Court Discusses Substantive Fee Shifting Statute, Lodestar Factors, and Non-Cost Expense Reimbursement Issues in Recent Decision.
EEOC v. Boot, Case No. 07-CV-95-LLR (N.D. Iowa Feb. 9, 2010 Order), is an unusual decision where a United States district judge awarded $4,560,285.11 in fees and costs (broken down as $4,004,371.65 in fees, $463,071.25 in “non-cost” out-of-pocket expenses also awardable as fees, and $92,842.21 in routine costs under 28 U.S.C. § 1920) against the EEOC and in favor of CRST Van Expedited, Inc. in a Title VII sexual discrimination suit brought on behalf of 270 female drivers. It contains some very nice discussions of the fee shifting statute allowing such an award, application of lodestar factors, and items that are awardable as fees even though they are out-of-pocket expenses not recoverable as § 1920 routinely taxable costs.
Here are the highlights from this decision:
- Fee shifting statute. 42 U.S.C. 2000e-5(k) allows a district court, in its discretion, to assess attorney’s fees against the EEOC in this type of case if the prevailing defendant shows the action was frivolous, unreasonable, groundless or vexatious in nature. (Marquardt v. Lodge 837, 26 F.3d 842, 849 (8th Cir. 1994).) This standard was met because the district judge was convinced that the EEOC did not investigate before filing the complaint on behalf of 67 drivers (having no reasonable basis for the claims).
- Taxing costs for both stenographic and videotaped depositions. Under the new version of 28 U.S.C. § 1920(2), the district judge decided that–based on use of disjunctive “or” language—costs should be awarded only for stenographic or videotaped depositions, but not for both. The district court did note that there were decisions the other way, but they did not consider the current version of § 1920(2).
- Lodestar/application of national rates to the Title VII dispute. The district judge found that the case did not involve a specialized area of the law so as to justify Jenner & Block’s hourly rates that were way higher than the rates charged by defendant’s local counsel. The court lowered J & B rates to the local rates in setting the lodestar.
- Reasonable “non-cost” expenses recoverable as attorney’s fees. The district judge found that reasonable out-of-pocket expenses not within the § 1920 costs ambit could be recoverable as attorney’s fees. (Pinkham v. Camex, Inc., 84 F.3d 292, 294-295 (8th Cir. 1996).) So, for example, the court did allow recovery of such items as long distance phone expenses, messenger/overnight express expenses, investigator fees, expert witness fees, postage, travel expenses, and printing/copying costs under the fee rubric. However, the district judge did deny recovery of most mock jury fees as not being necessary for the litigation, although noting that they have been awarded in other instances. (See, e.g., Confederated Tribes of Siletz Indians of Or. v. Weyerhaeuser Co., 2003 WL 23715982 at *8 (D.Or. Oct. 27, 2003).) The court also denied computer legal research, finding that item should have been factored into the attorneys’ hourly rates. Demonstrative trial exhibit expenses were rejected based on faulty documentation.
For more information on this decision as well as a PDF link to the decision itself, see Martha Neil’s article “EEOC Hit with $4.5M Legal Fee Award In Losing ‘Pattern & Practice’ Case, Plans Appeal,” posted February 17, 2010 on the American Bar Association website (an article written for the ABA Journal).
