ROGER W. TITUS, District Judge.
World-renowned poker expert Kenny Rogers once sagely advised, "You've got to know when to hold `em. Know when to fold `em. Know when to walk away."
Freeman, as a regular part of its hiring process, conducted criminal background checks on all applicants who were offered a position, and conducted credit background checks on applicants who were offered financially sensitive positions.
After being rejected by Freeman based on information in her credit report, Katrina Vaughn filed a charge of discrimination with the EEOC. Id. at 789. Based on this charge, the EEOC filed a complaint in this Court alleging that Freeman's use of background checks had a disparate impact on African-American, Hispanic, and male job applicants. Id. On April 27, 2010, the Court dismissed all claims relating to hiring decisions made before March 23, 2007, the date 300 days before the original charge of discrimination was filed on January 17, 2008. ECF No. 19. On January 31, 2011, the Court granted Freeman's partial motion for summary judgment and dismissed all claims relating to hiring decisions based on criminal background checks made prior to November 30, 2007, the date 300 days before September 25, 2008, when the EEOC first notified Freeman that it was expanding its investigation to include race discrimination based on the use of criminal background checks. ECF No. 43. On August 24, 2012, the EEOC voluntary dismissed with prejudice its claim that Freeman unlawfully discriminated against Hispanics.
On July 18, 2012, the EEOC served Freeman with the expert report of Dr. Kevin R. Murphy. ECF No. 186 at 9. After Freeman pointed out various errors in the report, the EEOC served a second expert report that purported to fix those errors on July 26, 2012.
On August 9, 2013, the Court excluded the EEOC's experts and granted Freeman's motion for summary judgment. ECF No. 150. Freeman subsequently moved for attorneys' fees. ECF No. 154. After filing its appeal, ECF No. 166, the EEOC moved to stay proceedings related to Freeman's motion for attorneys' fees. ECF No. 172. The Court granted that motion over Freeman's opposition. ECF No. 176. The EEOC also moved to amend the record for appeal with Murphy's report tendered at the motions hearing, ECF No. 177, and the Court granted that motion, again over Freeman's opposition. ECF No. 181.
The Fourth Circuit affirmed the Court on February 20, 2015. EEOC v. Freeman, 778 F.3d 463 (4th Cir.2015). Freeman submitted a renewed motion for attorneys' fees that included those fees incurred on appeal, ECF No. 186, and has further supplemented its request to account for fees incurred defending its fee request. ECF No. 197.
The EEOC has, understandably, taken a keen interest in employers' use of background checks to make hiring decisions.
However, before the EEOC can get to the question of business necessity, it must actually make out a prima facie case of disparate impact, and before it can make out a prima facie case of disparate impact, it must actually produce reliable statistical evidence showing that a particular employment practice has a disparate impact on a protected class. Id. at 791. The EEOC is not entitled to require an
Title VII provides that "the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee (including expert fees) as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." 42 U.S.C. § 2000e-5(k). By its terms, this provision allows either a prevailing plaintiff or a prevailing defendant to recover attorneys' fees. However, the award of attorneys' fees to a prevailing plaintiff involves different considerations than an award to a prevailing defendant. The prevailing plaintiff is acting as a "private attorney general" in vindicating an important federal interest against a violator of federal law, and therefore "ordinarily is to be awarded attorney's fees in all but special circumstances." Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416-17, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). The opposite is true of a prevailing defendant. A prevailing defendant not only is not vindicating any important federal interest, but the award of attorneys' fees to prevailing defendants as a matter of course would undermine that interest by making it riskier for "private attorney generals" to bring claims.
In assessing whether to assess attorneys' fees against a plaintiff, it is important that a court not engage in minute, post hoc questioning of a plaintiff's claims and conduct in light of plaintiff's failure on the merits. EEOC v. Great Steaks, Inc., 667 F.3d 510, 517 (4th Cir.2012). However, there is "neither a precise test to be used, nor a specific quantum of proof required, in determining whether a plaintiff's claim was unreasonable." Propak Logistics, 746 F.3d at 151. A decision to award fees is committed to the discretion of the Court, which is in the best position to assess the considerations relevant to the conduct of litigation. Id.
It is black letter Title VII law that, in order to make out a prima facie case of
Simply reciting this black letter law meets several of the EEOC's arguments in its opposition to an award of attorneys' fees. First, the EEOC asserts that its case is not factually groundless. ECF No. 191 at 5. The basis for this argument appears to be that it may have been possible for the EEOC to show evidence of a disparate impact, and it just so happened to fail here. Id. at 5-7. But the possible existence of evidence somewhere to back up a claim does not constitute reasonable grounds for continuing to litigate that claim. Cases are litigated based on evidence actually produced, not hunches, however reasonable those hunches may be. Without reliable statistical evidence produced by an expert, which is entirely absent here, the EEOC simply could not make out its prima facie case. The factual lack of reliable expert testimony showing a disparate impact was fatal to the EEOC's disparate impact claim in this particular case, even if in some alternate universe (or simply by hiring a better expert), the EEOC could have made out a claim.
The EEOC also could not reasonably rely on general population statistics to make out its prima facie case. It is true that, in some circumstances, general population statistics will suffice to show that a particular policy has a disparate impact. See Griggs v. Duke Power Co., 401 U.S. 424, 430-32, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). However, an examination of Griggs, the first Title VII disparate impact case, puts the folly to the EEOC's argument that it could have done so here. In Griggs, an employer had a facially neutral requirement that an applicant be a high school graduate. Id. at 427-28, 91 S.Ct. 849. The Supreme Court reversed the district court's dismissal of the complaint, reasoning that, despite the lack of discriminatory intent, the fact that African-Americans had lower high school graduation rates in the employer's state meant that the policy had a discriminatory impact, and that Title VII allowed such claims. Id. at 429-32, 91 S.Ct. 849. The difference between Griggs and this case is obvious. In Griggs, the challenged policy, a high school graduation requirement, and the general population statistic, high school graduation rates, were the exact same. Griggs simply does not apply to a case where the challenged policy is not congruent with the general population statistic being offered as proof of a disparate impact.
In addition to Griggs, the EEOC cites several cases for the proposition that "[l]ower federal courts have also accepted external population proof in a variety of contexts despite arguments that they did not perfectly match the facts of the case." ECF No. 191 at 10. An examination of each of these cases reveals that none supports this argument, even by analogy.
In Peightal v. Metropolitan Dade County, 26 F.3d 1545 (11th Cir.1994), a white applicant challenged, on equal protection grounds, a fire department's affirmative action policies. The Eleventh Circuit noted that, for a government employer to show a compelling interest in combating discrimination that would justify using affirmative action, "statistical comparisons between the employer's work force and the composition of the relevant population are probative of a pattern of discrimination."
In Carpenter v. Boeing Co., 456 F.3d 1183, 1197 (10th Cir.2006), the Tenth Circuit noted that "the population selected for statistical analysis need not perfectly match the pool of qualified persons." However, the EEOC could not have reasonably relied on that case. First, the plaintiff's expert in that case did attempt to set out a specific methodology for constructing a representative sample which, as explained below, the EEOC's expert here never did. Id. at 1194-95 (describing expert's process for defining similarly situated employees and measuring the appropriate statistics to determine disparate impact). Moreover, in that case, the Tenth Circuit still determined that the expert's conclusions were unreliable. Id. at 1198-99. It is curious that the EEOC would rely on a case that is directly contrary to its position to support the notion that its position was legally reasonable.
The cases cited by the EEOC to support the reasonableness of its reliance on general population statistics are simply inapplicable. They support the proposition that general population statistics will be allowed where those statistics are completely congruent with an employment criteria, as in Griggs, or where a limited number of data points, in an otherwise refined sample, do not perfectly align with the general population data. The cases do not support the proposition that a plaintiff is entitled to rely on general population statistics divorced from any reference to the defendant's employment practices without any attempt to control for those practices.
It has been clear since at least 1989, when the Supreme Court decided Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), that refined, statistical comparisons are necessary to make out a disparate impact claim. Id. at 650-51, 109 S.Ct. 2115. The EEOC's attempt to use general population statistics illustrates the rationale underlying Wards Cove, which is that an employer should not be held liable for disparities that are not caused by its employment practices. Id. at 651, 109 S.Ct. 2115 (refusing to hold employer liable for disparities caused by "reasons that are not [the employer's] fault"). The EEOC focused on general background statistics such as arrest and incarceration rates, and the racial disparity in those with "good" or "bad" credit histories. E.g. ECF No. 121 at 15-16; ECF No. 186-14 at 23. But Freeman was not generally concerned about arrests at all, and was not concerned about all convictions, or about whether those convictions led to incarceration. Instead, Freeman was concerned about only particular types of convictions. Similarly, Freeman was not concerned about whether an applicant had "good" or "bad" credit. Rather, Freeman was concerned about
Even if general population statistics were appropriately tailored in this case, the EEOC overlooks a key issue, which is noted in the cases cited by the EEOC, yet ignored by it: in order to use general population statistics that do not match the particular employment criteria instead of statistics from the employer, the missing statistics must be impossible or extremely difficult to obtain. See Carpenter, 456 F.3d at 1199 (noting, in excluding statistics that were insufficiently tailored, that "Plaintiffs have not established that the data necessary to establish the impact on CBA-qualified workers were unavailable"); Peightal, 26 F.3d at 1556 n. 17 (noting that district court properly included undifferentiated statistics where "no differentiated population statistics exist based upon the level of education of minorities"); see also Wards Cove, 490 U.S. at 651, 109 S.Ct. 2115 ("Alternatively, in cases where such labor market statistics will be difficult if not impossible to ascertain, we have recognized that certain other statistics ... are equally probative for this purpose.").
Here, it was not impossible for the EEOC to obtain the relevant data from Freeman that it needed to do the appropriate statistical analysis. The data necessary to determine the impact of Freeman's use of background checks was available, because it was provided by Freeman in discovery. Freeman, 961 F.Supp.2d at 793 (noting that Freeman "clearly demonstrated that it properly supplied the EEOC during discovery with complete background check logs for the entire period covered by the complaint."); Freeman, 778 F.3d at 469 (Agee, J., concurring) (same). Accordingly, the EEOC could not have reasonably hoped to rely on general population statistics in the event that its flawed expert reports were excluded, because it could not have possibly demonstrated that the relevant data was unavailable.
The upshot, then, is that the EEOC could not reasonably pursue its claims unless
As made clear in the opinions of this Court and the Fourth Circuit, Murphy's report was severely flawed. His conclusions were drawn from an unrepresentative sample, even though data was available from which a representative sample could be drawn. Freeman, 961 F.Supp.2d at 793-94. He excluded data from much of the relevant time period, and excluded data from most of Freeman's branches. Id. at 794-96. He cherry-picked data. Id. at 795. Worse yet, his reports contained a "mind-boggling number of errors," most of which were introduced by Murphy. Id. at 796. The question is not whether Murphy's reports were flawed, because they clearly were. The question is if they were so flawed that it was unreasonable for the EEOC to litigate in reliance on them.
Freeman's motion to exclude Murphy's expert report revealed the alarming number of flaws in his report, without which the EEOC had no case. That motion detailed flaws on the face of the report, flaws with the data set used in the report, and multiple material errors in the report. ECF No. 108-1. Given those deep and obvious flaws, the EEOC could not possibly continue to rely on Murphy's initial report, which is likely why the EEOC had Murphy submit yet another report, which still had many of the same flaws as the original report.
It is difficult to read the opinions this case has generated, in this Court and in the Fourth Circuit, and come away with any notion that the EEOC had any reasonable basis to rely on Murphy's reports. This Court described Murphy's analysis as "completely unreliable," noted the "plethora of errors and analytical fallacies," and called his attempt to correct his analysis "laughable." Freeman, 961 F.Supp.2d at 793, 796. All three judges on the Fourth Circuit's panel agreed, noting the "sheer number of mistakes and omissions in Murphy's analysis," and characterizing these errors as "troubling." Freeman, 778 F.3d at 466-67. Judge Agee wrote a concurring opinion for the sole purpose of chastising the EEOC for its "disappointing litigation conduct," based primarily on the EEOC's reliance on Murphy's shoddy work. Id. at 468. In Judge Agee's opinion, it "was not a close question." Id. Finally, Judge Agee expressed concern that the EEOC continued defending Murphy's work despite Murphy's storied history of having similarly flawed analysis excluded and sharply criticized by other federal courts. Id. at 468-71.
All of which is to say, no set of objective eyes has yet looked at Murphy's work and considered it anything but inexcusably slipshod and wholly unreliable. The Court recognizes that exclusion of evidence does not always mean that a defendant is entitled to attorneys' fees. But this is not a case where a questionable or novel scientific method was challenged and an expert was excluded on that basis in a close case, or where an expert's understandable failure to cross a few "t's" and dot a few "i's" necessitated exclusion. This was not close and it was not excusable. This was a case where an expert employed no method whatsoever (except to disingenuously cherry pick data), and seemed to go out of his way to introduce errors into his analysis. These flaws were
Although the EEOC defended Murphy's initial report, it also submitted a series of supplemental reports in an attempt to stave off exclusion and preclude summary judgment. ECF No. 121-1. Freeman and the EEOC dispute whether it was reasonable for the EEOC to believe it could supplement Murphy's report. That argument is moot, however, if the supplemental reports could not save Murphy's analysis, which is the case here. As Freeman demonstrated, Murphy's first supplemental report suffered from many of the same flaws as his initial report. Murphy claimed to augment his analysis to include more background checks from the relevant time period and from branches not covered in his initial analysis. Id. at 14. While this was true, a review of the data Murphy used shows that he still did not attempt to construct a representative sample, but yet again simply included data in his sample without any regard for whether that data fairly represented the population he was studying. For example, Murphy's new data set, while it included data from all of Freeman's branches, underrepresented the number of background checks performed at some branches and overrepresented the number of background checks performed at others. E.g. ECF No. 130-1 at 12. And Murphy failed again to use all of the discovery materials available to him to construct a more complete sample. Id. at 11. Finally, his supplemental report still contained an unreasonably large number of errors.
The EEOC attempted to supplement Murphy's report yet again, with a declaration by Murphy served on Freeman a month after briefing closed, and proffered to the Court at the hearing on Freeman's motions. ECF No. 177-1. Amazingly, the EEOC attempts to rely on this report even
Moreover, there is absolutely no reason to take Murphy at his word that his third attempt at doing a passable statistical analysis was any better than his first two attempts. In this regard, Murphy's first supplemental report was accompanied by a declaration which he swore "under penalty of perjury" was "true and correct to the best of my knowledge." ECF No. 121-1 at 24. Yet, that declaration contained a number of blatant falsehoods. For example, Murphy claimed that any errors in his original report originated in Freeman's data. ECF No. 121-1 at 5. Yet, in most cases this was not true. Freeman, 961 F.Supp.2d at 796 n. 7. Murphy also claimed that he had removed pre-July 20, 2006 credit check analysis from his data, but he had not. Id. at 796. Given Murphy's apparently cavalier attitude towards submitting sworn declarations, there is no reason to assume that Murphy's second sworn declaration was any better than his first. Thus, even if the EEOC reasonably believed it could supplement its reports, it could not have reasonably continued to litigate based on supplements that had the same flaws as Murphy's initial report.
The EEOC did not face a high burden to avoid paying Freeman's reasonable
To determine the reasonableness of a fee request, courts calculate a lodestar figure by multiplying the number of reasonable hours expended by a reasonable rate. Robinson v. Equifax Info. Svcs., LLC, 560 F.3d 235, 244 (4th Cir. 2009). The factors to be considered in determining reasonableness are:
Id. at 243-44.
The fee applicant bears the burden of establishing the reasonableness of a requested hourly rate. Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.1990). "In addition to the attorney's own affidavits, the fee applicant must produce satisfactory specific evidence of the prevailing market rates in the relevant community for the type of work for which he seeks an award." Id. (internal quotation marks omitted). Evidence sufficient to verify the prevailing market rate "include affidavits of local lawyers familiar with the type of work involved, the relevant community, and the skills of the fee applicants." Life Tech. Corp. v. Life Tech., Corp., 2012 WL 4748080, at *1 (October 2, 2012). Appendix B of the Local Rules for the District of Maryland sets forth presumptively reasonable rates, but these guidelines are non-binding. Freeman seeks the following above-guidelines hourly rates for its attorneys, paralegals, and other litigation support staff:
ECF No. 186-1 at 5-6.
With the exception of Hyland Hunt, more fully discussed below, these rates are reasonable. The EEOC argues that these rates are unreasonable because "Defendant and its witnesses have failed to identify what the prevailing rates (or range of
This case involved a complex legal question with potentially serious ramifications for Freeman's business interests. Not only was Freeman facing over $3 million in liability in this lawsuit, but also its ability to control the quality of its applicant pool was threatened, which could have realistically led to such negative consequences as more frequent incidents of embezzlement and fraud, workplace violence, and exposure to negligent hiring claims. Also, the EEOC had made challenging background checks a priority, indicating that the litigation could be particularly difficult. Finally, Freeman's attorneys had a high level of skill and expertise commensurate with their experience. In light of all of these factors, the slightly above-guidelines rates requested by Freeman are reasonable. Life Technologies, 2012 WL 4748080 at *2 (awarding above-guidelines fees for complex matter involving highly skilled attorneys).
However, a rate of $480 for Hyland Hunt, who was admitted to the bar for only five years when the appeal in this case began, is not reasonable.
Once a reasonable hourly rate is determined, a reasonable number of hours must be determined. "A prevailing party may not recover fees for excessive, redundant, or unnecessary hours." Id. Freeman's attorneys have exhaustively documented the hours spent on this litigation. ECF No. 193-6 (hours spent in this Court); ECF No. 193-7 (hours spent on appeal); ECF No. 197-1 (hours spent defending fee petition). The EEOC has just as exhaustively documented its objections to those hours. ECF No. 191-4. Instead of reviewing each item and objection line-by-line, the Court will review the EEOC's general objections, and indicate whether those objections have merit and warrant an across the board reduction in the fee
The EEOC objects to Freeman's entries reflecting its work with amici on appeal, constituting a total of $15,233 in attorneys' fees.
Freeman responds with two unpublished district court opinions allowing fees for work dealing with amici. Riter v. Moss & Bloomberg, Ltd., 2000 WL 1433867, at *5 (N.D.Ill. Sept. 26, 2000) (holding that time spent coordinating with amici is "a reasonable use of time as it prevents duplication of the issues among the several briefs" and awarding fees); Watson v. E.S. Sutton, Inc., 2007 WL 2245432, at *4 (S.D.N.Y. Aug. 3, 2007) ("[T]he time [plaintiff's] counsel spent reviewing and working with the EEOC on its appellate amicus curiae brief is recoverable."). Except in the Eleventh Circuit, whether to allow attorneys' fees for time spent dealing with amici appears to be a matter committed to the sound discretion of the Court.
The Court does not see any value in a rule that categorically excludes all attorneys' fees incurred dealing with amici. Rather, whether time spent dealing with amici is reasonable turns on the degree to which amici could be reasonably helpful to the resolution of issues in a case.
Here, the intersection between background checks and Title VII is an evolving area of the law, one in which the EEOC has taken a keen interest, and which has potentially far-reaching consequences for employers throughout the country. Amici could reasonably have been expected to present various relevant arguments in support of Freeman's position to the Fourth Circuit to help it resolve the complex issues presented. Thus, the Court will allow these fees to be recovered, in the amount of $14,303, which reflects Hyland Hunt's reduced hourly rate.
The EEOC objects to the hours spent by Freeman's legal team preparing a PowerPoint presentation for the motions hearing, hours that represent $42,629.50 of its fee request. ECF No. 191 at 32-33. The EEOC cites Firestine v. Parkview Health System, Inc., 374 F.Supp.2d 658, 668 (N.D.Ind.2005), where the district court disallowed half of the 74.7 hours related to preparation of a PowerPoint presentation used at a 2.5 day trial.
The EEOC objects to excessive hours spent on summary judgment briefing. There are two aspects to the EEOC's argument. First, to the extent Freeman repeated the same arguments in its summary judgment motion as it did in its motion to exclude, it argues that those
Having filed a motion to exclude that would, if granted, have vitiated a necessary element of the EEOC's prima facie case of discrimination, Freeman understandably filed a motion for summary judgment. But however confident Freeman may have been that the motion to exclude would succeed and thus would entitle it to summary judgment, it was not required to present only that ground as a basis for summary judgment, nor was it required to wait until after a ruling on its motion to exclude to move for summary judgment, especially where it had identified several alternative arguments supporting its request for summary judgment. "[T]here is no requirement that counsel pursue potentially dispositive issues in a case in a piecemeal fashion, rather than presenting all potentially dispositive claims at one time in a properly filed motion for summary judgment." Reeves v. United Parcel Services, 2007 WL 2326891, at *6, 2007 U.S. Dist. LEXIS 102332, at *16-17 (D.S.C. July 20, 2007). It was perfectly acceptable for Freeman to put forth every non-frivolous argument in its arsenal that would support summary judgment. There were many good reasons to do so. Freeman was not required to assume the Court would view the exclusion issue in the same way it did. Rather, it was allowed to hedge its bets and make its motion for summary judgment as strong as possible. Moreover, presenting multiple arguments supporting summary judgment allowed the Court to potentially rule in Freeman's favor on multiple alternative theories, which could bolster Freeman's chances of prevailing on appeal. Christiansburg placed a relatively light burden on the EEOC to litigate reasonably. It did not place a burden on Freeman to pull its punches in attempting to dispose of the case.
Nor was Freeman's motion for summary judgment so duplicative of the motion to exclude as to render the time spent on it unreasonable. Freeman advanced a number of alternative, non-frivolous arguments unrelated to its motion to exclude, including that white males could not sustain a Title VII cause of action under a disparate impact theory, that it was entitled to summary judgment for male claimants who applied for jobs prior to May 31, 2008 because those claims were time-barred, and that it was entitled to summary judgment for claimants who lied about their criminal history on their employment application. ECF No. 114-1 at 2. Indeed, the bulk of the argument section of Freeman's summary judgment brief is dedicated to these alternative arguments. Id. That the Court ultimately did not need to reach these arguments does not justify reduction of the fee. See Stark v. PPM America, Inc., 2003 WL 21223268, at *4 (N.D.Ill. May 23, 2003). Therefore, Freeman will be allowed to recover the full amount of its fees incurred after December 18, 2012, for its summary judgment motion.
The EEOC objects to fees sought by Freeman in presenting its unsuccessful opposition to the EEOC's motion to stay
"Where a [party] has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation ... In these circumstances, the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Freeman obtained excellent results. The question is not necessarily whether individual motions were successful, or whether research into various courses of action resulted in a decision not to oppose a motion, but whether the hours spent on those issues "were expended in furtherance of the litigation of the case as a whole and centered on a common core of facts and related legal theories." Durham v. Jones, 2012 WL 3985224 at *8 (D.Md. Sept. 10, 2012).
In regards to Freeman's unsuccessful oppositions to the EEOC's motions to stay briefing on the motion for attorneys' fees and to supplement the record, neither of those oppositions appears to have been frivolous, so there is no justification for denying those fees outright. See Cross v. Fleet Reserve Ass'n Pension Plan, 2010 WL 3609530, at *8 (D.Md. Sept. 14, 2010) (awarding fees for hours spent on unsuccessful motions where hours spent were reasonable and efforts were not "unreasonable or in bad faith."). In addition to the fact that these were not frivolous oppositions, they were necessitated by the fact that the EEOC had filed an unreasonable appeal. To categorically deny fees that would not have been expended but for the EEOC's frivolous appeal would make little sense. However, because these motions were unsuccessful, the Court will reduce the fees requested by 50%, reducing the fee award by $9,756.
The Court will allow in full the hours spent considering filing an opposition to the EEOC's motion to stay execution of costs, notwithstanding that it did not ultimately file an opposition. "A competent attorney will explore various theories and lines of argument, some of which may entail motions of one kind or another, but not all of which will — in the end — prove to be advisable courses of action." Alfano v. CIGNA Life Ins. Co., 2009 WL 890626, at *4 (S.D.N.Y. Apr. 2, 2009). Freeman was not required to consent to a stay of execution of costs without spending time considering the effect of a stay and the viability of an opposition. Even though it ultimately decided to consent to that motion, it was not unreasonable to consider an alternative course and spend time researching the consequences of that course. The question is whether the hours that were spent were reasonable, and there is no indication that they were not.
The EEOC objects to $3,840 for Teslik's attendance at the motions hearing, and $1,015 for Koerner's attendance, even though neither attorney offered argument. Generally, the guidelines allow recovery for the attendance of only one attorney at hearings. However, departure from this guideline is appropriate where there is a valid reason to have multiple attorneys attend a hearing. Here, the complexity of the case, the number of arguments presented,
Freeman seeks $211,146 for 450 hours expended on the appeal. ECF No. 193-7 at 43. The EEOC objects to many of the hours expended on appeal as "duplicative and excessive," because the issues on appeal were fully briefed before this Court. ECF No. 191 at 51-52. While it is true that the legal issues presented on appeal were the same as those briefed in this Court, that does not necessarily make the number of hours expended on appeal excessive. District court proceedings and appellate proceedings are different. Although, in the most general manner, the facts and legal arguments are the same, presenting a persuasive appeal requires much more than simply reformatting the briefs presented to the district court to conform with the style requirements of the appellate court, and 450 hours is not an unreasonable amount of time to research and prepare proper arguments to present on appeal.
The EEOC cites Goodwin v. Metts, 973 F.2d 378 (4th Cir.1992) and Spell v. McDaniel, 852 F.2d 762 (4th Cir. 1988) for the proposition that courts have reduced fees sought for appellate work where that work was duplicative and unnecessary in light of previous work done on the case in district court. While that argument is true as far as it goes, an examination of those cases shows that they do not support the EEOC's position that the fees Freeman seeks reflect work that is duplicative and unnecessary. In Goodwin, the prevailing party sought compensation for 640 hours of appellate work, 190 hours more than Freeman is seeking, and the Fourth Circuit affirmed the district court's reduction of those hours by 50% to 320 hours, 130 hours less than Freeman is seeking. Goodwin, 973 F.2d at 380, 385. In Spell, the Fourth Circuit affirmed a reduction in hours sought for appellate work from 1,431.1 hours to 420 hours, only 30 hours less than Freeman is seeking here. Spell 852 F.2d at 767-768. Goodwin and Spell do stand for the proposition that a reduction in a fee award is warranted where appellate counsel largely duplicate the efforts of trial counsel. However, they do not stand for the proposition that 450 hours represents such a duplication of effort. If anything, Spell indicates that an award of 450 hours is well within the discretion of the Court to allow. Given the complexity of the legal issues presented on appeal, several of which were issues of first impression in the Fourth Circuit, 450 hours is reasonable, and the Court will not disallow any of the hours Freeman spent on the appeal.
As supplemented, see ECF No. 197, Freeman seeks $164,713.50 in fees for time spent preparing its fee petition. The EEOC objects that this is "plainly unreasonable" because the motion "simply recaps
Thus, at the merits phase of this case, Freeman won so long as it was right. To be entitled to attorneys' fees, it must show not only that it was right, but that it was so right that the EEOC's continuation of the litigation was unreasonable. If the EEOC can cite any authority whatsoever to support the positions it put forth in the merits phase — and it has tried — Freeman is not entitled to recover its attorneys' fees. That it would need to spend a significant number of hours ensuring it could credibly argue that the EEOC's positions were meritless is not surprising. Moreover, the EEOC lodged over 1,000 objections to Freeman's fee request, ECF No. 191-4, which Freeman had to address in its reply.
In addition to attorneys' fees, Freeman is seeking the following in experts' fees:
The EEOC objects to these fees on various grounds.
Freeman seeks recovery of $223,455 incurred by Donald Deere for 584.8 hours of work, primarily related to analyzing the data used by Murphy to support his conclusions. ECF No. 186-1 at 6. The EEOC objects to this amount.
The first basis for this objection is that Freeman previously represented to the Court that Freeman employee Suzanne Bragg conducted the analysis necessary to reveal the plethora of errors in Murphy's reports, yet now claims that it used expert Dr. Deere to conduct that analysis. ECF No. 191 at 44-45. Thus, it argues that Freeman should be estopped from recouping the fees it spent on a "hidden expert" who actually performed the work where it misrepresented to the Court the true source of that work. Id. However, Bragg's declaration does not state that she, and only she, conducted the analysis necessary to reveal the errors in Murphy's data set. It states that this analysis was conducted under her direction, and states
The EEOC's second basis for objection is that Freeman had no need to retain an expert to review Murphy's report when the flaws of the report were, according to Freeman, so obvious that continuing to litigate on the basis of that report was unreasonable. ECF No. 191 at 45-46. This argument is a red herring. Murphy's report was facially flawed in obvious ways. It was also flawed in less obvious ways, as Freeman discovered when it conducted a deep dive into the data. Freeman was not required to rely solely on the obvious facial flaws to support its motion to exclude Murphy's report. It was reasonable to engage experts to expose in detail just how flawed Murphy's report was. Freeman cannot be faulted for litigating hard just because the EEOC litigated unreasonably.
The EEOC also argues that Freeman has not submitted evidence of the reasonableness of the rate charged by Dr. Deere. Id. at 46. However, Freeman submitted a declaration by Donald R. Livingston indicating not only that the rates charged by Dr. Deere were reasonable, but also that those were the rates actually charged to Freeman. ECF No. 186-1 at 7-8. This is sufficient evidence to demonstrate the reasonableness of Dr. Deere's rates. Cf. Life Technologies Corp., 2012 WL 4748080 at *1 (noting that "evidence of what the prevailing party's attorney actually charged the client in the case at hand" is sufficient to demonstrate reasonableness of rates). The EEOC does not rebut this evidence.
Although the Court finds that the EEOC's objections are without merit, the award for Dr. Deere's work will be reduced by $126,875 to $96,580, which reflects the amount of work done before Freeman filed its motion to exclude.
Freeman seeks $11,124.50 in fees paid to expert Dr. Mary Baker, but only $643.50 survives the Court's decision to award only those fees incurred after Freeman filed its motion to exclude. Nevertheless, the Court assumes the EEOC would maintain its objections and will consider them.
The EEOC objects that Dr. Baker's work was duplicative of Dr. Deere's work. ECF No. 191 at 47-48. It does appear that much of Dr. Baker's work consisted of confirming Dr. Deere's work. However, that is reflected by the fact that Freeman is only seeking to recover $11,124.50 for Dr. Baker's work — and is only recovering $643.50 — compared to $223,455 for Dr. Deere. It was reasonable for Freeman to have a second expert confirming the complex work undertaken by another expert.
The EEOC also objects to several of Dr. Baker's billing entries such as "review documents" and "literature review and research" as impermissibly vague. ECF No. 191 at 47. Vague as they are, Dr. Baker's declaration, submitted with Freeman's motion to exclude, provided detail about what documents she reviewed and what literature she consulted. ECF No. 108-28. This is sufficient information to allow an award of fees. EEOC v. Peoplemark, Inc., 732 F.3d 584, 595 (6th Cir. 2013) (upholding award of expert's fees
With those reductions taken into account, the total fee the Court will award to Freeman is $938,771.50.
The EEOC needed to stop pursuing this case after Freeman showed that the EEOC's dog did not hunt. Once Freeman filed its motion to exclude, it should have been obvious to the EEOC that its dog had a variety of debilitating infirmities. The hunt was lost. Instead, the EEOC continued pursuing a lost cause. As a result, Freeman is entitled to its reasonable attorneys' fees. By separate Order, the Court will award Freeman $938,771.50 in attorneys' fees.
Upon consideration of Defendant's Renewed Motion for Attorneys' Fees [ECF No. 185], the opposition and replies thereto, argument of counsel, and for the reasons set forth in the accompanying memorandum opinion, it is, this 3rd of September, 2015, by the United States District Court for the District of Maryland,