The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a trial court’s attorney fee award that reduced the prevailing plaintiff’s requested fees by over 75%, ruling that the trial court did not abuse its discretion.
A copy of the opinion in Howard Michael Caplan v. All American Auto Collision, Inc., et al is available at: Link to Opinion.
Plaintiff (“Consumer”), a self-avowed “tester” of businesses’ compliance with the Americans with Disabilities Act sued an autobody repair shop and its landlord (referred to jointly as “Business”) after visiting the shop and observing various ADA violations. The trial court granted injunctive relief and ordered Business to pay reasonable attorney’s fees and costs under 42 U.S.C. § 12205.
Consumer subsequently filed a motion for attorney’s fees requesting $41,260.30 for attorney’s fees, litigation expenses, expert witness fees, and costs; $38,014.50 of the requested amount was for attorney and paralegal fees.
The trial court granted the motion in part and denied in part finding the requested fees and expenses were “grossly disproportionate to the context and circumstances of the case” and noting that “[w]hile the ADA permits attorneys to recover fees, it does not give attorneys license to over-litigate cases at the expense of defendants who are willing to modify their property to comply with the ADA.”
The trial court ultimately determined an across-the-board reduction was warranted as the result “could have been achieved much more efficiently and far less extensively,” awarding a total of $8,579.80 in fees and expenses, $7,500 of which were for attorney’s fees. Consumer appealed.
Under the ADA, a court “in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs.” 42 U.S.C. § 12205. The fee is calculated “by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). This sum is often referred to as the “lodestar.” Ass’n of Disabled Ams. V. Neptune Designs, Inc., 469 F.3d 1357, 1359 (11th Cir. 2006).
Consumer argued that the trial court erred in finding the hours claimed in the fee request were excessive and unnecessary. The Eleventh Circuit noted that a trial court should deduct time for hours which are excessive or unnecessary as the purpose of attorney’s fees is “to compensate attorneys for work reasonably done actually to secure for clients the benefits to which they are entitled.” Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302, 1305 (11th Cir. 1988). The Appellate Court also noted any exclusions for unnecessary or excessive work are left to the discretion of the trial court. Id. at 1301.
The Eleventh Circuit found the trial court’s explanation as to why it found some work unnecessary and excessive sufficient.
The trial court explained that Consumer’s attorney’s claim that he spent 88 hours litigating the case was unreasonable, as he had at least 140 other ADA lawsuits during the subject period. The trial court further explained why it found specific categories of hours unnecessary and excessive, for example finding that Consumer’s counsel billed excessively for “boilerplate…legal tasks,” and for “clerical work or work that could have been performed by [his] paralegal.” Finally, the trial court referenced Consumer’s attorney’s billing for unnecessary motions and found that “much of the time expended was of minimal value to the ultimate result” as the same result could have been achieved “by engaging in [an] early settlement.”
Consumer made several arguments against the trial court’s findings. First, Consumer argued that the trial court abused its discretion in finding the lawsuit routine and that Consumer’s counsel billed excessively in litigating the claims, arguing that courts have lauded the policy interest served by litigating ADA cases. See., e.g. Dowdell v. City of Apopka, 698 F.2d 1181, 1190-91 (11th Cir. 1983).
The Eleventh Circuit rejected this argument noting that despite any recognized policy interest, attorneys are not authorized by § 12205 to expend unreasonable hours to achieve it. See Norman, 836 F.2d at 1301-02. In addition, the Eleventh Circuit agreed with the trial court’s finding that the case was a straightforward ADA case in which the defendant agreed to correct the violations, Consumer’s counsel had extensive experience in the area, and many of the filings involved “boilerplate” motions and pleadings.
Consumer next argued that the trial court abused its discretion by finding that Consumer prolonged the litigation. In support of this finding, the trial court referenced Consumer’s counsel’s actions at mediation, where despite being shown a proposal for corrections of the remaining violations, counsel filed a motion for sanctions because the owner of the autobody shop who was elderly and ill was not able to attend mediation. The trial court further noted that counsel’s approach to the litigation was overly aggressive as Business had agreed to fix the violations. Thus, the Eleventh Circuit found the trial court did not abuse its discretion in finding Consumer’s counsel prolonged the litigation resulting in unnecessarily increased attorney’s fees.
Finally, Consumer argued that the trial court erred in classifying certain tasks as administrative, finding the entries for reviewing the docket excessive and finding the time Consumer’s counsel spent on drafting the motion for fees as not compensable. The Eleventh Circuit once again found Consumer failed to show the trial court abused its discretion.
Consumer next argued that the trial court abused its discretion in failing to hold an evidentiary hearing to determine if the case could have been settled earlier. Consumer relied on the ruling in Love v. Deal, 5 F.3d 1406, 1409 (11th Cir. 1993) where the court held “[i]t is not necessary for a plaintiff to request an evidentiary hearing. Rather, the essential factor is whether there is a dispute of material fact that cannot be resolved from the record.” Id.
The Eleventh Circuit noted this statement in Love conflicted with its earlier holding in Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th. Cir. 1988), which held that making an award without an evidentiary hearing was an abuse of discretion “where an evidentiary hearing was requested, where there were disputes of facts, and where the written record was not sufficiently clear to allow the trial court to resolve the disputes of fact.” Norman, 836 F.2d at 1302-03 (11th Cir. 1988).
The Eleventh Circuit held it was bound by the precedent set forth in Norman, as the “earliest precedent that reached a binding decision on the issue.” Washington v. Howard, 25 F. 4thh 891, 900 (11thh Cir. 2022). As the record showed that Consumer never requested an evidentiary hearing, the Appellate Court ruled that the trial court did not err in failing to hold such a hearing as consumer had “failed to meet the first prerequisite for obtaining a hearing.” Thompson v. Pharmacy Corp. of Am., Inc., 334 F.3d at 1245-46.
Finally, Consumer argued that the trial court erred in applying a 75% across-the-board reduction. A court may apply an across-the-board cut where the fee application is voluminous and the “number of hours claimed is unreasonably high.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350. When an across-the-board cut is applied the court must “concisely and clearly articulate [its] reasons for selecting specific percentage reductions” so there can be “meaningful review.” Loranger v. Stierheim, 10 F.3d at 783 (11th Cir. 1994).
The Eleventh Circuit rejected Consumer’s argument that the across-the-board reduction was conclusory as the trial court explained in detail the reasons why it found the hours excessive, unnecessary and thus, unreasonable.
Thus, the Appellate Court found the trial court’s order “articulate[d] the decisions it made, [gave] principled reasons for those decisions, and show[ed] its calculation” to allow for “meaningful review.” Loranger, 10 F.3d at 781.
Thus, the Eleventh Circuit found the trial court did not abuse its discretion and affirmed the order.