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Electronically Filed
Supreme Court
SCAP-12-0000764
27-MAR-2015
09:00 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---oOo---
________________________________________________________________
RAYMOND GURROBAT,
individually and on behalf of all others similarly situated,
Petitioner/Plaintiff-Appellee/Cross-Appellant,
vs.
HTH CORPORATION; PACIFIC BEACH CORPORATION,
Respondents/Defendants-Appellants/Cross-Appellees.
________________________________________________________________
SCAP-12-0000764
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-12-0000764; CIV NO. 08-1-2528-12)
MARCH 27, 2015
RECKTENWALD, C.J., NAKAYAMA, MCKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
Following the publication of our opinion in Gurrobat v. HTH
Corp., 133 Hawaii 1, 323 P.3d 792 (2014), Plaintiff-
Appellee/Cross-Appellant Raymond Gurrobat (“Gurrobat”),
individually and on behalf of a class of similarly situated
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persons, requested that we award him attorneys’ fees and costs
for his appeal and cross-appeal, and provide for interest on the
judgment. Gurrobat bases his request for fees and costs on
Hawaii Rules of Appellate Procedure (“HRAP”) Rule 39 (2007), and
on the fee shifting provisions found in Hawaii Revised Statutes
(“HRS”) §§ 388-11(c) (Supp. 1999) and 480-13(a) (2008). He
bases his request for interest on HRAP Rule 37 (2000). In
total, Gurrobat requests an award of attorneys’ fees based on a
lodestar of $90,422.50 and enhanced based on a multiplier to be
determined by the court, 4.712% general excise tax on the
awarded fees, $535.55 in costs,1 and an award of post judgment
interest on the damages affirmed in our opinion.
Defendants-Appellants/Cross-Appellees HTH Corp. and Pacific
Beach Corp. (“Defendants”) acknowledge that Gurrobat is entitled
to reasonable attorneys’ fees and costs under HRS § 388-11(c)
for prevailing on their appeal, but contend he is not entitled
to fees and costs under HRS § 480-13(a)(1) for his successful
cross-appeal. In addition, Defendants oppose many individual
time entries in Gurrobat’s fee request as being vague and/or
block billed. Defendants also claim that any fees awarded
should be subject to a downward adjustment of thirty percent
1
Gurrobat initially requested $555.45 in costs, but withdrew
entries totaling $19.90 in his reply memorandum; Gurrobat also put his
requested costs at $589.25 at one point, but this appears to be a
typographical error.
2
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because the key issue underlying Defendants’ appeal was largely
decided by this court in Villon v. Marriott Hotel Services,
Inc., 130 Hawaii 130, 306 P.3d 175 (2013). Defendants oppose
all but $18.85 of Gurrobat’s costs requested on various grounds.
Finally, Defendants assert that an award of interest should be
denied as premature, and is better left to the discretion of the
trial court.
We hold that Gurrobat is entitled to attorneys’ fees for
both the appeal and cross-appeal, in the amount of $84,032.50,
plus $3,959.61 in general excise tax. We also award costs in
the amount of $435.55. In addition, we hold Defendants jointly
and severally liable for the payment of Gurrobat’s attorneys’
fees and costs. Finally, we hold that post judgment interest is
not appropriate under the circumstances of this case.
II. Background
Gurrobat filed a class action complaint in the Circuit
Court of the First Circuit (“circuit court”), asserting claims
for damages under both Hawaii’s wage laws, HRS §§ 388-6 (1993)
and 388-10 (Supp. 1999), and under Hawaii’s unfair methods of
competition (“UMOC”) provisions, HRS §§ 480-2(e) (2008) and 480-
13(a). Gurrobat, 133 Hawaii at 3, 323 P.3d at 794. The lawsuit
was based on Defendants’ violations of HRS § 481B-14 (2008) for
charging customers of the Pacific Beach Hotel and the Pagoda
Hotel service charges without fully disclosing to customers that
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the charges were not entirely being distributed to non-
managerial service employees. Id.
The circuit court ultimately granted summary judgment for
Gurrobat on the wage law claims, awarded $1,678,783 in damages,
and held Defendants jointly and severally liable for the
damages. 133 Hawaii at 10, 323 P.3d at 801. The circuit court,
however, granted summary judgment for Defendants on the UMOC
claims. 133 Hawaii at 3, 323 P.3d at 794. Defendants appealed
the circuit court’s grant of summary judgment on the wage law
claims; Gurrobat cross-appealed the circuit court’s grant of
summary judgment on the UMOC claims. 133 Hawaii at 4, 323 P.3d
at 795.
This court accepted a discretionary transfer from the
Intermediate Court of Appeals pursuant to HRS § 602-58(b)(1)
(Supp. 2011). On February 25, 2014, we issued our opinion in
Gurrobat, 133 Hawaii 1, 323 P.3d 792 (“Opinion”). The Opinion
(1) affirmed the circuit court’s order granting Gurrobat’s
motion for class certification; (2) affirmed the circuit court’s
grant of summary judgment as to the unpaid wages under HRS
Chapter 388; and (3) affirmed in part the award of damages as to
the HRS Chapter 388 claim. 133 Hawaii at 23, 323 P.3d at 814.
We vacated, however, the portion of the grant of summary
judgment as to damages under HRS Chapter 388 that imposed joint
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and several liability on Defendants and remanded for further
proceedings to properly apportion damages between Defendants.2
Id. The Opinion further held that the circuit court erred in
granting Defendants’ motion for summary judgment on the UMOC
claims, and that Gurrobat had established the necessary elements
to recover damages under HRS §§ 480-2 and 480-13 for violations
of HRS § 481B-14. 133 Hawaii at 23-24, 323 P.3d at 814-15. We
therefore vacated the circuit court’s order granting Defendants’
motion for summary judgment on Gurrobat’s UMOC claim, and
remanded the claim to the circuit court for further proceedings
consistent with the Opinion. 133 Hawaii at 24, 323 P.3d at 815.
Gurrobat then timely filed a “Motion for Attorneys’ Fees
and Costs and Provision of Interest.” Defendants filed a
Memorandum in Opposition; Gurrobat filed a Reply. We denied the
motion without prejudice because it did not substantially comply
with HRAP Form 8. Gurrobat then filed a compliant First Amended
Motion for Attorneys’ Fees and Costs and Provision of Interest
(“Motion”). Following a substitution of counsel, Defendants
filed a new Memorandum in Opposition (“Opposition”) on July 28,
2
One of the two defendants, HTH Corporation, operated both hotels
where service charges were unlawfully withheld from service employees; the
other defendant, Pacific Beach Corporation, only operated one of the two
hotels, and therefore could only be held liable for injuries to employees at
that hotel.
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2014 that raised objections not found in the prior opposition.3
Gurrobat then filed a new Reply Memorandum (“Reply”).
III. Attorneys’ Fees and Costs
A. Availability of Attorneys’ Fees
The “American Rule” provides that each party is normally
responsible for paying his or her attorneys’ fees. Schefke v.
Reliable Collection Agency, Ltd., 96 Hawaii 408, 444, 32 P.3d
52, 88 (2001). Attorneys’ fees are only, therefore, “chargeable
against the opposing party when so authorized by statute, rule
of court, agreement, stipulation, or precedent.” Lee v. Aiu, 85
Hawaii 19, 32, 936 P.2d 655, 668 (1997) (citation omitted).
Gurrobat’s attorneys’ fees request is based on several
statutes. Gurrobat asserted claims based on Defendants’
violation of Hawaii’s hotel or restaurant service charge law,
HRS § 481B-14. HRS § 481B-4 deems violations of Chapter 481B to
be “unfair method[s] of competition . . . within the meaning of
section 480-2.” HRS 480-13(a), in turn, provides a private
cause of action for those injured by violations of Chapter 480.
3
In his Reply, Gurrobat questions the appropriateness of
Defendants raising new substantive arguments in response to what he
characterizes as a “non-substantive filing made to meet form requirements.”
Reply at 9. While Gurrobat styles the Motion as a “First Amended Motion,” it
was filed after the original motion was denied without prejudice, and is
therefore better considered as a new motion rather than an amended one. See
generally 5 Wright & Miller Federal Practice and Procedure: Civil 3d § 1194
(“In theory, a motion may be amended at any time before the judge has acted
upon the request. . . .”) (emphasis added). We will therefore consider only
the July 28, 2014 filing as the Opposition to this motion.
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In addition, we have held that employees harmed by violations of
HRS § 481B-4 may bring actions to enforce their rights and seek
remedies under HRS § 388-11. See Villon, 130 Hawaii at 132-33,
306 P.3d at 177-78.
Gurrobat therefore bases his request for attorneys’ fees on
the statutory fee shifting provisions found in HRS §§ 388-11(c)
and 480-13(a). Defendants acknowledge that Gurrobat is entitled
to fees under the former, but claim that fees are not available
under the latter under the circumstances of this case.
Defendants’ objections are based on their reading of the
text of these two statutes, so we begin with a comparison.
HRS § 388-11(c) reads, in relevant part:
The court in any action brought under this section shall,
in addition to any judgment awarded to the plaintiff or
plaintiffs, allow interest of six per cent per year from
the date the wages were due, costs of action, including
costs of fees of any nature, and reasonable attorney’s
fees, to be paid by the defendant. . . .
HRS § 480-13(a)(1) reads, in relevant part:
[A]ny person who is injured in the person’s business or
property by reason of anything forbidden or declared
unlawful by this chapter . . . [m]ay sue for damages
sustained by the person, and, if the judgment is for the
plaintiff, the plaintiff shall be awarded a sum not less
than $1,000 or threefold damages by the plaintiff
sustained, whichever sum is the greater, and reasonable
attorney’s fees together with the costs of suit . . . .
Defendants essentially argue that HRS § 480-13(a) allows
for attorneys’ fees on appeal only when the trial court decision
appealed from resulted in a final judgment for the plaintiff.
The circuit court issued a judgment that was for Gurrobat on his
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HRS Chapter 388 claims, but which was against him on his HRS
Chapter 480 claims. Therefore, Defendants assert, the
“judgment” required under HRS § 480-13(a)(1) is absent and
Gurrobat cannot recover fees for hours expended on his cross-
appeal of the circuit court’s grant of summary judgment for
Defendants on the Chapter 480 claim.
In support of their argument, Defendants cite to our
decision in Nelson v. University of Hawaii, 99 Hawaii 262,
54 P.3d 433 (2002). In Nelson, plaintiffs requested attorneys’
fees following a successful appeal that vacated a trial court
judgment in favor of defendants and remanded the case for a new
trial. 99 Hawaii at 264, 54 P.3d 435. Plaintiffs in that case
based their fee request on HRS § 378-5(c), a fee shifting
statute that provides:
In any action brought under this part, the court, in
addition to any judgment awarded to the plaintiff or
plaintiffs, shall allow costs of action, including costs of
fees of any nature and reasonable attorney’s fees, to be
paid by the defendant.
99 Hawaii at 265, 54 P.3d at 436.
This court denied Nelson’s request for fees without
prejudice, finding that the award of fees was inappropriate, as
Nelson’s appellate victory “merely vacate[d] a trial court
judgment unfavorable to the plaintiff, and place[d] the
plaintiff back where the plaintiff started.” 99 Hawaii at 266,
54 P.3d at 437. Defendants therefore claim that Nelson bars an
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award of attorneys’ fees on appeal if this court has not issued
a judgment awarding damages to the plaintiff. We disagree.
When interpreting a statute, we follow well established
principles:
First, the fundamental starting point for statutory
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists. And fifth, in construing an ambiguous
statute, the meaning of the ambiguous words may be sought
by examining the context, with which the ambiguous words,
phrases, and sentences may be compared, in order to
ascertain their true meaning.
State v. Silver, 125 Hawaii 1, 4, 249 P.3d 1141, 1144 (2011)
(citations omitted).
The word “judgment” may be defined as “a court’s final
determination of the rights and obligations of the parties in a
case.” Black’s Law Dictionary 858 (8th ed. 2004). A judgment
on appeal meets this definition. In Nelson, this court
addressed the question of whether a judgment on appeal could be
a judgment for the purposes of an award of fees. 99 Hawaii at
265, 54 P.3d at 436. In that case, we held that attorneys’ fees
were potentially available on appeal given the relevant
statutory language in HRS § 378-5(c), which reads: “[T]he
court, in addition to any judgment awarded to the plaintiff . .
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. shall allow costs of action, including . . . reasonable
attorney’s fees, to be paid by the defendant.” Id.
The relevant language in HRS § 480-13(a)(1) is similar, but
not identical: “[I]f the judgment is for the plaintiff, the
plaintiff shall be awarded a sum not less than $1,000 or
threefold damages by the plaintiff sustained, whichever sum is
the greater, and reasonable attorney’s fees together with the
costs of suit . . . .” The only difference of note between
these provisions is that HRS § 378-5(c) uses the term “any
judgment,” while HRS § 480-13(a)(1) uses “the judgment.” In
context, the two phrases convey similar meanings, but there
could be some uncertainty as to whether the words have different
meanings. Silver, 125 Hawaii at 4, 249 P.3d at 1144. Confronted
with this ambiguity, we will “consider ‘the reason and spirit of
the law, and the cause which induced the legislature to enact it
. . . to discover its true meaning.’” 125 Hawaii at 4-5, 249
P.3d at 1144-45 (citation and brackets omitted).
The language of the fee shifting provision in HRS
§ 480-13(a)(1) dates back to the initial passage of Hawaii’s
antitrust laws. 1961 Haw. Sess. Laws 313. The passage of
Hawaii’s antitrust statutes was part of the transition to
statehood, and was intended to prevent “a void in the regulation
of business practices which may cause practices destructive of
competition to prevail.” H. Stand. Comm. Rep. No. 97, in 1961
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House Journal, at 687. Private rights of action providing for
treble damages and fee awards are not unique to Hawaii’s
antitrust statutes; they are also a common feature of federal
antitrust laws:
Where the interests of individuals or private groups or
those who bear a special relation to the prohibition of a
statute are identical with the public interest in having a
statute enforced, it is not uncommon to permit them to
invoke sanctions. This stimulates one set of private
interest to combat transgressions by another without resort
to governmental enforcement agencies. . . . It is clear
Congress intended to use private self-interest as a means
of enforcement and to arm injured persons with private
means to retribution when it gave to any injured party a
private cause of action in which his damages are to be made
good threefold, with costs of suit and reasonable
attorney’s fee.
Bruce’s Juices v. American Can Co., 330 U.S. 743, 751 (1947)
(discussing Robinson-Patman Act).
The provisions of HRS § 480-13 are similar to the language
of section 4 of the Clayton Act, 15 U.S.C. § 15(a).4 See Davis
v. Four Seasons Hotel, Ltd., 122 Hawaii 423, 427-28, 228 P.3d
303, 307-08 (2010). The private right of action provisions of
the Clayton Act were “intended to help persons of small means
who are injured in their property or business by combinations or
corporations violating the antitrust laws.” Minnesota Mining &
4
Section 4 of the Clayton Act, 15 U.S.C. § 15(a) (2009), provides
in relevant part:
(a) Amount of recovery; prejudgment interest: Except as provided in
subsection (b) of this section, any person who shall be injured in his
business or property by reason of anything forbidden in the antitrust laws
may sue therefor . . . , and shall recover threefold the damages by him
sustained, and the cost of suit, including a reasonable attorney’s fee. . . .
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Mfg. Co. v. New Jersey Wood Finishing Co., 381 U.S. 311, 319
(1965) (internal quotation marks omitted) (quoting legislative
history of Clayton Antitrust Act). The attorney fee provisions
in federal antitrust statutes are an important part of the
private right of action. See Farmington Dowel Prods. Co. v.
Forster Mfg. Co., 421 F.2d 61, 88 (1st Cir. 1969) (rejecting
argument that attorneys’ fees could not be awarded unless
actually paid by plaintiff because such a holding “would leave
private antitrust enforcement to the independently wealthy.”).
The fee shifting provision in HRS § 480-13(a)(1) is thus
akin to fee shifting provisions found in federal antitrust laws.
HRS § 480-3 (2008) specifically provides that “[t]his chapter
shall be construed in accordance with judicial interpretations
of similar federal antitrust statutes . . . .” We therefore
look to federal law for guidance in interpreting HRS § 480-13,
and turn, as we did in Nelson and in Schefke, to federal case
law interpreting the similar federal statutes. See Nelson, 99
Hawaii at 266, 54 P.3d at 437; Schefke, 96 Hawaii at 444-45, 32
P.3d at 88-89.
The language of the Clayton Act’s fee shifting provisions
is similar to the language of Hawaii’s law. HRS § 480-13(a)(1)
provides that the award of treble damages, costs, and fees will
occur “if the judgment is for the plaintiff.” The federal
statute omits the “if the judgment” language, and simply
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provides that “any person who shall be injured . . . shall
recover” treble damages, costs and fees. 15 U.S.C. § 15(a).
Section 4 of the Clayton Act permits the recovery of fees for
expenses incurred on appeal; the United States Supreme Court has
held that the language and purpose of the Clayton Act make it
clear that appellate fees are available. See Perkins v.
Standard Oil Co. of Cal., 399 U.S. 222, 223 (1970) (per curiam).
The fee shifting provisions of the Clayton Act are present to
ensure that the plaintiff’s treble damages recovery is not
reduced by the fees incurred on appeal. See Perkins v. Standard
Oil Co. of Cal., 474 F.2d 549, 553 (9th Cir. 1973), supplemented
by, 487 F.2d 672 (9th Cir. 1973).
As in Nelson, the question before this court is not,
therefore, whether a judgment on appeal can serve as a basis for
an award of attorneys’ fees, but whether the outcome of the
appeal was sufficient to constitute a judgment for the
plaintiff. In Nelson, we looked to federal case law
interpreting federal civil rights statutes permitting
“prevailing parties” to recover attorneys’ fees. 99 Hawaii at
266-67, 54 P.3d at 437-38. We found that “an appellate judgment
that affirms or directs a partial victory for plaintiff, while
at the same time remanding the case for further proceedings,
could serve as the basis for a fees award” provided that the
judgment on appeal “creat[es] at least a ‘material alteration of
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the legal relationship of the parties . . . .’” 99 Hawaii at
267, 54 P.3d at 438.
In Nelson, fees were not awarded because the case was
remanded for a new trial, placing plaintiff “in the same
position as she was before trial.” Id. We held, however, that
Nelson would be entitled to recover appellate fees if she
eventually prevailed in the trial court. 99 Hawaii at 269, 54
P.3d at 440. Nelson’s fee request was therefore denied without
prejudice, and the trial court was specifically instructed that
it could provide for fees for work done on the appeal if Nelson
eventually obtained “a judgment . . . that represents a material
alteration of the legal relationship between herself and UH.”
Id.
The circumstances in this case differ from those in Nelson.
In this case, we concluded that Gurrobat “presented sufficient
evidence, there being no issues with respect to the first and
third elements, to satisfy the second element required for
recovery on Plaintiffs’ UMOC claim.” Gurrobat, 133 Hawaii at
24, 323 P.3d at 815. This determination did not merely return
Gurrobat to the position he was in when the case was filed, as
in Nelson. In holding that Gurrobat had satisfied the remaining
element required for recovery on the UMOC claim, this court
materially altered the legal relationship of the parties, as the
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only task remaining for the circuit court on remand is the
determination of the amount of damages. Gurrobat is therefore
entitled to attorneys’ fees for time expended on his cross-
appeal of the circuit court’s grant of summary judgment in favor
of Defendants on Gurrobat’s UMOC claim.
B. Challenged Hours
Having determined that Gurrobat may recover fees for work
done on both the appeal and cross-appeal, we now turn to what
constitutes reasonable attorneys’ fees in this case.
Gurrobat has submitted itemized timesheets detailing the
hours that his three attorneys (John Perkin, James Bickerton,
and Brandee Faria) expended on the appeal in this case.
Defendants have objected to most of the individual time
entries in the documentation submitted by Gurrobat. Defendants
grouped their objections into three categories: objections to
time spent on the cross-appeal, which we have already addressed;
objections to entries they view as “block billed”; and
objections to entries they view as “vaguely generic.” We
therefore turn now to Defendants’ block billing and vagueness
objections.
1. Alleged Block Billing
Block billing has been defined as “the time-keeping method
by which each lawyer and legal assistant enters the total daily
time spent working on a case, rather than itemizing the time
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expended on specific tasks.” Hawaii Ventures, LLC v. Otaka,
Inc., 116 Hawaii 465, 475, 173 P.3d 1122, 1132 (2007) (quoting
Robinson v. City of Edmond, 160 F.3d 1275, 1284 n.9 (10th Cir.
1998)). Block billing may also be defined as the practice of
lumping multiple tasks into a single time entry. Id.
Block billing is a disfavored method of documenting time
spent for the purposes of supporting a motion for attorneys’
fees. See, e.g., Hawaii Ventures, 116 Hawaii at 475, 173 P.3d
at 1132. Parties seeking attorneys’ fees bear the burden of
demonstrating that the fees requested are reasonable. See Sharp
v. Hui Wahine, 49 Hawaii 241, 246, 413 P.2d 242, 247 (1966). As
we have noted, the issue with block billing is that it “can make
it impossible for the court to determine the reasonableness of
the hours spent on each task.” Hawaii Ventures, 116 Hawaii at
475, 173 P.3d at 1132. Block billing is problematic because it
makes it more difficult for the party requesting fees to
demonstrate the reasonableness of the billed hours; a party
requesting attorneys’ fees block bills at its own risk. See,
e.g., Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir.
2007) (approving of a 20% reduction applied to specific block
billed entries).
Defendants request that we deny recovery of fees for all
block billed time, asserting that “it is basically accepted as a
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matter of law that ‘block billing’ is totally unacceptable and a
rejected means of seeking an award of fees, no matter the
context for the request.” (Opposition at 14). In support of
this assertion, Defendants cite to a number of cases, the most
recent from 1999, from a range of jurisdictions. Id.
Defendants’ reliance on these cases is, however, misplaced.
Neither current Hawaii law nor the recent practice of
American courts suggest that block billing is categorically
unacceptable, or that block billing should normally result in
denial of the block billed entries. If anything, it appears
generally accepted that block billing should not automatically
lead to the rejection of block billed entries. See, e.g.,
Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1129 (9th Cir.
2008) (“[T]he use of block billing does not justify an across-
the-board reduction or rejection of all hours.”) (emphasis in
original), overruled on other grounds by Arizona v. ASARCO LLC,
773 F.3d 1050, 1058 n.1 (9th Cir. 2014); Thompson, Inc. v. Ins.
Co. of N.Am., 11 N.E.3d 982, 1025 (Ind. Ct. App. 2014) (Indiana
cases expressly permit block billing); Maddox v. Greene Cnty.
Children Servs. Bd. of Dirs., 12 N.E.3d 476, 498 (Ohio Ct. App.
2014) (holding that the trial court was not required to deny
fees altogether for block billed entries); 546-552 W. 146th St.
LLC v. Arfa, 99 A.D.3d 117, 123 (N.Y. App. Div. 2012) (holding
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that block billing does not render a fee request per se
unreasonable).
Block billing may lead to the exclusion of the block billed
hours where the practice makes it impossible to distinguish
between compensable and non-compensable tasks. See Hawaii
Ventures, 116 Hawaii at 476, 173 P.3d at 1132. Where this is
not the case, courts may still reduce the portion of the fee
request that was block billed by a percentage to account for the
increased difficulty in determining the reasonableness of hours
billed in this format. See, e.g., Welch, 480 F.3d at 948
(holding that courts may apply a percentage reduction, but only
to hours actually block billed).
With the foregoing in mind, we turn to Defendants’ specific
block billing objections. Defendants present a list of 103
separate time entries that they object to on the grounds that
the entries are “block billed.” In 79 of these 103 entries,
Gurrobat’s counsel billed less than one hour; in 56 of the
objected-to entries, counsel billed 0.1 hour.
One-tenth of one hour (0.1 hour) is the shortest generally
accepted unit of attorney time for billing purposes. It is
possible to block bill even such a short period of time, in that
an attorney can accomplish and bill multiple compensable tasks
within one six minute block. As long as the billed tasks are
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compensable, the six minute block may represent a reasonable
expenditure of time.
In addition, block billing can only occur where multiple
tasks are lumped together into a single billing entry. In order
to determine if multiple tasks are actually being claimed in a
single block, a certain degree of common-sense is required; the
mere inclusion of the word “and” in a billing entry is certainly
not determinative. For example, “reviewing and drafting” a
document, “reviewing and revising” a document, “drafting and
finalizing” a document, and other such descriptions all involve
the single task of “working on” a document.5 See, e.g., Wise v.
Kelly, 620 F.Supp. 2d 435, 451 (S.D.N.Y. 2008). Similarly,
tasks such as drafting a document and making a follow-up
telephone call related to the same document can be viewed as
part of the single task of working on the document. See id.
Billing descriptions that merely detail the types of activities
that make up a single general task will not normally support a
block billing objection, provided the court can determine the
reasonableness of the hours expended on the general task.
Upon examination, none of the allegedly block billed
entries includes more than one general task, and all of the
5
We note that when counsel actually recorded a task as “work on
answering brief,” Defendants objected to the entry as being too vague to
support a claim for fees. See Opposition at 18.
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billing entries are reasonable. Defendants’ block billing
objections are therefore rejected.
2. Alleged Vagueness
Defendants object to numerous time entries on the grounds
that the entries are “vaguely generic.” The majority of these
objections appear to cover time entries where it is not clear to
Defendants whether the task detailed related to the appeal or
cross-appeal. Fees cannot be awarded if it is impossible to
distinguish between compensable and non-compensable claims. See
Hawaii Ventures, 116 Hawaii at 478, 173 P.3d at 1135. Here,
because we have held that fees are available for both
Defendants’ appeal and Gurrobat’s cross-appeal, this issue does
not arise.
Defendants also state that “some of the time entries are so
vaguely generic, that it is impossible to discern whether the
hours expended for the task were reasonable . . . .” Defendants
identify only two specific time entries as falling into this
group within the brief: one time entry for 3.6 hours for
“[p]repare Answering Brief” and one from the same attorney for
0.4 hours for “[w]ork on answering brief.” (Opposition at 18).
It is true that these two time descriptions lack the specificity
seen in many of the entries that appear on Defendants’ list of
block billing objections. Nevertheless, the total time spent on
the answering brief appears reasonable.
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Although such time entries are not excessively descriptive,
they are not so vague as to warrant rejection. Defendants’
vagueness objections are therefore rejected.
3. Excluded Tasks
We now turn to Gurrobat’s itemized fee request. For the
most part, the listed items are adequately described and clearly
relate to appellate work. Some of the time entries, however,
relate to tasks that are not appropriately considered part of
the appeal.
In particular, Gurrobat includes time spent on work done at
the trial court in order to address issues related to the final
judgment. The time entries in question refer to work done at
the trial court on a Hawaii Rules of Civil Procedure Rule 60
motion, and on an Amended Final Judgment.6 As the trial court is
better able to determine the reasonableness of time expended on
this issue, and as we have remanded the case to the trial court
for further proceedings, we deny the portions of the fee request
attributable to the revised judgment without prejudice to
Gurrobat requesting these fees at the trial court on remand.
6
In total, Gurrobat documents 19.2 hours of work by attorney
Faria, 2.5 hours by attorney Perkin, and 0.7 hours by attorney Bickerton that
are attributable to matters related to procuring the trial court’s final
judgment.
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Specifically, we deny without prejudice the following
requested hours:
For attorney Faria:
Date Tasks7 Total
Hours
04/10/2012 Review Final Judgment; review and draft 0.1
emails with co-counsel regarding [Review
Final Judgment]
04/11/2012 Review and draft emails with co-counsel 0.1
regarding Final Judgment
04/12/2012 Review and draft emails with co-counsel 0.1
regarding Application to Transfer and Final
Judgment
04/24/2012 Review and draft emails with associate 2.1
regarding Final Judgment Under Jenkins
Research Motion for Rule 60 Relief
Draft Motion for Rule 60 Relief
04/25/2012 Research Rule 60 Motion 5.0
Draft Rule 60 Motion
04/26/2012 Research Rule 60 Motion 3.5
Draft Rule 60 Motion
04/27/2012 Research Rule 60 Motion 0.7
Further changes made on Motion for Relief
(Circuit Court format) (x2) and locate
citing.
04/28/2012 Conference call with co-counsel regarding 0.3
revision of Final Judgment
04/30/2012 Meeting with partner regarding Final 0.6
Judgment; telephone call with P. Alston
regarding same.
Research regarding Rule 60 Motion
Review and draft emails with co-counsel and
partner regarding Rule 60 Motion
Review and draft emails with staff regarding
finalization of Rule 60 Motion
05/01/2012 Review and draft emails with co-counsel and 0.9
partner regarding Rule 60 Motion
Review Motion for Relief Order regarding
HRCP 60
7
For convenience and readability, we have blocked the individual
time entries by date.
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05/02/2012 Review and draft emails with co-counsel and 0.1
staff regarding filing Final Judgment in the
Bureau of Conveyances
05/07/2012 Review and draft emails with co-counsel 0.1
regarding Final Judgment
05/18/2012 Review and draft emails with co-counsel 0.1
regarding Motion to Modify the Judgment
06/28/2012 Review and make changes to amended final 1.4
judgment.
Review and draft emails with co-counsel
regarding Amended Final Judgment
07/18/2012 Review and respond to emails to and from P. 1.5
Alston regarding Amended Final Judgment
Review and make changes to Amended Final
Judgment
Research on Amended Final Judgment
07/23/2012 Review and respond to emails regarding 1.9
revised Final Judgment
Review revised Final Judgment; make changes
Research regarding Final Judgment
07/31/2012 Review Defendant’s letter of objection to 0.1
Plaintiff’s Amended Final Judgment submitted
to judge on 7/24/2012, proposed Amended
Final Judgment, Certificate of Service
08/08/2012 Review and draft emails with associate 0.3
regarding Pacific Beach’s state tax
identification number
Review and draft emails with co-counsel
regarding Pacific Beach’s federal
identification number to record Amended
Judgment
08/09/2012 Review and draft emails with co-counsel 0.1
regarding Garnishee Summons
08/13/2012 Review and draft emails with co-counsel 0.1
regarding Amended Final Judgment filed in
the Bureau of Conveyances
08/18/2012 Review and draft emails with partner and co- 0.1
counsel regarding Final Judgment and Bond
GRAND TOTAL: 19.2
For attorney Bickerton:
Date Tasks Total
Hours
08/07/2012 Call with team members re strategy for 0.4
collection, superseadeas [sic] bond, and
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settlement issues
08/08/2012 Work on application for garnishee summons 0.3
and recording of judgment at BOC
GRAND TOTAL 0.7
For attorney Perkin:
Date Tasks Total
Hours
04/23/2012 Research and draft Amended Final Judgment 0.1
04/30/2012 Meeting with partner regarding Final 0.4
Judgment and Jenkins issue
05/01/2012 Review and draft emails with co-counsel and 0.1
partner regarding Rule 60 Motion
05/02/2012 Review and draft emails with co-counsel 0.1
regarding Final Judgment and Supersedeas
Bond
07/10/2012 Email correspondence with partner regarding 0.2
Final Judgment and settlement
7/19/2012 Email correspondence regarding Amended Final 0.2
Judgment
07/24/2012 Draft and review letter to Judge Sakamoto 0.3
regarding amended judgment
08/01/2102 Final edits on letter to judge 0.3
Review and make changes to drafted letter to
judge
08/07/2012 Review and draft emails with partner and co- 0.4
counsel regarding Amended Final Judgment
Email correspondence with co-counsel
regarding Amended Final Judgment
08/08/2012 Email to Paul Alston regarding Amended Final 0.4
Judgment
GRAND TOTAL 2.5
C. Lodestar Hours and Rates
Courts determine a reasonable attorneys’ fee using the
lodestar method, in which the number of hours reasonably
expended are multiplied by a reasonable hourly rate. See
Kaleikini v. Yoshioka, 129 Hawaii 454, 469, 304 P.3d 252, 267
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(2013). This method is generally considered to be “[t]he most
useful starting point for determining the amount of a reasonable
fee . . . .” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The lodestar approach is strongly presumed to yield a reasonable
fee. See City of Burlington v. Dague, 505 U.S. 557, 562 (1992).
Gurrobat submitted requests for 150.2 hours of work by
attorney Brandee Faria, 25.4 hours by attorney John Perkin, and
85.3 hours by attorney James Bickerton. After considering
Defendants’ specific objections and excluding time attributable
to work done at the trial court level, as noted above, we find
that the lodestar should be calculated based on 131.0 hours of
work by attorney Faria (150.2 hours requested less 19.2 hours
disallowed for trial court work), 22.9 hours by attorney Perkin
(25.4 hours requested less 2.5 hours disallowed for trial court
work), and 84.6 hours by attorney Bickerton (85.3 hours
requested less 0.7 hours disallowed for trial court work).
Gurrobat requests that we set the fee at the 2011 billing
rates of $425 per hour for Mr. Perkin, $375 per hour for Mr.
Bickerton, and $325 per hour for Ms. Faria. Gurrobat states
that he is setting these rates at 2011 levels in part to “take
advantage of the (unappealed) law of the case establishing those
rates as reasonable.” Gurrobat’s reliance on “law of the case”
is misplaced. The “law of the case” doctrine provides that
“[u]nless cogent reasons support the second court’s action, any
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modification of a prior ruling of another court of equal and
concurrent jurisdiction will be deemed an abuse of discretion.”
Wong v. City and Cnty. of Honolulu, 66 Haw. 389, 396,
665 P.2d 157, 162 (1983) (emphasis added) (citations omitted).
Thus, with respect to the reasonableness of appellate fees, the
doctrine is not triggered by a trial court determination.
In any event, Gurrobat’s requested rates are adequately
supported by documentation demonstrating that the rates fall
within current market rates. Defendants do not challenge the
requested hourly rate. This court therefore approves Gurrobat’s
requested rates.
Applying these rates to the hours we determine were
reasonably expended, we arrive at a final lodestar of
$84,032.50.8
D. Lodestar Modification
Both Gurrobat and Defendants request that this court adjust
the lodestar award. Gurrobat requests an upward modification.
Defendants assert that an upward modification is inappropriate,
and that the lodestar should be adjusted downward.
Our analysis begins, as it must, with the “‘strong
presumption’ that the lodestar represents the reasonable fee.”
8
131.0 hours at $325 per hour for Ms. Faria = $42,575.00; 84.6
hours at $375 per hour for Mr. Bickerton = $31,725.00; 22.9 hours at $425 per
hour for Mr. Perkin = $9,732.50.
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Kaleikini, 129 Hawaii at 475, 304 P.3d at 273 (2013) (citations
omitted). Where attorneys’ fees are requested under fee
shifting statutes that provide for the recovery of reasonable
attorneys’ fees, as is the case here, the party requesting a
lodestar adjustment must show that the unmodified lodestar would
lead to an unreasonable fee. See id.
This court’s decision in Schefke makes it clear that upward
modification of the lodestar may be warranted in fee shifting
cases. Gurrobat argues that consideration of each of the twelve
lodestar adjustment factors first set forth in the Fifth
Circuit’s opinion in Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir. 1974), overruled on other grounds by
Blanchard v. Bergeron, 489 U.S. 87, 91-94 (1989), and
subsequently adopted by the Ninth Circuit in Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), abrogated
in part by Davis v. City & Cnty. Of San Francisco, 976 F.2d
1536, 1546 n.4 (9th Cir. 1992), vacated on other grounds on
denial of reh’g by 984 F.2d 345 (9th Cir. 1993), demonstrates
that an upward adjustment should be awarded in this case. It is
clear that Gurrobat’s counsel obtained favorable results;
counsels’ acceptance of this case on a contingent fee basis
played a vital role in the vindication of the rights of the
class, and litigating this issue served a public purpose. See
Nelson, 99 Hawaii at 266, 54 p.3d at 437 (noting that civil
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rights fee shifting statutes serve a public purpose); Schefke,
96 Hawaii at 452-454, 32 P.3d at 96-98 (holding that Hawaii
courts have discretion to enhance lodestar when attorneys have
accepted a case on a contingent fee basis). Nevertheless, we
decline a fee enhancement in this case.
Upward modification of the lodestar is warranted when
necessary to “achieve a ‘reasonable’ award of fees.” Schefke,
96 Hawaii at 452, 32 P.3d at 96 (emphasis added). As we start
with the presumption that application of the lodestar is
sufficient to determine a reasonable fee, see Kaleikini, 129
Hawaii at 475, 304 P.3d at 273, it is necessary to enhance the
lodestar only if it does not result in a reasonable fee.
Here, Gurrobat argues that a lodestar enhancement could
result in a reasonable fee, but does not argue that the lodestar
alone does not result in a reasonable fee. It is insufficient
for Gurrobat to demonstrate that the fee will remain within the
range of the reasonable fees after application of a multiplier;
he must also show that the lodestar does not provide for a
reasonable fee. See id. (rejecting enhancement when party
seeking fees failed to “establish that the lodestar is
unreasonable, or that enhancement is necessary to achieve a
reasonable fee”).
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Gurrobat’s only explicit effort to rebut the presumption
that the lodestar was reasonable is an argument in his Reply
that the election to seek compensation at below market rates
demonstrates that the lodestar was unreasonable. Gurrobat’s
counsel, however, suggested their rates and stated that the
rates are “well within the range of what is reasonable and
appropriate in this market.” (Faria Decl. at ¶ 10). Even if we
treat the statement contained within the Reply as a
clarification of Gurrobat’s initial argument rather than a new
argument raised for the first time in the Reply, see Taomae v.
Lingle, 110 Hawaii 327, 333 n.14, 132 P.3d 1238, 1244 n.14
(2006) (declining to consider matters raised for the first time
in the reply memorandum when considering whether to award
attorneys’ fees), Gurrobat has not successfully rebutted the
presumption that the requested rates are reasonable.
By the same token, Defendants’ arguments for a downward
modification are similarly unavailing. We have already
discussed Defendants’ specific challenges to the claimed hours,
and Defendants do not argue that the proposed hourly rates are
unreasonable. Defendants also object to the unaltered lodestar,
however, on the grounds that Gurrobat did not obtain an
unqualified victory. Although Gurrobat did not completely
prevail on appeal, he did prevail on all but one of the issues
raised in the appeal and cross-appeal. This court’s remand on
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the matter of joint and several liability does not alter the
fact that Gurrobat prevailed, and his attorneys should recover a
fully sufficient compensatory fee. Schefke, 96 Hawaii at 444,
32 P.3d at 88.
Defendants also argue that the lodestar should be reduced
because the central issue in Defendants’ appeal was effectively
decided by this court’s intervening decision in Villon, 130
Hawaii 130, 306 P.3d 175. As Gurrobat notes, however, Villon
was not published until very late in the course of this appeal.9
The reasonableness of attorneys’ fees is measured based on the
point in time when the work was performed, and not based on
hindsight. See Woolridge v. Marlene Indus. Corp., 898 F.2d
1169, 1177 (6th Cir. 1990).
As neither Gurrobat nor Defendants have rebutted the
presumption that the lodestar results in a reasonable fee, we
will not apply either an upward or downward modification to the
lodestar in this case. Gurrobat is therefore awarded attorneys’
fees in the lodestar amount of $84,032.50, plus an additional
$3,959.61 (4.712% of the total) for general excise tax. See
Cnty. of Hawaii v. C & J Coupe Family Ltd. P’ship, 120 Hawaii
400, 409-10, 208 P.3d 713, 722-23 (2009) (“[I]t is common
9
Our opinion in Villon was released on July 15, 2013, almost one
month after the final brief had been submitted to this court, and just one
week before we issued our order setting the case for oral argument.
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practice in this jurisdiction to include an excise tax in the
amount of the fee award.”).
E. Costs
Gurrobat seeks costs in the sum of $535.55.10 Defendants
have objected to all but $18.85 of this request. Most of
Defendants’ objections stem from their argument that costs and
fees are not available for Gurrobat’s cross-appeal. Based on
our previous analysis, Gurrobat is entitled to these costs.
Some of the requested costs, however, pertain to obtaining
an amended final judgment from the trial court. As noted
earlier, costs and fees for work done at the trial court are
best addressed there. We therefore deny Gurrobat’s request for
the cost of copies of the Rule 60 motion ($94.20) and his
request for “Copies Opp To Proposed Final Judgment Opp” [sic]
($5.80) without prejudice.
Gurrobat is therefore awarded costs in the amount of
$435.55.
F. Apportionment of Fees and Costs
In our earlier opinion in this case, we reversed the
portion of the circuit court’s judgment that held defendants
jointly and severally liable for damages, and remanded the case
for apportionment of damages. Gurrobat, 133 Hawaii at 18-19,
10
Gurrobat initially requested $555.45, but withdrew two entries in
his Reply.
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323 P.3d at 809-10. Neither party addressed the question of
apportionment of attorneys’ fees in their briefing. Therefore,
it appears Defendants concede joint and several liability.
We note in any event that Defendants elected to present a
joint defense throughout the proceedings, and that there is
nothing in the record that would provide a court with any basis
for apportioning liability for fees and costs. The question of
whether defendants may be held jointly and severally liable for
attorneys’ fees in a case where defendants are not jointly and
severally liable for damages is one of first impression in this
jurisdiction. Other jurisdictions, however, have had cause to
examine this issue, and have held that the circumstances of a
case may render attorneys’ fees indivisible, and that joint and
several liability for fees can be appropriate in such cases even
in the absence of joint and several liability for damages. See,
e.g., Molnar v. Booth, 229 F.3d 593, 605 (7th Cir. 2000) (joint
and several award of fees appropriate in case where the issues
against the two defendants “were the same or similar.”); Walker
v. U.S. Dep’t of Housing & Urban Dev., 99 F.3d 761, 773 (5th
Cir. 1996) (joint and several fee award appropriate where
defendants presented joint defense and shared experts); CR-RSC
Tower I, LLC, v. RSC Tower I, LLC, 56 A.3d 170, 218 (Md. 2012)
(imposing joint and several liability for fees and costs when
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claims centered on common issues and attributable to all
defendants).
In this case, Defendants proceeded jointly throughout the
entirety of the proceedings. Defendants were represented by the
same counsel, and submitted a single set of briefs. Although
liability for the damage award can and will be divided between
the Defendants on remand, the work that Gurrobat’s counsel put
in to the case cannot readily be divided. See Jones v.
Southpeak Interactive Corp. of Delaware, -- F.3d --, 2015 WL
309626, at *16 (4th Cir. Jan. 26, 2015). We therefore hold
Defendants jointly and severally liable for the payment of
appellate fees and costs. We emphasize, however, that this has
no bearing on our prior determination that Defendants are not
jointly and severally liable for the damage award itself.
IV. Interest
Gurrobat requests that this court award interest on the
portions of the circuit court judgment that were affirmed.
Gurrobat bases this request on the post judgment interest
provisions of HRS § 478-3 (2000), which provides for 10% per
annum interest on judgments, and on HRAP Rule 37, which
provides:
Unless otherwise provided by law, if a judgment for money
in a civil case is affirmed, whatever interest is allowed
by law shall be payable from the date the judgment was
entered in the circuit or district court. If the judgment
is modified or vacated with a direction that a judgment for
money be entered in the circuit or district court, the
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notice and judgment on appeal shall contain instructions
with respect to allowance of interest.
In this case, we did not remand the case with an explicit
direction regarding an amount of money to be entered on appeal.
Instead, we remanded for further proceedings consistent with
this court’s holdings that: (1) the imposition of joint and
several liability on Defendants was inappropriate; and (2) that
Gurrobat presented sufficient evidence to satisfy the
requirements to recover treble damages under HRS § 480-13.
Gurrobat, 133 Hawaii at 24-25, 323 P.3d at 814-15.
While remand will still result in a judgment awarding money
damages to Gurrobat, the judgment will likely not be in the
amount initially awarded. Under the circumstances, therefore,
an award of post judgment interest under HRS § 478-3 is not
appropriate.
V. Conclusion
We hold that Gurrobat is entitled to attorneys’ fees for
both his appeal and cross-appeal, in the amount of $84,032.50
plus $3,959.61 in general excise tax. We award costs in the
amount of $435.55. We hold Defendants jointly and severally
liable for payment of both attorneys’ fees and costs. We deny,
however, that portion of Gurrobat’s request that relates to work
done to obtain an amended final judgment from the trial court
without prejudice to Gurrobat seeking such costs and fees in the
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trial court. Finally, we hold that post judgment interest is
not appropriate under the circumstances.
James J. Bickerton /s/ Mark E. Recktenwald
and Stephen M. Tannenbaum
for petitioner /s/ Paula A. Nakayama
Jeffrey H.K. Sia, /s/ Sabrina S. McKenna
Diane W. Wong, and
Brandon H. Ito /s/ Richard W. Pollack
for respondents
/s/ Michael D. Wilson
35