Contant v. Bank Of America Corporation

Background

The plaintiffs—ten individuals and a small business—filed a putative class action against banks and their affiliates. They sought injunctive relief under the Sherman Antitrust Act and damages under certain state antitrust and consumer-protection laws, alleging that the defendants conspired to fix prices in the foreign-exchange spot market.

FXCM, a non-party retail foreign-exchange dealer from which the plaintiffs purchased foreign-exchange instruments, received a March 2019 subpoena seeking transaction-related documents and data. The parties eventually agreed on the scope of FXCM’s production. The plaintiffs agreed to reimburse FXCM for $31,000 in internal document-retrieval costs, but the parties disputed reimbursement for FXCM’s legal fees.

FXCM requested $51,737 in legal fees. The plaintiffs sought to pay $6,750. FXCM’s separate subpoena-related dispute with HSBC became moot after HSBC withdrew its subpoena, and FXCM reached an agreement with defendants regarding fees connected to that subpoena.

Legal standard

Federal Rule of Civil Procedure 45 requires the issuing party or attorney to take reasonable steps to avoid imposing undue burden or expense on a subpoena recipient. The rule permits the court to impose conditions that reasonably compensate a subpoenaed person. The court explained that cost-shifting—requiring the requesting party to pay some subpoena-related costs—depends on factors including the non-party’s interest in the case, its ability to bear the costs, and the litigation’s public importance. Only reasonable expenses resulting from compliance with the subpoena are compensable.

Court’s analysis

The court found that shifting some of FXCM’s reasonable legal fees was warranted. FXCM had no interest in the outcome of the case, although it could more readily bear the fees than any single plaintiff. The plaintiffs collectively could pay at least some of FXCM’s fees, and the case was important to retail foreign-exchange purchasers but did not have broader public importance.

The court found FXCM’s requested hourly rates reasonable. However, it concluded that many billed hours were not reasonably incurred in complying with the subpoena. Those hours included work preparing to challenge or quash the subpoena, researching recovery of subpoena-related fees, pursuing reimbursement, and developing strategy to further or protect FXCM’s interests. The court therefore applied an across-the-board reduction rather than assessing every billing entry individually.

Disposition

The court determined that $17,500 was a reasonable reimbursement for attorneys’ fees incurred in complying with the plaintiffs’ subpoena. It granted in part and denied in part FXCM’s letter motion and ordered the plaintiffs to pay $17,500 to FXCM within 14 days. The court denied as moot the plaintiffs’ earlier motion to compel FXCM and HSBC’s motion to compel FXCM.