A recent decision by Senior District Judge Robert Payne on a Daubert motion in class action litigation against a pension fund offers some helpful lessons on challenging expert witnesses in the EDVA. Trauernicht v. Genworth Fin., Inc., Civil Action No. 3:22-cv-532, 2024 U.S. Dist. LEXIS 95739 (E.D.Va. May 29, 2024).

Litigation challenging government economic regulation has become more common, as courts appear increasingly less deferential to legislative and executive action. Most of this type of litigation focuses on federal regulation, but states have also taken a more active role in business regulation, prompting more frequent challenges to state laws in federal courts.

In Colonial River Wealth Advisors, LLC v. Cambridge Investment Research, Inc., No. 3:22cv717, 2024 U.S. Dist. LEXIS 3058 (E.D. Va. Jan. 5, 2024), Judge Young granted the prevailing defendant’s fee petition, awarded $227,357 in attorneys’ fees, and concluded that block billing records provided by the defendant’s counsel “sufficiently permit[ed] the Court to assess the hours expended and the nature of the work completed.” Judge Young rejected the plaintiff’s argument that the block billing practices made it impossible to determine which attorneys’ fees were reasonable. Judge Young acknowledged that, though no per se rule against block billing exists, “in some instances, block billing may inhibit a court from accurately assessing the reasonableness of a fee request,” where lumped fee entries lacked sufficient detail and obscured the amount of time actually spent on the billed-for tasks. When block billing prevents the assessment of the reasonableness of the fees, a reduction of the fee award is appropriate. But in the case of the defendant’s fee petition, Judge Young was able to assess the reasonableness of the fee request, given the level of detail in the defendant’s counsel’s time entry descriptions. Using one example, the court noted that one 8.3 hour entry encompassed 11 discrete tasks, including review of a 309-page deposition transcript, the document production of another party, documents for use in upcoming deposition, and motion to quash various subpoenas. The court found it not unreasonable for the defendant’s counsel to have spent 8.3 hours on those tasks.

Plaintiffs who secure a preliminary injunction may now be able to recover attorney’s fees in the Eastern District of Virginia, due to the Fourth Circuit’s departure from its previous position that such plaintiffs are not “prevailing parties” for purposes of recovering attorney’s fees.