Demetra Baylor v. Mitchell Rubenstein & Associat

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2017 Decided May 30, 2017

No. 16-7070

DEMETRA BAYLOR,

APPELLANT

v.

MITCHELL RUBENSTEIN & ASSOCIATES, P.C.,

APPELLEE

Consolidated with 16-7071

On Appeals from the United States District Court

for the District of Columbia

(No. 1:13-cv-01995)

Radi Dennis argued the cause and filed the briefs for

appellant/cross-appellee.

Ronald S. Canter argued the cause and filed the briefs for

appellee/cross-appellant.

Before: HENDERSON, Circuit Judge, and EDWARDS and

SENTELLE, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

2

Concurring opinion filed by Circuit Judge HENDERSON.

EDWARDS, Senior Circuit Judge: In order to pursue a

Master’s degree in Computer Graphics, Demetra Baylor

(“Appellant”) took out six student loans. Several years after her

graduation, Mitchell Rubenstein & Associates, P.C.

(“Appellee”) came calling to collect. At the heart of this case

are a number of inconsistencies in letters that Appellee sent

Appellant over the course of several months regarding her

loans and the amounts that she owed on them, as well as

Appellee’s failure to direct all of its communications to

Appellant’s attorney after she retained counsel. In response,

Appellant filed suit on December 17, 2013, alleging that

Appellee had violated the Fair Debt Collection Practices Act

(“FDCPA”), the District of Columbia Consumer Protections

Procedures Act (“CPPA”), and the District of Columbia Debt

Collection Law (“DCDCL”), statutes which target abusive debt

collection and improper trade practices. See 15 U.S.C.

§ 1692(e); D.C. CODE §§ 28-3904, -3814.

Over the course of the next few years, the parties engaged

in what the District Court termed a “particularly striking

expenditure of effort and resources,” generating “excessive,

repetitive, and unnecessarily sharp pleadings.” Order, Dkt. No.

41, at 2. Nonetheless, all of Appellant’s statutory claims were

eventually resolved. Appellant accepted Appellee’s offer of

judgment regarding her FDCPA claim and the District Court,

with the aid of a Magistrate Judge, determined the attorney’s

fees to which she was entitled for this success. Appellee,

meanwhile, prevailed in its Motion to Dismiss all of

Appellant’s CPPA claims and some of her DCDCL claims, the

remainder of which were rejected when the District Court

subsequently granted Appellee’s Motion for Summary

Judgment.

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A number of orders from this “clutter[ed]…docket” are

challenged on appeal. Id. First, the parties dispute the District

Court’s decision to adopt a Magistrate Judge’s

recommendation that Appellant receive approximately twenty

percent of the attorney’s fees that she requested. Second,

Appellant asserts that the District Court erred in finding that

Appellee’s conduct does not fall within the aegis of the CPPA.

Third, Appellant also contends that the District Court abused

its discretion in failing to credit her objections to a different

Magistrate Judge’s denial of her Motion to Compel the

disclosure of communications between Appellee and an agent

of Appellant’s creditor on the grounds that these documents

were protected by attorney-client privilege. Appellant

additionally disputes the District Court’s refusal to award her

attorney’s fees for her efforts in litigating this issue. Finally,

Appellant argues that the District Court improperly granted

Appellee’s Motion for Summary Judgment on her DCDCL

claims. On this last point, Appellant contends that the District

Court failed to appropriately account for evidence

demonstrating that Appellee had “willfully violated” the

DCDCL and was therefore subject to liability under the statute.

We do not reach the question of whether the District Court

abused its discretion in awarding Appellant only a percentage

of the attorney’s fees she sought in connection with her FDCPA

claim. In addressing this issue, the District Court relied on the

standard set forth in Local Civil Rule 72.2 in finding that the

Magistrate Judge’s proposed disposition was not “clearly

erroneous or contrary to law.” This was error. Federal Rules of

Civil Procedure 54(d)(2)(D) and 72(b)(3) foreclose the District

Court from using a “clearly erroneous or contrary to law”

standard when evaluating a Magistrate Judge’s proposed

disposition of a fee request. The correct standard of review is

de novo. We therefore reverse and remand to allow the trial

judge to reconsider this matter in the first instance applying de

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novo review to assess the Magistrate Judge’s recommendation.

We affirm all of the remaining Orders challenged on appeal.

I. BACKGROUND

On February 21, 2013, Appellee, a law firm whose

primary focus is the recovery of consumer debts, sent the first

of several letters to Appellant notifying her that her account,

which had been assigned file number R80465, “ha[d] been

referred to [its] office for collection.” Complaint, Dkt. No. 1,

Ex. E; see Answer, Dkt. No. 28, at 2. It listed the creditor for

her debt as Arrowood Indemnity Company and stated that she

currently owed $26,471.07, though cautioned that, “[b]ecause

of interest, late charges and other charges that may vary from

day to day, the amount due on the day you pay may be greater.”

Complaint, Dkt. No. 1, Ex. E. Following a request for more

information regarding both the ownership and amount of this

debt from Appellant, Appellee sent a second letter. It provided

a new total for the amount that Appellant owed, $31,268, a

slight reformulation of the name of Appellant’s creditor,

Arrowood Indemnity Company/Tuition Guard, and identified

her original creditor as Citibank (South Dakota) N.A.

Complaint, Dkt. No. 1, Ex. D; Baylor v. Mitchell Rubenstein &

Assocs., P.C., 55 F. Supp. 3d 43, 46 (D.D.C. 2014).

Appellant retained counsel, who contacted Appellee

regarding the provenance of this debt and advised that any

“future communication regarding this matter should be

directed to [her] firm” rather than to Appellant. Complaint,

Dkt. No. 1, Ex. B. The parties then entered into settlement

negotiations, during which Appellant informed Appellee that

she had additional outstanding loans not referenced in its

second letter. Appellee’s client referred these new loans to

Appellee so that Appellant could settle all of her debt at once.

See Baylor v. Mitchell Rubenstein & Assocs., P.C., 174 F.

5

Supp. 3d 146, 150 (D.D.C. 2016); Appellee’s Statement of

Undisputed Facts, Dkt. No. 96 ⁋⁋ 12–13. On August 22, 2013,

Appellee sent another letter to Appellant’s home, albeit

addressed to her attorney, regarding this second set of loans.

Complaint, Dkt. No. 1, Ex. A. It provided a new file number

for this debt, R83798, which totaled $27,459.48, and noted that

her creditor was Tuitionguard Arrowood Indemnity. Id. After

Appellant’s counsel requested additional information

regarding these loans, Appellee stated that Appellant owed

“$27,459.48 plus interest from 10/21/11 at the rate of 3.75%

until paid” and listed Tuitionguard/Arrowood Indemnity and

Student Loan Corp. as the creditor and original creditor,

respectively, of this debt. Complaint, Dkt. No. 1, Ex. C.

On December 17, 2013, Appellant filed suit in the District

Court. She claimed that the inconsistencies in the

communications she had received from Appellee, including,

most notably, the variance in the “character and amount” of

Appellant’s alleged debt and the creditors associated with these

loans, as well as Appellee’s failure to direct all of its

communications to Appellant’s counsel after she had retained

legal representation, constituted violations of both the FDCPA

and CPPA. Complaint, Joint Appendix (“JA”) 26–28, 31–33.

She also asserted that these actions were proof that Appellee

had both violated various provisions of the DCDCL and

“knowingly maintained policies, practices and procedures that

were intentionally and willfully inadequate” to meet its

obligations under this statute. Id. at 29–31.

Appellee moved to dismiss the Complaint. However,

while this motion was pending, Appellee extended, and

Appellant accepted, an offer of judgment regarding her

FDCPA claims. See Baylor v. Mitchell Rubenstein & Assocs.,

P.C., 77 F. Supp. 3d 113, 115 (D.D.C. 2015). A judgment was

then entered “in the amount of $1,001.00 plus costs and

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expenses together with reasonable attorney fees for all claims

under the [FDCPA]” by the Clerk of Court. Id. Appellant

thereafter filed a motion seeking $155,700 in attorney’s fees

for 346 hours of work at a rate of $450 an hour. Id. She was

later permitted to amend her requested fees due to subsequent

filings in this case. Id. at 115–16.

The District Court referred this request to a Magistrate

Judge pursuant to Local Civil Rule 72.2. After reviewing the

matter, the Magistrate Judge recommended that the hours

included in Appellant’s initial fee request be reduced by 85%

because they were significantly higher than reasonable. Baylor

v. Mitchell Rubenstein & Assocs., P.C., 2014 WL 7014280, at

*4 (D.D.C. Oct. 24, 2014). She found that certain tasks were

not eligible for attorney’s fees under the statute; some of the

hours requested were expended on Appellant’s unsuccessful

state law claims or occurred after Appellant had already

accepted Appellee’s offer of judgment; and Appellant’s

counsel had failed to “heed the Court’s admonition” to

moderate the tenor of her filings. Id. at *4–5. The Magistrate

Judge also determined that a 50% reduction should be applied

to Appellant’s additional request for fees because Appellant

had “again engaged in the tactics against which the Court

cautioned, thus expending considerable unproductive activity.”

Id. at *5. The District Court reviewed the Magistrate Judge’s

Report and Recommendation to determine if it was “clearly

erroneous or contrary to law” and, after determining that it was

not, adopted it in its entirety. Baylor, 77 F. Supp. 3d at 124.

In July 2014, the District Court granted Appellee’s Motion

to Dismiss all of Appellant’s claims under the CPPA and some

of her DCDCL claims. Following a contentious discovery

process, in which the District Court affirmed a Magistrate

Judge’s Memorandum Opinion granting in part and denying in

part Appellant’s Motion to Compel production of certain

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communications between Appellee and an agent of its client,

Appellant’s creditor, Appellee filed a Motion for Summary

Judgment and Appellant filed a cross-Motion for Partial

Summary Judgment. The District Court granted the former and

denied the latter.

II. ANALYSIS

A. Standard of Review

This court reviews de novo the District Court’s decision to

grant a motion to dismiss or motion for summary judgment and

the “legal question” of whether it “improperly applied [a local

rule] in place of the standards prescribed by [the Federal Rules

of Civil Procedure].” Winston & Strawn, LLP v. McLean, 843

F.3d 503, 506 (D.C. Cir. 2016); see Nat’l Wildlife Fed’n v.

Browner, 127 F.3d 1126, 1128 (D.C. Cir. 1997). We will,

however, generally review discovery orders only for abuse of

discretion, unless the District Court applied the wrong legal

standard. United States v. Deloitte LLP, 610 F.3d 129, 134

(D.C. Cir. 2010).

B. Appellant’s Fee Request

Local Civil Rule 72.2(a) permits the District Court to refer

“any pretrial motion or matter,” with the exception of certain

motions and petitions set forth in Local Civil Rule 72.3, to a

Magistrate Judge. If any party files written objections to a

Magistrate Judge’s ruling on such a matter, the District Court

“may modify or set aside any portion of [the] order … found to

be clearly erroneous or contrary to law.” Local Civil Rule

72.2(c). Because Local Civil Rule 72.3 makes no specific

mention of motions for attorney’s fees, the District Court

assumed that a Magistrate Judge’s recommendation on a fee

8

award could be reviewed according to the deferential “clearly

erroneous or contrary to law” standard. This was error.

Federal Rule of Civil Procedure 54(d)(2)(D) states that a

court “may refer a motion for attorney’s fees to a magistrate

judge under Rule 72(b) as if it were a dispositive pretrial

matter,” a process which requires that a district judge

“determine de novo any part of the magistrate judge’s

disposition that has been properly objected to,” FED. R. CIV. P.

72(b)(3). The permissive language of Rule 54(d)(2)(D),

specifically its use of the word “may,” appears to have led the

District Court to believe that referral via Local Civil Rule 72.2,

with its attendant “clearly erroneous or contrary to law”

standard of review, provided a legitimate alternative to the de

novo review standard set forth in Federal Rules of Civil

Procedure 54(d)(2)(D) and 72(b)(3). See Baylor, 77 F. Supp.

3d at 117 & n.2. This was not an unreasonable mistake, but it

was a mistake.

The Federal Magistrates Act permits district courts to draw

upon the assistance of Magistrate Judges to resolve “any

pretrial matter pending before the court.” 28 U.S.C.

§ 636(b)(1)(A). The power vested in Magistrate Judges to

dispose of issues referred to them under this provision depends

upon the type of motion at issue. 28 U.S.C. § 636(b)(1)(A) lists

eight pretrial motions, including motions for summary

judgement and injunctive relief, for which Magistrate Judges

may only provide “proposed findings of fact and

recommendations for the disposition [of the matter].” Id.

§ 636(b)(1)(B). These recommendations must be reviewed de

novo by a district court judge if properly objected to by one of

the parties. See id. § 636(b)(1)(C). For all other pretrial

motions, Magistrate Judges are permitted to “hear and

determine” the matter, and a district court will only set aside

their order where it has been shown that it is “clearly erroneous

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or contrary to law.” Id. § 636(b)(1)(A); see Phinney v.

Wentworth Douglas Hosp., 199 F.3d 1, 5–6 (1st Cir. 1999).

This differentiation between the degree of authority a

Magistrate Judge is permitted to wield over certain motions,

and the standard of review which must be applied to the judge’s

proposed resolution of such matters, is rooted in

“[c]onstitutional concerns,” specifically the “possible . . .

objection that only an article III judge may ultimately

determine the litigation.” 12 CHARLES ALAN WRIGHT ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 3068.2, p. 367 (3d ed.

2014); see PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 13 (1st

Cir. 2010).

When Rule 72 was promulgated to “implement the

legislative mandate of Section 636(b)(1),” it retained §

631(b)(1)’s basic structure – dividing pretrial motions between

issues that a Magistrate Judge could determine and those for

which the judge could simply provide recommendations for

consideration by the district court. 12 CHARLES ALAN WRIGHT

ET AL., FEDERAL PRACTICE AND PROCEDURE § 3068, p. 351 (3d

ed. 2014). It adopted a slightly different organizing principle,

however. Rather than relying on § 636(b)(1)(A)’s list of eight

motions to identify the pretrial matters that a Magistrate Judge

could not “determine,” Rule 72 distinguished between motions

that were “not dispositive of a party’s claim or defense” and

those that were. FED. R. CIV. P. 72(a)–(b); see 12 CHARLES

ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE

§ 3068.2, p. 366 (3d ed. 2014). Nondispositive matters would

be referred to a Magistrate Judge pursuant to Rule 72(a) and a

district court would be required to “consider timely objections

and modify or set aside any part of [an order issued following

such a referral] that [was] clearly erroneous or [was] contrary

to law.” Dispositive motions, meanwhile, would be referred to

a Magistrate Judge via Rule 72(b) and the district court would

10

be required to “determine de novo any part of [a] magistrate

judge’s [recommendation] that ha[d] been properly objected

to.” FED. R. CIV. P. 72(b)(3).

In spite of the legal significance of the distinction between

dispositive and nondispositive motions it is not immediately

apparent from the text of Rule 72 how, precisely, to determine

whether a particular type of motion should be deemed to be

“dispositive of a party’s claim.” While most courts agree that

the eight motions set forth in § 636(b)(1)(A) are “dispositive,”

this list has largely been deemed to be illustrative of the matters

that could fall within the scope of Rule 72(b), rather than

exhaustive. See Phinney, 199 F.3d at 5–6; Massey v. City of

Ferndale, 7 F.3d 506, 508 (6th Cir. 1993).

Prior to the promulgation of Rule 54(d)(2)(D), therefore,

courts lacked any specific guidance regarding whether

Magistrate Judges had the authority to provide a determination

regarding a request for attorney’s fees as if it was a

nondispositive motion or were instead permitted only to

provide a recommendation regarding the disposition of such

matters. Faced with this uncertainty, three circuits held that

motions for attorney’s fees should be treated as dispositive

motions and thus subject to de novo review by a district court

judge if properly objected to. See Massey, 7 F.3d at 509–10;

Estate of Conners by Meredith v. O’Connor, 6 F.3d 656, 659

(9th Cir. 1993); Ins. Co. of N. Am. v. Bath, 968 F.2d 20, 1992

WL 113746, at *2 (10th Cir. 1992) (Order and Judgment). Two

of these courts also held that Magistrate Judges lacked the

authority to “determine[]” a fee request because it was a “post-

dismissal motion[]” and Rule 72, by its terms, applies only to

“pretrial matters.” Massey, 7 F.3d at 510 (quoting Bennett v.

Gen. Caster Serv. of N. Gordon Co., 976 F.2d 995, 998 n.5 (6th

Cir. 1992)); see Estate of Conners by Meredith, 6 F.3d at 659

n.2.

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Rule 54(d)(2)(D) thus took effect at a time when it was by

no means certain what, if any, authority Magistrate Judges

could wield when evaluating motions for attorney’s fees and

the degree of oversight district courts were required to provide

over such matters. Its purpose, as described by the

accompanying Advisory Committee Note, was to “eliminate[]

any controversy” regarding a court’s ability to treat “motions

for attorneys’ fees . . . as the equivalent of a dispositive pretrial

matter that can be referred to a magistrate judge.” Advisory

Comm. Notes 1993 Amend. The statutory and legal backdrop

against which this amendment took place make clear that this

Rule was not intended to permit courts to rely upon the

standards and procedures associated with dispositive motions

in addition to those for nondispositive motions. Indeed,

providing district courts with the ability to alternate between

these different standards would be anathema to the

constitutional concerns that underlie the structure of

§ 636(b)(1) and Rule 72. Rather, Rule 54(d)(2)(D) provided

that if a district court wished to refer a motion for attorney’s

fees to a Magistrate Judge it could do so pursuant to the

procedures laid out in Rule 72(b), which include a requirement

that the district court review a Magistrate Judge’s

recommendation regarding a fee award de novo if properly

objected to. Thus, in context, it is clear that Rule 54(d)(2)(D)'s

use of the permissive verb "may" refers to the permissive

nature of the district judge’s authority to refer the case to a

magistrate, with no effect on the standard of review to be

applied if the reference is made.

It is no response that Local Civil Rule 72.2 provides an

“alternative[]” to Rule 54(d). Baylor, 77 F. Supp. 3d at 117 n.2.

While Rule 54(d)(2)(D) permits courts to establish by local rule

“special procedures to resolve fee-related issues without

extensive evidentiary hearings,” there is no indication this

language was intended to loosen the standard that should be

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applied to a Magistrate Judge’s recommendation after such

hearings have been conducted. Therefore, because district

courts may not “circumvent the Federal Rules of Civil

Procedure by implementing local rules or ‘procedures’ which

do not afford parties rights that they are afforded under the

Federal Rules,” we join a number of our sister circuits in

requiring that motions for attorney’s fees be reviewed de novo

if referred to a Magistrate Judge and properly objected to.

Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner,

101 F.3d 145, 151 n.4 (D.C. Cir. 1996) (quoting Brown v.

Crawford Cty., 960 F.2d 1002, 1008 (11th Cir. 1992)); see

McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005);

ClearOne Commc’ns, Inc. v. Bowers, 509 F. App’x 798, 804–

05 (10th Cir. 2013); McConnell v. ABC-Amega, Inc., 338 F.

App’x 24, 26 (2d Cir. 2009); cf. Rajaratnam v. Moyer, 47 F.3d

922, 924 & nn.5, 8 (7th Cir. 1995) (finding that motion for

attorney’s fees referred via 28 U.S.C. § 636(b)(3) required de

novo review). To the extent that Local Civil Rule 72.2 can be

understood to suggest anything to the contrary, it is overruled.

Because we find that the District Court applied the wrong

standard when reviewing the Magistrate Judge’s Report and

Recommendation, we will not reach the parties’ claims that the

District Court erred in adopting the Magistrate Judge’s

proposal to award Appellant approximately twenty percent of

her requested attorney’s fees. Instead, we remand this matter to

the District Court so that it can review the Magistrate Judge’s

Report and Recommendation anew, and de novo.

C. Appellant’s CPPA Claims

Appellant contends that the District Court erred in

dismissing her claim that Appellee’s conduct violated the

CPPA, which creates an “enforceable right to truthful

information from merchants about consumer goods and

13

services that are or would be purchased, leased, or received in

the District of Columbia.” D.C. CODE § 28-3901(c). We

disagree. “In answering questions involving the proper

interpretation of D.C. statutes, [we rely] on the construction of

these laws by the D.C. Court of Appeals.” Poole v. Kelly, 954

F.2d 760, 761 (D.C. Cir. 1992) (per curiam). The D.C. Court

of Appeals’ precedents and the text of the CPPA itself support

the District Court’s determination that Appellee’s conduct does

not fall within the aegis of this law.

One of the principal goals of the CPPA is to “assure that a

just mechanism exists to remedy all improper trade practices.”

D.C. CODE § 28-3901(b)(1). To that end, it embraces both an

expansive understanding of the conduct which constitutes a

“trade practice” – “any act which does or would create, alter,

. . . make available, provide information about, or, directly or

indirectly, solicit or offer for or effectuate, a sale . . . or transfer,

of consumer goods or services, which are “any and all parts of

the economic output of society, at any stage or related or

necessary point in the economic process, and includes

consumer credit . . . and consumer services of all types” – and

provides an extensive list of unlawful trade practices. D.C.

CODE § 28-3901(a)(6)–(7); see id. § 28-3904; Howard v. Riggs

Nat’l Bank, 432 A.2d 701, 708 (D.C. 1981). These prohibited

practices can only be committed by a merchant, an individual

who “sell[s]…or transfer[s], either directly or indirectly,

consumer goods or services” or who, in the ordinary course of

business, “suppl[ies] the goods or services which are or would

be the subject matter of a trade practice.” D.C. CODE § 28-

3901(a)(3); see DeBerry v. First Gov’t Mortg. & Inv’rs Corp.,

743 A.2d 699, 701 (D.C. 1999).

There is little question, as Appellant notes, that a merchant

who provides a consumer with credit, such as the loans at issue

in this case, would fall comfortably within the scope of the

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CPPA. See DeBerry, 743 A.2d at 701; cf. Jones v. Dufek, 830

F.3d 523, 527–28 (D.C. Cir. 2016). Yet, that is not this case.

Instead, we are confronted with a situation in which a debt

collector, attempting to recoup funds on behalf of a creditor

who did not itself provide Appellant with any credit, can be

found liable under the CPPA. We tread carefully in analyzing

this issue, as the D.C. Court of Appeals has explicitly refrained

from addressing a related matter. See Logan v. LaSalle Bank

Nat’l Ass’n, 80 A.3d 1014, 1026–27 (D.C. 2013) (abstaining

from determining whether “the CPPA applies to the trade

practices of a mortgage loan servicer”). However, our

interpretation of that court’s precedents suggests that

Appellee’s conduct does not fall within the bounds of this

statute.

The CPPA applies only to consumer-merchant

relationships. See Snowder v. District of Columbia, 949 A.2d

590, 598–600 (D.C. 2008). However, decisions from the D.C.

Court of Appeals indicate that a merchant need only be

connected with the “supply side” of a consumer transaction for

liability to attach. See Save Immaculata/Dunblane, Inc. v.

Immaculata Preparatory Sch., Inc., 514 A.2d 1152, 1159 (D.C.

1986) (quoting Howard, 432 A.2d at 709). In this case, it

appears that there are two ways in which the interactions

between Appellant and Appellee might be viewed to come

within the compass of this statute.

First, Appellant suggests that Appellee is connected to the

supply side of the transaction in which Appellant first acquired

her student loans. See Reply Br. for Appellant at 13. In our

view, this argument is based on a strained construction of the

statute. It is hard to see Appellee as a culpable party on the

supply side of the transaction when we know that there was a

merchant who initially provided the consumer credit and then

subsequently transferred ownership of this debt after it was in

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default to a new creditor who, without providing Appellant

with any “goods or services” to speak of, retained Appellee to

collect on these loans. In this situation, it seems implausible to

characterize Appellee as someone who sold or transferred

consumer goods or services or who supplied the goods or

services which are or would be the subject matter of a trade

practice. See Osinubepi-Alao v. Plainview Fin. Servs., Ltd., 44

F. Supp. 3d 84, 92–93 (D.D.C. 2014) (refusing to apply CPPA

to “a licensed attorney [attempting] to collect the debt through

litigation” where the attorney was not engaged in the practice

of extending credit or selling debt); Busby v. Capital One, N.A.,

772 F. Supp. 2d 268, 279–80 (D.D.C. 2011) (refusing to apply

CPPA to parties that did not sell or give goods or services to

plaintiff).

Second, it might be argued that Appellee is a merchant in

its own right. Yet, it seems perverse to suggest that the

“consumer” of the services it provides – debt collection – is the

individual from whom it is attempting to collect rather than the

creditor who retained it. The provisions of the CPPA cited in

Appellant’s Complaint, D.C. CODE § 28-3904(e) and (f),

appear to apply only when a consumer is, or could be, misled

by a merchant’s actions. See id. (“It shall be a violation of this

chapter, whether or not any consumer is in fact misled [or]

deceived…for any person to…misrepresent as to a material

fact which has a tendency to mislead” or “fail to state a material

fact if such failure tends to mislead.”). The situation here does

not fit within the statutory proscription.

In light of the terms of the statute, we are constrained to

hold that Appellee’s conduct falls outside the scope of the

CPPA. Appellant’s arguments to the contrary are unpersuasive.

Because we find that Appellee’s actions did not take place

within the context of a consumer-merchant relationship, as

required by the CPPA, we need not address Appellant’s claim

16

that debt collection is a “trade practice” as defined by this

statute.

It is also unnecessary for us to address Appellant’s claim

that the CPPA permits certain individuals or entities to seek

remedies for “the use of a trade practice in violation of a law of

the District,” including the DCDCL. D.C. CODE § 28-

3905(k)(1)(A); see id. § 28-3909; Br. for Appellant at 55. It is

true that “[a]lthough § 28-3904 makes a host of consumer trade

practices unlawful . . . [t]he remainder of the statute . . .

contemplates that procedures and sanctions provided by the

[CPPA] will be used to enforce trade practices made unlawful

by other statutes.” Atwater v. D.C. Dep’t of Consumer &

Regulatory Affairs, 566 A.2d 462, 466 (D.C. 1989). However,

Count III of Appellant’s Complaint asserts only that Appellee’s

actions ran counter to two specific provisions of the CPPA

itself, D.C. CODE § 28-3904(e)–(f). Complaint, JA 31–33. It

makes no mention of Appellee’s alleged violations of any other

laws as grounds for recovery under this statute.

For the foregoing reasons, we affirm the District Court’s

decision to dismiss Appellant’s CPPA claims.

D. Appellee’s Claim of Attorney-Client Privilege

After the District Court granted in part Appellee’s Motion

to Dismiss, the parties embarked on an “extremely long and

contentious discovery process.” Baylor, 174 F. Supp. 3d at 151.

Further problems arose when Appellant filed a Motion to

Compel production of certain communications between

Appellee and Sunrise Credit Services, Inc. (“Sunrise”), the

organization which retained Appellee to collect Appellant’s

debt on her creditor’s behalf. Appellee refused to produce these

documents, claiming that they were protected by attorney-

client privilege. See Baylor v. Mitchell Rubenstein & Assocs.,

17

P.C., 130 F. Supp. 3d 326, 328 (D.D.C. 2015). The District

Court referred this matter to a Magistrate Judge who found that,

because Appellant’s creditor, Arrowood Indemnity Company

(“Arrowood”), had retained “Sunrise for the limited purpose of

finding an attorney to help Arrowood collect [Appellant’s]

debt,” Sunrise had “acted as Arrowood’s agent for obtaining

legal services.” Baylor v. Mitchell Rubenstein & Assocs., P.C.,

2015 WL 4624090, at *4 (D.D.C. July 31, 2015). The

Magistrate Judge, after reviewing the matter, concluded in turn

that attorney-client privilege attached to some of the

communications that Appellee wished to withhold.

In finding that attorney-client privilege attached to

communications between Sunrise and Appellee, the Magistrate

Judge looked to both Maryland and D.C. law, and held that

both states recognize that attorney-client privilege extends to

communications between a client’s agent and his attorney. See

id. at *1–2; Baylor, 130 F. Supp. 3d at 330 n.2 (explaining that

the court need not resolve a dispute regarding which state’s law

applied because there were no substantive differences between

the two jurisdictions (citing Cruz v. Am. Airlines, 356 F.3d 320,

332 (D.C. Cir. 2004))); see also In re Sealed Case (Medical

Records), 381 F.3d 1205, 1212 (D.C. Cir. 2004) (noting that

when an individual asserts “state claims,” such as the DCDCL

claims at issue here, “state privilege law applies”). We need not

address this determination because Appellant does not contest

it on appeal.

The arguments advanced by Appellant before this court

speak only to the questions of: (1) whether Appellee provided

“record evidence” in support of its claims regarding the nature

of the relationships between Appellee, Sunrise and Arrowood,

Br. for Appellant at 65; and (2) whether two cases, E.I. du Pont

de Nemours & Co. v. Forma-Pack, Inc., 718 A.2d 1129 (Md.

1998) and J.H. Marshall & Associates., Inc. v. Burleson, 313

18

A.2d 587 (D.C. 1973), preclude this court from holding that

attorney-client privilege could attach to the communications at

issue. We find that the District Court did not abuse its

discretion in resolving these issues. We are also unpersuaded

by Appellant’s claim that the District Court abused its

discretion in refusing to award her attorney’s fees for her

efforts in relation to this matter.

The District Court properly found that Appellee had

“proffered adequate evidence” to support its assertion that

Sunrise served as Arrowood’s agent and an attorney-client

relationship existed between Appellee and Arrowood. See

Baylor, 130 F. Supp. 3d at 331; id. at 330 (noting that “[a]t

bottom, most of [Appellant’s] objections boil down to her

claim that [Appellee] failed to offer evidence sufficient to show

an agency relationship between Arrowood and Sunrise”).

Appellee offered an affidavit describing the relationship

between Arrowood and Sunrise and two “authorizations by

Arrowood for Sunrise to retain counsel.” See id. at 331;

Appellee’s Opposition to Appellant’s Motion to Compel, Dkt.

No. 72-2, Ex. 4, at 41–42; Dkt. No. 72-3, Ex. 4, at 64–65; Dkt.

No. 73-4, Ex. 5, at ⁋⁋ 4–5. Although the affidavit is spare, we

cannot say that the District Court abused its discretion in

holding that the Magistrate Judge’s determination that this

evidence sufficed to support a finding of attorney-client

privilege was not clearly erroneous or contrary to law.

Appellant raises two additional arguments to suggest that

attorney-client privilege cannot attach to the disputed

communications. First, she contends that attorneys engaged in

the business of debt collection cannot invoke this privilege. Br.

for Appellant at 64 (citing E.I. du Pont, 718 A.2d 1129). The

precedent she cites in support of this claim, E.I. du Pont, is

distinguishable from the instant case. In E.I. du Pont, the court

held that the privilege did not apply to communications

19

between a corporation and a “non-lawyer collection agency”

where the corporation had hired this agency only “for the

typical business purpose of collecting a debt” even though the

agency had subsequently hired an attorney to “litigate the debt

collection matter after [the agency’s] efforts [to collect on the

debt] proved unsuccessful.” 718 A.2d at 1141–42. It justified

this decision by noting that the agency “may certainly have

been [the corporation’s] agent for the business purpose of

collecting [a] debt” but it was “not hired as an agent for

purposes of litigation.” Id. at 1142. Here, however, the

Magistrate Judge specifically found that Sunrise was hired only

for “the limited purpose of finding an attorney to help

Arrowood collect [Appellant’s] debt” and never itself

attempted to undertake “direct collection actions” against

Appellant. Baylor, 2015 WL 4624090, at *3–4. We find that

the District Court properly held that the Magistrate Judge was

not clearly erroneous in determining that this precedent did not

preclude Appellee from claiming that certain of its

communications with Sunrise were covered by attorney-client

privilege. See Baylor, 130 F. Supp. 3d. at 334–35.

Second, Appellant asserts that Sunrise’s actions constitute

the unauthorized practice of law and, as such, attorney-client

privilege cannot attach to its communications. In support of this

claim, Appellant draws upon J.H. Marshall, in which the D.C.

Court of Appeals held that a collection agency that filed suit to

collect on a debt assigned to it by a creditor had engaged in the

unauthorized practice of law. 313 A.2d at 590–91. Central to

the D.C. Court of Appeals’ reasoning in that case was its belief

that a collection agency could not “interpose itself between a

creditor and an attorney seeking to collect the creditor’s claim,”

id. at 595, and a concern that the collection agency in J.H.

Marshall was “sell[ing] the services of a lawyer, whom it

controls and directs, thereby destroying the privity between

attorney and client,” id. at 597. However here the Magistrate

20

Judge specifically held that Sunrise served only to find “an

attorney to help Arrowood collect [Appellant’s] debt.” Baylor,

2015 WL 4624090, at *4. The Magistrate Judge made no

findings that Sunrise ever attempted to collect on Appellant’s

debt on its own or otherwise serve as anything other than an

“intermediary between Arrowood and [Appellee].” Id. at *3. In

the absence of additional findings suggesting that Sunrise

controlled and directed Appellee’s conduct, we hold that the

District Court did not abuse its discretion in affirming the

Magistrate Judge’s determination that Sunrise did not engage

in the unauthorized practice of law.

Finally, Appellant claims that the District Court abused its

discretion in refusing to award her attorney’s fees relating to

her Motion to Compel production of communications between

Appellee and Sunrise. However, this motion was only partially

successful, and Federal Rule of Civil Procedure 37(a)(5)(C)

vests the District Court with discretion to “apportion . . .

reasonable expenses,” if such a motion is “granted in part and

denied in part,” as it was here. See Order, JA 185. We see no

abuse of discretion in the District Court’s determination that

Appellant’s limited success and “unduly contentious and

overly lengthy pleadings” did not entitle her to attorney’s fees

and costs. Baylor, 130 F. Supp. 3d at 337.

E. Appellant’s DCDCL Claims

In her Complaint, Appellant asserted that Appellee’s

conduct had violated a variety of provisions of the DCDCL, a

statute which prohibits creditors and debt collectors from

engaging in certain activities such as “collect[ing] any money

. . . by means of threat [or] coercion.” D.C. CODE § 28-3814(c);

see Complaint, JA 29–31. Only two of these claims survived

Appellee’s Motion to Dismiss: (1) Appellant’s contention that

Appellee misrepresented the amount that she owed in its

21

various letters to her, and (2) her argument that Appellee

improperly contacted her after she retained counsel. See

Baylor, 55 F. Supp. 3d at 49–53. Following a protracted

discovery process, the District Court granted Appellee’s

Motion for Summary Judgment and denied Appellant’s Motion

for Partial Summary Judgment regarding these claims. We

affirm this decision.

A creditor or debt collector is subject to liability under the

DCDCL only when a claimant offers substantial evidence to

prove a “willful violation” of the law. See D.C. CODE § 28-

3814(j)(1). We note, as the District Court did in the proceeding

below, that neither this court nor the D.C. Court of Appeals

appears to have set forth the standard for determining what

constitutes “willful” conduct. While we can find no fault in the

District Court’s decision to treat this term as embracing “not

only knowing violations of [the DCDCL], but reckless ones as

well,” we refrain, out of deference to the D.C. Court of

Appeals, from specifically adopting this standard when

interpreting this statute. Baylor, 174 F. Supp. 3d at 153

(quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57

(2007)). Instead, we note simply that no definition of

willfulness advanced by any party in this litigation suggests

that Appellee’s conduct can be viewed as a “willful” violation

of this law. See id. at 153 n.5 (summarizing definitions of

“willfulness” advanced by Appellant in the proceeding below,

including her claim that this standard is satisfied if Appellee

“knowingly and intentionally committed an act in conscious

disregard for the rights of others” or violates the statute

“voluntarily with either an intentional disregard of, or plain

indifference to, the Act’s requirements”); Br. for Appellee at

15 (adopting District Court’s interpretation of willfulness).

In reviewing Appellant’s contention that the District Court

erred in granting Appellee’s Motion for Summary Judgment

22

and denying her Partial Motion for Summary Judgment, this

court must determine whether a genuine dispute as to any

material fact exists when “viewing the evidence in the light

most favorable to the non-movant.” Wheeler v. Georgetown

Univ. Hosp., 812 F.3d 1109, 1113 (D.C. Cir. 2016). We are

cognizant that where, as here, we consider cross-motions for

summary judgment, we must accord both parties the solicitude

owed non-movants. Nevertheless, in this case, in order to

resolve the parties’ disputes over the DCDCL claims, it will

suffice for us to address Appellant’s claims in order and assess

the evidence in the light most favorable to her. As we explain

below, even on these terms, Appellant’s claims fail.

1. D.C. CODE § 28-3814(g)(5): Appellee’s Contact With

Appellant After She Retained Counsel

Section 28-3814(g)(5) of the DCDCL bars “debt

collector[s] . . . [from using] unfair or unconscionable means to

collect or attempt to collect on any claim . . . [by

communicating] with a consumer whenever it appears that the

consumer has notified the creditor that he is represented by an

attorney and the attorney’s name and address are known.”

Neither party disputes the fact that Appellant received a letter

from Appellee after her counsel had informed it to cease

contacting Appellant directly. Appellee, however, notes that

this letter was addressed to Appellant’s counsel, and attributes

its appearance at Appellant’s doorstep to a “computer error.”

Declaration of Mitchell Rubenstein, JA 508. In an affidavit

attached to Appellee’s Motion for Summary Judgment, its

president explained that Appellee’s computer system had

merely “failed to update the address on the letter to reflect

[Appellant’s counsel’s] mailing address.” Id.

Appellant, meanwhile, argues that Appellee lacked

“procedures reasonably calculated to avoid [this] error” and

23

claims that Appellant’s explanation for its failure to direct all

of its communications to Appellant’s counsel in its Motion for

Summary Judgment differs from that proffered in its Motion to

Dismiss. Appellant’s Opposition to Appellee’s Motion for

Summary Judgment, Dkt. No. 90, at 5; see Br. for Appellant at

58. Yet, the record contains evidence that Appellee did, in fact,

have procedures which explicitly barred its staff from

“contact[ing] or respond[ing] to a consumer if the consumer is

represented by counsel.” Baylor, 174 F. Supp. 3d at 159.

Furthermore, as the District Court noted, there is no reason why

Appellee cannot offer “an alternative explanation for its

conduct” at summary judgment. See id. at 158–59 n.9. Because

Appellee’s assertion that the letter was mistakenly sent to

Appellant’s home due to a computer error is not controverted

by anything in the record, we find that, even assessing the

evidence in the light most favorable to Appellant, she has failed

to raise a genuine question of material fact as to whether

Appellee violated § 28-3814(g)(5) of the DCDCL. See Johnson

v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016) (noting that a court

“may not . . . believe one witness over another . . . [but] if one

party presents relevant evidence that another party does not call

into question factually, the court must accept the

uncontroverted fact”).

2. D.C. CODE § 28-3814(f)(5): Appellee’s

Misrepresentations Regarding the Amount that

Appellant Owed

D.C. CODE § 28-3814(f)(5) provides that a debt collector

may not “use any fraudulent, deceptive, or misleading

representation or means to collect or attempt to collect claims

. . . [via] any false representation or implication of the

character, extent, or amount of a claim against a consumer.”

There is no question that Appellee provided different figures

for the amount that Appellant owed on her first and second set

24

of loans in its various letters to her. However, Appellee’s

president avers that these errors were due to its reliance on

Sunrise’s representation of the “amount forwarded” for

collection from Arrowood. Declaration of Mitchell

Rubenstein, JA 506. He stated that during Appellee’s fifteen

year “relationship with Sunrise . . . . [he had] found that the

‘amount referred’ listed in [its] referral form to be [an] accurate

statement as to the present balance owed on [an individual’s]

debt” and that Appellee had not “knowingly failed to include

accrued interest” in its February 21 and August 22, 2013 letters

“or otherwise misstate the amount” Appellant owed. Id. at 506–

508.

In response, Appellant puts forth a slew of claims

regarding the training Appellee’s employees received and the

roles which non-attorneys perform in attempting to collect on

various debts. See Memorandum in Support of Appellant’s

Motion for Partial Summary Judgment, Dkt. No. 91-1, at 2–6;

Opposition to Appellee’s Motion for Summary Judgment, Dkt.

No. 90, at 5–7; Reply to Opposition to Motion for Partial

Summary Judgment, Dkt. No. 103, at 4–16. Only two appear

to be relevant to the specific question of whether Appellee

willfully misrepresented the amount that Appellant owed: (1)

Appellant’s claim that Appellee failed to “maintain or

implement any practices or procedures to prevent its employees

and managing partner from demanding inaccurate amounts in

its demand letters” and lacks “any procedures relating to the

DCDCL,” Dkt. No. 103, at 4; see Br. for Appellant at 56; and

(2) her argument that a conversation between Appellee and

Sunrise, in which Appellee asked if it was possible to “make

things simple” by applying an interest rate of 3.75% from the

date of Appellant’s last payment to her debt after Sunrise had

informed Appellee the loans had been “accruing interest at 4%

since placement,” demonstrated that Appellee permitted its

employees to falsify the amount of debt owed by the

25

individuals it sent collection letters to. Collection Notes, JA

489–90; Br. for Appellant at 58–59.

The first of these arguments is easily set aside. As the

District Court noted, Appellee maintains policies and

procedures which state that “[p]rior to the issuance and mailing

of any demand letter, a firm attorney must review the file to

ensure that . . . [t]he claim amount matches the amount the

creditor claims is owed.” Baylor, 174 F. Supp. 3d at 157.

Nothing in the record indicates that an attorney did not review

the demand letters sent to Appellant, or that more specific

policies are required to ensure that the firm’s policies are in

step with the requirements of the DCDCL.

Appellant’s claim that the conversation between Appellee

and Sunrise regarding the correct interest rate to be applied

surely does not suffice to demonstrate that Appellee willfully

misrepresented the amount that Appellant owed. Even

assessing this evidence in the light most favorable to Appellant,

what she offers by way of argument is not enough to show a

willful violation of the law. Indeed, if anything, the interaction

appears to demonstrate that Appellee was attempting to bring

the interest rate it would relay to Appellant in line with the

information it had been provided regarding this debt, rather

than conjure an interest rate “on a whim,” as Appellant claims.

See Dkt. No. 84-4, Ex. 3, at 13 (noting that the “interest

amount” had been calculated through “8-12-11,” that the

interest rate was 3.75%, and that the last date Appellant had

paid was 10-21-11); Appellee’s Opposition to Motion to

Compel, Dkt. No. 71, at 4 (describing this document as the

“account referral and suit authorization from” Sunrise to

Appellee). In other words, the uncontested facts hardly support

an inference that Appellee acted to willfully violate the law.

26

In light of the record before us, and after having reviewed

the claims de novo, we affirm the District Court’s decision to

grant Appellee’s Motion for Summary Judgment on

Appellant’s DCDCL claims.

III. CONCLUSION

For the reasons set forth above, we remand the District

Court’s Order awarding Appellant attorney’s fees in relation to

her FDCPA claim so that it may review the Magistrate Judge’s

Report and Recommendation on this matter de novo. We affirm

all of the other Orders challenged in this appeal.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:

It is a time-honored bargaining tactic: make an unreasonable

opening offer in an effort to “anchor” the ensuing give-and-

take to an artificially high (or low) range of prices. Russell

Korobkin, Aspirations and Settlement, 88 CORNELL L. REV. 1,

32 (2002). Even if the offer has no basis in reality and is

rejected out of hand, it may for psychological reasons yield an

artificially high (or low) final price. Id. at 32 & nn.151-53

(citing evidence that people “often begin [a negotiation] with a

reference value . . . and then adjust from that point to arrive at

their final determination,” even if starting point does “not bear

a rational relationship to the item subject to valuation”). That

may be fine for selling a car or conducting a business

negotiation. But a request for attorney’s fees is not a

negotiation.

Federal fee-shifting statutes typically authorize the

recovery of a reasonable attorney’s fee. If a party seeks more

than that—making an excessive demand in hopes that the

award, although short of the demand, will be artificially high—

a district court can impose a sanction to deter future violations

and to protect the integrity of its proceedings. In particular,

the court has discretion to deny an award altogether or “impose

a lesser sanction, such as awarding a fee below what a

‘reasonable’ fee would have been.” Envtl. Defense Fund, Inc.

v. Reilly, 1 F.3d 1254, 1258 (D.C. Cir. 1993).

I say all this because Radi Dennis, counsel for plaintiff

Demetra Baylor, made what I consider a grossly excessive fee

request. In Baylor’s name, Dennis sought a total of $221,155

for her work on Baylor’s $1,001 settlement and on the fee

request itself. 1 The $221,155 demand was more than five

times the $41,990 that a magistrate judge determined to be

1

For simplicity, I round all monetary figures to the nearest

dollar and all increments of time to the nearest hour.

2

reasonable. Reviewing for clear error, the district court

overruled objections from both sides and awarded Baylor

$41,990. The Court today holds, and I agree, that a remand is

in order because the district court erred by not reviewing the

magistrate’s recommendation de novo. 2 Maj. Op. 3, 7-12, 26.

The Court is careful not to dictate the outcome on remand, Maj.

Op. 3, 12, and rightly so because of the district court’s

discretion in fee matters, Copeland v. Marshall, 641 F.2d 880,

901 (D.C. Cir. 1980) (en banc). I write separately only

because, on reviewing the fee order, I am uncertain whether the

district court recognizes just how broad its discretion is. On

the extreme facts of this case—and because Dennis is a repeat

offender, see Jones v. Dufek, 830 F.3d 523, 529 & n.6 (D.C.

Cir. 2016) (affirming denial of excessive fee request Dennis

made on behalf of another client)—I believe the court’s

discretion includes awarding a fee substantially below an

otherwise reasonable one.

I. BACKGROUND

The Court details many of the facts, Maj. Op. 4-7, but I

recount a few more to provide context for Baylor’s fee request.

A. DENNIS’S WORK ON THE FDCPA CLAIM

AND FEE REQUEST

Baylor attended graduate school, which she financed with

student loans. Through an intermediary, one of Baylor’s

creditors enlisted defendant Mitchell Rubenstein & Associates

(MRA), a law firm, to collect on the debt. In February 2013,

MRA sent Baylor the first of several letters about the debt.

2

I also agree that the district court correctly disposed of

Baylor’s claims under District of Columbia law. Maj. Op. 12-26.

Accordingly, I join the Court’s opinion in full.

3

The letters contained minor inadvertent discrepancies about

(inter alia) the amount Baylor owed. See Maj. Op. 4-5. In

March 2013, Baylor disputed the debt and retained Dennis for

$325 per hour on a contingency basis. See Decl. of Radi

Dennis ¶ 14 (Mar. 12, 2014).

Dennis almost immediately began researching the viability

of a claim under the Fair Debt Collection Practices Act

(FDCPA), 15 U.S.C. §§ 1692 et seq. According to her billing

records, she performed about 30 hours of FDCPA research

between April and December 2013. During the same period,

she had unfruitful settlement discussions with MRA.

Dennis spent about 56 hours researching, drafting, editing

and serving Baylor’s complaint against MRA. The

complaint—15 pages long and filed in December 2013—

alleged that MRA had violated the FDCPA and District of

Columbia (D.C.) law. Eight pages of the complaint were

devoted to factual allegations and other matters common to all

counts. Four pages set forth Baylor’s D.C. claims, which were

ultimately unsuccessful. Only three pages were dedicated

exclusively to Baylor’s FDCPA claim.

MRA’s president authorized a $1,001 offer of judgment on

the FDCPA claim in order “to limit the time and expense of

litigation.” 3 Aff. of Mitchell Rubenstein ¶ 18 (Mar. 25, 2014);

see FED. R. CIV. P. 68 (“Offer of Judgment”). MRA’s counsel

extended the offer to Dennis by certified mail on January 7,

3

It did not have the intended effect. See generally Maj. Op.

1-26; 174 F. Supp. 3d 146 (D.D.C. 2016); 130 F. Supp. 3d 326

(D.D.C. 2015); 77 F. Supp. 3d 113 (D.D.C. 2015); 55 F. Supp. 3d 43

(D.D.C. 2014).

4

2014. The offer reached Dennis’s address on January 17 but

she waited until January 29 to open and read it.

In the meantime, on January 14, 2014, MRA moved to

dismiss all counts of the complaint. Between January 18 and

January 27—a ten-day period during which she should have

known that MRA had offered to settle the FDCPA claim—

Dennis wasted more than 87 hours researching and drafting

Baylor’s opposition to the motion to dismiss. She filed the

opposition on January 27.

Dennis finally retrieved the offer of judgment on January

29, 2014. In the two weeks that followed, she spent about 34

hours researching Rule 68. Baylor accepted MRA’s offer on

February 28. The judgment was for $1,001 “plus costs and

expenses together with reasonable attorney fees for all claims

under the Fair Debt Collection Practices Act.” J. on Offer and

Acceptance (Feb. 28, 2014). The reference to “reasonable

attorney fees” accorded with the FDCPA’s fee-shifting

provision, which states in relevant part that, “in the case of any

successful [FDCPA] action,” a debt collector who has violated

the FDCPA “is liable” to the plaintiff for “the costs of the

action, together with a reasonable attorney’s fee as determined

by the court.” 15 U.S.C. § 1692k(a)(3).

In Baylor’s name, Dennis sought a “lodestar” 4 fee award

of $155,700 for her work on the FDCPA claim and on the fee

4

The “lodestar” method of calculating a fee award “looks to

the prevailing market rates in the relevant community.” Perdue v.

Kenny A., 559 U.S. 542, 551 (2010) (internal quotation omitted). It

is meant to “produce[] an award that roughly approximates the fee

that the prevailing attorney would have received if he or she had been

representing a paying client who was billed by the hour in a

comparable case.” Id. (emphasis omitted).

5

request itself. 5 She based the amount on two assertions: (1)

she had spent a total of 346 hours litigating the FDCPA claim

and fee motion, including at least 85 hours on the latter; and (2)

her rate under the “Laffey Matrix” 6 is $450 per hour. She

subsequently sought another $40,075 for drafting Baylor’s

reply to MRA’s opposition to the fee motion, 7 bringing the

tally to $195,775. And then she sought another $25,380 for

56 hours she allegedly spent responding (and seeking fees on

the response) to MRA’s five-page motion for sanctions and

relief from judgment — a motion the district court denied in a

three-page order. In all, then, Dennis sought $221,155 in

fees. 8

5

Because Baylor did not succeed on her D.C. claims, she

could not seek a fee award on them. See Brandywine Apartments,

LLC v. McCaster, 964 A.2d 162, 169 (D.C. 2009) (“successful”

claim required).

6

The Laffey Matrix provides a “schedule of prevailing rates”

for attorneys who litigate in the D.C. area. Eley v. District of

Columbia, 793 F.3d 97, 100-01 (D.C. Cir. 2015).

7

Dennis said she had spent more than 110 hours on the reply

but was willing to give MRA a “discount.” Supplemental Decl. of

Radi Dennis ¶ 6(f) (Apr. 1, 2014).

8

The $221,155 does not include an additional $48,195 that

Dennis sought for preparing objections to the magistrate judge’s

report and recommendation on the fee award. The district court

concluded that the additional $48,195 was too attenuated from the

FDCPA claim to be reimbursable. Baylor does not appeal that

ruling and MRA does not argue that the additional $48,195 is

relevant to whether the earlier request was outrageously excessive.

I therefore use $221,155 as an extremely conservative figure for the

total fee request.

6

MRA opposed the fee request, urging the district court to

deny it in toto because it was grossly exaggerated.

B. THE DISTRICT COURT’S FEE ORDER

The district court referred the fee request to a magistrate

judge, who recommended awarding a fee but reducing the total

to a reasonable amount: $41,990. Reviewing for clear error,

the district court overruled both parties’ objections to the

magistrate’s report and recommendation. 77 F. Supp. 3d 113,

117-23 (D.D.C. 2015). The court adopted the report and

recommendation and thus awarded $41,990, which it

considered “quite generous.” Id. at 121; see id. at 115, 124.

In rejecting Baylor’s claim for a larger award, the district

court deferred to the magistrate judge’s view that a “reasonable

attorney” in Dennis’s shoes would have spent about 93 hours

on the FDCPA claim and the fee request. 77 F. Supp. 3d at

121. The court saw no clear error in the magistrate’s

conclusion that Dennis’s time beyond 93 hours was (1)

attributable to Baylor’s D.C. claims, id. at 121-22 & n.6, and

(2) “wasteful” and “unnecessary” because (inter alia) Dennis

failed to timely retrieve MRA’s offer of judgment, id. at 121-

23 & n.5.

In rejecting MRA’s entreaty to award nothing, the district

court acknowledged cases permitting it to “reject[] an award

outright” because of an “outrageous” request. 77 F. Supp. 3d

at 118. Elsewhere the court remarked on the fact that Dennis

“sought more than $220,000 in fees for a successful FDCPA

claim worth only $1,001.00 to her client.” Id. at 122. But the

court discerned no clear error in the magistrate judge’s

recommendation against a sanction. Id. at 118-19. Because

a fee award under the FDCPA “is mandatory in all but the most

unusual circumstances,” the court was reluctant to deny the fee

request in its entirety. Id. at 119 (quoting Carroll v. Wolpoff

7

& Abramson, 53 F.3d 626, 628 (4th Cir. 1995)). And in light

of the already “significant reduction” to $41,990—a reduction

the magistrate judge deemed necessary to make the award

reasonable—the court was unpersuaded that any punitive

reduction was necessary. Id.

Both sides appealed. Baylor claims the award is too low

and MRA claims it is too high.

II. ANALYSIS

We and other courts of appeals have held, in several

different statutory contexts, that a court may punish an

intolerably excessive fee request by denying any award at all.

See, e.g., Envtl. Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258

(D.C. Cir. 1993) (Resource Conservation and Recovery Act, 42

U.S.C. § 6972(e)); Jordan v. Dep’t of Justice, 691 F.2d 514,

518 & n.37 (D.C. Cir. 1982) (Freedom of Information Act, 5

U.S.C. § 552(a)(4)(E)); see also, e.g., Scham v. District Courts

Trying Criminal Cases, 148 F.3d 554, 556-59 (5th Cir. 1998)

(Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.

§ 1988(b)), abrogated on other grounds as noted in Bailey v.

Mississippi, 407 F.3d 684, 686-87 (5th Cir. 2005); Fair Hous.

Council v. Landow, 999 F.2d 92, 96-98 (4th Cir. 1993) (same);

Lewis v. Kendrick, 944 F.2d 949, 958 (1st Cir. 1991) (same);

Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980) (same).

We have also recognized the authority to “impose a lesser

sanction, such as awarding a fee below what a ‘reasonable’ fee

would have been in order to discourage fee petitioners from

submitting an excessive request.” Reilly, 1 F.3d at 1258.

The district court was hesitant to deny Baylor’s fee request

in toto because the FDCPA provides for mandatory fee

shifting. 77 F. Supp. 3d at 119. The concern is

understandable but goes only so far. True, the cases listed

above involved statutes under which a court “may” award a fee,

8

5 U.S.C. § 552(a)(4)(E); 42 U.S.C. §§ 1988(b), 6972(e),

whereas the FDCPA provides that a defendant “is liable” for a

fee, 15 U.S.C. § 1692k(a). But at least two courts of appeals

have suggested the FDCPA permits outright denial in “unusual

circumstances.” Carroll, 53 F.3d at 628 (4th Cir.); Graziano

v. Harrison, 950 F.2d 107, 114 & n.13 (3d Cir. 1991). And

even assuming arguendo that some “reasonable” fee is always

required, 15 U.S.C. § 1692k(a)(3), the statutory text does not

preclude a court from deciding—consistent with its inherent

authority to protect the integrity of its proceedings, Chambers

v. NASCO, Inc., 501 U.S. 32, 42-51 (1991)—that a

“reasonable” fee in response to an exorbitant request is a

nominal amount approaching zero.

I do not dispute that, if one leaves aside the magnitude of

the fee request, $41,990 is reasonable — or at least represents

a non-reversible determination of reasonableness within the

district court’s broad discretion. See Morgan v. District of

Columbia, 824 F.2d 1049, 1066 (D.C. Cir. 1987) (“[W]e are

ill-positioned to second guess the [district] court’s [fee]

determination.”). Nor do I contend that the court must

exercise its discretion to reduce the award for punitive reasons.

But in deciding whether or not to do so, the court must start

with the correct legal baseline. See Koon v. United States, 518

U.S. 81, 100 (1996) (“A district court by definition abuses its

discretion when it makes an error of law.”). I am not sure the

court started with the correct baseline here.

The district court suggested that, in light of the already

“significant reduction” to $41,990, it did not need to reduce the

award further as a sanction. 77 F. Supp. 3d at 119. But the

question is not whether an award of $41,990 is grossly

excessive; it is whether a request of $221,155 is grossly

excessive given that a reasonable fee is $41,990. After all, the

point is to deter unreasonable requests:

9

If . . . the Court were required to award a

reasonable fee when an outrageously

unreasonable one has been asked for, claimants

would be encouraged to make unreasonable

demands, knowing that the only unfavorable

consequence of such misconduct would be

reduction of their fee to what they should have

asked for in the first place. To discourage such

greed a severer reaction is needful, and the

District Court responded appropriately in

[denying an award entirely].

Brown, 612 F.2d at 1059; see Reilly, 1 F.3d at 1258 (approving

Brown’s rationale in our Circuit); Landow, 999 F.2d at 98

(forbidding “gamesmanship” of filing excessive request “in the

hope that the district court [will] at least award some,

preferably high, percentage of the requested fees”); Lewis, 944

F.2d at 958 (emphasizing that fee request is “not an opening

gambit in negotiations to reach an ultimate result”).

None of this is to say that denial or reduction of fees is

routine punishment. As the Court explained in Jordan:

Total denial of requested fees as a purely

prophylactic measure . . . is a stringent sanction,

to be reserved for only the most severe of

situations, and appropriately invoked only in

very limited circumstances. Outright denial

may be justified when the party seeking fees

declines to proffer any substantiation in the

form of affidavits, timesheets or the like, or

when the application is grossly and intolerably

exaggerated, or manifestly filed in bad faith.

691 F.2d at 518 (footnotes omitted). Still, the sanction is not

as rare as hen’s teeth. In several of the cases cited above, a fee

10

was denied or reduced as punishment for a grossly excessive

request. Reilly, 1 F.3d at 1258-60; Scham, 148 F.3d at 556-

59; Landow, 999 F.2d at 96-98; Lewis, 944 F.2d at 954-58;

Brown, 612 F.2d at 1059. In Reilly, for example, this Court

reduced a fee request for “outrageously excessive time entries,”

noting especially that the attorney had tried to claim hours that

were “about three times what the work should have required.”

1 F.3d at 1259-60. Likewise in Landow, the Fourth Circuit

reversed a fee award in its entirety because the request on

which it was based was “outrageously excessive” insofar as it

did not carve out hours spent on unsuccessful claims. 999

F.2d at 97-98. And in Lewis the First Circuit reversed an

award because the lawyers’ fee request was intolerably out of

sync with the “degree of success [they] obtained” for their

client. 944 F.2d at 956, 958 (internal quotation omitted).

The sanction may be “strong medicine,” Lewis, 944 F.2d

at 958; see Jordan, 691 F.2d at 518, but an equally strong case

can be made for it here. The record suggests that Dennis,

desiring an artificially large award, impermissibly treated the

$221,155 fee request as an opening bid. Compare Reilly, 1

F.3d at 1258; Landow, 999 F.2d at 97-98; Lewis, 944 F.2d at

958; Brown, 612 F.2d at 1059; see also Korobkin, Aspirations

and Settlement, 88 CORNELL L. REV. at 32-33. The hours she

reported are difficult to explain any other way. She reported

the 87 hours she had spent opposing MRA’s motion to dismiss.

She claimed those hours even after realizing they had been

wasted because she did not timely open her mail. 9 She

claimed 34 hours for researching Rule 68 when a few hours

should have sufficed. She claimed at least 85 hours for the fee

motion itself. She claimed 110 hours—nearly three standard

work weeks at a total “discount” price of $40,075—for

9

It is one thing to make a mistake. It is quite another to bill

it to someone else, especially when it costs $39,150 (87 x $450).

11

replying to MRA’s opposition to the fee motion. And she

claimed 56 hours for responding (and seeking fees on the

response) to MRA’s five-page motion for sanctions.

Through Baylor, Dennis sought more than five times the

amount the magistrate judge thought reasonable and the district

court thought “quite generous.” 77 F. Supp. 3d at 121; see id.

at 124. In Reilly we cut back a request because (inter alia) the

lawyer tried to claim hours that were “about three times what

the work should have required.” 1 F.3d at 1259. A fortiori,

that case counsels a similar result here.

Moreover, Dennis sought nearly 221 times the $1,001 she

recovered for Baylor. The client’s “degree of success” is

ordinarily a “critical factor” in calculating a fee award.

Hensley v. Eckerhart, 461 U.S. 424, 436 (1983); see Goos v.

Nat’l Ass’n of Realtors, 68 F.3d 1380, 1387 (D.C. Cir. 1995).

The First Circuit in Lewis believed it “inexcusable” that the

lawyers there sought “payment . . . amounting to 140 times the

worth of the injury.” 944 F.2d at 956. I believe the same

conclusion is warranted here. Dennis spent more time

working on fee matters than on tasks essential to Baylor’s

FDCPA claim. The time she spent on the fee motion (at least

85 hours) and the reply to MRA’s fee opposition (110 hours)

easily exceeded the time she spent researching the FDCPA (30

hours) and working on Baylor’s complaint (56 hours) — the

latter of which was devoted in part to D.C. claims that Baylor

lost. See Landow, 999 F.2d at 97-98 (fee request excessive

because it did not discount work on unsuccessful claims). No

wonder the district court said of the fee request that “the tail

[is] wagging the dog . . . in this case.” 130 F. Supp. 3d 326,

337 (D.D.C. 2015).

In short, Dennis lost sight of the real party in interest. As

further proof, recall that she sought the Laffey rate of $450 per

12

hour despite having agreed to represent Baylor for $325 per

hour. Dennis has not explained the discrepancy, at least not in

this Court. Nor can the FDCPA support such a windfall. The

fee-shifting provision states that the defendant is liable to the

plaintiff for a reasonable attorney’s fee. 15 U.S.C. § 1692k(a)

(“[A]ny debt collector who fails to comply with any provision

of this subchapter with respect to any person is liable to such

person . . . .” (emphasis added)). In other words, the district

court is to award Baylor whatever the FDCPA litigation

reasonably cost her. And Baylor’s contingency agreement

with Dennis manifests that, at least for the latter’s services, the

litigation cost her $325 per hour. See Decl. of Radi Dennis

¶ 14 (Mar. 12, 2014). The extra $125 per hour—a good living

for most people—is nothing but avarice.

Importantly, such excess in a fee request is not victimless:

the money has to come from someone. Here the money comes

from MRA. 15 U.S.C. § 1692k(a) (“debt collector . . . is

liable”). Yes, MRA owes damages, costs and a reasonable

attorney’s fee. But by law that is all it owes. Assuming

$41,990 is a reasonable attorney’s fee, 10 Dennis improperly

demanded $179,165 of MRA’s money. Thankfully, the tactic

did not succeed. If similar demands become the norm,

however, they will sow distrust and spawn satellite fee

litigation — one of the last things lawyers and judges should

be spending their time on. See Carroll, 53 F.3d at 628 (noting

10

Lest it be forgotten, I repeat here that Dennis believes

$41,990 is unreasonably low. Br. of Appellant 22-48. I have my

doubts but acknowledge that the matter is for the district court.

Morgan, 824 F.2d at 1066. The court may conclude on de novo

review of the magistrate judge’s report and recommendation that a

reasonable fee is higher or lower than $41,990. If it does so, the new

number will become the baseline from which the court must decide

whether Dennis’s request of $221,155 was grossly excessive.

13

“systemic costs” of satellite fee litigation, which is “one of the

least socially productive types of litigation imaginable”

(internal quotation omitted)). For fee-shifting to work

properly, a court must be able to depend on counsel for a

measured accounting from the outset. Dennis’s accounting

was nowise measured.

In the event the district court concludes on remand that the

fee request was grossly excessive, such that the award needs to

be further reduced, the following considerations may aid its

calculation. First, for reasons already explained, I think the

court should award $325 per hour instead of $450. Second, I

think the court may deny Dennis any credit for fee-related

pleadings. See Trichilo v. Sec’y of HHS, 823 F.2d 702, 708

(2d Cir. 1987) (“If counsel makes inflated or outrageous fee

demands, the court could readily deny compensation for time

spent in pressing them, since that time would not have been

reasonably spent.” (internal quotation omitted)). Indeed, I do

not think it would be an abuse of discretion to award Dennis

the same amount she won for Baylor: $1,001. Steep

overbilling ought to come at a steep price.