Court denies Oberlin College motion to postpone attorney’s fees hearing, as “Plaintiffs intend to seek a lodestar multiplier of 2-3x counsel’s hourly fees, resulting in an award range of $9-13 Million plus expenses.”
But there is an important piece left in the case, the determination by Judge John Miraldi of the amount of attorney’s fees, after the jury found in the punitive damage verdict that the plaintiffs were entitled to such fees.
It has been unknown, until now, how much plaintiffs would seek in attorney’s fees, and on what basis (e.g., contingency fee, “lodestar” or otherwise).
On June 28, 2019, the Court entered an order scheduling a hearing on Plaintiffs’ attorneys’ fees for 12 days later—July 10, 2019. Defendants respectfully request that this hearing be continued for 45 days so that they may be afforded a fair and reasonable opportunity to (i) request the relevant documents from Plaintiffs pertaining to Plaintiffs’ claimed fees and costs; (ii) analyze those documents; (iii) search for and retain an expert to review and analyze whether Plaintiffs’ claimed fees and costs are reasonable; and (iv) coordinate with that expert to be present to testify at the hearing.
If the Court is not inclined to continue the attorneys’ fees hearing, Defendants respectfully request an order that requires Plaintiffs to respond to brief discovery requests, which are attached at Exhibit A, seeking the identification of all exhibits and witnesses to be introduced at the attorneys’ fees hearing. Defendants respectfully request that the Court order Plaintiffs to produce this information on or before July 5, 2019, at 10:00 a.m.
At the attorneys’ fees hearing, it is expected that Plaintiffs will present arguments and evidence that the Court may use to conduct a lodestar analysis, which is calculated by taking the number of hours reasonably expended on a case and multiplying that figure by a reasonable hourly fee. Welch v. Prompt Recovery Servs., Inc., 9th Dist. Summit No. 27175, 2015-Ohio-3867, ¶ 20….
Plaintiffs have represented to Defendants that their estimated attorneys’ fees in this case would exceed $5 million. Claimed attorneys’ fees and costs in excess of $5 million will be reflected in hundreds—if not thousands—of pages of legal bills from the three law firms and eight attorneys that have represented Plaintiffs in the 20 months of this litigation. It is expected that Plaintiffs will attempt to introduce some or all of these legal invoices, and/or summaries of their fee statements, during the attorneys’ fees hearing. It is also expected that Plaintiffs will call witnesses to testify regarding the reasonableness of their fees. If Defendants are not afforded a meaningful opportunity to review the legal invoices upon which Plaintiffs’ claim for fees is based, they will be severely prejudiced in their ability to respond to Plaintiffs’ requests. In addition, Defendants are entitled to know what information, exhibits, and witnesses Plaintiffs intend to introduce in support of their claims during the attorneys’ fees hearing. As of the date of this filing, Defendants have not received a single piece of paper to support Plaintiffs’ anticipated request for millions of dollars in fees. Whenever these documents are produced, they will require review and scrutiny by Defendants’ counsel.
Defendants are also working to engage an expert witness who can (i) analyze Plaintiffs’ legal fees; and (ii) appear at the hearing to opine on the reasonableness of Plaintiffs’ fees. Under the current scheduling Order — and given the July 4th holiday — Defendants only have six business days to find, interview, and retain an expert who can devote a significant amount of time to the task in a short period.
The motion also indicated that the plaintiffs have subpoenaed defense counsel’s billing records, presumably to show that plaintiffs’ counsel’s time was not disproportionate to the defense counsel’s time, and hence, reasonable:
In addition, within the past 48 hours, Plaintiffs have sought to obtain Defendants’ billing records from counsel for Defendants and three insurance carriers through the issuance of subpoenas. These requests are improper and inappropriate and do not relate in any way to Plaintiffs’ request for attorneys’ fees. Judicial intervention will be necessary to address Defendants’ objections (and objections from Defendants’ insurance carriers) arising from Plaintiffs’ improper subpoenas.
Note that the obligation of an insurer to defend is generally broader than the obligation to indemnify. So even if Oberlin College’s insurers are disclaiming coverage for the verdicts, they still may have been obligated to provide a defense. Whether the insurers can clawback the fees they paid is an area of law with which I’m not familiar.
The jury returned a compensatory damages verdict in favor of Plaintiffs on June 7, 2019. On June 13, the jury returned a punitive damages verdict against the Defendants and completed interrogatories identifying that Plaintiffs are entitled to attorneys’ fees. Therefore, Defendants cannot be surprised to learn that an attorneys’ fees hearing has been scheduled to occur (on July 10) nearly a month after the verdict.
Likewise, Defendants cannot claim undue prejudice or surprise as to the scope of the work performed by Plaintiffs’ counsel throughout the case. Defendants observed, first-hand, the scope of legal work involved in this case. Obviously, Defendants’ counsel was involved in much of it, including but not limited to: preparation and attendance at depositions, hearings, and trial; written discovery; compilation and review of substantial e-discovery; and preparation of voluminous motions, responses, and replies.
So that the hearing can proceed on July 10, Plaintiffs agree to identify witnesses for the hearing on July 5. Plaintiffs will also identify their expert witness on July 5 and further expect to be able to produce their expert’s report by the end of the day Friday (July 5), as well…
Plaintiffs will also provide the documents they plan to utilize in support of the requested award by the end of the day Friday (July 5). Plaintiffs will therefore exchange Plaintiffs counsel’s billing statements with Defendants, assuming that Defendants’ counsel produces their billing statements by July 5 in compliance with previously-served subpoenas. To the extent that Defendants challenge the number of hours reasonably expended and/or the reasonable hourly rate of Plaintiffs counsel’s services,1 it stands to reason that the number of hours performed by Defense counsel in the same case and their hourly rates are relevant.
The plaintiffs’ lawyers then explained the intended request:
To further place Defendants on notice of the requested award in advance of the hearing, Plaintiffs intend to seek a lodestar multiplier of 2-3x counsel’s hourly fees, resulting in an award range of $9-13 Million plus expenses.
Plaintiffs then used post-verdict statements by Oberlin College President Carmen Twillie Ambar to argue that the request for a delay was just part of an overall delay policy:
At the conclusion of their Motion, Defendants use the standard refrain that their “Motion is not made for purposes of delay…” In reality, Defendants’ Motion (like so many others before it) has only been filed for purposes of delay. In a post-verdict statement to the public, Oberlin College President Carmen Twillie Ambar warned of such delays:
The Judge denied the request for a postponement, but also ordered the exchange of information, including the defense billing records:
This matter comes before the Court upon the filing of Defendants’ motion to continue the hearing on attorney’s fees scheduled for July 1O, 2019 and Plaintiffs’ opposition thereto. Defendants’ motion is hereby denied.
The hearing will proceed on July 10, 2019 at 1:30 PM. No later than Monday July 8, 2019 at 5:00 PM: 1) the Parties shall identify all witnesses they intend to call to testify at the hearing and any exhibits they intend to introduce at the hearing; 2) Plaintiffs shall provide Defendants with responses to the discovery requests attached to Defendants’ motion to continue; and 3) Defendants shall provide Plaintiffs with their billing statements as referenced in Plaintiffs’ opposition.
IT IS SO ORDERED.
It is not known whether this information was exchanged on July 5, as ordered.
Oberlin College mounted a scorched-earth defense, as witnessed by a court electronic docket now on its 20th page, and a protracted trial strategy that helped turn what was supposed to be a 2-3 week trial into a six week trial, much of the time spent on defense motions.
The tone-deaf defense strategy never made sense to me, resulting in a $25 million judgment. Now Oberlin College may pay the price again for that misguided defense, in the form of paying plaintiffs’ attorney’s fees.
Daniel McGraw will be at the July 10 hearing, and will report on what takes place.
[Featured Image: Plaintiffs counsel Owen Rarric and Lee Plakas][Photo Credit: Legal Insurrection Foundation]
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