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IN THE UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

_______________________________________ LEWIS C. BROWN Plaintiff vs. EXPERIAN INFORMATION SOLUTIONS INC. Defendant _______________________________________ ) ) ) ) ) ) ) ) ) )

Case No. 3:01CV1967 (RNC)

April 30, 2004

MEMORANDUM IN SUPPORT OF MOTION FOR ATTORNEY FEES AND COSTS

A.

A SUCCESSFUL FCRA PLAINTIFF IS ENTITLED TO AN AWARD OF REASONABLE ATTORNEY'S FEES AND COSTS

On April 16, 2004, a plaintiff's judgment entered pursuant to the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, and the Connecticut Unfair Trade Practices Act (CUTPA), C.G.S. § 42-110a et seq. The FCRA is a consumer protection statute "... prompted by `congressional concern over abuses in the credit reporting industry. In the FCRA, Congress has recognized the crucial role that consumer reporting agencies play in collecting and transmitting consumer credit information, and the detrimental effects inaccurate information can visit upon both the individual consumer and the nation's economy as a whole." See, Cushman v. Trans Union Corp., 115 F.3d

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220, 223 (3rd Cir. 1997) (quoting Philbin v. Trans Union Corp., 101 F.3d 957, 962 (3rd Cir. 1996)). See also, St. Paul Guardian Insurance Company v. Johnson, 884 F.2d 881, 883 (5th Cir. 1989); Guimond v. Trans Union Credit Information Co., 45 F.3d 1329, 1333 (9th Cir. 1995) ("consumer oriented objectives" require liberal construction of the statute). Because of the remedial nature of the statute, the FCRA expressly mandates awards of attorney's fees to successful plaintiffs in actions to enforce any of its provisions. See: 15 U.S.C. § 1681o(a)(2).1

Also: Federal Appellate courts [to include the U.S. Supreme Court] consistently cite to identical fee-shifting language found elsewhere in the (umbrella) Consumer Credit Protection Act (CCPA) 2, 15 U.S.C. §§ 1601-1693, (of which the FCRA is a part) as imposing a mandatory fee award.

1

Section 1681o provides in pertinent part (emphasis added): (a) Any person who is negligent in failing to comply with any requirement imposed under

this subchapter with respect to any consumer is liable to that consumer in an amount equal to the sum of ­ (1) any actual damages sustained by the consumer as a result of the failure; (2) in the case of any successful action to enforce any liability under this section, the costs of the action together with reasonable attorney's fees as determined by the court.
2

The Consumer Credit Protection Act (CCPA), 15 U.S.C. §§ 1601-1693, encompasses the Truth

in Lending Act, Fair Credit Billing Act, Consumer Leasing Act, Federal Garnishment Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Electronic Funds Transfer Act and the Equal Credit Opportunity Act.

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e.g.

The Supreme Court cites identical3 CCPA fee-shifting language in the Truth and Lending Act (TILA), 15 U.S.C. § 1640, as an example of a provision imposing mandatory fees. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 415 n.5 (1978) Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 261 n. 34 (1975) ("statutes which are mandatory in terms of awarding attorney's fees include ... the Truth in Lending Act, 15 U.S.C. § 1640(a) ..."). The Second and Seventh Circuits construe identical4 CCPA fee-shifting language in the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (FDCPA). See: Emmanuel v. American Credit Exchange, 870 F.2d 805 (2d. Cir. 1989);. Also: Tolentino v. Friedman, 46 F.3d 645 (7th Cir. 1995) ("The reason for mandatory fees is that congress chose a `private attorney general' approach to assume enforcement of the FDCPA.").

e.g.

3

The Truth in Lending Act (TILA), 15 U.S.C. § 1640(a), provides (in pertinent part): "... [A]ny creditor who fails to comply with any requirement imposed by ... this subchapter with respect to any person is liable to such person in an amount equal to the sum of ­ (1) any actual damage sustained by such person as a result of such failure; ... (3) in the case of any successful action to enforce the foregoing liability ... the costs of the action, together with a reasonable attorney's fee as determined by the court."

4

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692(k), provides (in pertinent

part): "... [A]ny debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of ­ (1) any actual damage sustained by such person as a result of such failure; ... (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court."

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Although counsel is unaware of an FCRA case squarely on point, both the statute's black letter ("is") and traditional cannons of statutory construction logically recommend a coherent reading of the FCRA consistent with that of the identical fee-shifting language appearing elsewhere in the CCPA (discussed: supra).5 Statutes which authorize a fee award for successful litigants are designed to promote access to judicial relief to those who would otherwise be unable to afford it by providing an economic fee incentive for lawyers to represent their interests. See e.g., Pennsylvania v. Delaware Valley Citizens Counsil for Clean Air, 478 U.S. 546 , 92 L.Ed. 2d 439, 106 S.Ct. 3088 (1986). "In addition, statutory fee awards serve to deter potential violators and encourage voluntary enforcement with the statute involved." City of Riverside v. Rivera, 477 U.S. 561, 91 L.Ed. 2d 466, 106 S.Ct. 2686. A court must award attorney's fees to a prevailing plaintiff sufficient to vindicate the Congressional goal of creating a system of private attorneys general to aid in the effective enforcement of the FCRA. Bryant v. TRW Inc., 689 F.2d 72, 79 ("We have no doubt that Congress intended in authorizing attorney's fees in lawsuits under the FCRA, 15 U.S.C. §§ 1681n, 1681o, to make use of the private attorney general concept.").

5

Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989) (It is a "fundamental canon of

statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme."); Fahy v. Fahy, 227 Conn. 505, 513-14 (1993) ("Just as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . [so] courts must discharge their responsibility, in case by case adjudication, to assure that the body of the law - both common and statutory - remains coherent and consistent."); Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (courts must endeavor to interpret statutes as part of a symmetrical and coherent regulatory scheme)

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This motion having timely filed,6 and the plaintiff having prevailed,7 the plaintiff is entitled to an award of reasonable attorneys' fees and costs.

C.

THE REQUESTED AMOUNT OF ATTORNEY'S FEES IS REASONABLE The starting point for determining the fee that should be awarded is the calculation of the

lodestar amount, which is arrived at by multiplying the number of hours reasonably expended on the litigation ... by a reasonable hourly rate. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.) (citation omitted). Reasonable attorney's fees also include reasonable out-of-pocket expenses ordinarily charged to clients. Deleon citing LeBlanc-Stenberg v. Fletcher, 143 F.3d 748, 763 (2d. cir. 1998). If the plaintiff won substantial relief, and all of his claims involved a "common core of facts" or were based on "related legal theories" so that much of counsel's time was devoted generally to the litigation as whole, making it difficult to divide the hours expended by a claim by claim basis, there should be a fee award for all time reasonably expended. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.) citing LeBlanc-Stenberg v. Fletcher, 143 F.3d 748, 763 (2d. cir. 1998) The lodestar should be based on prevailing market rates for attorneys of comparable skill, experience and reputation in the district. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.) (citation omitted). Although there is a strong presumption that the lodestar figure represents a reasonable fee, the lodestar may be adjusted on the basis of several factors, including the results

6

This motion is timely filed in accord with the 14-day provision of Fed. R. Civ. P. § 54(d)(2)(B).

7

See: Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (a party

prevails "if they succeed on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit.")

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obtained. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.) (citation omitted). Indeed, the most critical factor in determining the reasonableness of a fee award is the degree of success obtained. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.) (citation omitted).

1.

THE RESULTS OBTAINED SECURED A SUBSTANTIAL PRIVATE AND PUBLIC BENEFIT

The most critical factor in determining the reasonableness of a fee award is the degree of success obtained. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.) (citation omitted). For his client's emotional distress, Mr. Zelotes secured a substantial award -- $50,000.00. Of arguable equal import, and to the benefit of all persons, Mr. Zelotes' efforts spurred positive industry reform, changing the manner in which a national consumer reporting agency (Experian) communicates important remedial information to consumers with troubled credit reports.8 This too, must be considered. As the 10th circuit observed, commenting on similar enforcement of consumer (odometer) laws: "The value of an attorney's services is not only measured by the amount of the recovery to the plaintiff, but also the non-monetary benefit accruing to others, in this case the public at large from this successful vindication of a national policy ..." Fleet Inv. Co. v. Rogers, 620 F.2d 792 (10th Cir. 1982) (emphasis added) The resulting public benefit cannot be properly understated. In enacting the FCRA, Congress made the following findings:

8

At trial, Experian's expert witness (David Browne) expressly so testified.

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"The banking system is dependent upon fair and accurate credit reporting. Inaccurate credit reports directly impair the efficiency of the banking system and unfair credit reporting methods undermine the public confidence which is essential to the continued functioning of the banking system." 15 U.S.C. § 1681(a)(1) (Congressional Statement of Findings) (emphasis added)

"There is a need to insure that consumer reporting agencies exercise their grave responsibilities with fairness, impartiality, and a respect for the consumer's right to privacy." 15 U.S.C. § 1681(a)(4) (Congressional Statement of Findings) (emphasis added)

As relates specifically to Mr. Brown, the $50,000.00 awarded far exceeds that which would have been realized had he accepted Experian's highest pretrial offer ($60,000.00 inclusive of attorney's fees and costs). The public is better off as a result of this litigation and Mr. Brown is better off for having taken a verdict. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Deleon citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)

2.

A UNIQUE BODY OF LAW AND EXPERIAN'S THREATS MADE THIS CASE UNDESIRABLE

A second substantive lodestar guideline to be considered is the undesirability of the case. These cases are generally not considered desirable, as evidenced by the relatively small number of attorneys who bring them.

Comment: A $50,000.00 FCRA award (although remarkable within the field) is a relative hill of beans compared to recoveries commonplace to counsel handling personal

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injury cases. Hence, it may come as little surprise, that this was the first FCRA jury trial litigated in the District of Connecticut since its enactment 34 years ago (March 5, 1970). Few members of the trial bar are willing (desire) to develop the requisite familiarity necessary to litigate under a complex statute rarely occasioned (FCRA).

From Mr. Brown's perspective, Experian's antagonistic threats further exacerbated the undesirability of litigating this matter to its appropriate conclusion. On several occasion (both on and off the court record), Experian emphatically impressed upon Mr. Brown (in terrorem) that Experian would aggressively prosecute its full litigation expense if Experian prevailed (or if Mr. Brown fell shy of its offer of judgment). Mr. Brown (a retired patent attorney of sound financial standing) is not judgment proof. In proceeding to trial (to secure just and reasonable compensation, exclusive of attorney's fees and costs), Mr. Brown accepted both considerable and disproportionate individual risk.9 Mr. Brown (and his "humble shepherd") walked through the figurative "valley." This substantive lodestar guideline similarly urges full and appropriate compensation.

9

Although strong argument may be had that Congressional intent to promote remedial

enforcement of consumer protection statutes (limiting a defendant's fees and costs to instances of bad faith) trumps the general provisions of a Rule 68 offer of judgment (which does not so limit), a resolution of this conflict remains uncertain. At a minimum, this uncertainty threatens the perceived risk incumbent to consumer litigation, which might reasonably create a conflict of interest between the consumer (in avoiding the defendant's costs) and the consumer's attorney (in securing a settlement figure adequate to recover the reasonable value of his accrued fees). This potential conflict in interests (and the resulting incumbent pressures to protect the client) makes consumer litigation all the more undesirable. In communicating its threats, Experian aggressively tried to exploit this legal uncertainty to its advantage.

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3.

LODESTAR ANALSYIS RECCOMENDS A MID-RANGE HOURLY RATE OF $225

The hourly rate to be used in calculating the lodestar should reflect prevailing market rates for attorneys. Accel International Corp. v. Renwick, 2004 WL 513829 (D.Conn) (Chatigny, C.J.). When an attorney submits only his own affidavit to establish the prevailing rate for similar services, the court looks to previous fee awards. Id. In Accel, his honor considered prevailing market rates for attorneys in this district, finding (on March 8, 2004):

"Based on the reported decisions, it appears that that hourly rates awarded in this district have not exceeded $275 for highly experienced attorneys, [FN2] or $175 for associates. [FN3] On this record then, those are the rates that will be used. [FN4]"

The mid-level hourly fee requested ($225) is consistent with (and well below) the regularly rates hourly billed by fellow equity counsel handling consumer cases within the district.

e.g.

Bernard Kennedy, $325/hr; Michael Kennedy, $325/hr; Joanne Faulkner, $300/hr: Daniel Blinn (equity counsel: Consumer Law Group), $300/hr.; compare: Matthew Theriault (C.L.G. associate attorney) $175/hr. and Sharon Sinkoski: (C.L.G. paralegal: $110/hour).

The mid-level hourly fee requested ($225) also falls dramatically below that assessed by Experian's defense counsel.

e.g.

On information and belief: George Kostolampros, $300/hr. (associate attorney) Arun Chandra, $300/hr. (associate attorney): Daniel McLoon, $400+/hr.

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Note: Opposing counsel's fees and costs are factors long used by courts to determine the reasonableness of requested fees and costs. See: Taylor v. Scarborough, 66 F.2d. 589, 591 (2nd Cir. 1933); also: Birmingham v. Sogen-Swiss Intern. Corp. Retirement Plan, 718 F.2d 515, 523 (2d Cir. 1983) (In awarding fees, the Court can consider the substantial effort of plaintiff's attorney caused by defendants' "counsel who fought the case bitterly to the very end and even now continue their recalcitrant posture."); also: Blowers v. Lawyers Co. Op. Publishing Co., 526 F.Supp. 1324, 1327 (W.D.N.Y. 1981) (effort spent defending a case is probative of the plaintiff's counsel's efforts to become a prevailing party.); also: Mitroff v. Xomox Corp., 631 F.Supp. 25, 28 (S.D. Ohio 1985), rem'd 797 F.2d 271 (6th Cir. 1986) (when determining attorney's fees under federal fee shifting statutes, defense counsel's own hourly rate and time expended are among the factors which should be considered in assessing the reasonableness of a plaintiff's fee request); also: Brinkman v. Gilligan, 557 F.Supp. 610 (S.D. Ohio 1982), aff'd 797 F2d 163 (6th Cir. 1983) (pertinent to any consideration of a reasonable amount of time expended in the prosecution of a lawsuit is the amount of time expended by the defendant in defending that lawsuit); Thus, should the defendant argue that the plaintiff's efforts in prosecuting this action are unreasonable, the plaintiff (and this Court) should examine the effort and fees charged by defense counsel as a gauge to the reasonableness of the fee requested. Also: Although this court may consider Mr. Zelotes' previous fee awards10 ... if lodestar analysis reasonably recommends a higher rate, the court should award the higher rate. Blanchard v. Bergeron, 489 U.S. 87, 93 (1989)(fee award under §

10

Mr. Zelotes only once before requested a fee award. In Gervais v. O'Connell, Harris &

Associates Inc., 3:02CV1273(MRK) (12/29/03: default hearing in damages); Mr. Zelotes specifically requested, and this court (Kravitz, J.) awarded ($200/hr.). Mr. Zelotes contends (infra) that lodestar analysis in present instance, and the results in particular, fairly warrant a slightly higher rate ($225/hr.).

10

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1988 is not limited by a contingent fee agreement between the attorney and his client. "Should a fee agreement provide less than a reasonable fee calculated [according to the lodestar method], the defendant should nevertheless be required to pay the higher amount."); Crescent Publishing Group, Inc. v. Playboy Enterprises, Inc., 246 F.3d 142, 148 (2d Cir. 2001)(allowing a higher rate than that actually billed in a Copyright Act case); also: Venegas v. Mitchell, 495 U.S. 82 (1990), 495 U.S. at 88 (in a case concerning attorneys' fees under the Fair Labor Standards Act ("FLSA"), the Supreme Court held: "[W]here Congress has authorized the recovery of fees, the [district] court [should] be cognizant that the result achieved is necessarily more than mere financial gain. The recovery of attorney fees is a tool utilized by Congress to encourage the vindication of congressionally identified policies and rights, as well as to enable the plaintiff to obtain damages without expense for legal assistance . . . . [T]he determination of a reasonable fee is to be conducted by the district court regardless of any contract between plaintiff and plaintiff's counsel ... Moreover, the [FLSA] imposes on the errant [defendant] the burden of financing plaintiff's case to the extent of court costs and a judicially determined reasonable rate of pay for plaintiff's counsel. The fact that [plaintiff] has entered into an agreement with the lawyers prosecuting the case does not impact on the statutory burden of the [defendant], as the latter must pay what the district court determines to be a reasonable rate. The existence of a contingency contract may be considered by a district court as an element to be considered in determining the market value of an attorney's services, but the court is not bound in any sense by that agreement. . . . The court therefore concludes that a[n FLSA] fee award should not be limited by a contingent fee agreement . . . .") Mr. Zelotes' performance over the course of this litigation evidenced a confidence, ability and training well advanced beyond that reasonably expected of counsel with similar "calendar

11

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year" experience.11 Mr. Zelotes' talent for legal argument is commensurate with his academic credentials,12 and the clarity of his writing evidences his preceding career (experience) as a
11

Although this lodestar guideline is coined as "the experience, reputation and ability of the

attorney," in truth, experience and reputation are reasonably valued only insofar as they are circumstantial barometers of ability; experience (arguably) enhances ability and reputation is circumstantially probative.

To infer that Mr. Zelotes' "experience" is defined by the calendar years separating present date (2004) from his law school graduation (2000) is mistake. Experience is quantitative, qualitative and relative.

Consider: Traditional (lay) notions of "experience" presume that two attorneys, having practiced law for similar duration, are "equally" experienced. This quantitative assumption presumes qualitative equality.

Yet it can be reasonably argued that an attorney who achieves accelerated professional development over four years (through continuing education, intense study and evolving challenges) enjoys the greater benefit of experience than an attorney with 20 years "calendar experience" who learns his trade in a single year, finding comfort in routine thereafter. By scholarship and study, abilities typically borne of experience ... might sooner be imparted (experience might even be a detriment if poor performance, through repetition, becomes habit). Experience is qualitative.

Experience is "relative" insofar as it is a coin of art incapable of precise, uniform definition. What precisely does a meaningful year's experience as an attorney entail? It is a question incapable of answer. And what of experience beyond the profession? If an attorney's preceding career as a journalist elevates the clarity and presentation of legal argument ... is his "experience" as a journalist properly credited and considered as an attorney? If preceding studies in political

12

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journalist.13 As an equity attorney, his day-to-day responsibilities extend well beyond tasks typical of associate counsel.14 The quality of his performance, breadth of responsibilities and fiscal risks assumed (as equity counsel) are more fairly akin to that of a junior partner than an associate.15

philosophy and legal theory enhance counsel's ability to argue for the modification, extension or repeal of existing law ... is that "experience" also properly credited and considered? Experience is both relative and fluid.

However "experience" is ascertained ... at best, it is circumstantial evidence of the underlying benchmark measured -- ability.
12

Mr. Zelotes' is a distinguished honor graduate of University of Iowa College of Law (one of

the nation's top ranked public law schools). His academic achievements are on (objective) equal footing with his typical large-firm counterparts.
13

Good writing aims to be clear, concise, compelling, complete, easy on the eye, mindful of

tense and sentence structure -- beauty in simplicity.
14

As an "equity attorney," Mr. Zelotes' regular responsibilities encompass the entire spectrum of

all litigation and transactional matters handled, business management, acquisitions, financial planning, marketing and taxation.
15

As relates to Mr. Zelotes' sister field of litigation (debt collection) his client recoveries and

attendant reputation are remarkable. e.g. In January 2004, Mr. Zelotes successfully brokered an end to one the longest and costliest debt collection cases in state history, First Constitution Bank v. Caldrello, CV-89-0125327-S (and related cases) (15 years at a cost of approximately one-half million dollars). By skilful negotiation coupled with intense advocacy [over a ten-month

period], Mr. Zelotes safeguarded a charitable trust of beachfront property from averred claims of

13

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To properly prepare and explore his case, Mr. Zelotes had to decipher Experian's coded computer database records, and thereafter articulate how a (multi-billion-dollar) corporation's automated procedures were in negligent or willful noncompliance with the FCRA (and without benefit of a friendly expert, to boot) ­ no small task. If such matters were easily litigated, local counsel might reasonably have defended. This (in part) explains why Experian retained and flew in (from Los Angeles) senior litigation counsel from one of the nation's largest law firms (Daniel McLoon).16 In assessing the reasonableness of the cumulative award, this court might also consider awards in other fee-shifting cases: e.g. Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992) (fee award of $500,000 on $60,000 settlement); e.g. Jorgenson v. Experian, (D. Ore. No. 96-286-JE) (court awarded $200,000.00 in fees and costs. Experian settled on appeal for confidential amount). e.g. City of Riverside v. Rivera, 477 U.S. 561, 580 (1986) (awarding $245,450 fees on a $33,350 recovery, including 143 hours for trial preparation) e.g. United States Football League v. National Football League, 887 F.2d 408, 413 15 (2d Cir. 1989) ($5.5 million fee award on $3.00 recovery);

fraudulent transfer (CV-03-0126670-S) and eliminated more than four million dollars in consumer debt.
16

The plaintiff's success in sustaining a prima facie case for willfulness (punitive damages)

assuredly also factored (as likely did the apparent tenacity, ability and confidence of plaintiff's untested advocate).

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e.g.

Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1057 60 (2d Cir.1989) ($415,000 fee for recovering $2,689.02 monthly pension).

e.g.

Hall v. Harleysville Ins. Co., 943 F. Supp. 536 (E.D. Pa. 1996): (FCRA; No damages; attorney fees and costs: $87,821.48.)

e.g.

Norton v.Wilshire Credit Corp., 36 F. Supp. 2d at 220 (D. N.J. 1990) (rejecting proportionality in awarding $58,000 in fees in an FDCPA case)17

In this case, plaintiff's counsel has expended 596.3 hours on this matter (ten 60-hour weeks). See: Affidavit. At first glance, the time and labor involved in litigating this case may seem quite substantial. However, the instant litigation has been a hard-fought battle that has spanned more than two and a half years, culminating in a three-day jury trial that produced an excellent verdict, in the plaintiff's favor, and a substantial benefit to both private and public interests alike. As the Sixth Circuit observed: The purpose of [the statutory fee provision] is to encourage lawyers to accept [those] cases in which damages may be small, nominal or nonexistent ... Greatly reduced fees, such as were awarded in this case, will discourage lawyers from accepting [such] cases and vindicating the rights Congress had in mind. Bryant, supra, 689 F.2d at 80 (quoting Kinney v. Rothchild, 678 F.2d 658, 660 (6th Cir. 1982))18 (emphasis added)

17

The Second Circuit rejects the "proportionality" argument as the basis for a fee award.

e.g., Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994); DiFilippo v. Morizio, 759 F.2d 231, 234 (2d Cir. 1985); McCann v. Coughlin, 698 F.2d 112, 129 (2d Cir. 1983). As evidenced, fee awards in civil rights and consumer protection matters regularly exceed a plaintiff's recovery.
18

The United States Supreme Court has stated that the standards used for the Civil Rights

Attorney's Fees Awards Act "are generally applicable in all cases in which Congress has authorized an award of attorney's fees to a `prevailing party.'" See, Hensley, supra, 461 U.S. 433, n. 7. The FCRA is no exception and so, FCRA cases will calculate attorney fee awards

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Given the difficulty and complexity of the factual issues involved, and the substantial commitment necessary to advocate the plaintiff's interests against such a determined, well-heeled corporate defendant, it should be obvious that counsel for the plaintiff had to be highly skilled and prepared. Certainly, defense counsel spared no resource, effort or commitment in their attempt to resolve this matter in favor of the defendant. Mr. Zelotes' tenacity, methodology, attention to detail, and prudent caution avoided the numerous pitfalls, traps and obstacles skillfully erected by the defendant, enabling the plaintiff to prevail.

6.

THE ACCEPTANCE OF THIS CASE PRECLUDED OTHER EMPLOYMENT BY PLAINTIFF'S COUNSEL

This Court should also consider whether or not this representation reasonably precluded other economic opportunity. Clearly, plaintiff's counsel has devoted significant time and effort on the plaintiff's behalf, particularly while resisting summary judgment and in the proximate months abutting trial. This periodically necessitated that he close his doors to new business or otherwise refrain from successful patterns of advertising (e.g. bankruptcy). If this litigation had been unsuccessful, a substantial amount of attorney time and effort would have resulted in no compensation at all. Which raises another issue: Mr. Zelotes (a highly qualified and talented young trial lawyer) in all likelihood could have (more comfortably) pursued a well-paid career at large regional law firm upon (or shortly after) admission. Instead, Mr. Zelotes bet on his own talents as an advocate and businessman to build what is now a successful, self-sustaining litigation

using the same standards as Civil Rights, Truth in Lending, Anti-trust, RICO and other federal fee-shifting statutes.

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practice. His interim personal sacrifice19 made possible the substantial benefit presently conferred upon Mr. Brown and the vindication of important public policy. In building a successful contingent litigation practice, he patiently persisted through the building stages (everything going out and little coming in) and did not allow the temptations of quick settlement cloud his loyalties to client. Mr. Zelotes should be appropriately rewarded.

C.

THE PLAINTIFF IS ENTITLED TO REASONABLE COMPENSATION FOR ALL AVERRED CLAIMS If an attorney is not successful in prosecuting each claim asserted, a court must decide

whether an attorney's time spent on the plaintiff's unsuccessful claims should be included in the fee calculation. DeLeon v. Little, 2000 WL 435494 (D. Conn) (Chatigny, C. J.). As a preliminary matter, the plaintiff is not convinced the foregoing scrutiny applies. The plaintiff sought redress under the FCRA and CUTPA. The plaintiff recovered under the FCRA and CUTPA. It would appear then that the plaintiff succeeded on each claim averred (notwithstanding that he did not prevail on each underlying FCRA theory of liability averred). If the court determines the foregoing scrutiny applies, a two-step analysis is required. Id. Step one asks whether the unsuccessful claims were related to the successful claim in law of fact. If the answer is yes, step two asks whether the plaintiff achieved a level of success that warrants full

19

It is clear that "an appropriate adjustment for delay in payment - whether by the application of

current rather than historic hourly rates or otherwise" is consistent with the goals of fee-shifting statutes. Wilkinson v. Forst, 729 F.Supp.2d 1416 (D.Conn. 1990) citing Missouri v. Jenkins, by Agyei, ___U.S.___, 109 S.Ct. 2463, 2471-72, 105 L.Ed.2d 229 (1989); Chambless v. Masters, Mates, and Pilots Pension Plan, 885 F.2d 1053, 1060 (2d Cir.1989)

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compensation for the hours spent on the unsuccessful claims. If the results obtained are "excellent," no reduction is warranted. Id. Clearly, to the extent the plaintiff's success was limited by degree of scienter established at trial (willful noncompliance versus negligent noncompliance), the claims are related in law and fact. Discovery investigating the degree of scienter associated with Experian's noncompliance necessarily entailed a detailed review of the same subject matter. The first step is satisfied. To the extent the plaintiff's success was limited by alternate theories of liability averred, the discovery requisite to each all but completely overlap. The plaintiff averred that Experian was negligent: first, in failing to disclose the contents of the plaintiff's credit file upon request and, second: by failing to maintain reasonable procedures to assure the maximum possible accuracy of that (same) file. Establishing negligent noncompliance under either theory entailed a detailed understanding and analysis of the defendant's internal records, procedures and file structure ­ even more so on his successful theory. An underlying theme common to both theories is that, based upon circumstance and file content, the defendant should have reasonably identified and remedied its noncompliance. In present instance, the jury awarded $50,000.00 for violations of both the FCRA and CUTPA. It is of no consequence that the plaintiff did not prevail on every theory asserted, particularly as each relates to a common nucleus of operative fact. Bristol Tech. v. Microsoft Corp., 127 F.Supp.3d 64 (D.Conn. 2000) (" ... [C]ourts in this circuit have followed Connecticut state court case law, including Russell, to hold that, where "there is no reasonable way to segregate counsel's time . . . by claim," the parties' claims were "interrelated," and "the time and money expended . . . were in the pursuit of one common goal," division of the fee based on a

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plaintiff's success on one claim but failure on others is not appropriate."); also: Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (a party prevails "if they succeed on any significant issue in litigation which achieves some of the benefit the party sought in bringing suit"), Also Hensley at 435-436 n. 11 (A reduction in the fee is not justified merely because "prevailing plaintiff did not receive all the relief requested.")20 The first step is satisfied. The second step, as earlier mentioned, asks whether the plaintiff achieved a level of success that warrants full compensation for the hours spent on the unsuccessful claims. If the results obtained are "excellent," no reduction is warranted. Id. As earlier discussed (supra), for his client's emotional distress, Mr. Zelotes secured a substantial award -- $50,000.00. That the jury conceivably could have awarded more is of little import (the jury could conceivably have awarded less). Nor does Mr. Zelotes' lofty aspirations for punitive damages ("swinging for the fences") in any way change the nature of the award conferred ­ objectively speaking ... the award is excellent. Its excellence is further demonstrated by the plaintiff's successful vindication of an important national policy, spurring positive industry reform to the greater public benefit (supra). The public is better off as a result of this litigation and Mr. Brown is better off for having taken a verdict. "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Deleon citing Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)

20

Consider also: Dague v. City of Burlington, 935 F.2d 1343, 1358 59 (2d Cir. 1991), reversed

on other grounds, 505 U.S. 557, 112 S. Ct. 2638 (1992) (district court did not abuse its discretion in awarding full fee requested on all aspects of the case, although plaintiffs were unsuccessful on preliminary injunction and interlocutory appeal, some arguments failed, and some were not fee generating).

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CONCLUSION Mr. Zelotes has vigorously advanced his client's interests for two-and-one-half years. Because of the success achieved the plaintiffs are entitled to an award of reasonable attorney's fees and costs. The plaintiff respectfully asks that this Court award: (1) attorney's fees in the amount of $137,167.50; and (2) litigation expense in the amount of $1,737.00

Respectfully Submitted,

________________________________________________________________________ ZENAS ZELOTES, ESQ. Zenas Zelotes LLC // Shaw's Cove 5, Suite 202 // New London CT 06320 Conn. Juris No. 419408 // Fed, Bar No. 23001 Tel: (860) 442-2265 // Fax: (860) 439-0295

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DECISIONS NOT REPORTED

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Zenas Zelotes LLC

Shaw's Cove 5, Suite 202 Tel. (860) 442-2265 / Fax. (860) 439-0295

COMMERCIAL LITIGATION & PLANNING

Jones, Day, Reavis & Pogue Attn: Daniel J. McLoon 555 West 5th Street, Suite 4600 Los Angeles CA 90012-1025 4/30/04

CERTIFICATE OF SERVICE

Zenas Zelotes LLC

Shaw's Cove 5, Suite 202 Tel. (860) 442-2265 / Fax. (860) 439-0295

COMMERCIAL LITIGATION & PLANNING

The undersigned counsel certifies that a copy of the document(s) attached was served upon each addressee by USPS first class mail (or inhand service) on the date(s) reflected.

4/30/2004 United States District Court Attn: Clerk of Court 450 Main Street Hartford CT 06103

4/30/04

_____________________________________ ZENAS ZELOTES, ESQ. Zenas Zelotes LLC Shaw's Cove 5, Suite 202 New London CT 06320 Conn. Juris No. 419408 // Fed, Bar No. 23001 Tel: (860) 442-2265 // Fax: (860) 439-0295

Zenas Zelotes LLC
Shaw's Cove 5, Suite 202 Tel. (860) 442-2265 / Fax. (860) 439-0295

COMMERCIAL LITIGATION & PLANNING

United States District Court Attn: Chambers (Chatigny J.) 450 Main Street Hartford CT 06103 4/30/04