276 F. Supp. 3d 1067
W.D. Wash.2017Background
- Seven environmental organizations sued BNSF under the Clean Water Act, alleging railcars discharged coal/petcoke into Washington waters; after cross-motions for summary judgment were denied, the parties settled after trial.
- The consent decree required BNSF to study coal-car covers, remove/monitor coal and petcoke at six sites, and pay $1 million to a remediation foundation; it preserved Plaintiffs’ right to seek attorney fees and costs.
- Plaintiffs moved for fees and costs totaling $3,847,426.76 (about $3.55M in fees and $298k in costs); the case record reflected extensive, multi-year litigation and nearly 10,000 hours of counsel time.
- BNSF challenged entitlement and reasonableness of fees: it contested prevailing-party status (arguing no actual relief on the merits), various categories of billed hours (unnecessary work, block billing, duplicative or non-lawyer tasks, travel, and work directed at non-BNSF parties), and certain expert cost claims.
- The Court found Plaintiffs were prevailing parties, denied most overbilling/contention arguments, but reduced fees in specific categories (hours for an improperly filed separate statement of facts; 20% reduction for block-billed/vague entries; deduction for work against non-BNSF parties) and adopted adjusted hourly rates for listed attorneys.
- The Court awarded reasonable litigation costs and expert witness fees in full ($298,331.14) and ordered the parties to submit an updated accounting consistent with the order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prevailing party status | Settlement is judicially enforceable and materially alters defendant’s conduct; Plaintiffs obtained actual relief on the merits | Plaintiffs didn’t obtain the specific relief sought, so are not prevailing parties | Plaintiffs are prevailing parties; relief forced BNSF to do things it otherwise would not have done (St. John’s standard) |
| Reasonableness of hours (various categories) | Hours were reasonably expended in complex litigation; some concessions offered | Many entries unnecessary (improper filings, quashed subpoenas), block billing, duplicative, or non-attorney work | Denied most reductions; deducted hours for improperly filed separate statement, reduced block-billed/vague hours by 20%, rejected other blanket challenges |
| Travel, in-house counsel, and duplicative attendance | Travel and in-house counsel use were necessary; travel billed at full rate; multiple attorneys at depositions reasonable in complex case | Travel from Oregon firm unnecessary or should be at reduced rate; in-house counsel entries are client work; duplicate attendance should be reduced | Travel and in-house counsel hours allowed; travel paid at full hourly rate; duplicative-attorney argument rejected as inherent to complex litigation |
| Hourly rates and fee computation | Proposed Seattle market rates supported by declaration; requested some high senior rates | Opposing market declaration argued lower rates appropriate for some attorneys | Court split difference between expert declarations and set specific adjusted hourly rates for each listed attorney; awarded lodestar with the above hour/rate adjustments |
| Litigation costs and expert fees | Costs (travel, sampling, transcripts) and expert fees were reasonable and documented | Insufficient detail for costs; some experts (Breidenthal, Oris) should be excluded or their fees denied | Court found original cost documentation sufficient and compensable; expert fees for challenged experts awarded (with Plaintiffs’ voluntary reductions applied) |
Key Cases Cited
- St. John’s Organic Farm v. Gem Cty. Mosquito Abatement Dist., 574 F.3d 1054 (9th Cir. 2009) (defines prevailing party standards for CWA fee awards)
- Camacho v. Bridgeport Fin., Inc., 523 F.3d 973 (9th Cir. 2008) (lodestar method for attorney fees)
- Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975) (factors relevant to fee determinations)
- Chalmers v. City of Los Angeles, 796 F.2d 1205 (9th Cir. 1986) (application of Kerr factors)
- Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991) (prevailing party entitled to reasonably expended fees despite adverse rulings)
- Welch v. Metropolitan Life Ins. Co., 480 F.3d 942 (9th Cir. 2007) (requirements for documenting hours and discussion of block billing reductions)
- Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) (necessary duplication in complex litigation may be recoverable)
- Winterrowd v. American General Annuity Ins. Co., 556 F.3d 815 (9th Cir. 2009) (attorneys who do not appear may still perform compensable work)
- Ingram v. Oroudjian, 647 F.3d 925 (9th Cir. 2011) (forum-market standard for reasonable hourly rates)
- Barjon v. Dalton, 132 F.3d 496 (9th Cir. 1997) (forum is generally the relevant market for fee rates)
- Trustees of Const. Indus. & Laborers Health & Welfare Trust v. Redland Ins. Co., 460 F.3d 1253 (9th Cir. 2006) (recoverable litigation costs standard)
- Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991) (fees against government unfair when disputes were between private defendants)