Westban Hotel Venture, LP, doing business as
1. Background. The plaintiff worked as a server at banquets and functions in the defendant’s hotel, the Westin Copley Place, for more than fourteen years. During that period, she worked at an average of 400 events per year. At each of these events, the plaintiff was supervised by one or more banquet captains, who were responsible for supervising the servers and doing whatever else was necessary to ensure smoothly run functions. From time to time, the captains assisted in actual service of food and beverages, but food and beverage service was a minor component of their over-all mission. At all times material to the litigation, the defendant customarily assigned captains to supervise more than one function simultaneously.
The defendant routinely added a fourteen percent service or gratuity charge to the food and beverage charges for each function. From 1983 through August, 1995, the defendant distributed an equal share of an event’s service charge to each employee, including the captains, who had worked at the event. As a result, when working multiple functions simultaneously, banquet captains would receive a largеr portion of the gratuities than the servers who actually served food and beverage.
In September of 1997, this action was commenced to chal
Ultimately, the case proceeded to a jury-waived trial that bifurcated liability and damages. In the liability phase, the trial judge found that captains did provide “service” to banquet patrons and were entitled to share in the service charges the defendant collected. The judge also found, however, that the defendant’s custom and practice of allowing banquet captains who simultaneously worked at multiple functions to collect a proportionate share of the service charges generated by each function violated the statute’s “proportionality” provision (see note 4, supra). Based on that conclusion, the judge also concluded that the defendant’s practice violated the covenant of
At the subsequеnt damage phase of the trial, the plaintiff, who had sought damages ranging from approximately $78,000 to $127,000, was only able to prove that she had been harmed by the defendant’s practice on one occasion and that the damages for that one occasion amounted to $1.26. Because she believed that G. L. c. 149, § 152A, required an award of treble damages, the judge ordered entry of judgment in the amount of $3.78. The judge also awarded the plaintiff $153,717.77 in costs and attorney’s fees pursuant to G. L. c. 149, § 150.
On this аppeal, the defendant challenges the judge’s decision to treble the damages and to award costs and attorney’s fees.
2. Trebling damages pursuant to G. L. c. 149, § 150. General Laws c. 149, § 150, as appearing in St. 1993, c. 110, § 182, provides, in pertinent part: “Any employee claiming to be aggrieved by a violation of [G. L. c. 149, § 152A,] may . . . institute and prosecute in his own name and on his own behalf... a civil action for injunctive relief and any damages incurred, including treble damages for any lost wages and other benefits.” In her findings and conclusions following the damаge phase of the trial, the judge stated, “It would not appear from a reading of the statute that such a trebling is discretionary.” Accordingly, she trebled the $1.26 basic award to $3.78. Subsequently, however, the Supreme Judicial Court held in Wiedmann
3. Award of attorney’s fees. General Laws c. 149, § 150, is an exception to the “American Rule,” which requires each party to bear its own litigation costs. See generally Police Commr. of Boston v. Gows,
In opposing the fee award in this case, the defendant claims that the plaintiff’s failure to recover anything more than “nominal” damages means that she should not be viewed as the “prevailing party” fоr purposes of a fee award and, even if she should be, the award in this case is not “reasonable.” We consider those claims in succession.
The Court went on to say, however, that
“[ajlthough the ‘technical’ nature of a nominal damages award or any other judgment does not affect the prevailing party inquiry, it does bear on the propriety of fees awarded under § 1988. Once civil rights litigation materially alters the legal relationship between the parties, ‘the degree of the plaintiff’s overall success goes to the reasonableness’ of [the] fee award .... Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of success obtained.’ ... In some circumstances, even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney’s fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party.”
Id. at 114-115. In the aftermath of Farrar, numerous Federal decisions have declined to award attorney’s fees to litigants who recovered only nominal damages in civil rights litigation.
The defendant urges that the analytical approach taken by
b. Reasonable fees. Finally, then, we turn to the fee the judge awarded here. “The basic measure of reasonable attorney’s fees is a ‘fair market rate for the time reasonably spent preparing and litigating a case.’ ” Stowe v. Bologna,
The proper method for determining the lodestar was explained succinctly in Stowe v. Bologna,
“The first component of the basic measure amount is the amount of time reasonably expended on the case. The judge should begin his inquiry with the amount of time documented by the plaintiff’s attorney. Stratos, supra at*791 322-323. Then the judge decides whether this amount of time was reasonably expended. Id., and cases cited. The judge should not only consider the plaintiff’s financial interests at stake but also the plaintiff’s other interests sought to be protected by the statute in question and the public interest in having persons with valid claims under the statute represented by competent legal counsel. See [i]d. at 323. The second component of the basic measure amount is the amount of а reasonable hourly rate. This amount should be the average rate in the community for similar work by attorneys with the same years’ experience. Stratos, supra at 323-324, and cases cited.”
In deciding whether the documented time was reasonably expended the judge may, in addition to considering the interests at stake, also consider many of the factors articulated in Linthicum v. Archambault,
At the same time, realistic assessment of the benefits the litigation actually produced is always necessary when attempting to determine what litigation costs are appropriate, for neither costs nor benefits are free-floating variables. In determining time reasonably spent on a matter, the court must be mindful of “thе difficulty of the case” and “the results obtained,” Stratos v. Department of Pub. Welfare,
In this case, the judge did not use the lodestar method to calculate the attorney’s fees she awarded, and she did not specifically focus on whether the hours spent оn the case were spent reasonably. See T & D Video, Inc. v. Revere, 66 Mass. App. Ct. 461, 476-477 (2006), cert. denied,
We think that the judge’s election to use the Linthicum factors directly, and not as guides to determining whether the hours spent on the case were reasonable, caused her to focus with insufficient precision on the amount of time it was reasonable for the plaintiffs counsel to have spent on this case in light of the results the plaintiff obtained. As to complexity, the judge noted that the case had required two trials, each lasting four days. In addition, the judge said that “much effort was required in the discovery phase, together with time required to try to analyze the data and attempt to utilize it to support the plaintiff’s claims.” But the plaintiff’s primary claim at the first trial was that G. L. c. 149, § 152A, prohibited the captains from participating in any distribution of service charges, a claim the court rejected. And at the second trial, the plaintiff’s еffort to prove damages somewhere
As to the impact of the litigation on the service industry, the judge said that the “case was not only factually complex but [also] significant to those in the service industry. That the plaintiff prevailed was important not only for her own claim but for others similarly situated (even though this particular defendant, to be fair, did in fact change its system prior to the litigation). However, what the defendant did by choice is now required by judicial fiat. This was no small feat on the part of an attorney representing a waitress against the interests of a major hotel chain.” That said, nothing in the record suggests that any other employers ever used the defendant’s challenged system for paying captains who supervised overlapping events or, if they did, how widespread the practice was. Also, the defendant itself, as the judge noted, had abandoned that system two years before the litigation began. And, to the extent that the decision affected other people in the plaintiff’s position in the service industry, those other people, like the plaintiff herself, were adversely affected by the decision in the liаbility phase of the case, where the plaintiff did not prevail
There is no doubt that the plaintiff’s attorney was experienced and well credentialed. But the judge’s finding that the attorney had in effect “discounted” his fee application by “waiving” his right to claim a fee for hours spent on the case “which in his own estimation were not adequately recorded, i.e., not contemporanеously recorded,” gives insufficient weight to the principle that “[t]he fee applicant bears the burden of documenting in detail the hours expended and of establishing the market rate,” T & D Video, Inc. v. Revere,
In sum, we think that the judge’s analysis of the plaintiff’s request for attorney’s fees considered with insufficient precision the relationship between the fee requested and the results the litigation achieved, that is, whether the amount of time spent on the case was reasonable in light of those results. To be sure,
4. Attorney’s fees incurred on appeal. The plaintiff has requested an award of fees in connection with this appeal. Since she has not prevailed here, appellate attorney’s fees are not warranted.
Paragraph 3 of the judgment, which trebles the amount of damages to $3.78, and paragraph 4 of the judgment, which assesses attorney’s fees and costs in the amount of $153,717.77, are vacated, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
We note that the trial judge’s “Findings of Fact, Mеmorandum and Order on Plaintiff’s Motion for Calculation of Damages As Well As Assessment of Attorneys’ Fees and Costs” states that the award of fees and costs totals $153,717.55. However, the judgment entered awards $153,717.77, twenty-two cents more. The difference is likely a typographical error; we refer to the judgment amount in this opinion.
The trial judge explained that result in the following fashion:
“[A] captain working ten small functions at the same time with three servers will share [one fourth] of the tip from each function. Assuming that the gross invoice for each function is $600 [and] assuming further that the service charge is 14% the captain will receive $21 from each function or $210 for the ten functions, while each server would only get*786 $21. General Laws [c.] 149, § 152A, requires proportionality. Accordingly, applying this principle, thirty-one employees should share a tip pool of . . . $840 divided by 31 employees equals $27.10 for each server and the captain.”
The action was commenced by Astor D. Chance, another of the defendant’s employees, who later withdrew. Plaintiff Constance M. Killeen joined the action in October, 1997, and proceeded alone after Chance withdrew.
General Laws c. 149, § 152A, as amended by St. 1983, c. 343, provides, in pertinent part: “No employer . . . shall solicit, demand, request or accept from any employee engaged in the serving of food or beverage any payment of any nature from tips or gratuities received by such employee during the course of his employment ... or retain for himself any tips or gratuities given directly to the employer for the benefit of the employee, as a condition of employment. . . . If an employer or other person submits a bill or invoice indicating a service charge, the total proceeds of such charge shall be remitted to the employees in proportion to the service provided by them. . . . [T]he court may require such employer or other person to make restitution for any tips or gratuities accepted or retained by him in violatiоn of this section.”
The plaintiff in Wiedmann sued for a violation of G. L. c. 149, § 148, the weekly payment of wages law. General Laws c. 149, § 150, provides the right of action for violations of § 148 as well as of § 152A.
In Goodrow v. Lane Bryant, Inc., supra at 179, the Supreme Judicial Court held that, because the law was uncertain at the time and there was nothing to show that the employer “intentionally or wilfully violated Massachusetts law,” the trial court had properly declined to award treble damages.
See, e.g., Willis v. Chicago,
In Johnson v. Georgia Highway Express, Inc.,
Perhaps for that reason, the judge stated that the plаintiff’s claim was “meritorious” and that her inability “to meet her burden of proof was a problem of evidence and not necessarily a reflection of the merits of the case.” This sounds as if the judge were suggesting that a different approach to the evidence would have led to a better result. Yet the judge did not relate that suggestion to her analysis of the degree of success for which counsel was to be compensated.
As for the rate the attorney charged, the judge found that “attorneys of similar experience and expertise in the greater Boston area would likely charge rates in the range of $250-$350 per hour for this work.” The plaintiff’s attorney charged $265 per hour, an amount within that range. Later, though, the judge said that
“[t]he plaintiff notes that the United States Attorney’s Office has compiled an extensive matrix, called the ‘Laffey Matrix.’ Under this matrix which the Federal Courts have used to ascertain reasonable attorney’s fees in ‘fee shifting’ cases, the appropriatе hourly fee for attorneys with the experience of these plaintiff’s attorneys is more than $115 per hour more than [the] rate currently sought by plaintiff’s counsel.”
The judge apparently used the “Laffey Matrix” in forming her judgment that the attorney had “discounted” his fee application. However, the “Laffey Matrix” yields an hourly rate $30 per hour higher than what the judge found was the Boston market rate, or, more precisely, the range of market rates, for similar services by lawyers with similar experience and qualifications. The relationship between Boston market rate and the “Laffey Matrix” is unclear.