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Attorneys Narrowly Avoid “10% Haircut” for Block Billing in Fee Submission

In Smeenk v. Faught, a prevailing Plaintiff in a whistleblower retaliation suit filed a motion for attorney fees. Smeenk v. Faught, No. 1:17-CV-01466-CL, 2019 WL 3325962, at 1 (D. Or. July 24, 2019). The Court reduced the attorney’s fees for excessive time spent, duplication of tasks, vague entries, paralegal tasks, and clerical tasks.

In particular, the Court found that Mr. Lundberg’s billing of 52.2 hours in preparing for two depositions was excessive and reduced the attorney’s time by half. Id. at 5. The Court also reduced Mr. Malmsheimer’s time for preparing for a deposition that he did not attend. The Court only allowed a quarter of the time Mr. Malmsheimer billed to prepare the deposition because he assisted Mr. Lundberg during that time. The Court further reduced the attorneys’ time in half for overstaffing because both attorneys billed for drafting and revising the same document during the same time period. Id. at 3. In one instance of duplicative work where Mr. Lundberg’s description was overly broad and Mr. Malmsheimer specifically identified the document being revised, the Court reduced the overly broad entry as duplicative. Id. at 3. The Court in Smeenk further reduced the attorney’s fees for an entry that was vague. Id. at 4/.

The Court acknowledges that the courts in the District of Oregon typically apply up to a “10% Haircut” to attorney’s time expenditures when an attorney block bills several tasks in one time entry. Id. at 5*. The Court quotes the Ayala case indicating “the practice of block billing systematically impairs the court’s ability to ascertain the reasonableness of an attorney’s time expenditures…the courts of the District of Oregon have of long standing adopted the practice of eliminating block-billed time entries in their entirety.” Ayala v. Cook Family Builders, LLC, No. 3:17-CV-266-PK, 2018 WL 1631453, at 4 (D. Or. Mar. 6, 2018). The Court in Smeenk stated that while some entries “flirt with the impermissible practice of block bill[ing],” a “10% Haircut” would not be necessary in this case. Smeenk at 5.

Attorneys must sufficiently describe each task to enable the court or a client to discern the reasonableness of the time billed. Block billed and vague task descriptions greatly impair the reader’s ability to determine the reasonableness of the time spent. In Smeenk, the Court was able to determine the reasonableness of the time expended, however several reductions were made for billing violations. As noted, the Court was able to determine that the time billed for two attorneys to prepare for a deposition was excessive as well as make reductions for overstaffing. In addition to a variety of billing violations, the Plaintiffs narrowly avoided a “10% haircut.” If the Court was not able ascertain the reasonableness of these task descriptions, the fee submission would have received a “10% haircut” on top of any other reductions. This case exemplifies the importance of clearly understandable billing records and shows that it is more prudent for attorneys to ensure their fee submissions are sufficiently detailed.

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