Paralegal Fee Award Was Remanded Based on Consideration of Hearsay Evidence; 10% Lodestar Reduction for Inflated Hours Was No Abuse of Discretion.
Plaintiff won a gender discrimination claim against UPS, after losing other claims, under California’s state FEHA statute, which has a pro-plaintiff fee shifting claim. Plaintiff then requested FEHA claims in the diversity case of almost $1.95 million, but was awarded a little shy of $698,000 even though her compensatory award was $27,280.
UPS appealed, but the vast majority of the award was affirmed, except for a “re-do” on some paralegal time and to add time spent by plaintiff in defending against UPS’s appeal. The appeal was affirmed in a 2-1 Ninth Circuit decision, Muniz v. UPS, No. 11-17282 (9th Cir. Dec. 5, 2013) (published), with Circuit Judge Smith dissenting.
The district judge largely did not abuse any discretion in crafting the fee award.
The district judge reduced hourly rates, reduced billed hours, and then adjusted the discounted lodestar by another 10% to reflect plaintiff’s limited success. The federal appellate court had no problem with this approach, even under California state law, but did remand because lead attorney’s testimony on paralegal time was hearsay. After all, the district judge only awarded 36% of the amount requested after denying multiplier requests. Although acknowledging that plaintiffs’ fee request was inflated in nature, the 10% haircut did the job, so to speak. (A lot of the appeal hinged on the fact UPS did not really challenge many, many of the district judge’s factual findings.)
Circuit Judge Smith wanted “more math” from the district judge on limited success deductions, but the majority was satisfied that enough was done.
BLOG OBSERVATION–Circuit Judge Smith “respectfully” dissented. We have seen some cases where the dissent is more pointed or more qualified when dissenting. Any readers out there want to comment — we will publish some observations, even if you want to stay confidential in nature. Let us know.
As to the parcels post. 1910. Library of Congress.