United States District Court, D. Colorado
DALE SNYDER, et al., individually, and on behalf of all others similarly situated, Plaintiffs,
ACORD CORPORATION, a Delaware non-profit corporation, et al., Defendants.
MEMORANDUM OPINION AND ORDER AWARDING ATTORNEY
L. KANE SENIOR U.S. DISTRICT JUDGE.
dismissing Plaintiffs' claims in this case, I ruled that
Joint Defendants are entitled to an award of attorney fees
under Colorado Revised Statute § 13-17-201. Order
Att'y Fees at 2, ECF No. 526. The Court of Appeals for
the Tenth Circuit has since similarly concluded that Joint
Defendants are entitled to an award of their appellate
attorney fees under § 13-17-201. 05/26/17 COA Order at
2, ECF No. 557. The matters remaining for me to determine are
the amount of the attorney fees that were reasonably and
necessarily incurred by Joint Defendants in defending this
action, both at the trial level and on appeal, and whether
Joint Defendants are entitled to an award against
Plaintiffs' counsel personally under 28 U.S.C. §
are insured homeowners whose homes were destroyed by fires or
flood damage, prompting them to bring this class action
against their insurance companies and a network of other
insurers and entities. The initial complaint was filed on
June 21, 2014. It was amended three times, eventually
resulting in the 260-page, 1, 363-paragraph Third Amended
Complaint (ECF No. 380), which asserted 23 claims-including
RICO, antitrust, and state law conspiracy
claims-against 113 defendants.
themselves into various groups, Defendants filed four main
motions to dismiss. See Defs.' Summ. Mots. to
Dismiss at 1-3, ECF No. 419. I granted the motion to dismiss
filed by Defendant State Farm, and joined by all Defendants,
on the basis that the Third Amended Complaint failed to
comply with the requirement in Federal Rule of Civil
Procedure 8(a) that a claim for relief in a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Plaintiffs
reacted by filing a 105-page motion for relief from the final
judgment. Finding that motion to be “absurdly
prolix” and Plaintiffs to have “ignored my
repeated suggestion that briefs . . . be kept to a reasonable
length, ” I ordered that the motion and its
accompanying documents be stricken. Order Mot. to Strike at
1, ECF No. 494. I permitted Plaintiffs to refile their motion
but restricted its length to ten pages. Id.
Plaintiffs submitted an amended motion, using an almost
illegible kerning. See Am. Mot. for Relief from J.,
ECF No. 497. I denied their amended motion for relief from
the judgment, and they appealed. The Tenth Circuit affirmed,
deciding that I did not abuse my discretion in dismissing the
Third Amended Complaint “for want of a simple, concise
statement of the claims, one that would provide fair notice
of the claims asserted against each defendant . . . .”
04/06/2017 COA Order at 8, ECF No. 553.
meantime, Joint Defendants moved for attorney fees under
Colorado Revised Statute § 13-17-201 and 28 U.S.C.
§ 1927. I granted the motion under the Colorado statute
but deferred ruling on the specific amount of the award and
whether Joint Defendants were entitled to fees against
Plaintiffs' counsel personally until after the appellate
mandate issued. Order Att'y Fees at 2.
affirming my order dismissing the case, the Tenth Circuit
also awarded appellate attorney fees to Joint Defendants
under Colorado Revised Statute § 13-17-201. 05/26/17 COA
Order at 2. The court remanded the case and directed me to
ascertain the amount of the appellate attorney fees that
Joint Defendants reasonably and necessarily incurred.
Id. It then sanctioned Plaintiffs' counsel in
the amount of $500 for attempting to circumvent the
type-volume limitations for appellate briefs. 07/03/17 COA
Order at 2, ECF No. 563.
remand, Plaintiffs and Joint Defendants disputed how
determination of the amount of the fee award should proceed.
I considered their respective positions and issued a
scheduling order (ECF No. 565) setting a standard briefing
schedule and requiring Joint Defendants to produce their
invoices supporting their fee request. Plaintiffs chose not
to comply with the schedule and, instead, filed a Motion to
Dismiss the Moving Defendants' Claims for Attorneys'
Fees Pursuant to Fed.R.Civ.P. 12(b)(6) (ECF No. 573) and a
Motion: (1) to Compel Basic Discovery or for Other
Appropriate Sanctions Pursuant to Fed.R.Civ.P. 26; (2) In the
Alternative, for Referral of the Parties' Discovery
Disputes to a Magistrate Judge; (3) To Modify the Scheduling
Order, and; (4) For a Hearing of Certain Factual Issues by an
Advisory Jury if Plaintiffs' Fed.R.Civ.P. 12(b)(6) Motion
is Not Granted (ECF No. 574). Perceiving those Motions to be
completely without merit and “prolix, redundant, and
meandering, ” I ordered that they be stricken. Order
Striking Pls.' Att'y Fee Mots. at 1, 4, ECF No. 578.
March 5, 2018, after both sides had submitted two briefs on
the matter-an opening brief, response, reply, and surreply, I
held an evidentiary hearing with oral argument. At that time,
Plaintiffs' counsel requested that I permit Plaintiffs to
submit updated summaries of their critique of Joint
Defendants' fee calculation. 03/05/18 Trans. at 55:13-20,
ECF No. 620. I acquiesced and authorized a supplementary
response by Joint Defendants as well. Id. at
70:19-21. In the end, then, the filings associated with this
Order are: Joint Defendants' Opening Brief for
Determination of Amount of Attorneys' Fees to be Awarded
(ECF No. 581), Plaintiffs' Brief Responding to the Joint
Defendants' Opening Brief for Determination of Amount of
Attorneys' Fees to be Awarded (ECF No. 592), the Reply in
Support of Joint Defendants' Opening Brief for
Determination of Amount of Attorneys' Fees to be Awarded
(ECF No. 598), Plaintiffs' Subsequent Brief Regarding the
Determination of Attorneys' Fees to be Awarded (ECF No.
601), the Stipulation between Plaintiffs and Certain
Defendants (ECF No. 606), the Amended Affidavit of Kevin Shea
in Support of Certain Defendants' Motion for Attorney
Fees (ECF No. 608), Plaintiffs' Summary of Attorneys'
Fees Billings (ECF No. 614), the Notice of Filing Concerning
Plaintiffs' Amended Summary of Attorneys' Fees
Billings Pursuant to Fed.R.Civ.P. 15(a)(A)(A) and
D.C.COLO.LCivR 15.1(a) (ECF No. 618), and Joint
Defendants' Reply to Plaintiffs' Summary of
Attorneys' Fees Billings (ECF No. 619).
struggled to decipher Plaintiffs' legal arguments
throughout this case. Those that pertain to the attorney fee
award are no exception. As such, the following analysis
considers Plaintiffs' positions to the extent I have been
able to extract them from the morass.
Amount of the Attorney Fee Award under Colorado Revised
Statute § 13-17-201
already found that Plaintiffs' claims in this case
sounded primarily in tort, requiring me to award attorney
fees to Joint Defendants under Colorado Revised Statute
§ 13-17-201. Order Att'y Fees at 1-2. Left for me
to determine is the amount of fees Joint Defendants
reasonably and necessarily incurred in “defending the
action.” Colo. Rev. Stat. § 13-17-201. To do so, I
must calculate the lodestar amount, which “is the
product of the number of attorney hours ‘reasonably
expended' and a ‘reasonable hourly
rate.'” Robinson v. City of Edmond, 160
F.3d 1275, 1281 (10th Cir. 1998). The moving party is
expected to submit adequate documentation supporting the
hours worked and rates claimed. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). If Joint Defendants
carry their “burden of showing that the claimed rate
and number of hours are reasonable, the resulting product is
presumed to be a reasonable fee . . . .'”
Robinson, 160 F.3d at 1281 (quoting Cooper v.
Utah, 894 F.2d 1169, 1171 (10th Cir. 1990)).
Defendants' Opening Brief on the amount of the attorney
fee award (ECF No. 581) calculated the total lodestar at $1,
775, 855.69. That amount has since been reduced by: (1) the
voluntary cut in fees by Defendant Sentry Insurance and the
Fireman's Fund Defendants, see Notices Reduction
of Fees, ECF Nos. 588 & 589, (2) the Amended Affidavit of
Joint Defendants' expert (ECF No. 608), and (3) the
abandonment of the motion for fees by Defendants Insurance
Services Office, Inc. and Verisk Analytics, Inc.,
see Ord. Withdraw Mot. for Fees at 1, ECF No. 613.
Thus, the final award sought by Joint Defendants is $1, 597,
602.66. Reply Pls.' Summ. Att'y Billings at 4, ECF
with their counsel's affidavits and fee invoices, Joint
Defendants have submitted Affidavits from the highly
experienced civil litigator Kevin Shea (ECF Nos. 581-2 to
581-15, 608, 608-1). His analysis of the fees billed is
meticulous and persuasive. To the extent Plaintiffs challenge
Mr. Shea's qualification as an expert, I find his
Affidavits are based on sufficient facts and data, his
opinions are the product of reliable principles and methods,
and he reliably applied those principles and methods to the
facts. See Fed. R. Evid. 702. Without a doubt, Mr.
Shea has employed before this Court “the same level of
intellectual rigor that characterizes the practice of an
expert in the relevant field, ” here, the practice of
law. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 152 (1999).
primary challenge to Mr. Shea's opinion is that he
allegedly does not address the principal requirement of the
lodestar method-that the hours expended by counsel were
necessary. This argument is hollow. First, Mr. Shea outlines
in detail the work that was necessary in defending the
action. Shea Aff. at 15-18, ECF No. 581-2. Second, he
specifically takes into account that many of Joint
Defendants' attorneys did not bill their clients for all
the fees they incurred and/or are not requesting all of the
fees that were actually billed to and paid by their clients.
Id. at 13. And, third, Mr. Shea reduced many of the
invoices based on his evaluation of the reasonableness of the
work performed. See, e.g., id. Ex. 6 at 2,
ECF No. 581-4; id. Ex. 14D at 1, ECF No. 581-9. His
analysis unquestionably speaks to whether the hours expended
counter Mr. Shea's conclusions, Plaintiffs do not provide
an expert opinion. Instead, Plaintiffs' counsel holds
himself out as their expert, assessing the requested fees
using a 24-factor test he concocted. Resp. Amount Att'y Fee
Award at 7 n.6, ECF No. 592. I find this approach to be
unreliable and bewildering. Nevertheless, without donning the
green eyeshade of the accountant, see Fox v. Vice,
563 U.S. 826, 838 (2011), I have gleaned from it what I can.
these submissions framing my view, I first consider whether
the number of hours for which Joint Defendants' seek
reimbursement were reasonably expended.
Reasonableness of the Hours Expended
Ramos v. Lamm, 713 F.2d 546, 553 (10th Cir. 1983),
the Tenth Circuit suggested a number of factors to be
considered in determining the reasonableness of the hours
expended. The court has summarized them as: “(1)
whether the tasks being billed ‘would normally be
billed to a paying client,' (2) the number of hours spent
on each task, (3) ‘the complexity of the case,' (4)
‘the number of reasonable strategies pursued,' (5)
‘the responses necessitated by the maneuvering of the
other side,' and (6) ‘potential duplication of
services' by multiple lawyers.” Robinson,
160 F.3d at 1281 (quoting Ramos, 713 F.2d at 553). I
approach the reasonableness inquiry and evaluation of these
factors “much as a senior partner in a private firm
would review the reports of subordinate attorneys when
billing clients whose fee arrangement requires a detailed
report of hours expended and work done.”
Ramos, 713 F.2d at 555. However, I “need not
identify and justify every hour allowed or disallowed, as
doing so would run counter to the Supreme Court's warning
that a ‘request for attorney's fees should not
result in a second major litigation.'” Malloy
v. Monahan, 73 F.3d 1012, 1018 (10th Cir. 1996) (quoting
Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203
(10th Cir.1986); Zuchel v. City and Cnty. of Denver,
997 F.2d 730, 745 (10th Cir. 1993)).
the most significant factor for determining the proper amount
of the present fee award is that Joint Defendants'
request includes only hours for which they were actually
billed by and paid their counsel. Mr. Shea gives great weight
to this fact and notes that such consideration is especially
warranted since Joint Defendants are sophisticated entities
often with long-standing relationships with their counsel.
Shea Aff. at 14, 22, ECF No. 581-2. These Defendants could
select the counsel of their choice and many negotiated
discounted rates. It is highly unlikely that counsel would
jeopardize these relationships by overbilling their clients.
Still, Joint Defendants do not seek total compensation for
all of the hours expended by their counsel or at the full
parties are instructed to “make a good faith effort to
exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary.” Hensley,
461 U.S. at 434. As discussed above, Joint Defendants'
counsel along with Mr. Shea have done just that by
eliminating both the hours expended and those billed that
were deemed to be unreasonable. See, e.g., Shea Aff.
Ex. 2A at 4, ECF No. 581-2 (counsel excluding amounts for
billed work that was possibly duplicative or for which their
client was not seeking reimbursement, totaling $72, 813);
id. Ex. 4E at 6, ECF No. 581-4 (counsel redacting
the invoices for irrelevant matters); id. Ex. 6 at
2, ECF No. 581-4 (Mr. Shea deducting $871 from the invoices
for duplication, $105 for preparing an audit response letter,
and $211 for a pro hac vice fee); id. Ex. 7 at 3,
ECF No. 581-4 (Mr. Shea eliminating $276 charged for an audit
letter); id. Ex. 8A at 4-5, ECF No. 581-5 (counsel
removing $4, 302.50 in fees which Defendant paid but was not
seeking to recover); id. Ex. 14D at 1, ECF No. 581-9
(Mr. Shea reducing the fee requested by $2, 065 for entries
reflecting the duplication of ...