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Category: Practice Area: Civil Rights / Public Interest

School Parents Denied Attorney Fees in Mask Dispute

May 12, 2022

A recent Law 360 story by Matthew Santoni, “Behrend Law Group Denied Fee Bid in School Mask Dispute” reports that a group of parents who sued to make a Pittsburgh-area school district keep its mask mandate were not the "prevailing party" for the purpose of awarding Behrend Law Group attorney fees just because the Third Circuit had temporarily restored the mask order, a Pennsylvania federal judge ruled.  U.S. District Judge William S. Stickman IV said he had denied the parents a temporary restraining order on the district, and they had never argued their case on the merits on appeal, so a temporary order from a single Third Circuit judge keeping the masks on until the case was dismissed was not the same as a win – and didn't merit nearly $109,000 in fees and costs that the parents' attorneys sought from the Upper St. Clair School District.

"The interim relief granted by the Third Circuit to maintain the status quo pending appeal does not constitute relief on the merits and does not render plaintiffs prevailing parties," Judge Stickman wrote.  "Plaintiffs had the burden of establishing their right to relief as prevailing parties, and the court has determined that they failed to do so.  Attorney fees are, therefore, not available."

Attorneys Ken Behrend and Kevin Miller had represented a group of parents of children with disabilities who claimed in January that the school district's decision to make masks optional while COVID-19 was still spreading would put their children at risk.  The school district, the parents claimed, had violated the Americans with Disabilities Act by forcing them to choose between risking infection and being shunted back into online learning.

Judge Stickman had denied the parents' request for an injunction, ruling that they were unlikely to succeed on the merits of their ADA claim.  But when they appealed to the Third Circuit later in January, U.S. Circuit Judge Thomas L. Ambro issued an order that temporarily granted the parents' request to keep the district's mask mandate while the case was pending.

Briefs were submitted, and the case was set for argument in March along with a similar suit from the North Allegheny School District, where a different judge had granted another group of parents' request for an injunction keeping masks.  But before the case was argued, the U.S. Centers for Disease Control & Prevention issued new guidance for measuring the level of the pandemic's spread and the necessity of masks, such that the Third Circuit declared the appeals moot.

When Behrend and Miller argued that the Third Circuit had granted the relief their clients wanted and they were entitled to fees, the school district countered that he hadn't actually gotten a ruling on the merits and therefore hadn't "prevailed." Judge Stickman agreed.  In other cases, the Third Circuit had denied fees to parties that had gotten temporary restraining orders and rulings that they had a likelihood of success on the merits, but the parents in Upper St. Clair hadn't even gotten that much, Judge Stickman said.  The Third Circuit's order wasn't enough, either, he said.

"The relief afforded to plaintiffs was not merits-based," Judge Stickman wrote.  "Here the Third Circuit's entry of a temporary emergency injunction was specifically viewed by that court as temporary.  Moreover, it did not even attempt to discuss and determine the substantive issues raised by the parties -- much less express a determination that plaintiffs had satisfied their burden to demonstrate that injunctive relief was warranted."

Without prevailing on the merits, the parents and Behrend could not seek to make the school district pay their attorney fees and were left to cover their own costs, the judge said.

Lodestar Multiplier Sought in Landmark $508M Title VII Win

May 10, 2022

A recent Law 360 story by Craig Clough, “Attys in Historic $508M Title VII Win Want Bigger Lodestar” reports that attorneys representing a class of 1,100 women in a long-running lawsuit against Voice of America asked a D.C federal judge to grant them a lodestar enhancement, arguing the extraordinary legal work that spanned four decades and resulted in a record $508 million settlement calls for such a boost.

U.S. District Judge Amit Mehta previously blocked the attorneys' bid for an additional $34 million in fees that would have brought their total award to $75 million.  Since that 2020 ruling, the parties have reached a deal on a $19 million lodestar fee award, but the class attorneys asked the court to grant an enhancement up to 4.5 times that amount.

The extraordinary if not unprecedented circumstances of the lawsuit and the record-breaking settlement amount for a case brought under Title VII of the Civil Rights Act supports the enhancement, class attorneys at Steptoe & Johnson LLP said in the motion.  Steptoe & Johnson is one of many firms that represent the class.

"If ever such a case for enhancement was presented, it is this one where, through superior lawyering and incredible determination, counsel was able to achieve — by far — the largest class-wide recovery and largest individual class member recoveries for employment discrimination in the history of the Civil Rights Act," the class attorneys said.

A group of journalists in 1977 sued Voice of America and its former parent agency, the U.S. Information Agency, in a case that eventually covered discrimination claims between 1974 and 1984 and more than 1,000 plaintiffs.  The government disputed the accusations for more than 20 years ahead of the 2000 settlement.

Bruce Fredrickson of Webster & Fredrickson PLLC led the representation of the class for more than four decades. The lodestar motion said he was assigned to the case as a young associate at Hudson Leftwich & Davenport fresh out of law school, and he has remained on the case ever since. He drafted the initial complaint for lead plaintiff Carolee Brady Hartman and first motion to certify the class before losing at trial in1979, according to the motion.  When Hudson Leftwich declined to take up the appeal, Fredrickson represented the women in his spare time until he formed his own firm in 1982.  He eventually reversed the trial outcome on appeal, according to the motion.

"Hartman went on to become the most successful employment discrimination case in history," the class attorneys said in the motion.  "While ultimately requiring additional lawyers engaged in decades of hard work and the resources of additional firms to achieve this result, it was Mr. Fredrickson, with his commitment to excellence, his brilliant strategic decisions, his tenacity in facing off against the best-financed defendant that obstinately refused to accept the judgment of liability, and his sheer perseverance that made this extraordinary success possible."

The class attorneys cited several U.S. Supreme Court cases on lodestar enhancement, including 2010's Perdue v. Kenny A. and 1984's Blum v. Stenson, which said rare and exceptional legal representation can support an enhancement.  "After decades of hard-fought litigation and unsurpassed results, it is clear that this is the rare and exceptional case which unambiguous Supreme Court precedent firmly establishes as appropriate to compensate plaintiffs' counsel for superior lawyering by awarding an enhancement above their lodestar fees," the class attorneys said.  The motion concluded with the class attorneys saying, "The greatest result in the history of Title VII deserves nothing less."

Feds Push Back on $1.9M Fee Request in GMO Salmon Action

April 28, 2022

A recent Law 360 story by Mike Curley, “Feds Push Back On Bid For $1.9M Fees in GMO Salmon Suit” reports that the federal government has opposed a motion from environmental groups seeking $1.9 million in attorney fees and costs in a suit alleging the U.S. Food and Drug Administration wrongly approved the first genetically modified salmon for human consumption, saying the "excessive" fees request follows a "narrow" suit victory.  In an opposition brief, the government said the groups, led by the Institute for Fisheries Resources, saw limited success and repeated losses in the suit, prevailing narrowly on only three of the 14 claims, including losing all claims under the Food, Drug and Cosmetic Act.

That limited success should in turn limit the amount that the court awards in fees, according to the brief, and the government said if the court decides to award fees at all, they should be capped at $246,333.37, while expenses should max out at $1,135.91.  In particular, the government said, the groups should not be able to recover fees for their unsuccessful claims, such as the claims under the FDCA and the bulk of their claims under the National Environmental Policy Act.

The plaintiffs sued the FDA in March 2016, claiming the agency's groundbreaking 2015 approval of a genetically engineered salmon for human consumption poses unknown dangers to food, health and the environment.  AquaBounty used genetic material from a Pacific Chinook salmon and from another fish, the ocean pout, to create a line of fish that grow to full size in about half the standard time, according to court documents.  U.S. District Judge Vince Chhabria in November 2020 found the FDA should have looked deeper into regulating genetically modified salmon, saying the agency didn't meaningfully analyze what might happen to normal salmon if the genetically engineered salmon were able to establish a population in the wild.

The environmental groups asked for the $1.9 million in attorney fees in March, after a previous bid — seeking $2.9 million — was rejected in February.  In March's motion, the groups said they had cut down their billable hours to 3,190.6.  In the brief, the government further argued that the plaintiffs had used "unreasonable" hourly rates that go beyond the market standards in the attorneys' home markets by using the benchmark of San Francisco rates despite three out of four core counsel working out of Portland, Oregon and Seattle.

And the hours claimed are excessive, the government wrote, with the plaintiffs presenting vague time entries and block billing that make it impossible for the government defendants to figure out what hours apply to which claims.  In addition, the time sheets include hours that are not compensable, the government wrote, such as hours spent in separate regulatory proceedings, client solicitation, media activities and challenges to the FDA's deliberative processes.

In other cases, the attorneys' time sheets included duplicative time entries for overlapping efforts among multiple attorneys, resulting in excessive hours for which they should not be billed.  The government also challenged particular time entries linked to tasks that they say were well in excess of the actual time spent on those actions, such as 240 hours marked as being spent on a procedural motion that "did not necessitate so many hours."

Finally, the government argued that the plaintiffs should not be granted any fees under the Equal Access to Justice Act, which allows fees to be granted to the prevailing party unless the government shows its actions were substantially justified.  Both the FDA's approval decision and its conduct in the litigation were substantially justified, the government argued, saying the FDA had diligently examined AquaBounty's application and the U.S. Fish and Wildlife Service concurred with its determination.  That the government prevailed on the bulk of the claims in the suit is further evidence that its position was reasonable, according to the brief, and therefore no fees should be awarded under the EAJA.

Judge Calls Out Hourly Rate Gender Disparity in Fee Award

April 25, 2022

A recent Law 360 story by Matthew Santoni, “Judge Calls Out Atty Gender Pay Gap in $760K Fee Award reports that Console Mattiacci Law LLC will collect almost $765,000 in fees for winning a $2.3 million age-bias suit against AT&T Mobility Services, after a Pennsylvania federal judge slightly trimmed the firm's requested hours and rates but noted that a less-experienced female shareholder deserved the same hourly rate as her older male co-counsel.

U.S. Magistrate Judge Timothy R. Rice noted the legal industry's gender pay gap in his opinion awarding Laura Mattiacci and Susan Saint-Antoine the same $700-per-hour rate as firm founder Stephen Console for their work in securing a jury verdict for Alison Ray, saying they hadn't shown why the court should have awarded Console the requested $900 per hour and the others $730 per hour.

"Saint-Antoine and Mattiacci are entitled to the same rate as fellow shareholder, Console, who served solely as a consultant on the case.  Historically, women in law earn less than their male counterparts, a discrepancy that may reflect hidden bias.  Saint-Antoine's experience and expertise on several of the pre-trial motions was critical in allowing the case to move to trial and Mattiacci's courtroom skills were pivotal to Ray's successful verdict," Judge Rice wrote.  "Attorneys of comparable skill and ability merit equal compensation without regard to gender or age."

The court's order trimmed Ray's request for $847,945 in fees to $764,825 by cutting the lead attorneys' hourly rates to the top level recommended by Community Legal Services, and also by cutting out hours spent on unsuccessful motions and work representing Ray in another plaintiff's age-discrimination case against AT&T.  The court awarded nearly $39,000 for costs, which AT&T did not contest.  Ray, a former sales director at AT&T Mobility Services, won $2.3 million in December 2021 after a jury found the company's "Workplace 2020" restructuring plan targeted older employees as "surplus," cut their positions and forced them to apply for different jobs if they wanted to keep working. Ray was 49 when she was laid off.

AT&T challenged many of the hours that Console Mattiacci said it had put into the case, but the judge generally supported charging for most of the work the attorneys had put in.  Factual distinctions between Ray's case and those of other AT&T employees that the firm represented in other cases meant that attorneys didn't get to reuse parts of the other employees' complaints, or recycle arguments and hours spent on their motion for summary judgment, Judge Rice said.  The attorneys' work on "mock trial" versions of the opening and closing arguments were also justified, Judge Rice said, even if the practice versions were done by another attorney on the case and had come before motions for summary judgment that could have precluded the need for trial.

"Mock trial preparation is an indispensable part of litigation.  Sharpening advocacy skills in advance of trial is as important as effective legal research and writing.  One cannot exist without the other in a courtroom. ... This is often overlooked or underestimated in fee litigation," Judge Rice wrote.  Although Ray's team took a risk in conducting the mock trial that early, he wrote, it worked in their favor because they ultimately prevailed over AT&T's motion for summary judgment, making the trial preparation necessary.

He did cut out an hour spent by a fifth attorney at the mock arguments, and cut down Console's time charged for the arguments down to an hour and a half to be consistent with the other attorneys on the case. He made other cuts for time spent on motions for protective orders or class treatment that were unsuccessful.  The attorneys' requested hourly rates were higher than what was recommended by CLS for typical Philadelphia-area lawyers with their experience, and the affidavits they submitted to support their higher request didn't convince Judge Rice, he said.

"Although Ray contends that the rates requested by Console, Mattiacci, and Saint-Antoine are the same or less than the regular rates charged for their services in non-contingent matters, she fails to present any evidence showing that any client has willingly agreed to pay such rates," the judge wrote.  And although both Console and Saint-Antoine would be worth up to $700 per hour on the CLS' recommended scale, Judge Rice praised Mattiacci's work on the case and said she'd earned more than what her experience alone would indicate.

"Although Mattiacci has been practicing law for fewer years than Console and Saint-Antoine and would warrant a rate of $530.00 based on her experience according to the CLS fee schedule, she is entitled to the same $700.00 rate as her fellow shareholder and partner given her expertise and skill as a trial lawyer," he wrote.  "Her exceptional advocacy skills helped to persuade the jury to award a significant verdict for Ray in a complex case. ... Even though the CLS fee schedule serves as a useful guide on setting hourly rates, its reference to experience should not serve as a cap that precludes exceptionally talented trial lawyers from receiving fair compensation simply because of age or gender."

School Says Parents Didn’t ‘Prevail’ for Fees in Mask Suit

April 8, 2022

A recent Law 360 story by Matthew Santoni, “Pa. School Says Pro-Mask Parents Didn’t ‘Prevail’ For Fees” reports that a Pittsburgh-area school district said it should not have to pay the attorney fees for a group of pro-mask parents who got the schools to temporarily reinstate their mask policy because the Third Circuit eventually dismissed the case as moot and the parents did not "prevail" on the merits of their argument.  Attorneys for the Upper St. Clair School District told a Pennsylvania federal court that the parents had not won anything because the Third Circuit had only granted them a temporary order maintaining the status quo for masks until they could get to briefing and arguments on the merits, then dismissed the case as moot when the Centers for Disease Control and Prevention loosened the guidelines for masking amid falling COVID-19 cases.

"The temporary relief granted by the Third Circuit was not merit based and only served to preserve the status quo while the parties were given the opportunity to argue their respective positions. Prior to resolving the pending motions or even formally assigning the case to a merit panel, the case became moot," the district's brief said.  The district said the court should refuse the request from attorneys Kenneth Behrend and Kevin Miller for nearly $109,000 in fees and costs from the school district.

Behrend and Miller had represented a group of "John Doe" parents seeking to make the Upper St. Clair School District keep its mask mandate in place while the CDC still considered the area's COVID-19 transmission rates to be "high."  Making masks optional violated the rights of students with disabilities, who were more vulnerable to COVID-19 and would have to choose between risking the disease and missing in-person class with their peers, the parents said.  A district judge initially denied the Upper St. Clair parents' request for a temporary restraining order, but on an appeal to the Third Circuit, the appellate court issued an order that said the schools should keep masks until the case had been more fully briefed and argued.

That appeal was consolidated with a similar case involving the North Allegheny School District, where a different judge had granted the temporary restraining order, but the appellate court said both cases were moot in early March when the CDC issued updated mask guidance and changed how it measured levels of COVID-19 risk for communities.

Behrend and Miller argued on March 16 that the school districts should pay their legal fees because the temporary restoration of masking was exactly what the parents had sought.  But Upper St. Clair countered that the fees were not justified because the parents' attorneys had never fully argued the merits of their case or "won" anything, and even if they had, the fees they sought were excessive and not justified.  The district pointed to the 1990 Seventh Circuit decision in Libby v. Illinois High School Association, where a girl had gotten a temporary restraining order that enabled her to play in a soccer tournament that had only allowed boys, but her case was rendered moot after her team lost.

"A plaintiff who obtains provisional relief, such as a TRO, becomes a prevailing party only if that relief was a determination on the merits or acted as a catalyst to obtain concessions from the appellee, but not where the grant of provisional relief merely preserves the status quo," the district's brief said.  "The district court denied the TRO in this case and Third Circuit merely granted temporary relief pending disposition of opposing motions.  The plaintiffs in this case achieved even less of a procedural victory than Libby and are not prevailing parties."

The district said there was never a ruling on the merits — the case had been rendered moot by a change in the CDC's assessments and guidance that meant even if the number of COVID-19 cases in Allegheny County was still relatively the same, the "community transmission rate" went from "high" to "low."

"Plaintiffs based their request for relief on a legal theory — universal masking when community transmission is 'high' or 'substantial' being the only viable accommodation under the ADA for medically fragile students — that is no longer available," the brief said.  "The lack of a ruling and the unavailability of relief will not deter future lawless conduct and the award of fees serves no public purpose."

Even if the parents were considered the "prevailing" party, the district said making it pay their fees would be unjust because the schools had been stuck facing litigation no matter which way it went on masks once a statewide mandate was struck down.  In addition to the parents claiming their children would be harmed without masks, another group of parents had joined the suit arguing their children had disabilities that prevented them from wearing masks.

And the district questioned the fees being requested, arguing the plaintiffs' lawyers had not handled educational-law cases like this one until recently and had based their fees on their years of experience in the field of consumer protection.  The hours they allegedly spent on the case appear to have overlapped with their work on the North Allegheny case, where they were separately seeking over $70,000 in fees and costs, Upper St. Clair said.