PLAINTIFF PETITION FOR FEE AWARD - Page 1 of 13

Bret Knewtson, OSB 03355

Bret Knewtson, Esq

3000 NW Stucki PL STE 230-M

Hillsboro OR 97124

Telephone: (503) 846-1160

Facsimile: (503) 922-3181

bknewtson@yahoo.com

Mark G Passannante OSB 944035

Broer & Passannante PS

1211 SW 5th Ave Ste 2330

Portland OR 97204

Phone: (503)294-0910

Fax: (503) 243-2717

Markpassannante@msn.com

Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

BRIAN CARLOS, on behalf of himself and all

other similarly situated,

Plaintiff,

vs.

PATENAUDE & FELIX, A.P.C.,

Defendant

Case No.: 3:14-cv-00921-MO

PLAINTIFF’S MOTION and

MEMORANDUM FOR ATTORNEY FEES

AND COSTS

LR 7.1 Certification: Plaintiff submitted detailed time sheets and identified rates for

settlement purposes on October 17, 2019 and has been unable to reach an agreement on fees and

costs. In conferral on the award of fees, Defendants appear to take issue with the motion to

certify the class as an unreasonable effort, that the time spent on the statute of limitations issue in

that brief was unreasonable because it would not have been written but for the class claim, that

the time previously reduced for lack of success on the merits should not be awarded, and that

Defendants should not be required to pay for the additional costs of Plaintiff’s motion to re-open

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discovery as a result of “Plaintiff’s timing.” Defendant objects to the requested rate but did not

offer the substance of that objection or what a reasonable rate would be. Defendant offered

$230,000 for fees and costs and payment of the judgment but only if Counsel agreed to pay

$2,000 from the $230,000 to Carlos as consideration for him to sign a confidentiality agreement.

That was rejected. On January 6, 2020, one day before the motion deadline, Defendant offered to

pay $240,000 for fees and costs subject to a confidential settlement agreement (not provided)

entered into by Carlos requiring him to instruct his counsel to keep the amount of fees and costs

confidential in return for which Carlos would get an additional $10,000.

LR 54.1 Certification: The memorandum is 3000 words or less (2,900 approx words).

MOTION

Pursuant to the accepted offer of judgment, 15 USC 1692k(a)(3), FRCP 60(b)(6) and

FRCP 68, plaintiff requests an award of the time attached to the Declaration of Knewtson and

Passannante, which totals, $xxx. This motion is supported by the Declaration of Knewtson, and

Passannante and Exhibits 1 (Knewtson billing record), 2 (Passannante billing record),

Declaration of John Gear, Chris Mertens and Yongmoon Kim.

Attorney Rate Requested Multiplier Hours Total

Mark Passannante $425 $$66,172.50

Bret Knewtson $426 1.5 on appellate time 

and post remand, 

excluding time on fees.

522.50 Enhanced: 

$311,512.50

Regular:

$222,585

This below table summarizes the time previously requested and reduced on the basis of limited

success which has been remedied by the entry of judgment on the remaining counts. Plaintiff

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requests the court exercise its authority under FRCP 60(b)(6) to award the time that was

previously denied.

Attorney

Mark

Passannante

Class

Claims

Overstatement

Count

Statute of

Limitations

Counts

General

Litigation

Total

Requested 

Prior

Requested

6.8 3.8 38.5 35

(Awarded) 3.4 3.8 19.3 17.5

Renewed

Request

(3.4) 0.0 0 19.2 17.5 36.70

Attorney

Bret Knewtson

Class

Claims

Overstatement

Count

Statute of

Limitations

Counts

General

Litigation

Total

Requested

Prior

Requested

40.5 hrs 13 hrs 83.6 130

(Awarded) 20.3 13 41.8 65

Renewed

Request

(20.2) 0.0 0 41.8 65 106.8

The below table summarizes the time spent on tasks since the prior award of fees done at Trial

Court Post Remand.

Trial

Court:

Post

Remand

Motion

Certify

Class (CC)

Motion CC time

spent on statute

of limitations

issue

Defendant

Motion

for

Summary

Judgment

(QM)

General

Litigation

(GL)

Attorney

Fee

Petition

MP 18.9 0.6 15.7/38.3 4* Not on

timesheets

BK 12 118.8 20.6 46.70 24.3 212.20

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Total Time and Time requested for enhancement:

Prior

Requested

time

Trial Court:

Post

Remand

Appeal Total

Time

Total Dollars

(MP at $425/hour

BK at $426/hour)

MP 18.9 0.6 53

BK 106.80 212.20 229.60 522.50 $222,585

BK Total

for

enhanced

fee request

0 Less Fee

Petition

Time of

24.30=187.9

229.60 417.5 417.50x$213=

$88,927.50

(amount of enhanced fee)

$311,512.50

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ENTITLEMENT TO FEES

Plaintiff has prevailed in accepting the offer of judgment on all counts of his claim. Dkt

131. Judgment was entered in favor of Plaintiff on his remaining claims and was not a judgment

of dismissal. Dkt 135. Plaintiff is the prevailing party and entitled to fees and costs per 15 USC

1692k(a)(3). Plaintiff was deemed the prevailing party on appeal and has been awarded but has

not recovered his allowable costs of the appeal. Dkt 88 and 90. As the prevailing party on the

claim he is now entitled to recover his fees incurred on the appeal. Corder v. Brown, 25 F3d 833,

841 (9th Cir 1994) (Identifying that fees for appeal can be awarded once a plaintiff prevails on

the merits). An award of reasonable fees is mandatory under the FDCPA and is essential to

ensuring consumers have access to qualified attorneys. Camacho v. Bridgeport Fin., Inc., 523

F.3d 973, 978 (9th Cir. 2008) Anything less than a reasonable fee is a windfall to the debt

collector defendant who profits from the proscribed conduct and benefits from aggressively

defending against the consumer’s claim knowing that it won’t have to pay the true expense of

that unsuccessful defense.

LODESTAR ANALYSIS

Defendant asserts the time spent on the motion to certify the class is not recoverable. The

answer is that that motion was a remedy available to Plaintiff. Even if not all claims are prevailed

on the time can be recovered. Ibrahim v. U.S. Dept. of Homeland Sec., 912 F3d 1147, 1172 (9th

Cir 2019), cert. den sub nom. Dept. of Homeland Sec. v. Ibrahim, 18-1509, 2019 WL 5150733

(US Oct 15, 2019) (If the court concludes the prevailing party achieved “excellent results,” it

may permit a full fee award—that is, the entirety of those hours reasonably expended on both the

prevailing and unsuccessful but related claims. Id. at 435, 103 S.Ct. 1933; Schwarz, 73 F.3d at

905–06). Plaintiff achieved excellent results. See Kerr factors, Supra.. Long v. Nationwide Legal 

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File & Serve, Inc., 2014 U.S. Dist. LEXIS 101670, *20-21, 2014 WL 3809401 (N.D. Cal. July 

23, 2014) (recovery of maximum statutory award sufficient to allow recovery of time spent on 

related but unsuccessful claims because that related work likely lead to the success on the claim 

prevailed on). 

But in this case the class motion was not a separate claim. The majority of that effort was spent 

explaining the substantive issues of the merits of Plaintiff’s claim. That is a direct relationship 

between work done and prevailing on the claim. 

If a client attempted to hire a lawyer for a case such as this one and agreed to pay the

lawyer an hourly fee but only for work the lawyer did on issues the client prevailed on no lawyer

would take this case. Prevailing on every issue is not the standard for a reasonable fee. Some

battles are lost on the way to winning claims that are substantively complex. For example,

counsel for defendant ultimately lost all the arguments they made but one, which was that a class

was uncertifiable but without question Defendant paid its counsel for all the work it did on this

case. No case has held that the standard for lodestar is perfection. That is unreasonable. A

reasonable fee includes work done on a case even if not all efforts carried the day. It is

unreasonable to not award time for reasonable work such as the motion to certify the class. There

may be work done in a case that is not reasonable for reasons apart from whether the issue was

won or lost. For example, trying to obtain injunctive relief in this case would not be reasonable

as the FDCPA does not provide for such relief. But otherwise allowing a lawyer has a duty to 

assert reasonable positions that advance the client’s cause even if reasonable minds differ on the 

outcome.

RISK ENHANCEMENT

A fee award should be enhanced when counsel takes a risky case on a contingent basis. 

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“The risk of costly litigation and trial is an important factor in determining the fee

award.” Rosales, 2015 WL 4460635, at *20 (citing Chem. Batik v. City of Seattle,

19 F.3d 1297, 1299-1301 (9th Cir. 1994)). When considering the risks posed in

litigation, “the risk of loss in a particular case is a product of two factors: (1) the

legal and factual merits of the claim, and (2) the difficulty of establishing those

merits.” City of Burlington v. Dague, 505 U.S. 557, 562 (1992).

Bell v. Consumer Cellular, Inc., 3:15-CV-941-SI, 2017 WL 2672073, at *10 (D Or June 21,

2017). As discussed below this case was made far riskier than it should have been by 

Defendant’s obfuscation of the existence of a signature on the online application. There was no 

evidence of a signature yet Defendant crafted a declaration that mislead this Court into thinking 

there was one. The lack of clear guidance from any high court on the issue of the statute of 

limitations and Virginia law as applied to a credit card debt made undertaking the case risky. 

That was borne out by Plaintiff’s lose at summary judgment and the appeal. The lack of guidance 

means that there is no clear understanding of what evidence exists in a credit card debt context 

that proves the written vs the unwritten contract and the applicable statute of limitations. It also 

means that Knewtson must spend a tremendous amount of time explaining how the indirect 

authority requires application of the unwritten limitation. Defendant exploited that grey area by 

insisting there was a signature but not offering any evidence of the signature as well as arguing 

without evidence that tolling events required individual inquiry warranting denial of class cert. 

Knewtson can’t say for sure but likely insurance paid for most of the work done by 

Defendant’s counsel. If so, it cost Defendant nothing to engage in wild arguments such as a 

consumer’s dispute to a debt collector tolls the time allowed for suit. Or even the argument that 

the check box was proof of a signature. No rational counsel would make those arguments on a 

contingent basis. Failure of such arguments is certain as borne out in this case. But the effect is 

that counsel for Plaintiff’s risk in spending unrecoverable time or simply not recovering time at a 

fair market rate increases exponentially. There is no motivation to do anything but the minimum 

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necessary work. For example, Knewtson did not attempt to depose Capital One because 

Defendant’s did not produce a signature during discovery. Only a signature on a contract can 

prove a written contract. Why depose Capital One if there is not one? Knewtson underestimated 

Defendant’s willingness to obfuscate. 

The amount of fees incurred by Plaintiff in this case is directly caused by Defendant’s 

untenable arguments and obfuscation of the truth. Plaintiff requests an enhancement of 

Knewtson’s time spent on the appeal and remand of 1.5 those efforts should not have been 

needed had Defendant told the whole truth. Imposing that enhancement will discourage 

Defendant from engaging in similar deception. The work needed to overcome Defendant’s 

obfuscation and prevail on Plaintiff’s claim prevented Knewtson from taking new and simpler 

cases that would have been more lucrative and far less risky. For two years, Knewtson was able 

to take on only two or three new cases because of the work required to present these issues and 

the ones in Kaiser v. Cascade Capital LLC, Discover Bank v. Bjornsdotter and a line of account 

stated cases even though most of those are abated pending the Oregon Supreme Court Opinion in 

Sanders on account stated. Counsel for Defendant does not bear any risk of not getting paid or 

getting paid years later while being unable to generate income due to the work needed to ensure 

adequate representation for Plaintiff. There are many economic consequences for Knewtson that 

were not anticipated upon taking this case. Counsel for Defendant can use the steady income 

stream to hire another lawyer and continue to take new cases and remain relevant to the market. 

Not taking new cases has a long term negative impact because one is not active in the evolving 

issues of consumer debt collection law.

THE MAJORITY OF THE RISK IMPOSED ON COUNSEL IN CONSUMER 

CASES IS CONTROLLED BY DEFENDANT.

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The defendant in a consumer protection case controls 95% of the evidence needed to

prove the defendant’s conduct was illegal. Obtaining that evidence is nearly impossible because

discovery fights are discouraged and there are many ways a defendant can obstruct access or

simply obfuscate whether or not such evidence exists.

Had Defendant and Capital One told the whole truth surrounding Defendant’s assertion

Plaintiff had signed a contract with Capital One then this case would have been resolved with far

less effort and use of judicial resources. But they didn’t. Not only did Kime misrepresent the

whole truth about the application process but Defendant’s submitted an “application report” as

the only evidence of the application in response to Plaintiff’s discovery requests.

After the motion to certify the class was denied, Plaintiff was granted leave to depose

Capital One and Kime about their knowledge and records of the application process. Plaintiff

believes the work done on the substantive issues of the merits of the time barred claim in the

motion to certify the class was directly related to the grant of leave to conduct those depositions.

Before those depositions could be arranged Defendant agreed to offer judgment to Plaintiff on

his remaining claims presumably because Capital One did not want to be put on the stand as to

the veracity of the statements it authorized Defendant to publish.

Defendant is solely responsible for the efforts Plaintiff has had to undergo to resolve his

claim. Defendant files thousands of collection lawsuits and utilizes the power of our courts to

collect debts. Despite that reliance on the court system Defendant has forgotten that as officers of

the court we have a duty to litigate in good faith and to tell not just the parts of the truth that aid

our claims but to tell the whole truth. The hardest part of litigating consumer protection claims is

getting at the whole truth which is solely in the control of Defendant. Defendant deliberately

obfuscated the facts surrounding the application process to prevail on its original motion for

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summary judgment. It almost got away with that deception but for the grace of this Court in

allowing Plaintiff to pursue the truth. Plaintiff was not naïve in not deposing Capital One during

the first round of this case. Plaintiff understood that Capital One did not require signatures of any

sort as evidence of agreement to its terms and conditions. That is the whole truth. What Plaintiff

did not anticipate was that Capital One and Defendant would actively deceive this Court by

insinuating that some sort of signature did exist. Defendant went to great lengths to defeat

Plaintiff’s claim but it is a testament to our legal system that the correct outcome was reached.

Getting to that outcome was a tremendous burden on counsel for Plaintiff as the effort, in this

case and three others (Bjornsdotter, Sanders and Kaiser) prevented Knewtson from taking new

cases for over two years. Dec Knewtson. The requested fees are reasonable and an award of less

than a reasonable fee is a windfall that rewards Defendant’s bad faith refusal to tell the whole

truth about the facts of this case.

OSB FEE SURVEY

The 2017 OSB fee survey was created using the results from a survey that closed on

October 16, 2017. 2017 OSB Fee Survey (Survey) at pg 8. The questions sought responses that

were limited to the date 12/31/2016. Survey at pg 12 (bottom). The survey identifies that in the

23 years since its inception in 1994, the mean billing rates for private practice lawyers increased

by $162. That reflects a conservative increase of the mean rate by an average of $7/hour every

year. The mean rate was identified in the 2012 Survey as $242 and $286 in the 2017 Survey.

That reflects an average increase of $8.80/hour per year for the mean rate between the 2012 

survey and the 2017 survey. That is accurate and reasonable information supporting annual

adjustments of the Survey rates in between surveys. It is error for a court to award time based on

prior established rates without adjustment to the present rate.

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We also note that in determining the prevailing market rate a district court abuses

its discretion to the extent it relies on cases decided years before the attorneys

actually rendered their services. Bell v. Clackamas County, 341 F.3d 858, 869

(9th Cir.2003) (holding that it was an abuse of discretion to apply market rates in

effect more than two years before the work was performed).

Camacho v. Bridgeport Fin., Inc., 523 F3d 973, 981 (9th Cir 2008). By the Survey’s design the

rates it identifies were in effect as of December 31, 2016. The rates are now over three years old.

The mean rate would be between $307 and the average $312.40. On March 18, 2016, this Court

awarded Knewtson the rate of $300/hour based on the 2012 OSB Fee Survey and the identified

rate of the 75% for Civil Litigation/Plaintiff (excludes personal injury)/Portland rate. The 2012

Survey was four years out of date by that time. The applicable rate should have been $335 based

on the average increase in overall rates. Civil Litigation/Plaintiff excluding personal injury is not

a defined category1

. The Court did not explain why it was the applicable category as opposed to

Business/Corporate Litigation other than to comment that the rates were higher in

Business/Corporate Litigation. Ultimately, this Court applied the 10-12 years of practice 75%

Portland category and awarded the rate of $300/hour. Today that category requires the

application of $400/hour for 16-20 years of practice without adjustment. Survey at 39. With

adjustment the rate is $426 ($8.80/ave inc/yr x 3yr).

Everyone who does Business/Corporate Litigation also does Civil Litigation, either for a

plaintiff or a defendant. Which is probably why for the Tri-Counties the 95th percentile for both

Business/Corporate Litigation and Civil Litigation Plaintiff are set at $410. Survey table 37 at

40-41. Knewtson represents collection defendants against Business entities as well as

1 The Survey questions relied upon for Table 37are: Q14: When you charged on an hourly basis, 

what was your usual billing rate per hour in 2016? Q7: Which area(s) of practice represented 

50% or more of your practice as of 12/31/2016? [select all that apply] Q6: Which type of 

employment represented 50% or more of your practice as of 12/31/2016? [private practice only]

at 43 (bottom of table 37).

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representing consumer plaintiffs against the same entities. The issues are nearly identical for

either of side of that coin. Consumers are always up against businesses. The Business/Corporate

Litigation category reflects the applicable rate for the community of lawyers handling similar

cases more specifically than the generic Civil Litigation categories which includes individuals

suing individuals over non-business matters. The resources businesses have to litigate these

issues is reflected in those higher rates. A litigant that has significant resources is able to contest

issues that it may not believe it will prevail on such as Defendant did in this case. Requiring a

consumer plaintiff to face tenacious litigation but awarding second class rates for overcoming

that litigation is unreasonable and a windfall to Defendant.

Debt collectors such as Patenaude & Felix are presumably in the same category this

Court puts Knewtson in, Civil Litigation/Plaintiff (excludes Personal Injury). Despite filing 

thousands of collection lawsuits Defendant’s incompetence in debt collection was established by 

Plaintiff. Defendant represents the median level skill set for that category. Knewtson’s requested

rate of $400/hour is well within the range of 75% to 95%, which for Portland is $350-$500

(adjusted to $380-$530).

2

 If the Business/Corporate Litigation category is applied for Portland 

the 75% is $425/hour (adjusted to $451). 

Defendant has demonstrated no competency in its debt collection practices. It harvests

default judgments. Carlos prevailed over Defendant on all three substantive issues of the 

collection case that Defendant wrongly asserted to the harm of many other consumers. Counsel

for Plaintiff are exceptional lawyers and the work done in these cases will eventually provide the

clarity needed to ensure legitimate outcomes in debt collection litigation. This work matters to a

2 2012 Survey was $300/hour for 75%. Now $350/hour for same. Historic difference is $50 

increase over /5 years since 2012 survey or $10/year. 2016 rates are three years old so 3($10) is 

$30.

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lot of people who will never have representation. Knewtson and Passannante’s requested rates 

are reasonable.

COSTS

Plaintiff requests a judgment be entered on the previously entered orders on costs.

KERR FACTORS

This factor is developed in Knewtson’s declaration to the extent it relates to an hourly

rate. To the extent this case reflects typical damages plaintiff received a full award of statutory

damages and significant actual damages of $16,349 (including prior offer of judgment). In

comparison Mr. Boitz who had an almost identical FDCPA claim received $2,200 from a jury.

Respectfully submitted on January 7, 2020

Service by ECF:

Mark G. Passannante markpassannante@msn.com

Peter D. Eidenberg peidenberg@keatingjones.com, amaloney@keatingjones.com

Kelly Frances Huedepohl khuedepohl@keatingjones.com, jsmith@keatingjones.com

January 7, 2020. s/ Bret Knewtson

Bret Knewtson, OSB 03355

Of attorneys for Plaintiff

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