HURLEY, Senior District Judge.
Pending before the Court is plaintiffs' motion, made pursuant to Federal Rules of Civil Procedure 23(h) and 54(d)(2) for counsel fees in the amount of $5,754,000, plus costs and expenses of $182,030.25, for a total of $5,936,030.25. In addition, plaintiffs seek to recover service awards for those class members who were deposed during pretrial discovery and/or testified at trial.
Defendants oppose plaintiffs' applications, arguing (1) the fees sought are excessive, (2) counsels' time records are inadequate, (3) the proposed hourly rates are
The plaintiffs' class consists of 17,000 individuals who were strip searched during the class period
The case has been hotly contested for over thirteen years. The particularly salient portions of its extended history are accurately synopsized by plaintiffs thusly:
(Pls.' Mem. in Supp. at 5-6.)
After the March 27, 2008 decision, further efforts to settle the case were pursued, additional discovery was conducted, and various motions were made by parties concerning such issues as the rules and procedures to be employed during this apparently unprecedented general, as distinct from special, damages segment of the class action proceeding.
Returning to the history of the case as provided by plaintiffs:
(Pls'. Mem. in Supp. at 7.)
Following plaintiffs' current post-trial application for counsel fees and other items of relief being filed, the Supreme Court issued its decision in Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, ___ U.S. ___, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) which held that the strip searching of a detainee charged with a misdemeanor or lesser offense as part of the standard intake procedure at a correctional facility, even absent reasonable suspicion to believe that he or she harbors contraband, is not violative of the Fourth or Fourteenth Amendment.
Based on the holding and rationale in Florence, defendants moved to (1) vacate their earlier unconditional concession of liability and the resulting Court orders, and (2) dismiss the entire suit, i.e. both the federal and state constitutional claims.
By Memorandum and Order dated July 18, 2013, defendants' Florence-based application was granted to the extent that the portion of the January 16, 2007 Order granting summary judgment as to liability on plaintiffs' § 1983 claim was vacated and the underlying federal claim dismissed. However, their motion was denied as to the cause of action based on Article 1, § 12 of the New York State Constitution. The viability of that claim is not dictated by Florence contrary to the position urged by defendants. See In re Nassau Cnty. Strip Search Cases, 958 F.Supp.2d 339, 354 (E.D.N.Y.2013).
Given that I have retained jurisdiction, the award of $500 per strip search, inter alia, remains intact.
As explained by the Second Circuit in Goldberger v. Integrated Res., Inc.:
209 F.3d 43, 47 (2d Cir.2000) (internal citations omitted).
Either approach may be utilized in calculating attorneys' fees, id. at 50,
"It bears emphasis [, however,] that whether calculated pursuant to the lodestar or the percentage method, the fees awarded in common fund cases may not exceed what is `reasonable' under the circumstances." Goldberger, 209 F.3d at 47. As a guide to assist district courts in making that overriding determination, the Circuit has identified the following factors for consideration: "(1) the time and labor expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the litigation ...; (4) the quality of representation; (5) the requested fee in relation to the [recovery achieved]; and (6) public policy considerations." Id. at 50 (citation and quotation marks omitted). Henceforth, these factors will be referred to collectively as the "Goldberger factors."
Plaintiffs request that counsel fees be awarded based on a percentage of the common fund created for the benefit of the class with a lodestar cross-check to assure reasonableness. An appropriate percentage, plaintiffs posit, would be "50% of the... aggregate class damages award." (Pls.' Mem. in Supp. at 3.)
Defendants recognize that plaintiffs' proffered methodology is appropriate as a general matter. (Defs.' Br. in Opp'n at 2 ("On July 18, 2013, ... this Court ... dismissed the class Plaintiffs' Federal law claims.... By reason thereof, § 1988 is inapplicable and no attorneys' fees may be awarded to Class Counsel under the fee-shifting statute. What remains, then, is an analysis of attorneys' fees under either the `presumptively reasonable fee' (i.e. modified lodestar) method, or the `percentage of the fund' method.").)
The Court will use plaintiffs' suggested method. Since that method implicates both the percentage approach, as well as the lodestar method, albeit only as a cross-check, both warrant further discussion.
The percentage method, as already defined, is largely self-explanatory. However, it is important to note that the percentage is applied to the total amount recovered on behalf of the class (i.e. the "common fund"), not to the lesser sum that in all probability will be claimed by members of the class from that fund. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980) ("[T]his Court has recognized consistently that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as
Although utilization of the percentage method in setting counsel fees in common fund cases may be the "trend in [the] Circuit," the practice is not without pitfalls. Wal-Mart Stores, Inc., 396 F.3d at 121. As mentioned in Goldberger:
209 F.3d at 52 (citation and internal quotation marks omitted).
As earlier noted, the lodestar method requires "the district court [to] scrutinize[] the fee petition to ascertain the number of hours reasonably billed to the class and [to] then multipl[y] that figure by an appropriate hourly rate." Goldberg, 209 F.3d at 47. To the resulting sum, "enhancements may be awarded in rare and exceptional circumstances." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010) (citations and internal quotation marks omitted). The lodestar may be increased, in the Court's discretion, "based on factors such as the riskiness of the litigation and the quality of the attorneys." Wal-Mart Stores, Inc., 396 F.3d at 121.
Plaintiffs are requesting that the unadjusted lodestar be enhanced by a 1.29 multiplier which, they argue
(Pls.' Mem. in Supp. at 3.) That request will be addressed later in the text.
As noted, plaintiffs seek counsel fees and expenses incurred from May 1999 through January 13, 2012, explaining that "[o]ne advantage of using the percentage-of-recovery method and a positive multiplier to award an enhanced fee rather than [the] lodestar might be to avoid the need to make successive fee applications for this future work." (Pls.' Mem. in Supp. at 8 n. 4.)
Defendants maintain that counsel fees and costs incurred for the period from "May 20, 1999 through July 5, 2005" may not exceed $125,000.00. (Defs.' Br. in Opp'n at 7.) The proffered reason for their
To the extent defendants claim that the $125,000 figure constitutes some type of admission that "the reasonable value of attorneys' fees and costs" during that time frame was $125,000 or less, Defs.' Br. in Opp'n at 7, plaintiffs emphasize that defendants, and understandably so, presumably declined to factor into the settlement negotiations plaintiffs' then unsuccessful efforts to obtain class certification. (Pls.' Reply at 4.) Indeed, although the class was not certified until years later, plaintiffs' counsel sought class certification from the outset of the litigation in May 1999.
In sum, defendants' position that counsel fees and costs should only be determined from July 5, 2005 lacks merit. Instead, the May 20, 1999 date will be used as the starting point for calculation purposes.
Defendants object to the general format of plaintiffs' billing records and also find fault with certain specific aspects of their submissions. Although there is a significant overlap between the two categories, an effort will be made to address each separately.
Defendants contend that the billing records submitted by plaintiffs are as a general matter insufficiently detailed to permit an award of counsel fees.
Defendants also maintain that plaintiffs' billing records are inadequate in a number of particulars, including (1) "[c]ounsels' fee application ... do[es] not specify whether the applied billing rate takes into consideration the levels of the attorneys' experience over the course of the litigation," citing Williams v. N.Y.C. Hous. Auth., 975 F.Supp. 317 (S.D.N.Y.1997), (Defs.' Br. in Opp'n at 8), (2) the information provided in most instances consists of the employees' names or initials, the total hours worked, and the hourly rates, but is typically absent any information as to "whether [a particular] employee was a junior or senior partner, [or] junior or senior associate," id. at 9, and (3) "whether an employee['s] change in title [if any, during the course of the litigation] has been taken into account in determining the appropriate fees charged." Id. at 9-10.
As a further particularized example of the billing inadequacies charged to plaintiffs, defendants refer to the sums assessed for travel time to and from the court. Plaintiffs object in that "it [is] not... possible to determine whether the attorneys and paralegals distinguished the rates for travel time from the full hourly rates." Id. at 9. In that regard, defendants cite Barfield v. N.Y.C. Health and Hosps. Corp., 537 F.3d 132, 139, 151 (2d Cir.2008) for the proposition that travel time, pursuant to local court custom, should be charged at half of counsel's hourly rate rather than at the full rate.
With respect to defendants' first-listed specific objection, supra, concerning a lack of detail as to "the levels of the attorneys' experience over the course of the litigation," the Court has perused the Williams case. There the Court, in the exercise of its discretion — after deciding to apply "current rather than historic [hourly] rates" — held that it was not prepared to employ the same methodology concerning counsels' "level of experience." Williams, 975 F.Supp. at 322. "Instead, their hourly rates should reflect the passage of time and the corresponding development of each attorney's expertise." Id. Therefore,
Williams was a Section 1983 class action seeking injunctive relief against the New York City Housing Authority's methods of terminating rent assistance. Id. at 319. Plaintiffs, as the prevailing parties, sought counsel fees pursuant to 42 U.S.C. § 1988 based on a lodestar calculation. Id. at 319, 321. Here, in contrast, the lodestar method is being used merely as a cross-check against the percentage method. Under such circumstances, "the hours documented by counsel need not be exhaustively scrutinized by the district court." Goldberger, 209 F.3d at 50; see also In re Telik, Inc. Sec. Litig., 576 F.Supp.2d 570, 585-86 (S.D.N.Y.2008); In re Elan Sec. Litig., 385 F.Supp.2d 363, 373 (S.D.N.Y.2005). Moreover, given that approximately twenty-five attorneys worked on the present class action at different points for over a decade, the Court, in the exercise of its discretion, declines the invitation to adopt the methodology used in Williams. Instead, I will use the current, unadjusted hourly rates charged by the various attorneys in determining counsel fees in recognition of the fact that counsel did not receive any interim payments during the course of the litigation. See, e.g., Grant v. Martinez, 973 F.2d 96, 100 (2d Cir.1992); Velez, 2010 WL 4877852, at *23 ("The use of current rates to calculate the lodestar figure has been repeatedly endorsed by courts as a means of accounting for the delay in payment inherent in class actions and for inflation.") (quoting In re Veeco Sec. Litig., 2007 U.S. Dist. LEXIS 16922, at *9 n. 7 (S.D.N.Y. 2007)).
As to defendants' complaint about the failure of plaintiffs' billing records to distinguish between senior and junior partners as well as junior and senior associates, that purported inadequacy is partially cured by the resumes that have been provided by movants. However, given the exemplary caliber of the legal services rendered to the class, I have assigned a $300 per hour rate for the services of all associates with two exceptions those being where the requested rate was below $300. Similarly, for the same reason, the hourly rate assigned to all partners is $450.
Plaintiffs posit that the "hourly [rates] charged by Mr. Herbst ($750) and other senior lawyers in this case are reasonable." (Pls' Mem. in Supp. at 17.) That is so, counsel explains, "because this is a case where higher Southern District hourly rates may be applied." (Id.) For that proposition, several cases are cited by plaintiffs, including Vilkhu v. City of N.Y., 2009 WL 1851019, 2009 U.S. Dist. LEXIS 73696 (E.D.N.Y. June 26, 2009) (using Southern District hourly rates in an Eastern District case in establishing the lodestar fee in a non-class civil action).
However, as a preliminary matter, the Court notes that Vilkhu was vacated on appeal on the very ground that the District Court had "calculated the attorney's fees award by reference to billing rates in the Southern District." 372 Fed.Appx. 222, 223-24 (2d Cir.2010). The Second Circuit's decision to vacate the District Court's attorney's fees award was based upon its decision in Simmons v. N.Y.C. Transit Auth., 575 F.3d 170 (2d Cir.2009), which is discussed infra. See id.
575 F.3d at 175-76.
Although plaintiffs' counsel are clearly highly skilled and knowledgeable members of our profession, movants have failed to demonstrate that, objectively viewed, the use of practitioners from this District would likely have produced a substantially inferior result. The mere fact that Mr. Herbst, of the plaintiffs' team, was the attorney who handled the threshold litigation in Shain,
Plaintiffs have requested hourly rates from $400 to $790 for partners, between $285 and $475 for associates, from $125 to $290 for paralegals, and $100 for "interns and law students."
The legal representation provided to the class has been first rate. To obtain such services locally would likely require the following hourly sums: $300 to $450 for a partner, $200 to $300 for an associate, and $70 to $90 for a paralegal. See Gagasoules v. MBF Leasing LLC, 2013 WL 1760134, at *3 (E.D.N.Y. Apr. 24, 2013); see also Gesualdi v. Deland Contracting, Inc., 2013 WL 4807080, at *5 (E.D.N.Y. Sept. 9, 2013); Pilitz v. Inc. Vill. of Freeport, 2011 WL 5825138, at *4 (E.D.N.Y. Nov. 17, 2011).
As earlier discussed, defendants leveled a number of complaints — both general and specific — against plaintiffs' billing records. However, it will be noted that those complaints do not target the number of hours claimed per se.
The records submitted by plaintiffs demonstrate that the five firms involved in representing the class devoted a total of 8,588.83 hours to the task. See supporting Declarations submitted by (1) Robert L. Herbst (on behalf of Giskan, Solotaroff Anderson & Stewart LLP, Beldock Levine & Hoffman LLP, and Herbst & Greenwald LLP),
By way of format, I have taken the billing charts submitted by each of the five class counsel law firms — listing such items as the names of the service providers, the hours devoted to the case, the requested hourly rates, and the corresponding total sums requested — and modified those charts (1) to indicate whether the attorney involved is a "partner," or an "associate" in those situations where that needed information is absent from a chart and is also decipherable from other materials provided such as resumes and firm websites, and (2) to provide the hourly rates established by the Court in lieu of the rates requested, along with the corresponding total sums.
Gisken Solotaroff Anderson & Stewart LLP Specific Total Firm Name Position Position Hours Rate Total GSAS Robert L. Herbst Attorney Partner 1,496.80 $450.00 $673,56 0.00 GSAS Oren Giskan Attorney Partner 67.70 450.00 30,465.00 GSAS O. Iliana Konidaris Attorney Associate 42.40 200.00 8,480.00 GSAS Dustin Brockner Paralegal 355.90 70.00 24,913.00 GSAS Shira Burton Paralegal 610.30 70.00 42,721.00 GSAS TAC Paralegal 38.40 70.00 2,688.00 GSAS Rahul D'Sa Paralegal 15.70 70.00 1,099.00 GSAS LMG Paralegal 40.60 70.00 2,842.00 GSAS Kate Redburn Paralegal 30.20 70.00 2,114.00TOTAL 2,698.00 $788,882.00
Beldock Levine & Hoffman LLP
Specific Total
Firm Name Position Position Hours Rate Total
BLH Robert Herbst Attorney Partner 467.00 $450.00 $210,150.00
BLH Jonathan Moore Attorney Partner 48.65 450.00 21,892.50
BLH Vera Scanlon Attorney Partner 1,370.60 450.00 616,770.00
BLH Spencer Freedman Attorney Associate 440.50 300.00 132,150.0 0
BLH Sofia Yakren Attorney Associate 79.15 300.00 23,745.00
BLH Marc Cannan Paralegal 13.80 70.00 966.00
BLH Julie Russell Paralegal 136.90 70.00 9,583.00
BLH Joani Pattarozzi Paralegal 22.95 70.00 1,606.50
BLH Interns & Law Students 193.00
TOTAL 2,772.55 $1,016,863.00
Herbst & Greenwald LLP
Specific Total
Firm Name Position Position Hours Rate Total
H & G Robert Herbst Attorney Partner 250.90 $450.00 $112,905.00
H & G Gayle Pollack Attorney Associate 183.32 300.00 54,996.00
H & G Amanda Masters Attorney Associate 18.00 300.00 5,400.00
H & G Tori Marie Angeli Paralegal 17.50 70.00 1,225.00
TOTAL 469.72 $174,526.00
Emery Celli Brinckerhoff & Abady LLP
Specific Total
Attorney Position 11 Hours Rate Total
Matthew D. Brinckerhoff Partner 172.9 $450.00 $ 77,805.00
Mariann Meier Wang Partner 561.14 450.00 252,513.00
Nina Morrison Associate 52.7 300.00 15,810.00
Richard D. Emery Partner 13.2 450.00 5,940.00
Mary Kuder Paralegal 71.4 70.00 4,998.00
Elizabeth Saylor Partner 11.3 450.00 5,085.00
John R. Cuti Associate 5.3 300.00 1,590.00
Scott Hoffer Paralegal 14.75 70.00 1,032.50
Jonathan S. Abady Partner 2.1 450.00 945.00
Katherine Rosenfeld Partner 3.0 450.00 1,350.00
Kelly Stefanco Paralegal .8 70.00 56.00 TOTAL 908.59 $367,124.50
Wolf Haldenstein Adler Freeman & Herz, LLP
Attorneys/Paraprofessionals/Others Hours Rate Total
Daniel W. Krasner(P) 34.60 $450.00 $ 15,570.00
Jeffrey G. Smith(P) 629.60 450.00 283,320.00
Alan A.B. McDowell(OC) 636.60 300.00 190,980.00
John M. Cromwell(OC) 32.68 275.00 8,987.00
Martin E. Restituyo(A) 718.55 300.00 215,565.00
James A. Cirigliano(PL) 24.00 70.00 1,680.00
Joseph Weiss(PL) 66.80 70.00 4,676.00
Jillaine E. Gill(PL) 44.60 70.00 3,122.00
Kevin G. Cooper(PL) 13.00 70.00 910.00
TOTAL 2,200.43 $724,810.00
The total unadjusted lodestar amount for the five firms is $3,072,205.50
A lodestar amount represents a "presumptive[ly] reasonab[le]" attorneys' fee.
Plaintiffs seek a relatively modest upward adjustment via a 1.29 multiplier. See Velez, 2010 WL 4877852, at *23 ("Class counsel has requested a multiplier of 2.4 times the hourly fees already incurred. That multiplier falls well within (indeed, at the lower end) of the range of multipliers accepted within the Second Circuit."). As noted in Citigroup: "A multiplier is typically applied to the lodestar figure to represent the risk of litigation, the complexity of the issues, the contingent nature of the engagement, the skill of the attorneys, and other factors." 988 F.Supp.2d at 375, 2013 WL 6697822, at *4 (emphasis added) (citation and internal quotation marks omitted).
"[L]itigation risk must be measured as of when the case is filed." Goldberger, 209 F.3d at 55. Although at that time, plaintiffs had the benefit of the district court decision in Shain, the County was in the process of trying to have that decision overturned, mounting an argument that clearly could not be dismissed as patently without merit. Had plaintiffs not ultimately prevailed, no monies would have been received by their counsel either by way of fees or, in all probability, reimbursement for expenses incurred. The skill level of counsel was impressive and, while the complexity of plaintiffs' liability approach was relatively straight forward, their pivotal general damages argument was not only sound in my judgment, but one that less capable attorneys may not have considered.
For the reasons indicated, the base lodestar figure of $3,072,205.50 has been enhanced by a multiplier of 1.29, resulting in an adjusted lodestar figure is $3,963,145.00.
The Goldberger factors are:
Goldberger, 209 F.3d at 50.
The factors are applicable to reasonableness determinations, whether a percentage of the common fund or the lodestar approach is used. McDaniel v. Cnty. of Schenectady, 595 F.3d 411, 423 (2d Cir.2010). They are also applicable to multiplier requests. See Steinberg v. Nationwide Mut. Ins. Co., 612 F.Supp.2d 219, 222 (E.D.N.Y.2009). Accordingly, all but two of the Goldberger factors have already been addressed with respect to the multiplier determination supra. As to the two remaining, i.e. factors 5 and 6, and proceeding in reverse order, the effort to spare arrestees charged with non-felony offenses from the gross indignity of being strip searched upon entry to a correctional facility, absent reasonable suspicion that he or she harbors contraband, is a laudable litigation goal implicating major public policy concerns. And as to the last factor — the multi-million dollar recovery obtained and the concession of liability which remains in place as to the former class members' potential claims for special damages — that also has been taken into account by the Court in awarding what it believes to be a reasonable fee.
Notices were sent in November 2013 to class members of counsels' request for attorneys' fees in the amount of $5,754,000 and for $182,030.25 by way of reimbursement for costs and expenses incurred. Responses from seven class members were received, with the common theme being the position that the amount sought was excessive. Parenthetically, given the assumption voiced by counsel for plaintiffs and for defendants on a number of occasions that the expected claim rate by class members against the common fund will likely fall short of 50%, the funds paid to class counsel in all probability will not, as a practical matter, diminish the amount paid to individual class members. Instead, those payments will probably be disbursed from the unclaimed portion of the $11,508,000 total award. In any event, the Court has carefully considered the comments of each responding class member in fashioning its attorneys' fee award. However, the dollar amount of the award provided infra, and the reimbursement for costs and expenses, has not been effected.
Based on the total amount recovered on behalf of the class, considered in conjunction with (1) each of the previously discussed Goldberger factors, (2) the adjusted lodestar cross-check amount $3,963,145.00 (i.e. $3,072,205.50 unadjusted lodestar × 1.29 multiplier), and (3) percentages awarded in other instructive common fund cases, I find that a counsel fees award of $3,836,000 is reasonable. Accordingly, that sum is awarded to the five firms
Class counsel indicates that among the five firms representing the class, total fees and expenses of "$182,030.25" have been incurred. (Pls.' Mem. in Supp. at 22.) Neither the amount nor the items underlying that amount have been challenged, and the sums spent appear to have been necessary and reasonable.
"It is well-established that counsel who create a common fund ... are entitled to the reimbursement of [all reasonable] litigation costs and expenses." In re Marsh Erisa Litig., 265 F.R.D. 128, 150 (S.D.N.Y.2010). Accordingly, plaintiffs are awarded reimbursement in the amount requested, viz. $182,030.25.
Movants are awarded $3,836,000 in attorneys' fees and $182,030.25 for costs and expenses incurred for a total of $4,018,030.25.
The subject of service awards was discussed on several occasions over the years during status conferences. Indeed, the Court voiced the view during one such conference that it thought that class members who were deposed should receive $2500, those who testified $5000, and those who did both, $7500. (Jan. 13, 2012 Tr. at 19.)
In response to my service award comments, two noteworthy events occurred. Firstly, plaintiffs' counsel referred to the July 5, 2005, Stipulation of Settlement resolving "the three consolidated cases" brought by "ten individual plaintiffs" based on the strip searches in issue. As part of that agreement, defendants stipulated that "if the denial of class certification [was] reversed on appeal," as it was, "defendants [would] not oppose plaintiffs' right to ... (c) apply for compensation for their time and efforts as class representatives in an amount not to exceed $1,000 per class representative." (May 5, 2005 Stip. of Settlement at ¶ 7.)
The second happening of note was that defendants asked for, and were granted permission to brief the subject before my inclination materialized into an order. As a result, the Court received defendants' January 20, 2012 letter outlining their position that the sums mentioned by the Court were excessive, and plaintiffs' January 25, 2012 reply which concluded thusly: "[w]e respectfully reiterate our original request for $5,000 and $10,000 service incentive awards for deposed and testifying class members who were not named plaintiffs; if the Court is unwilling to grant them, there is certainly no legitimate reason to reduce further the Court's stated inclination to grant $2,500 and $5,000 respectively." (Pls.' Jan. 25, 2012 Ltr. at 5.)
As is evident from the foregoing, potential service award recipients fall into two categories: (1) those of the ten named plaintiffs who participated in the class action via being deposed, testifying at trial, or both; and (2) other class members who provided like services to the class.
Service awards are not uncommon in federal class actions. See Bellifemine v. Sanofi-Aventis U.S. LLC, 2010 WL 3119374, at *7 (S.D.N.Y. Aug. 6, 2010); Flemming, 56 A.D.3d at 166, 865 N.Y.S.2d 706 (discussing federal service award cases). The situation appears to be otherwise, however, in New York. See Flemming, 56 A.D.3d at 166-67, 865 N.Y.S.2d 706 ("New York law does not authorize incentive awards for named plaintiffs in class actions ... The Legislature did not statutorily provide for incentive awards when enacting CPLR Article 9, and we decline to create new law, leaving that policy determination within the purview of the Legislature");
Here, of course, the federal class action no longer exists as a result of this Court's Florence-based decision of July 18, 2013. Thus, state law on service awards controls. That change in the legal landscape, inter alia, caused me to rethink my initial, albeit tentative, view on the subject and to advise counsel on January 29, 2014 that I was "reserv[ing] decision" on plaintiffs' subject application. (Jan. 29, 2014 Tr. at 7:17-25.) In any event, plaintiffs' request for service awards for class members falling within categories "1" and "2" supra, are denied for the following reasons: (1) the dismissal of the federal constitutional claim leaving solely the state-based cause of action; (2) the apparent unavailability of such awards under New York law; and (3) the absence of any information from movants concerning the concomitant costs or consequences, if any, to those class members who were deposed or testified at trial, thereby precluding an appropriate evaluation of their services. See, e.g., Flemming, 56 A.D.3d at 166, 865 N.Y.S.2d 706 ("New York law does not authorize incentive awards for named plaintiffs in class actions. Federal Courts grant incentive awards where there are special circumstances, such as personal risk incurred by the plaintiff, exceptional time and effort expended in assisting class counsel, advancement of litigation expenses and acceptance of the risk of loss, or other similar burdens.") (internal citations omitted); In re Payment Card Interchange Fee and Merch. Disc. Antitrust Litig., 991 F.Supp.2d 437, 449, 2014 WL 92465, at *9 (E.D.N.Y. Jan. 10, 2014) ("Class Counsel are expected to provide, at a minimum, documentation setting forth the approximate value of each Class Plaintiff's claim and each one's proposed incentive award.")
Defendants' argument as to the captioned subject is, in toto, as follows:
(Defs.' Br. in Opp'n at 13.)
Plaintiffs' response is twofold: (1) defendants have made no showing that the statute of limitations on New York State Constitutional claims under Article I, Section 12 are not subject either to the three year statute of limitations for personal injury under CPLR 214 — the limitations statute from which the federal statute of limitations for § 1983 cases was derived, or the residuary six year statute of limitations of CPLR 213(1) (Pls.' Reply at 9 (citations omitted)), and (2) "even if arguendo defendants could show that the statute of limitations was less than three years, the statute of limitations defense is an affirmative defense that was waived, when defendants failed to raise it and conceded liability on the state law claim for the entire class 10 years ago." Id.
Plaintiffs' second point is dispositive and thus the identification of the applicable statute of limitation is purely academic and need not be resolved. As plaintiffs note, defendants conceded liability in early 2003. See, e.g., In re Nassau Cnty. Strip Search Cases, 461 F.3d at 224. That concession contained no limiting language or conditions. It pertained to both the now dismissed first cause of action alleging a Fourth Amendment federal violation, as well as the second and sole remaining cause of action charging a violation of Article 1, Section 12 of the State Constitution.
In addition, a perusal of defendants' answer to the original complaint, as well as their later response to plaintiffs' amended complaint, discloses the total absence of any reference to General Municipal Law 50-i(1) or to any other state or federal statute of limitations. Simply put, that affirmative defense was never asserted.
Defendants' cryptic argument in support of the relief requested neglects to mention, no less address either (1) the 2003 concession of liability underscored by plaintiffs, or (2) the absence of a statute of limitation defense in their original or amended answer. Perhaps that is not surprising in that each of the two occurrences gave rise to a waiver of the affirmative defense, thereby derailing as a matter of law defendants' "eleventh hour" effort to reconfigure the temporal component of the class definition.
It is obvious that the 2003 concession of liability constitutes a waiver because by its very nature it disavows the defense of a time bar. And defendants' failure to include the subject affirmative defense either in a CPLR § 3211(a)(5) motion to dismiss or in their answer — instead broaching it post-concession and after the general damages trial — similarly constitutes a waiver. Augenblick v. Town of Cortlandt, 66 N.Y.2d 775, 777, 497 N.Y.S.2d 363, 488 N.E.2d 109 (1985) ("Respondents waived their statute of limitations defense by failing to plead it in their answer or by appropriate motion"); see also Robinson v. Canniff, 22 A.D.3d 219, 220, 801 N.Y.S.2d 597 (1st Dep't 2005); Mendez v. Steen Trucking, Inc., 254 A.D.2d 715,
In sum, defendants' claim that the class must be redefined given the dismissal of the federal constitutional cause of action is unconvincing. Defendants fail to explain how that dismissal somehow affects the state law of waiver vis-a-vis affirmative defenses. In the Court's view, the two subjects are wholly distinct.
For the reason indicated: (1) the attorneys for the plaintiff class are awarded $3,836,000 in counsel fees, plus reimbursement for litigation expenses in the amount of $182,030.25, for a total of $4,018,030.25 and (2) their application for service awards is denied.
Defendants' application to redefine the class is denied.
SO ORDERED.
