1:16-cv-03071
S.D.N.Y.Nov 10, 2022Background
- Plaintiff Donald Lewis sued his employer for race/gender discrimination and retaliatory termination under federal and New York law.
- Defendants served a Rule 68 offer of judgment for $180,000 plus "all reasonable attorney’s fees and costs in an amount to be determined by the Court" (limited to costs and expenses incurred up to the date of the offer).
- Attorney Anthony Rotondi sought $1.68M (later expanded to $2.6M) in fees and costs, then added a request for "fees on fees" (fees for litigating the fee application) in a supplemental filing.
- The court (Sept. 28, 2018) cut Rotondi’s fee request to $418,266.80 and costs to about $22,378, denying fees-on-fees; judgment entered Oct. 5, 2018.
- Rotondi moved for reconsideration arguing his records were contemporaneous, fees-on-fees were recoverable and not barred by the Rule 68 offer or requiring bad faith, and the fee reduction was excessive.
- The court denied reconsideration (Nov. 10, 2022), finding no controlling law or overlooked facts to justify relief, noting deficiencies (block-billing, vague entries) in Rotondi’s records and that Lilly v. City of New York supported denying fees-on-fees under the offer’s terms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contemporaneity of billing records | Rotondi: records were contemporaneous; redactions only for privilege | Defs: records were deficient and blocked; unclear contemporaneity | Court: records were "seriously deficient" (block-billing, vague entries); plaintiff's contention rejected |
| Recoverability of fees for litigating the fee application ("fees on fees") | Rotondi: fees-on-fees are recoverable and reasonable | Defs: fees-on-fees are not recoverable; offer language limits fees | Court: denied fees-on-fees; no basis to disturb original decision |
| Effect of Rule 68 offer language on post-offer fees | Rotondi: offer did not preclude fees-on-fees | Defs: offer limited fee recovery to services through the offer date | Court: offer limited fees to costs/expenses incurred up to the offer; fees-on-fees not covered |
| Requirement of bad faith to get fees-on-fees | Rotondi: bad faith not required | Defs: no bad faith; no basis for additional fees | Court: no evidence of bad faith; argument fails |
| Excessiveness of the 60% fee reduction | Rotondi: reduction was excessive given results and work | Defs: reduction appropriate due to record deficiencies and overbilling | Court: reduction upheld; no exceptional circumstances to alter fee award |
Key Cases Cited
- Drapkin v. Mafco Consol. Grp., Inc., 818 F. Supp. 2d 678 (S.D.N.Y. 2011) (standards for fee application review and billing record scrutiny)
- Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99 (2d Cir. 2013) (standards for reconsideration/exceptions)
- Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36 (2d Cir. 2012) (reconsideration is not a second bite at the apple)
- Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995) (exceptional circumstances required to grant reconsideration)
- Sigmon v. Goldman Sachs Mortg. Co., 229 F. Supp. 3d 254 (S.D.N.Y. 2017) (district court discretion in reconsideration decisions)
- Lilly v. City of New York, 934 F.3d 222 (2d Cir. 2019) (offer-of-judgment language can limit fee awards and preclude fees incurred after the offer)