Billing Rates 2023: Contingency fee recovery falters under Kansas fee-shifting law

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Missouri’s Billing Rates section is primarily of use to attorneys who charge by the hour. Recently, it also proved useful to several Kansas City lawyers who sought a contingency fee award from a skeptical judge.

Lawyers from Rouse Frets White Goss Gentile Rhodes and from Dickerson Oxton represented Jeremy Harris, who was injured in 2014 when the brakes of his Harley-Davison V-Rod cycle locked up while riding in Kansas. After years of litigation, the case was tried by a Kansas federal jury on March 9, resulting in a $4.48 million award.

Harris’ case was brought under the Kansas Consumer Protection Act against City Cycle Sales Inc., which he alleged had improperly serviced the bike prior to his accident. The KCPA, like many state’s consumer protection laws, contains a provision that allows the prevailing party to recover attorneys’ fees.

Harris had agreed to a 45 percent contingency fee if the case went to trial, so the trial team, citing the KCPA fee-shifting provision, asked Chief U.S. District Judge Eric F. Melgren to award them more than $1.9 million. Melgren, however, balked at the request. In a June 6 order, he noted that the statute specifies such fees are “limited to the work reasonably performed” and said the attorneys needed to first provide detailed billing information.

“The Court can see no other way to gauge the work Plaintiff’s attorneys performed, and whether it was reasonable, than by a thorough review of each attorney’s time records,” the judge wrote. “Though Plaintiff is correct that the Court has broad discretion in awarding attorney’s fees, it does not have the discretion to ignore the clear and unambiguous language of the statute that permits such an award.”

That proved problematic, given the nature of the case.

“Because this is a contingency fee case and Harris’s attorneys do not maintain hourly rates, no hourly rates applied to this case and Harris’s attorneys do not have ‘standard’ rates to apply,” they wrote in a follow-up motion.

Rouse Frets provided 98 pages of timesheets indicating its lawyers had spent more than 4,600 hours on the case since its inception. Dickerson Oxton said it hadn’t tracked its time at all.

The attorneys turned to the 2022 Billing Rates section to resolve the issue. Citing its calculations of the median rates for Kansas City attorneys and staff, Rouse Frets put its potential fees at $1.7 million to $1.8 million and estimated Dickerson Oxton’s fees to be $2.4 million to $2.6 million.

Lawyers for the defendant fought the request, which would come out of their client’s pockets rather than the from the award.

“The statute does not authorize enforcing Plaintiff’s contingent attorney fee agreement against City Cycle, which never consented to the fee agreement, and the Court should not require City Cycle to pay all of Plaintiff’s contingency fee,” lawyers for Goodell, Stratton, Edmonds & Palmer in Topeka and Shook, Hardy & Bacon in Kansas City wrote.

In a Sept. 22 order, Melgren granted part of what the plaintiff’s attorneys had sought. He noted that Rouse Frets’ “voluminous time records” didn’t specify which hours were spent on the KCPA claim and which were based on an earlier, failed suit in state court on other grounds.

Melgren instead credited the team for about 1,600 hours of time that the defense didn’t dispute as reasonable. Multiplying those hours by the 2022 Billing Rates median Kansas City rates of $425 for attorneys and $150 for staff, the judge awarded just over $700,000.

“Furthermore, because the KCPA limits an attorney fee award to ‘work reasonably performed,’ the Court in its discretion will not upwardly adjust this presumptively reasonable lodestar figure to account for Plaintiff’s contingency fee agreement,” Melgren wrote.

During the fee litigation, several of the Rouse Frets attorneys moved to Dickerson Oxton. Thomas Dickerson, who served as co-counsel on the case, didn’t return a call requesting comment. The case is now on appeal to the 10th U.S. Circuit Court of Appeals.

The case is Harris v. City Cycle Sales Inc., 2:21-cv-02264.