1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT (BOB) ROSS, 

Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim Plaintiffs,

AND

EUGENIO VARGAS,

Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim Plaintiffs.

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Civil Action No. 4:22-cv-343-Y

Consolidated with 4:22-cv-430-Y

Judge Terry R. Means

APPENDIX TO APFA DEFENDANTS’ LIST OF 

REASONABLE COSTS AND ATTORNEY’S FEES

PURSUANT TO ORDER GRANTING MOTION FOR SANCTIONS

Pursuant to Local Rule 7.1(i), the Association of Professional Flight Attendants 

(“APFA”), its National President, Julie Hedrick, and National Treasurer, Erik Harris 

(collectively, “the APFA Defendants”), hereby submit the following appendix to its List of 

Reasonable Costs and Attorney’s Fees Pursuant to Order Granting Motion for Sanctions.

Tab Description APFA Appx.

1 Declaration of Jeffrey A. Bartos 1-6

2 Exhibit 1 – Court Reporter for Feb. 1-2 Depositions 7-9

3 Exhibit 2 – Videographer for Feb. 1-2 Depositions 10-12

4 Exhibit 3 – Court Reporter for Vargas’ Court-Ordered Deposition 13-14

5 Exhibit 4 – Videographer for Court-Ordered Deposition 15-17

6 Exhibit 5 – Location for Feb. 1-2 Depositions 18-19

7 Exhibit 6 – Airfare: Travel Expenses for Feb. 1-2 Depositions 20-22

8 Exhibit 7 – Hotel: Travel Expenses for Feb. 1-2 Depositions 23-24

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 1 of 56 PageID 5808
2

Tab Description APFA Appx.

9 Exhibit 8 – Guerrieri, Bartos & Roma, PC Billing Records 25-27

10 Declaration of James D. Sanford 28-39

11 Attachment A – Jim Sanford Activities Summary 40-42

12 Bobby Goldstein Prod., Inc. v. Habeeb, 21-CV-01924, 2023 WL 

8790284 (N.D. Tex. Nov. 27, 2023)

43-49

13 Silves H. v. Kijakazi, 22-CV-286, 2023 WL 9102228 (N.D. Tex. 

Dec. 18, 2023)

50-53

Date: March 22, 2024 Respectfully Submitted,

/s/ James D. Sanford

JAMES D. SANFORD

Tex. Bar No. 24051289

Gillespie Sanford LLP

4803 Gaston Ave.

Dallas, TX 75246

Tel.: (214) 800-5111; Fax.: (214) 838-0001

Email: jim@gillespiesanford.com

JEFFREY A. BARTOS, pro hac vice 

D.C. Bar No. 435832

Guerrieri, Bartos & Roma, PC

1900 M Street, N.W. Suite 700

Washington, DC 20036

Tele.: (202) 624-7400; Fax: (202) 624-7420

Email: jbartos@geclaw.com

Counsel for the APFA Defendants

CHARLETTE L. BRODERICK (pro hac vice)

Tex. Bar No. 24133870

Association of Professional Flight Attendants

1004 W. Euless Blvd.

Euless, TX 76040

Tel.: (682) 301-8454

Email: Cbroderick@apfa.org

Counsel for APFA

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 2 of 56 PageID 5809
3

CERTIFICATE OF SERVICE

I certify that on March 22, 2024, a true and correct copy of the foregoing document was 

served upon all persons who have requested notice and service of pleadings in this case via the 

Court’s ECF system. 

KERRI PHILLIPS

K.D. Phillips Law Firm, PLLC 

6010 W. Spring Creek Parkway 

Plano, TX 75024

Phone: (972) 327-5800

Fax: (940) 400-0089

Email: kerri@KDphillipslaw.com

MICHAEL R RAKE

Michael R. Rake, Attorney at Law PO Box 1556

Lake Dallas, TX 75065 

Tel.: (940) 498-2103

Fax: (940) 498-2103

Email: mrake1@mrakeattorney.com

 /s/ James D. Sanford

JAMES D. SANFORD 

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 3 of 56 PageID 5810
Tab

1

APPENDIX 1

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 4 of 56 PageID 5811
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APPENDIX 2

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APPENDIX 3

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 6 of 56 PageID 5813
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APPENDIX 5

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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 14 of 56 PageID 5821


	 
 	

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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 15 of 56 PageID 5822
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APPENDIX 13

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 16 of 56 PageID 5823
	

 


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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 17 of 56 PageID 5824
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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 18 of 56 PageID 5825
  	


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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 20 of 56 PageID 5827
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APPENDIX 18

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 21 of 56 PageID 5828
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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 22 of 56 PageID 5829
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APPENDIX 20

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 23 of 56 PageID 5830
	


 



	


	
		


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Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 25 of 56 PageID 5832
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APPENDIX 24

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APPENDIX 28

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 31 of 56 PageID 5838
Declaration of James D. Sanford - Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ROBERT (BOB) ROSS, 

Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim Plaintiffs,

AND

EUGENIO VARGAS,

Plaintiff/Counterclaim Defendant,

v.

ASSOCIATION OF PROFESSIONAL 

FLIGHT ATTENDANTS, et al., 

Defendants/Counterclaim Plaintiffs.

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

Civil Action No. 4:22-cv-343-Y

(Consolidated with 4:22-CV-430-Y)

Judge Terry R. Means

[Referred to United States Magistrate

Judge Jeffrey L. Cureton]

DECLARATION OF JAMES D. SANFORD 

I make the following declaration under 28 U.S.C. § 1746, subject to the 

penalty for perjury: 

1. My name is James (“Jim”) D. Sanford. I reside and work in Dallas,

Dallas County, Texas. I am fully competent to make this declaration, have 

personal knowledge of the facts stated herein, and could and would testify to 

them if called up to do so.

2. I am a partner in the law firm of Gillespie Sanford LLP. I make

this declaration in support of the APFA Defendants’ claim for fees and 

expenses, as ordered by the Court on March 1, 2024 (Dkt. 219). 

APPENDIX 29

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Declaration of James D. Sanford - Page 2 of 11

EDUCATION, EXPERTISE, AND QUALIFICATIONS

3. I primarily practice labor and employment law. Since 2005, 

I have largely represented individual employees and groups of employees in 

labor and employment matters. My practice focuses on minimum wage and 

overtime claims under the Fair Labor Standards Act (FLSA), discrimination 

claims under state and federal civil rights laws (e.g., Title VII, ADEA, ADA), 

family-medical leave and pregnancy-discrimination claims, sexual harassment 

complaints and workplace investigations, whistleblower and retaliation claims 

for people who speak up about unlawful working conditions, and claims arising 

out of employment contracts. I also represent and counsel unions, including 

unions and individual members in arbitrations, system boards of adjustment, 

trial boards, grievance proceedings, and litigation. My practice primarily 

focuses on litigation and most of it is in north Texas, although I have been cocounsel on several large FLSA collective actions in federal district courts in 

other federal circuits. I have been Board Certified in Labor and Employment 

Law by the Texas Board of Legal Specialization since December 2011. 

4. I am member in good standing of the State Bar of Texas and 

its Labor and Employment and Litigation Sections. The State Bar of 

Texas licensed me in November 2005. In addition to the State Bar of Texas, I 

am admitted to practice in the United States Courts of Appeal for the Fifth and 

Ninth Circuits and district courts in the Eastern and Northern Districts of 

Texas. I am in good standing in each of the courts to which I am admitted. In 

APPENDIX 30

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Declaration of James D. Sanford - Page 3 of 11

addition, I am a member of the Dallas Bar Association (DBA) and its Labor 

and Employment and Trial Skills sections. I serve on the DBA’s Labor & 

Employment Section Council as well. I am also a member of the State Bar of 

Texas’s Labor and Employment Law Section and its Litigation Section. In 

addition, I have been Board Certified in Labor and Employment Law by the 

Texas Board of Legal Specialization since December 2011 (renewed in 2016 

and 2021 for five-year periods). According to the websites for the State Bar of 

Texas1 and the Texas Board of Legal Specialization2, fewer than two-thirds of 

one percent of active Texas lawyers hold this certification. In addition, I 

became a Fellow of the Texas Bar Foundation in January 2022. 

5. I am active in several labor and employment law 

associations. I am a member of the National Employment Lawyers 

Association (NELA) and its local affiliate, DFW-NELA. I am also a member of 

the Texas Employment Lawyers Association (TELA), a former member of its 

Board of Directors, and a current member of its Amicus Committee. I am active 

in each of these organizations and regularly attend their meetings, 

1 OUR MISSION, STATE BAR OF TEXAS (“With more than 100,000 active 

members ....)(available at: 

https://www.texasbar.com/Content/NavigationMenu/AboutUs/OurMission/def

ault.htm (last visited on Mar. 20, 2024). 

2 As of March 2024, the Texas Board of Legal Specialization stated that 657

Texas lawyers are board-certified in this specialty area. Labor and 

Employment Law, Texas Board of Legal Specialization (available at: 

https://www.tbls.org/specialtyarea/LB

(last visited Mar. 20, 2024). 

APPENDIX 31

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Declaration of James D. Sanford - Page 4 of 11

conferences, and annual conventions where I interact with the best plaintiffsside employment lawyers in Texas and around the country and stay current on 

issues in the field. 

6. I present at CLEs and author articles on employment law.

From time to time, I am asked to speak or write on employment-law and 

litigation topics. Most recently I presented on settlement agreements in a 

presentation called “Settlement Agreements: The Emptiness of Forms” at the 

32d Annual TexasBarCLE Advanced Employment Law course in Dallas, Texas 

(Jan. 11-12, 2024).

Earlier presentations include: 

§ “The Road Not Taken: Major and Minor Disputes Under the 

RLA” at the International Conference of Pilot Unions 

(Arlington, Texas, Oct. 11, 2023) with my partner, Joe 

Gillespie.

§ “Water into Wine: Summary Judgment Evidence into Trial 

Evidence” at the TexasBarCLE Advanced Employment Law 

course in Dallas, Texas (Jan. 12-13, 2023).

§ “The RLA ‘Year’ in Review (or at least since we last met)” at 

the International Conference of Pilot Unions (Arlington, 

Texas, Oct. 11, 2022) with my partner Joe Gillespie. 

§ “Enviable Remedies and Rightful Places: Remedies in 

Employment Cases” at the State Bar of Texas Labor & 

Employment Law Section’s 32d Annual Labor and 

Employment Law Institute program in San Antonio, Texas 

(Aug. 26, 2022).

§ “The Five Ws (and One H) of Workplace Discrimination and 

Retaliation Law” at the TexasBarCLE Employment Law 101 

course in Austin, Texas (April 20, 2022)(co-presented with 

Andrew S. Golub of DOW GOLUB REMELS & GILBREATH).

APPENDIX 32

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Declaration of James D. Sanford - Page 5 of 11

§ “Basics of Discrimination and Retaliation” at the TexasBar 

CLE Employment Law 101 course (virtual Jan. 13-15, 

2021)(co-presented with C.B. Burns of KEMP SMITH).

§ “The Road Not Taken: Major and Minor Disputes Under the 

RLA” at the third annual International Conference of Pilot 

Unions (Plano, Texas, September 30, 2019).

§ “Corroborating Evidence: He-said, She-said... [and X, Y, and 

Z said]” at the Dallas Bar Association Labor & Employment 

Section (Dallas, Texas, August 19, 2019).

§ “Corroborating Evidence: He-said, She-said... [and X, Y, and 

Z said]” at the 26th Annual Labor and Employment Law 

Conference hosted by The University of Texas School of Law 

(UT Law CLE, Austin, Texas, May 9-10, 2019). 

7. My peers have recognized my employment-law practice.

Super Lawyers magazine rated me with the distinction of being a “Rising Star” 

from 2009 to 2012 and as a “Super Lawyer” from 2014 to 2021 in the 

Employment Litigation category. This publication includes a peer-review 

component in its selection process and selects no more than five percent of 

Texas lawyers.

8. I received an excellent legal education. I obtained a Bachelor 

of Arts in History and Economics from Emory University in Atlanta, Georgia. 

I then worked for the U.S. Department of Justice—Antitrust Division as a 

paralegal on merger-review and litigation teams. I am a 2005 graduate (with 

honors) of the University of Texas at Austin School of Law. During law school, 

I was a staff member of the TEXAS INTERNATIONAL LAW JOURNAL and 

participant in the Capital Punishment and Immigration Law clinical 

programs. I was also pleased to receive a summer fellowship as a UT 

APPENDIX 33

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Declaration of James D. Sanford - Page 6 of 11

Democracy Fellow at the Congress in Lima, Peru (2003), and then as an intern 

in the Prosecutor’s Office at the International Criminal Tribunal for Rwanda 

in Arusha, Tanzania (2004). 

After law school, I continued my legal education through Continuing 

Legal Education and trial-advocacy course work. I am a graduate of the 

Keenan Trial Institute. 

9. I have been a partner at law firms dedicated to 

representing employees and have experience running this type of 

practice. The stalwart Dallas labor and employment firm of GILLESPIE, ROZEN 

& WATSKY, P.C. (“GRW”) hired me out of law school in 2005, and I spent the 

first eight years of my career there, becoming a partner in the firm. In 2013, 

Joe Gillespie and I founded GILLESPIE SANFORD LLP (“GS LLP”). At various 

times during my time there, GRW had between 7 and 11 attorneys. GS LLP 

has been a four-person team (three lawyers and one team-member) since early 

2014 (with all lawyers Board Certified in Labor and Employment Law). I am 

familiar with the challenges of maintaining a practice dedicated to individual 

workers in employment matters and that skilled worker-side attorneys—

especially those who represent low-wage employees on a purely contingency 

basis—are relatively rare. 

10. I have litigated labor and employment cases in Texas federal and 

state courts and in the Fifth Circuit for the past 18-plus years. A sampling of 

the federal cases in which I have appeared as counsel of record include:

APPENDIX 34

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Declaration of James D. Sanford - Page 7 of 11

Federal Appellate Courts: Southwest Airlines Pilots Association v. 

Southwest Airlines Co., No. 23-11065 (5th Cir.)(pending); Black v. SettlePou, 

P.C., 732 F.3d 492 (5th Cir. 2013); Miller v. Raytheon Co., 716 F.3d 138 (5th 

Cir. 2013); Roberts v. McAfee, Inc., 660 F.3d 1156 (9th Cir. 2011).

Federal District Courts: Albrecht v. Hotel Reservation Service, Inc., No. 

3:21-cv-1123-L (N.D. Texas); Balabon v. CR Operating, LLC, d/b/a Canyon 

Ranch, et al., No. 4:21-cv-252 (D. Arizona); Black v. SettlePou, P.C., No. 3:10-

cv-1418 (N.D. Texas); Davis v. SMU, No. 3:13-cv-01419 (N.D. Texas); Doornbos, 

et al. v. Pilot Travel Centers, LLC, et al., No. 3:05-cv-428 (E.D. Tennessee); 

Dunn v. Southwest Airlines Co., 3:21-cv-01393 (N.D. Texas); Guzman, et al. v. 

GS Fire Protection, LLC, et al., No. 4:19-cv-00214 (E.D. Texas); Johnson v. City 

of Dallas, No. 3:07-CV-2132-N (N.D. Texas); Kaufman v. Metromedia 

Steakhouses Company, LP, et al., No. 3:06-cv-2192-G; Lakhani v. Horizon 

Travel, LLC, et al., 3:14-cv-01192-BH (N.D. Texas); Matlock v. Conduent 

Commercial Solutions, LLC, et al., 4:21-CV-00476 (E.D. Texas); McNutt v. 

Dallas Baptist Univ., No. 3:22-cv-678 (N.D. Texas); Miller v. Raytheon Co., No. 

3:09-cv-00440-O (N.D. Texas); Oyler v. Texas A&M Univ.-Commerce, No. 3:13-

cv-03139-P (N.D. Texas); Sidhu v. Methodist Hosp. of Dallas d/b/a Methodist 

Health System, et al., No. 3:24-cv-290-X (N.D. Texas)(pending determination); 

Southwest Airlines Pilots Association v. Southwest Airlines Co., No. 3:21-cv02608 (N.D. Texas); Tapp v. Mead Johnson & Co. d/b/a Mead Johnson 

Nutritionals, et al., No. 3:06-CV-1580-M (N.D. Texas); Van Elder v. 

APPENDIX 35

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Declaration of James D. Sanford - Page 8 of 11

Amalgamated Transit Union, Local #1338, et al., No. 3:13-CV-2909-BN (N.D. 

Texas); Vega, et al. v. Contract Cleaning Maintenance, Inc., et al., No. 03-C9130 (N.D. Illinois); Vogt, et al. v. Texas Instruments, Inc., No. 3:05-CV-2244-L 

(N.D. Texas). 

I am familiar with the costs and tasks necessary to prosecute labor 

employment litigation. I am also familiar with the amount of time and costs 

needed to investigate employment claims, prepare them for filing, pursue them 

through the administrative process before government agencies, and then 

through litigation and appeal.

11. I have counseled dozens (perhaps hundreds) of individuals 

in employment matters. In addition to civil litigation, a significant part of 

my practice entails counseling individual-employee clients and union clients 

on their workplace legal issues. This includes advice on how various labor and 

employment laws apply to their given circumstances, developing and executing 

strategy for negotiating employment contracts and separation agreements, 

and developing and executing strategy for winding down and then separating 

employment. 

THE ROSS AND VARGAS MATTERS

12. The Association of Professional Flight Attendants retained my 

firm in May 2023 to be local counsel and provide other support in this matter. 

Since joining the team, among other things, I have assisted with preparing and 

filing pleadings, including the sanctions motion at issue here (Dkt. 205). 

APPENDIX 36

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Declaration of James D. Sanford - Page 9 of 11

REASONABLE HOURLY RATE AND CUSTOMARY FEE

13. I am familiar with local hourly rates in the Northern District of 

Texas. Based on my training and experience, I am familiar with the local legal 

community standards of skill and practice required in handling labor and 

employment matters. Moreover, I am familiar with the legal standards for 

determining attorney’s fees under federal law. E.g., Perdue v. Kenny A., 559

U.S. 542 (2010); Black v. SettlePou, P.C., 732 F.3d 492 (5th Cir. 

2013)(discussing Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717-19 (5th

Cir. 1974)).

14. The most recent awarded rate for my work by a federal court was 

$450/hour in a default judgment in an FLSA overtime case. See Judgment, 

Guzman, et al. v. GS Fire Protection, LLC, et al. (No. 4:19-cv-00214)(E.D. Tex. 

Jan. 8, 2020)(Mazzant, J.)[Dkt. 12]. This was a case where the defendants 

failed to answer, where there were no other legal substantive filings between 

the complaint and the motion for default judgment, and where I did only 45 

hours of legal work. Adjusting for inflation from the year that the last courtawarded rate (January 2020) and using the Consumer Price Index as compiled

by the United States Bureau for Labor Statistics, produces an adjusted rate 

over $540/hour.3 Since that January 2020 award, I have continued to improve 

my skills and knowledge of trial work. I graduated from the Keenan Trial 

3 “CPI Inflation Calculator, U.S. Bureau of Labor Statistics (available at: 

available at: https://www.bls.gov/data/inflation_calculator.htm)(last visited 

Mar. 20, 2024). 

APPENDIX 37

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Declaration of James D. Sanford - Page 10 of 11

Institute, was recertified by the Texas Board of Legal Specialization, and 

obtained a plaintiff’s verdict in the district court of Fort Bend County, Texas, 

in September 2021. See Whitney v. CVR Energy, Inc., Cause No. 18-DCV254380 (400th Judicial District Court, Fort Bend County).

15. I am familiar with hourly rates awarded attorneys in labor and 

employment cases in north Texas, including the Northern and Eastern

Districts of Texas (as well as in other parts of Texas) in recent years. I have 

reviewed numerous court awards for fees on sanctions motions and on feeshifting claims. Based on that review and my understanding of the legal 

market for labor and employment work, it is my opinion that the rates sought 

for my time ($350/hour) and for lead counsel Jeff Bartos’s time ($395/hour) are

well within the range—in fact are quite low—for attorneys with our level of 

experience, skill, and knowledge for federal litigation. Indeed, the Honorable

Ed Kinkeade found that a higher rate ($375/hr) was reasonable for my time 

over a decade ago. See Black v. SettlePou P.C., No. 3:10-CV-1418-K (Doc. 133, 

at 8)(N.D. Texas Aug. 24, 2012). 

TIME SPENT ON THE MOTION FOR SANCTIONS

16. I keep contemporaneous records of the legal work that I perform

for the APFA defendants. I enter this information into my firm’s timekeeping 

software at or about the time the work is performed. Attachment A to this 

declaration is a true and correct copy of time entries from our timekeeping 

software filtered to show only the work performed on the sanctions motion. My 

APPENDIX 38

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Declaration of James D. Sanford - Page 11 of 11

firm billed these amounts to APFA on our regular billing cycle. APFA has paid 

for this time under our engagement agreement. These records show that I 

spent almost five hours supporting the motion for sanctions (Dkt. 205). They 

show also that I “no charged” (“n/c”) much of this time in exercising billing 

judgment. My firm billed the APFA for 2.85 hours of my time on this motion. 

See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012)(quoting Hensley 

v. Eckerhart, 461 U.S. 424, 434 (1983)(“In the private sector, ‘billing judgment’

is an important component of fee setting.”)). 

* * *

I declare under the penalty of perjury under the laws of the United 

States of America that the foregoing is true and correct. 

Executed: ________________, 2024 ________________________ 

James D. Sanford 

 March 21

APPENDIX 39

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11

APPENDIX 40

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 43 of 56 PageID 5850
ATTACHMENT A

APPENDIX 41

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 44 of 56 PageID 5851
Jim Sanford activities: the APFA Defendants’ 

Motion for Sanctions (Dkt. 205)

Date Hours Activity category UTBMS task code Description User

02/13/2024 1.00 A103 Draft/revise L210 Pleadings Review and edit draft Motion for 

Sanctions and respond with 

comments (1.5 n/c .5).

Jim 

Sanford

02/16/2024 1.35 A103 Draft/revise L210 Pleadings Tel con w/Jeff B. re: finalizing brief 

(.1). Draft proposed order re: 

Motion for Sanctions (.5). Review, 

revise, finalize and file Motion for 

Sanctions, Appendix, and Proposed 

Order (1.25 - n/c .5). Tel con to 

Clerk's office and review 

administrative procedures re: 

process for manually filing video (.5 

n/c).

Jim 

Sanford

02/19/2024 0.5 A103 Draft/revise L210 Pleadings Draft, finalize, and file notice of 

manual filing. Draft and send letter 

to clerk re: manual filing of Vargas 

video depo. Draft, finalize, and 

send court and opposing counsel 

copies. (2 n/c 1.5).

Jim 

Sanford

Total 2.85 Lodestar = 2.85 * $350 =

$997.50

APPENDIX 42

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APPENDIX 43

Case 4:22-cv-00343-Y Document 229 Filed 03/22/24 Page 46 of 56 PageID 5853
Bobby Goldstein Productions, Inc. v. Habeeb, Slip Copy (2023)

2023 WL 8790284

 © 2024 Thomson Reuters. No claim to original U.S. Government Works. 1

2023 WL 8790284

Only the Westlaw citation is currently available.

United States District Court, N.D. Texas, Dallas Division.

BOBBY GOLDSTEIN

PRODUCTIONS, INC., Plaintiff,

v.

Thomas L. HABEEB and ATVD, LLC d/b/a

American Television Distribution, Defendants.

Case No. 3:21-cv-01924-G

|

Signed November 27, 2023

Attorneys and Law Firms

Jeffrey R. Bragalone, Daniel Fletcher Olejko, Mark Douglass,

Paul Campbell Stevenson, Bragalone Olejko Saad PC, Dallas,

TX, for Plaintiff.

Jay Kurtis Gray, Andrew A. Bergman, BergmanGray, LLP,

Dallas, TX, Joyce W. Lindauer, Joyce W. Lindauer Attorney

PLLC, Dallas, TX, for Defendant Thomas L. Habeeb.

Jay Kurtis Gray, Andrew A. Bergman, BergmanGray, LLP,

Dallas, TX, for Defendant ATVD LLC.

FINDINGS, CONCLUSIONS, AND

RECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE

REBECCA RUTHERFORD, UNITED STATES

MAGISTRATE JUDGE

*1 This lawsuit arises out of Defendants Thomas L. Habeeb

and ATVD, LLC d/b/a American Television Distribution's

(ATVD) use of Plaintiff Bobby Goldstein Productions, Inc.'s

(BGP) copyrighted material from 26 episodes of Cheaters

Uncensored, a reality television show featuring couples with

one partner who is committing adultery, or “cheating,” on the

other. See generally Compl. (ECF No. 1); Jt. Stip. (ECF No.

89).

Following a three-day trial in October 2022, a jury found

(i) ATVD directly infringed BGP's copyrighted material; (ii)

none of ATVD's defenses to direct copyright infringement

applied; and (iii) BGP was entitled to $390,000 in statutory

damages. See Verdict (ECF No. 109). Thereafter, the District

Court granted BGP's motion for entry of judgment—holding,

among other things, that Defendants ATVD and Habeeb “are

each independently liable for the statutory damages award,

pre-judgment interest, post-judgment interest, full costs, and

reasonable attorney's fees.” J. (ECF No. 125). The Court

directed BGP to file a motion for attorney's fees, attaching an

affidavit explaining the reasonable nature of the fees sought,

in accordance with Federal Rule of Civil Procedure 54(d)(2).

Id. BGP complied and filed its Motion for Attorney's Fees

(ECF No. 129) under Rule 54 and 17 U.S.C. § 505, seeking

an award in the amount of $961,225.14. After resolving some

bankruptcy-related delays, Defendants filed a response (ECF

No. 140). BGP filed a reply (ECF No. 143). The issues are

fully-briefed, and the Motion is ripe for determination.

For the following reasons, the Court should GRANT

BGP's motion—in part—and order Defendants to pay BGP

$865,101.94 in attorney's fees.

I.

Section 505 of the Copyright Act provides that a district court

“may ... award a reasonable attorney's fee to the prevailing

party.” 17 U.S.C. § 505. And while “recovery of attorney's

fees is not automatic” in the Fifth Circuit, “attorney's fees to

the prevailing party in a copyright action is the rule rather

than the exception and should be awarded routinely.” Virgin

Records Am., Inc. v. Thompson, 512 F.3d 724, 726 (5th Cir.

2008). Relevant factors that inform the court's discretion on

whether to award fees include: “frivolousness, motivation,

objective unreasonableness (both in the factual and in the

legal components of the case) and the need in particular

circumstances to advance considerations of compensation

and deterrence.” Bell v. Eagle Mountain Saginaw Indep. Sch.

Dist., 27 F.4th 313, 326 (5th Cir. 2022) (citing Fogerty v.

Fantasy, Inc., 510 U.S. 517, 539 n.19 (1994)). “[A] finding of

willful infringement is not necessary to support an award of

attorneys' fees ....” EMI April Music Inc. v. Jet Rumeurs, Inc.,

632 F. Supp. 2d 619, 626 (N.D. Tex. 2008).

Here, the District Court previously determined that BGP

is entitled to reasonable attorney's fees under § 505 as the

prevailing party. See Mem. Op & Order 36 (ECF No. 124)

(“Because BGP is the prevailing party and the defendants do

not dispute that the court should award BGP reasonable costs

and attorney's fees ... BGP is entitled to both reasonable costs

and attorney's fees.”). This determination is supported by

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consideration of the relevant factors which demonstrate that

BGP's lawsuit was not frivolous or objectively unreasonable,

and BGP acted properly to protect its copyrighted material

after it discovered infringement of dozens of episodes of

Cheaters Uncensored on the internet. By contrast, Defendants

unnecessarily prolonged the litigation by advancing frivolous

legal arguments and factual contentions and employing

tactics that significantly increased the work needed to litigate

this matter (and the attorney's fees expended by BGP's

counsel) in an attempt to avoid or delay responsibility for

their infringement. For example, Defendants filed a motion

to compel arbitration purportedly based on a settlement

agreement between Robert N. Goldstein and Defendant

Habeeb. See Mot. (ECF No. 21). However, the Court denied

the motion because Defendants failed to demonstrate the

arbitration clause was enforceable against BGP—a nonsignatory to the settlement agreement—and that, even if it

was enforceable against BGP, the parties' dispute did not

fall within the scope of the agreement to arbitrate. Mem.

Op & Order 8-21 (ECF No. 40). Defendants also failed

to cooperate in discovery; they initially denied uploading

any of the infringing videos to ATVD's internet accounts,

denied knowing about one of ATVD's accounts, failed to

preserve copies of all the infringing videos uploaded to

ATVD's internet accounts, and claimed that they could not

get access to key information about the uploaded videos.

This conduct necessitated BGP's filing a motion to compel

discovery, see Mot. (ECF No. 27), which the Court granted

in its entirety following a hearing, see Order (ECF No. 43).

And after BGP obtained documents and testimony proving

that persons working for ATVD created the internet accounts

at issue and uploaded the infringing videos, Defendants

conceded that they created those accounts and uploaded the

videos. Ultimately, Defendants stipulated that BGP had met

its burden of proof with respect to the underlying elements

required for showing that ATVD directly infringed BGP's

copyrights in 26 Cheaters Uncensored episodes by posting

videos to its internet accounts. Jt. Stip. 1 (ECF No. 89).

Given these circumstances, awarding a reasonable attorney's

fee to BGP would advance considerations of compensation

and deterrence.

II.

*2 The Court utilizes the “lodestar” method in calculating

the attorney's fee award. See Heidtman v. Cnty. of El Paso,

171 F.3d 1038, 1043 (5th Cir. 1999) (citations omitted). The

lodestar is calculated by multiplying the reasonable number

of hours spent on the case by an attorney by an appropriate

hourly rate. See Smith & Fuller, P.A. v. Cooper Tire &

Rubber Co., 685 F.3d 486, 490 (5th Cir. 2012). There is a

strong presumption that the lodestar amount is reasonable. See

Perdue v. Kenny A., 559 U.S. 542, 552 (2010). Because the

lodestar is presumed reasonable, it should be modified only

in exceptional circumstances. See Watkins v. Fordice, 7 F.3d

453, 457 (5th Cir. 1993).

A.

First, the Court considers whether the hourly rates charged

by BGP's counsel are reasonable. Rates are reasonable when

they “are in line with those prevailing in the community for

similar services by lawyers of reasonably comparable skill,

experience and reputation.” Blum v. Stenson, 465 U.S. 886,

895 n.11 (1984). It is well-established that the Court may use

its own expertise and judgment to independently assess the

hourly rates charged for attorney's fees. SortiumUSA, LLC v.

Hunger, 2015 WL 179025, at *5 (N.D. Tex. Jan. 14, 2015)

(Lynn, J.) (citing Davis v. Bd. of Sch. Comm'rs of Mobile

Cnty., 526 F.2d 865, 868 (5th Cir. 1976); Vanliner Ins. v.

DerMargosian, 2014 WL 1632181, at *2 (N.D. Tex. Apr. 24,

2014) (noting that the Court is an expert on the reasonableness

of attorney's fees)).

Here, BGP was proficiently represented by attorneys from the

firm of Bragalone Olejko Saad PC, including name partners

Jeffrey R. Bragalone and Daniel F. Olejko. Bragalone is a

member of the Texas State Bar and is licensed to practice

in the United States District Court for the Northern District

of Texas. App., Bragalone Aff. ¶ 16 (ECF No. 130). He

has been practicing law for 35 years, with an emphasis on

patent and other intellectual property litigation. Id. Olejko is

a registered patent attorney and has been practicing complex

commercial litigation with an emphasis on patent litigation

and appellate practice for 15 years. Id. ¶ 17. The two partners

were assisted by several associate attorneys and paralegals,

each with an appropriate level of experience to handle the

issues in this case. See id. ¶¶ 18-21. Bragalone charged an

hourly rate of $787.50 per hour, and Olejko charged $618.75

per hour. Associates charged hourly rates between $337.50

and $412.50, and the one paralegal who billed in this case

charged $243.75 per hour. Id. at 116-17. Based on the Court's

knowledge of rates charged for legal services by Dallas

attorneys with the level of skill, competence, and ability of

BGP's counsel, and its experience in setting attorney's fees in

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other cases, the Court determines that the hourly rates charged

by BGP's counsel are reasonable.

To support the claimed hourly rates, BGP cites to the

American Intellectual Property Law Association's 2021

Report of the Economic Survey, which notes average hourly

rates for equity partners in Texas ranging from $339 to $900

and average hourly rates for partner-track attorneys ranging

from $354 to $593. Mot. 8 (ECF No. 129). BGP also cites

several cases decided in the Northern District, including

Thermotek, Inc. v. Orthoflex, Inc., where hourly rates up

to $650 for attorneys and up to $175 for paralegals were

approved, and Hoiffman v. L & M Arts, where the hourly

rate of $460 was found to be reasonable and other hourly

rates were adjusted to between $601 and $810. Id. (citing

Thermotek, Inc. v. Orthoflex, Inc., 2016 WL 6330429 (N.D.

Tex. Oct. 27, 2016) and Hoffman v. L & M Arts, 2015 WL

3999171, at *2–3 (N.D. Tex. July 1, 2015)).

*3 Ultimately, the Court finds BGP's reliance on the

AIPLA survey and the Northern District cases persuasive.

Bragalone's hourly rate—$787.50—and Olejko's hourly rate

—$618.75—fall within the range of average rates indicated

in the AIPLA's survey. See Ford Global Techs., LLC v.

New World Int'l, Inc., 2019 WL 1531759, at *2 (N.D. Tex.

Apr. 9, 2019) (relying on AIPLA statistics in reviewing

rates charged by attorneys in patent infringement action).

And while the rates fall within the high end of the survey's

$339 to $900 range, BGP's counsel provides a satisfactory

justification; this litigation was more complicated than the

typical copyright infringement case, because it involved

a complex and uncertain issue concerning the application

of the Texas Tax Code. The Court acknowledged this

case's distinctively challenging nature several times in its's

Memorandum Opinion and Order granting BGP's motion

for entry of judgment. See, e.g., Mem. Op. & Order 9-10

(ECF No. 124) (“It is unclear, however, whether section

171.255 applies to judgment-debts based exclusively on nonnegligent torts, as ‘[o]nly a few courts have addressed whether

section 171.255 applies to contractual strangers with only

tort claims being asserted[.]’ ... Furthermore, the courts that

have addressed the issue do not agree.”); Mem. Op. & Order

10-11 (ECF No. 124) (characterizing the issues in the case as

“unique[ ],” in part because the question of “[w]hether a strict

liability tort is a ‘debt’ under section 171.255 is an issue of

first impression”).

Additionally, Defendants do not present persuasive

arguments that the charged hourly rates are unreasonable. As

BGP points out in its Reply (ECF No. 143), “Defendants do

not address the 2021 AIPLA Report or the various cases from

this District that have approved rates similar to those charged

by BGP's counsel. Instead, Defendants cite outdated statistics

from the Texas State Bar from 2015 and 2019, including old

statistics related to the median hourly rate for all attorneys in

the Dallas-Fort Worth-Arlington metropolitan area.” Reply 7.

But reliance on these general statistics is of limited relevance

to the Court's consideration of what constitutes a reasonable

attorney's fee in the specialty area of copyright infringement.

B.

Next, the Court considers the reasonableness of the number

of hours billed. A party seeking attorney's fees bears the

burden of establishing that the number of hours expended

were reasonable with adequately recorded time records as

evidentiary support. See Watkins v. Fordice, 7 F.3d 453, 457

(5th Cir. 1993). The Court uses this time as the benchmark,

but should exclude any time that is excessive, duplicative,

unnecessary, or not adequately documented. See id.

Here, BGP's counsel billed a total of 1,778.9 hours. This

includes: 1) 365.2 hours billed by Bragalone; 2) 712.5

hours billed by Olejko; 3) 385.8 hours collectively billed by

associates; and 4) 199.2 hours billed by a paralegal. See App.,

Bragalone Decl. 116-17 (ECF No. 130). Defendants generally

object that the number of hours are excessive, duplicative, and

inadequately documented due to block billing.

The Court overrules any general objection to excessive

hours billed. As discussed above, BGP's counsel incurred

significant time due to Defendants' litigation tactics, such as

filing the unsuccessful motion to compel and unreasonably

resisting discovery before ultimately stipulating that BGP

had met its burden of proof with respect to the underlying

elements required for showing that ATVD directly infringed

BGP's copyrights.

Defendants specifically object to BGP billing 13.7 hours to

draft a discovery deficiency letter in connection to a motion

to compel. Resp. 4 (ECF No. 140). Defendants contend 13.7

hours is an excessive and unnecessary amount of time to draft

a letter that was only “two and a half pages.” Id. BGP responds

that its counsel did not spend the entirety of 13.7 hours to

simply write the letter. Reply 3 (ECF No. 143). Instead,

the 13.7 billed hours include time spent communicating

with BGP about the relevant issues and devising a strategy,

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researching the legal issues associated with the motion to

compel, and reviewing prior discovery relevant to the motion.

Id. at 4-5. BGP's contention is supported by the billing

records it provides. In the entries addressing time spent on

the deficiency letter, BGP specifically itemizes the necessary

tasks completed before the responsible associate could start to

write the “two and half page” letter. See App. 28-30 (ECF No.

130). Based on these records and the Court's own expertise

about the time required to draft an adequately researched

and persuasive deficiency letter, the Court rejects Defendants'

objection to these 13.7 hours.

*4 Defendants specifically object to BGP billing 72 hours

for “legal research for expert report.” Resp. 4-5 (ECF No.

140). Defendants contend that 72 hours is excessive and

unnecessary because Defendants did not challenge Plaintiff's

expert report. BGP responds that while the litigation team

spent 72 hours working on the expert report, it ultimately

wrote off 41.2 of those hours as “no charge.” Reply 3 (ECF

No. 143); see also App. 13-20 (ECF No. 130). Additionally,

BGP argues that the fact that Defendants did not challenge

the expert report does not render the time spent on the report

unnecessary or excessive. On the contrary, it indicates that

the hours were time well spent in ensuring the report was

immune from valid evidentiary objections. Again, BGP's

records support BGP's contentions. The billing records show

the time entries Defendants take issue with all occurred prior

to when the report was finalized and served. See App. 13-20

(ECF No. 130). BGP spent time on the report to create the best

report possible, rather than answering objections afterwards.

The Court therefore overrules Defendants' objection to the 72

hours.

Defendants specifically object to the time billed during trial.

Defendants contend that the hours billed by associates during

trial are excessive and unnecessary, since only Bragalone

and Olejko “actually participated in the trial.” Resp. 5 (ECF

No. 140). Defendants' objection implies that only those

attorneys speaking directly to the judge or jury during a

trial can be considered to be participating in a way that

deserves compensation. But review of the billing records

proves otherwise; the associates performed necessary behindthe-scenes work, such as reviewing juror questionnaires,

drafting presentation slides for use during expert testimony

and closing argument, and reviewing the jury charge.

Accordingly, and given that the complexity of the case

warrants the assistance of associate attorneys during trial, the

Court overrules Defendants' objection to the associates' billed

hours during trial.

Finally, Defendants object to one specific billing entry, from

October 25, 2022, which records 19.8 hours connected to the

following description:

Meeting with J. Bragalone and M. Douglass regarding

Habeeb cross examination outline; prepare for trial;

attend first day of trial; research ATVD website on

Wayback machine and obtain printouts for use in

Habeeb cross-examination; revise B. Goldstein direct

examination outline, including adding questions about

request for accounting, cease and desist letter, request for

information regarding downloads, information provided

by Defendants in response to request, PX-13 video,

downloads from YouTube and streaming platforms,

reasons for downloading videos from YouTube, evidence

of downloads from YouTube, reasons for caring if

others download videos, artistic control of content on

YouTube and Dailymotion, questions about not picking

up the phone, questions about response to call, statutory

damages, questions about damages from first copyright

case, clarification questions about prior day's testimony;

correspondence with B. Goldstein regarding updates to

direct examination outline; review and reduce M. Hays

deposition clip and correspondence with A. Greenberg

regarding same; correspondence with B. Zuniga and team

regarding juror questionnaires; correspondence with P.

Stevenson and M. Douglass regarding edits from M.

Einhorn to his presentation slides.

App. 103 (ECF No. 130).

The term “block billing” refers to the disfavored “timekeeping method by which each lawyer and legal assistant

enters the total daily time spent working on a case, rather

than itemizing the time expended on specific tasks.” Fralick

v. Plumbers & Pipefitters Nat'l Pension Fund, 2011 WL

487754, at *4 (N.D.Tex. Feb.11, 2011) (Fitzwater, C.J.)

(citation omitted). “Block billing is disfavored because it

prevents the court from accurately determining the time spent

on any particular task, thus impairing the court's evaluation

of whether the hours were reasonably expended.” Wherley

v. Schellsmidt, 2014 WL 3513028, at *4 (N.D. Tex. July 16,

2014). The Court agrees with Defendants that this entry is

an example of block billing.1 And the Court's own review

of the billing records uncovered a few more entries utilizing

block billing, particularly as BGP accounted for their work

during trial. In these entries, BGP combines long descriptions

of multiple tasks all attributed to one relatively substantial

period of time. See App. 103-05 (ECF No. 130) (including

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block-billed entries for 16.80 hours, 19.80 hours, 18.80 hours,

and 18.40 hours).

1 Defendants do not point the Court to any other specific

entry in which BGP utilized block billing. Rather,

Defendants contend that the October 25 entry is “just

one example of the many bulk descriptions attributable to

bulk time.” But it should be noted that “[i]f a party does

not object to particular billing entries as inadequately

documented, the court is not obliged sua sponte to sift

through fee records searching for vague entries or blockbilling.” Wherley 2014 WL 3513028, at *4 n. 6; see also

La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 325

(5th Cir. 1995) (holding that district court erred in failing

to conduct full analysis of billing records “[a]s to the

specific items of which [opposing party] complains”).

*5 However, the Court finds that when looking at the

billing records as a whole, BGP's counsel does not utilize

block billing for every entry. Rather, most of the entries are

itemized, specific, and even when associated with a long list

of multiple tasks, for relatively short periods of time. See

Thermotek, Inc. v. Orthoflex, Inc., 2016 WL 6330429, at *10

(N.D. Tex. Oct. 27, 2016) (“Entries between four to six hours

are frequently substantiated with descriptions of the different

types of work performed during that period.”).

In addition to block billing, the Court finds that BGP's

billing records include some duplicative and vague entries

warranting reduction. Vague entries are “not illuminating as

to the subject matter” or “vague as to precisely what was

done.” Barrow v. Greenville Indep. Sch. Dist., 2005 WL

6789456, at *11 (N.D. Tex. Dec. 20, 2005), aff'd, 2007 WL

3085028 (5th Cir. Oct. 23, 2007) (citation omitted). Examples

such as: “revise memorandum,” “review pleadings,” “review

documents,” and “correspondence” are sufficiently vague that

a court could accept or reject them in a fee application.

SCA Promotions, Inc. v. Yahoo! Inc., 2016 WL 8223206, at

*11 (N.D. Tex. Nov. 21, 2016), report and recommendation

adopted, 2017 WL 514545 (N.D. Tex. Feb. 8, 2017), aff'd,

2017 WL 11689639 (5th Cir. Nov. 7, 2017). Some entries

billed by BGP's counsel are vague and warrant exclusion.

See, e.g., App., Bragalone Decl. (ECF No. 130) (entry on

02/23/2021 billing for “Correspondence from client regarding

emails related to case,” entry for 08/02/2021 billing for

“Review complaint for filing,” entry on 08/17/21 for “Email

with D. Olejko regarding filing complaint.”). The billing

records also include some duplicative charges. See, e.g.,

Id. (entries by both Olejko and Bragalone on 09/21/2022

charging for correspondence and review and entries by

both Olejko and Bragalone on 05/07/2021, 05/10/2021, and

06/02/2021 charging for review of the same email).

On balance, BGP's billing records are consistent with what

can reasonably be expected, presenting “detailed time records

of the hours expended by each lawyer indicating the nature

of the particular work done by each.” Thermotek, 2016

WL 6330429, at *9. At the same time, as described above,

the records include some entries that should be excluded

for being duplicative or vague. Accordingly, an overall

percentage reduction to the requested award amount—but a

relatively low percentage reduction—is warranted. See, e.g.,

Paris v. Dallas Airmotive, Inc., 2004 WL 2100227, at *9–11

(N.D.Tex. Sept.21, 2004) (Lindsay, J.) (applying percentage

reduction because of block billing); Thermotek, Inc., 2016

WL 6330429, at *11 (applying a threshold reduction of

10% to account for block billing and for entries that “are

duplicative, excessive, or vaguely recorded.”).

Here, to account for entries that constitute block billing, vague

entries, and duplicative entries, the Court should apply a 10%

reduction to the lodestar figure. See Barrow, at *5 (“The

reduction [to address block billing] usually ranges between

10% to 30%.”); Bramlett v. Med. Protective Co. of Fort

Wayne, Ind., 2010 WL 3294248, at *3 (N.D. Tex. Aug. 20,

2010) (“[M]any courts reviewing block-billed time entries

have performed a percentage reduction either in the number of

hours or in the lodestar figure, typically ranging from 10% to

30%.”); Franciscan All., Inc. v. Becerra, 2023 WL 4462049,

at *6 (N.D. Tex. July 11, 2023) (O'Connor, J.) (“Upon review

of the entries deemed to be block billed by Defendants, the

Court finds that the entries in question do include examples of

block billing. Therefore, the Court shall apply a five percent

reduction in the total lodestar figure to account for the block

billing.”). A greater reduction is not warranted because BGP

already exercised billing discretion in writing off some of its

time.

*6 Thus, the Court calculates the lodestar figure in this case

to be $865,101.94. This figure represents a 10% reduction

from the figure calculated by multiplying the number of hours

billed by BGP's attorneys by the reasonable hourly rate of

each of BGP's attorneys.2

2 The following table shows the fee total prior to the 10%

reduction:

Hourly

Rate

Number of

Hours

Hourly Rate ×

Number of Hours

Bragalone$787.50 365.2 $287,595.0

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Olejko $618.75 712.5 $440,859.4

Associate$375 69.1 $25,912.5

Associate$375 142.7 $53,512.5

Associate$375 165.4 $62,025.0

Associate$337.50 116.2 $39,217.5

Associate$412.50 8.6 $3,547.5

Paralegal$243.75 199.2 $48,555.0

Total $961,224.38

C.

Although there is a strong presumption that the asserted

lodestar figure is reasonable, the Court must consider whether

it should be adjusted upward or downward based on the

Johnson Factors.3 See La. Power & Light Co., 50 F.3d at

324, 329; Johnson v. Ga. Highway Express, Inc., 488 F.2d

714, 717-19 (5th Cir. 1974). Because the lodestar is presumed

to be reasonable, it should be modified only in exceptional

cases. See Watkins, 7 F.3d at 457. Furthermore, the lodestar

amount may not be adjusted due to a Johnson factor that was

already considered during the initial calculation. See Saizan

v. Delta Concrete Prods. Co., Inc., 448 F.3d 795, 800 (5th

Cir. 2006). Here, the Court finds no adjustment to the lodestar

figure is necessary. The Court considered those factors that

might warrant a downward adjustment in the Court's analysis

for calculating the lodestar figure. For example, the Court

considered the first three factors—(1) the time and labor

required; (2) the novelty and difficulty of the legal issues; and

(3) the skill required to properly perform the legal service

—when determining the reasonableness of the hourly rates

charged.

3 The Johnson factors are: (1) the time and labor required;

(2) the novelty and difficulty of the legal issues; (3) the

skill required to properly perform the legal service; (4)

the preclusion of other employment; (5) the customary

fee; (6) whether the fee is fixed or contingent; (7) the

time limitations imposed; (8) the amount involved and

the results obtained; (9) the experience, reputation, and

ability of counsel; (10) the desirability of the case; (11)

the duration and nature of the professional relationship

with the client; and (12) awards in similar cases. See

Johnson, 448 F.2d at 717-19.

III.

The Court should GRANT in part Plaintiff BGP's Motion for

Attorney's Fees (ECF No. 129) and order Defendants to pay

BGP reasonable attorney's fees in the amount of $865,101.94.

INSTRUCTIONS FOR SERVICE AND NOTICE OF

RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions, and recommendation

(FCR) will be served on all parties in the manner provided by

law. Any party who objects to any part of this FCR must file

specific written objections within 14 days after being served

with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

To be specific, an objection must identify the specific finding

or recommendation to which objection is made, state the basis

for the objection, and specify the place in the FCR where

the disputed determination is found. An objection that merely

incorporates by reference or refers to the briefing before the

magistrate judge is not specific. Failure to file specific written

objections will bar the aggrieved party from appealing the

factual findings and legal conclusions of the magistrate judge

that are accepted or adopted by the district court, except

upon grounds of plain error. See Douglass v. United Services

Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).

All Citations

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Only the Westlaw citation is currently available.

United States District Court, N.D. Texas, Dallas Division.

SILVES H., Plaintiff,

v.

Kilolo KIJAKAZI, Acting Commissioner

of Social Security, Defendant.

Case No. 3:22-CV-286-K-BK

|

Signed December 18, 2023

Attorneys and Law Firms

Ronald D. Honig, Law Office of Ronald D. Honig, Coppell,

TX, for Plaintiff.

Whitney Livengood Thorp, Social Security Administration,

Baltimore, MD, for Defendant.

Findings, Conclusions and Recommendation of the United

States Magistrate Judge

RENEE HARRIS TOLIVER, UNITED STATES

MAGISTRATE JUDGE

*1 Pursuant to 28 U.S.C. § 636(b) and Special Order

3, Plaintiff's Petition to Obtain Approval of a Fee for

Representing a Social Security Claimant, Doc. 26, is before

the undersigned United States magistrate judge for findings

and a recommended disposition. As detailed here, the petition

should be GRANTED.

I. Background

In February 2022, Plaintiff filed a complaint seeking reversal

of the decision of the Commissioner of Social Security

denying his claims for disability insurance benefits under

the Social Security Act. Doc. 1. Upon the recommendation

of the undersigned magistrate judge, the Court reversed the

Commissioner's decision and remanded the case for further

proceedings. Doc. 16; Doc. 17; Doc. 18. The Court then

awarded Plaintiff's counsel attorneys’ fees in the amount of

$3,936.02 under the Equal Access to Justice Act (“EAJA”).

Doc. 25. In September 2023, the Commissioner found

Plaintiff disabled and awarded past due benefits, retroactive

to November 2018, totaling $143,060.90. Doc. 26-2 at 5.

Consistent with counsel's contingency agreement with

Plaintiff, the Social Security Administration notified Plaintiff

that it had withheld $35,765.23 from the awarded past due

benefits, representing 25 percent, as potential payment for

legal fees. Doc. 26-2 at 4. Counsel now requests that the Court

award him $17,500.00 in attorneys’ fees, amounting to 12.2

percent of the past due benefits awarded Plaintiff, as permitted

by section 406(b) of the Social Security Act. Doc. 26, passim.

II. Applicable Law

Under 42 U.S.C. § 406(b), whenever a court renders a

judgment favorable to a Social Security claimant, the court

may award the claimant's attorney up to 25 percent of the

total of the past-due benefits to which the claimant is found

to be entitled. Attorneys who successfully represent Social

Security benefits claimants in court may receive fees under

both the EAJA and section 406(b), “but ... must refund

to the claimant the amount of the smaller fee.” Jackson v.

Astrue, 705 F.3d 527, 529 (5th Cir. 2013) (quoting Gisbrecht

v. Barnhart, 535 U.S. 789, 796 (2002)) (some alterations

omitted). Section 406(b) requires the court to conduct an

independent review of such contingency fee agreements to

ensure that the attorney for the successful claimant has

met their burden of demonstrating that the fee sought is

reasonable. Gisbrecht, 535 U.S. at 807.

If the benefits resulting from a contingency fee agreement

are large compared to the time counsel spent on the case,

the fee should be adjusted downward to avoid a windfall for

counsel. Id. at 808. The Court of Appeals for the Fifth Circuit

has not prescribed an exhaustive list of factors to consider in

determining whether a fee award in this context represents

a windfall that would warrant a downward adjustment. Jeter

v. Astrue, 622 F.3d 371, 381 (5th Cir. 2010). At the same

time, it has implicitly approved several factors considered by

lower courts, including “risk of loss in the representation,

experience of the attorney, percentage of the past-due benefits

the fee constitutes, value of the case to a claimant, degree of

difficulty, and whether the client consents to the requested

fee.” Id. at 382 (citation omitted).

III. Analysis

*2 The relevant factors favor approving counsel's petition.

First, courts have consistently recognized that there is a

substantial risk of loss in civil actions for social security

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benefits. See Cullar v. Saul, No. 7:19-CV-00027-O-BP, No.

2021 WL 295842, at *2 (N.D. Tex. Jan. 8, 2021) (Ray, J.)

(“[T]he Fifth Circuit and district courts in this circuit have

acknowledged the high risk of loss inherent in Social Security

appeals and the fact that a particular claimant's attorney often

is not compensated at all for Social Security work in federal

court.”) (quoting Hartz v. Astrue, No. 08-4566, 2012 WL

4471846, at *6 (E.D. La. Sept. 12, 2012)), adopted by 2021

WL 289270 (N.D. Tex. Jan. 28, 2021). Counsel in this case

faced just such a risk because Plaintiff had lost at all levels of

the administrative proceedings.

Additionally, counsel's fee agreement with Plaintiff calls

for an award in counsel's favor of 25 percent of Plaintiff's

retroactive benefits. Doc. 26-3 at 2-3. There is no suggestion

that any fraud or overreaching occurred in this matter

as Plaintiff signed the fee agreement, and counsel acted

promptly in litigating the case and achieving a significant

victory for his client. Gisbrecht, 535 U.S. at 807-08 (noting

that the reviewing court should consider whether the attorney

was responsible for any delay and the size of the award

achieved in relation to the time invested); Jeter, 622 F.3d at

382 (stating that courts may consider the fact that the client

consented to the fee arrangement in assessing whether the fee

is reasonable).

Further, counsel brought to bear more than 40 years of

experience in Social Security disability law, dating back

to 1975. Doc. 26 at 13-14; Jeter, 622 F.3d at 382 (noting

that courts will consider attorney experience and skill in

determining the reasonableness of the fee). Counsel is a

member in good standing of many circuit, district, and state

courts and served as a staff attorney for the Social Security

Administration for 12 years after graduating from law school.

Doc. 26 at 13. And counsel provided effective and efficient

representation in this case, preparing a 14-page opening brief

with multiple sub-issues as well as a reply brief. Doc. 13; Doc.

15; Jeter, 622 F.3d at 382 (noting that courts may consider

the degree of difficulty of the case in assessing the fee's

reasonableness).

Lastly, the size of counsel's requested reward, $17,500.00,

divided by the 16.35 hours that he expended on the case,

leads to an hourly rate of $1,070.33, which is more than

twice the hourly rate for attorneys of similar experience—

$463.00. Doc. 26 at 11-12 (counsel's hourly billing records);

Doc. 26 at 13-15 (counsel's affidavit); Doc. 26-4 at 4-5 (Texas

Lawyer, The State of Rates (Oct. 1, 2012)) (noting that the

median average billable rate for an equity partner in Dallas/

Fort Worth was $463.00 in 2012). Nevertheless, the risk

involved in litigating a contingency case of this nature should

not be overlooked. See Jeter, 622 F.3d at 379-80 (holding that

courts can consider the lodestar calculation as one measure

in determining whether the contingency fee is reasonable

and not a windfall). Counsel's effective hourly rate is also

within the range of that previously approved in other social

security cases. See, e.g., Eric B. v. Comm'r of Soc. Sec., No.

3:17-CV-0083-G-BK, 2019 WL 7546622, at *2 (N.D. Tex.

Dec. 18, 2019) (Toliver, J.) (finding effective hourly rate of

$937.50 reasonable), adopted by 2020 WL 109856 (N.D. Tex.

Jan. 8, 2020); Richardson v. Colvin, No. 4:15-CV-0879-BL,

2018 WL 1324951, *2 (N.D. Tex. Mar. 13, 2018) (Frost,

J.) (same); Sabourin v. Colvin, No. 3:11-CV-2109-M, 2014

WL 3949506, at *1-2 (N.D. Tex. Aug. 12, 2014) (Lynn, J.)

(approving de facto hourly rate of $1,245.55).

*3 Upon consideration of all the relevant factors, the Court

concludes that counsel's hours expended and proposed hourly

rate of $1,070.33 are reasonable.

IV. Conclusion

For the foregoing reasons, Plaintiff's Petition to Obtain

Approval of a Fee for Representing a Social Security

Claimant, Doc. 26, should be GRANTED, and counsel

should be awarded attorneys’ fees in the amount of

$17,500.00 pursuant to 42 U.S.C. § 406(b).

1

1 Because the Court previously awarded counsel a fee of

$3,936.02 under the EAJA, Doc. 25, he must refund the

smaller fee award to Plaintiff. Gisbrecht, 535 U.S. at 796.

Counsel represents that he will promptly refund the lesser

amount to Plaintiff. Doc. 25 at 12.

SO RECOMMENDED on December 18, 2023.

Instructions for Service and Notice of Right to Appeal/

Object

A copy of this report and recommendation will be served

on all parties in the manner provided by law. Any party

who objects to any part of this report and recommendation

must file specific written objections within 14 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b). An objection must identify the finding or

recommendation to which objection is made, state the basis

for the objection, and indicate where in the magistrate judge's

report and recommendation the disputed determination is

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found. An objection that merely incorporates by reference

or refers to the briefing before the magistrate judge is not

specific. Failure to file specific written objections will bar

the aggrieved party from appealing the factual findings and

legal conclusions of the magistrate judge that are accepted or

adopted by the district court, except upon grounds of plain

error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1417 (5th Cir. 1996), modified by statute on other grounds,

28 U.S.C. § 636(b)(1) (extending the time to file objections

to 14 days).

All Citations

Slip Copy, 2023 WL 9102228

End of Document © 2024 Thomson Reuters. No claim to original U.S.

Government Works.

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