United States District Court, E.D. Virginia, Richmond Division
MICHAEL T. DREHER, Plaintiff,
EXPERIAN INFORMATION SOLUTIONS. INC., Defendant.
A. Gibney, Jr. United States District Judge.
matter is before the Court on the plaintiffs motion for an
award of attorneys' fees related to his individual claim.
Dreher filed this suit under the Fair Credit Reporting Act
("FCRA"), 15 U.S.C. §§ 1681 et
seq, against Expcrian and other credit reporting
agencies. Originally, he claimed that not only had they
erroneously reported that he had a delinquent debt, but they
also did not properly correct their records when he gave them
the correct information. After settling with the other credit
reporting agencies, he proceeded with his suit against
Experian. During discovery, Dreher recognized another
potential claim, based on a systemic flaw in Experian's
process of reporting credit information about customers of
Advanta Bank. He amended the complaint to add a claim that
Experian falsely told customers that Advanta provided credit
information to Experian, when the information really came
from a different company (the "Advanta claim"). The
Advanta claim went forward as a class action.
agreement, the parties put Dreher's individual claim on
the back burner while they fought tooth and nail over the
class claim. Eventually, the Court entered judgment against
Experian on the class claim, which Experian has appealed.
During the appeal of the class claim, the parties resumed
their fight on the individual claim. After some skirmishing,
they resolved the individual claim through an offer of
judgment for $65, 000. The judgment included Dreher's
costs related to the individual claim, but not his
attorneys' fees. The issue of attorneys' fees for the
individual claim is the subject of the motion before the
asks for $95, 360.50 in attorneys' fees related to the
individual claim. In typical fashion, Experian has raised a
Stalingrad defense to the claim for fees, finding multiple
flaws in the application. Experian raises five objections.
Experian says the Court can only award attorneys' fees
for the entire case, not separately for the individual and
class claims. The FCRA authorizes fees for "the action,
" apparently not envisioning a bifurcation such as
happened here. 15 U.S.C. § 1681n(a)(3). Arguing that the
statutory term, "the action, " is a singular noun,
Experian says the Court can only award fees once, and cannot
break up "the action" for an award of fees.
Experian cites no case authority for this position, which
seems to run afoul of Federal Rule of Civil Procedure
54(d)(2). Rule 54(d)(2) requires a prevailing party to move
for fees within fourteen days of entry of judgment. The Court
has, of course, entered judgment for Dreher, based on
Experian's offer of judgment, so the time to
file a request for fees is right now.
Court notes that Experian wants to play this card both ways.
When it did not want Dreher's individual claim to
prejudice a jury regarding the (much larger) class claim,
Experian was all for splitting the individual claim off. When
it came to saving a considerable sum by turning off defense
counsel's fee meter, Experian offered a judgment Dreher
could not refuse on the individual claim alone. But when it
now comes to paying Dreher's relatively minor fee
request, suddenly Experian thinks things should wail until
the end of the class claim. Undoubtedly, had Dreher waited
until then, Experian would say that the application was late
under Rule 54(d)(2) because it came more than fourteen days
after entry of judgment. Experian cannot have it both ways.
The Court overrules this objection.
Experian says that the plaintiffs lawyers' hourly rates
are too high and that the lawyers spent too much time on the
case. Dreher has provided the Court with an affidavit by a
well-known and able attorney who handles many consumer
protection cases. The lawyer says that both the hourly rates
and amount of time are reasonable. Experian has produced
nothing to rebut the affidavit.As Experian admits. Dreher is
entitled to a reasonable fee. The only evidence
before the Court is that the fee is
reasonable."Given the evidence in the record, this
objection borders on frivolous.
Experian suggests that Dreher did not really get the amount
of money his lawyers say he received from the $65, 000
settlement. As nearly as the Court can tell, this defense
stems from some sort of hallucination. Dreher has produced a
copy of a cashed check payable to him in the precise amount
the lawyers said he received. This just shows that before you
slyly call someone a liar, you should at least know what the
final two arguments are related: that the time spent on the
individual claims and the class claims are inextricably
interwoven, and that the plaintiffs attorneys should have
produced original time records to help separate out the
individual and class hours. For a time, the parties
simultaneously litigated both the individual and class
claims, so they rang up fees on both claims.
plaintiff has provided a facially reasonable explanation of
how the attorneys separated out the time on the individual
claim from the work on the class claim. Once again, Experian
offers no evidence to contradict the explanation. As Experian
points out, however, a review of the original time sheets in
this case could shed additional light on the effort spent on
the respective claims. In fact, the time sheets might even
provide some credence to one of Experian's otherwise
unsupported objections: that the plaintiffs lawyers spent too
much time on the case and charged too high
to judge the legitimacy of the plaintiffs fees is to look at
the defendant's fees. By viewing the work done by both
parties, the Court can better judge how interwoven the work
on the class and individual claims has been, how much time
the lawyers should have devoted to particular assignments,
and how many particular undertakings the parties had to do.
In addition, the billings will show what level of competence
(reflected in higher fees by more senior attorneys) is
appropriate for the various tasks in the case. Accordingly,
the Court will require both parties to produce their entire
billing records-for both the class and individual claims. The