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Wilcox v. Sisson

May 25, 2006

CYNTHIA G. WILCOX, PLAINTIFF,
v.
CHARLES SISSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION ON FEE APPLICATION

The Court previously awarded Cynthia Wilcox $847,224.46 in damages, plus reasonable attorneys' fees in an amount to be determined, to give her the benefit of her bargain for a breach of contract committed by Charles Sisson when he constructed and sold her the residence at 4815 Dexter Street N.W. in Washington, D.C. Wilcox v. Sisson, No. 02-1455, Memorandum Opinion ("Mem. Op.") at 1 (D.D.C. Feb. 4, 2005), aff'd, No. 05-7038 (D.C. Cir. Feb. 14, 2006) (unpublished). The frauds that breached the contract of sale are detailed in the Court's previous opinion and need not be repeated here.

Plaintiff now moves, in her Application for Attorneys' Fees and Costs ("Pl.'s App.") [Dkt. #120], and her First and Second Supplements*fn1 to that application [Dkt. ##126, 163], for an award of $816,198.93 in attorneys' fees and associated expenses pursuant to an express provision in the Sales Agreement.*fn2 For the reasons explained below, the Court will grant Ms. Wilcox's fee application in large part, and will award her $775,319.83 in attorneys' fees.

I. FACTUAL BACKGROUND

This matter has been fully contested at every turn by Mr. Sisson. He first avoided service.*fn3 After years in fractious discovery and trial preparation, the case was tried to the Court between August 18 and August 26, 2004. Both parties have now fully briefed the issues concerning the amount in attorneys' fees and costs that should be awarded. Mr. Sisson argues that Ms. Wilcox's request for $816,198.93 in fees should be reduced by at least $219,628.19 to reflect "the prevailing rate of attorneys' fees in the District of Columbia for similar work," and suggests that it be further reduced because: a smaller, less expensive firm could have been used; counsel made no attempt to control costs; the fee statements are insufficiently specific; and Ms. Wilcox made no effort to settle without resort to litigation. Defendants' Opposition to Plaintiff's Application for Attorneys' Fees and Costs ("Defs.' Opp'n") at 16.

Ms. Wilcox retained Williams and Connolly LLP of Washington, D.C., to represent her in this matter. The partner in charge is Gerson A. Zweifach. Mr. Zweifach graduated from Brown University with an A.B. degree in 1975, magna cum laude and Phi Beta Kappa. He graduated from Yale Law School in 1979. After his law school graduation, he clerked for Judge Pierre N. Leval on the District Court for the Southern District of New York and then for Judge David L. Bazelon on the Court of Appeals for the D.C. Circuit. Mr. Zweifach has practiced civil litigation at Williams & Connolly for over 23 years. In 2002, Mr. Zweifach's hourly rate was $475; it increased to $515 in 2003 and to $550 in 2004. A single associate, Manish K. Mital, worked on the case.*fn4 Mr. Mital graduated from the Massachusetts Institute of Technology and Harvard Law School, magna cum laude. He became associated with Williams & Connolly upon his graduation from Harvard Law School in 2000. Mr. Mital's hourly billing rate was $215 in 2002, $255 in 2003, and $295 in 2004. Ms. Wilcox was billed, and paid Williams and Connolly, at these rates.

More than 80% of the hours billed to this matter by Williams and Connolly represent hours worked by Mr. Mital rather than Mr. Zweifach. See Pl.'s App. Exh. A (Zweifach Affidavit), Attach. 3 (demonstrating that Mr. Mital billed 1,696 hours and Mr. Zweifach billed 383.25 hours to the case).*fn5

II. LEGAL STANDARDS

"The usual method of calculating reasonable attorneys' fees is to multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing the 'lodestar' amount."

Board of Trustees of the Hotel & Restaurant Employees Local 25 v. JPR Inc., 135 F.3d 794, 801 (D.C. Cir. 1998). "This amount may then be adjusted by a multiplier in certain rare and exceptional cases, although there is a strong presumption that the lodestar figure . . . represents a reasonable fee." Id. (internal quotation marks omitted). The "lodestar" approach to fee awards was established by the Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983), and is the approach followed by the federal courts in most fee award disputes. See Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002) ("Thus, the lodestar method today holds sway in federal-court adjudication of disputes over the amount of fees properly shifted to the loser in the litigation."). Federal courts rely on the lodestar method to calculate fees without regard to whether the award would exceed a contingent-fee agreement between client and counsel. Blanchard v. Bergeron, 489 U.S. 87, 93 (1989); see also Venegas v. Mitchell, 495 U.S. 82 (1990). The fee applicant bears the burden of demonstrating that the claimed rate and number of hours are reasonable. Blum v. Stentson, 465 U.S. 886, 897 (1984).

A. Rates "[T]he burden is on the fee applicant to produce satisfactory evidence - in addition to the attorney's own affidavits - that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum v. Stetson, 465 U.S. 886, 895 n.11 (1984). "A rate determined in this way is normally deemed to be reasonable, and is referred to - for convenience - as the prevailing market rate." Id. Given the variation in attorneys' skills and experiences, it is anticipated that the "market rate" for established practitioners will be higher than that for younger lawyers. See id. The market generally accepts higher rates from attorneys at firms with more than 100 lawyers than from those at smaller firms - presumably because of their greater resources and investments, such as attorneys, librarians, researchers, support staff, information technology, and litigation services. See Pl.'s App. Exh. C (Helder Associates' 2004 Law Firm Billing Rate Survey).*fn6 The rates charged by counsel for the winning party are presumptively reasonable if they are the same rates that counsel customarily charge other fee-paying clients for similar work. Cobell v. Norton, 231 F. Supp. 2d 295, 302-03 (D.D.C. 2002) ("There is no better indication of what the market will bear than what the lawyer in fact charges for his services and what his clients pay."); see also Martini v. Fed. Nat'l Mortg. Ass'n, 977 F. Supp. 482, 485 (D.D.C. 1997).

Reasonable attorneys' fees include charges for legal assistants and law clerks. Missouri v. Jenkins, 491 U.S. 274, 285 (1989) ("Thus, the fee must take into account the work not only of attorneys, but also of secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client; and it must also take account of other expenses and profit."). Various forms of litigation expenses that are not fees for attorneys' time - such as copying charges, court reporter fees, and data research - are also to be included in the award if such expenses are routinely billed by the attorney to his or her client. See New York v. Microsoft Corp., 297 F. Supp. 2d 15, 48 (D.D.C. 2003).

B. Hours

A fee applicant may satisfy its burden of demonstrating that its time was reasonably spent by submitting " 'sufficiently detailed information about the hours logged and the work done' that permits the district court to 'make an independent determination whether or not the hours claimed are justified.' " Cobell, 231 F. Supp. 2d at 306 (quoting Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)). The application need not, however, "present the exact number of minutes spent nor the precise activity to which each hour was devoted nor the specific attainments of each attorney." Id.

"Billable hours in fee applications are susceptible to reduction for failure to allocate tasks efficiently to different attorneys based on experience," for example, where research tasks are performed by relatively senior attorneys more frequently than seems justifiable, or where some attorneys' efforts seem to have been needlessly duplicated by others. Id. at 761. "Hours may also be rejected when work descriptions are so general that a court cannot ascertain the reasonableness of the time claimed." Id. at 762.

If the Court determines that duplication or waste of effort has occurred, it has the discretion to "simply reduc[e] the proposed 'lodestar' fee by a reasonable amount without performing an item-by-item accounting." LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 908 (D.C. Cir. 1998). The Court may also "in some circumstances consider a fee request, or a particular item within a fee request, so 'outrageously unreasonable' that outright denial of the request or an item within the request would be appropriate." Id.

Neither party seriously contests any of these legal guideposts.*fn7

III. DISCUSSION

Ms. Wilcox prevailed in the underlying litigation and is entitled to an award of attorneys' fees pursuant to the express terms of her contract of sale with Mr. Sisson.

A. Reasonableness of the Rates Charged

The relevant time frame for determining the market rate in Washington, D.C., for trial preparation and trial itself spans the years 2002, 2003, and 2004. For 2003, Ms. Wilcox submits data from the National Law Journal that extracts the ranges of partner and associate hourly rates for law firms across the United States as reflected in bankruptcy court filings. For 2004, she submits the national Attorney Billing Rate Survey conducted by Helder Associates. Both data sources allow one to focus on law firms located in the District of Columbia.

Mr. Sisson challenges the Williams & Connolly rates on a number of bases. First, he argues that he could "not have anticipated" that Ms. Wilcox would go to "the same law firm that represents General Electric, American Airlines, and 3M to file a lawsuit against him for defects in a private home." Defs.' Opp'n at 1. Further, he "could never have imagined that Ms. Wilcox would spend such a vast sum on attorneys' fees for a case such as this." Id. at 1-2. These arguments must fail, as they are irrelevant to the questions whether the hourly rates charged for Messrs. Zweifach and Mital were reasonable and whether the hours expended were reasonable. Having agreed to pay attorneys' fees should he lose any litigation arising from the contract of sale, Mr. Sisson has no basis to challenge Ms. Wilcox's choice of counsel. The time to have limited either party in their choice was at the time of contract formation. Having left the matter open, Mr. Sisson cannot now complain.

Mr. Sisson next argues that the fees charged by Williams & Connolly were much higher than the "rate prevailing in the community for similar work." Planells v. Howard Univ., 34 FEP Cases 66, U.S. Dist. LEXIS 19338, at *6 (D.D.C. 1984) (citing Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980)); see Defs.' Opp'n at 2. Referring to the Helder Associates survey, see Pl.'s App. Exh. C at 72, he argues that in 2004 fewer than 8.6% of partners in law firms with more than 100 attorneys charged at a rate equal to or greater than that of Mr. Zweifach. Mr. Sisson then averages the hourly rates charged by all partners, at law firms of all sizes, who responded to the Helder Associates survey, to contend that the 2004 prevailing hourly rate for ...


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