FILED
United States Court of Appeals
Tenth Circuit
August 16, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ELSA ANCHONDO, on behalf of
herself and all others similarly
situated,
Plaintiff-Appellee,
No. 10-2010
v.
ANDERSON, CRENSHAW &
ASSOCIATES, L.L.C.,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. 1:08-CV-00202-RB-WPL)
Submitted on the briefs: *
Steven R. Dunn, Dallas, Texas, for Defendant-Appellant.
Rob Treinen, Feferman, Warren & Treinen, P.A., Albuquerque, New Mexico,
O. Randolph Bragg, Horwitz, Horwitz & Associates, Chicago, Illinois, for
Plaintiff-Appellee.
Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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 (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, 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, 130 S. Ct. 1662, 1673 (2010).
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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
1
Among other things, ACA asserted a counterclaim for declaratory relief,
filed a motion to dismiss on the merits and on Due Process and First Amendment
challenges to the FDCPA, and opposed discovery so as to require plaintiff to file
a (partially successful) motion to compel.
2
Mr. Bragg sought compensation at an hourly rate of $465, which he has
received in FDCPA litigation elsewhere. See, e.g., Silva v. Patenaude & Felix,
P.C., No. C 08-03019 JW, 2010 WL 2000523, at *2 (N. D. Cal. May 12, 2010);
Palmer v. Far West Collection Servs., Inc, No. C-04-03027 RMW, 2008 WL
5397140, at *1 (N.D. Cal. Dec. 18, 2008). But the district court held that
prevailing New Mexico rates should apply in this case pursuant to Lippoldt v.
Cole, 468 F.3d 1204, 1225 (10th Cir. 2006), and reduced Mr. Bragg’s rate by
$165 per hour. Mr. Bragg has not challenged this reduction by cross appeal.
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“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.
3
In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19
(5th Cir. 1974), the Fifth Circuit set out twelve factors relevant to the
determination of a reasonable attorney fee: (1) the time and labor required;
(2) the novelty and difficulty of the questions; (3) the skill required to perform
the service properly; (4) the preclusion of other employment by the attorney due
to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by the client or the circumstances;
(8) the amount involved and the results obtained; (9) the experience, reputation,
and ability of the attorney; (10) the undesirability of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards in similar
cases. Francia v. White, 594 F.2d 778, 784 (10th Cir. 1979) (summarizing factors
in appendix to opinion). While “not saying that all of these need be considered,”
this court “commend[ed] them to the trial court for its use in arriving at a fair and
reasonable [fee]” in Francia, id at 782, and we have referred to them for guidance
on various occasions since.
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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.
4
Of course, to the extent ACA advances specific, record-based arguments in
connection with other objections it raises on appeal, we consider those in the
corresponding sections of our decision.
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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 . . .
(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 (also noting, however, “that
many of [the Johnson] factors usually are [already] subsumed within the initial
5
In this regard we note that a factor recognized by Hensley to be of unique
importance in particular cases–where a prevailing party has achieved only limited
success, see 461 U.S. at 434–is not a concern here.
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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.
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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 if that made it too insignificant to
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warrant Mr. Bragg’s attention. But, as the record shows, the narrowed focus of
the motion was a thoughtful strategic choice, which is part of what an experienced
practitioner brings to a legal team. It effectively thwarted an oblique attack by
ACA on the merits of plaintiff’s FDCPA action in the guise of a counterclaim for
a declaratory judgment on a critical element of the case (whether ACA’s conduct
constituted a “communication” implicating FDCPA protection). ACA also refers
here, in conclusory fashion, to the rule that duplicative work is not compensable,
citing Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1302
(11th Cir. 1988). But that very case explains “[t]here is nothing inherently
unreasonable about a client having multiple attorneys, and they may all be
compensated if they are not unreasonably doing the same work and are being
compensated for the distinct contribution of each lawyer.” Id. Counsel’s billing
records do not suggest any violation of this commonsense principle in connection
with the preparation of the motion to dismiss. 6 We cannot say the district court
abused its discretion in compensating Mr. Bragg for his professional efforts in
this regard.
ACA next complains of the 3.7 hours Mr. Bragg billed for communicating
with Mr. Treinen regarding all aspects of the case over its fourteen-month
6
Indeed, these records reflect efficient cooperation, rather than redundancy,
between Mr. Treinen and Mr. Bragg throughout their collaboration on the case.
We emphasize this point to avoid giving any impression that our decision here
constitutes an indiscriminate endorsement of multiplicitous representation.
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duration. ACA again suggests that Mr. Bragg should be denied compensation for
time not tied to an aspect of the case demanding his special expertise. We have
already rejected this basic point in other contexts, and it is no more persuasive
here than elsewhere. ACA also appears to contend that Mr. Bragg may not charge
for communications with co-counsel, citing Steffens v. Steffens, No. 99-1253,
2000 WL 702390, at *6 (10th Cir. May 26, 2000) (unpub.), as authority for
cutting fees for time spent in intra-office and inter-office conferencing. Of
course, the unpublished Steffens case is not binding on this panel, but we note that
it did not hold that conferencing with co-counsel is uncompensable. Rather,
Steffens merely upheld an exclusion of “excessive time [billed] for [such]
conferences.” Id. (emphasis added). Similarly, in Case this court upheld a
reduction in time claimed for conferencing, not because it was categorically
improper, but because counsel’s conclusory entries “did not show how much time
was spent in or what happened at conference.” Case, 157 F.3d at 1253. Here,
billing records for conferencing with co-counsel were neither facially excessive as
in Steffens nor conclusory as in Case.
ACA raises two objections to Mr. Bragg’s participation in the settlement
conference. ACA generally contends that his attendance was unnecessary, as
Mr. Treinen was there to represent the interests of Ms. Anchondo and the plaintiff
class. But this was no minor hearing; the entire FDCPA case (save fees and
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costs) was resolved–quite favorably to plaintiff 7–at the conference. It would have
been a questionable judgment by Mr. Treinen not to ensure that Mr. Bragg was
there in person to prepare and present the best case for settlement.
More specifically, ACA objects to compensating Mr. Bragg’s travel time.
It is not clear whether this objection goes beyond ACA’s meritless challenge to
Mr. Bragg’s attendance at the conference per se, but even if it does, we reject it.
We have recognized the compensability of necessary travel time, though a trial
court has discretion to apply a reduced hourly rate if the time is otherwise
unproductive. 8 See Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990).
Mr. Bragg recorded 5.8 and 5.6 hours of travel time to Albuquerque and back to
Chicago, respectively. His records reflect that he reviewed the case while en
route to the conference, but there is no entry for work on his return. Thus, at
most ACA could have asked the district court to exercise its discretion to award a
reduced fee for the return trip to Chicago. But ACA did not make such a request
in its memorandum opposing plaintiff’s fee application and we decline to hold
7
The settlement afforded compensation for class members, awarded
additional compensation for plaintiff as representative, and granted injunctive
relief to prevent ACA from engaging in the conduct that prompted the suit.
8
We note that the only authority cited by ACA in support of its challenge to
Mr. Bragg’s travel time, an unpublished district court decision out of California,
Johnson v. Credit Int’l, Inc., No. C-03-100 SC, 2005 WL 2401890, at *3
(N.D. Cal. July 28, 2005), was reversed on appeal on precisely this point, see
Johnson v. Credit Int’l, Inc., 257 F. App’x 8, 10 (9th Cir. 2007).
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that the district court abused its discretion in not granting a potential reduction
that was not presented for its consideration.
Finally, ACA complains about 3.9 hours attributed by Mr. Bragg to the
review of various orders, emails, and letters, in thirty-nine entries of .1 hour per
document. The vast majority of these documents, ACA asserts, were only one
page. We fail to see an abuse of discretion in allowing an allotment of six
minutes to the review of even single-page documents. 9
Turning to Mr. Treinen, ACA first objects to the 9.8 hours he attributed to
communication with Mr. Bragg during the fourteen-month course of proceedings
below. On its face, a mere .7 hour per month in communication with co-counsel
is not excessive. ACA insists that much time was expended on issues for which
9
Once again ACA relies on the unpublished California district court decision
in Johnson, see supra note 8, as its sole authority for challenging the billing
practice involved here. Actually, Johnson appears to be concerned with
something different:
Mr. Bragg’s custom was to itemize multiple activities that took place
on the same day. Then, because his law firm rounds up to the nearest
tenth of an hour, the result is that an activity such as preparing a fax
of a document is billed for six minutes on top of preparing the
document itself for 54 minutes. Putting aside the obvious question of
why Mr. Bragg must prepare a fax at his hourly rate of $435 when he
has a variety of assistants to call upon, this Court asks if Mr. Bragg
could have perhaps prepared the document and the fax all in the same
54 minutes, without an additional six minute charge.
Johnson, 2005 WL 2401890, at *3 (record citation omitted). In any event, to the
extent Johnson may be read to disallow the use of tenth-of-an-hour increments for
tasks such as reviewing case documents, we need not and do not follow suit.
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Mr. Bragg’s special expertise was not necessary, but, once again, ACA cites no
authority for its facially implausible premise that expert co-counsel cannot assist
on a case-related matter unless that matter is uniquely addressed to his particular
expertise. Nor has ACA identified any specific communications between
Mr. Treinen and Mr. Bragg that were unnecessary in any broader sense.
ACA asserts in conclusory fashion that experienced counsel should have
benefitted from work done in other cases, reducing the time required here, citing
Hagan v. MRS Associates, Inc., No. Civ. A. 99-3749, 2001 WL 531119, at *6
(E.D. La. May 15, 2001). This case is nothing like Hagan, where experienced
counsel inexplicably billed 10.75 hours for preparing a short complaint. Here, in
contrast, counsel billed a combined 2.4 hours for that task–clearly reflecting the
benefit of their experience in similar cases. And the amount of time attributed by
counsel to legal research overall in this case was about one-third what was billed
in Hagan–again, reflecting the benefit of their relevant legal experience. ACA’s
line of attack here is not only completely unsubstantiated by any specific facts,
but plainly belied by comparison with the very authority it cites.
ACA’s brief culminates in a plea for a substantial across-the-board cut in
counsel’s compensable hours, with an associated complaint that it is unclear from
the district court’s reasoning whether it even considered this option. Actually, the
reason there is no mention of an across-the-board reduction in the district court’s
decision is abundantly clear: the court had reviewed counsel’s billing records,
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concluded that they showed proper billing judgment, and found the hours
expended to be reasonable. That determination, coupled with the court’s prior
calculation of appropriate hourly rates of compensation, provided a fully adequate
basis for an appropriate fee award. In sum, ACA has failed to demonstrate that
the district court abused its discretion in its fee award to plaintiff’s counsel,
which we therefore affirm.
III. Plaintiff’s Request for Appellate Fees
Plaintiff has requested an additional award of fees and costs expended on
appeal in defending the district court’s award, citing Gallegos v. Stokes, 593 F.2d
372, 376 (10th Cir. 1979). While Gallegos recognized a right to such appellate
fees under the Truth in Lending Act (TLA) rather than the FDCPA, the operative
fee-shifting provisions of the Acts are identical: “in the case of any successful
action to enforce the foregoing liability [for violation of the TLA or FDCPA]” the
plaintiff may recover “costs of the action, together with a reasonable attorney’s
fee as determined by the court.” 15 U.S.C. § 1640(a)(3) (TLA) and § 1692k(a)(3)
(FDCPA). Thus, consistent with Gallegos, we hold that plaintiff is statutorily
entitled to fees and costs for this appeal. 10 See King v. Int’l Data Servs. (IDS),
10
This statutory entitlement is not dependent upon our limited authority to
order appellate sanctions under Fed. R. App. P. 38, with its requirement of a
“separately filed motion or notice” as a procedural prerequisite to consideration
of a fee award to sanction frivolous appeals, see, e.g., Smith v. Kitchen, 156 F.3d
1025, 1030 (10th Cir. 1997); Peterson v. Saperstein, 267 F. App’x 751, 755
(continued...)
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100 F. App’x 681, 682 (9th Cir. 2004) (granting appellate fees and costs under
FDCPA because “[t]his circuit has interpreted the same statutory language to
allow for attorney’s fees and costs on appeal in the [TLA]”); see also Dowling v.
Litton Loan Servicing LP, 320 F. App’x 442, 450 (6th Cir. 2009) (holding FDCPA
plaintiff awarded fees by district court “is entitled to attorney’s fees incurred in
defending the award on this appeal”); Hester v. Graham, Bright & Smith, P.C.,
289 F. App’x 35, 44 (5th Cir. 2008) (holding plaintiff who defended favorable
FDCPA judgment on appeal was entitled to appellate fees). We remand the
matter to the district court to determine an appropriate amount. See Whittington
v. Nordam Group Inc., 429 F.3d 986, 1002 (10th Cir. 2005).
The judgment of the district court is AFFIRMED. Plaintiff’s request for an
award of fees and costs on appeal is GRANTED and the matter is REMANDED
for determination of an appropriate amount.
10
(...continued)
(10th Cir. 2008), cert. denied, 129 S. Ct. 913 (2009). When appellate fees are
independently legally authorized, we have regularly considered requests in
appellate briefs sufficient to place the matter before us. See, e.g., Harsco Corp.
v. Renner, 475 F.3d 1179, 1191 (10th Cir. 2007); Wyo. Wildlife Fed’n v. United
States, 792 F.2d 981, 986 (10th Cir. 1986); Aspen Highlands Skiing Corp. v.
Aspen Skiing Co., 738 F.2d 1509, 1527 (10th Cir. 1984), aff’d, 472 U.S. 585
(1985). Thus, the request included in plaintiff’s brief, see Appellee’s Answer Br.
at 20, sufficed for that purpose here.
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