Opinion
Civil Action No. 99-10268-DPW.
September 1, 2005
MEMORANDUM AND ORDER
Plaintiffs Walter F. Sorenson, Jr. and Sarah O. Sorenson seek an award of attorney's fees, costs, and expenses incurred while pursuing claims against defendants HR Block, Inc., HR Block Tax Services, Inc., HR Block Eastern Tax Services, Inc. and Karl Brandenburg. They claimed $5 million in damages but recovered a judgment, even after doubling under Mass. Gen. Laws ch. 93A of only $630. They now seek some $180,000 in attorney's fees and costs. I will award $18,900.
For the sake of simplicity, I will hereafter refer to the multiple defendants as HR Block.
I. Background
A complete recitation of the background to this case is found in my August 27, 2002 Memorandum and Order, resolving cross-motions for summary judgment, Sorenson v. HR Block, Inc., 2002 WL 31194868 (D. Mass. Aug. 27, 2002), aff'd, 107 Fed. Appx. 227 (1st Cir. 2004). For purposes of the question of fees, it is sufficient to reiterate that the "core of the plaintiffs' claim" was the "allegation that Block — assertedly through its employee Karl Brandenburg — reported Mr. Sorenson's suspected fraud on his tax returns for [tax year] 1993 to the Internal Revenue Service ("IRS")." Id. at *1.
This disclosure is said to have resulted in state and federal audits, a state assessment for additional tax liability and penalties, a federal criminal investigation, and a federal civil tax settlement involving substantial payments by Mr. Sorenson. At the same time, the plaintiffs contend that the defendants ought to be held liable for having allegedly disclosed internal company documents revealing prior concerns about Sorenson's [tax year] 1993 return during the course of his federal audit, as well as for having filed multiple tax returns on behalf of Mr. Sorenson which both state and federal authorities ultimately determined to be inaccurate.Id. Plaintiffs contended that defendants' actions resulted in $5,000,000 in damages.
In seeking recovery, plaintiffs pressed fifteen claims embracing allegations of false and deceptive trade practices under Mass. Gen. Laws ch. 93A, negligence, breach of fiduciary duty, professional malpractice, intentional or negligent infliction of emotional distress, breach of contract, breach of covenant of good faith and fair dealing, intentional or negligent misrepresentation, and loss of consortium. I took up those claims at the summary judgment stage, where plaintiffs succeeded only on two related fronts: a breach of contract claim and a 93A claim. In a subsequent memorandum and order, I awarded plaintiffs $630 in damages of which $430 constituted damages for the breach of contract and $200 stemmed from doubling the tax year 1994 fees pursuant to Chapter 93A. Sorenson v. HR Block, Inc., 2003 WL 21842854, at *3 (D. Mass. Aug. 6, 2003), aff'd, 107 Fed. Appx. 227, 232-33 (1st Cir. 2004).
A successful 93A claim entitles plaintiffs to an award of attorney's fees in bringing that action. Plaintiffs seek an award of $166,830.02 in fees and $13,279.52 in costs, contending those figures constitute one third the totals incurred in bringing this action.
Plaintiffs originally petitioned the court for their fees and costs on August 20, 2003, in a motion fully briefed on both sides by the parties. I denied that motion for fees "without prejudice to resubmittal (and, if appropriate, amendment) within 20 days after issuance of mandate by the Court of Appeals on the merits appeal [then] pending." The motion now before me was made and the parties have renewed and supplemented their arguments in the wake of the First Circuit's affirmance of the judgment.
II.
Pursuant to Mass. Gen. Laws ch. 93(A) § 9(4),
[i]f the court finds in any action commenced hereunder that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action. . . .
Case law makes clear that the "absence of a substantial recovery on a chapter 93A claim does not preclude awarding reasonable attorney's fees." Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 841 (1st Cir. 1990) (citing Shapiro v. Public Service Mut. Ins. Co., 19 Mass. App. Ct. 648 (1985)).
A. Settlement Offer
Chapter 93A provides, however, that "the court shall deny recovery of attorney's fees and costs which are incurred after the rejection of a reasonable written offer of settlement made within thirty days of the mailing or delivery of a written demand for relief required by this section." Mass. Gen. Laws ch. 93A § 9(4). In their original opposition to plaintiffs' motion for fees, defendants claim that "it is undisputed that [they] responded to the Sorensons' demand letter within thirty days . . . tendering a settlement offer," and that their "approach to settlement was reasonable under any analysis." (Def.'s Opp. at 9-10.) Defendants do not press this argument as forcefully in their most recent briefing, instead simply arguing that plaintiffs conduct in relation to settlement warrants only a nominal fee.
In either guise, the defendant's arguments are unavailing to the extent they turn on a finding that a settlement offer was made. Defendants' response read, in pertinent part, "[a]lthough we certainly do not admit to any liability under that guarantee [to pay penalty and interest], we may be willing to settle this matter by paying a portion of the civil penalties and interest assessed by the IRS after we have received copies of the IRS reports referred to above." (Ex. 3 to Defs' Opp.) There is no evidence of any further, more explicit settlement offer. Allusion to the possibility of settlement does not a reasonable offer make. With that said, I consider below the effects of plaintiff's litigation strategy on the prospects of a more expeditious resolution of the dispute as part of my analysis of what constitutes reasonable attorneys' fees here.
In their original opposition to fees, defendants also challenged the sufficiency of plaintiffs' demand letters, which did not in the defendants' view adequately describe the injury suffered. Although they incorporate that opposition in their renewed opposition, they do not explicitly reassert that particular argument. Any such deficiency in demand may factor into an evaluation of how the case was presented and tried by plaintiffs in determining a reasonable fee, but I find that any substantive deficiency in the letters — raised after completion of the case — does not now serve as an absolute bar to recovery of fees.
B. Fees Under Chapter 93A
I now turn to a merits evaluation of the fees and costs themselves. Where, as here, the court exercised diversity jurisdiction, state law controls. Id. (citing Northern Heel Corp. v. Comp Indus., Inc., 851 F.2d 456, 475 (1st Cir. 1988); Shelak v. White Motor Co., 636 F.2d 1069, 1072 (5th Cir. 1981)). Plaintiffs contend that "Massachusetts courts have used the lodestar method in determining fees for prevailing parties in 93A and other statutory claims." (Pl.'s Supp. to Mot. for Atty's Fees at 3.) The Massachusetts Supreme Judicial Court did clarify in Fontaine v. Ebtec Corp., 415 Mass. 309 (1993), that, "[t]o the extent that our cases may have been ambiguous on this point, we repeat [that] fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney's fee under State law as well as Federal law." Id. at 326. Cf. Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir. 1997) (characterizing the lodestar method as "strongly preferred"); Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992) ("Ordinarily, the trial court's starting point in fee-shifting cases is to calculate a lodestar. . . ."); Ackerley Communications of Mass., Inc. v. Somerville, 901 F.2d 170, 171 n. 4 (1st Cir. 1990) ("Although we do not perform a line-by-line review of Ackerley's request, our starting point in calculating an appropriate fee was the 'lodestar' approach. . . ."); see also Spegon v. The Catholic Bishop of Chicago, 175 F.3d 544, 550 (1st Cir. 1999); Eldridge v. Provident Companies, Inc., 2004 WL 1690382, at *2 (Mass.Super.Ct. July 6, 2004) (applying the lodestar method to a Chapter 93A claim). "This approach contemplates judicial ascertainment of 'the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate' as the starting point in constructing a fee award." Coutin, 124 F.3d at 337 (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
I note the Massachusetts Appeals Court recently rejected an argument that a failure to apply the "lodestar" method as a starting point for a fee award was necessarily error. WHTR Real Estate Ltd. P'ship v. Venture Distrib., 63 Mass. App. Ct. 229, 236 (2005) ("Fontaine does not require use of the lodestar approach; rather, it states that such an approach may be advantageous.").
As the First Circuit characterized the matter in Star Fin. Servs., Inc. v. AASTAR Mortgage Corp., 89 F.3d 5 (1st Cir. 1996), "there is no 'pat formula' for computing a fee award under Massachusetts law," but rather "the amount rewarded should be determined by what the 'services were objectively worth.'" Id. at 16; Peckham, 895 F.2d at 841. "In making this calculation, the court may consider a variety of factors, including: the amount of time expended, the complexity of the legal and factual issues, the quality of the attorneys' services, the amount of damages and the results secured. . . . In the end, the court's calculation is 'largely discretionary.'" Star, 89 F.3d at 16;see Refuse and Envir. Sys., Inc. v. Indus. Servs. of Amer., Inc., 932 F.2d 37, 45 (1st Cir. 1991); Linthicum v. Archambault, 379 Mass. 381, 3888-9 (1979), overruled in part on other grounds by Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 418 Mass. 737, 743 (1994). That grant of discretion recognizes that the judge "is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney's services."Fontaine, 415 Mass. at 324.
Linthicum, 379 Mass. at 388-89 ("While the amount of a reasonable attorney's fee is largely discretionary, the judge on remand should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.").
However described, my obligation here strikes me as the same: to determine what efforts were reasonably expended on the successful 93A claim and what constitutes an appropriate fee for those efforts. I will meet that obligation by applying the factors limned in Star and Linthicum, foregoing a mechanical application of the lodestar approach. That choice is governed less by preference than by necessity. Plaintiffs, by submitting time records covering all fifteen of their claims in an undifferentiated manner, have not provided a helpful basis upon which I can calculate the hours spent on the 93A claim as a matter of arithmetic. Consequently, I will address the reasonableness of plaintiffs' request by reference to the factors provided in the caselaw without first calculating a lodestar, while recognizing that "[n]o single factor is necessarily dispositive of the services' worth." Star, 89 F.3d at 16. That, I believe, is consistent with the "largely discretionary" decision an award of fees in a 93A case constitutes. See DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 106 (1983) ("The amount of reasonable attorneys' fees under c. 93A is within the broad discretion of the trial judge.").
As a starting point, it is settled that a party is entitled only to fees that were necessary for the advancement of the successful 93A claim. "The caselaw suggests that, if a plaintiff prevails on some, but not all, of his claims, and there is no interconnection, the fee award might be limited to the time spent regarding the proven chapter 93A violation." Peckham, 895 F.2d at 841; Refuse, 932 F.2d at 44 ("[D]efendant can only be assessed attorney's fees and costs for the time spent on the 93A count."). But "[a]s a rule, where a single chain of events gives rise to both a common law and a chapter 93A claim, apportionment of legal effort is not necessary." Industrial Gen. Corp. v. Sequioa Pac. Systems, 849 F. Supp. 820, 826 (D. Mass. 1994),rev'd and remanded on other grounds by 44 F.3d 40 (1st Cir. 1995). "'In fact, 93A claims are typically based on an underlying common law claim and attorney's fees may be assessed for all phases' of litigation." Polycarbon Indus., Inc. v. Advantage Engineering, Inc., 260 F. Supp. 2d 296, 308 (D. Mass. 2003) (Swartwood, M.J.) (quoting Arthur D. Little Intern., Inc. v. Dooyang Corp., 995 F. Supp. 217, 222 (D. Mass. 1998) (citations omitted)).
See Eldridge v. Provident Companies, Inc., 2004 WL 1690382, at *2 (Mass.Super.Ct. July 6, 2004) ("Certainly, the defendants are correct in their contention that hours spent on unsuccessful claims which are distinct from those claims on which the plaintiffs prevailed should not figure into any fee award. However, it is equally true that, where the claims arise from a single chain of events or where there is a core theory which governs all of the claims, apportionment of the legal effort among the different claims is neither necessary nor appropriate.")
Here, plaintiffs brought a myriad of claims, but the only two that were successful were the simple contract claim "arising from Brandenburg's voluntary disclosure of internal Block documents critical of Sorenson's TY 1993 return" and a narrow 93A violation — a "distinctive issue" stemming from defendants failure to disclose its breach while "continu[ing] to provide services to" Sorenson thereafter. Sorenson, 2002 WL 31194868, at *16, 20. Although "distinctive", the 93A claim is intertwined with the contract breach claim to the extent the plaintiff first had to establish the breach before he could establish the subsequent deceptive trade practice addressed by Ch. 93A.
Therefore, I must determine whether the fees and costs necessary to advance those claims can be severed from fees and costs incurred pressing the unsuccessful claims. Cf. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297 (1st Cir. 2001) ("[T]he court must filter out the time spent on unsuccessful claims and award the prevailing party fees related solely to time spent litigating the winning claim(s).").
The first place I look for assistance in that process are the billing records supplied by plaintiffs. See Gay Officers Action League, 247 F.3d at 295-96 ("In fashioning fee awards, the attorney's contemporaneous billing records constitute the usual starting point. . . ."). These documents are quite lengthy, but, as noted above, relate to all the legal work done by plaintiffs in pursuit of their fifteen claims. Plaintiffs have not attempted to pull out, or even estimate, the total hours that can be attributed to their successful claims. Cf. Amcel v. Int'l Exec. Sales, Inc., 1997 U.S. Dist. LEXIS 23543, at *33 (D. Mass. Sep. 26, 1997) (where plaintiffs, by contrast, filed "a multi-page statement of the time of the attorneys and paralegal said to have been spent in connection with the chapter 93A claim"), aff'd, 170 F.3d 32 (1st Cir. 1999). Perhaps plaintiffs were hesitant to break down their records in such a manner, concerned that doing so would be deemed an admission that the 93A claim was not inextricably intertwined with the remaining claims. They were free to make such a choice. But because it appears clear to me — as I explain below — that the successful claims for breach of contract and 93A can be severed from the remaining claims, I am left to calculate a fee without the assistance of focused records. To the extent that deficiency precludes me from precisely determining how time was expended, the benefits of any doubt will accrue to defendants.
Cf. Gay Officers, 247 F.3d 288, 297 (1st Cir. 2001) ("Our cases make clear that prevailing parties who intend to seek counsel fee awards ordinarily must ensure that contemporaneous time records are kept in reasonable detail. These precedents warn that failure to do so may have deleterious consequences (such as the slashing or disallowance or an award).") (citing Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992); Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984)).
Here, it is clear that plaintiffs could have brought a much more focused action limited to the successful claims. In order to receive the judgment awarded, plaintiffs could simply have brought a complaint alleging a contractual breach, arising out of the breach of confidentiality, in tax year 1993 and a subsequent 93A violation arising out of defendants' failure to disclose that breach while continuing to provide services in two subsequent tax years. Such a case would have required far less effort than was expended here.
In my August 27, 2002 memorandum and order, the underlying contractual breach required little exposition to resolve:
Given Brandenburg's own testimony regarding the subject, there does not appear to be a genuine issue of material fact that Block, through Brandenburg, provided the IRS with internal documents revealing prior concerns about Sorenson's return for TY 1993 during the course of his audit, and before having been served with the CID's subpoena.
The defendants seek to generate a genuine dispute, however, by asserting that Brandenburg did not intend to hand these internal documents — including Brandenburg's memorandum describing Sorenson's return as "Fraud in capital letters," as well as the unsent letter to Sorenson himself — over to Agent Lounsbury during their meeting. The defendants' argument appears to be premised on Brandenburg's testimony that the internal documents in question happened to be in the file that he handed over to Lounsbury upon the agent's request for a paper copy of Sorenson's TY 1993 return.
The defendants' argument entirely ignores Brandenburg's admission — both in his deposition testimony and in his answers to interrogatories — that he had earlier showed Lounsbury many of the same documents in order to protect Block against preparer penalties. In light of Brandenburg's admission, I find the defendants' argument unavailing, and conclude as a matter of law that Block did breach its contractual duty of confidentiality to Sorenson on this basis. Accordingly, I will grant the plaintiffs' motion for summary judgment in this respect.Sorenson, 2002 WL 31194868, at *14.
I note that notwithstanding plaintiffs' expansion of the case well beyond a sure legal footing, defendants, by contesting what appeared as a matter of law to be readily apparent from the record, also contributed to the complexity of the litigation.
The successful 93A claim rested entirely on that breach and the uncontested fact that defendants never disclosed it. After rejecting an argument that a 93A claim arose out of the breach itself — "There is nothing immoral, unethical, oppressive or unscrupulous in making disclosure of suspected fraud to the IRS, even if it was a breach of Block's contractual obligation of confidentiality." Id. at *20 — I turned to the "distinctive issue . . . presented by the failure of Block to disclose to Sorenson that it had breached its obligation of confidentiality with respect to TY 1993 when it continued to provide services to him in TY 1994 and 1995." Id. That "omission . . . constituted an unfair practice which deprived Sorenson of the opportunity to consider seeking tax preparation services elsewhere for those years after Block proved itself insufficiently attentive to its contractual duty of confidentiality." Id.
In arguing interconnectedness, plaintiffs correctly point out that the unsuccessful claims, to a large extent, turned on a core set of facts leading to the judgment here. But a court may isolate and address claims arising out of the same facts. If the ability to isolate and address claims were not permitted, a plaintiff — confident of the merits of one claim — would have no disincentive from driving up attorney's fees through allegations and legal theories of dubious merit that can be connected, in whatever an attenuated manner, to the core set of facts underlying the valid claim. Cf. Kramer v. Marine Midland Bank, 577 F. Supp. 999, 1000 (S.D.N.Y. 1984) ("A fortiori, attorney's fees should not be granted for work in raising arguments which often bordered on the frivolous, which had the effect of obscuring the merits of plaintiff's only substantial claim, and which was — apparently — performed for the sole purpose of making a record to support the instant application. We, therefore, in calculating the lodestar figure, eliminate those hours spent on claims unrelated to the single claim on which plaintiff prevailed.") (footnote omitted).
Certainly, in this case, there were a set of facts upon which the many different theories and claims rested. But those facts in the end only supported two valid legal claims resulting in a very modest award of damages. The attorneys attempted to convince the court that the events supported much more. They were unsuccessful, and therefore are not entitled to fees and costs for those vain attempts. In short, the relevant interconnectedness must be more than factual. See Arthur D. Little, 995 F. Supp. at 223 ("The principle of interconnectedness forces the conclusion that a reduction of fees for [plaintiff's] unsuccessful theory of 93A liability is inappropriate for work prior to the jury verdict because the failed theory was factuallyand legally interconnected with the rest of the case during that time.") (emphasis added). By example, if plaintiffs had claimed — however clearly lacking in merit — that defendants' actions violated Title IX of the Civil Rights Act, they would not be able to argue credibly that their efforts in pursuing such a claim was not severable from those that were successful. The unsuccessful claims actually brought in the underlying case, although not as attenuated as the Title IX example, were equally unsuccessful. The efforts for which plaintiffs's attorneys now seek payment were not necessary to advance the simple, modest claim ultimately successful here.
Once the unsuccessful claims are pared away, this case becomes one where little in the way of damages was at stake. Of course, "fees awarded pursuant to Massachusetts statutory authority must not necessarily be reduced because they are high in relation to the award of damages." Arthur D. Little, 995 F. Supp. at 225. Nevertheless, the stakes and the result obtained are relevant factors, brought to the surface here in dramatic fashion by the inordinate size of the fees and costs requested relative to the modest judgment awarded to plaintiffs. When one considers the minimal damages reasonably related to the breach, the amount of the award, and the request for substantial fees for attaining that modest award — a fee request approximately 286 times the size of the award, it becomes clear, that despite Chapter 93A's allowance of fee awards in any successful action, that a judge's role in this realm would become largely illusory, rather than reasonably discretionary, if such a fact could not weigh heavily in the calculation.
Moreover, even if I were to assume that all the claims were inextricably intertwined, it is not apparent that the stakes increased. Regardless of the theories presented by plaintiffs, at the end of the analysis, there was simply no showing of emotional distress or loss of consortium damages of any kind. As the Court of Appeals observed, "[s]pecific factual evidence justifying this hyperbole [was] not cited." Sorenson, 107 Fed. Appx. at 233. In short, it is not clear to what the $5,000,000 damages demand was tied. Consequently, even if I were to have found additional 93A violations stemming from the other alleged breaches of duties, the award would still have comprised, at most, tax preparation fees doubled or tripled in accordance with the statute. Although such a result might have been greater than $630, it would still be modest when compared to the substantial fees and costs requested here.
Consideration of awards in other cases only highlights the striking disparity between the fee request and the modest award stemming from a relatively straightforward contract breach. For instance, in Amcel, Judge Lindsay awarded fees and costs in the amount of $219,099 in a case where the common law "contract and 93A claims largely gr[e]w out of a single chain of events, and the evidence as to the two claims substantially overlap[ped]."Amcel, 1997 U.S. Dist. LEXIS 23543, at *35-38. There, however, the plaintiffs received "treble damages . . . in the amount of $664,761" arising out of those underlying claims, both successful. Amcel, 1997 U.S. Dist. LEXIS 23543, at *32 n. 8.
The judgment amount factored into Magistrate Swartwood's calculation of reasonable fees in Polycarbon Indus., where the claims "involved essentially the same underlying facts and legal analysis." 260 F. Supp. 2d at 308. There, plaintiff was awarded double damages amounting to $520,000 and, "[g]iven the significant award . . . and other factors . . . considered," received fees and costs of $160,349.85. Id. at 310; see Clamp-All Corp. v. Foresta, 53 Mass. App. Ct. 795, 814 (2002) (entering judgment of over $700,000 and affirming a fee award comparable to that requested here).
Before detailing the reasons behind her award of over $1,000,000 in fees and costs in Arthur D. Little, a Chapter 93A § 11 case where plaintiff received a judgment pursuant to Chapter 93A totaling $920,000.00 plus interest, Judge Saris provided a set of conclusions "relevant to the Linthicum factors":
(a) that the case, from beginning to end, involved complex legal problems and challenging factual discovery; (b) that both sides devoted herculean efforts to the case, as perhaps best evidenced by over 200 entries in the Court's docket; (c) that large sums of money were at stake, and the parties, both large sophisticated companies, were aware of those stakes; (d) that both sides were represented at all times by skilled, reputable and experienced attorneys from prominent law firms in the high-priced Boston and New York markets; and (e) that the result obtained by [plaintiff's] counsel was virtually total victory.995 F. Supp. at 221. Addressing those factors here, I find that complex legal issues were raised by plaintiffs, but in the end those claims went nowhere, leaving in their wake a simple breach of contract claim and corresponding 93A violation. Substantial efforts were undisputably expended in this case, as well, but largely for naught. Large sums of money were not at stake here, where in the final analysis plaintiff established no recoverable damages beyond modest tax preparation fees. I do not question the skill and experience of the attorneys in this action, but their efforts to expand a narrow case well-beyond its firmest footing — while permissible within the bounds of good faith pleading — is not compensable to the extent such expansion failed to validate rights under 93A. Finally, there was no total victory in this case. In the end, plaintiffs recovered $630. It would be unreasonable to say the least to award their attorneys 286 times that amount. They have cited no Chapter 93A attorney's fees case that comes anywhere near granting such a windfall.
Additionally, plaintiffs' choice to press numerous unsuccessful claims not only increased costs to the extent it was necessary to research, brief, and conduct discovery on issues ultimately unconnected to the award, that choice also needlessly increased the costs associated with its successful claims. By expanding the reach and stakes of the case, the posture of any settlement negotiations was likely affected. By turning a case for modest damages into a large, multi dimensional action seeking millions, plaintiffs managed to generate additional fees and costs. Plaintiffs should not be permitted to benefit from that choice to the extent the decision needlessly prolonged the case. It is, of course, difficult to predict how the action would have proceeded if it progressed solely on the successful claims. As a way of approaching that question, I will assume the contract breach claim and the 93A claim would have been resolved favorably to plaintiffs at summary judgment even in the absence of the additional claims. From the vantage point of that approach, it is plain, in the end, that the risk, and resulting cost, involved in pressing so many unsuccessful claims must fall squarely on the plaintiffs' shoulders. Where, as here, they do not attempt to compute the amount of time — in the form of time sheets or simply by estimation for purposes of their petition — reasonably necessary to attain the ultimate result in this case, I will substantially reduce the requested amount.
I am of course mindful that "[t]he evolution of c. 93A has shown that there is a benefit to the public where deception in the marketplace is brought to light (and thereby corrected) by an individual who has been deceived even though his actual damages were not proved." Trempe v. Aetna Casualty Sur. Co., 20 Mass. App. Ct. 448, 458 (1985). An award of attorney's fees aids in that effort, helping to "deter businesses from engaging in unfair and deceptive trade practices where those trade practices have adverse effects." NASCO v. Public Storage, Inc., 127 F.3d 148, 154 (1st Cir. 1997). That goal, however, could have been realized with substantially greater efficiency in this case. The successful claims turned on a failure to disclose that was only tangential to the core allegations in the action. In fact, as to plaintiffs' other 93A claims, I made it clear that "there is nothing immoral, unethical, oppressive or unscrupulous in making disclosure of suspected fraud to the IRS, even if it were a breach of Block's contractual obligation of confidentiality." Sorenson, 2002 WL 31194868, at *20. Not all public benefits are created equal, a fact I will not ignore in determining reasonable fees for the realization of the relevant benefit here.
Pointing this out does not represent a finding that the egregiousness of the wrong affects entitlement to attorneys' fees, cf. Arthur D. Little, 995 F. Supp. at 224 ("The . . . decision not to value the egregiousness of [defendant's] conduct at the highest end of the statutory scale of damages is a decision independent from the simple judgment that [plaintiff] was successful . . and, therefore, receives attorneys' fees as a matter of law."), but rather highlights the modesty of the underlying stakes of the successful claims, an appropriate factor to be considered, as distinguished from the more substantial, complex claims which failed to provide plaintiffs any recovery.
The statute requires that a reasonable fee be awarded so that violations can be brought to light. With that in mind, and in light of the modest stakes, the result obtained, the failure of plaintiffs to substantiate any damages beyond those arising out of the discreet breach, and the more focused and limited energies that should have been expended in this case, I will award plaintiffs $18,900.00, inclusive of fees and costs, an award representing 30 times the judgment realized by plaintiff. That award strikes an appropriate balance between creating a proper incentive for plaintiffs to bring meritorious Chapter 93A claims (and defendants to defend them expeditiously, see supra note 7) and creating a disincentive to prevent attorneys from attempting to turn the small foothold created by a modest Chapter 93A action into a launching pad for hydra-like litigation offering little hope of additional success on the merits. Cf. The Equitable Life Assurance Soc. of the U.S. v. Porter-Englehart, 867 F.3d 79, 91 (1st Cir. 1989) ("Fairness is a two-way street: to sanction an award of attorneys' fees to [plaintiff] in this instance would not do justice, but rather would produce an undeserved windfall. We will not permit the tail to wag the dog in so witless a fashion."). The award represents what the legal services compensable here "were objectively worth." Peckham, 895 F.3d at 842.
III. Conclusion
For the foregoing reasons, I grant plaintiffs an award, inclusive of fees and costs, of $18,900.00.