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You Don’t Get Something For Nothing

The prospect of attorneys’ fees is often a major factor in strategy and, in particular, settlement. Defendants sometimes pay more up front just to avoid “running up” plaintiff’s counsel’s fees. On the flip side, some plaintiff’s counsel may continue to work a low-value case rather than settling, knowing that they may be awarded all of their fees later on. A recent decision illustrates that neither side should assume that plaintiffs’ counsel will be awarded the amounts they ask for.

In Jones v. Sw. Credit Systems, L.P., No. 17-487 (E.D. Pa. July 12, 2018), the plaintiff originally brought three claims under the FDCPA and one under the TCPA. He voluntarily dismissed the TCPA claim in response to a motion for summary judgment, and ultimately prevailed in arbitration on one of his FDCPA claims, being awarded $750 in statutory damages.Thereafter, plaintiff’s counsel requested an award of fees based on the number of hours actually expended on the case.The Court, however, cut that number in half. Because the lawsuit was filed by Kimmel & Silverman, who specialize in consumer litigation, the matter was “not novel or especially difficult” for plaintiff’s counsel. Nor was it “particularly undesirable when considering Kimmel & Silverman’s dedication to litigating these matters.”

The lesson from this case—that work matters—gives consumer litigation defendants another arrow in the quiver when negotiating with plaintiffs’ counsel, particularly those frequent filers who bring carbon-copy complaints. We had success with that argument during the height of Crawford claims in 2014. After we pointed out to a judge that plaintiff’s counsel had filed more than 160 identical complaints (including 73 before that before that very judge), they were awarded just $150 in attorneys’ fees. See Knappenberger v. Asset Acceptance, LLC, No. 14-80178 (Bankr. N.D. Ala. Jan 12, 2015); Coleman v. Asset Acceptance, LLC, No. 14-80159 (Bankr. N.D. Ala. Dec. 29, 2014).