RAYMOND J. DEARIE, District Judge.
This motion for attorneys' fees and costs arises out of a 1972 class action ("Willowbrook Litigation") related to the deprivation of basic rights, including unclean and unsafe living conditions, of individuals with intellectual and developmental disabilities housed at the Willowbrook State Developmental Center in Staten Island, New York. The litigation resulted in a 1975 Consent Judgment, which was replaced in 1993 by a Permanent Injunction ("Injunction"). The Injunction provided for, inter alia, legal services for members of the Willowbrook class, compliance monitoring, and attorneys' fees and costs related to monitoring and enforcement of certain terms of the Injunction. After years of resolving fee disputes without court intervention, the parties have reached an unprecedented impasse. Plaintiffs' counsel now bring the instant motion for attorneys' fees and costs dating back to 2012, which the Court grants, subject to a number of modifications discussed herein.
The facts surrounding the Willowbrook Litigation and the conditions that prompted the litigation are set forth in a number of prior opinions and the Court assumes familiarity with those facts.
Plaintiffs' counsel also perform an advocacy role for the Willowbrook class pursuant to the terms of the Injunction. Counsel ensure class members receive notice with respect to any changes in placement or programming and review grievances and incident reporting with respect to Injunction compliance. Plaintiffs' counsel consists of attorneys from the New York Civil Liberties Union ("NYCLU") and New York Lawyers for the Public Interest ("NYLPI"). NYPLI "takes the lead role on due process notices" and NYCLU "addresses protection from harm issues," "guardianship matters, end of life issues, medical consent issues . . . research initiatives" as well as "regulatory initiatives, legislative enactments and programmatic initiatives issued by the New York State Department of Health and/or the . . . OPWDD." Haroules Decl., ECF No. 127, ¶¶ 19, 54. NYCLU has represented Plaintiffs since the litigation began in 1972. NYLPI has worked with NYCLU as co-counsel since 1995. Though the parties dispute the precise number of class members remaining, at the time of the 1993 Injunction Plaintiffs' counsel represented close to 6,000 class members; a little over one-third of those class members are alive today. Haroules Decl., ECF No. 127, ¶ 8; Baer Decl., ECF No. 131, ¶ 12.
For many years the parties resolved attorneys' fee disputes without court intervention. A review of the electronically-available docket going back to 1997 reveals close to 20 so-ordered stipulations and orders of settlement related to attorneys' fees and costs. Defendants, while noting the shrinking size of the Willowbrook class, at this juncture have nevertheless been willing to reimburse Plaintiffs' counsel for an expansive monitoring and consultation role with OPWDD for over 15 years. Now, however, Defendants claim Plaintiffs' counsel (i) bill at excessive hourly rates, (ii) engage in vague and duplicative block billing, and (iii) submit fee demands with unwarranted delay, undermining Defendants attempts to accurately verify time entries. Defendants ask the Court to order Plaintiffs' counsel submit fee demands at regular intervals—at least every six months. Defendants also assert that fee demands should have been made and should now be made in accordance with Fed. R. Civ. P. 23(h), which requires any notice of motion for fees be "directed to class members in a reasonable manner," in the Court's discretion, such that class members have an opportunity to object. Plaintiffs, on the other hand, move for attorneys' fees from 2012 through 2019 claiming that counsel performs "critical post-judgment work," requiring sophistication, skill and in-depth institutional knowledge and note that Fed. R. Civ. P. 23(h) is inapplicable because counsels' fee applications are not related to a large class financial settlement in which counsel would be entitled to a portion of settlement funds available to class members. Specifically, Plaintiffs request attorneys' fees and costs in the amounts of $3,789,386.39 for NYCLU, $124,140 for NYLPI and $88,137.50 for the law firm of Kasowitz, Benson and Torres LLP ("the Kasowitz firm"), retained specifically to prepare Plaintiffs' fee application. The requested fee award is based on Southern District of New York ("SDNY") hourly billing rates between $525 and $600 for attorneys from NYCLU and NYLPI and between $300 and $925 for attorneys from the Kasowitz firm, and accounts for almost 7,000 hours of time over seven years, including over 200 hours spent preparing this fee application.
In evaluating a motion for attorneys' fees, the Court is tasked with determining a "reasonable," fee, taking into account reasonable hourly rates multiplied by the "reasonable" number of hours worked.
To determine an attorney's appropriate billing rate, the Second Circuit applies the "forum rule." The forum rule articulates a rebuttable presumption that "courts should generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee."
To rebut the forum rule presumption, the moving party must make a "particularized showing" demonstrating "the likelihood that the use of in-district counsel would have produced a substantially inferior result,"
The hourly billing rate must also take into account (i) the complexity and difficulty of the case, (ii) the available expertise and capacity of the client's other counsel (if any), (iii) the resources required to effectively prosecute the case (taking into account the resources marshaled by opposing counsel, without endorsing scorched earth tactics), (iv) the timing demands of the case, (v) whether an attorney might have an interest, independent of her client, in achieving the ends of the litigation or might initiate the representation herself, (vi) whether an attorney might have initially acted pro bono, such that the client might be aware the attorney expected low or non-existent remuneration, and (vii) other returns, including reputation, that an attorney might expect from the representation.
Plaintiffs' counsel argues the Court should apply prevailing market rates from the Southern District of New York ("SDNY") because "[i]t would be difficult, if not impossible, to find a law firm or group of lawyers practicing solely within the Eastern District with the combination of constitutional expertise, monitoring experience, and resources to have prosecuted a disability law case as complex and demanding as this action, and to have continued to monitor the Permanent Injunction for so long with such skill and expertise." Pls.' Br., ECF No. 126, at 12. Defendants, however, contend that the forum rule must be applied because Plaintiffs' counsel has not overcome the "strong" forum rule presumption by "persuasively establish[ing]" out-of-district counsel was "likely" to "produce a substantially better net result." Defs.' Br., ECF No. 130, at 9. For example, Defendants point out that at present, this case "involves very little litigation and largely consists of corresponding and conferring with OPWDD and multiple other monitors of the Willowbrook class" and Plaintiffs' contention that no in-district law firm or public interest organization could effectively monitor this case is "mere conjecture" insufficient to overcome the forum rule presumption.
Plaintiffs' counsel, indisputably, has significant skill and expertise with respect to the subject matter of this litigation and is uniquely positioned to effectively and efficiently enforce the Injunction and monitor the OPWDD's own enforcement efforts. However, the Court must also account for the nature of the work counsel has performed during the period covered by the fee application, not the considerably more extensive work counsel performed decades ago, including overseeing the development of the OPWDD infrastructure that exists today. These factors, which are essentially ignored by Plaintiffs, sway in favor of the forum rule presumption because they undermine Plaintiffs' position that their work is so specialized and unique, no in-district attorney is qualified to do it.
Two recent attorneys' fee applications from this District awarding out-of-district rates illustrate the "difficult standard" confronting attorneys who wish to rebut the forum rule presumption. In
Similarly, in
Despite their expertise and institutional knowledge, Plaintiffs' counsel in this case has not made the requisite showing to rebut the forum rule presumption. Instead, Plaintiffs do not provide "sufficient evidence" that no attorneys in this district possess such skill.
Moreover, Plaintiffs' counsel does not have "a monopoly" on disability-rights law like counsel in
Plaintiffs argue that even if the Court declines to award out-of-district rates, their requested hourly rates nevertheless fall within the accepted range of rates for the Eastern District, particularly in light of counsels' extensive experience and the complexity of this case. Defendants disagree, and argue for a substantial reduction in billing rates. Of course, both sides cherry pick case citations depending upon their "magic number.
Viewed in light of prevailing market rates in this district for cases requiring comparable levels of experience and expertise, Plaintiffs' proposed rates are too high, and Defendants' counter is too low; however, the Court concludes that rates approaching Plaintiffs' proposal are more appropriate in this case. On the one hand, even though the day-to-day tasks involved in this litigation are not exceedingly complex, that is largely due to the fact that they are performed by attorneys with significant experience who are able to capitalize on their institutional knowledge and efficiently execute Injunction enforcement and compliance tasks. Counsel should be compensated for that experience and knowledge.
Ultimately, counsels' subject-matter expertise and vast institutional knowledge persuade the Court that a billing rate on the higher end of the spectrum in this District is warranted, and counsels' independent interest in the litigation and delay in submitting a fee application only sway the pendulum marginally in Defendants' favor. Ms. Haroules is entitled to a $500 rate, Ms. Laplace is entitled to a $425 rate, Ms. Mueller is entitled to a $450 and Ms. Mendez is entitled to a $100 rate. These rates are consistent with those prevailing in this district for attorneys with similar experience, and reduced slightly to account for the delay, of Plaintiff's own creation, in requesting fees.
Attorneys applying for court-ordered compensation "must document the application with contemporaneous time records . . . specifying, for each attorney, the date, the hours expended, and the nature of the work done."
To the extent the Court finds certain hours billed are "excessive, redundant or otherwise unnecessary," or where documentation supporting hours billed is "vague or incomplete," the fee award may be reduced accordingly.
Plaintiffs seek compensation for approximately 6,700 hours of work between 2012 and 2019 performing monitoring and enforcement tasks on behalf of the Willowbrook class pursuant to the terms of the Injunction—6,400 hours of work performed by NYCLU and just under 300 hours of work performed by NYLPI. Plaintiffs contend these hours are reasonable in light of the directives set out by the Injunction, and that their supporting documentation is contemporaneous and of sufficient detail. Specifically, Plaintiffs note that in recent years, OPWDD, the state agency counsel are charged with monitoring, has seen a number of "highly experienced and knowledgeable staff' retire and experienced significant turnover. Pl. Br, ECF No. 126, at 22. Accordingly, Plaintiffs explain counsel are "repeatedly called upon" by Defendants "to educate new state employees and provider agencies on issues relating to Willowbrook entitlements and Plaintiffs' compliance rights" and counsel "have also been invited to comment on and/or craft regulatory and programmatic initiatives that are vital to OPWDD."
Defendants claim Plaintiffs' counsel attempts to bill the state for any work "even tangentially relate[d] to their representations of the Willowbrook class, as well as activities and tasks that are simply not contemplated or required by the Permanent Injunction," including "attendance or participation in public conferences, webinars, and forums," "providing testimony and public comments on OPWDD initiatives and programs" and tasks "independently undertaken in an unsolicited effort to policy agency operations." Defs.' Opp. Br., ECF No. 130, at 16-17. Though Defendants include ample citations to counsels' billing records which it claims reference work falling outside the scope of the Injunction, Defendants do not explain why such work is inconsistent with the role of counsel envisioned by the Injunction. Plaintiffs claim counsels' billing records "reflect[] work done together with, or at the behest of, OPWDD." Pls.' Reply Br., ECF No. 133, at 9. To this end, Ms. Haroules submitted two detailed declarations describing recent changes to the OWPDD services delivery system and counsels' need to participate in briefings and submit comments related to those changes in order to ensure "that the entitlements of the Willowbrook class members are protected in whatever new system is developed." Haroules Reply Decl., ECF No. 134, ¶ 15. Moreover, Ms. Haroules explains that Defendants' attempt to take issue with Plaintiffs' efforts to "police agency operations" is improper because "[t]he entire structure of the Injunction vests Plaintiffs' Counsel with that obligation . . . insofar as the `policing' related to the rights and entitlements of the Willowbrook class under the Injunction."
Ultimately, this dispute bears on whether Plaintiffs' counsel has, as Defendants argue, overstayed their welcome to audit, monitor and enforce OPWDD's efforts to implement the terms of the Injunction. Notwithstanding numerous settlement attempts with respect to this issue, none have successfully resolved the status of Plaintiffs' counsels' audit work. However, that issue is not before the Court and the Court must instead determine whether counsels' billing entries reflect a reasonable amount of billable time in light of the actual litigation position between the parties from 2012 to 2019. Accordingly, Defendants' argument that counsels' hours must be reduced to reflect significant work performed outside the scope of the Injunction is unavailing, with one exception. Work providing comment and input on changes to OPWDD services that will affect the entitlements of the Willowbrook class and monitoring other OPWDD activities to ensure compliance with the Injunction fall squarely within the purview of the Injunction. However, the Court agrees that time spent attending certain "public conferences, webinars, and forums" is, in some cases, too tangentially related to Injunction monitoring and enforcement work, and therefore should not always be compensable. The Court will factor this deduction into its across-the-board deduction, discussed below.
Defendants also complain that Plaintiffs' counsel "billed an excessive amount of time for conferring with each other" without any "particularized explanation as to why these duplicative efforts were necessary" or otherwise "justify billing by multiple lawyers." Defs.' Opp. Br., ECF No. 130, at 18. However, Plaintiffs contend, and the Court agrees, that this matter has been staffed leanly, with only two attorneys from NYCLU and one attorney for NYLPI, reducing the incidence of duplicative billing. Indeed, Courts often make fee reductions to reflect what billable hours would have been had the case been leanly staffed.
Defendants next argue that the "proliferation of vague billing entries" warrants a fee reduction and point to a number of entries referencing indecipherable abbreviations and acronyms and sparsely described activities and tasks.
Plaintiffs' key only goes so far. The Court agrees that even with the key, a number of billing entries are too vague for the Court to ascertain whether counsels' time was reasonably spent. For instance, counsel cannot bill for a "call amongst plaintiffs' counsel" without identifying the nature and purpose of the call, nor can counsel bill for "review/comment materials" without specifying the materials or issues warranting review and comment. These vague entries do not plague all of Plaintiffs' billing records, but they do appear enough times to warrant a deduction in hours. Relatedly, the vague nature of a number of billing entries do not make it possible for the Court to confirm that, for example, Ms. Haroules "bill[s] largely for transactions that consume some significant amount of time," as she states in her declaration. Haroules Reply Decl. ¶ 43. A modest deduction is warranted to account for counsels' vague billing entries.
Finally, Defendants ask the Court to "reduce fees based on NYCLU's rampant use of block billing" which "render it impossible to determine the reasonableness of the time expended on any individual task." Defs.' Opp. Br., ECF No. 130, at 20-21. Plaintiffs respond that their block-billed entries "amply satisfy standards established in the Second Circuit" and note that in the majority of instances where counsel submitted a single entry for more than five hours on a particular day, OPWDD should be able to understand how those hours were spent because counsel was either "(i) engaged in meetings or court proceedings with Defendants, (ii) covering court proceedings where OPWDD declined to participate to ensure Willowbrook class members' rights and entitlements were protected, or (iii) engaged in drafting court pleadings, regulatory comments and demand letters, all of which were shared with or directed at OPWDD." Haroules Reply Decl., ECF No. 134, ¶¶ 42-45.
Block billing is disfavored because it can cloud the court's ability to assess whether counsels' time expenditures were reasonable. However, in this case, counsels' entries often list out discrete tasks, even if those individual tasks might, at times, be vaguely described. Though all of counsels' tasks for a particular day are contained within a single billing entry, the Court concludes that the tasks are broken out within that entry to a sufficient degree, and thus counsels' block billing practices do not warrant a fee reduction.
Overall, a 10% deduction of Plaintiffs' requested fees for monitoring and enforcement work is appropriate in light of the incidence of vague billing entries and, relatedly, billing for activities that are not clearly germane to the enforcement and monitoring activities contemplated by the Injunction. This results in a fee award of $2,773,152.90 to NYCLU and $104,283 to NYLPI.
NYCLU requests costs in the amount of $3,985.70 for some, but not all, of the costs incurred over the last seven years, including conference calls, shipping, PACER and other court fees, as well as certain travel expenses. Pls.' Br., ECF No. 126, at 23-24. However, Defendants argue that because Plaintiffs "merely provide[] general ledger reports of expenses allegedly incurred," such reports do not constitute adequate documentation to establish whether a charge is reasonable. Defendants would prefer Plaintiffs submit the underlying invoices. Defs.' Opp. Br., ECF No. 130, at 21-22.
Notwithstanding the fact that Defendants may have accepted general ledger reports as acceptable documentation of costs in the past, this Circuit requires the party seeking costs provide "adequate documentation of costs incurred."
Here, Plaintiffs have at least provided the dates on which expenses were incurred rather than the lump sum format submitted in
Plaintiffs also request "fees on fees"—fees for the time spent preparing and litigating this fee application—to the tune of $120,680. Specifically, Plaintiffs request $88,137.50 for the Kasowitz firm, retained, on a pro bono basis, for the sole purpose of preparing this application, and $32,542.50 for attorneys from NYCLU and NYLPI for a total of 227 attorney hours. Defendants contend that the requested fees must be dramatically reduced "to no more than 30 hours, which is the maximum number generally approved for preparing fee applications." Def. Br., ECF No. 130, at 24.
Plaintiffs are entitled to "a reasonable fee for preparing and defending" a fee application where "underlying costs are allowed."
In general, hourly billing rates for fees on fees litigation should reflect the billing rates of the underlying fee litigation.
The hourly rates requested by counsel in this case and number of hours spent preparing the fee application far surpass the realm the of reasonableness.
Plaintiffs' fees on fees application seeks payment for hours billed by one partner, Mr. Abrams, with just under thirty years of experience (28.3 hours at $925 per hour), one senior-level associate, Ms. Roberts, (48.7 hours at $500 per hour), one mid-level associate, Ms. Cusick, (92.6 hours at $400 per hour), and one junior-level associate, Mr. Intravatola, (1.9 hours at $300 per hour). In order to "match the rates" the Court has calculated for the "underlying action," Mr. Abrams is entitled to a $500 hourly rate, Ms. Roberts is entitled to a $325 rate, Ms. Cusick is entitled to a $300 rate, and Mr. Intravalota is entitled to a $250 rate. The hourly rates for Ms. Haroules and Ms. Mueller will be the same as they are in the underlying action—$500 and $450, respectively. These fees are similar to those recently awarded in a variety of cases litigated in this district and appropriately reflect the experience of counsel as well as the relatively straightforward, albeit tedious, work involved in preparing a fee application.
With respect to the number of hours billed in preparing the fee application, the amount reported by the Kasowitz firm is well above the norm and replete with examples of redundant billing, inefficiencies and overstaffing. Most notably, the billing records for Ms. Roberts and Ms. Cusick reveal a number of overlapping and vague time entries and reflect duplicative work. To the extent Ms. Roberts and Ms. Cusick performed different work or focused on different sections of the fee petition, it would be impossible to discern from the vague time entries submitted.
For example, on February 5, 2019 Ms. Roberts billed 5.4 hours to "review and revise draft fee petition" and the very same day Ms. Cusick billed 7.5 hours to "draft and revise fee petition." Again, on February 7, 2019, Ms. Roberts billed 4.2 hours to "revise fee petition" and Ms. Cusick billed 5.1 hours to "revise sections of fee petition." And, on February 11, 2019, Ms. Roberts billed 1.2 hours to "review comments and edits made by co-counsel" while Ms. Cusick also billed 1.2 hours to "review co-counsel's edits." Though Ms. Roberts, who is several years Ms. Cusick's senior, billed relatively fewer hours, there are nevertheless too many instances of duplicative work in the billing records. The Court thus finds that a 50% hours reduction across Ms. Roberts and Ms. Cusick's total hours is appropriate.
In general, Mr. Abrams' billing records reflect fewer redundancies; however, there are several instances of duplicative billing warranting a reduction in hours. For instance, on the same day Ms. Roberts apparently spent 5.4 hours to "review and revise the draft fee petition" and Ms. Cusick spent 7.5 hours to "draft and revise fee petition," Mr. Abrams also spent 1.7 hours to "review and revise" the petition. The following day, Mr. Abrams spent an hour reviewing brief revisions whereas Ms. Roberts spent 4.6 hours and Ms. Cusick spent 5.5 hours performing the same task. Though the Court appreciates the need for supervising attorneys to review important court submissions, these time entries reveal clear overbilling. Accordingly, Mr. Abrams's hours will be reduced by 40%, resulting in 16.98 hours at $500 an hour totaling $8,490.
Mr. Intravatola billed 1.3 hours and .6 hours over the course of two consecutive days researching "attorneys' fees in recent EDNY cases." On at least one of those days, Ms. Cusick also spent 1.5 hours performing legal research on the fee petition. The Court concludes that Plaintiffs are not entitled to recover fees for Mr. Intravatola's limited research. Not only was Mr. Intravatola not admitted to practice at the time he performed such work, but based on the vague billing entries, his work was duplicative of the work performed by Ms. Cusick.
Ms. Haroules spent 53.1 hours and Ms. Mueller spent 14.4 hours on this fee application. Overall, Ms. Mueller's time entries relating to the fee application reflect sound billing judgment, specifically tailored to reviewing her own declaration and some additional, limited time reviewing the brief as a whole. No deduction in hours is warranted for Ms. Mueller and she is thus entitled to her requested 14.4 hours at $450 per hour, totaling $6,480.
Ms. Haroules submitted several lengthy declarations in support of this fee application which surely required substantial work and review, capitalizing on her significant institutional knowledge as reflected by her billing records. However, Ms. Haroules's records also reflect a number of vague, block-billed entries for "attention to fee app," making it difficult for the Court to determine how Ms. Haroules's review differed from that of her NYLPI colleague Ms. Mueller or Mr. Abrams of the Kasowitz firm. Accordingly, the Court finds that a 30% deduction in Ms. Haroules's hours is warranted to account for large number of vague entries and entries overlapping with work performed by the Kasowitz senior attorneys on the fee application. Reducing Ms. Haroules's hours by 30% yields 37.17 hours at $500 per hour, totaling $18,585.
The Kasowitz firm is therefore awarded $30,293.75 in fees for preparing the fee application, NYLPI is awarded $6,480 and NYCLU is awarded $18,585 for their work in preparing the fee application.
Finally, Defendants ask the Court to "direct Plaintiffs' Counsel to submit fee demands to Defendants' Counsel bi-annually, in June and December each year," and "[i]n compliance with Rule 23(h)(1) . . . provide notice of this and future motions for attorneys' fees and costs to class members." Defs.' Br., ECF No. 130, at 24-25. In response, Plaintiffs argue Fed. R. Civ. P. 23 does not require notice of a fee application related to post-judgment monitoring and enforcement be provided to class members because the fee request is not tied to any funds that would otherwise be made available to class members. Pl.Reply Br., ECF No. 133, at 9-10. With respect to the timing of Plaintiffs fee demands, Plaintiff notes it would be amenable to an annual submission of fee demands but contends that bi-annual fee demands would constitute an excessive administrative burden.
Plaintiff argues that should the Court conclude notice is necessary, OPWDD should be required to pay for any associated costs because "OPWDD has sole possession of all relevant information about the class necessary to effectuate notice." Pls.' Reply Br. ECF No. 133, at 10. Waiting for OPWDD to transfer the pertinent notice information to counsel would be inefficient and unnecessarily costly. Thus, requiring OPWDD to pay for and provide such notice would effectuate notice in a "reasonable manner" as required by Rule 23(h).
Plaintiffs' motion for attorneys' fees is granted, subject to the modifications discussed above and reflected in Appendix A. NYCLU counsel is awarded $2,791,737.90 and NYLPI counsel is awarded $110,763 for monitoring and enforcement work as well as the time spent preparing this fee application. NYCLU may recover $3,587.13 in costs. The Kasowitz firm is awarded $30,293.75 for its work preparing the fee application. Moving forward, with the assistance of OPWDD, class members must be provided notice of any fee application pursuant to Fed. R. Civ. P. 23(h), and Plaintiffs' counsel is required to submit fee requests on an annual basis.
SO ORDERED.
