[00:00:03] Speaker 00:
Case number 15-70-03 at L. Kathy Radke at L. Appellant versus Maria Caschetta at L. Mr. Sahl for the appellant, Mr. Seymour for Niki Karai, and Ms.

[00:00:15] Speaker 00:
Kruger for the appellees.

[00:00:20] Speaker 05:
Good morning, Your Honors.

[00:00:21] Speaker 05:
Mike Hassell, joined by my colleague, Dennis Chong, for the appellant.

[00:00:25] Speaker 05:
I'm hoping to reserve three minutes for rebuttal.

[00:00:28] Speaker 05:
May it please the court

[00:00:30] Speaker 05:
The district court's decision in this case violated several of the cardinal rules that are to govern attorney's fees awards in civil rights cases.

[00:00:42] Speaker 05:
I'd like to begin with the issue of proportionality.

[00:00:45] Speaker 02:
Can I ask you to bring aside all kinds of cardinal rules?

[00:00:48] Speaker 02:
Isn't your main point that the district court got a key fact point wrong?

[00:00:55] Speaker 05:
I guess I have several main points, but that's a pretty big one in the list.

[00:00:59] Speaker 02:
Well, you say, the district court said, as plaintiff's counsel's inability to provide a meaningful demand for the actual damages suffered that is driving me to reduce the fee.

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You emphasize that, right?

[00:01:08] Speaker 02:
Yes, absolutely.

[00:01:09] Speaker 02:
And then you cite about ten places where you did provide damages remedy.

[00:01:14] Speaker 02:
Yes, absolutely.

[00:01:15] Speaker 02:
So isn't that the end of this appeal?

[00:01:16] Speaker 02:
Why do we need to discuss anything else?

[00:01:18] Speaker 02:
If you're right about that.

[00:01:20] Speaker 02:
And then we have no idea what's driving him, if this was the thing that was driving him.

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And if this is inaccurate, don't we have to send it back for a whole new determination?

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By the way, it's going to be complicated since he's retired.

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So it'll have to be sent back to somebody else.

[00:01:38] Speaker 02:
But nonetheless, if you are right, and I don't know looking so far without yet hearing from the other side, it looks like you're right on the facts.

[00:01:49] Speaker 02:
Then we've got to blow the whole thing up and start over again.

[00:01:54] Speaker 02:
Yes, Your Honor.

[00:01:56] Speaker 02:
All right.

[00:01:57] Speaker 02:
You can continue to make the rest of the arguments if you want.

[00:01:59] Speaker 05:
Go ahead.

[00:02:00] Speaker 05:
All right.

[00:02:01] Speaker 05:
I certainly don't want to waste the Court's time, but I will appreciate having the opportunity to point out that there is a little bit of uncertainty.

[00:02:09] Speaker 05:
The Supreme Court's decision in Purdue dealt with an upward adjustment from the lodestar.

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And it did a superb job of synthesizing jurisprudence, which had been a little uncertain in the times in the 10, 20 years which preceded.

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Now, in the federal circuit, the court has been very clear that there is no reason

[00:02:43] Speaker 05:
to provide a different analysis, to use a different analysis when we're talking about upward or downward adjustments from lodestar.

[00:02:53] Speaker 02:
Purdue is about the attorney's prowess, right?

[00:02:56] Speaker 02:
That's what the case is about.

[00:02:58] Speaker 02:
The question is, the load store already builds in the fact that these are great attorneys, and for that reason, you can't go up unless it's something really special, right?

[00:03:07] Speaker 05:
Well, I would go beyond that, Judge Garland, because it also would reflect a lawyer who does a terrible job.

[00:03:14] Speaker 02:
I understand your argument.

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Do you think he did a terrible job?

[00:03:17] Speaker 02:
No.

[00:03:18] Speaker 02:
Well, so then that suggests that the problem is not the qual- in this case, the problem is not the quality of the counsel, but the quality of the claim.

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And Purdue doesn't say anything about the quality of the claim.

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It talks about

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the quality of the lawyers.

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And you can't give extra credit for great success because you got great lawyers, because we built that in already.

[00:03:42] Speaker 02:
But here, unless you're of the position that you guys did at Terra, are you the same ones who did the case below?

[00:03:47] Speaker 02:
Yes.

[00:03:48] Speaker 02:
Yeah.

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So unless you want to take the position, you're really worse than the load.

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You're not any worse than the load star thought you were.

[00:03:57] Speaker 02:
The real question here is whether your claims were bad.

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Good lawyers can have bad claims, and sometimes the facts are the facts.

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That's all there is to it.

[00:04:06] Speaker 02:
So I don't understand how Purdue really relates here to this case, and I certainly don't see how it overrules Hensley, which it doesn't.

[00:04:14] Speaker 05:
So I might defer to my colleague, who's speaking on behalf of amicus, to address that.

[00:04:22] Speaker 05:
He's going to address whether you're a good lawyer or not?

[00:04:24] Speaker 05:
Well, I hope he says I'm a great lawyer.

[00:04:26] Speaker 05:
Well, in that case, that issue isn't in the kitchen.

[00:04:28] Speaker 05:
Right.

[00:04:30] Speaker 05:
Perdue talks a great deal about the primacy of the lodestar calculation.

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And that is central to this case because Perdue makes it very clear that the lodestar is in almost all cases, all cases except the rare exception.

[00:04:51] Speaker 02:
Are you avoiding my question?

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Do you think that secretly, subtly, and quietly Perdue overruled Hensley?

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Because, you know, we've got this very strong direction from the Supreme Court, which they like to use to overrule courts of appeals or at least punish them, which says it's up to us whether we've secretly, quietly,

[00:05:16] Speaker 02:
not implicitly overruled our previous opinions.

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Our previous opinions stand unless we say they haven't, and the Court of Appeals has to follow them even if they think they're inconsistent or if they've been overruled.

[00:05:28] Speaker 02:
Now, Hensley pretty clearly says, they would not pretty clearly, I don't know why I caveat that at all, a reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.

[00:05:42] Speaker 02:
Now, is your view that Purdue overruled that statement?

[00:05:45] Speaker 05:
It's my view that Purdue synthesized the 20 years of jurisprudence.

[00:05:51] Speaker 05:
And thereby overruled?

[00:05:54] Speaker 05:
I think perhaps tweaked.

[00:05:57] Speaker 02:
Well, that might be something you can raise with the Supreme Court when the case gets here.

[00:06:01] Speaker 05:
But I also want to point out that many courts, this court included, have focused a great deal on how we value the case.

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Is it a good case or is it a bad case?

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What's the scope of the relief?

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And the vindication of rights does not have a dollar value attached to it.

[00:06:22] Speaker 05:
in the national black police association case.

[00:06:25] Speaker 05:
This court was crystal clear on that.

[00:06:27] Speaker 02:
Of course, Hensley was a case where the plaintiffs brought the action on behalf of all persons involved, terribly confined at a forensic unit of a state hospital in violation of their constitutional rights.

[00:06:39] Speaker 02:
And nonetheless, the court said what it said.

[00:06:41] Speaker 05:
I appreciate that, Your Honor, and I think it may be somewhat above my pay grade to try to synthesize Hensley with- Probably above our pay grade also.

[00:06:52] Speaker 02:
Well, perhaps, at least for the time being.

[00:06:56] Speaker 02:
Are there any of the cases where the court has said the sort of thing that you say, which I think is correct, about certain civil rights cases?

[00:07:08] Speaker 02:
They've always

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said this in a situation where it's a question of the discretion of the district court.

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They've upheld the district court's discretion or they've said it's not an abuse of discretion, et cetera.

[00:07:22] Speaker 02:
Is there a case where they say you have to, where a court of appeals has said you have to give a higher value and you cannot decrease based on the amount of your success in a civil rights case?

[00:07:39] Speaker 05:
Well, sure.

[00:07:41] Speaker 05:
Again, the National Black Police Association case in this circuit said that.

[00:07:48] Speaker 05:
In the Bywars case in the Federal Circuit,

[00:08:04] Speaker 05:
No, that's not really the case that I want to put my finger on.

[00:08:08] Speaker 02:
Now I'm looking at national black police.

[00:08:10] Speaker 02:
That's the one I was also on the panel.

[00:08:12] Speaker 02:
Well, we said there wasn't an abuse of discretion to award a higher amount.

[00:08:18] Speaker 02:
Well, we didn't say that it would have.

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I mean, in this case, the district court exercised its discretion and thought that given the amounts of

[00:08:36] Speaker 02:
The amount you got in comparison to the amount of the cost, even in a civil rights case, wasn't enough for him not to reduce it.

[00:08:45] Speaker 05:
No.

[00:08:45] Speaker 05:
Your Honor, I'm sorry.

[00:08:46] Speaker 05:
Respectfully, National Black Police Association at page 530 said, quote, both the premises and logic of these arguments are wrong-headed.

[00:08:59] Speaker 05:
That the vindicated First Amendment rights of the contributors yielded only a relatively small amount of money,

[00:09:06] Speaker 05:
in no way reflects the value of those rights to those who exercise.

[00:09:11] Speaker 02:
I don't disagree with that.

[00:09:13] Speaker 02:
All I'm saying is all we did in that case was conclude it wasn't an abuse of discretion for the district court to give a larger amount.

[00:09:20] Speaker 02:
The court had given a larger amount to the district court and we upheld it under an abuse of discretion.

[00:09:27] Speaker 05:
Well, certainly discretion continues to play a significant role, except that when we look at Purdue and we see repeated assertions, repeated statements making it clear that

[00:09:43] Speaker 05:
The load-start calculation is the beginning and the end.

[00:09:47] Speaker 05:
Now, judicial discretion, the trial court discretion, certainly is going to come in in determining the right amount of hours, for example.

[00:09:55] Speaker 05:
So that if I spend 50 hours drafting a motion which the judge looks at and says, this is a piece of junk,

[00:10:03] Speaker 05:
and clearly was only an hour's work, and unsuccessful, and baseless in terms of its merits, I'm not going to award 50 hours for that.

[00:10:12] Speaker 05:
And that's well within the court's discretion.

[00:10:14] Speaker 05:
It's the appropriate exercise of discretion.

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And it's in that way that Lodestar reflects the quality of the work.

[00:10:22] Speaker 02:
Again, that requires concluding that what the court said in Hensley is no longer offered.

[00:10:28] Speaker 02:
Because they're talking about a reduced fee award.

[00:10:31] Speaker 05:
I don't know that this court's... I don't know that this court needs to be sort of... So that's why I'm wondering whether maybe you'd be better off if we just blow the whole thing up.

[00:10:44] Speaker 02:
And if a district court happens to go your way, then you would be going with the abuse of discretion in your direction.

[00:10:53] Speaker 02:
I'm not sure I'd follow you on that.

[00:10:56] Speaker 04:
I think another way to get at the issue is how much do you think we

[00:11:01] Speaker 04:
need to decide and how much do you think we have authority to decide?

[00:11:05] Speaker 04:
If we agree with you that the district judge erred in saying that the plaintiff's counsel never provided to defendants counsel any assessment of the scope of the harm, we think that's wrong.

[00:11:18] Speaker 04:
Can we go further?

[00:11:19] Speaker 04:
Should we go further?

[00:11:22] Speaker 04:
What guidance do you think would be appropriate for us to provide?

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And I think the particular question is, what do you think is the governing rule on proportionality?

[00:11:37] Speaker 04:
And let me just let you talk, but what I'm thinking about also is proportionality, there are two different kinds, at least two different kinds of proportionality.

[00:11:44] Speaker 04:
One is between what the plaintiffs sought and what they obtained, and the other is between the fee amount and what they obtained.

[00:11:51] Speaker 04:
And as I read, Rivera, Pensley,

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even if the fee amount is disproportionate to the result, as long as the load star takes that into account.

[00:12:01] Speaker 04:
So if you did good lawyering, that that proportionality is not a reason for reducing.

[00:12:06] Speaker 04:
But the other question is, you saw $88,000 and then we got to $7,000.

[00:12:13] Speaker 04:
Is that low performance a reason for reducing the award?

[00:12:17] Speaker 05:
Well, let me address that point if I can, Judge Pillard.

[00:12:21] Speaker 05:
I think that that is answered by Purdue.

[00:12:25] Speaker 05:
Because in Purdue, the court said, we don't know why any particular outcome comes to pass.

[00:12:35] Speaker 05:
Bad things happen to good lawyers.

[00:12:39] Speaker 04:
And the inverse.

[00:12:41] Speaker 05:
And the inverse, indeed.

[00:12:44] Speaker 05:
And so if we know that the outcome may be the result of lawyering, good or bad,

[00:12:54] Speaker 05:
then it doesn't really matter whether we're talking about the outcome vis-a-vis the fee award or vis-a-vis the initial demands.

[00:13:04] Speaker 05:
Furthermore, I think it's important to note as a matter of practice, every advocate is going to take the strongest position he or she can.

[00:13:18] Speaker 05:
I'm not going to say,

[00:13:20] Speaker 05:
I'll be... Well, we did in the beginning of this case, I guess I should point out, but when we prepared our pretrial statement and we said this is the amount we're looking for, we certainly presented treble damages as the laws permit under certain circumstances.

[00:13:40] Speaker 05:
We certainly presented our numbers in the best possible and defensible light.

[00:13:46] Speaker 04:
Can you just remind me, treble damages versus one-time liquidated?

[00:13:49] Speaker 05:
One-time double under the Fair Labor Standards Act, treble under the Maryland law, and one-time in the absence of certain factors that cause the treble.

[00:14:03] Speaker 05:
Under Maryland.

[00:14:04] Speaker 05:
Yes.

[00:14:06] Speaker 05:
And so we make our demand, and it's always, of course, the strongest possible demand.

[00:14:12] Speaker 05:
Now, if you were to take me into the back room and say to me, well, let's try to settle this case, how much are you willing to settle it for?

[00:14:19] Speaker 05:
And I say $32 million.

[00:14:22] Speaker 05:
And I insist on trying the case because they're only offering $2 million, and then the jury award is $100,000.

[00:14:29] Speaker 05:
Maybe that's the sort of rare case that perhaps really does warrant some kind of adjustment.

[00:14:35] Speaker 05:
But just to look at the way a lawyer claims to value the case does not really give you any insight into the case.

[00:14:46] Speaker 04:
And also, on the- So no reduction.

[00:14:49] Speaker 04:
Somebody asks for-

[00:14:52] Speaker 04:
you know, X and gets 5% of X, no reduction, other than what's already built into the load start.

[00:15:02] Speaker 04:
What does the court mean then when it talks about results obtained?

[00:15:06] Speaker 05:
If you're, if the court, if Judge Pilar, you're referring to the Hensley Court, the answer is I don't know.

[00:15:14] Speaker 05:
Because there has been, as one Court of Appeals, I can't remember which it was, referred to an arc of jurisprudence in this area.

[00:15:23] Speaker 02:
Well, they seem to have forgotten Justice Ginsburg's constant telling us that when there's an arc of jurisprudence, you gotta begin at the beginning of the arc and wait for us to say the arc is over.

[00:15:33] Speaker 02:
This is a very strong direction to the courts of appeals, which often results in reversal.

[00:15:40] Speaker 02:
And even when it doesn't, results in reprimand.

[00:15:43] Speaker 02:
And this is a hierarchical judicial system.

[00:15:45] Speaker 02:
And our obligation is to follow the court's previous holdings until they tell us they're overruled.

[00:15:51] Speaker 05:
Well, I think that the factors in Hensley can continue to play a role

[00:16:00] Speaker 05:
despite Purdue's instruction, because Purdue says, in the ordinary case, lodestar is the beginning and the end.

[00:16:11] Speaker 05:
Now, that doesn't mean that there aren't rare exceptions where we deviate from lodestar based on

[00:16:17] Speaker 05:
the Hensley factors.

[00:16:20] Speaker 04:
I'm sorry, I asked you such a compound question, but I would like to hear your response to what, ideally, would you want us to hold?

[00:16:30] Speaker 04:
Is it enough were we to agree with you that the magistrate judge erred in saying that you did not provide figures to the other side?

[00:16:39] Speaker 05:
Is that enough?

[00:16:40] Speaker 05:
That is enough.

[00:16:42] Speaker 05:
That is enough for this court to order that the load start calculation be entered as the damages, excuse me, as the attorney's fees award.

[00:16:52] Speaker 04:
That's a little bit different.

[00:16:53] Speaker 04:
On what ground can we say that?

[00:16:55] Speaker 05:
Well, when we look at the bases on which the district court awarded fees,

[00:17:02] Speaker 05:
They said, OK, we're starting with a lodestar.

[00:17:04] Speaker 05:
We agree that the plaintiff's lawyers spent the right amount of time and charged the right rate.

[00:17:11] Speaker 05:
Lodestar is good.

[00:17:12] Speaker 05:
It makes sense.

[00:17:14] Speaker 04:
But if we vacate a remand on the ground of error, that's also up in the air.

[00:17:20] Speaker 05:
Well, right.

[00:17:20] Speaker 05:
But if we look at the entirety of the bases of the district court's decision,

[00:17:26] Speaker 05:
we see nothing in the record or in law that warrants a deviation from Lodestar.

[00:17:35] Speaker 05:
Indeed, even if we look at the arguments made by our opponents, there is nothing of substance that warrants a deviation from Lodestar.

[00:17:44] Speaker 04:
And so we do not need- Well, he says on the things, he says limited success, he says

[00:17:53] Speaker 04:
I mean, this is a number of different things.

[00:17:54] Speaker 05:
But when we talk about limited success, we are strictly cabined, as I read not only Purdue, but in the, and I guess I should point out, when we're talking about Hensley, we're talking about the number of dollars.

[00:18:09] Speaker 05:
We are not necessarily talking about civil rights and wage cases.

[00:18:15] Speaker 05:
Now, I recognize that Hensley was a civil rights case.

[00:18:19] Speaker 05:
This case was a Fair Labor Standards Act case.

[00:18:22] Speaker 05:
Wage in our cases rarely involve a lot of money.

[00:18:28] Speaker 05:
We assessed the value of the case at the starting gate.

[00:18:31] Speaker 05:
We offered to settle this case for $25,000 at the outset of the litigation.

[00:18:38] Speaker 05:
We knew from the start that this was a low value case.

[00:18:46] Speaker 05:
But it was an important case because our clients believed, and I agree,

[00:18:52] Speaker 05:
that they had been taken advantage of by their employer.

[00:18:55] Speaker 05:
They were not paid overtime.

[00:19:01] Speaker 02:
The purpose of the fee-shifting statute... Sorry, which was the first offer, the $25,000 one?

[00:19:11] Speaker 02:
When was that?

[00:19:11] Speaker 02:
Is that November 2006?

[00:19:12] Speaker 02:
Or is that another date?

[00:19:16] Speaker 02:
November 2nd, 2006.

[00:19:20] Speaker 02:
that was uh... that were the damages were estimated at twenty two thousand seven hundred yes judge

[00:19:28] Speaker 02:
liquidated fees and then attorney's fees.

[00:19:30] Speaker 02:
It was slightly more than $25,000.

[00:19:32] Speaker 02:
That's true.

[00:19:34] Speaker 02:
Much more.

[00:19:35] Speaker 02:
I'm not saying it's materially more.

[00:19:36] Speaker 02:
Right, it's $28,100.

[00:19:38] Speaker 05:
I just want to make sure there wasn't yet another... No, no, there was because that's how we assessed the value on November 2nd.

[00:19:48] Speaker 05:
On December 1st,

[00:19:50] Speaker 05:
We made a formal demand of $30,000.

[00:19:52] Speaker 05:
Yeah.

[00:19:53] Speaker 02:
And then December 28th, that one was for 25.

[00:19:56] Speaker 02:
Yes, Your Honor.

[00:19:57] Speaker 02:
All right.

[00:19:57] Speaker 02:
I got it.

[00:19:57] Speaker 02:
Right.

[00:19:58] Speaker 02:
Are there further questions?

[00:20:01] Speaker 02:
OK.

[00:20:01] Speaker 02:
We're about 10 minutes over.

[00:20:05] Speaker 02:
Thank you.

[00:20:05] Speaker 02:
OK.

[00:20:05] Speaker 02:
Amicus.

[00:20:15] Speaker 01:
Amicus.

[00:20:15] Speaker 01:
Please, the court.

[00:20:16] Speaker 01:
I'm Richard Seymour here for the amici in this case.

[00:20:20] Speaker 01:
There are just a couple of points that I would like to address.

[00:20:24] Speaker 01:
There's very little enforcement, public enforcement of the wage and hour laws.

[00:20:29] Speaker 01:
It's 98 percent of the cases that are brought under the Fair Labor Standards Act are brought by private parties.

[00:20:35] Speaker 01:
The situation is even more stark of disproportion in Maryland, where the state authorities simply have not had the resources, which is why they've expanded private rights of action.

[00:20:46] Speaker 01:
The lower court standard will make competent counsel unavailable to represent low-wage workers who are being exploited.

[00:20:54] Speaker 01:
So the position taken by the defendant in this case would mean that no attorney would take a wage and hour case unless the stakes would be as high as the fees it would take to win.

[00:21:06] Speaker 01:
And the defendant would get to choose what those stakes would be in terms of the minimum case you take by the amount of fight it is reputed to put up.

[00:21:16] Speaker 01:
So a defendant that has a reputation for a bulldog defense that is going to require a hugely disproportionate amount of time is going to find that it has no one who's going to be willing to challenge it, because in the FIA award, the attorney will be penalized for representing the client in a way that does not involve malpractice.

[00:21:37] Speaker 04:
Mr. Seymour, do you think that there is ground for this court to go beyond

[00:21:43] Speaker 04:
pointing out the one factual error vacating and remanding, if indeed we were to determine that it was error for Judge Faciela to have claimed that plaintiff's counsel did not provide an estimate of damages to defense counsel in a timely manner?

[00:21:58] Speaker 01:
Yes, Your Honor.

[00:21:58] Speaker 01:
I believe that there were two fundamental errors that were made by the lower court.

[00:22:02] Speaker 01:
The second error was in the way that the lower court

[00:22:06] Speaker 01:
looked at the degree of success, and that's a very important factor that I'd like to address.

[00:22:13] Speaker 01:
And the third matter are the issues that have been raised by the defendant in this case, which will have to be viewed by the lower court on remand.

[00:22:22] Speaker 01:
And that guidance would be helpful.

[00:22:25] Speaker 01:
The alternative is that there's going to be yet another appeal in this case.

[00:22:29] Speaker 01:
Which issues are you talking about?

[00:22:30] Speaker 01:
We're talking about the question of what hours should be compensable.

[00:22:34] Speaker 01:
And I'd like to take just a moment on that.

[00:22:39] Speaker 04:
I'd like to bring success first.

[00:22:42] Speaker 04:
I'm sorry.

[00:22:42] Speaker 01:
Do you agree that there are issues that would have to be reconsidered on remand then?

[00:22:46] Speaker 01:
I expect that the defendant will raise the same issues on remand that they've raised before this court, and that unless they're addressed by this court, there will only be a third appeal in the case.

[00:22:56] Speaker 01:
So to conserve judicial resources,

[00:23:00] Speaker 01:
seems to be advisable for this court to address those questions in its ruling.

[00:23:05] Speaker 01:
With respect to the degree of success, there are two questions really.

[00:23:09] Speaker 01:
What is the starting point and what is the ending point?

[00:23:12] Speaker 01:
The lower court decided that the starting point was the initial demand and the ending point was simply the number of dollars that were awarded.

[00:23:20] Speaker 01:
I think both of those are fundamentally flawed.

[00:23:23] Speaker 01:
The reason is that the

[00:23:25] Speaker 01:
The starting point in the Adonim clause of a complaint or in the first demand that is made or in the pre-trial order statement is simply wrong.

[00:23:37] Speaker 01:
The basic issue in this case was, are these people exempt?

[00:23:42] Speaker 01:
That's a question that resonates not just for these individuals, but also for all other persons in the same job at the same facility, at other facilities located across the country if the defendants had them, and with other employers.

[00:23:55] Speaker 02:
Is there any kind of case that's covered by Section 1988 that you couldn't make the same argument for?

[00:24:04] Speaker 01:
Your Honor, yes, in civil rights cases, it's very common for courts to observe that no matter how much money was recovered, the most important type of relief is injunctive relief.

[00:24:19] Speaker 02:
In every case covered by the fee statute 1988, there can't be a reduction based on the amount of money obtained, right?

[00:24:31] Speaker 04:
In other words, you're saying degree of success is inapplicable here.

[00:24:35] Speaker 04:
The Supreme Court has said that in some cases, it is relevant.

[00:24:38] Speaker 04:
And what we're trying to figure out is you'd like to read that category narrowly.

[00:24:42] Speaker 04:
How do you do that?

[00:24:43] Speaker 04:
What is in that category under the theory

[00:24:46] Speaker 01:
Well, let me give you an example of two different kinds of FLSA cases.

[00:24:50] Speaker 01:
In one, you have the misclassification, which can affect a large number of workers.

[00:24:54] Speaker 01:
In another, you simply have an arithmetic error that is peculiar to this location or this particular worker in which the worker was not given minimum wage or had the wrongly calculated overtime or a case like the

[00:25:08] Speaker 01:
This is a case involving the Catholic Bishop of Chicago against Spigon, S-P-E-G-O-N.

[00:25:14] Speaker 01:
In that case, it was a parish bookkeeper who simply did not know about the Fair Labor Standards Act and did not pay overtime to a single custodian.

[00:25:24] Speaker 01:
And the Seventh Circuit found that, as the Archbishop said, this could have been resolved by a simple phone call.

[00:25:31] Speaker 01:
And instead, plaintiff's counsel ginned up a great deal of fees, but that was not reasonable in the case.

[00:25:36] Speaker 04:
Was that a degree of success reduction or something else?

[00:25:41] Speaker 01:
It was a holding that the effort was disproportionate to what needed to have been done.

[00:25:48] Speaker 01:
So it could be addressed under degree of success.

[00:25:50] Speaker 01:
It could be addressed under what were the reasonable hours and reasonable expenses.

[00:25:54] Speaker 02:
I'm confused about even the description of that case could have been resolved by a phone call.

[00:26:00] Speaker 02:
I suppose it could have been resolved by the complaint.

[00:26:04] Speaker 02:
And yet the defendant didn't immediately say, Oh, you're right.

[00:26:07] Speaker 02:
I take the

[00:26:09] Speaker 02:
well it's hard on the court did you need to defend it kept trying to pay and i'm all i said i was uh... it's so much and it's a case like uh... you're describing where there's a miscalculation but the defendant just keeps defending anyway uh... on the theory you know we're going to defend all these cases uh... to the hills uh... i take your position because then people no longer bring these cases against us even if it has no cosmic

[00:26:38] Speaker 02:
consequences for the rest of the country.

[00:26:40] Speaker 01:
Wouldn't your position be that there should not be a reduction in that case either?

[00:26:51] Speaker 01:
But if the defendant chooses to spend an inordinate amount of time on this one case that affects only a small amount of money because of the principle, for example, nobody sues us, we're going to make it very, very hard for them, then yes, a fully compensatory fee should be given.

[00:27:05] Speaker 01:
But that's particularly true in a misclassification case that affects other workers.

[00:27:09] Speaker 01:
The point is that the lower court regarded public interest as being

[00:27:13] Speaker 01:
what was at stake as being measured by dollars as opposed to the classification question, and then compounded the mistake by thinking that the end was what the dollars received were as opposed to the other issues.

[00:27:29] Speaker 01:
Just quickly, the defendant makes a great deal of the fact that

[00:27:34] Speaker 01:
There was more than one defendant that was named in the case.

[00:27:37] Speaker 01:
Attorneys who practice in the field of wage and hour are very familiar with defendants exploiting low-wage workers and then claiming that they are too poor to pay an award.

[00:27:46] Speaker 01:
Therefore, they can't pay liquidated damages.

[00:27:48] Speaker 01:
They can't do this.

[00:27:49] Speaker 01:
They're going to declare bankruptcy.

[00:27:51] Speaker 01:
And the company may declare bankruptcy, the individual may.

[00:27:54] Speaker 01:
The only way to be sure of getting a good result for your client is to stop the statutory limitations running as to anybody who might be in the position of an employer.

[00:28:03] Speaker 01:
And then you engage in discovery and you find out whether that is satisfied.

[00:28:07] Speaker 01:
But to do less than that may leave your client with a wrong and no remedy for it.

[00:28:12] Speaker 01:
Similarly, an attorney has to plead trouble damages under the Maryland Wage and Payment and Collection Law, has to plead liquidated damages, has to plead a third year of recovery under the Fair Labor Standards Act, or else that attorney is not exercising proper professional responsibility to the client.

[00:28:31] Speaker 01:
If the attorney is to be penalized for it, which is the effect of what the lower court did,

[00:28:36] Speaker 01:
then an attorney is going to be penalized for refusing to commit malpractice, and lawyers will leave the field of representing these clients because they cannot afford to meet their professional standards and handle these cases.

[00:28:52] Speaker 01:
And it is just not a proper rule of law that a fee award should require that the attorney, in order to be fully compensatory, the attorney must have committed professional negligence.

[00:29:03] Speaker 01:
Just a couple of words I'd like to mention with respect to the defendant's positions.

[00:29:09] Speaker 01:
They have armchair objections to a substantial amount of the time that was spent in this case.

[00:29:15] Speaker 01:
By armchair objections, I mean things that are not tied to anything that is specific.

[00:29:20] Speaker 01:
It's just a general throw to the wall sort of thing, for example.

[00:29:24] Speaker 01:
The defendant says that the plaintiffs did not do a good enough job of pre-complaint investigation, which is why they had additional defendants in there.

[00:29:34] Speaker 01:
At the same time, they say that no fees should be awarded for pre-complaint investigation.

[00:29:40] Speaker 01:
They say that if one looks at the body of jurisprudence on fee awards, it's clear that the courts want attorneys in offices that have a number of lawyers to assign as much work as possible to attorneys billing at lower rates so it reduces the transaction cost.

[00:30:00] Speaker 01:
And that was done in this action.

[00:30:02] Speaker 01:
But in order to make that work efficiently, you have to talk to each other so that the work is coordinated.

[00:30:09] Speaker 01:
The defendant says that 50 hours were spent in meetings.

[00:30:12] Speaker 01:
Well, the litigation took place over eight years.

[00:30:15] Speaker 01:
And by my back of the envelope calculation, they're complaining about half an hour of meetings per month.

[00:30:22] Speaker 02:
What about in the reply brief, their reply brief, pages five and six, they list

[00:30:33] Speaker 02:
10 categories of contentions that the plaintiffs lost, and at least on first look, don't appear to be related legal theories, and that the district court doesn't really specifically address.

[00:30:53] Speaker 01:
Your Honor, with respect to, so I've been practicing in the field of war field for a very long- The question here is whether they're exempt employees or not, right?

[00:31:01] Speaker 01:
Yes, Your Honor, that is the main question.

[00:31:03] Speaker 02:
The- So the breach of contract, the fact that defendants were joint employers, the fact that the defendants acted willfully,

[00:31:13] Speaker 02:
The fact that it was a common practice to work on holidays.

[00:31:17] Speaker 02:
The fact that they weren't paid overtime for holidays.

[00:31:20] Speaker 02:
They weren't paid the minimum wage.

[00:31:23] Speaker 02:
They were paid untimely.

[00:31:25] Speaker 02:
None of those didn't win on any of those.

[00:31:28] Speaker 02:
And the district court didn't explain, maybe they are related legal theories, but the district court didn't explain

[00:31:38] Speaker 02:
why any of these were related legal theories that couldn't be disentangled in terms of the expenditures.

[00:31:46] Speaker 01:
Your Honor, first, there's no showing that I've read in the defendant's briefs on this appeal trying to particularize any of these to any amount of time.

[00:31:55] Speaker 01:
Well, that's the problem, isn't it?

[00:31:56] Speaker 02:
So their position is that it's the obligation of the person asking for time

[00:32:03] Speaker 02:
to distinguish between the different kinds of claims and to only seek and only get money for related legal theories.

[00:32:12] Speaker 02:
And if we can't distinguish it, their argument is that they can't get the money.

[00:32:17] Speaker 02:
Isn't that right, though?

[00:32:19] Speaker 01:
That's partially correct, Your Honor, but it's also correct that the courts have said that rather than make district courts green eye shade accountants going through and trying to trace everything like a very complicated chemical formula, the court is entitled to make a percentage reduction in time.

[00:32:37] Speaker 01:
And here the plaintiffs offer 10 percent, and the district court

[00:32:42] Speaker 01:
reduced the claim by another 10%, so a total 20% reduction on the Lone Star claimed before the district court took its 75% shot.

[00:32:52] Speaker 01:
And no one is challenging the 20% total reduction.

[00:32:55] Speaker 02:
What was the explanation for the 20%?

[00:32:59] Speaker 02:
I don't remember.

[00:32:59] Speaker 02:
What was the magistrate's explanation for the 20%?

[00:33:02] Speaker 01:
He thought that plaintiffs offered the initial 10 percent to take care of any redundant, unnecessary, duplicative hours, and the court said, essentially, I'll cede that and I'll raise you, make it 20 percent.

[00:33:15] Speaker 01:
What about for the unrelated claims?

[00:33:17] Speaker 02:
Did he say how he was dealing with the unrelated claims?

[00:33:20] Speaker 01:
I would have to look back at the opinion, Your Honor, to see whether you parsed it to that degree.

[00:33:25] Speaker 01:
But since this is a recognized way in which the courts have dealt with those kinds of contentions, it seems to me that at that point, the defendant has the obligation to show that these things that we're complaining about would have took in the aggregate more than 20% of the time.

[00:33:40] Speaker 04:
Wait, my understanding, are there any unrelated claims?

[00:33:43] Speaker 04:
There's no finding that there were any unrelated claims.

[00:33:46] Speaker 04:
There are just some unsuccessful.

[00:33:47] Speaker 04:
According to them, and I'm not sure whether their claims are just sort of contentions or factually subsidiary assertions that support their main claim.

[00:33:57] Speaker 04:
There weren't any.

[00:33:58] Speaker 04:
There's nothing that anybody has found to be unrelated to the claim on which the plaintiff broke out.

[00:34:05] Speaker 04:
Is that right?

[00:34:06] Speaker 01:
Oh, that's correct, Your Honor.

[00:34:06] Speaker 01:
I literally stand corrected.

[00:34:09] Speaker 02:
And as to the breach of contract, I should mention that... I take it that's the point of the defendant, that they argued that there were unrelated claims and the magistrate didn't decide that question.

[00:34:21] Speaker 01:
I believe the magistrate judge decided that these claims were, in fact, related.

[00:34:27] Speaker 01:
The question whether something is a related claim involves a common core of operative fact.

[00:34:33] Speaker 01:
And so the question, as a bunch of mentioned, that the breach of contract question used to be important in Maryland law because there was a construction of the Maryland wage payment and collection law that had been adopted by federal district courts in Maryland that gave a very limited

[00:34:49] Speaker 01:
application to the wage payment and collection law, they said that it could not be used to challenge the amount of pay given, only the utter refusal to pay anything at all.

[00:34:58] Speaker 01:
So if you paid one penny for a week's work, that would satisfy the wage payment and collection law until the person was terminated.

[00:35:05] Speaker 01:
Then they had to pony everything up.

[00:35:10] Speaker 01:
In order to practice in a professionally responsible manner, plaintiff's attorneys had to make breach of contract claims along with a Maryland wage payment and collection law to guard against that type of result.

[00:35:22] Speaker 02:
The Maryland Court of Appeals is... The only thing they won on was that they weren't exempt employees, isn't that right?

[00:35:28] Speaker 01:
They won that they were exempt employees, and they got the overtime that had been denied to them.

[00:35:36] Speaker 01:
The lower court found that there was a bona fide dispute, which under Maryland law meant that they would not receive the treble damages.

[00:35:44] Speaker 01:
And the court found that the conduct was not willful, and so they did not get the liquidated damages.

[00:35:52] Speaker 01:
But all of those have to be claimed in order to do a professionally responsible job and a decision that is going to encourage capable counsel.

[00:36:02] Speaker 01:
to work in the field requires a compensable fee for doing the work that standards of professional responsibility require.

[00:36:10] Speaker 04:
And I guess what I was thinking of is in the J.A.

[00:36:12] Speaker 04:
38 in the district court's opinion, Judge Petula says, well, plaintiffs failed to succeed on their liquidated damages claim.

[00:36:19] Speaker 04:
Plaintiffs did receive compensatory damages.

[00:36:22] Speaker 04:
And these claims are both legally and factually related.

[00:36:26] Speaker 04:
So there, he's essentially saying, under the Supreme Court's precedent, it's not an unrelated claim.

[00:36:32] Speaker 04:
It's going to be part of the lodestar.

[00:36:34] Speaker 01:
Yes, Your Honor.

[00:36:34] Speaker 01:
The compensatory damages for that, I've not seen the complaint, but compensatory damages in our breach of contract claim would be the lost wages.

[00:36:42] Speaker 01:
So.

[00:36:43] Speaker 02:
All right.

[00:36:44] Speaker 02:
We'll hear from an attorney for Maria Gashetta.

[00:36:56] Speaker 03:
Good morning, Your Honors.

[00:36:57] Speaker 03:
May it please the Court, Susan Krueger, on behalf of the appellees across appellants.

[00:37:07] Speaker 03:
There have been a whole lot of things that have been argued in this case, but here is a fundamental fact.

[00:37:12] Speaker 03:
There is a deadline to file a petition for fees, and plaintiffs missed the deadline.

[00:37:16] Speaker 02:
Before we get to the timeliness, could you

[00:37:18] Speaker 02:
I'd like to start with the same question.

[00:37:20] Speaker 02:
I asked the other side The judge said this plaintiff council inability to provide a meaningful demand for the actual damages suffered That is driving me to reduce the fee It was not until the eve of trial and several years into the litigation the council provided the court with any calculation of plaintiffs damages Isn't that incorrect?

[00:37:42] Speaker 03:
No, your honor.

[00:37:43] Speaker 02:
So is it not correct that in November

[00:37:48] Speaker 02:
They sent a letter estimating damages at $22,700 plus liquidated damages and attorney's fees of $5,400.

[00:37:58] Speaker 02:
You have to speak into the mic.

[00:37:59] Speaker 03:
Okay, I'm sorry.

[00:38:01] Speaker 03:
I think what Judge Fatiola was getting at was the fact that this should have been an easy case for the plaintiffs to figure out how much money they were owed.

[00:38:10] Speaker 03:
This was not a case where there were no time sheets.

[00:38:13] Speaker 03:
There were time sheets.

[00:38:14] Speaker 03:
Because our clients paid the plaintiffs for it.

[00:38:18] Speaker 02:
I understand that.

[00:38:19] Speaker 02:
So why isn't the calculation of $22,700 that calculation?

[00:38:25] Speaker 03:
Because as you can see, they only were awarded like less than $6,000.

[00:38:29] Speaker 03:
Right.

[00:38:29] Speaker 03:
Go ahead.

[00:38:30] Speaker 04:
Go ahead.

[00:38:33] Speaker 04:
The logic of Churchill's opinion is that you're in the dark.

[00:38:38] Speaker 04:
You did not know how big a case this was.

[00:38:41] Speaker 04:
Had you known from the outset the ballpark figure, you would have settled it.

[00:38:47] Speaker 04:
That's his premise.

[00:38:49] Speaker 04:
Why is that not wrong?

[00:38:52] Speaker 04:
Because in fact, A, they sent you repeated letters, and they included in their mandatory initial disclosures under Rule 26, their calculations of what your exposure was.

[00:39:05] Speaker 04:
That's A. B, you're the employer, right?

[00:39:08] Speaker 04:
Your client is the employer.

[00:39:10] Speaker 04:
Get all the time records.

[00:39:11] Speaker 04:
There's no mystery here.

[00:39:12] Speaker 04:
So why is it not clearly erroneous?

[00:39:14] Speaker 04:
And I would also add to that, C, did you ever make a Rule 68 offer of judgment?

[00:39:20] Speaker 04:
to limit your exposure?

[00:39:21] Speaker 04:
No.

[00:39:23] Speaker 03:
That is correct.

[00:39:24] Speaker 03:
We did not.

[00:39:25] Speaker 03:
However, what we were facing the entire time were wildly varying amounts.

[00:39:31] Speaker 03:
Even once they had our time sheets, wildly varying amounts of what they claimed that our... What was the low and what was the high?

[00:39:39] Speaker 04:
It's a varying of maybe $10,000 at most.

[00:39:44] Speaker 03:
Well, I think I enumerated it.

[00:39:47] Speaker 04:
I think you did too.

[00:39:51] Speaker 04:
Such that you could not formulate a settlement that would have forestalled paying a quarter of a million dollars.

[00:39:56] Speaker 02:
So you have the November 2006 letter estimating damages of 22,700 plus only 5,400 of attorney's fees.

[00:40:05] Speaker 02:
You have the December 1st letter offering to settle for 30,000.

[00:40:09] Speaker 02:
December 28th letter offering to settle for 25,000.

[00:40:13] Speaker 02:
Those don't sound like wildly varying amounts.

[00:40:16] Speaker 02:
And they are way lower than what the judge ultimately awarded to the plaintiffs.

[00:40:22] Speaker 02:
So it seems like the judge is just maybe he didn't know about those letters or something.

[00:40:32] Speaker 03:
The plaintiffs were only awarded less than $6,000 combined.

[00:40:36] Speaker 02:
And $56,000 in fees.

[00:40:39] Speaker 02:
Right?

[00:40:39] Speaker 02:
Even after all the reductions, they were awarded $56,000, isn't it?

[00:40:43] Speaker 02:
Right?

[00:40:44] Speaker 03:
That's correct.

[00:40:45] Speaker 02:
Well, that's way more than they were offering to settle for at the beginning.

[00:40:51] Speaker 03:
Why should a defendant be forced to pay an outrageous amount of fees on a case that's really niggles and dines?

[00:41:02] Speaker 02:
Well, they were offering attorneys fees of only $5,400 at the beginning.

[00:41:06] Speaker 02:
That's not an outrageous amount of fees.

[00:41:08] Speaker 03:
But their damages calculations were crazy.

[00:41:11] Speaker 04:
So you could have turned around and said, we offer you

[00:41:14] Speaker 04:
$7,000 in damages and $5,400 in fees.

[00:41:22] Speaker 04:
Here it is.

[00:41:22] Speaker 04:
Rule 68, Offer of Judgment.

[00:41:25] Speaker 04:
We challenge you.

[00:41:25] Speaker 04:
Walk away from that.

[00:41:27] Speaker 04:
You'll get no fees for the rest of the case.

[00:41:29] Speaker 04:
Merrick versus Chesney.

[00:41:30] Speaker 04:
You have a tool to protect yourselves and you didn't use it.

[00:41:34] Speaker 04:
I don't understand why that's inequitable that you end up where you are.

[00:41:37] Speaker 04:
You are the ones that chose to litigate this case, presumably because you wanted

[00:41:42] Speaker 04:
the precedent.

[00:41:43] Speaker 04:
It was worth the investment for the client to say, no, no, we want this decision.

[00:41:47] Speaker 04:
We don't want to just resolve this case.

[00:41:49] Speaker 04:
We want the decision.

[00:41:50] Speaker 04:
And that's something that you, your client, invested in.

[00:41:55] Speaker 02:
We're not saying that's wrong or bad, lawyering or unethical.

[00:42:00] Speaker 02:
The only question is whether the district court's placing its entire decision on that

[00:42:09] Speaker 02:
is wrong as a matter of fact when there were in fact demands for the actual damages suffered.

[00:42:15] Speaker 02:
They may be incorrect, but they're not in some other ballpark.

[00:42:20] Speaker 02:
They're in the same ballpark.

[00:42:25] Speaker 03:
I mean, they're not in that.

[00:42:29] Speaker 03:
Initially, they certainly hadn't incurred their $50,000 worth of fees.

[00:42:36] Speaker 02:
Yeah, so that's why they asked for only $5,400.

[00:42:39] Speaker 02:
worth of fees.

[00:42:40] Speaker 02:
You're not saying that he hadn't gotten $5,400 of fees at that point?

[00:42:47] Speaker 03:
The claims made by the plaintiffs were just outrageous.

[00:42:53] Speaker 03:
It wasn't just that you didn't, that

[00:42:56] Speaker 03:
that their clients were not exempt, it was all sorts of things that they claimed that we didn't do.

[00:43:04] Speaker 03:
There was a whole litany of claims.

[00:43:07] Speaker 03:
I mean, in order to try and decipher and get through all of this, that's what took up all the time.

[00:43:12] Speaker 03:
The reason why they incurred

[00:43:16] Speaker 03:
$260,000 worth of attorney's fees was because they raised all of these claims that really had nothing to do with their case.

[00:43:24] Speaker 03:
This was a small case.

[00:43:26] Speaker 03:
If they had just handled it properly, it wouldn't have mushroomed the way that it did.

[00:43:32] Speaker 02:
OK.

[00:43:36] Speaker 02:
You can go ahead with the timeliness.

[00:43:39] Speaker 02:
I interrupted you.

[00:43:40] Speaker 03:
Well, I think that the timeliness argument is

[00:43:45] Speaker 03:
That puts an end to the entire case.

[00:43:49] Speaker 03:
They were supposed to file by a certain deadline.

[00:43:51] Speaker 03:
They missed the deadline by one day.

[00:43:52] Speaker 03:
That's it.

[00:43:53] Speaker 03:
End of discussion.

[00:43:54] Speaker 02:
Well, what about the fact that they did file no later than 14 days after the entry of judgment on the Rule 59 decision?

[00:44:03] Speaker 03:
Well, so now we're supposed to look back in time, Your Honor?

[00:44:06] Speaker 03:
Are we supposed to go to the next decision and look back and say, well, you know... That's what the statute says.

[00:44:12] Speaker 02:
And that is what the advisory notes say.

[00:44:16] Speaker 02:
The court under D2B may effectively extend the period.

[00:44:21] Speaker 02:
In any event, a new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court or the granting of a motion under Rule 59.

[00:44:31] Speaker 02:
And the Ninth Circuit has held and says every other court has also held that when you file a Rule 59 motion, it suspends the time.

[00:44:43] Speaker 03:
So they never filed another.

[00:44:45] Speaker 03:
First of all, the judge in this case, Judge that she didn't didn't enter any order saying, OK, now you have more time.

[00:44:55] Speaker 03:
Basically, he issued two decisions that.

[00:44:59] Speaker 03:
with all due respect to him, made no sense concerning the time limitations.

[00:45:04] Speaker 04:
If it were time barred, then there would be a question whether the plaintiff's failure to meet the deadline was excusable neglect.

[00:45:12] Speaker 04:
So you're asking for us to, in a remand order, ask the district judge whether the failure to meet the time bar was excusable neglect?

[00:45:22] Speaker 04:
Yes.

[00:45:24] Speaker 02:
What statute says that?

[00:45:26] Speaker 02:
What statute says what the penalty for filing late is?

[00:45:30] Speaker 03:
I'm sorry?

[00:45:31] Speaker 02:
What rule says that the penalty for filing late, what the penalty for filing late is?

[00:45:38] Speaker 03:
Well, okay.

[00:45:42] Speaker 02:
Is there a rule, something particular?

[00:45:45] Speaker 02:
The rule about attorney's fees doesn't actually mention what the penalty is.

[00:45:53] Speaker 03:
Okay, well we did cite a number of cases regarding this.

[00:46:02] Speaker 03:
I mean, it just seems, obviously there's a deadline in there, there's a rule in there for some reason.

[00:46:09] Speaker 03:
And if the legislature decided that this was the appropriate time that we needed to have, then

[00:46:23] Speaker 02:
uh... if the sanctions should be that if you finally you don't get your feet well that's true for matters that are jurisdictional that's not true for matters that are not jurisdictional no one's ever held this rule is jurisdictional time in this role i mean this uh... that that is not jurisdictional can be excused and even where it is all is filed late that latest can be here

[00:46:53] Speaker 04:
delay in the entry of judgment in response to a post trial motion.

[00:46:57] Speaker 04:
So it seems, if we're sharing that, that time would be extended here, unless there's something that we're missing.

[00:47:05] Speaker 04:
Why that wouldn't?

[00:47:06] Speaker 04:
What would be?

[00:47:06] Speaker 04:
Let me ask you this another way.

[00:47:08] Speaker 04:
It's my last question on the timeliness.

[00:47:11] Speaker 04:
What would be served by the reading of the interplay between the deadline for fee filing and the allowance of a new judgment in response to a push on motion?

[00:47:29] Speaker 04:
You're saying that they should have refiled their fee petition when a new judgment was entered.

[00:47:35] Speaker 04:
What is served by that regime?

[00:47:40] Speaker 04:
What interests?

[00:47:42] Speaker 04:
Why should we read the bill that way?

[00:47:49] Speaker 03:
If you don't read it that way, then we would just have had it.

[00:47:54] Speaker 03:
People could do whatever they want.

[00:47:55] Speaker 03:
I mean, it seems like that's what you may be suggesting.

[00:47:58] Speaker 04:
Well, they have filed and sought fees.

[00:48:00] Speaker 04:
They've put in the amount.

[00:48:03] Speaker 04:
So you're on notice that they plan to seek fees.

[00:48:06] Speaker 04:
So if there's any pre-appeal opportunity for settlement, for example, that's served, that interest is served.

[00:48:15] Speaker 04:
So I'm just wondering if you could think about, if you were writing this, why would you say that the refiling of an already filed, under review late filed fee petition is salutary and necessary?

[00:48:31] Speaker 03:
What should have happened here was they filed it late.

[00:48:34] Speaker 03:
It should have been dismissed.

[00:48:36] Speaker 03:
Now, if the judge or if the judge wanted to, he could have excused it.

[00:48:41] Speaker 03:
But he didn't.

[00:48:42] Speaker 03:
He gave two reasons.

[00:48:43] Speaker 04:
He found it timely.

[00:48:44] Speaker 04:
And you could say the reason he found it timely hurt.

[00:48:46] Speaker 03:
He was incorrect in both of those decisions.

[00:48:48] Speaker 03:
But then it became timely because of the post-trial motion.

[00:48:51] Speaker 04:
And the question is, if I say it became timely, why do you say, no, no, no, no, that's not a regime that makes sense?

[00:48:56] Speaker 04:
And I'm trying to understand why that is a regime that doesn't make sense.

[00:48:59] Speaker 03:
Because it wasn't timely to begin with.

[00:49:02] Speaker 03:
It basically didn't exist to begin with.

[00:49:06] Speaker 03:
And then...

[00:49:08] Speaker 03:
There was no subsequent ruling by the judge saying, OK, I'm going to allow you to that this isn't going to be late anymore because actually now I'm going to stay everything until we have this decision on the merits.

[00:49:25] Speaker 03:
There wasn't anything.

[00:49:26] Speaker 03:
Nothing.

[00:49:27] Speaker 03:
It was a blank slate.

[00:49:28] Speaker 03:
So they should have, in their reading of these rules, they should have then gone ahead and refiled their petition for fees.

[00:49:36] Speaker 02:
Which rule do you think says that?

[00:49:40] Speaker 02:
It says that the rule that we've been talking about, which is 54, says in the notes, a new period for filing will automatically begin if a new judgment is entered following a reversal or remand by the appellate court of the granting of motion under Rule 59.

[00:49:57] Speaker 02:
And the rule for attorney's fees, which is 2B, says,

[00:50:04] Speaker 02:
The motion must be filed no later than 14 days after the entry of judgment.

[00:50:09] Speaker 02:
It doesn't say it has to be filed between a certain day and the entry of judgment.

[00:50:15] Speaker 02:
It says no later than.

[00:50:17] Speaker 02:
And this was filed no later than the entry of judgment on the Rule 59 decision.

[00:50:23] Speaker 02:
So in what way is it inconsistent or out of time under Rule 54?

[00:50:29] Speaker 03:
Well, the rule says after.

[00:50:32] Speaker 02:
Yeah, no, it shall be filed no later than 14 days after.

[00:50:37] Speaker 02:
And it was filed no later than 14 days after.

[00:50:40] Speaker 02:
It doesn't say it has to be filed after the motion.

[00:50:43] Speaker 02:
It just says no later than 14 days after entry of judgment.

[00:50:47] Speaker 02:
This happened to be filed before, long before 14 days after the entry of judgment.

[00:50:52] Speaker 02:
In fact, it was filed before entry of judgment.

[00:50:57] Speaker 03:
I understand your point, but I don't think that was what was... Well, you want to be very technical.

[00:51:08] Speaker 02:
You want to say that filing one day late

[00:51:12] Speaker 02:
is the end.

[00:51:14] Speaker 02:
And I guess I'm saying, well, if we're going to be very technical, then let's read the rule exactly as written.

[00:51:19] Speaker 02:
And it says, by fort, no later than 14 days after the entry of judgment.

[00:51:24] Speaker 02:
That's the rule.

[00:51:25] Speaker 02:
And that's formalist, but it's the rule.

[00:51:28] Speaker 02:
So if one day late means you're dead, then no later than 14 days after the entry of judgment means you're not dead.

[00:51:42] Speaker 02:
Let me ask you a different question.

[00:51:44] Speaker 02:
I was taken by your arguments in your reply brief about what you describe as unrelated claims that they lost.

[00:51:53] Speaker 03:
Yes.

[00:51:54] Speaker 02:
Can you explain, I don't know, give us your top five unrelated claims and whether, that I take it you believe the district court failed to address altogether and why they're unrelated.

[00:52:09] Speaker 03:
I'm not sure that I'm not sure if you come up with the top five, because I mean, it's just that none of my reading of Mr. Court's decision was that the only thing they said, the only thing Judge Cacciola found was related was the liquidated damages issue.

[00:52:27] Speaker 03:
And I can see why that might be related.

[00:52:29] Speaker 02:
However, what about his double 10% deduction for, you know, just in case?

[00:52:36] Speaker 02:
That's their argument, that he reduced it 10% twice.

[00:52:40] Speaker 03:
The judge never went through... We had listed all these claims that were either dropped, denied or dismissed.

[00:52:50] Speaker 03:
He never went through them and said, these are all related or these are not related.

[00:52:55] Speaker 03:
But I mean, for example,

[00:52:59] Speaker 03:
One of their claims, there was a lot of claims regarding the joint employer situation.

[00:53:06] Speaker 03:
But they made these claims that, for example, Ms.

[00:53:11] Speaker 03:
Radke was an employee of Life Care when she only worked for ADVANA.

[00:53:15] Speaker 04:
Wasn't Life Care, I may have this flipped, Life Care was a subcontractor of ADVANA or the other way around?

[00:53:23] Speaker 04:
Life Care was a subcontractor of Rana.

[00:53:24] Speaker 04:
So that's always a question in these cases.

[00:53:27] Speaker 04:
Who is the employer, statutory employer?

[00:53:29] Speaker 03:
I mean, the problem is that it's one thing maybe to have a complaint that includes all of these things.

[00:53:37] Speaker 03:
But then when the information comes out in discovery, why are you still maintaining these claims?

[00:53:44] Speaker 04:
It would just be helpful.

[00:53:46] Speaker 04:
My sense is that none of these were the driving force behind our investment.

[00:53:51] Speaker 04:
Do you have briefs that show that they were spending chunks of argument time or lots of deposition time, let's say, on these kinds of issues rather than on the core issue in which they prevail?

[00:54:02] Speaker 04:
Because my sense is from the record is that it's not really that.

[00:54:06] Speaker 04:
That you're seeing this as some sort of static.

[00:54:10] Speaker 04:
But is it static around the edges, or is it something that was driving a lot of expenditure of time?

[00:54:17] Speaker 03:
Look, I think the main fact to be considered is that this case, while they did get a verdict in their favor, it was really a loss.

[00:54:33] Speaker 03:
It was a win for the defendants.

[00:54:34] Speaker 03:
The verdict was small.

[00:54:36] Speaker 03:
And all of these claims that they said they had, they all went away.

[00:54:40] Speaker 03:
So they won on one claim.

[00:54:43] Speaker 03:
And so how can you have a situation like that?

[00:54:46] Speaker 03:
where you've got essentially a win for the defendants, how are you gonna go and at the same time pay them 260,000 or even 50,000?

[00:54:56] Speaker 02:
Okay, no further questions.

[00:55:05] Speaker 02:
Any time left?

[00:55:05] Speaker 02:
I'm sure not.

[00:55:06] Speaker 02:
All right, we'll give you one minute, but we're really gonna hold you to one minute this time, okay?

[00:55:11] Speaker 02:
When I say this time, I mean in comparison to what we did with the other lawyers.

[00:55:14] Speaker 02:
Yes, Your Honor.

[00:55:15] Speaker 02:
Not your fault, but nonetheless.

[00:55:17] Speaker 05:
Don't start.

[00:55:20] Speaker 05:
I want to take a moment to address the synthesis of Hensley and Purdue.

[00:55:28] Speaker 05:
I've had a moment to think about it.

[00:55:30] Speaker 05:
And I want to point out that in Purdue, the Supreme Court recognized Johnson, the Johnson factors, which was the genesis of Hensley.

[00:55:43] Speaker 05:
And the Supreme Court described that approach and said there's a second approach, the lodestar approach, a competing approach.

[00:55:58] Speaker 05:
I think that what we've seen is that the Supreme Court has made it clear that the competing lodestar approach has primacy.

[00:56:12] Speaker 05:
Now, it doesn't mean that Hensley is gone, of course.

[00:56:17] Speaker 05:
But if you look, Your Honor, at Justice Thomas's concurrence,

[00:56:25] Speaker 05:
He synthesizes them for it.

[00:56:26] Speaker 05:
We don't have to do the work, Your Honor, because Justice Thomas has done it for us.

[00:56:30] Speaker 02:
You are kidding, of course.

[00:56:31] Speaker 02:
The idea that a concurrence was not joined in by anybody else does the work for us.

[00:56:38] Speaker 02:
That's pretty dangerous territory for us, regardless of who wrote that concurrence.

[00:56:43] Speaker 05:
to the extent that it highlights an aspect of the decision that I think is, in fact, fairly reflected in the majority and in the primary concurrence, where he says... Then you, I assume, think that Judge Justice Powell's concurrence in Riviera

[00:57:04] Speaker 02:
which makes your argument considerably weaker.

[00:57:08] Speaker 02:
We should also follow that one.

[00:57:09] Speaker 02:
No, Your Honor.

[00:57:10] Speaker 02:
No, definitely not.

[00:57:11] Speaker 02:
Because that one's big.

[00:57:13] Speaker 02:
Because actually, the year was only a plurality.

[00:57:16] Speaker 02:
And it was Paul's decision that made it a majority.

[00:57:20] Speaker 02:
And you think that's less important, Paul's decision there.

[00:57:24] Speaker 05:
No, I think that we're talking about two different things, Your Honor.

[00:57:27] Speaker 05:
We're talking about what?

[00:57:27] Speaker 02:
I think we have your point.

[00:57:30] Speaker 02:
Thank you so much.

[00:57:31] Speaker 02:
I appreciate the question.

[00:57:32] Speaker 02:
We'll take the matter under submission.