good morning counsel good morning your honor allow me to introduce myself my name is scott hebert i represent the plaintiff in appellate in this matter chris kohler i know the court is well versed in the briefs and so and time is short so unless the court for the court to rely on the real rate report why was that the judicial to your client there is a place for the real rate report in federal jurisprudence just not with respect to  plaintiff's lawyers and eighty eight access claims because the real rate report from what we can glean for and it wasn't introduced in into the record is the real rate report was based on corporate rates of eighty corporations or a few people that were surveyed we don't know the results of the serve wave we don't know the methodology of the survey we don't know anything about the survey in fact  surveyed we don't know if it was plaintiff's lawyers that's a deal breaker in the ninth circuit because when determining the market rates for four lodestar fim oceans and ninth circuit is on twice two separate occasions said that you base it on the look at your declarations that you submitted i would else's fear for your view in my view is also fair to look at what opposing counsel charged opposing counsel submitted a declaration saying that he charge seven forty five an hour for eighty eight cases that was in this lawsuit and before this judge we charge six hundred six twenty five markedly below that the historic rate was three fifty and that was from ten years ago now do i believe that the judge can look at this store create absolutely the problem is if you look at it too far back it becomes a straight jacket with set a marina versus city of sacramento because any any policy where you hold the line at the historic rates eventually is going to eat away at the plaintiff's lawyers ability to generate fees because after three years five years eight years ten years no one else is charging that rate so that's the problem with  as another question we have to give a significant deference to the district court's determination that a downward adjustment from the lodestar figure was warranted and so our cases are only require the dish court to give i think it's called a clear and concise explanation guess as to why the adjustment was warranted in here it seems like the the district court issued somewhat of a thorough  reason fifteen page order with multiple pages explaining the downward adjustment so i just tell me how we can say that was an abuse of discretion given the district court superior knowledge the district judge didn't get everything wrong i mean i'm not if you read i don't think he's the judge of getting everything wrong but there are two significant parts where he did the first one was applying what he looked for six twenty five an hour now he in turn relied on the real reply rate report which is problematic in the eastern district for the reasons set forth in the eastern district in the federal court of claims in the southern district of new york he focused on the historical rates that were over ten years old and he focused on out of district authority from the southern and eastern district of california which charge lower rates now obviously the court has a phenomenal amount of discretion when it comes to awarding hourly rates and fees but it's not free to commit errors of law and i do believe that the way it arrived at those hourly rates constitute an error of law and as for the second prong the reduction  the seventy five percent the district court followed the right process but in the very end switched to a racial analysis where he calculated awarded fees based on the ratio of the amount of monetary compensation we received now that's problematic the supreme court has rejected that a one to eight ratio one to six ratio he would have considered that if he was acquitted if that wasn't the formula he was following and so reducing our face fees seventy five percent where we received the maximum amount of damages we were entitled to under the law you're not telling us that the level of success wasn't limited i mean there's much made in the briefing about it wasn't the minimize but there's no dispute that it was limited success current was not to say there's no dispute that it was limited success with reese back to the barriers with respect to the amount of monetary damages we received it was the maximum we couldn't have gotten he wasn't actually injured the statute provides it wouldn't be proper to rely on the monetary award only in a judge and a judge and determining where the reduction was accurate or reasonable would it not but it wouldn't be permitted to rely on but it's because you're relying on that case i thought surely you would know the language in that case that supports your argument i would your yes and that's why i asked for the court's permission but second as good as i am i don't memorize every case that parts shop for defendant eddie bauer let me begin by addressing a point that has been overlooked by mr hubbard which is that in all of the cases where he has been awarded fees and the district court looked at thirty six of them that even overlapped the trial in this case he has not been awarded the rates that he claims the rates range from about two hundred forty five dollars an hour to about three hundred forty five dollars an hour and the amount of fees have a median of about i have these exact numbers a median of twelve thousand seven hundred ninety five dollars and an average of twenty thousand nine hundred fifty one dollars hourly wage rate the average hourly rate ranges from about two hundred forty five dollars an hour to about three hundred forty five because i'm trying to figure out why wasn't it abuse of discretion if the district court used outdated evidence regarding reasonable rates because some looks like some of them back to two thousand and ten some of them to go back to two thousand and ten the case was filed in two thousand and ten and the trial took place in two thousand and thirteen and so which it is reasonable to look at rates charged during that time because that's when the work occurred but even  hubbard and the district court noted this this is in supplemental excerpts of record page twenty six mr hubbard said look at the rates approved in kohler same plaintiff versus b bath and beyond which was a central district of california case litigated in two thousand and twelve where the rates were three hundred fifty dollars an hour no court has ever awarded higher rates than that for these types of cases involving the hubbard law firm and so even though the rates have remained the same for a number of years every chord who has looked at this has kept those rates at that level every judge and in all of the district courts have decided to keep the rates at that amount but that is the amount that is charged for this type of a da litigation it's not complex it's  a commodity type of of work let me ask you this counsel should the change in circuit wide precedent that was a result of this case should that be taken into account in determining the level of success partly but let me first answer that there wasn't really a change in circuit wide precedent in this case because there was a use of a clipboard as a temporary measure until the counter was fixed and that's what eddie b uer was using the clipboard for and so we were arguing that now that the ninth circuit decision you don't think that was a change of president the ninth circuit held that an equivalent fill siltation can be a temporary measure your if your door handle is broken you can put on a different door handle until a new one a rives if your counter is not high enough you can use a clipboard while you're raising the counter that's what eddie bauer was doing and that's what the ninth circuit held was proper to do we weren't arguing about the clipboard can be a a permanent equivalent facilitation well rather than the remodelling of this particular store and the eight thousand dollars that was paid wasn't there some additional benefit to the public that came out of this case that should be taken into account in determining the overall level that's my church and i think the court did make it into account by awarding twenty five percent of the proper lo star amount mr koehler pursued claims that were absolutely frivolous about barriers that didn't exist a paper machine that was never there a dressing room bench that the courts had ruled over and over was compliant we have to go all the way through trial in order to get those claims dismissed and at the end of the day he lost everything a case unrelated to this strong b valdes came out and said you can use estimates to measure barriers you know and also we're well past the merits of the case we're talking about attorneys fees let me ask you this question the district court referred to several cases in its opinion and identif those as similar as justification for this downward departure beyond those being eighty eight cases where is the explanation from the district court as to the real similarity why is that not just a broad brush statement even though there are multiple cases referred to the similarities are that there are eighty eight cases where multiple claims were alleged and most of the claims were not successful and some of the claims w successful and so the court had looked under hensley vs eckhardt u s supreme court analysis of where you pursue many claims and most of them are unsuccessful that you have to for six years to obtain really plaintiff didn't obtain any relief your honor he lost the trial the case was remanded and instead of going through a second trial we were able to settle for much less than the cost of trial we settled for eight thousand dollars but there was never a fine to the maximum allowed no the to statue the law was actual damages as well and that's what plaintiff was claiming the the issue was in order to even get the statutory damages plain of how to prove difficulty discomfort or embarrassment and that was what was going to be the issue for trial that was never decided by the court and plaintiff never prevailed and we settled and to say that if you settle for eight thousand dollars someone should be able to recover over half a million dollars in attorney's fees representing nine hundred seventy hours of work is appropriate for the district court to reduce that based on the level of success in this case in terms of the levels excess we talked about the ninth circuit opinion it also held that california's attorney's fees statute was preempted by the federal eighty eight attorneys statute which it seems makes it harder for a successful defend it in eighty eight case to recover fees is that should not be factored in in terms of the success that should be factored into the terms of success because the issue is success on the merits in the case not the success in changing the attorneys the standard the the issue with was the plaintiff successful on the claims alleged in complaint in the barriers alleged in the complaint not on the standard for granting attorneys fees what's the authority that it's the level of success on solely the merits of the case and not the broader context of what's at issue in the future benefits to the public hensley and charge as the city of los angeles both talk about the results obtained for the plaintiff the results obtained in the game isn't that broader than  just on the actual theories asserted in the litigation i think it refers to are you overly narrowing i don't believe i'm over here now i mean because all of those cases look at the claims that were alleged in complaint and was the plaintiff successful on those claims there can be benefits to any litigation i suppose in publicity your awareness or people taking precautionary measures to avoid litigation that that could happen in any case and because those are so intangible you'd look to was the plaintiffs successful on the claims that were br someone looked like they had another question i'm sorry i didn't i didn't want to give up the real rate report the real rate report has been used by and we cited this in our papers the central district of california in numerous cases and it is just one tool to be used by a just record judge in setting the rates in our case the district court judge looked at the real rate reports and he also looked out the opinions in thirty six other cases where mr hubbard was a lawyer and the rates that were allowed in those cases in those cases spanned not just back ten years but through the date of the trial and to the date of the work performed here mr hubbard submitted to conclusory declarations from experts that say his rate should be six hundred dollars an hour but no court has ever awarded the rates that he hundred dollars range that's not the rate that now because you didn't get it he shouldn't get well if you look at rates in the community for similar work for lawyers of similar experience and similar success in my case it was a a beyond he's correct that the judge awarded three fifty but i cited to it because defense counsel in that case also asked for six twenty five and in this case the defendant charge he did the court didn't reduce his hourly rate to three fifty he reduced it he's thirty three forty five he advanced the blended rate he said i normally charge seven something in this case for my hourly rate i'm reducing it to a blended rate for every one of three forty five but he did charge that he said he normally charges seven forty five adds did the defense counsel in color versus bed bath and beyond as we did here that's not the same cohen we have in this case ruse it is in so far as we're having at least playing to it was the same plaintiff it was the same plaintiff and it was the same offer so i had firsthand experience with it but it's also a case where you have a lawyer saying this is the market rate and receiving markedly less with the other two other points i want to make number one is the lodestar calculation occurred factors do not include a statistical average ng you're not allowed to do that when calculating the fees number t o actually the he keeps citing the thirty six cases that he cited in support of these hourly rates those thirty six cases included southern and eastern district of california warts i mean along with the historical ones so the reason we didn't have any more recent cases in the central district is because we didn't have any more recent three motions so for ten years we've been getting the same fees for six of those years we've been complaining that we're getting historical rates and today we can't get anyone not defendants were plaintiff's lawyers to get the market rate for eighty lawyers and i know everyone cites the real rate report we're not labor and employment lawyers don't represent corporate people it's a different billing methodology for as the court of claims explained what's your response to opposing counsel's observation that this is kind of routine work it's not complicated and there was absolutely nothing routine about this case the last time i argued this case it was next door we argued that case i agreed for two and a half hours straight the court lined up every case involving this issue we argued i argued against ten different five different firms on six different circuit  of first impression we produce five different published opinions out of that case this there was nothing routine about this and i thank you thank you thank you to both counsel the case just argued if that made it for decision by the court