Fee Order Admonishes Plaintiff’s Firm for Claiming “Cut & Paste” Work as Original – Slices Fee Request 75%, Warns of Future Sanctions

While the use of form pleadings is not unusual, it becomes dicey when attorneys seek fees from their use of forms as “original work.” But when you use a fee petition that itself is a form pleading and claim it too is “original work,” you are going to draw the ire of several federal district court judges in the Third Circuit. Yesterday, one plaintiff’s firm was front and center for a lesson on the use and abuse of form pleadings, drawing an admonishment from a Federal Judge sitting in the Eastern District of Pennsylvania that “it may not continue with impunity to describe ‘cut and paste’ efforts as original or advance arguments and evidence it knows to be baseless.”1

Strong words for an order on a fee petition, but as the court noted, its decision was simply the latest of five opinions in the past few months reaching the same conclusion concerning the firm’s work. 2 And, as the opinion goes on to explain, the courts’ tolerance of the practice has come to an end.

You could suppose the firm’s argument unwise that it does not take an “‘assembly line’ approach to handling FDCPA cases,” and that its pleadings “do not read like ‘cookie cutter’ vague allegations from a generic form,” since the argument itself was “copied from work it had done in earlier cases” and rejected time and again. 3

As that great scholar Dr. Seuss once said, “I like nonsense, it wakes up the brain cells.” 4

In awarding the firm fees of $3,053 and costs of $350, the Court concluded that since the same arguments and evidence advanced in the present fee petition have been uniformly rejected by courts in the Third Circuit, “it is difficult to accept that the firm has advanced either in good faith.” 5 If it “continues this course of conduct, it may well be subject to sanctions.” 6

This latest decision came out of a “simple Fair Debt Collection Practices Act case,” where defendant, six days following its answer to a “boilerplate complaint,” made a Rule 68 Offer of Judgment that plaintiff accepted. Plaintiff moved for fees and costs of slightly more than $10,000.00, claiming the litigation required four lawyers, three paralegals and an “IT Specialist” who together billed 32.2 hours. 7

The opinion is available here.

1 Zavodnick v. Gordon & Wineberg, P.C., 10-cv-02125-PD, *2 (E.D. Pa. June 6, 2012).

2 Id, at **2, 8.

3 Id, at 6.

As quoted in Wisdom for the Soul: Five Millennia of Prescriptions for Spiritual Healing (2006) by Larry Chang, p. 376

5 Id, at 14.

6 Id.

7 Id, at **1,3.

 

 

 

 

 

 

 

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Donald Maurice provides counsel to the financial services industry, successfully litigating matters in the state and federal courts in individual and class actions. He has successfully argued before the Third, Fourth and Eighth Circuit U.S. Courts of Appeals, and has represented the financial services industry before several courts including as counsel for amicus curiae before the United States Supreme Court. He counsels clients in regulatory actions before the CFPB, and other federal and state regulators and in the development and testing of debt collection compliance systems. Don is peer-rated AV by Martindale-Hubbell, the worldwide guide to lawyers. In addition to being a frequent speaker and author on consumer financial services law, he serves as outside counsel to RMA International, on the governing Board of Regents of the American College of Consumer Financial Services Lawyers and on the Governing Committee of the Conference on Consumer Finance Law. From 2014 to 2017, he chaired the ABA's Bankruptcy and Debt Collection Subcommittee.