WP Co. v. U.S. Small Bus. Admin., No. 20-1240, 2021 WL 214375 (D.D.C. Jan. 21, 2021) (Boasberg, J.)
WP Co. v. U.S. Small Bus. Admin., No. 20-1240, 2021 WL 214375 (D.D.C. Jan. 21, 2021) (Boasberg, J.)
Re: Requests for various data concerning the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loans (EIDL) program
Disposition: Granting plaintiffs' motion for attorney fees and costs; awarding plaintiffs $122,347.02
- Attorney Fees, Eligibility: The court relates that "SBA concedes – as it must – that Plaintiffs are 'eligible' to receive fees on account of their complete success in the underlying suit."
- Attorney Fees, Entitlement: The court holds that "Plaintiffs are entitled to attorney fees." The court relates that "SBA wisely concedes the first three factors . . . and the Court agrees that they weigh in Plaintiffs' favor." "The 'public benefit' from the records at issue is significant, as Plaintiffs' 'victory is likely to add to the fund of information that citizens may use in making vital political choices.'" "[The] Court has previously explained at length how the loan data would further the public's 'urgent and immediate interest in assessing the results' of an unprecedented federal relief effort financed by taxpayer dollars . . . including whether funds were distributed fairly and equitably, and without waste, fraud, and abuse." "The second and third factors – Plaintiffs' 'commercial benefit' and 'interest in the records,' which 'are closely related and often considered together,' . . . – plainly point in the same direction." "As relevant here, they generally tip in favor of organizations that 'aim to ferret out and make public worthwhile, previously unknown government information.'" "That purpose, moreover, was vindicated when SBA, in executing [the] Court's Order, published the loan data on its own website, thereby giving Plaintiffs access at the same time as the rest of the world." Regarding the fourth factor, "[t]o be sure, this Court decisively rejected both of the agency's claimed justifications for withholding the records at issue." "In so doing, it found that the assumptions underlying SBA's argument for nondisclosure under Exemption 4 were 'fundamentally flawed,' and that the 'significant public interest' in the loan data 'dramatically outweigh[ed] any limited private interest in nondisclosure' under Exemption 6." "On the other hand, as the Court's 40-page summary-judgment Opinion implicitly admitted, this litigation involved 'a novel application' of both exemptions 'and raise[d] serious legal questions and issues that d[id] not lend themselves to immediate or obvious resolution.'" "Even though the Court ultimately rejected SBA's position on the merits, therefore, one might fairly conclude that the agency had at least a 'colorable or reasonable basis' for its initial determination that FOIA exempted the requested records from disclosure." "Even assuming, however, that SBA has carried its burden and that this final factor lightly tips in its favor, Plaintiffs remain entitled to fees." "In the four-part 'entitlement' analysis, it bears reiterating, '[n]o one factor is dispositive.'" "Indeed, the fourth criterion is necessarily decisive only when 'the Government's position is correct as a matter of law.'" "If, on the other hand, its stance is merely 'founded on a colorable basis in law, that will be weighed along with other relevant considerations in the entitlement calculus.'" "Here, the first three factors – most notably the substantial public benefit from the released records – tilt heavily toward Plaintiffs, more than offsetting the fourth factor and confirming the news organizations’ entitlement to fees." "This is particularly so where the fourth factor does not decisively land in Defendant's column."
- Attorney Fees, Calculations: The court holds that "Plaintiffs sought a combined $154,841.92 in attorney fees and costs, and they will receive $122,347.02." The court first finds that "Plaintiffs have made little effort to establish that their preferred LSI rates are 'in line with those prevailing in the community' for FOIA litigation." "For instance, they decline to explain – such as through exhibits or affidavits of the sort that typically accompany motions for attorney fees – why the methodology underlying the LSI Matrix renders it appropriate for this particular case." "More glaringly, they offer no evidence whatsoever – such as surveys or billing-rate tables – of rates charged and received by lawyers of comparable skill and experience in the D.C. market generally, let alone when handling FOIA cases." "Indeed, their declarations do not even assert that their requested figures are in line with prevailing community rates for similar litigation." Regarding plaintiff's argument based on "recent FOIA litigation involving largely the same attorneys, where the Government consented to a fee calculation using the LSI rates," the court finds that "[c]ontrary to Plaintiffs' implication, however, the Government's prior position in a different proceeding – one where fees were never even awarded, and where the State Department, not SBA, was the defendant – does not estop it from challenging the news organizations' distinct failure of proof here." Regarding "Plaintiffs point[ing] to their lawyers' standard hourly billing rates – which, for all attorneys save [one], are slightly higher than the corresponding LSI Matrix figures – as evidence in support of applying their requested LSI rates," the court finds that "[t]hese standard hourly fees, however, cannot by themselves establish that Plaintiffs' 'requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'" "Even if they could, their attorneys' submissions appear to convey only amounts billed, not payments received, and it is often the case that standard hourly rates overstate the fees clients actually pay for services."
Regarding the hours themselves, the court finds that "SBA gets off on the right foot with its charge that the hours used in Plaintiffs' lodestar calculation overstate the time their attorneys actually spent on the litigation." "As Plaintiffs' counsel now admits on Reply, while the news organizations were billed correct dollar amounts, uneven partitioning of fees among clients in May and June 2020 caused the firm's billing software to mistakenly exaggerate the time spent on particular tasks." "[T]he Court also agrees with SBA that Plaintiffs have overstated their hours – if only barely – for time spent reviewing information released by the agency during the litigation." However, the court rejects defendant's "[a]rgu[ment] that Plaintiffs seek 'excessive fees' for time spent drafting their 'rather discursive' Complaint and Amended Complaint, the agency asserts that FOIA pleadings are 'usually very simple' and need only 'allege that the FOIA request was submitted, and that the requirement of exhaustion does not apply.'" The court finds that "[e]ven putting that generalization to the side . . . this was not a 'usual[ ]' FOIA case." Also, regarding "a handful of time entries listing assertedly 'vague' tasks such as 'coordination,' along with several relatively minor instances of block billing," as well as defendant's contention that plaintiffs "seek excessive fees for inadequately described internal conferences and discussions," "[t]he Court . . . finds that the 'vast majority' of billing entries are 'appropriately detailed and allow [it] to discern "with a high degree of certainty" the work for which [Plaintiffs are] requesting compensation.'" "Finally, contrary to the agency's halfhearted insistence, . . . Plaintiffs spent an appropriate amount of time reviewing materials from two other cases: one before this Court raising identical legal issues . . ., and another in the Northern District of California seeking release of the same PPP data . . . ." "[The] Court consolidated the former suit with the present one for summary-judgment purposes, and although the NDCA action was ultimately stayed pending resolution of Plaintiffs' case, it easily could have been decided beforehand." "Indeed, as Plaintiffs point out, it likely 'would have been unreasonable' for their lawyers not to have monitored and consulted with counsel in those related cases as their own litigation proceeded." "The minimal time they spent to that effect, accordingly, is entirely appropriate."