Contemporaneous time records and a deceased attorney – a WDNY legal fee conundrum

Posted on September 21st, 2017 by Legal Fee Advisors

By Jillian Robbins and Emily Wilson.

The employee-plaintiffs, in a successful ERISA violation claim against their defendant-employer, sought over $7.6 million in attorney’s fees in December 2016. The Western District of New York rejected Defendants’ argument that Plaintiffs were not entitled to any fees at all, but nonetheless reduced the amount of fees sought in half, awarding only $4,885,604.70, due to a deceased attorney’s missing time records and other inefficiencies, including multiple attorneys billing for co-counsel communications.

In calculating the lodestar figure, the Court first determined that although the litigation concluded in 2016, using 2011 hourly rates (the year when the Plaintiffs moved for the fee award) was appropriate in this case as the 2011 rates “even by 2016 standards, are reasonable and adequate.” The rates in 2011 ranged from $225-$575 per hour, whereas the rates in 2016 ranged from $250-$675 per hour, with the Court providing no further detail as to the positions or location of these rates. The Court reasoned that rates above $500 per hour exceed what is typical for the Western District, and even though it was reasonable for the Plaintiffs to use out-of-district counsel due to the complexity of the case, the Western District’s normal rates are relevant to the analysis, as this is where the case was ultimately litigated.

In calculating the number of hours reasonably expended on the case, the Court first looked to the hours the Plaintiffs’ original lead counsel expended on the case. In reviewing the time records of lead counsel, the Court found that in June 2009, lead counsel had said he spent 3,209.5 hours on the case, and said his time records would be submitted to the Court, however his untimely death 2 months later prevented him from doing so. The Plaintiffs attempted to reconstruct the time records in order to reflect the number of hours claimed, but the Court noted that contemporaneous, rather than reconstructed, time records are preferred. While the Court recognized the amount of work that lead counsel performed on the case, the Court reduced lead counsel’s number of hours by 50% due to the lack of contemporaneous time records.

Next, the Court reduced the number of hours expended by other attorneys by 15% for a variety of reasons. First, the Plaintiffs sought $788,000 in attorneys’ fees over a nine-month period, the Court deemed this to be excessive as this was a period in which the case was winding down. Second, while it was reasonable for there to be multiple attorneys working on this case who regularly communicated with each other, this “inevitably leads to inefficiency.” The Court determined that a “modest reduction” was necessary based on the attorneys billing multiple entries for co-counsel communications.

Attorneys going forward should be sure to not include unnecessary and potentially duplicative hours for intra-office communications, and always keep contemporaneous time records, in order to avoid a dispute in situations involving tragic and untimely events such as these.


Frommert v. Conkright, 223 F. Supp. 3d 140, 145 (W.D.N.Y. 2016), reconsideration denied, No. 00-CV-6311L, 2017 WL 952674 (W.D.N.Y. Mar. 10, 2017)

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