* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

August 16, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ELSA ANCHONDO, on behalf of

herself and all others similarly

situated,

Plaintiff-Appellee,

v.

ANDERSON, CRENSHAW &

ASSOCIATES, L.L.C.,

Defendant-Appellant.

No. 10-2010

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. 1:08-CV-00202-RB-WPL)

Submitted on the briefs:*

Steven R. Dunn, Dallas, Texas, for Defendant-Appellant.

Rob Treinen, Feferman, Warren & Treinen, P.A., Albuquerque, New Mexico,

O. Randolph Bragg, Horwitz, Horwitz & Associates, Chicago, Illinois, for 

Plaintiff-Appellee.

Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 1
-2-

ANDERSON, Circuit Judge.

Defendant Anderson, Crenshaw & Associates, L.L.C. (ACA) appeals from

a district court order awarding plaintiff Elsa Anchondo $63,333.52 in attorney

fees, gross receipts tax, and costs under 15 U.S.C. § 1692k(a) after ACA agreed to

a settlement in favor of Ms. Anchondo and the class she represents on their claims

against ACA under the Fair Debt Collection Practices Act (FDCPA). ACA

contends the district court erred in certain respects in determining the amount of

the attorney fee award. We review the district court’s award for an abuse of

discretion, see, e.g., Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir. 1995),

and affirm for the reasons expressed below. 

I. District Court’s Calculation of Fee Award

The district court arrived at its fee award by methodically proceeding

through a calculation of the lodestar amount pursuant to Hensley v. Eckerhart,

461 U.S. 424 (1983), and relevant Tenth Circuit precedent applying Hensley. The

lodestar, of course, is the “the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate,” id. at 433, which produces a

presumptively reasonable fee that may in rare circumstances be adjusted to

account for the presence of special circumstances, Perdue v. Kenny A. ex rel.

Winn, 130 S. Ct. 1662, 1673 (2010). 

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 2
1 Among other things, ACA asserted a counterclaim for declaratory relief,

filed a motion to dismiss on the merits and on Due Process and First Amendment

challenges to the FDCPA, and opposed discovery so as to require plaintiff to file

a (partially successful) motion to compel. 

2 Mr. Bragg sought compensation at an hourly rate of $465, which he has

received in FDCPA litigation elsewhere. See, e.g., Silva v. Patenaude & Felix,

P.C., No. C 08-03019 JW, 2010 WL 2000523, at *2 (N. D. Cal. May 12, 2010);

Palmer v. Far West Collection Servs., Inc, No. C-04-03027 RMW, 2008 WL

5397140, at *1 (N.D. Cal. Dec. 18, 2008). But the district court held that

prevailing New Mexico rates should apply in this case pursuant to Lippoldt v.

Cole, 468 F.3d 1204, 1225 (10th Cir. 2006), and reduced Mr. Bragg’s rate by

$165 per hour. Mr. Bragg has not challenged this reduction by cross appeal. 

-3-

After summarizing the substantively straightforward but procedurally

somewhat complicated litigation1

–which led, after some fourteen months, to a

favorable settlement of the underlying FDCPA claims–the district court began its

lodestar analysis by determining the proper hourly rate for the two lawyers who

served as co-counsel for Ms. Anchondo and the plaintiff class. The court looked

to prevailing market rates in the New Mexico community for attorneys of their

experience and found $195 per hour reasonable for local counsel Rob Treinen and

$300 per hour reasonable for national FDCPA class action specialist O. Randolph

Bragg.2

 See Memorandum Opinion and Order at 4-5 (Dec. 16, 2009). 

The court then turned to the number of hours expended. Mr. Treinen and

Mr. Bragg each submitted extensive billing records in support of the hours they

claimed to have worked on the case. See Aplt. App. at 35-56 (seven-page

declaration and fifteen-page billing record for Mr. Treinen), 58-89 (eighteen-page

declaration and eleven-page billing record for Mr. Bragg). The district court

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 3
3 In Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19

(5th Cir. 1974), the Fifth Circuit set out twelve factors relevant to the

determination of a reasonable attorney fee: (1) the time and labor required;

(2) the novelty and difficulty of the questions; (3) the skill required to perform

the service properly; (4) the preclusion of other employment by the attorney due

to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or

contingent; (7) time limitations imposed by the client or the circumstances;

(8) the amount involved and the results obtained; (9) the experience, reputation,

and ability of the attorney; (10) the undesirability of the case; (11) the nature and

length of the professional relationship with the client; and (12) awards in similar

cases. Francia v. White, 594 F.2d 778, 784 (10th Cir. 1979) (summarizing factors

in appendix to opinion). While “not saying that all of these need be considered,”

this court “commend[ed] them to the trial court for its use in arriving at a fair and

reasonable [fee]” in Francia, id at 782, and we have referred to them for guidance

on various occasions since. 

-4-

“reviewed carefully the detailed billing records,” concluded they “demonstrate

that counsel exercised appropriate billing judgment and avoided duplicative

efforts,” and found “the number of hours expended on this litigation is

reasonable.” Memorandum Opinion and Order at 6. The court further determined

“neither an upward nor a downward adjustment of the lodestar amount is

necessary under the circumstances of this case.” Id. at 7. 

II. ACA’s Objections to the Fee Award

ACA argues that the district court erred in its fee analysis by (1) failing to

explicitly address the Johnson factors3

; (2) awarding fees to Mr. Bragg when his

participation was unnecessary for the prosecution of the case; and (3) failing to

reduce excessive hours claimed by both Mr. Treinen and Mr. Bragg. We take up

these objections in order below. 

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 4
4 Of course, to the extent ACA advances specific, record-based arguments in

connection with other objections it raises on appeal, we consider those in the

corresponding sections of our decision. 

-5-

A. Application of Johnson Factors

ACA’s objection regarding the Johnson factors is meritless. ACA concedes

that “the Tenth Circuit has never held that a district court abuses its discretion by

failing to specifically address each Johnson factor”–indeed, that we expressly

held to the contrary in Gudenkauf v. Stauffer Communications, Inc., 158 F.3d

1074, 1083 (10th Cir. 1998). Aplt. Opening Br. at 13. Yet ACA goes on to assert

that “[a] failure to consider the Johnson factors constitutes an abuse of

discretion,” id. at 16 (citing an unpublished decision from the Southern District of

Texas), and insists we reverse the fee award here because “the Johnson factors

. . . were not discussed by the district court,” id. No particularized argument,

tying specific Johnson factors to specific circumstances, is offered to lend

concrete substance to this conclusory objection. Absent such argument–which it

is not appropriate for this court to develop on ACA’s behalf–we decline to look

behind the district court’s affirmation that it carefully reviewed the relevant

materials and determined that the hours counsel recorded were reasonable.4

ACA’s perfunctory complaint about undiscussed Johnson factors is an insufficient

basis upon which to disturb the district court’s lodestar fee determination, to

which we must defer absent the demonstration of an abuse of discretion. 

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 5
5 In this regard we note that a factor recognized by Hensley to be of unique

importance in particular cases–where a prevailing party has achieved only limited

success, see 461 U.S. at 434–is not a concern here. 

-6-

The Supreme Court’s very recent decision in Perdue only confirms our

reluctance to disturb a presumptively valid lodestar fee determination on the basis

of a conclusory objection that Johnson factors were not discussed. In Perdue the

Court appears to significantly marginalize the twelve-factor Johnson analysis,

which it discounts as just “[o]ne possible method” that “gave very little actual

guidance” and, due to its “series of sometimes subjective factors[,] . . . produced

disparate results.” 130 S. Ct. at 1671-72 (quotation omitted). The Perdue Court

clearly embraces the lodestar approach as the preferable alternative to the

Johnson analysis, noting that the lodestar approach “achieved dominance in the

federal courts after . . . Hensley, Gisbrecht v. Barnhart, 535 U.S. 789, 801 . . .

(2002),” and has “become the guiding light of our fee-shifting jurisprudence.” 

130 S. Ct. at 1672 (also noting that “unlike the Johnson approach, the lodestar

calculation is objective” and hence “produces reasonably predictable results”)

(quotations omitted). We do not suggest that the Johnson factors have become

irrelevant; Perdue did not overrule Hensley’s allowance that under appropriate

circumstances they may be useful in determining subsequent ad hoc adjustments

to the lodestar,5 see Hensley, 461 U.S. at 434 & n.9 (also noting, however, “that

many of [the Johnson] factors usually are [already] subsumed within the initial

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 6
-7-

calculation of hours reasonably expended at a reasonable hourly rate”). But, after

Perdue, it has only become clearer that the lodestar determination is primary and

that the propriety of such a determination is not automatically called into doubt

merely because the trial court did not expressly discuss the Johnson factors. 

B. Objection to Participation of Mr. Bragg

ACA argues that the district court erred in awarding any fee for Mr. Bragg,

because Mr. Treinen and his firm, particularly a senior partner in the firm, could

have handled the case adequately without Mr. Bragg’s added experience. This

unusual position–basically asserting that highly experienced, nationally prominent

lawyers may not work (at least for compensation) on any but the most demanding

cases, and even then may not act as co-counsel if another attorney with arguably

commensurate experience is available from co-counsel’s firm–is not supported by

a single on-point authority, and we decline to adopt it here. We emphasize that

this is not a case of compensating an expert attorney at a rate unsustainable in the

local legal community; as noted earlier, the district court substantially reduced

Mr. Bragg’s hourly rate to bring it in line with the New Mexico market. 

ACA seeks to bolster its argument by insisting that plaintiff’s counsel’s

position in the underlying litigation, where they asserted that the facts and law

plainly supported their FDCPA case, demonstrates that the participation of a

national FDCPA expert was unnecessary. Of course, ACA’s own litigation

position hardly conceded such a straightforwardly meritorious case to plaintiff.

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 7
-8-

To focus on such assertions–the standard rhetoric of adversarial legal argument–is

to be distracted from the real point. Ultimately, the trial court must decide for

itself whether an action was so simple as to undercut a subsequent fee request,

and its uniquely informed on-the-spot judgment is owed much deference by an

appellate court, see, e.g., Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1249

(10th Cir. 1998) (citing cases expressing in various ways trial court’s superior

vantage for determining reasonable fee to which appellate court must defer). We

are not persuaded that the district court abused its discretion in declining to

categorically strike all compensation for Mr. Bragg. Of course, that does not

mean Mr. Bragg was necessarily entitled to compensation for all of the hours

recorded in his billing records; to the extent ACA objects to particular hours as

excessive or redundant, we consider its objections in the next section below. 

C. Particular Objections to Hours Claimed

ACA advances several objections to hours claimed by Mr. Bragg. First, it

contends that the twelve hours he spent working on plaintiff’s (successful) motion

to dismiss one of ACA’s counterclaims should have been struck. Picking up on

its prior theme, ACA insists this work could have been done by a less experienced

attorney. But, again, ACA does not cite any authority holding that an experienced

attorney must work for free whenever the task at hand might not call for the full

measure of his expertise (assuming ACA’s factual premise here). ACA notes that

the motion focused on a single counterclaim, as if that made it too insignificant to

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 8
6 Indeed, these records reflect efficient cooperation, rather than redundancy,

between Mr. Treinen and Mr. Bragg throughout their collaboration on the case.

We emphasize this point to avoid giving any impression that our decision here

constitutes an indiscriminate endorsement of multiplicitous representation. 

-9-

warrant Mr. Bragg’s attention. But, as the record shows, the narrowed focus of

the motion was a thoughtful strategic choice, which is part of what an experienced

practitioner brings to a legal team. It effectively thwarted an oblique attack by

ACA on the merits of plaintiff’s FDCPA action in the guise of a counterclaim for

a declaratory judgment on a critical element of the case (whether ACA’s conduct

constituted a “communication” implicating FDCPA protection). ACA also refers

here, in conclusory fashion, to the rule that duplicative work is not compensable,

citing Norman v. Housing Authority of City of Montgomery, 836 F.2d 1292, 1302

(11th Cir. 1988). But that very case explains “[t]here is nothing inherently

unreasonable about a client having multiple attorneys, and they may all be

compensated if they are not unreasonably doing the same work and are being

compensated for the distinct contribution of each lawyer.” Id. Counsel’s billing

records do not suggest any violation of this commonsense principle in connection

with the preparation of the motion to dismiss.6

 We cannot say the district court

abused its discretion in compensating Mr. Bragg for his professional efforts in

this regard. 

ACA next complains of the 3.7 hours Mr. Bragg billed for communicating

with Mr. Treinen regarding all aspects of the case over its fourteen-month

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 9
-10-

duration. ACA again suggests that Mr. Bragg should be denied compensation for

time not tied to an aspect of the case demanding his special expertise. We have

already rejected this basic point in other contexts, and it is no more persuasive

here than elsewhere. ACA also appears to contend that Mr. Bragg may not charge

for communications with co-counsel, citing Steffens v. Steffens, No. 99-1253,

2000 WL 702390, at *6 (10th Cir. May 26, 2000) (unpub.), as authority for

cutting fees for time spent in intra-office and inter-office conferencing. Of

course, the unpublished Steffens case is not binding on this panel, but we note that

it did not hold that conferencing with co-counsel is uncompensable. Rather,

Steffens merely upheld an exclusion of “excessive time [billed] for [such]

conferences.” Id. (emphasis added). Similarly, in Case this court upheld a

reduction in time claimed for conferencing, not because it was categorically

improper, but because counsel’s conclusory entries “did not show how much time

was spent in or what happened at conference.” Case, 157 F.3d at 1253. Here,

billing records for conferencing with co-counsel were neither facially excessive as

in Steffens nor conclusory as in Case. 

ACA raises two objections to Mr. Bragg’s participation in the settlement

conference. ACA generally contends that his attendance was unnecessary, as

Mr. Treinen was there to represent the interests of Ms. Anchondo and the plaintiff

class. But this was no minor hearing; the entire FDCPA case (save fees and

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 10
7 The settlement afforded compensation for class members, awarded

additional compensation for plaintiff as representative, and granted injunctive

relief to prevent ACA from engaging in the conduct that prompted the suit. 

8 We note that the only authority cited by ACA in support of its challenge to

Mr. Bragg’s travel time, an unpublished district court decision out of California,

Johnson v. Credit Int’l, Inc., No. C-03-100 SC, 2005 WL 2401890, at *3

(N.D. Cal. July 28, 2005), was reversed on appeal on precisely this point, see

Johnson v. Credit Int’l, Inc., 257 F. App’x 8, 10 (9th Cir. 2007). 

-11-

costs) was resolved–quite favorably to plaintiff7

–at the conference. It would have

been a questionable judgment by Mr. Treinen not to ensure that Mr. Bragg was

there in person to prepare and present the best case for settlement. 

More specifically, ACA objects to compensating Mr. Bragg’s travel time. 

It is not clear whether this objection goes beyond ACA’s meritless challenge to

Mr. Bragg’s attendance at the conference per se, but even if it does, we reject it.

We have recognized the compensability of necessary travel time, though a trial

court has discretion to apply a reduced hourly rate if the time is otherwise

unproductive.8

 See Smith v. Freeman, 921 F.2d 1120, 1122 (10th Cir. 1990). 

Mr. Bragg recorded 5.8 and 5.6 hours of travel time to Albuquerque and back to

Chicago, respectively. His records reflect that he reviewed the case while en

route to the conference, but there is no entry for work on his return. Thus, at

most ACA could have asked the district court to exercise its discretion to award a

reduced fee for the return trip to Chicago. But ACA did not make such a request

in its memorandum opposing plaintiff’s fee application and we decline to hold

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 11
9 Once again ACA relies on the unpublished California district court decision

in Johnson, see supra note 8, as its sole authority for challenging the billing

practice involved here. Actually, Johnson appears to be concerned with

something different: 

Mr. Bragg’s custom was to itemize multiple activities that took place

on the same day. Then, because his law firm rounds up to the nearest

tenth of an hour, the result is that an activity such as preparing a fax

of a document is billed for six minutes on top of preparing the

document itself for 54 minutes. Putting aside the obvious question of

why Mr. Bragg must prepare a fax at his hourly rate of $435 when he

has a variety of assistants to call upon, this Court asks if Mr. Bragg

could have perhaps prepared the document and the fax all in the same

54 minutes, without an additional six minute charge. 

Johnson, 2005 WL 2401890, at *3 (record citation omitted). In any event, to the

extent Johnson may be read to disallow the use of tenth-of-an-hour increments for

tasks such as reviewing case documents, we need not and do not follow suit. 

-12-

that the district court abused its discretion in not granting a potential reduction

that was not presented for its consideration. 

Finally, ACA complains about 3.9 hours attributed by Mr. Bragg to the

review of various orders, emails, and letters, in thirty-nine entries of .1 hour per

document. The vast majority of these documents, ACA asserts, were only one

page. We fail to see an abuse of discretion in allowing an allotment of six

minutes to the review of even single-page documents.9

 

Turning to Mr. Treinen, ACA first objects to the 9.8 hours he attributed to

communication with Mr. Bragg during the fourteen-month course of proceedings

below. On its face, a mere .7 hour per month in communication with co-counsel

is not excessive. ACA insists that much time was expended on issues for which

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 12
-13-

Mr. Bragg’s special expertise was not necessary, but, once again, ACA cites no

authority for its facially implausible premise that expert co-counsel cannot assist

on a case-related matter unless that matter is uniquely addressed to his particular

expertise. Nor has ACA identified any specific communications between

Mr. Treinen and Mr. Bragg that were unnecessary in any broader sense. 

ACA asserts in conclusory fashion that experienced counsel should have

benefitted from work done in other cases, reducing the time required here, citing

Hagan v. MRS Associates, Inc., No. Civ. A. 99-3749, 2001 WL 531119, at *6

(E.D. La. May 15, 2001). This case is nothing like Hagan, where experienced

counsel inexplicably billed 10.75 hours for preparing a short complaint. Here, in

contrast, counsel billed a combined 2.4 hours for that task–clearly reflecting the

benefit of their experience in similar cases. And the amount of time attributed by

counsel to legal research overall in this case was about one-third what was billed

in Hagan–again, reflecting the benefit of their relevant legal experience. ACA’s

line of attack here is not only completely unsubstantiated by any specific facts,

but plainly belied by comparison with the very authority it cites. 

ACA’s brief culminates in a plea for a substantial across-the-board cut in

counsel’s compensable hours, with an associated complaint that it is unclear from

the district court’s reasoning whether it even considered this option. Actually, the

reason there is no mention of an across-the-board reduction in the district court’s

decision is abundantly clear: the court had reviewed counsel’s billing records,

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 13
10 This statutory entitlement is not dependent upon our limited authority to

order appellate sanctions under Fed. R. App. P. 38, with its requirement of a

“separately filed motion or notice” as a procedural prerequisite to consideration

of a fee award to sanction frivolous appeals, see, e.g., Smith v. Kitchen, 156 F.3d

1025, 1030 (10th Cir. 1997); Peterson v. Saperstein, 267 F. App’x 751, 755

(continued...)

-14-

concluded that they showed proper billing judgment, and found the hours

expended to be reasonable. That determination, coupled with the court’s prior

calculation of appropriate hourly rates of compensation, provided a fully adequate

basis for an appropriate fee award. In sum, ACA has failed to demonstrate that

the district court abused its discretion in its fee award to plaintiff’s counsel,

which we therefore affirm. 

III. Plaintiff’s Request for Appellate Fees

Plaintiff has requested an additional award of fees and costs expended on

appeal in defending the district court’s award, citing Gallegos v. Stokes, 593 F.2d

372, 376 (10th Cir. 1979). While Gallegos recognized a right to such appellate

fees under the Truth in Lending Act (TLA) rather than the FDCPA, the operative

fee-shifting provisions of the Acts are identical: “in the case of any successful

action to enforce the foregoing liability [for violation of the TLA or FDCPA]” the

plaintiff may recover “costs of the action, together with a reasonable attorney’s

fee as determined by the court.” 15 U.S.C. § 1640(a)(3) (TLA) and § 1692k(a)(3)

(FDCPA). Thus, consistent with Gallegos, we hold that plaintiff is statutorily

entitled to fees and costs for this appeal.10 See King v. Int’l Data Servs. (IDS),

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 14
10(...continued)

(10th Cir. 2008), cert. denied, 129 S. Ct. 913 (2009). When appellate fees are

independently legally authorized, we have regularly considered requests in

appellate briefs sufficient to place the matter before us. See, e.g., Harsco Corp.

v. Renner, 475 F.3d 1179, 1191 (10th Cir. 2007); Wyo. Wildlife Fed’n v. United

States, 792 F.2d 981, 986 (10th Cir. 1986); Aspen Highlands Skiing Corp. v.

Aspen Skiing Co., 738 F.2d 1509, 1527 (10th Cir. 1984), aff’d, 472 U.S. 585

(1985). Thus, the request included in plaintiff’s brief, see Appellee’s Answer Br.

at 20, sufficed for that purpose here. 

-15-

100 F. App’x 681, 682 (9th Cir. 2004) (granting appellate fees and costs under

FDCPA because “[t]his circuit has interpreted the same statutory language to

allow for attorney’s fees and costs on appeal in the [TLA]”); see also Dowling v.

Litton Loan Servicing LP, 320 F. App’x 442, 450 (6th Cir. 2009) (holding FDCPA

plaintiff awarded fees by district court “is entitled to attorney’s fees incurred in

defending the award on this appeal”); Hester v. Graham, Bright & Smith, P.C.,

289 F. App’x 35, 44 (5th Cir. 2008) (holding plaintiff who defended favorable

FDCPA judgment on appeal was entitled to appellate fees). We remand the

matter to the district court to determine an appropriate amount. See Whittington

v. Nordam Group Inc., 429 F.3d 986, 1002 (10th Cir. 2005). 

The judgment of the district court is AFFIRMED. Plaintiff’s request for an

award of fees and costs on appeal is GRANTED and the matter is REMANDED

for determination of an appropriate amount. 

Appellate Case: 10-2010 Document: 01018477524 Date Filed: 08/16/2010 Page: 15