ORDER REGARDING ATTORNEY FEES
Before the Court are various motions regarding enforcement ofPlaintiff's fee arrangements with former counsel (Docket #286, 289, 299)and requests for statutory fees pursuant to the fee-shifting provision ofthe Americans with Disabilities Act (Docket #161, 221, 224, 229, 231).1See42 U.S.C. § 12205 (1995). On November 21, 2002, the Court heardoral arguments on these motions with all relevant parties present. TheCourt now proceeds to rule on all matters still pending in thisaction.2
Plaintiff Jacquelyn Scott (f/k/a Jacquelyn Quint) originally broughteleven counts against her former employer, Defendant A.E. StaleyManufacturing Company: Counts I and II sought relief for sexualdiscrimination and harassment under the Maine Human Rights Act (MHRA) andTitle VII of the Civil Rights Act; Counts III and IV were retaliationclaims pursuant to Title VII and the MHRA; Count V asserted a claim underthe Americans with Disabilities Act (ADA); Count VI sought damages underthe MHRA for discrimination against Plaintiff on the basis of herdisability; Counts VII through X alleged Negligence, IntentionalInfliction of Emotional Distress, Negligent Infliction of EmotionalDistress and Defamation; and, Count XI sought relief pursuant to theFamily and Medical Leave Act (FMLA). The Court granted summary judgmenton all counts except V, VI and XI. On the remaining disability and FMLAclaims, the jury awarded Plaintiff $720,000 in punitive and compensatorydamages. The Court reduced that award to $300,000 pursuant to a statutorydamages cap. At a subsequent equitable remedies hearing, Plaintiff wasawarded a further $8,019 in back pay, but was denied reinstatement andfront pay.
Defendant appealed and Plaintiff cross-appealed. The First Circuitincreased her back pay award to $45,917 and remanded to the DistrictCourt for further consideration on the questions of reinstatement andfront pay. While on remand, the Court found that the parties had entereda binding settlement agreement during negotiations on August 9, 1999. OnJanuary 21, 2001, the Court enforced settlement in the amount of$485,000. That figure included the original $300,000 award, the back payaward, as well as an additional $100,000 to settle Plaintiff'soutstanding reinstatement and front pay claims. The Court of Appealsaffirmed the imposition of settlement on April 11, 2001. More than oneyear later, on April 22, 2002, the Supreme Court denied Plaintiffcertiorari.
Plaintiff has retained and terminated a number of attorneys over thecourse of the litigation. Four attorneys are relevant to the currentproceeding. Plaintiff first retained David G. Webbert of the law firmJohnson & Webbert (collectively "Webbert"), located in Augusta,Maine, as trial counsel. Plaintiff then terminated Webbert and hiredSteven Roach of the Boston firm Roach & Wise (collectively "Roach")for her first appeal. Roach also represented her on the subsequentremand, employing Webbert as local counsel. Plaintiffobjected to theimposition of settlement and terminated Roach after the August 9, 1999negotiations that lead to the settlement agreement. Plaintiff's counselin opposing settlement was A.J. Greif of the Bangor, Maine, firm Gilbert& Greif (collectively "Greif"). Greif was terminated after failing toprevent the imposition of settlement. Plaintiff has retained currentcounsel, Jeffrey Neil Young of the Topsham, Maine, firm McTeague,Higbee, Case, Cohen, Whitney & Toker (collectively "Young"), for thelimited purpose of effectuating settlement. Plaintiff presently proceedspro se on all other issues before the Court.
After various partial distributions to Plaintiff, $384,656.14 of thesettlement, including $51,519.98 in interest, remains in escrow.Attorneys Webbert, Roach and Greif seek to intervene and enforce liensupon the settlement pursuant to fee agreements with Plaintiff. Inresponse, Plaintiff demands a jury trial regarding the enforceability ofthe fee arrangements. Plaintiff also asks the Court to release an hourlyfee to Attorney Young directly from the settlement proceeds.Additionally, Defendant seeks a statutory fee award from Plaintiff forpursuit of a frivolous appeal. Finally, Webbert, Roach and Young seekattorney fees from Defendant A.E. Staley Manufacturing pursuant to theADA fee-shifting statute. See 42 U.S.C. § 12205. The Court firstaddresses the fee arrangements and then considers the requests forstatutory fees.
A. Fee Arrangements
Plaintiff contests the reasonableness of fee arrangements with threeformer counsel. She further maintains that she enjoys a right to a jurytrial regarding the reasonableness issue.3 The three attorneys allfiled motions to intervene as of right pursuant to Rule 24(a)(2) toenforce attorney's liens on Plaintiff's settlement. See Fed.R.Civ.P.24(a)(2). All have filed notices of their respective liens with thisCourt as well. (Docket #138, 197, 182.) Because Plaintiff waived allobjections to intervention at the hearing, the Court moves on to considerthe reasonableness of the three arrangements directly.
District courts may exercise supplemental jurisdiction over collateralfee disputes that would otherwise represent state law contract claims.Kalyawongsa v. Moffett, 105 F.3d 283, 288 (6th Cir. 1997) (requiringcourts to exercise jurisdiction due to concerns of judicial economy andprofessional responsibility). Exercise of supplemental jurisdiction overfee disputes also entails the authority to determine the amount of anattorney's lien brought under state law and incorporate that amount in afee award. Id. Courts also have broad supervisory power to refuse toenforce unreasonable fee agreements. See Ryan v. Miranda-VelezButera,Beausang, Cohen & Brennan, 193 F.3d 210, 214 (3d Cir. 1999); Aldermanv. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir. 1999); Boston &Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890,896 (1st Cir. 1985). This supervisory authority is derived from a court'sequity powers. See Krause v. Rhodes, 640 F.2d 214, 218 (6th Cir. 1981).
Under the Seventh Amendment a party enjoys a limited right to a jurytrial in civil matters. This right only attaches to legal actionsrecognized at common law at the time of the Amendment's adoption in1791. Tull v. United States, 481 U.S. 412, 417 (1987).
While contract disputes concerning the terms of a contingency agreementrepresent a legal dispute triable to a jury at common law,post-adjudication reasonableness determinations sound in equity and liebeyond the scope of the Seventh Amendment. See McGuire v. RussellMiller, Inc., 1 F.3d 1306, 1314-15 (2d Cir. 1993); see also ResolutionTrust Corp. v. Marshall, 939 F.2d 274, 279 (5th Cir. 1991) (per curiam)(holding that there was no legal right to recover attorney fees at commonlaw under); Cont'l Bank N.A. v. Everett, 861 F. Supp. 642, 644 (N.D.Ill.1994) (same). Because Plaintiff's reasonableness objections to the feearrangements in this matter sound primarily in equity, she has no rightto a jury trial regarding the enforceability of those arrangements.4In light of the above discussion, the Court orally denied Plaintiff'smotion for a jury trial on the fee dispute (Docket #266) at the November21, 2002 hearing.
As Plaintiff objects to the professional conduct of her formercounsel, the local rules require the Court to apply the Maine Code ofProfessional Responsibility and the Maine Bar Rules to the feearrangements. See D. Me. Local R. 83.3(d); Holbrook v. Andersen Corp.,756 F. Supp. 34, 38 n. 7 (D.Me. 1991). Rule 3.3(a) of the Maine Code ofProfessional Responsibility prohibits fees in excess of a reasonable feeas understood by a "lawyer of ordinary prudence." Me. Bar R. 3.3(a).Whether a fee is excessive is determined by examining a number offactors, including: (1) the time and labor required, the novelty anddifficulty of the questions involved, and the skill required to performthe legal service properly; (2) the likelihood, if apparent to theclient, that the acceptance of the particular employment will precludeother employment of the lawyer; (3) the fee customarily charged in thelocality for similar legal services; (4) the responsibility assumed, theamount involved, and the results obtained; (5) the time limitationsimposed by the client or by the circumstances; (6) the nature and lengthof the professional relationship with the client; (7) the experience,reputation and ability of the lawyer performing the services; (8) whetherthe fee is fixed or contingent; and (9) the informed written consent ofthe client as to the fee agreement. Id. In light of the above factors,the Court considers the reasonableness of the three arrangements inturn.
1. Fee Agreement with Attorney A.J. Greif
Greif seeks to enforce a lien in the amount of $17,736.05 againstPlaintiff's settlement. The agreement at issue is a mixedhourly-contingent fee arrangement. Because Greif was unsuccessful inachieving the contingent portion of his fee arrangement, he seeksreimbursement solely for time expended at a rate of $150 an hour and forexpenses incurred between August 24, 1999 and January 3, 2000.
Greif billed approximately 120 hours over the span of roughly 5 monthsor approximately 6 hours a week. During that period Greif prepared forand argued a motion to request reinstatement and contested a motion toenforce settlement. Given the intensive course of litigation during thatbrief period and the significant responsibility assumed by Greif inopposing settlement, Greif's fee of $17,736.05 is reasonable. SeeSchindler v. Nilsen, 770 A.2d 638, 642 (Me. 2001) (finding a fee of$15,132 for 126.10 hours worked not unreasonable as a matter of law). TheCourt therefore enforces Greif's lien and orders that the law firm ofGilbert & Greif be paid $17,736.05 from the remaining settlementamount.
Plaintiff also challenges Greif's professional conduct more generally.She alleges that he did not respond to client wishes regarding a December10, 1999 hearing on the settlement. She maintains that he failed torequest a continuance, depose certain witnesses, call certain witnessesand request that the trial Judge recuse himself. Plaintiff furthermaintains that Greif failed to adequately prepare for the hearing.Because the Court has adopted the Maine Code of ProfessionalResponsibility, it may enforce Maine disciplinary rules. See D. Me. LocalR. 83.3(d); United States v. Klubock, 832 F.2d 664, 667 (1st Cir. 1987)(en banc) (holding that district courts may adopt and enforce stateethical rules). However, Greif's actions do not rise to a violation ofprofessional conduct. Determinations of litigation strategy, such ascalling witnesses and scheduling matters, rest firmly in the hands ofcounsel. See, e.g., State v. Brewer, 699 A.2d 1139, 1146 (Me. 1997)(addressing attorney discretion in context of ineffective assistance ofcounsel claim). The Court also notes that Greif spent 5.10 hourspreparing for and attending the settlement hearing on December 10 and 3.5hours researching and preparing motions for recusal. Thus, the Courtfinds that Attorney Greif's behavior comported with the Code ofProfessional Responsibility.
2. Fee Arrangement with Attorney David G. Webbert
Webbert seeks to enforce a lien upon Plaintiff's settlement pursuant toa contingent fee agreed to by Plaintiff. The fee agreement providesWebbert 25% of the gross amount collected upon entry of a trial courtjudgment or settlement of any of Plaintiff's claims and also assignsPlaintiff's right to request statutory fees. Webbert seeks $121,250 forhis contingent fee as well as $19,543.90 in costs, totaling $140,793.90.The Court limits its present discussion to the reasonableness of theagreement.
Plaintiff argues that Attorney Webbert pressured her into signing thefee agreement without affording her ample time to review the document andmake an informed decision. She further maintains that the assignment ofstatutory fees in addition to the 25% contingency fee is unreasonable.Webbert responds that the two compromised, agreeing on the contingent feecoupled with the assignment of statutory fees due to the difficulties ofPlaintiff's case and her objections to a higher contingent fee.
Plaintiff was not pressured into the agreement. She testified at thehearing that although she had second thoughts regarding the contingentfee agreement, she was unable to find another attorney to take the case.Indeed, before agreeing to the Webbert arrangement, Plaintiff shopped theproposed contingent fee around among other attorneys. The Court finds thatPlaintiff knowingly entered into the arrangement without undue pressurefrom Webbert.
As regards the 25% fee coupled with the assignment of statutory fees,the arrangement is reasonable in light of Webbert's extensive civilrights litigation experience, the complexity of Plaintiff's case and hissuccess at trial. See Holbrook, 765 F. Supp. at 40. Consequently, Webbertis entitled to $140,793.90 in costs and fees under the agreement as wellas a $14,956.08 pro rata share of the settlement interest accrued todate.5 The Court orders payment to Webbert in the above amount fromthe settlement proceeds.
3. Fee Arrangement with Attorney Stephen A. Roach
Attorney Roach and the law firm of Roach & Wise seek to enforce alien upon Plaintiff's settlement in the amount of $72,750 pursuant to acontingent fee agreement. The agreement provided for a 15% contingent feeupon any settlement, judgment or other disposition of the matter in favorof Plaintiff. The agreement further provided that Roach would pursuecross-appeals regarding Plaintiff's right to reinstatement, her failureto mitigate damages, the trial court's back pay determination anddismissal of Plaintiff's sex discrimination claims. Additionally,Plaintiff assigned her right to request a statutory fee award.
Plaintiff maintains that the fee agreement is unreasonable becauseobtaining a favorable appellate disposition on the heels of an alreadyfavorable jury verdict does not represent a contingency. Additionally,Plaintiff again argues that recovery of both a contingent fee andstatutory fee represents an unreasonable double recovery. Roach countersthat Plaintiff's verdict was vulnerable on appeal and the possibility ofbeing overturned was a very realistic one. Moreover, he maintains that heurged Plaintiff to continue with Attorney Webbert because hiring newappellate counsel would decrease her net recovery. Ultimately, he arguesthat they agreed to a 15% contingency and the accompanying assignment ofstatutory fees to avoid imposing a total contingent fee greater than40%.6
Under the Maine Bar Rules a contingent fee is one that is dependent onthe "successful accomplishment or disposition of the subject matter ofthe agreement." Me. Bar. R. 8(a); see also City of Burlington v. Dague,505 U.S. 557, 561 (1992) (finding a fee contingent "if the obligation topay depends on a particular result being obtained"). In the present case,the agreement required Roach to pursue a cross-appeal on the back payissue as well as uphold the jury verdict. During the course of hisrepresentation Roach successfully argued for a $37,898 increase inPlaintiff's back pay award and was instrumental in the August 9, 1999settlement increasing Plaintiff's recovery by an additional $100,000.Thus, the Court finds that Roach's achievements on appeal andremand represent successful accomplishment of the subject matter of the feeagreement.
Roach's 15% contingent fee coupled with an assignment of Plaintiff'sstatutory rights is reasonable. Plaintiff knowingly entered into thesecond fee arrangement, increasing the total contingency award imposed onher settlement to 40%. She was warned by Roach that the arrangement woulddecrease her net recovery. Roach obtained significant success onPlaintiff's behalf in a difficult and complex matter. Moreover, courtsshould be reluctant to disturb contingent fee arrangements entered intoby knowledgeable and competent parties. Ryan, 193 F.3d at 215.Accordingly, the Court orders that Roach & Wise be reimbursed$72,750, as well as a $7,728 pro rata share of the interest accrued todate, from Plaintiff's settlement.7
4. Plaintiff's Request for Release of Funds to Attorney Young
At the hearing, Plaintiff requested the release of an hourly feedirectly to Attorney Young from the settlement proceeds. Thus, the Courtorders that $23,183.63 be paid to Attorney Young from the settlement inaccordance with Plaintiff's request.
B. Defendant's Request for Statutory Fee Award
Defendant requests that the Court award it $41,415 in statutory feesand $2,753.70 in costs from Plaintiff's settlement. Defendant argues thatit is entitled to fees resulting from Plaintiff's unsuccessful appeal ofthe December 23, 1999, order enforcing settlement for two reasons: (1)ADA case law recognizes an award of fees to a prevailing defendant wherethe plaintiff continued the litigation after it clearly becameunreasonable, totally unfounded, or frivolous to do so; or,alternatively, (2) district courts have general discretion to awardattorney fees where an opposing party has acted in bad faith orvexatiously.
1. Totally Unfounded, Frivolous, or Otherwise Unreasonable
The ADA fee-shifting provision grants the Court discretion to award theprevailing party a reasonable fee, including litigation expenses andcosts. 42 U.S.C. § 12205 (1995). However, a prevailing defendant isonly permitted an award under the ADA where the plaintiff's suit was"totally unfounded, frivolous, or otherwise unreasonable or that theplaintiff continued the litigation after it became clearly so." Bercovitchv. Baldwin Sch., Inc., 191 F.3d 8, 10-11 (1st Cir. 1999) (citingChristiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). Indetermining whether a claim is frivolous, the Court must examine theclaim at the time it was filed and avoid imposing hindsight upon anultimately unsuccessful claim. Tang v. R.I. Dep't of Elderly Affairs,163 F.3d 7, 13 (1st Cir. 1998) (applying the Christiansburg standard tothe Title VII fee-shifting provision). Decisions to grant fees to adefendant should be rare. Bercovitch, 191 F.3d at 11. A district courtretains discretion to deny or reduce fee applications even once a findingof frivolity has been made. Tang, 163 F.3d at 15.
Factors relevant to finding frivolity include whether the legal issuesraised were of first impression, whetherexisting precedent supports orforecloses a legal theory, and whether a plaintiff has failed to provesome prima facie element of her claim. See No Barriers, Inc. v. BrinkerChili's Tex., Inc., 262 F.3d 496, 499 (5th Cir. 2001); Bercovitch, 191F.3d at 12; Tang, 163 F.3d at 13; Andrade v. Jamestown Hous. Auth.,82 F.3d 1179, 1193 (1st Cir. 1996). The existence of bad faith is not aprerequisite to awarding a fee. Tang, 163 F.3d at 14.
In the instant case, Defendant prevailed on the contestedenforceability of the August 9, 1999 settlement. Quint v. A.E. StaleyMfg. Co., 246 F.3d 11, 15 (1st Cir. 2001). Thus, Defendant must show thatcontinuing to challenge the enforceability of the settlement agreementwas totally unfounded, frivolous or otherwise unreasonable.
Plaintiff's claims were not groundless in a legal sense at the time shefirst raised them. She argued prior to the December 23, 1999 ruling thatAttorney Roach did not have authority to settle on August 9, 1999. Theauthority argument does have some legal basis in agency law. See, e.g.,Makins v. District of Columbia, 277 F.3d 544, 547 (D.C. Cir. 2002)(addressing whether a client is bound by a settlement negotiated entirelyby her attorney). The Court held that Plaintiff orally assented tosettlement, however, defeating her authority argument.
Plaintiff then appealed on the grounds that the settlement agreementanticipated reduction of the terms to writing. Plaintiff's arguments weresubsequently dismissed by the appellate court. The lengthy course of thelitigation in this matter makes it easy to view Plaintiff's settlementclaims as frivolous in hindsight, but the Court may not impose a post hocjudgment upon Plaintiff. Because Plaintiff's claims were not entirelywithout foundation, the guiding principle that district court's shouldrarely grant fees to a prevailing defendant controls in the presentcase. See id. at 11. Moreover, even assuming that the appeal wasgroundless, this Court retains discretion to deny Defendant's feerequest. Bercovitch, 191 F.3d at 12. Thus, the Court declines to awardstatutory fees to Defendant under the fee-shifting statute.
2. Bad Faith or Vexatious Conduct
Alternatively, Defendant argues that the Court should award fees tosanction Plaintiff for bad faith or vexatious conduct. A district courtmay award fees pursuant to its inherent supervisory powers where a losingparty has acted in "bad faith, vexatiously, wantonly or for oppressivereasons." Dubois v. United States Dep't of Agric., 270 F.3d 77, 80 (1stCir. 2001) (quoting Chambers v. NASCO, 501 U.S. 32, 33 (1991)). Bad faithexists where a party knowingly or recklessly raises a meritless claim.See Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9thCir. 1997). The vexatious prong requires a showing that the losingparty's actions were frivolous, unreasonable or without foundation. Local285, Serv. Employees Int'l Union v. Nonotuck Res. Assocs., 64 F.3d 735,737-38 (1st Cir. 1995) (importing the Christiansburg frivolitystandard). When employing its supervisory power, a court should awardfees with "great circumspection and restraint" and "only in compellingsituations." Dubois, 270 F.3d at 80.
Because the vexatious test imports the Christiansburg frivolitystandard, as discussed above, Defendant has failed to demonstratePlaintiff's opposition to the settlement was unreasonable or baseless.Defendant's arguments that Plaintiff's bad faith compels the impositionof fees are equally unconvincing. Defendant haspresented no substantialevidence that Plaintiff knowingly or recklessly pursued a meritlessclaim. Rather, Defendant points to a letter authored by Attorney Webbertfollowing the August 9 settlement discussion and Plaintiff's admission attrial that the events of the 9th "probably" unfolded as Defendant haddescribed. Neither instance speaks to Plaintiff's intent in contestingthe settlement. The letter reflects only Attorney Webbert's understandingof events. The purported admission simply acknowledges that events mayhave unfolded in one manner. Consequently, the Court declines to findthat Plaintiff acted vexatiously or in bad faith.
C. Former Counsels' Requests for Statutory Fee Awards
Attorneys Young, Webbert and Roach all seek fees from Defendant asprevailing parties in this matter pursuant to the ADA fee-shiftingstatutes. See 42 U.S.C. § 12205 (1995). Defendant contests all threeaward requests and Plaintiff opposes any award to Attorneys Webbert andRoach. A prevailing party may apply for "a reasonable attorney's fee,including litigation expenses, and costs. . . ." 42 U.S.C. § 12205. Aplaintiff prevails when "actual relief on the merits of his claimmaterially alters the legal relationship between the parties." Race v.Toledo-Davila, 291 F.3d 857, 858 (1st Cir. 2002) (quoting Farrar v.Hobby, 506 U.S. 103, 11 (1992)). The reasonableness of a fee isdetermined according to the "lodestar" method. Coutin v. Young &Rubicam P.R., 124 F.3d 331, 337 (1st Cir. 1997). Under the lodestarapproach, a reasonable fee is calculated by multiplying the number ofhours reasonably expended on the litigation by a reasonable hourly rate.Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
A court may adjust the lodestar calculation on the basis of twelvefactors: (1) the time and labor required; (2) the novelty and difficultyof the question; (3) the skill required to perform the legal servicesproperly; (4) the preclusion of other employment due to the case; (5) thecustomary fee; (6) the nature of the fee (fixed or contingent); (7) thetime limitations imposed by the client or the circumstances; (8) theamount involved and the results obtained; (9) the experience, reputationand ability of the attorneys; (10) the undesirability of the case; (11)the nature and length of the professional relationship with the client;and (12) the size of awards in similar cases. Coutin, 124 F.3d at 337.Fee requests may be enhanced for exceptional results, though suchincreases should be rare due to the risk of double counting work alreadyincluded in the lodestar figure. Lipsett v. Blanco, 975 F.2d 934, 942-43(1st Cir. 1992). Additionally, a court can fine tune the lodestar figureby segregating time spent on unsuccessful claims, eliminating excessiveor unproductive hours or assigning more realistic rates to timeexpended. Coutin, 124 F.3d at 337.
In determining a reasonable hourly rate, courts should examine, "theprevailing market rate in the relevant community." Blum v. Stenson,465 U.S. 886, 895 n. 11 (1984). Prevailing market rates are those"prevailing in the community for similar services by lawyers of reasonablycomparable skill, experience and reputation." Id. Attorneys may provideevidence of prevailing market rates, such as submitting affidavits, orthe Court may rely on its own knowledge of the local legal market.Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1190 (1st Cir. 1996).
1. Attorney Young's Request for a Statutory Fee Award
Attorney Young requests an award of $5,502.50 in statutory fees andexpenses for 27.1 hours spent preparing and finalizing the settlementpapers. Young billed 25.4 of the hours at a rate of $210. Two paralegalsbilled the remaining 1.7 hours at $65 an hour. Defendant challenges thepropriety of an award to Young generally. It contends that Young served aminor role in the proceeding and largely represented Plaintiff in theeffectuation of a settlement that had already been negotiated. However,Defendant conceded at oral argument that Young was a prevailing partywithin the meaning of the fee-shifting statute for his success indefeating Defendant's motion opposing the phrase "under protest" includedby Plaintiff on the settlement release form. Plaintiff makes no objectionto Attorney Young's request.
a. Reasonable Hourly Rate
Young has been practicing employment law in Maine for approximatelytwenty years, including a significant number of discrimination cases.Although Attorney Young requests a rate of $210 an hour, he has submitteda number of affidavits attesting to the reasonableness of a rate of $185an hour. In keeping with the Court's own knowledge of legal rates in theBangor area, the Court reduces Young's requested rate to $185 an hour.The rate is reasonable for Attorney Young's limited role in the casegiven his experience and the legal community in which he practices.
b. Excessive Hours
After reviewing Young's itemized bill and Defendant's objectionsthereto, the Court further finds that the number of hours billed shouldbe reduced to exclude time that the Court has determined was eitherexcessive or redundant. Thus, the Court excludes 17.6 hours from the timebilled by Young. The reduction reflects Young's relatively minorcontribution to the settlement agreement over the span of approximatelytwo weeks. The 7.8 hour award includes 5 hours expended finalizing thesettlement and 2.8 hours spent after Plaintiff's execution of thesettlement. The Court similarly excludes the 1.7 hours of paralegaltime. Therefore, the Court hereby awards Attorney Young $1443 in attorneyfees and $58 in costs.
2. Attorney Webbert's Statutory Fee Request
Attorney Webbert requests a total award of $154,233.60 in fees andexpenses from Defendant.8 Plaintiff and Defendant make a number ofobjections to this request:
(1) Plaintiff objects that awarding Webbert statutory fees in addition to the contingent fee would constitute a prohibited double recovery; (2) Defendant contends that Webbert pursued a number of unsuccessful and redundant claims, including all the claims dismissed at summary judgment, Plaintiff's failure to accommodate claim and Plaintiff's FMLA claim; (3) Defendant argues that Webbert billed excessive time for a number of specific tasks, including digesting or summarizing depositions, trial preparation, preparation of expert witnesses and paralegal work; (4) Defendant objects to Webbert's travel and photocopying expenses; (5) Defendant objects to fees sought for the preparation of Webbert's fee application; and (6) Defendant maintains that a rate of $195 an hour is excessive in the Bangor legal community. The Court addressed these objections in turn. Additionally, the Court examines excessive or unreasonable costs resulting from Plaintiff's decision to terminate Webbert and hire out-of-state counsel for her appeal and remand.
a. Double Recovery
A court exercising its supervisory powers may assessthe reasonableness of a contingent fee arrangement whenawarding statutory fees.9 See, e.g., Ross v. DouglasCounty, 244 F.3d 620, 622 (8th Cir. 2001) (per curiam);Sargeant v. Sharp, 579 F.2d 645, 648 (1st Cir. 1978).While the initial statutory fee determination should bemade without consideration of any accompanyingcontingent fee, a court has discretion to later fashionthe award to avoid excessive compensation. Sargeant, 579F.2d at 648. However, fee-shifting statutes dictate onlywhat a losing party must pay, not what the prevailingparty has contracted to pay her lawyer. See Venegas v.Mitchell, 495 U.S. 82, 90 (1990) (holding that acontingent fee that exceeds a statutory award is not perse unreasonable or excessive). The statutes are intendedto enable civil rights plaintiffs to retain competentcounsel without cost to themselves. Id. at 87. If civilrights plaintiffs are denied the ability to assign astatutory fee in addition to promising a contingentfee, they may be unable to retain counsel, therebydefeating the purpose of the fee-shifting statute. SeeJackson v. Rheem Mfg. Co., 904 F.2d 15, 17 (8th Cir.1990); Mendoza v. Union St. Bus Co., 876 F. Supp. 8, 13(D.Mass. 1995). But see Ross, 244 F.3d at 622 (findingcontingent fee incorporating statutory fee award intogross judgment amount unreasonable and instead requiringthat the attorney be awarded the higher of the twoamounts).
In the present case, Attorney Webbert and Plaintiffcontracted at a lower contingency fee than thatgenerally sought in comparable employment litigation.Initially the parties engaged in an hourly feearrangement, but Plaintiff was unable to afford thepayments. The two then agreed to a 25% contingent fee inaddition to an assignment of Plaintiff's right torequest statutory fees because Plaintiff felt Webbert'scustomary fee of 40% was excessive. Given that theparties freely negotiated the fee contract, the Courtfinds that payment of a statutory fee award to Webbertin addition to a contingent fee does not representexcessive compensation in this matter.
b. Unsuccessful Claims
Claims that are severable should be segregated fromthe lodestar determination. Coutin, 124 F.3d at 339. Aclaim is unrelated and severable where based on factsand legal theories different from a plaintiff'ssuccessful claims. Id.; see also Lipsett v. Blanco,975 F.2d 934, 940 (1st Cir. 1992) (directing the courttoconsider whether the losing claims shared a "commoncore of facts" with the successful claims). Here,Plaintiff's unsuccessful sexual harassment and commonlaw tort claims are unrelated to her successful ADA,FMLA and MHRA claims because they rest on facts andtheories distinct from the successful disability-basedclaims. While the harassment and tort claims turned onPlaintiff's gender and tort concepts such asnegligence, defamation and emotional distress, thesuccessful claims were grounded in Plaintiff's carpaltunnel syndrome. However, Plaintiff's unsuccessfulfailure to accommodate claims share the same underlyingfacts with the disability-based claims and are,therefore, not severable. Consequently, the Courtreduces Webbert's request by $32,331.33 for time andcosts expended on the unsuccessful claims. Included inthis amount are hours billed specifically to theseverable claims, a 50% reduction in undifferentiatedtime billed prior to summary judgment on Plaintiff'ssexual harassment claims, a 10% reduction in allundifferentiated time billed before summary judgment onPlaintiff's tort claims and a proportionate reduction incosts.
c. Excessive or Unproductive Time
Whether time billed by Plaintiff is excessive orunproductive must be determined in light of howaggressively the Defense has argued its case.Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860(1st Cir. 1998); see also Lipsett, 975 F.2d at 939(noting that a bitterly contested "Stalingrad defense"should be considered by the court when addressingobjections to staffing). In the present case Defendantmounted an extremely capable and aggressive defense,posing a number of novel theories. Moreover, Defendantwas very resistant to Plaintiff's initial attempts atsettlement. Given the aggressive nature of the defenseas well as the complexity of Plaintiff's disabilitycase, Webbert's extensive preparation was warranted. TheCourt finds that no adjustment to the fee request isnecessary for trial preparation, summarizingdepositions, preparing expert witnesses or paralegalwork.
An award of out-of-pocket expenses is warranted wherethe costs are reasonable and necessary. See Palmigianov. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983) (percuriam). Costs incurred for transportation, lodging,parking, food and telephone are both reasonable andnecessary. Id. The Court finds that Webbert's travelexpenses, including the requested airfare from Augustato Houlton, Maine, and his photocopying expenses aresufficiently documented and reasonable in amount.
e. Preparation of Fee Applications
Webbert seeks $7,100 for fees and expenses incurredpursuing a statutory fee award, representing 36 hours ofwork. Attorneys may recover fees for time spent on feepetitions, provided the request falls within theparameters of reasonableness and fairness. und v.Affleck, 587 F.2d 75, 77 (1st Cir. 1978). Although thestatutory fee applications in this matter have beencomplicated by the vigorous objections of both Defendantand Plaintiff, 36 hours remains excessive. See Okot v.Conicelli, 180 F. Supp.2d 238, 249 (D.Me. 2002). Thus,the Court holds that 12 hours were productively expendedpreparing fee applications and reduces the request by$4,733.33.
f. Hourly Rate
Attorney Webbert specializes in employment and civilrights litigations andhas significant experience in thefield. He has submitted affidavits supporting therequested rate of $195 an hour. Moreover, Webbertconducted the lion's share of work on Plaintiff's case,guiding her to success at trial and playing a role inher subsequent appeal and remand. Given Mr. Webbert'sextensive experience in litigating employment lawcases, the complexity of Plaintiff's case and theprevailing rates in the Bangor and Augusta legalcommunities, the Court concludes that the requested rateof $195 an hour is reasonable.
g. Fees Sought For the First Appeal and Remand
Additionally, on October 28, 1999, the First Circuitremanded Plaintiff's fee application regarding her firstappeal for further fact-finding. In particular, theCircuit Court directed this Court to examine whether itwas reasonable for Plaintiff to retain higher-pricedout-of-state counsel to handle her appeal and the extentto which her decision resulted in reasonably avoidableduplication of effort. Webbert, a Maine attorney,requests an award for his work on remand as localcounsel for Roach, a Massachusetts attorney. However,because Webbert's work as local counsel would have beenunnecessary had Plaintiff not chosen to retainout-of-state counsel, the same duplicity concerns areimplicated by Webbert's request for fees on remand.10See Ackerley Communications of Mass., Inc. v.Somerville, 901 F.2d 170, 171 (1st Cir. 1990) (notingthat even where changing counsel is warranted, chargingthe losing party with significant duplication of effortresulting from the switch is unreasonable). In light ofAttorney Webbert's success at trial as well as hisextensive experience litigating employment law cases,the Court finds that Webbert's limited role on remandwas an unproductive and duplicative result ofPlaintiff's decision to terminate him. Accordingly, theCourt reduces Webbert's requested fee on remand by 6.95hours or $1355.25 to account for duplication of effort.
As such, the Court awards Webbert $115,813.69 in feesand costs and orders that $16,450 of that amount be paiddirectly to Plaintiff.
3. Attorney Roach's Statutory Fee Request
Attorney Roach requests a total of $54,285.83 for workconducted on Plaintiff's first appeal and $22,816.76 forwork done on remand.11 Plaintiff and Defendant makea number of objections to the requests: (1) Plaintiffobjects that the fee arrangement represents a prohibiteddouble recovery; (2) Defendant asserts that Roach'srequested hourly rate of $185 is unreasonable in lightof prevailing rates in Maine and his litigationexperience; (3) Defendant seeks a reduction in theappellate request for duplicative effort andinefficiency; and (4) Defendant maintains that Plaintiffdoes not represent a prevailing party on remand becauseshe opposed the settlement ultimately enforced by theCourt; or (5) alternatively, Defendant argues thatRoach's remand request is excessive given Roach'sfamiliarity with the reinstatement issues after hissuccess onappeal. The Court moves on to consider eachobjection.
a. Double Recovery
Roach's fee arrangement with Plaintiff does notconstitute a prohibited double recovery. The partiesprivately contracted to reach that arrangement, takingPlaintiff's pre-existing fee arrangement with Webbertinto consideration. The 15% contingent fee reflects theparties' understanding that Plaintiff would not subjectherself to a total contingent fee of greater than 40%.Consequently, the Court determines that a fee award inaddition to a contingent fee is not excessive in thiscase.
b. Hourly Rate
Attorney Roach's requested fee of $185 an hour isreasonable for an attorney of his experience in theBangor and Augusta legal markets. Roach has significantcivil rights litigation experience, including ADA,sexual harassment and gender discrimination cases.Plaintiff's case also posed a number of novel andcomplex questions of law warranting the requested fee.Moreover, his rates are supported by affidavits from twoMaine attorneys, one practicing in Augusta.
c. Appellate Fee Request
It is unreasonable to charge a losing party withsignificant duplication of effort resulting from theprevailing party's decision to change counsel. Ackerley,901 F.2d at 171. In the present case, Plaintiff incurreda number of unnecessary and duplicative costs byterminating Webbert and hiring the Boston-based Roach.Roach has already voluntarily reduced the 595.1 hoursbilled on appeal by 64.2 hours to reflect anyduplication of effort. However, given the similarityamong the issues raised at trial and those raised onappeal and Mr. Webbert's pre-existing familiarity withthose issues, the Court makes a further reduction of 90hours for duplicative and unnecessary work by Roach,amounting to $16,650. The Court also excludes two-thirdsof the hours expended by Roach on his appellatestatutory fee application, totaling $2,014.17
d. Remand Fee Request
The Court first notes that Plaintiff represents aprevailing party on remand. A plaintiff prevails when"actual relief on the merits of his claim materiallyalters the legal relationship between parties." Race v.Toledo-Davila, 291 F.3d 857, 858 (1st Cir. 2002)(quoting Farrar v. Hobby, 506 U.S. 103, 11 (1992)). Amaterial alteration occurs where a plaintiff becomes"entitled to enforce a judgment, consent decree, orsettlement against the defendant." Farrar, 506 U.S. at113; see also Richardson v. Miller, 279 F.3d 1, 3 (1stCir. 2002). Because the August 9, 1999 settlementultimately enforced by the Court was achieved by Roachon remand and resulted in an additional $100,000settlement for Plaintiff, she represents a prevailingparty.
After reviewing Roach's billing statements andDefendant's objections thereto, the Court finds that thenumber of hours billed should be reduced to exclude timethat the Court has determined was either unproductive orexcessive. On that basis the Court excludes 20.1 hoursfrom the time billed by Steven Roach and 6 hours fromthe time billed by associate Adam Whitney, totaling$4,258.50. Included in these exclusions are time spentpreparing and reviewing the reinstatement issue,responding to Defendant's discovery requests andlitigating a motion for judgment. Also excluded are 3.6hours or $666 billed as part of Roach's generalsettlement efforts, but described as "Review andAnalyze Defendant's Motion on Remand." The Court furtherexcludes 7.8 hours spent on the remand fee application,amounting to a reduction of $702.
Accordingly, the Court awards Roach $52,811.92 in feesand costs.
Based on the foregoing:
(1) The Court GRANTS Gilbert & Greif's motion to enforce its lien and ORDERS that the sum of $17,736.05 from the settlement proceeds be paid to the firm in satisfaction of the attorney's lien (Docket #299);
(2) The Court GRANTS Johnson & Webbert's motion to enforce its lien and ORDERS that $155,749.98 from the settlement proceeds be paid to the firm in satisfaction of the attorney's lien (Docket #289);
(3) The Court GRANTS Roach & Wise's motion for enforcement of its lien and ORDERS that the firm be paid $80,478.00 from the settlement proceeds in satisfaction of the attorney's lien (Docket #286);
(4) The Court GRANTS Plaintiff's request that $23,183.63 be paid directly to Attorney Young from the Settlement proceeds (Docket # 221) and ORDERS that the above amount, $23,183.63, be paid directly to the firm of McTeague, Higbee, Case, Cohen, Whitney & Toker;
(5) The Court ORDERS that the balance of the settlement proceeds, $102,356.48, be disbursed to Plaintiff;12
(6) The Court GRANTS Attorney Young's request for statutory fees (Docket #221) and AWARDS fees and expenses in the amount of $1,501.00 to the firm of McTeague, Higbee, Case, Cohen, Whitney & Toker;
(7) The Court GRANTS Attorney Webbert's request for attorney fees and expenses (Docket # 229) and AWARDS the amount of $115,813.69 to the firm of Johnson & Webbert. The Court further ORDERS that Webbert pay $16,450 of the award to Plaintiff;
(8) The Court GRANTS Attorney Roach's request for attorney fees and expenses (Docket #161, 224) and AWARDS the amount of $52,811.92 to the firm of Roach & Wise;
(9) The Court DENIES Defendant's motion for release of funds (Docket #315);
(10) The Court DENIES Defendant's application for a fee award (Docket #231); and,
(11) The Court DENIES Plaintiff's request for a partial release of settlement funds (Docket #312).
1. Plaintiff may also request attorney fees pursuantto the fee-shifting provisions of the Family and MedicalLeave Act, 29 U.S.C. § 2617(a)(3) (1998), and theMaine Human Rights Act, 5 M.R.S.A. § 4614 (2002), asa prevailing party at trial. However, the operativelanguage under all three provisions is substantially thesame and Plaintiff is entitled to only one award. See,e.g., Martino v. Mass. Bay Transp. Auth., No.Civ.A.01-10198-WGY, 2002 WL 31423602, at *1 (D.Mass.Oct. 22, 2002) (addressing an award pursuant to TitleVII and a state anti-discrimination statute). Thus, theCourt limits its discussion to the Americans withDisabilities Act provision.
2. Also pending are Plaintiff's request for a partialrelease of settlement funds held in escrow (Docket #312)and Defendant's motion for release of funds regardingthe Bill of Costs (Docket #315). As Plaintiff's requestbecomes moot in light of the Court's present order, theCourt does not address the request other than to dismissit. Defendant's request for a partial release of fundsand notice of an "equitable lien" in the amount of theBill of Costs is also denied.
3. Plaintiff also argues that former counsel is notentitled to prejudgment interest, citing Green v.Nevers, 196 F.3d 627 (6th Cir. 1999). However, Green isinapposite in the present case because the Green Courtfound former counsel's fee arrangement invalid beforedenying interest on an equitable request for quantummeruit. Green, 196 F.3d at 633. As discussed below, theCourt finds all of the fee arrangements to be reasonableand valid in the present case.
4. Plaintiff also demands a jury trial regardingAttorneys Webbert and Roach's request for statutory feesin addition to a contingent fee. The fee-shiftingstatute, however, reserves to the Court discretion toaward reasonable attorney fees to the prevailing party.42 U.S.C. § 12205 (1995). The reasonableness of acontingent fee is simply one factor to consider inmaking the statutory fee determination. See Blanchardv. Bergeron, 489 U.S. 87, 93 (1989); Sargeant v. Sharp,579 F.2d 645, 649 (1st Cir. 1978).
5. Webbert maintains that he is entitled to a greaterportion of the interest accrued after the Court's May31, 2002, partial distribution of funds to Plaintiff(Docket # 278). He seeks 31% of interest accrued on thesettlement after that date. Webbert's request for agraduated increase in his share of the interest isunnecessarily complicated. The Court will distribute prorata shares in the interests of both fairness andsimplicity. See Green v. Nevers, 196 F.3d 627, 633 (6thCir. 1999) (noting that absent statutory guidance, theaward of settlement interest is within the discretion ofthe trial court).
6. The fee agreement provides that all disputesregarding the contract are to be governed byMassachusetts law. However, Roach concedes that he issubject to the Court's supervisory powers to assess thereasonableness of the fee agreement.
7. While Roach argues for costs in addition to the15% contingent fee pursuant to the agreement, he has notsubmitted a separate accounting of his costs to theCourt. As such, the Court does not address Roach'sentitlement to any costs or expenses other than thoseincluded in the $72,750 figure.
8. Webbert intends to direct $16,450 of any statutoryfee award to Plaintiff for payments previously made tohim under an hourly fee arrangement. Plaintiff similarlyrequests that the $16,450 be awarded directly toher.
9. The Court notes that Webbert has standing topetition it directly for his fees. An attorney only hasstanding to argue for statutory fees directly providedhis client first chooses to request the fees on theattorney's behalf. Benitez v. Collazo-Collazo, 888 F.2d 930,933 (1st Cir. 1989); Bandera v. City of Quincy,220 F. Supp.2d 26, 44 (D.Mass. 2002). Once requested,the fees themselves are directed to the attorney. UnitedStates ex rel. Virani v. Jerry M. Lewis Truck Parts& Equip., 89 F.3d 574, 577 (9th Cir. 1996).However, the client may also waive, settle or negotiateher right to request statutory fees. Howard v. Mail-WellEnvelope Co., 150 F.3d 1227, 1230 (10th Cir. 1998) (percuriam). In the instant case, Plaintiff assigned herright to request the fees to Attorney Webbert in the feeagreement. See, e.g., Virani, 89 F.3d at 579 (upholdingagreement entered into by client assigning 40% of anystatutory award).
10. The Court does not address duplicative costsincurred on appeal because Defendant concedes thatWebbert is entitled to a fee award for substantive workperformed during that period.
11. As discussed above, the Court notes that Roachhas standing to request fees directly due to Plaintiff'sassignment of that right in her fee agreement withcounsel. See Howard v. Mail-Well Envelope Co.,150 F.3d 1227, 1230 (10th Cir. 1998) (per curiam).
12. The balance does not include a Court managementfee amounting to 10% of the interest accrued to date onthe settlement, or $5,152.00.