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Herrington v. Waterstone Mortgage Corp.

United States District Court, W.D. Wisconsin

February 12, 2018

PAMELA HERRINGTON, both individually and on behalf of all other similarly situated persons, Plaintiff,
v.
WATERSTONE MORTGAGE CORPORATION, Defendant.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE

         Before the court is a motion for attorney fees and costs filed by plaintiff Pamela Herrington, both individually and on behalf of all other similarly situated persons. Plaintiffs have previously obtained a decision from this court confirming the arbitration award (with one modification relating to service fees), attorney fees and costs in the amount of $3, 298, 851 and an incentive fee of $20, 000 for plaintiff Herrington. Dkt. #135. Plaintiffs are moving for entry of an enforceable judgment against defendant, as well as reimbursement of the fees and costs incurred for the work done by their counsel in this court, in the amount of $101, 997.50 in additional fees and $870.62 in additional costs.

         Defendant Waterstone Mortgage Corporation objects to four aspects of the award, contending that it should be reduced by the following amounts:

• $22, 638.00 for time spent by plaintiff on an unsuccessful motion for sanctions;
• $4, 689.00 for 12.9 hours related to work performed before July 5, 2017, when the arbitrator issued a decision and partial final award on attorney fees and costs;
• $3, 287.50 for 13.4 hours spent on clerical tasks, such as updating the firm website, transferring documents from ECF and making related social media posts for promotional purposes;
• a reduction of 20% of the $71, 383.00 plaintiffs seek for 168.8 hours spent on work performed after the arbitration, principally on two motions: one to confirm/vacate and one in opposition to defendant's motion to stay on the ground that the fees sought are excessive.

         OPINION

         A. Unsuccessful Motion for Sanctions

         Fees and costs are routinely available to prevailing parties in Fair Labor Standards Act cases such as this one, Johnson v. GDF, Inc., 669 F.3d 927, 930 (7th Cir. 2012), but it does not follow that prevailing parties are entitled to reimbursement for all of the fees and costs they have incurred. As a general rule when determining attorney fee awards allowed by statute, courts eliminate hours spent on unsuccessful claims and reduce claims that seem excessive.

         In this case, plaintiffs moved for sanctions on the ground that all of defendant's arguments against confirmation of the arbitrator's award were frivolous. Although I denied the motion for sanctions in a previous order, plaintiffs maintain now that they are entitled to reimbursement for the costs they incurred in bringing the motion, because it “was reasonable when made.” Plts.'s Br., dkt. #156, at 3. They argue that such an award is in keeping with the arbitrator's practice during the arbitration proceeding to award costs to plaintiffs for work necessitated by errors made by defendant and, in addition, that the general rule for attorney fee awards is not to reject a claim for fees or penalize counsel just because some claims are denied by the court, so long as the claims are related. Hensley v. Eckerhart, 461 U.S. 424, 436 and n.11 (1983).

         As I noted in denying plaintiff's motion for sanctions, dkt. # 133, it was a close question whether the motion should be granted. Given the closeness of the question, I am not inclined to reduce plaintiffs' claim for attorney fees by the amount of $22, 638.00 for time spent on the motion. It was not unreasonable for plaintiffs to bring it.

         It is not necessary to consider the hourly rates to which plaintiffs' counsel is entitled. Those rates were confirmed by the arbitrator without objection by defendant.

         B. Work Performed ...


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