next case of the morning is numbers sixty seven seventy nine steel versus leasing enterprises limited mr patel when you're ready  this appeal centers on a subject that few outside of councils table likely care about attorneys fees this is the second such appeal before a panel on the fifth circuit regarding this issue in this case it's important to obtaining wrongly withheld back pay i would like to start this morning and focus on three key questions first did the district court abuse its discretion in determining an attorney's the amount without first calculating johnson versus georgia highway expressed in the answer to that question is also a resounding yes the third question is did the district court commit clear air in the findings it made on those and factors the answer to that their question should also be resolved yes generally when challenging a court's discretion in awarding attorneys fees the challenger faces a very uphill battle and likely loses but this reasonable number of hours and multiplying that by a reasonable turkey's fee rate let me ask you did not the plaintiffs provide a lodestar calculation to support their feet claim your honor we proposed load store however the district court did not suggest in the record in the transcript or otherwise that that was the proposed amount that it was taught that district judges have actually been in the federal i believe the district court probably does have that knowledge of the district court's been on the bench longer than i've probably been alive your honor but but that doesn't change the fact that if i wanted to challenge the lodestar and have this appellate panel revealed for clear air i have no information to do that there is no analysis as to where reductions were made by excessive billing ordinarily in cases such as this perhaps a district court evaluates how much time was spent on a motion for summary judgment and says you know one hundred hours on this motion for a limited number of exhibits is probably too much and they would do same here the district court didn't do that instead the district court jump directly into the application the johnson factor and so the second point is the district court is generally required to take this lodestar which is pre calculated pre determined again a by product of the reasonable number of hours expended which require some analysis from the district court multipl a ballpark and you litigated for seven years and of course i was on the first panel where the judge rejected most of the claims that the plaintiffs presented and then our panel all of those components are sort of on the train at the same time you know i might i might i might that might be reasonable was a general principle but i'm pretty familiar with what happened in this case and this case was based on a somewhat novel claim about deduction of carrying costs when parries cashed out the servers before they had cash in hand and it raised some real interesting claims on the main i mean you can correct me if i'm wrong but the main their main defense for the well fullness and good faith claim was that one of them they had talked to a department of labor person a few years earlier and the department of labor person said that procedures are ok and also it was a fairly novel claim so you know why are they why is that inner trying with the also had to undertake this analysis to see whether this charge back was a violation of the have phillis say it's all interrelated because at the time the policy was implemented pelleas purportedly discussed the issue with the department of labor auditor now at the trial court in the first case there was no evidence to refute that there was also no evidence to suggest exactly what was said or otherwise so there it is intertwined in that  policy was implemented if perry's was operating under a false assumption that some department of labor individual had given them the green light so to speak to to target back their employees for credit card conversion fees then it myself included and there is no analysis from the district court as to whether my hourly rate was ever accept it or not and if it was reduced or what the reduction would have been and what would what would have been reasonable now we did submit evidence to support our contention that right so for the proceedings in the trial court i believe the number was somewhere in the ballpark of six hundred twenty five thousand dollars yes your honor there was about fifty five thousand supplemental fees between and so the reason nothing in the record that says we're going to give you a time the second one is the application of the johnson factor so you know why the johnson yes rather than the court did  that is our contention the third complaint is that the findings of fact on those particular factors were clearly erroneous in the first one is the novelty issue as judge jones so eloquently pointed out this was a says it's just a calculation that well if i recall correctly his original opinion finding a violation was rather short it what it was you're on it took us a long time to explain it but his opinion so i'm not sure whether  back to the johnson factors and the application of the same wasn't given the proper weight now the supreme court and the fifth circuit have come out and said that the results obtained factor is is the most crucial and here the district court w finding it to be a positive value doesn't explain whether there is an increase or decrease what would be a decrease but if there's an increase in the request of lodestar because quite frankly i don't know if there's a  reasonableness of the time spent and the reasonableness of the rate as judge chicken botton pointed out in most of hearses u t health science center back in two thousand and one it's not for the plaintiffs to succeed by complaining about the objections of the defendant in the free application process but rather to demonstrate independently that the fees are reasonable we take the position in this case as the court will see from our briefing that there was no attempt at all to distinguish between reasonable and including ours written off as unproductive that is why if i have submitted to the court today to demonstratives that demonstrative ebay is an excerpt from our brief that deals with the caliber of the documentation that was submitted by the plaintiffs to support their application we have on demonstrative a which is taken from our brief in the record cited as there are several entries a sample of several entries well all of that appeared were question marks when we challenge these entries the plaintiffs responded by submitting an affidavit from a paralegal or a lock or indicating i went through the end voices and if i was uncertain about the entry i wrote a question mark along the left hand margin of the page this is someone who works for the plaintiffs who couldn't make sense of what the time entries were about and as our documentation and the record demonstrate there were over two hundred ninety of these work that was not adequately describe work that was undertaken to reeducate a parade of associates who came through on this case from two thousand and nine to two thousand and fifteen and finally work on failed claims and that shows what the offsets should be all about there was a concession by the plaintiffs at the hearing the judge hughes conducted in november two thousand and sixteen that they will acknowledge that they shouldn't get paid for work they did on their retaliate claim that they filed in regard to the name plaintive but that's about the only concession they met one factor that they cited to demonstrate to the court the reasonableness of the fee was that the district court record had over five hundred entries to which judge choose mediately responded well that's my problem here of the quantity and quality of that many of those pleadings were useless to me so they can't just give a superficial presentation and expect that to satisfy the requirement as judge jones is probably aware from her knowledge of the first case this case there were only three depositions taken two of which pertain specifically to the retaliation claim one by us one by them the third deposition was a thirty five minute deposition permitted by judge choose of our corporate representatives there were no other depositions taken the plaintiffs called no witnesses at the trial they submitted fewer than five exhibits one exhibit they attempted to submit was a letter from the department of labor many years after the fact claiming that the investigator involved who had originally discussed and endorsed the policies  place for paris was now saying he didn't recall having any such conversation but he doubts he would have said anything about that and just choose immediately said what does somebody surmise about this years after the fact do it's double hearsay  well it presents no evidence and he rejected that evidence the plaintiffs originally lodged that as one of their cross points on their initial appeal but abandoned that when it came to the fifth circuit primarily the time was spent here in two phases the first phase was from january two thousand and ten when the third amended complaint was filed raising the issue of the credit card offset fee and the fall of two thousand and ten when judge hughes in issue order indicating which elements of cost he was going to recognize and which not the plaintiffs overtly indicated that after that point they felt that the case was soley about willfulness and bad faith and they put their energies into undertaking proof of those factors which failed at the trial of course as judge jones knows choose announced at the beginning i'm taking a fresh look at this case i'm going to start from scratch to see if i made mistakes and is hopefully judge jones recalls during the first appeal the cross appellant stood up and started talking about the interlocutory order being violated and that by itself demonstrating willfulness which prompted the fifth circuit in the initial case to say that an interlocutory order has no effect whatsoever on willfulness or anything else the findings that are mentioned are listed by us on pages twenty four and twenty five of our brief these are pronouncements that judge choose made during the hearing on attorney's fees last november and he was very clear about what he viewed to be a complete waste of time on many insubstantial filings and i'm saying this in somewhat ambivalent leave because i'm not trying to cast stones at a member of the bar but we are in a position here where we have to challenge findings that don't measure up to the standards set by this court the court as you have noted that intimate knowledge of this case between two thousand and nine and two thousand and fifteen when the judgment was entered and this court has recognized in the gagnon case from two thousand and ten which is six of six federal third at ten forty four that it is possible to look at the record and determine that the court considers the lodestar even if he does not wrote really articulate i find this number of hours to be reasonable at this hour is undisputed in this case that the court discussed the johnson factors in detail in fact it's a little amusing to hear the concern that the plaintiffs have now judges ability to handle a case of god forbid it goes back on r d because the fifth circuit told him off the bat you made a mistake in three determining attorney's fees at the end of the first case were not right he made it very clear he was unhappy with the performance of the plaintiffs and said zero and i acknowledged during the oral argument in the first case the statute says the plaintiffs are entirely to recover reasonable attorney's fees so that was the result in the first case and he knew that and the court knew that and sent it back to him then he had about a two hour hearing in the vendor two thousand and sixteen talking about the case his concerns about the handling of the case and the johnson factors the statute in question does not specifically talk about a prevailing party in two sixteen twenty nine u s c section two sixteen but this court in st john among other cases has indicated that that's a convenient nomenclature to use to ascertain who prevails and how much they should get compensated for prevailing that's in footnote seven on page seven ninety nine days on we have to part ways with the plaintiffs here talking about intertwined point among other components the f l s a has four unique components number one is the minimum wage component in section two of seven number two is a retaliation component in section two fifteen number three is a will component in section two fifty five and number four is a good faith component in section two hundred sixty the plaintiffs have acknowledged in this case that the retaliation claim is separable because they announced a judge cho they were foregoing approximately thirty two thousand dollars for prosecuting the retaliation claim unsuccessfully that one by the way was resolved by summary judgment and so we have to then focus a little bit more carefully than they would like you to on the result obtained in that case it is correct that a million and a half dollars was awarded to the two hundred thirty claimants what they didn't tell you is there were approximately ninety other claimants were disallowed they made no effort at all to determine who had a meritorious claim and who did not we had to do the heavy lifting on that and presided provided the court with an order that he entered with the acknowledgement and concession of plaintiffs that those other people never worked for perry's servers during the time period in question they also have overlooked the fact that if they had succeeded on the  any of their claimants to find out did you actually work there during the time period specified by the court that's what i meant to say about the heavy lifting and we did not serve any discovery on them other than to take the deposition of the plaintiff jillian ste on whether we retaliate against her for firing her for being caught stealing the result obtained should be viewed in the light of all of the components in this case the retaliate she claimed failed if the willfulness in good faith claims had succeeded then they would have had a judgment close to four million dollars which they did not achieve they achieve the judgment that they did and there should be no mistake here if we were able to detect an understandable time entry that pertained to the actual merits of the minimum wage point we did not object to that and by our calculation according to demonstrative b that left about two hundred thousand dollars we challenge about five hundred seventy five thousand dollars of their attorney's fees demonstrative be also shows some of my favorite inclusions on their costs that they requested including a loan to the plaintiff for thirteen hundred aware that you're on oh i thought i saw some mention of that in there there is one reference to a loan but it's not clear what the basis for that was so we also take the position that those costs were clearly not recoverable and the hearing transcript of the november two thousand and sixteen hearing indicates that i asked the court at the end of judge are you making a determination about costs and his response was you get the bill from the clerk and that's what you pay meaning the taxable cost which we have paid just touching briefly on the removal of the judge for bias i think i actually for mention that earlier let me turn to the issue of the cross appeal which has to do with the attorney's fees judge hughes awarded for the appellate work done in the first appeal again making no comment on the caliber of the attorney there is the distinct question of who was a prevailing party the appellant here prevailed on the issue of the judgment for the minimum wage violation the appellant specifically filed a cross appeal to challenge judge uses relink on willfulness and bad faith that appeal failed as a matter of fact this court went to the trouble of saying you didn't present any evidence to substantiate either position at all and we calculated that there was approximately forty five thousand dollars of the attorney's time on appeal spent in regard to the issues that were part of the cross appeal that failed so we take the position with regard to those fees that they're not compensable now the supreme court recently has clarified that the boundaries of abuse of discretion this was in the mclean versus e e o c case from april of this year and the supreme court said a district judge cannot camouflage an error of law under the notion that he does or does not abused its discretion the error of law has to be identified separately from an abuse of discretion standard and although judge hughes took a significant step in conducting the hearing  the law has to do with the fact that the plaintiffs as cross appellants in the first appeal did not prevail on two major issues that certainly were not intertwined and i should also minimum wage the inquiry does not turn to the motive or the intent or the thinking of the employer rather the determination is made did you determine the minimum wage it's a mathematical calculation and  since said in the first appeal the cost that you assess to the plaintiff for giving him cash every night on the credit card fees was greater than what they received in their tips are they they suffered a loss in their tip that constitutes a violation of the minimum wage that's a completely different element of proof then what was in the mind of the employer at the time the policy was put into effect and what did the employer do to determine whether the statute was being complied with and as judge jones pointed out in the earlier discussion this was a novel area of the law that had never been addressed before by the fifth circuit so it seems to me that they had to comply with the obligation to show that they were entitled to willfulness or bad faith and they did not do so and that's why we are challenging solely the forty five thousand dollars extra that the attorney was awarded this anybody ha argument is actually a defense that perry's would have to launch in order to combat liquidated damages it's not something that we have to go out of our way to investigate something we get liquidated damages automatically and so it's up to the defendants to lodge a good faith defense and so it's a little perplexing for the police council to sit there and say well they did need to know what the state of mind was they didn't need to give me fees for that because they're the ones s no judge jones i did not it was actually mr strong yes judge jones it also live in houston so it might be court didn't do that instead the district court relying on its knowledge went directly into the johnson factors misapplied those johnson factors and came up with iranis findings of fact upon which the rest of those factors if we look at the factors in total there was one factor that the court outright came out and said was negative and that would be spending more time there is a second factor that in our briefing we attribute attorneys dictating the results of the fee there's evidence in the record of an exercise of billing judgement which is a record say twenty two thirty three for the trial court and for the appellate court at twenty four thirty one and twenty two thirty three so there is sufficient evidence from our position as well to support them or to forget the problem is that because of the way that the district court approach to the calculation there is no way to know there's no way for us