Opinion
SUCV2015909D
12-11-2018
Kevin O’Loughlin v. Commonwealth of Massachusetts et al.
File Date: December 19, 2018
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilkins, Douglas H., J.
ORDER ON PLAINTIFF KEVIN O’LOUGHLIN’S MOTION FOR ATTORNEYS FEES AND COSTS
Douglas H. Wilkins Justice Superior Court
A jury found that Kevin O’Loughlin ("Plaintiff" or "O’Loughlin") had been erroneously convicted of child rape and awarded $5,000,000 in damages against the Commonwealth of Massachusetts ("Commonwealth") under the erroneous conviction statute, G.L.c. 258D. After the Court entered judgment on June 7, 2018 the Commonwealth filed the "Commonwealth’s Rule 59(e) Motion to Amend Judgment (dkt. #100)" ("Rule 59 Motion"), which the Plaintiff has opposed. On June 29, 2018, the Court denied the Rule 59 Motion, but reserved decision on the question of attorneys fees and costs, including (1) whether the Plaintiff’s request for attorneys fees is governed by the recent amendments to G.L.c. 258D, § 5(A) (see St. 2018, c. 69, §§ 116-24, effective April 13, 2018) and, if so, (2) what amount is fair and reasonable.
O’Loughlin also sued the Town of Framingham and several of its officers and employees for civil rights violations. That claim was settled for $900,000 ("Framingham Settlement") shortly before the original trial date, scheduled for January 8, 2018.
I.
Logically the retroactivity issue comes first.
This case was filed in 2015, long before the 2018 amendments. It went to verdict after the 2018 amendments became effective. In ruling upon the Rule 59 Motion, the court found this case most similar to Porter v. Clerk of the Superior Court, 368 Mass. 116, 118 (1975), which applied the so-called "practice [and] procedure" rule to a situation where the statutory interest rate changed during the pendency of the litigation. Cf. also Fontaine v. Ebtec Corp., 415 Mass. 309, 320 n.11 (1993) (approving retrospective application of a statutory amendment allowing the MCAD to award attorneys fees, albeit as a means to provide a remedy commensurate with the remedy already existed for cases that went to suit in state or federal court). In Porter, 368 Mass. at 118-19, the court held that an increase in the statutory interest rate applied to periods after the statute’s effective date, but not before.
This court previously said:
G.L.c. 258D, § 6, as amended by St. 2018, c. 69, § 121 states: "A claimant who prevails in an action under this chapter shall be entitled to an award of the costs of the litigation and reasonable attorneys fees in an amount to be fixed by the court. This provision cannot apply until at least the jury verdict, because not until then does the plaintiff "prevail[ ]." The court therefore awards attorneys fees and costs under the amended statute. See also Martinez Rodriguez v. Jimenez, 551 F.2d 877, 878-79 (1st Cir. 1977) (applying attorneys fees provisions of 42 U.S.C., § 1988 to a case pending on the statutory effective date). The trickier question is whether it may award fees and costs for the entire litigation, or only for the period after the effective date of St. 2018, c. 69. For purposes of ensuring an adequate record for appellate review, the court will consider the plaintiff’s entire fee petition and determine what award is appropriate both for the entire litigation and for the portion after the effective date of the 2018 amendments. When it issues a decision on attorneys fees and costs, the court will decide whether to do so the entire period of the litigation and invites further briefing on that question.
Here, although attorneys fees accrued throughout the case, there is no entitlement to reimbursement until the very end of the trial. Indeed, the entire rationale for denying interest upon attorneys fees awards is that the obligation to pay attorneys fees does not exist until the plaintiff prevails. See International Totalizing Sys., Inc. v. PepsiCo, Inc., 29 Mass.App.Ct. 424, 437 (1990) ("Interest on the portion of the award representing attorneys fees should ... be calculated from the time judgment was entered on the c. 93A claim"). Under Porter’s rationale, then, not until the verdict (or possibly later) does the case reach the relevant point for assessing what law applies to attorneys fees. Here, the verdict occurred after the effective date of the 2018 Amendments. It follows that the plaintiff is entitled to a full attorneys fees award.
The issue here is not interest upon attorneys fees (which may be barred by sovereign immunity, compare Brown v. Commissioner of Probation, 475 Mass. 675, 677-81 (2016) with DeRoche v. MCAD, 447 Mass. 1, 9-14), but determining the stage of the proceeding to which a new law will apply. For that purpose the analogy is apt.
Broader principles provide independent support for that result. The concerns for retroactivity arising from lack of notice to defendants before they act, or creating incentives to avoid misconduct therefore have no application here. See Martinez Rodriguez v. Jimenez, 551 F.2d 877, 878 n.4 (1st Cir. 1977). As this court previously acknowledged, Fontaine, 415 Mass. at 320, states that "legislation limiting or increasing the measure of liability, while arguably remedial in the broad sense of that word, generally is considered to impair the substantive rights of a party who will be adversely affected by the legislation." By contrast, c. 258D is purely remedial, having no relationship to fault or conduct by the Commonwealth. See Guzman v. Commonwealth, 458 Mass. 354, 360 n.9 (2010). When the Commonwealth is the defendant, particularly in a no-fault system such as that established by c. 258D, concerns about retroactivity may not apply:
Fontaine held that amendments adding punitive or multiple damages as a remedy for prior discrimination were not retroactive. Id. and cases cited. The "substantive rights" at issue in Fontaine related directly to the employer’s right to advance notice of the consequences it faced before it acted.
An exception may concern legislation that affects the substantive rights of the Commonwealth. Such legislation generally has been given retrospective application. See Greenaway’s Case, 319 Mass. 121, 123 (1946) (acknowledging that the Commonwealth’s right to receive workers’ compensation funding from city was a substantive right, but giving retrospective application to legislation reducing the amount required to be paid).
Massachusetts Bd. of Regional Community Colleges v. Labor Relations Comm’n, 377 Mass. 847, 850 (1979), on which the plaintiff relies, gives retrospective effect to legislation augmenting the remedies available to an employee of the Commonwealth who claims to have been discriminated against because of union activity. It is obvious that this legislation impairs the substantive rights of the Commonwealth. We have nonetheless considered it appropriate to give retrospective application to such legislation because the legislation does not adversely affect the rights of private parties. Id.
Fontaine, 415 Mass. at 319 n.10. The examples cited in footnote 10 include both a "no-fault" system as between governmental units (Greenaway) and one involving liability based upon fault in the form of discrimination (Mass. Bd.). If retroactivity is appropriate in those situations, it is all the more appropriate where the Commonwealth’s no-fault statutory scheme serves the sole purpose of compensation to a private citizen for an erroneous conviction.
Retroactive application-or interpreting Porter as allowing attorneys fees in full based upon the stage of proceedings at which they are awarded-is particularly appropriate here. Chapter 258D was enacted "in 2004 in response to the steady increase in exonerations in Massachusetts and throughout the nation." Peterson v. Commonwealth, 478 Mass. 434, 436 (2017). Its purpose is "to ensure that ‘those erroneously convicted but factually innocent be afforded equal opportunities to obtain compensation.’" Renaud v. Commonwealth, 471 Mass. 315, 317 (2015), quoting Irwin v. Commonwealth, 465 Mass. 834, 847 (2013). "[T]raditional civil and tort remedies have been noted to be lacking in providing sufficient redress." Guzman v. Commonwealth, 458 Mass. 354, 355 n.3 (2010). See also Carter v. State, 154 A.D.2d 642, 650; 546 N.Y.Sup. 648 (N.Y.App.Civ., 2nd Dept. 1989) ("the state assumed a moral obligation to compensate innocent persons who have been unjustly convicted and imprisoned but who were otherwise barred from recovery because of the difficulty almost inevitably encountered by such persons in proving the elements of malicious prosecution and false imprisonment ..."). These remedial concerns, based upon considerations of fairness rather than notice to those who contemplate certain actions, take precedence when applied to the Commonwealth here.
It follows that the plaintiff is entitled to an attorneys fees award for the entire litigation. The court notes that this conclusion parallels the result reached in cases pending when the fee provisions of 42 U.S.C. § 1988 became effective, see David v. Travisono, 621 F.3d 44, 467-68 (1st Cir. 1980), although the statutory language regarding retroactivity was stronger in that context. Id. at 466.
II.
The court must fix the amount of reasonable attorneys fees and costs to a "claimant who prevails in an action under this chapter." G.L.c. 258D, § 6, as amended by St. 2018, c. 69, § 121. There can be no question that the plaintiff fully prevailed in this action by obtaining a large money judgment in excess of the $1 million cap in his favor against the Commonwealth. Buckhannon Board & Care Home, Inc. v. W.Va. Dep’t of Health & Human Resources, 532 U.S. 598, 603-4 (2001); Hewitt v. Helms, 482 U.S. 755, 760 (1987). He is entitled to an award of reasonable attorneys fees. Id. See generally Cronin v. Town of Tewksbury, 405 Mass. 74 (1989). The Court must ensure that its award is reasonable. Eastern Holding Corp v. Congress Financial Corp., 74 Mass.App.Ct. 737, 744 (2009).
The plaintiff’s amended request seeks an award of $997,377.45, which reflects a reduction from the initial request $1,046,695.45. See Plaintiff Kevin O’Loughlin’s Amended Total Fee Request, dated December 5, 2018. The reduction responds to the Commonwealth’s challenge to certain hours in the original request. The amended request seeks $919,815 in attorneys fees and a total of $77,562.45 in various expenses.
Analysis starts with the lodestar amount, determined by multiplying reasonable hours expended times a reasonable hourly rate. See Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir. 1997). To the extent not already captured in the hours or the hourly rate, the court must consider the "ability and reputation of the attorney, the demand for his services by others, the amount and importance of the matter involved, ... the prices usually charged for similar services by other attorneys in the same neighborhood, the amount of money or the value of the property affected by the controversy, and the results secured." In the Matter of the Estate of King, 455 Mass. 796, 807 (2010), quoting Cummings v. National Shawmut Bank, 283 Mass. 563, 569 (1933).
The defendant does not argue that the request is disproportionate to the size of the recovery or that the "results obtained" failed to warrant the level of effort. See Killeen v. Westban Hotel Venture, LP, 69 Mass.App.Ct. 784, 792 (2007). See also Hensley v. Eckerhart, 461 U.S. 424, 435-36 (1983). The plaintiff obtained everything that he possibly could have obtained.
A.
The court agrees that some adjustments in hourly rates are warranted. Here, Attorney Kendall has requested an hourly rate of $990 (reduced from his rate of $1,375 per hour for white collar defense and patent litigation), with Attorney Feldman charging $850 per hour and Attorney Vien charging $500 per hour. The hourly rates are commensurate with those charged by large firms litigating large financial matters, usually in federal court. While those rates do apply to such matters in the geographic area of Boston, they are not customary for those handling civil rights and tort matters in Boston. Indeed, at times plaintiff’s counsel was forthright in acknowledging greater familiarity with the federal court than the Superior Court. The rates for fee-shifting purposes should be "those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation." Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984). The submitted rates are not tailored to "similar services," but rather to those provided in high stakes commercial or white collar criminal matters. Without in any way impugning the quality of work or the propriety of the rates when charged to a client with vast resources litigating in federal court, this court finds that a reasonable hourly rate for this matter does not exceed $450 for the senior attorneys (Kendall and Vien) and $400 for Attorney Feldman.
The court has some sympathy for the argument that, before attorneys fees awards became available, the demands of this case, and the intensity with which the Commonwealth defended it, required an investment of time and resources that only a large firm (or firms) could bear. That undeniable reality prevailed from the beginning of the case until 2018, because counsel could not expect any award of attorneys fees even if the plaintiff prevailed. It would, however, be unfair to approve very high hourly rates for that reason. Doing so would go beyond retroactivity to anachronism (and even contradiction), by viewing fee shifting as unavailable for purposes of determining hourly rates, but as available for the purpose of awarding fees based on those rates. There is no indication that the legislature intended the court to determine rates based upon the assumption that fee shifting would be unavailable; it almost certainly intended the opposite.
The above analysis results in the following adjustments to reflect the hourly rate used to calculate the lodestar (prior to deductions attributable to hours spent):
Attorney Hours Rate Allowed v. (Requested) Total Requested Total Awarded Kendall 154 $450 ($950) $152,460 $ 69, 300 Vien 353.15 $450 ($500) $176,575 $158,917.50 Feldman 653.90 $400 ($800) $555,815 $261,560 TOTAL FEES $884,850 $489,777
The other team members accounted for a total fee request of $112,527.45. The rates range from $150 to $300. The court considers these rates reasonable and makes no adjustment to them.
The adjustment in hourly rate, by itself and prior to adjustment to the time charges, produces a preliminary fee award of $602,304.45. To avoid false precision, the court rounds this number to $600,000.
B.
That leaves the question of reasonable hours spent. In reviewing time spent on specific tasks, the Court should reduce the award when necessary to exclude "hours that are excessive, redundant, duplicative, or unproductive." T&D Video, Inc. v. City of Revere, 66 Mass.App.Ct. 461, 476 (2006). My determination is based upon a standard of "fully adequate" representation, not one of perfection. See, e.g., Grendel’s Den, 749 F.2d at 950, 953-54 (rejecting the notion that "the standard of services to be rendered and compensated is one of perfection ..." or "supererogation"). To award fees for efforts that exceed that test would produce a windfall to plaintiffs’ attorneys. See Hensley v. Eckerhart, 461 U.S. 424, 430 n.4 (1983). Therefore, a finding that the time for a particular task was "excessive" or "unreasonable" does not necessarily mean that it was inappropriate in the context of an attorney-client relationship. What it does mean is that such time charges should not be shifted to the defendant, which had no say in the decision to provide that level of effort.
The court agrees with the Commonwealth that there were many conferences, emails or telephone calls between the plaintiff’s attorneys and that "exorbitant time spent by two attorneys in correspondence or telephone calls with other attorneys" must be reduced. Haddad v. Wal-Mart Stores, Inc., 455 Mass. 1024, 1027 (2010). Neither the Commonwealth nor the plaintiff has provided an itemization or quantitative proposal on the suggested reduction. Moreover, there was some overlapping effort in staffing the live discovery events, in-court events, trial preparation and trial with multiple attorneys. That approach may be appropriate to provide a near-perfect representation, but is not necessary to provide fully adequate representation. It is impossible to calculate this adjustment precisely, given the level of detail in the time records, which is, to be sure, a typical level of detail for such records. In the court’s judgment, a 10% reduction ($60,000) is the best approximation of an adjustment to reflect communications between counsel and duplication due to the participation of numerous attorneys at various events.
Apart from this deduction, the court finds the remaining hours were reasonably expended in the pursuit of the judgment in this case. That is particularly true in light of the above reduction in the hourly rates. If the Commonwealth expected a higher level of efficiency, that level would simply be reflected in a higher hourly rate (reflecting greater expertise of counsel) and therefore would not materially change the lodestar amount. The court turns to address the Commonwealth’s other arguments.
The court does not reduce the award on account of alleged duplicative work more properly attributable to the plaintiff’s claims against the Framingham defendants. The plaintiff has already reduced by half numerous time entries that reflect hours spent responding simultaneously to issues raised by both sets of defendants. Given that allocation, and other exclusions of time, the plaintiff has excluded 353.7 hours, even before the additional exclusions made on December 5. The exclusions made on December 5 fully and reasonably respond to the Commonwealth’s specific criticisms made on pp. 15-17 of its Opposition. Having heard the trial evidence, the court finds that testimony and documents from the Framingham defendants was essential to the plaintiff’s claim of actual innocence, which was his burden to prove. For that reason, allocation of that time, rather than exclusion, is the proper approach. The plaintiff has been more than reasonable regarding exclusion and allocation of time spent regarding the Framingham defendants. The court is satisfied that the plaintiff’s request does not include time or expense that should have been attributed to the efforts against the Framingham defendants.
It is true that plaintiff’s attorneys have obtained more than $300,000 from the Framingham settlement. The Commonwealth’s suggestion that the Framingham recovery should result in a reduction of the separate award for the c. 258D claim is not persuasive. The amount recovered against the Framingham defendants was attributable to the claim against them, not the Commonwealth. The plaintiff obtained separate recovery against each set of defendants, neither of which contributed to the recovery against the other. Moreover, the statutory cap has impaired the plaintiff’s ability to recover the jury’s actual $5 million award. Had he recovered the full amount, his lawyers would have recovered a contingent fee five times as large. Fairness dictates that the plaintiff recover a full attorneys fee for counsel’s work in securing a judgment against the Commonwealth.
The resulting reasonable attorneys fees are $540,000.
III.
To facilitate an appeal, in the event that the appellate courts disagree with the court’s resolution of the retroactivity question, the court also determines a reasonable attorneys fee for the portion of this litigation that occurred after the effective date of the 2018 amendments.
If fees are available only for work and expenses occurring on or after April 13, 2018, the court would make the same adjustment in hourly rates that it made in part IIA, above. That results in the following adjustments to reflect the hourly rate used to calculate the lodestar (prior to deductions attributable to hours spent):
Attorney Hours Rate Allowed v. (Requested) Total Requested Total Awarded Kendall 127.8 $450 ($950) $126,522 $ 57, 510 Vien 137.6 $450 ($500) $ 68, 800 $ 61, 920 Feldman 168.1 $400 ($800) $142,885 $ 67, 480 TOTAL FEES $338,207 $186,910
Attorneys fees for the rest of the team are $3,231. Total fees based upon submitted time charges and adjusted hourly rates from and after April 13, 2018 are $190,141. However, the court would again deduct 10% of the submitted hours to account for duplication attributable to the number of attorneys. The resulting fee award, in round numbers, would be $171,000.
A number of other issues would arise if the 2018 amendments authorize an attorneys fee only for work after the effective date of that enactment. First, the court would not award any pre-amendment fees on the theory that the Commonwealth’s pre-2018 Amendment claims were frivolous. The Commonwealth was within its rights to seek to file summary judgment out of time, to oppose a continuance that would likely result in the 2018 amendments applying to this case, and to argue that the damages cap should apply before set-off. There was no controlling authority against the Commonwealth’s position on these points. The Commonwealth’s arguments were not frivolous. While it is unusual to raise an issue ("sole incarceration") that a party does not actually press as a basis for decision, that particular argument did not result in any more than de minimis expenditure of time and effort.
IV.
Costs generally are contested upon the same grounds as the Commonwealth has challenged the attorneys fees. The one new ground challenges the number of experts hired by the plaintiff. The plaintiff’s original expert passed away. The court heard from the two other experts at trial. Their testimony was reasonable and necessary. Particularly where the Commonwealth was not conceding the issues regarding length of incarceration (especially the "sole incarceration" issue), the plaintiff was reasonable in hiring all of these experts, whose fees were reasonable.
It does not appear that the plaintiff has allocated costs between the c. 258D claim and the claim against the Framingham defendants. To account for that issue, the court grants approximately half of the requested costs for transcripts ($3,400 disallowed) and courier and mailing ($333 disallowed) and about two-thirds for matters that continued to be significant even after the Framingham settlement: Online Legal Research ($275 disallowed) and Printing and Copying ($500 disallowed). Total disallowances amount to about $4500. The resulting award of costs, rounded to avoid false precision is $73,000.
If the statutory authority exists to recover costs under c. 258D only on and after April 13, 2018, the total cost award would be $22,971.19, which the court finds reasonable. Since the Framingham defendants had already settled by that time, no deduction on account of the non-258D claims would be appropriate.
ORDER
For the above reasons, the Plaintiff Kevin O’Loughlin’s Motion for Attorneys Fees and Costs (P # 103) is allowed in the amount of $540,000 in attorneys fees and $73,000 in costs. The clerk shall add these amounts to the judgment.