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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14099
____________________
HOWARD MICHAEL CAPLAN,
Plaintiff-Appellant,
versus
ALL AMERICAN AUTO COLLISION, INC.,
a Florida Profit Corporation,
DORTA INVESTMENTS, LLC,
a Florida Limited Liability Company,
Defendants-Appellees.
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2 Opinion of the Court 19-14099
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:18-cv-61120-JIC
____________________
Before WILSON, LUCK, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
Howard Caplan, an individual with a qualifying disability
under the Americans with Disabilities Act of 1990 (“ADA”), see
42
U.S.C. § 12181, retained Ronald Stern of the Advocacy Law Firm
to sue All American Auto Collision, Inc. (“All American”), and All
American’s landlord, Dorta Investments, LLC (“Dorta”), for al-
leged ADA violations following Caplan’s visit to All American’s
place of business. Stern has filed hundreds of lawsuits under the
ADA on behalf of Caplan and other individuals.
As the prevailing party, Caplan moved for attorney’s fees un-
der
42 U.S.C. § 12205. While the district court found that Caplan
was entitled to attorney’s fees, the district court determined that
the requested amount was grossly disproportionate given the
case’s circumstances. The district court therefore reduced the re-
quested fees and awarded about $8,500. 1
1 Stern’s conduct and billingpractices have been criticized in at least one other
ADA case. See, e.g., Transcript of Status Conference at 49, Barberi v. J. Diaz
USA Grp., Inc., No. 1:17-cv-22078-DPG (S.D. Fla. Feb. 22, 2019), ECF 38 (“Mr.
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19-14099 Opinion of the Court 3
Caplan appeals the district court’s fee award. In so doing,
Caplan argues that the district court abused its discretion in reduc-
ing the amount he requested for attorney’s fees. After careful re-
view, we conclude that the district court did not abuse its discre-
tion, and we affirm the district court’s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Caplan suffers from a “qualified disability” under the ADA
and is a self-avowed “tester,” meaning that he visits businesses for
“the purpose of asserting his civil rights and monitoring, ensuring
and determining whether places of public accommodation are in
compliance with the ADA.” Caplan has filed hundreds of lawsuits
against businesses in South Florida for violations under the ADA.
Dorta is the owner of a small warehouse-type bay of units in
Miramar, Florida. All American is an autobody repair shop and one
of Dorta’s tenants.
In May 2018, Caplan visited All American at its rented unit.
Upon visiting All American, he discovered that All American’s
place of business did not comply with various ADA requirements.
Within days of the visit, Caplan sued All American and
Dorta for violating the ADA. In his complaint, Caplan sought a
declaration that the unit rented by All American violated the ADA
Stern, let me be frank with you [the requested fee] for what you had done . . .
was excessive. It does not reflect what you should be proud of as a lawyer that
would reflect that you were doing this in a cost efficient manner.”).
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4 Opinion of the Court 19-14099
and an injunction that would require All American and Dorta to
remedy the alleged ADA violations. Caplan also requested reason-
able attorney’s fees.
On August 10, 2018, a magistrate judge referred the parties
to mediation, which was held on November 8, 2018. Raul Arbe-
laez, the owner of All American, was unavailable and did not attend
the mediation as he was elderly and in failing health at the relevant
time. Dorta, All American’s landlord, did attend the mediation and
was, by that time, solely responsible for—and was currently in the
process of—making the improvements that Caplan requested. The
parties did not reach a settlement at mediation. According to
Dorta, the parties failed to settle because “plaintiff’s counsel [was]
demanding an outrageous amount of fees . . . and he flatly refuse[d]
to settle unless Dorta agree[d] to pay him those fees.”
On November 12, 2018, Caplan moved for sanctions against
the defendants because All American did not attend the mediation.
The district court denied the sanctions motion.
On November 15, 2018, seven days after the mediation,
Caplan moved for summary judgment, which the district court
granted. Along with injunctive relief, the district court ordered de-
fendants to pay reasonable attorney’s fees and costs under
42
U.S.C. § 12205.
On January 30, 2019, Caplan filed a motion for attorney’s
fees under § 12205 and requested $41,269.30 for attorney’s fees, lit-
igation expenses, expert witness fees, and costs. Of the requested
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19-14099 Opinion of the Court 5
$41,269.30, $38,014.50 was for attorney and paralegal fees. The re-
quested attorney’s fees were based on an hourly rate of $420 for
Stern, an hourly rate of $295 for Stern’s associate, Ronnette
Gleizer, and an hourly rate of $125 for Stern’s paralegals. Stern
charged 96.4 hours: 88.1 attorney hours, with 87.9 of those hours
attributed to Stern himself, and 8.3 paralegal hours.
On September 16, 2019, the district court granted Caplan’s
motion for fees in part and denied it in part. The district court
found that the requested fees and expenses were “grossly dispro-
portionate to the context and circumstances of this case,” as the
case “was a routine tester action under the ADA” and “one of hun-
dreds Stern ha[d] filed in [the Southern District of Florida]—almost
all of which settle[d].” The district court also found that some of
Stern’s conduct in this litigation “caused it to become needlessly
protracted and contentious,” e.g., the filing of the sanctions motion
that was “wholly unnecessary to achieve the desired result of th[e]
lawsuit” and pleadings filled with “hyperbolic and accusatory lan-
guage.” The district court noted that the defendants claimed that
they were unaware of the ADA violations and indicated that they
were willing to fix the violations early in the proceedings. And the
district court explained that “[w]hile the ADA permits attorneys to
recover fees, it does not give attorneys license to over-litigate cases
at the expense of defendants who are willing to modify their prop-
erty to comply with the ADA.”
As for the number of hours expended, the district court
noted that Stern was handling at least 140 other ADA lawsuits
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during this litigation such that it was “inconceivable that Stern
spent 88 hours on this case.” The district court found that Stern
excessively billed for drafting the complaint and motion for sum-
mary judgment, preparing discovery, and drafting the settlement
proposal because the documents were “boilerplate” and could be
“recycle[d] in most ADA cases he files.” And the district court ex-
plained that it must deduct time spent on unnecessary motions, in-
cluding the motion for sanctions and a motion to compel discov-
ery, for which Stern billed at least 16 hours.
The district court further noted that many entries on Stern’s
time sheet, totaling about 10 hours, were “administrative tasks that
either should not be included or could have been charged to his
paralegal.” The district court also expressed skepticism as to the 10
hours Stern included for reviewing docket entries and the 8.6 hours
Stern billed for meeting with Caplan. Lastly, the district court
found that 4.7 hours of the hours billed for preparing the motion
for costs and fees, out of around 6 hours spent on that motion, were
not compensable.
The district court determined that an across-the-board re-
duction was warranted because the result “could have been
achieved much more efficiently and far less expensively.” The dis-
trict court explained that, while it highlighted many excesses in
Stern’s fee request, it would reduce the requested hours with an
across-the-board reduction of 75% rather than going through the
hundreds of entries on Stern’s time sheet. This calculation yielded
24 hours—20 hours of attorney time and 4 hours of paralegal time.
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The district court recognized that the reduction was high but ex-
plained that Stern “needlessly prolonged the litigation” and that
compensating Stern for those tactics “would encourage the prac-
tice of driving up litigation costs in ADA lawsuits.”
As for the hourly rates charged, the district court found that
a rate of $350 per hour was reasonable for all of the legal work per-
formed in the case. In so doing, the district court reasoned that: (1)
the case “did not involve any novel or complex questions of law”;
(2) Stern “relie[d] on the same boilerplate pleadings in virtually
every ADA case” he litigated; (3) “at least half of the hours in this
case could have—and indeed should have—been handled by
Stern’s associate at the rate of $295 an hour”; and (iv) given that
“Stern’s conduct . . . prolonged the litigation, a reduction in his
hourly rate [was] warranted.”
Accordingly, the district court awarded $7,500 in attorney’s
fees. In total, the district court awarded Caplan $8,579.80 inclusive
of expenses and fees. This appeal ensued.
II. STANDARD OF REVIEW
We review the district court’s decision awarding attorney’s
fees and costs under the ADA for abuse of discretion. Ass’n of Dis-
abled Ams. v. Neptune Designs, Inc.,
469 F.3d 1357, 1359 (11th Cir.
2006) (per curiam). “An abuse of discretion occurs if the judge fails
to apply the proper legal standard or to follow proper procedures
in making the determination, or bases an award upon findings of
fact that are clearly erroneous.”
Id. (quoting Cordoba v. Dillard’s,
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8 Opinion of the Court 19-14099
Inc.,
419 F.3d 1169, 1180 (11th Cir. 2005)). A district court’s factual
finding is clearly erroneous “when although there is evidence to
support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been commit-
ted.” Anderson v. City of Bessemer City,
470 U.S. 564, 573 (1985)
(quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395
(1948)).
III. ANALYSIS
This appeal involves a fee award for claims brought under
the ADA. Under Section 12205 of the ADA, a court, “in its discre-
tion, may allow the prevailing party, other than the United States,
a reasonable attorney’s fee, including litigation expenses, and
costs.”
42 U.S.C. § 12205. A reasonable attorney’s fee, in turn, is
calculated “by multiplying the number of hours reasonably ex-
pended on the litigation times a reasonable hourly rate.” 2 Blum v.
Stenson,
465 U.S. 886, 888 (1984) (citing Hensley v. Eckerhart,
461
U.S. 424, 433 (1983)). The sum of this calculation is often called the
“lodestar.” Ass’n of Disabled Ams.,
469 F.3d at 1359 (quoting Hens-
ley,
461 U.S. at 433–34).
Although “there is a ‘strong presumption’ that the lodestar
is the reasonable sum the attorneys deserve,” we have instructed
2“A reasonable hourly rate is the prevailing market rate in the relevant legal
community for similar services by lawyers of reasonably comparable skills,
experience, and reputation.” Norman v. Hous. Auth. of Montgomery,
836
F.2d 1292, 1299 (11th Cir. 1988).
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19-14099 Opinion of the Court 9
that, in determining whether the lodestar amount is reasonable,
“the [district] court is to consider the 12 factors enumerated in
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (5th Cir.
1974).” Ela v. Destefano,
869 F.3d 1198, 1203 (11th Cir. 2017) (al-
teration in original) (quoting Bivins v. Wrap It Up, Inc.,
548 F.3d
1348, 1350 (11th Cir. 2008) (per curiam)); see also Hensley,
461 U.S.
at 434 n.9. Those twelve factors are:
(1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to per-
form the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the
case; (5) the customary fee; (6) whether the fee is fixed
or contingent; (7) time limitations imposed by the cli-
ent or the circumstances; (8) the amount involved
and the results obtained; (9) the experience, reputa-
tion, and ability of the attorneys; (10) the “undesira-
bility” of the case; (11) the nature and length of the
professional relationship with the client; and (12)
awards in similar cases.
Ass’n of Disabled Ams.,
469 F.3d at 1359 n.1 (citing Johnson,
488
F.2d at 717–19). Along with these factors, and in calculating the
lodestar amount, a district court should “exclude . . . hours that
were not ‘reasonably expended.’” Hensley,
461 U.S. at 434 (quot-
ing S. Rep. No. 94–1011, at 6 (1976)).
Courts are considered experts on the reasonableness of the
number of hours expended and the hourly rates requested. Indeed,
a district court “may consider its own knowledge and experience
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10 Opinion of the Court 19-14099
concerning reasonable and proper fees and may form an independ-
ent judgment either with or without the aid of witnesses as to
value.” Norman v. Hous. Auth. of Montgomery,
836 F.2d 1292,
1302, 1303 (11th. Cir. 1988) (quoting Campbell v. Green,
112 F.2d
143, 144 (5th Cir. 1940)); accord Loranger v. Stierheim,
10 F.3d 776,
781 (11th Cir. 1994) (per curiam).
On appeal, Caplan asserts that the district court abused its
discretion by reducing Caplan’s requested attorney’s fees. Caplan
generally asserts three categories of errors in support of his appeal:
(1) the district court erred in finding that many hours claimed
within Caplan’s fee request were excessive and unnecessary; (2) the
district court should have held an evidentiary hearing to determine
whether the case could have been settled earlier in the proceedings;
and (3) the district court’s application of a 75% across-the-board re-
duction was erroneous. 3 We begin our analysis by addressing
Caplan’s argument that the district court erred in finding that vari-
ous time entries were unnecessary and excessive.
A. Hours Expended
3 On appeal, Caplan did not dispute the district court’s determination that $350
per hour reflected a reasonable hourly rate for the legal work here or the dis-
trict court’s reduction to the requested litigation costs. Caplan has therefore
abandoned any challenges to these issues. See Sapuppo v. Allstate Floridian
Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014) (“[I]t is well settled in this circuit
that a party abandons an issue ‘by failing to list or otherwise state it as an issue
on appeal.’” (quoting Hamilton v. Southland Christian Sch., Inc.,
680 F.3d
1316, 1318 (11th Cir. 2012))).
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19-14099 Opinion of the Court 11
“Counsel for the prevailing party should make a good faith
effort to exclude from a fee request hours that are excessive, redun-
dant, or otherwise unnecessary.” Hensley,
461 U.S. at 434. And a
district court should deduct time for excessive or unnecessary
hours because attorney’s fees are intended “to compensate attor-
neys for work reasonably done actually to secure for clients the
benefits to which they are entitled.” Norman,
836 F.2d at 1302,
1305. “In the final analysis, exclusions for excessive or unnecessary
work on given tasks must be left to the discretion of the district
court.”
Id. at 1301. For example, a district court may conclude that
“a fee applicant is not entitled to compensation at an attorney’s
rate” where “an attorney undertook tasks which were mundane,
clerical or which did not require the full exercise of an attorney’s
education and judgment.”
Id. at 1306.
Here, the district court explained that Stern’s claim that he
spent 88 hours litigating this case on behalf of Caplan was unrea-
sonable, as Stern was handling at least 140 other ADA lawsuits dur-
ing that period. As for specific claimed hours, the district court
identified several categories of hours that were unnecessary and/or
excessive. For example, the district court found that Stern exces-
sively billed for “boilerplate . . . legal tasks,” and for “clerical work
or work that could have been performed by [his] paralegal.” The
district court also found that Stern billed for unnecessary motions.
And, as a general matter, the district court found that “much of the
time expended was of minimal value to the ultimate result”
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because Caplan would have “achieved the same result by engaging
in [an] early settlement.”
Caplan makes several arguments about these findings by the
district court.
1. Complexity of the Case
Caplan argues that the district court abused its discretion in
finding that his lawsuit was routine and that Stern, therefore, ex-
cessively billed for litigating Caplan’s claims. In support of this ar-
gument, Caplan asserts that this Court and others have lauded the
policy interest served by litigating civil rights cases, such as ADA
cases. See, e.g., Dowdell v. City of Apopka,
698 F.2d 1181, 1190–
91 (11th Cir. 1983).
While we have recognized this policy interest, § 12205 does
not authorize attorneys to expend an unreasonable number of
hours to achieve it. See Norman,
836 F.2d at 1301–02. Further-
more, as we have explained, “[t]he time that should be devoted to
a case varies directly with the difficulty of the case.” Glassroth v.
Moore,
347 F.3d 916, 920 (11th Cir. 2003). This case was a simple
one involving ADA violations that the owner agreed to correct.
And expertise and experience in a legal area “comes [with]
knowledge, efficiency, and self-confidence, which should reduce
the number of hours necessary” for the tasks involved in a case.
Id.
at 919–20.
As the district court noted, Stern has been involved in hun-
dreds of ADA lawsuits, including 140 during the case. Additionally,
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the district court found that the pleadings and motions filed here
were “boilerplate” and much like filings in Stern’s other ADA cases.
We therefore conclude that the district court did not abuse its dis-
cretion in finding that Stern billed an excessive number of hours
given the complexity of the case.
2. Unnecessary Litigation
Caplan argues that the district court abused its discretion in
finding that Caplan prolonged the litigation and was too litigious.
Work that is unnecessary should not be reflected in an attorney’s
time entries and should not be included in a fee award. See Hens-
ley,
461 U.S. at 434; Norman,
836 F.2d at 1302, 1305. Here, the
district court found that Stern engaged in unnecessary motion prac-
tice, was too litigious, and that his conduct unnecessarily pro-
longed the litigation. For example, the district court found that, at
the time of the mediation, Dorta had taken steps to ameliorate the
ADA violations Caplan identified and provided Caplan with a con-
tractor’s proposal for making corrections to the remaining viola-
tions. 4 In other words, Dorta had accepted responsibility and of-
fered Caplan the relief he sought. Still Caplan filed a motion for
sanctions—because Arbelaez (Dorta’s tenant and the owner of All
American who was elderly, in poor health, and whose presence
was unnecessary to resolve the asserted ADA violations) did not
attend the mediation—and a motion to compel discovery.
4Dorta ultimately engaged a contractor to make the changes on December
10, 2018, before the end of the lawsuit.
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Based on this record, the district court found that the sanc-
tions motion was “wholly unnecessary to achieve the desired result
of th[e] lawsuit.” The district court further found that Stern took
an “overly aggressive approach” to litigating Caplan’s claims, par-
ticularly given Dorta’s willingness to fix the identified ADA viola-
tions.
On appeal, Caplan claims that Dorta did not agree to fix the
alleged ADA violations until “many months after [Caplan] filed the
instant action.” But that argument ignores the fact that there were
very few proceedings in the case before the parties’ mediation con-
ference—i.e., when Dorta assured Caplan that it would fix the ADA
violations.
Thus, the record reflects that Stern was unduly litigious and
engaged in unnecessary motion practice. Accordingly, we are not
“left with the definite and firm conviction that a mistake has been
committed,” see Anderson,
470 U.S. at 573 (1985) (quoting U.S.
Gypsum Co.,
333 U.S. at 395), and conclude that the district court
did not abuse its discretion in finding that Stern unnecessarily pro-
longed the litigation which, in turn, unnecessarily increased the
amount of attorney’s fees.
3. Arguments Regarding Hours for Specific Tasks
Finally, Caplan asserts that: (1) the district court improperly
classified certain activities as “administrative”; (2) the time entries
for “reviewing the docket” were not excessive; and (3) the district
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court erred in holding that the time Stern spent on drafting
Caplan’s motion for fees and costs was not compensable.
Because Caplan’s last argument—i.e., the hours that the dis-
trict court found to be unnecessary in connection with Caplan’s fee
motion—was raised for the first time in Caplan’s reply brief on ap-
peal, we need not address it. See Sapuppo, 739 F.3d at 682–83 (“Af-
ter Allstate pointed out in its response brief that the Sapuppos
had waived any issue concerning the district court’s alternative
holdings, they did make some arguments and cite some authorities
in their reply brief about those holdings. Those arguments come
too late.”); see also Big Top Koolers, Inc. v. Circus-Man Snacks,
Inc.,
528 F.3d 839, 844 (11th Cir. 2008) (“We decline to address an
argument advanced by an appellant for the first time in a reply
brief.”). But we note that the district court did not deduct those
hours from the fee award. Instead, the district court applied an
across-the-board reduction, having found that the time entries for
those hours were one example, out of many, of Stern’s unreasona-
ble billing.
As for Caplan’s other arguments, Caplan has failed to show
that the district court abused its discretion. Caplan claims that the
district court did not identify all the time entries that it considered
to be administrative and that the examples the district court pro-
vided represented only 2.3 or 5 hours. But that argument ignores
the fact that various time entries do not provide any details to sug-
gest that they are anything other than “mundane, clerical[,] or . . .
not requir[ing] the full exercise of an attorney’s education and
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16 Opinion of the Court 19-14099
judgment.” Norman,
836 F.2d at 1306. The district court high-
lighted some, but not every, example “given the hundreds of time
entries.” But other examples exist. One other example is the un-
explained discrepancy between paralegals billing for certain court
filings and Stern billing, at a substantially higher hourly rate, for
other court filings.
Caplan also asserts that the time entries for reviewing the
docket related to reviewing legal documents and court orders. But
the district court identified certain entries left unexplained and oth-
ers that appeared excessive based on the docket entry that was re-
viewed. The district court—which is “itself an expert on the ques-
tion and may consider its own knowledge and experience concern-
ing reasonable and proper fees,” Norman,
836 F.2d at 1303 (quoting
Campbell,
112 F.2d at 144)—did not abuse its discretion in finding
that many of the time entries for reviewing docket entries, for ex-
ample 30 minutes to review a scheduling order or 18 minutes to
review an attorney’s notice of appearance, were excessive.
B. Evidentiary Hearing
Caplan contends that the district court erred by failing to
hold an evidentiary hearing to determine whether the case could
have settled earlier in the proceedings. Although Caplan did not
request an evidentiary hearing, he asserts that the district court
nonetheless abused its discretion in failing to hold one. In support
of his argument, Caplan cites to Love v. Deal,
5 F.3d 1406, 1409
(11th Cir. 1993). In Love, this Court held that “[i]t� is not necessary
for a plaintiff to request an evidentiary hearing. Rather, the
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19-14099 Opinion of the Court 17
essential factor is whether there is a dispute of material fact that
cannot be resolved from the record.”
Id. That statement conflicts,
however, with our earlier holding in Norman v. Hous. Auth. of
Montgomery,
836 F.2d 1292, 1302 (11th. Cir. 1988), which estab-
lished the standard for determining when a district court abuses its
discretion in failing to hold an evidentiary hearing related to attor-
ney’s fees. In Norman, we held it was an abuse of discretion to
make an award without an evidentiary hearing “where an eviden-
tiary hearing was requested, where there were disputes of fact, and
where the written record was not sufficiently clear to allow the trial
court to resolve the disputes of fact.” Norman,
836 F.2d at 1302-03
(11th. Cir. 1988) (emphasis added). This Court reaffirmed that
holding in Thompson v Pharmacy Corp. of Am., Inc.,
334 F.3d
1242, 1245–46 (11th Cir. 2003) and held that the plaintiff was not
entitled to an evidentiary hearing on the fee issue because the rec-
ord did not show that the plaintiff had “requested an evidentiary
hearing on the fee issue” and the plaintiff therefore “failed to meet
the first prerequisite for obtaining a hearing (that she plainly re-
quest one in the first place).”
“This Circuit has a well-established approach to resolving
conflicts in our precedent. We are ‘obligated, if at all possible, to
distill from apparently conflicting prior panel decisions a basis of
reconciliation and to apply that reconciled rule.’” Williams v
Aguirre,
965 F.3d 1147, 1163 (11th Cir. 2020) (quoting United States
v. Hogan,
986 F. 2d 1364, 1369 (11th Cir. 1993)). In resolving con-
flicts, “we are mindful that only the holdings of prior decisions bind
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18 Opinion of the Court 19-14099
us.”
Id. Therefore, “legal principles set forth outside of the deci-
sion’s holding do not bind us.” Washington v Howard,
25 F. 4th
891, 900 (11th Cir. 2022). And “if reconciliation is not possible, ‘we
must follow the earliest precedent that reached a binding decision
on the issue.’”
Id. (quoting Williams, 965 F.3d at 1163).
Our earliest on-point precedent that reached a binding deci-
sion on this issue is Norman, which held that “where an evidentiary
hearing was requested, where there were disputes of fact, and
where the written record was not sufficiently clear to allow the trial
court to resolve the disputes of fact, it was an abuse of discretion to
make an award [of fees] without holding an evidentiary hearing.”
836 F.2d at 1303–04 (emphasis added) (citing King v. McCord,
621
F.2d 205 (5th Cir.1980) and In Re: First Colonial Corp.,
544 F.2d
1291 (5th Cir. 1977)). The use of the word “and” in Norman man-
dates that all three elements were necessary to establish that the
district court abused its discretion. Love, however, treated this as
if it were a disjunctive (i.e., “or” instead of “and”), such that the lack
of any one element could establish an abuse of discretion by the
district court.
Moreover, Love does not cite Norman, and the two cases it
relies on for its holding—Marable v. Walker,
704 F.2d 1219 (11th
Cir.1983), and National Treasury Emps. Union v. IRS,
735 F.2d
1277 (11th Cir.1984)—do not support the proposition that a party
need not request an evidentiary hearing to determine fees.
In Marable, the plaintiff explicitly requested an evidentiary
hearing, which the district court denied. 704 F.2d at 1220. And in
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19-14099 Opinion of the Court 19
National Treasury, this Court held that the district court erred in
finding that the prevailing party was not entitled to attorney’s fees
because the parties’ settlement agreement did not specifically men-
tion attorney’s fees. 735 F.2d at 1278–79. National Treasury there-
fore did not reach a binding decision on when a district court
abuses its discretion in failing to grant an evidentiary hearing on
fees.
In sum, we cannot reconcile our prior precedent in Love
with our earlier precedent in Norman. Because we cannot recon-
cile our caselaw, we must follow the earlier decision of Norman,
which set forth the standard for determining when a trial court
abuses its discretion in not holding an evidentiary hearing to deter-
mine fees. See Comm’r, Alabama Dep’t of Corr. v. Advance Loc.
Media, LLC,
918 F.3d 1161, 1167 (11th Cir. 2019) (quoting United
States v. Madden,
733 F.3d 1314, 1319 (11th Cir. 2013)) (“[w]hen we
have conflicting case law, we follow our oldest precedent”).
Because the record shows that Caplan never requested an
evidentiary hearing on the fee issue, we hold that the district court
did not err in failing to hold one as Caplan “failed to meet the first
prerequisite for obtaining a hearing (that [he] plainly request one
in the first place).” Thompson,
334 F.3d at 1245–46.
C. Across-the-Board Reduction
Caplan contends that the district court erred in applying an
across-the-board reduction of 75% to the number of hours billed
by Stern, his associate, and his paralegals.
USCA11 Case: 19-14099 Date Filed: 06/06/2022 Page: 20 of 21
20 Opinion of the Court 19-14099
Ordinarily, “when hours are disallowed the court should
identify the [specific] hours disallowed and explain why they are
disallowed.” Loranger,
10 F.3d at 783. But where a fee application
is voluminous and “ a district court finds [that] the number of hours
claimed is unreasonably high, the court has two choices: [(1)] it
may conduct an hour-by-hour analysis or [(2)] it may reduce the
requested hours with an across-the-board cut.” Bivins,
548 F.3d at
1350 (citing Loranger,
10 F.3d at 783). When the district court
chooses the latter, it must “concisely but clearly articulate [its] rea-
sons for selecting specific percentage reductions” such that there
can be “meaningful review.” Loranger,
10 F.3d at 783.
Here, the district court found that Caplan’s fee application
was voluminous, and Caplan does not contest that finding on ap-
peal. Instead, Caplan asserts that a 75% across-the-board reduction
was conclusory. But, as detailed above, the district court found
that many of Stern’s time entries were “excessive” or “unneces-
sary.” The district court identified more than 60 hours’ worth of
time, around two-thirds of the hours within a bill that reflected a
total of 96.4 hours, that it believed were excessively billed and/or
were unnecessary for resolving the case. The district court also
found that the total amount of time expended was unreasonable
given the case’s “lack of complexity, Stern’s excessive time entries,
the fact that he has handled hundreds of similar ADA lawsuits (us-
ing boilerplate pleadings), and his overly-aggressive tactics which
needlessly prolonged the litigation.” Based on its findings, the dis-
trict court held that a 75% across-the-board reduction was
USCA11 Case: 19-14099 Date Filed: 06/06/2022 Page: 21 of 21
19-14099 Opinion of the Court 21
warranted and stated that the chosen percentage would avoid “en-
courag[ing] the practice of driving up litigation costs in ADA law-
suits” and, pursuant to its expertise, that 20 hours of attorney time
(24 hours in total) was “reasonable in a routine tester lawsuit under
the ADA that had no unusual characteristics—other than the par-
ties’ inability to compromise on the issue of attorneys’ fees.”
We therefore reject Caplan’s argument that a 75% across-
the-board reduction was conclusory. Before the district court
reached that percentage, it explained in great detail the many rea-
sons why the hours billed by Stern, as reflected on his time sheet,
were excessive, unnecessary, and thus unreasonable. The district
court’s order therefore “articulate[d] the decisions it made, [gave]
principled reasons for those decisions, and show[ed] its calculation”
to allow for “meaningful review.” Loranger,
10 F.3d at 781 (quot-
ing Norman,
836 F.2d at 1304).
IV. CONCLUSION
For the reasons stated, we conclude that the district court
did not abuse its discretion in reducing the requested amount of
attorney’s fees billed by Stern, and we affirm the district court’s or-
der.
AFFIRMED.
