Miller, Cassidy, Larroca & Lewin, Washington, DC, for defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before this court on plaintiffs' application for attorney's fees and costs under the District of Columbia's Human Rights Act, 2 D.C.C. §§ 1-2501. et seq. ("DCHRA"),¹ and defendant's motion for an evidentiary hearing.

On June 13, 1994, this court ordered the parties to submit briefs on attorney's fees, 862 F.Supp. 490. Plaintiffs submitted a petition for $630,764.00 in attorney's fees and costs². In its opposition to plaintiff's brief, defendant American Broadcasting Companies, Inc. ("ABC") demanded further discovery. When plaintiffs partly complied in their reply, this court on August 9, 1994 granted ABC leave to submit a final opposition brief detailing any additional disclosures they sought from plaintiffs. The information sought by ABC's final opposition was provided by plaintiffs' final reply memorandum, finally making this case ripe for decision. ABC subsequently filed a request for an evidentiary hearing on fees, which plaintiffs opposed. Reply and sur-reply memoranda on this request were also filed.

Upon consideration of all the briefs on attorney's fees and costs filed in this case and the entire record herein, this court shall award plaintiffs $518,711.91 in attorney's fees and costs and shall deny ABC's request for an evidentiary hearing.

I. FACTS

On April 15, 1992, plaintiffs won a default judgment against ABC and its co-defendants as a sanction against discovery misconduct. Upon reconsideration on September 3, 1993, the court vacated the default judgment against two of ABC's co-defendants³ but upheld the default judgment against ABC. On June 13, 1994, this court awarded plaintiffs $309,293.33 from ABC in damages based on the default judgment award.⁴

In that same order, the court also determined that plaintiffs were prevailing parties entitled to attorney's fees and costs under the DCHRA, but found that they were not entitled to their claimed 200 percent enhancement for taking this case on contingency.⁵ The court deferred the determination of plaintiffs' award of attorney's fees and costs until today.⁶

II. ATTORNEY'S FEES

The DCHRA entitles plaintiffs' counsel to a reasonable attorney's fee. 2 D.C.C. § 1-2556(b), 1-2553(a)(1)(E). "The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984) (citations omitted). Both the reasonable hourly rate and the reasonable amount of time expended on this case are somewhat less than what plaintiffs have claimed.

A. Reasonable Hourly Rate

1. Mr. Mark Lane

Mr. Mark Lane, plaintiffs' most senior counsel, seeks $400 per hour for his work in this case. He claims that $400 per hour is his established billing rate and relies on the well-established presumption that a lawyer's established billing rate is the best evidence of a reasonable fee award. See Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 24-25 (D.C.Cir.1984), overruled in part on other grounds, Save Our Cumberland Mountains, Inc,. v. Hodel, 857 F.2d 1516 (D.C.Cir.1988).

Yet the evidence that he has submitted does not support his claimed $400 per hour billing rate. It is true that some clients paid him $400 per hour, but only after he promised them that their total bill would be no more than a fixed sum. Negotiations in these cases followed the pattern exhibited in this passage from an affidavit of one his clients:⁷

Mr. Lane said that he generally billed at the rate of $425 per hour. In discussions we attempted to establish a set fee based upon the number of hours Mr. Lane anticipated would be required. He calculated that his fee would be $35,000.

Thus Mr. Lane may begin by telling clients that he charges $400 or more per hour, but he does not ask them to agree to paying him $400 or more per hour for an indefinite work period. Perhaps he could not. His clients might agree to his high "hourly" rate when they know that his fee will not exceed a fixed sum, but might balk at having to pay him $400 per hour or more when the number of hours — and thus the final bill — is uncapped. In any event, whether or not Mr. Lane can command his claimed rate in the marketplace for an unlimited number of hours, he has not submitted evidence that he ever has. Moreover, because these fixed-sum billings appear to vary according to the specifies of each case, they are very hard to apply as a guide here. Hourly rates, by contrast, tend to remain uniform, at least among types of cases or types of lawyers, and are thus generally more helpful guides to determining a reasonable rate.

Mr. Lane's other billing evidence is no more persuasive. In response to ABC's discovery request, he has stated that he has almost always charged contingent fees or worked pro bono in some civil rights and employment discrimination matters.⁸ Obviously, these billings do not establish a billing history of $400 per hour. He states that he has billed $250 per hour for a two-hour task in one such civil rights case,⁹ and that he has won a $195-per-hour fee for eleven hours of work as a sanctions award in a DCHRA case,¹⁰ but these are such small and isolated billing instances that they hardly suffice to establish a billing history, and in any event the rates are far lower than his claimed established rate.¹¹

Mr. Lane's last piece of evidence is his statement that he is billing one new client $425 per hour in a custody case.¹² The new client entered into the billing agreement on August 15, 1994, and plaintiffs included the agreement in their final reply, filed August 18, 1994. Although plaintiffs cannot be faulted for not including this billing evidence any sooner, the court cannot consider it. Plaintiffs submitted it after ABC had submitted its final request for discovery on August 15, 1994, which has prevented ABC from requesting discovery probing the new evidence. (ABC might reasonably request discovery as to whether the number of hours in the new case is capped, for example.) The court has already extended time for discovery by ordering a second round of fee briefs, and this fee dispute is already on the verge of becoming a second major litigation. Discovery has got to stop sometime. In any event, even if discovery by ABC did not erode this new evidence, no single rate can establish a billing history.

In sum, Mr. Lane has not shown that he has an established billing history of charging clients $400 per hour. He is not entitled to that rate.¹³

Where fee applicants' counsel lack an established billing history, they may collect fees based upon the "prevailing market rates in the relevant community." See Blum, 465 U.S. at 895, 104 S.Ct. at 1547. In Blum, the Supreme Court held that lawyers who lack billing histories because they are paid by salaries, not by hourly billings, are entitled to fees based on prevailing market rates. See Blum, 465 U.S. at 895, 104 S.Ct. at 1547. Similarly, lawyers whose billing histories are based on fixed sums or on contingent fees may be said to lack billing histories. Accordingly, such counsel are entitled to fees based on prevailing market rates.

The court takes judicial note of the evidence of prevailing market rates in this jurisdiction recorded in the Laffey matrix and the U.S. Attorney's Office matrix. Although plaintiffs do not state which matrix ought to determine Mr. Lane's rates, they do state that the U.S. Attorney's Office's matrix should determine the rates of his co-counsel Ms. Nkechi Taifa. (This court agrees with plaintiffs' preferred course. See infra at 509-510.) Following that preference, this court will award Mr. Lane the rate charted by the U.S. Attorney's Office's matrix for 1993-94 for lawyers like him with 31 years of experience: $305.00.¹⁴ Mr. Lane and the other lawyers working for plaintiffs are entitled to current rates for their work done long ago to compensate for the six-year delay in payment. See, e.g., Brown, 846 F.Supp. at 117 (awarding current rates to compensate for a three-year delay). Accordingly, he shall collect $305.00 per hour for all his time reasonably expended in this case.

2. Ms. Nkechi Taifa

Ms. Nkechi Taifa, another of plaintiffs' counsel, is entitled to the $215.00 per hour rate she seeks for her work in this case.

Ms. Taifa lacks a billing history for the entire period she worked on this case. She claims that she had an established billing rate of $150 per hour when she was in private practice from 1987-1989, but ABC correctly notes that her evidence does not support this. Her billing evidence shows only that she had asked impecunious clients for $150 per hour and then agreed to take their cases for public-interest reasons when they could not afford her stated rate;¹⁵ that the majority of her cases earned her $35 to $50 per hour under the Criminal Justice Act;¹⁶ that in 1989 a court awarded her $90 per hour for services she completed in her first few years out of law school;¹⁷ and that for her civil rights/employment cases from 1986-1994, she earned either contingent fees, a salary, or nothing at all.¹⁸ There is no evidence that she ever commanded $150 per hour from 1987-89.

She clearly lacks a billing history for the years since 1989 when she began working as a salaried lawyer for the Women's Legal Defense Fund and the American Civil Liberties Union.¹⁹ ABC contends that she has billed clients since 1989, and that she should receive no more than that...