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California Agency Seeks Attorney Fees in LSAT Matter

July 18, 2018 | Posted in : Expenses / Costs, Fee Entitlement / Recoverability, Fee Request, Fees for Fees / Fees on Fees, Hourly Rates

A recent The Recorder story by Karen Sloan, “LSAT Maker Owes $529K in Fees, Calif. Agency Asserts,” reports that the California Department of Fair Employment and Housing has requested more than a half million dollars in attorney fees from the Law School Admission Council for its work related to the LSAT developer’s violations of a consent decree.

A federal judge in March held the council in civil contempt for violating the court-ordered rules governing accommodations for disabled test takers—a development the California department set in motion last fall when it filed court papers detailing what it alleged were the council’s efforts to circumvent the 2014 consent decree. U.S. District Judge Joseph Spero of the Northern District of California extended the consent decree, which was set to expire in May, for two more years as a result.  Spero also ordered the council to pay for the department’s fees and costs.  (The council denied any intentional violations, saying it tried to operate within the complicated and costly set of best practices established under the consent decree.  The council also said it quickly corrected compliance problems identified by the California department.)

On July 13, the California department filed a request for $529,341 in attorney fees and an additional $4,077 in expenses for its work on the motion for contempt of court.  According to the fee motion, the department’s team of attorneys spent months investigating the council’s compliance with the consent decree and conferring with the council before the parties reached an impasse and it asked the court to find the council in civil contempt.  It said it plans to request additional fees incurred during the fee motion process.

“The significant work required for the contempt motion is undisputed,” reads the department’s fee motion.  “LSAC itself has repeatedly acknowledged it.  When requesting additional time to file the opposition to the motion, even though LSAC did not bear the burden of proof, LSAC noted it would take ‘a significant amount of time to respond to a pleading of this nature.’”

In a statement issued Tuesday, the council called the California department’s fee request “unreasonable,” and said such an amount would reduce the resources available to support Law School Admission Test takers.  “We would certainly prefer to settle this matter on fair and reasonable terms without the need for additional litigation, but as a nonprofit organization we cannot agree to an unreasonable fee that is far beyond what is allowed under the terms of the consent decree,” the council said.

The fee request covers 934 billable hours by three department attorneys and one legal fellow who is a 2017 law school graduate.  The department eliminated an additional 830 billable hours and did not include work provided by five other attorneys, according to the fee request.  The department argued that its billing rates should be based on the prevailing rate among attorneys in San Francisco.  Accordingly, the department requested an $850 hourly rate for senior attorney Mari Mayeda, a $425 rate for two midlevel attorneys, and a rate of $290 for the legal fellow.

The litigation surrounding LSAT disability accommodations dates back to 2012, when the department first sued the council alleging that its accommodation procedures were too burdensome for test takers and violated the Americans with Disabilities Act.  The U.S. Department of Justice intervened in that litigation and in 2014 the parties announced a consent decree under which the council would stop alerting law schools when LSAT takers were given extra time on the exam.  The council also agreed to pay $8.7 million to 6,300 people who applied for accommodations between January 2009 and May 2014 and change how it handles test accommodations.