A recent NLJ story by Erin Mulvaney, “Jones Day Seeks $446K in Fees From EEOC After ‘Baseless Suit’ Goes Nowhere” reports that Jones Day lawyers are seeking hundreds of thousands in legal fees from the U.S. Equal Employment Opportunity Commission, saying federal regulators unfairly targeted CVS Pharmacy Inc. for alleged employment abuses that no judge sustained. Eric Dreiband, the lead partner for CVS in the litigation, is the Trump administration's pick to lead the U.S. Justice Department's Civil Rights Division. The dispute provides a peek into the billing practices of Jones Day.
The EEOC sued CVS in 2014 over a severance agreement the agency said limited the rights of employees to file complaints. The EEOC called the severance agreement “overly broad” and argued it was part of a CVS “pattern or practice of resistance” to restrict the civil rights of the company’s employees.
The agency lost its case, EEOC v. CVS Pharmacy, in the U.S. District Court for the Northern District of Illinois and in its appeal in the U.S. Court of Appeals for the Seventh Circuit. The appeals court concluded the agency too broadly interpreted its enforcement powers.
The dispute is back in the Seventh Circuit as Jones Day--led by partner Eric Dreiband—seeks attorney fees for the work the firm did for CVS. The district court said CVS was entitled to legal fees. Dreiband and the Jones Day team want $446,339 for 250 hours of work.
The dispute provides a glimpse at the billing practices at Jones Day. In court filings, Dreiband requested legal fees for himself and Jones Day associates. Dreiband identified his hourly rate at $560. Ninth-year associate Jacob Roth, a former clerk to the late Justice Antonin Scalia, billed at $475 per hour; Nikki McArthur at $275 per hour; and staff attorney Adria Villar at $175 per hour.
“These rates are significantly less than what Jones Day actually billed, and was paid, for the firm’s work on this matter,” Dreiband said in a declaration. “These rates are also lower than what Jones Day typically bills for these timekeepers on other similar matters.”
Dreiband, the Trump administration’s pick to lead the U.S. Justice Department’s Civil Rights Division, was the lead attorney in the case. A former general counsel to the EEOC, Dreiband was questioned at his confirmation hearing about his views on sexual orientation discrimination and voting rights. His nomination is pending.
Dreiband argued in the request for legal fees that the EEOC “concocted what it admits to be a novel interpretation of Title VII that would give the agency vast power” to challenge employment practices that it doesn’t like. He argued the EEOC exceeded its authority in filing the suit—refusing any conciliation with CVS—and issuing a press release announcing the case.
“The EEOC instead rushed to file a baseless lawsuit, and blasted CVS with an inflammatory press release falsely accusing the company of interfering with Title VII rights,” Dreiband told the appeals court.
EEOC lawyers, responding to the claims, said the agency had reason to believe it would prevail and that the fees awarded were an abuse of direction.
“Although the EEOC did not prevail, this theory—which was consistent with the statutory language and this court’s precedents—was entirely plausible, and the EEOC had no reason to believe with any certainty that it would not succeed,” EEOC lawyers told the Seventh Circuit.
John Darrah, the federal trial judge who said Jones Day was entitled to fees, concluded the EEOC had violated its own internal regulations in the case against CVS. “The EEOC’s own regulations require the agency to use informal methods of eliminating an unlawful employment practice where it has reasonable cause to believe that such a practice has occurred or is occurring,” Darrah wrote in his ruling.
Dreiband, based in Washington, was formerly the head of Jones Day’s labor and employment group. (That team is now co-led by Michael Gray and Matt Lampe.)
In his financial disclosure filed to the U.S. Office of Government Ethics, Dreiband said he would recuse from matters associated with former clients unless he first obtains a waiver. Several Jones Day lawyers who jumped to the Trump administration have received such waivers.
Dreiband’s former clients included Abercrombie & Fitch, which he represented in a case against the EEOC where the clothing company refused to hire a Muslim woman because the hijab she wrote did not comply with company dress code. He also represented the University of North Carolina in a DOJ lawsuit against the state’s so-called “bathroom bill,” tobacco company R.J. Reynolds in an age discrimination suit, Bloomberg LP in a pregnancy discrimination case and The Washington Post in an age and race discrimination suit.