USDOL/OALJ Reporter: ARB Decision Caselist -- January 2010

 

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Summary :

STAY OF ARB ORDER ON MONETARY DAMAGES DURING APPEAL; FOUR-PART TEST

In Evans v. Miami Valley Hospital , ARB Nos. 07-118, 07-121, ALJ No. 2006-AIR-22 (ARB Jan. 13, 2010), the ARB in an earlier decision had affirmed the ALJ's decision finding that the Respondent had violated the AIR21 whistleblower provision, and awarding reinstatement, back pay, compensatory damages, and attorney's fees. The Respondent filed a motion with the ARB for a stay of the money damages award pending its appeal in the Sixth Circuit. The ARB found that the Respondent's motion failed the four-part test used by the ARB to determine whether to stay its own actions. First, the ARB noted that the Respondent had not addressed the likelihood that it would prevail on appeal, and had simply objected to the ARB's interpretation of protected activity under AIR21. The Board found that its interpretation was consistent with common sense, and that substantial evidence supported the ALJ's finding that the Complainant had not deliberately violated FAA regulations. Second, the ARB rejected the Respondent's argument that it would be irreparably harmed because the Complainant might not repay the money if the Respondent prevailed on appeal. The ARB stated that the loss of the respondent's very business must be threatened for recoverable monetary loss to constitute irreparable harm. Third, the ARB found that the Complainant would be harmed if not returned to the position he would have been in if his employer had not retaliated against him. Finally, the ARB found that the Respondent had made no argument regarding a public interest that would be served by a stay.

 

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SUMMARY DECISION; PRO SE LITIGANT MUST BE GIVEN "FAIR NOTICE" OF REQUIREMENTS FOR RESPONDING TO A MOTION FOR SUMMARY DECISION, AND AN OPPORTUNITY TO FILE RESPONSIVE MATERIALS

During the prehearing stage of Galinsky v. Bank of America, Corp. , ARB No. 08-014, ALJ No. 2007-SOX-76 (ARB Jan. 13, 2010), the ALJ had ordered the Complainant to provide a "detailed explanation" of his claim, but did not specifically require him to adduce evidence. The ALJ required the Respondent to address the issues raised in the ALJ's order by written submission or dispositive motion. The Complainant responded with a 4 page statement of his position. The Respondent filed a 23 page memorandum with affidavits and exhibits. The ALJ treated the Respondent's response as a motion for summary decision, and granted summary judgment for the Respondent in part on the ground that the Complainant had not adduced sufficient evidence that he was engaged in protected activity under the SOX. On appeal, the ARB held that the ALJ erred procedurally. The ARB stated that it has "adopted federal precedent that requires a judge to give a pro se complainant 'fair notice' of the requirements of the summary judgment rule, and the right to file affidavits or 'other responsive materials' when confronted with a respondent's motion for summary decision." Slip op. at 2, citing Hooker v. Savannah River Co. , ARB No. 03-036, ALJ No. 2001-ERA-16 (ARB Aug. 26, 2004), slip op. at 9.

 

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ATTORNEY-CLIENT PRIVILEGE/WORK PRODUCT DOCTRINE; INTERLOCUTORY REVIEW OF ALJ ORDER TO PRODUCE INTERVIEWS PREPARED IN CONNECTION WITH BOARD OF DIRECTOR'S INVESTIGATION

In Gloss v. Marvell Semiconductor, Inc. , ARB No. 10-033, ALJ No. 2009-SOX-11 (ARB Jan. 13, 2010), the Respondent sought an interlocutory review of the ALJ's order to produce interview memoranda that counsel for the Respondent's Board of Directors prepared in connection with internal investigations they conducted, in which the ALJ ruled that to the extent that the memoranda were used in the internal investigation, the Respondent had waived any attorney-client privilege and work product doctrine objections relating to the memoranda. The Respondent argued that the order was reviewable under the collateral order doctrine exception to the finality rule. The ARB denied the motion, applying the Supreme Court decision in Mohawk Indus., Inc. v. Carpenter , 130 S.Ct. 599, 609 (2009), in which the court determined that "collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege." The ARB also noted that in Jordan v. Sprint Nextel Corp. , ARB No. 06-105, ALJ No. 2006-SOX-41 (ARB Sept. 30, 2009), it had held that "a SOX complainant may rely on statements or documents covered by the attorney-client privilege, as an exception to the privilege, in support of a [SOX Section 806 complaint]." The ARB held that, in light of its ruling in Jordan , the Respondent's petition failed regardless of whether it was grounded in the collateral order doctrine or the "controlling question of law" variety of petition for review. The ARB, however, noted the ALJ's discretion to issue such protective, in camera, or other orders as needed to protect privileged communications.

 

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[Nuclear and Environmental Whistleblower Digest IX D 2]
MOTION FOR RECONSIDERATION UNTIMELY

In Hasan v. Enercon Services, Inc. , ARB No. 04-045, ALJ No. 2003-ERA-31 (ARB Jan. 13, 2010), the Complainant's motion for reconsideration was denied where it was filed more four years after the Board issued its Final Decision and Order, and the Complainant presented no rationale justifying reconsideration after the passage of four years.

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WHERE THERE IS A FAILURE ON PROOF ON AN ELEMENT OF A SOX WHISTLEBLOWER CLAIM, IT IS NOT NECESSARY FOR THE ALJ TO DETERMINE WHETHER THE OTHER ELEMENTS OF THE CLAIM WERE ESTABLISHED

In Klopfenstein v. PCC Flow Technologies Holdings, Inc. , ARB Nos. 07�021, 07-022, ALJ No. 2004-SOX-11 (ARB Jan. 13, 2010), the ALJ had not reached the question of whether the Complainant had engaged in protected activity because the complaint failed on other elements of proof. On appeal, the ARB affirmed the ALJ's findings as supported by substantial evidence. The Complainant filed a motion for reconsideration arguing that the ARB's decision was procedurally inadequate because it had failed to make finding of fact on some facts he contested or rulings of law on some issues. Denying the motion, the ARB reiterated that substantial evidence supported the ALJ's "extensive findings on the issues material to the resolution" of the case. The ARB wrote:

Because a failure of proof on any one element of Klopfenstein's claim means that his entire case must fail, it was not necessary for the ALJ to determine, for example, whether Klopfenstein engaged in protected activity.

Slip op. at 2-3 (citation omitted).

 

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Approval of settlement agreement.

 

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Approval of settlement agreement.

 

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HEARING BEFORE ALJ IS DE NOVO; RESPONDENT MAY RAISE DEFENSES BEFORE ALJ THAT WERE NOT RAISED BEFORE OSHA

In Rowland v. Prudential Equity Group, LLC , ARB No. 08-108, ALJ No. 2008-SOX-4 (ARB Jan. 13, 2010), the ARB rejected the Complainant's argument that an immunity defense could not be raised because it was first raised "on appeal," because an ALJ hearing in a SOX case is de novo, and therefore use of the defense before the ALJ was proper.

NOERR-PENNINGTON IMMUNITY DOCTRINE; ARB DECLINES TO APPLY DOCTRINE TO SOX WHISTLEBLOWER CASES

In Rowland v. Prudential Equity Group, LLC , ARB No. 08-108, ALJ No. 2008-SOX-4 (ARB Jan. 13, 2010), the Complainant had filed an EEOC claim against the Respondent, and under NASD rules, the claim was referred to arbitration. The Complainant then sought to consolidate this claim with an action she had filed in federal district court. As a condition to dismissal of the arbitration without prejudice, the Complainant agreed to pay all of the Respondent's fees and costs connected with the arbitration matter, which amounted to $137,795.82. Several months later, the Complainant filed a SOX complaint with DOL. Later, the Respondent filed an action in federal district court seeking confirmation of the arbitration award. The district court granted the relief. The Complainant then filed a second SOX complaint with DOL alleging that the district court action to confirm the arbitration award was in retaliation for the filing of her previous SOX complaints. The ALJ dismissed the second DOL SOX complaint based on the Noerr-Pennington immunity doctrine. That doctrine was grounded in two antitrust cases, in which the U.S. Supreme Court held that those who petition the government for redress are immune from antitrust liability unless the petition is a sham.

On appeal, the ARB declined to extend the Noerr-Pennington doctrine to SOX cases. The ARB acknowledged that the case arose in the 9th Circuit, and that the 9th Circuit has extended the Noerr-Pennington to non-antitrust cases in all contexts. Nevertheless, the ARB cited 10th Circuit law to the effect that when applying the doctrine, a court must look at the underlying statute involved. The ARB noted that it had not found a case in the 9th Circuit applying the doctrine under Title VII, and absent any direct authority applying it in Title VII or whistleblower cases, it would not apply the doctrine to a SOX case.

ADVERSE EMPLOYMENT ACTION; WHERE COMPLAINANT VOLUNTARILY AGREED TO PAY COSTS OF ARBITRATION (WHICH THE RESPONDENT NORMALLY WOULD INCUR AS AN EMPLOYMENT BENEFIT TO EMPLOYEES) IN EXCHANGE FOR RESPONDENT'S AGREEMENT TO DISMISSAL OF ARBITRATION, THE RESPONDENT'S FILING OF A DISTRICT COURT ACTION TO CONFIRM THE COMPLAINANT'S LIABILITY FOR THE ARBITRATION COSTS WAS NOT A RETALIATORY ACTION

In Rowland v. Prudential Equity Group, LLC , ARB No. 08-108, ALJ No. 2008-SOX-4 (ARB Jan. 13, 2010), the Complainant had filed an EEOC claim against the Respondent, and under NASD rules, the claim was referred to arbitration. The Complainant then sought to consolidate this claim with an action she had filed in federal district court. As a condition to dismissal of the arbitration without prejudice, the Complainant agreed to pay all of the Respondent's fees and costs connected with the arbitration matter, which amounted to $137,795.82. Several months later, the Complainant filed a SOX complaint with DOL. Later, the Respondent filed an action in federal district court seeking confirmation of the arbitration award. The district court granted the relief. The Complainant then filed a second SOX complaint with DOL alleging that the district court action to confirm the arbitration award was in retaliation for the filing of her previous SOX complaints.

On appeal, the ARB, viewing the evidence in the light most favorable to the Complainant, assumed that the Respondent offered an employment benefit of paying for mediation and arbitration expenses and its own attorney's fees; that the parties engaged in mediation and arbitration; and that the Complainant was the only employee of the Respondent who ever had to pay for mediation and arbitration and related attorney fees. Nonetheless, the ARB found that the Respondent's filing of the district court action had not adversely affected an employment benefit to which she was entitled (the right not to pay for mediation, arbitration and attorney's fees), because she in effect forfeited the right to that benefit when she voluntarily agreed to pay for that benefit in exchange for the Respondent's agreement to dismiss the arbitration action. Thus, the Respondent could not be said to have treated the Complainant differently, or have discriminated against the Complainant with respect to the arbitration-costs benefit.

 

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Summary :

PROTECTED ACTIVITY; COMPLAINTS ABOUT EXECUTIVE DECISIONS AND CORPORATE EXPENDITURES THAT ONLY RAISE THE POSSIBILITY OF INVESTOR FRAUD

PROTECTED ACTIVITY; REASONABLE BELIEF THAT ACCOUNTING PRACTICE VIOLATED BANKING LAWS AND COULD MISSTATE RESPONDENT'S FINANCIAL CONDITION

PROTECTED ACTIVITY; COMPLAINT RAISED BY AUDITOR AS PART OF HER DUTIES AS AN AUDITOR

In Robinson v. Morgan Stanley , ARB No. 07-070, ALJ No. 2005-SOX-44 (ARB Jan. 10, 2010), the Complainant argued that she engaged in SOX-protected activity when she raised concerns about employee cell phone usage, the untimely reporting of audit results, computer security, qualifications of employees, use of contractors, technology expenditures, and the use of the improper date to record bankruptcy charge offs. The ARB found that only the bankruptcy charge off complaint implicated protected activity under SOX. The ARB stated that "[c]omplaints to management about executive decisions and corporate expenditures with which a complainant disagrees are not protected activity under the SOX unless they directly implicate the categories of fraud listed in the statute or securities violations." Slip op. at 12 (footnote omitted). It is not enough that the challenged practice possibly could affect the company's financial condition, and that such effect possibly would be intentionally withheld from investors.

The bankruptcy charge off matter, however, raised a potential impact of $8 million, and raised such concern that an investigation was initiated by the Respondent. The ARB found that the Complainant had a reasonable belief that improper handling of bankruptcy charge offs was a violation of federal banking regulations, and that those violations had the potential to misstate the Respondent's financial condition. Thus, the complaint was protected under SOX. The ARB rejected the ALJ's conclusion that, to the extent that the Complainant lodged the bankruptcy charge off concern while discharging her duties as an auditor, she was not engaged in protected activity pursuant to the Fourth Circuit's decision in Sasse v. USDOL , 409 F.3d 773 (6th Cir. 2005) (involving an Assistant U.S. Attorney). The ARB distinguished Sasse on the ground that the SOX statute "does not indicate that an employee's report or complaint about a potential violation must involve actions outside the complainant's assigned duties." Slip op. at 13.

CONTRIBUTING CAUSE NOT ESTABLISHED WHERE THE RECORD SHOWED THAT THE COMPLAINANT WAS DISCHARGED FOR POOR PERFORMANCE

In Robinson v. Morgan Stanley , ARB No. 07-070, ALJ No. 2005-SOX-44 (ARB Jan. 10, 2010), the Complainant, a Senior Auditor in the Respondent's Discover card subsidiary, failed to establish that her SOX protected activity was a contributing factor in her discharge. The record supported a finding that she was discharged because she did not respond to performance feedback and failed to meet performance standards. The Complainant first raised a concern about improper dating of bankruptcy discharges in 2001, but was not retaliated against at that time. Between 2001 and 2004, she was put on performance action plans. Although her performance improved by the end of the first plan, in 2003 it dropped, and by the end of that year she was placed on a second plan, and given a performance review by past and present supervisors, co-workers, and auditees ("360 review"). In early 2004, she submitted a memorandum about her perceptions of operational problems dating back to 2001. But the Respondent investigated those concerns, engaged in efforts to aid her professional development, and presented a written statement of what she needed to accomplish to retain her job. The Complainant's performance did not improve: she refused to accept performance feedback, and continued to miss deadlines and to engage in confrontational exchanges. It was not only her supervisors who identified these performance problems, but also the employees who participated in the 360 Review Process.

 

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Summary :

INDIVIDUAL LIABILITY UNDER THE LCA REGULATIONS

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010) the ARB found that the ALJ properly found a dentist who owned outright or operated dental clinics under assumed names, was individually liable as an employer under the LCA regulations' definition at 20 C.F.R. § 655.715. The dentist had signed the LCAs as the sponsoring employer. The clinics had no separate legal identity.

FACT THAT H-1B WORKER STARTED NEW BUSINESS IN PARTNERSHIP WITH THE EMPLOYER WHO SIGNED THE LCA DID NOT CONSTITUTE A BONA FIDE TERMINATION OF THE EMPLOYMENT RELATIONSHIP WHERE THE EMPLOYER DID NOT NOTIFY DHS, DID NOT PROFFER THE COST OF TRANSPORTATION HOME, AND LATER SIGNED A NEW LCA

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) argued that the H-1B worker's employment relationship with the Respondent ended when the worker (also a dentist) left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state, or that the H-1B voluntarily placed himself in nonproductive status when he moved to the neighboring state and became self-employed. The ARB rejected these arguments, finding that the Respondent did not report to the DHS that he terminated the H-1B worker's employment, that the Respondent did not give the H-1B worker the cost of transportation home, and that two years after the worker had moved to the new clinics, the Respondent signed a second LCA. The ARB found that the employment relationship thus continued and that "[t]he Act and its regulations impose the duty to terminate the employment relationship on the employer, not the H-1B nonimmigrant." Slip op. at 7-8 (footnote omitted).

H-1B WORKER'S PARTICIPATION IN FRAUDULENT LCA DOES NOT NEGATE BACK PAY LIABILITY OF EMPLOYER

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) argued that the H-1B worker (also a dentist) had fraudulently failed to amend the LCA or to submit a new one to reflect the changed circumstance that he had left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state. The Respondent argued that the failure to report this new circumstance constituted fraud, and therefore the H-1B worker should not be entitled to recover back wages as an H-1B worker. The ARB agreed with the ALJ, however, that it was the Respondent's responsibility alone to amend the existing LCAs or to file a new one. The ARB also rejected the Respondent's explanation that he signed a second LCA without reading it and only later noticed that the original clinic was still listed as the employer. The ARB found that the Respondent had constructive knowledge of the documents he signed.

 

EMPLOYER'S LIABILITY FOR H-1B BACK WAGES IS NOT NEGATED BY THE FACT THAT THE H-1B WORKER RECEIVED A DRAW OF MONIES OR A SHARE OF PROFITS AS PART OF A BUSINESS ARRANGEMENT WITH THE EMPLOYER

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) sponsored an H-1B worker (also a dentist). About one year into the LCA, the H-1B worker left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state. At the new clinics, the H-1B worker received draws of money pursuant to his business agreement with the Respondent, rather than cash wages. The ALJ, having found that the Respondent had not paid H-1B wages after the move, refused to credit the non-payroll payments, even though the Respondent argued that the H-1B worker would thereby receive double payment. The ARB affirmed. Under the statute, regulations, and ARB precedent, H-1B wages must be shown in the employer's payroll records and disbursed to the employees, less authorized deductions, and the payments must be reported to the IRS with appropriate withholdings and deductions. The ARB also agreed with the ALJ that payment of a share of profits under a side agreement did not constitute payment of H-1B wages.

CLAIM BY H-1B WORKER FOR REIMBURSEMENT OF FILING FEE IS SUBJECT TO A ONE-YEAR STATUTE OF LIMITATIONS

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the ALJ erred in applying the ARB's ruling in USDOL v. Alden Mgt. Servs, Inc. , ARB Nos. 00-020, -021, ALJ No. 1996-ARN-3 (ARB Aug. 30, 2002), that back wages are calculated for the entire period of the H-1B employment, to the question of employer liability for failing to reimburse to an H-1B worker the LCA filing fee. The ARB explained that in Alden , the H-1B workers had filed a timely claim for back pay, and the issue decided was how far back in time to go in calculating the back pay award. Here, the claim for reimbursement of the filing fee was time barred under the 12 month statute of limitations.

WILFULLNESS FINDING NOT NEGATED BY POOR ADVICE FROM ATTORNEY OR H-1B WORKER'S FAILURE TO AMEND LCA

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), the Respondent (a dentist) sponsored an H-1B worker (also a dentist). About one year into the LCA, the H-1B worker left the dental clinic at which he began employment under the LCA, and became a partner with the Respondent in new clinics opened in a neighboring state. Under the new business arrangement, the worker was compensated by draws and a share in the profits rather than a cash salary complying with the H-1B regulations.

The ARB affirmed the ALJ's holding that the Respondent wilfully failed to continue to pay the H-1B worker H-1B wages. The ARB rejected the Respondent's contentions that the failure was due to bad advice from his attorneys or the H-1B worker's failure to amend the LCA. The ARB agreed with the ALJ that "an H-1B employer's ignorance of the INA's requirements or contention that noncompliance was due to an attorney or employee will not excuse noncompliance." Slip op. at 12 (footnote omitted).

CIVIL MONEY PENALTY FOR IMPEDING INVESTIGATION BASED ON FAILURE TO MAINTAIN OR PRODUCE REQUIRED RECORDS

In Administrator, Wage and Hour Division v. Avenue Dental Care , ARB No. 07-101, ALJ No. 2006-LCA-29 (ARB Jan. 7, 2010), The ARB affirmed a $500 civil money penalty for lack of cooperation with the Administrator's investigation where uncontroverted evidence showed that the Respondent impeded the investigation because he had not maintained or produced records requested by the investigator.

 

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Summary :

CLEAR AND CONVINCING EVIDENCE THAT COMPLAINANT WOULD HAVE BEEN FIRED IN THE ABSENCE OF HIS PROTECTED ACTIVITY; COMPLAINANT FAILED TO PERFORM HIS MANAGERIAL DUTIES TO PROVIDE CORRECTIONS OR IMPROVEMENTS TO ADDRESS THE CONCERN HE HAD RAISED

In Yadav v. L-3 Communications Corp. , ARB No. 08-090, ALJ No. 2006-AIR-16 (ARB Jan. 7, 2010), the ARB affirmed the ALJ's finding that the Complainant engaged in protected activity under the AIR21 whistleblower provision when he complained to his supervisor about the extent to which reverse engineering (from a prototype) was being used in the development of an integrated flight information computer that the Respondent was developing for small aircraft cockpits ("SmartDeck"). The Complainant also complained that the development plan had been misrepresented to the FAA. The ARB noted that the Respondent had stipulated that the Complainant engaged in protected activity and that it was aware of this activity. The ARB affirmed the ALJ's finding that the protected activity was a contributing factor in the Complainant's discharge. The ARB further affirmed the ALJ's finding, however, that the Respondent had shown by clear and convincing evidence that it would have fired the Complainant absent the protected activity � that the Complainant was fired because he refused to perform his managerial duties and not because he raised safety issues regarding the SmartDeck development plan. The ALJ found, for example, that the Complainant had threatened to stop performing the duties of his position if the project was not scrapped, and failed to provide his managers with specific corrections or improvements to the plan. The Complainant had not produced requested information, talked with other managers as directed, and did not validate his concerns.

The ARB noted that it was without question that the SmartDeck software was an important aircraft part, and that failure to resolve potentially inherent design flaws could contribute to system failure and potential disaster. Nonetheless, the ARB found that the evidence showed that the Complainant had done little or nothing to implement solutions beyond outlining the problem and criticizing other managers. The ARB wrote that "[i]n sum, Yadav became part of the problem instead of using his expertise and experience to find solutions and make the SmartDeck project ready for FAA certification."

 

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Summary :

[STAA Digest IX C]
ATTORNEY FEE PETITION FOR WORK BEFORE APPELLATE COURT; REDUCTIONS UNDER LODESTAR METHOD WHERE THE SOLICITOR OF LABOR DEFENDED ARB DECISION, WHERE SOME BILLING ENTRIES WERE UNEXPLAINED OR APPEARED TO BE DUPLICATIVE, AND WHERE BILLINGS WERE EXCESSIVE UNDER STANDARDS OF PRIVATE PRACTICE

In Cefalu v. Roadway Express, Inc. , ARB Nos. 04-103, 04-161, ALJ No. 2003-STA-55 (ARB Jan. 6, 2010), the ARB considered the Complainant's attorney's fee petition for work before the Seventh Circuit Court of Appeals. The ARB reduced the requested award of fees by one-third pursuant to the lodestar method of calculating attorney fees. The ARB found that the issues before the Seventh Circuit were not novel, and that they were the same as those briefed and argued before the ALJ and the ARB. Moreover, the Solicitor of Labor defended the ARB decision on appeal, and the Complainant's attorney's appearance and work was possibly helpful, but not required, before the court of appeals. Moreover, the appeal was only partially successful. The ARB found that it was not clear what value the Complainant's attorney added to the case. Moreover, the ARB found some entries on the fee request were unexplained, and batched with time for more properly billed services. Finally, the ARB noted that both the Complainant's attorney, and the Complainant's daughter (who was also an attorney), represented that they worked on the intervenor's brief before the court of appeals. The ARB found that it could not determine the extent to which their work was duplicative or distinct, but that it could determine that "a total of over 150 hours for the two lawyers' work while the case was pending in the Circuit for briefing, oral argument, and travel is excessive by the standards of private practice." The ARB also reduced the Complainant's attorney's requested expenses.

The ARB reduced the Complainant's daughter's fee petition by two-thirds because of batched entries, the appearance that her attendance at conferences may have served merely to keep her informed rather than to have advanced the case, and her work on several matters appeared to duplicate time for which the Complainant's attorney had already been compensated. The ARB also found that although it was commendable that the Complainant's daughter attended oral argument, it could not conclude that her attendance was necessary.

 

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