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A federal judge has upheld a jury’s $40,000 verdict in a race discrimination suit against SEPTA, but slashed the attorney fees requested by his lawyer after finding that he billed at too high a rate and charged for work that related to six other cases. In his 33-page opinion in Dowd v. SEPTA, U.S. District Judge J. Curtis Joyner concluded that attorney Olugbenga O. Abiona is not entitled to $350 per hour, but rejected SEPTA’s argument that the rate should be reduced to $150. Abiona, in court papers, noted that he was awarded fees at a rate of $250 per hour in 2001 by U.S. District Judge Berle M. Schiller. Joyner was unimpressed, noting that Abiona had originally asked Schiller to award him $500 per hour. “We fail to see how, if Mr. Abiona now claims that $250 was an appropriate hourly rate of compensation for his employment litigation work in 2001, $350 is a reasonable rate five years later. This is a 40 percent increase,” Joyner wrote. As a result, Joyner looked to the fee schedule published by Community Legal Services – a resource, he said, that courts “routinely turn to” to determine the reasonableness of fees – and found that it says lawyers in the Philadelphia community with 16 to 20 years of experience should be compensated at hourly rates in the range of $275 to $315. Abiona’s 17 years of experience, Joyner said, “place him in the lower segment of this range” and justified a $280 hourly rate. Joyner also found that Abiona was improperly asking to be compensated for all of the hours he spent during the period when the case had seven plaintiffs. Abiona had filed suit on behalf of a group of African-American SEPTA police officers who claim they were subjected to a racially hostile work environment. In the midst of the litigation, Joyner ordered a severance of the claims and Abiona filed separate suits for each officer. But after winning a jury verdict in favor of plaintiff Shareef Dowd, Abiona filed a fee petition that included all of the hours spent on his case, including the hours logged prior to the severance order. Joyner concluded that the fee request should be reduced to account for the overlap. “Despite the admitted overlap between the cases with regards to the depositions of other officers also suing SEPTA, none of the evidence submitted shows that anything less than the full amount of time spent preparing for and attending the deposition is sought,” Joyner wrote. “In the absence of such evidence presented by plaintiff, we cannot find that the entirety of the time sought is reasonably expended on behalf of [Dowd].” Abiona argued that SEPTA’s suggestion of dividing the time sought among the clients sharing the benefit of the work would be arbitrary. Joyner disagreed, saying “plaintiff’s counsel is not, by virtue of seeking statutory fees, relieved of ethical obligations, including the obligation to charge a reasonable fee and to forthrightly communicate with his clients concerning the basis of that fee.” That obligation, Joyner said, “has been interpreted to preclude attorneys from charging multiple clients for the same time or work.” Joyner found that “although there is not a clear violation of this obligation here, neither is there sufficient evidence presented by plaintiff to support that the hours expended are reasonable in light of the significant overlap between [Dowd's] case and those of other SEPTA police officers represented by Mr. Abiona.” As a result, Joyner concluded that, for the period before separate cases were filed by each officer, the hours expended on Dowd’s case should be reduced to “one-seventh of what has been claimed.” Joyner went on to trim other hours claimed by Abiona, resulting in a reduction of 112 of his claimed 618 hours. In the final calculation, Joyner concluded that Abiona was entitled to compensation for 506 hours at a rate of $280 per hour, as well as $75 per hour for the 85 hours logged by his paralegal, for a total fee award of about $148,000 and about $12,000 in costs. Although Joyner’s rulings on the fee issues were a victory for SEPTA’s lawyers – Gino J. Benedetti and Maria L.H. Lewis of Miller Alfano & Raspanti – the decision also rejects all of SEPTA’s arguments for a new trial or setting aside the verdict. SEPTA had argued that, during the trial, Abiona flouted Joyner’s pretrial ruling that explicitly limited the evidence to the discriminatory treatment allegedly suffered by Dowd. The defense team said Abiona repeatedly referenced discrimination claims brought by “other black officers.” The jury, they argued, was informed of the existence of “other cases out there” stemming from allegations of discrimination against SEPTA, and that SEPTA was prejudiced by such inadmissible evidence because its lawyers were forced to object so often that it appeared they were attempting to hide information from the jury. Joyner disagreed, saying, “particularly in the civil context, courts presume that a jury can – and will – follow instructions.” The verdict, Joyner said, showed that the improper references to other cases likely had no effect. “The comments here, at most, informed the jury that other officers complained of similar problems. The relatively modest verdict does little to suggest that the jury was influenced by reference to ‘other black officers,’ or that the verdict included compensation for injuries allegedly suffered by those other officers,” Joyner wrote. (Copies of the 33-page opinion in Dowd v. SEPTA , PICS No. 06-0697, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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