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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK ____________________________________________________
ANNE POPE, JANIS GONZALEZ, WANDA WILLINGHAM,
GERALDINE BELL, SAMUEL COLEMAN, LEE PINCKNEY,VICENTE ALFONSO AND ELAINE FRAZIER,
Plaintiffs,Index No.: 1:11-cv-0736
(LEK/CFH)
-against-
COUNTY OF ALBANY AND THE ALBANY COUNTY
BOARD OF ELECTIONS,
Defendants. ____________________________________________________
DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES AND COSTS
ALBANY COUNTY DEPARTMENT OF LAWThomas Marcelle, Esq.
Bar Roll No. 117102
Of counsel: Albany County Attorney
Department of LawAdam Giangreco, Esq. 112 State Street, Suite 1010
Albany, New York, 12207
MURPHY, BURNS, BARBER & MURPHY, LLP
Peter G. Barber, Esq.
Bar Roll No. 301523226 Great Oaks Boulevard
Albany, New York, 12203
Telephone: 518-690-0096Telefax: 518-690-005
Attorneys for Defendants
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PRELIMINARY STATEMENT
The question before the Court is this: Are Gibson, Dunn & Crutcher LLP (“Gibson”) and
DerOhannesian & DerOhannesian (“D&D”) entitled to an amount of compensation over 40
times greater than that previously awarded by this Court for prosecution of a nearly identical
action against the County. The answer is no. The Court should deny plaintiffs’ unprecedented
request, either in whole or in part, for four reasons.
First, the over seven million dollar fee request deviates so significantly from what the
Judges of this Court have deemed reasonable for a civil trial that plaintiffs’ request should be
deemed on its face outrageously unreasonable. The burden rests with plaintiffs to document a
reasonable attorney’s fee and not saddle the County, and ultimately this Court, with the burden
of sifting through nearly a thousand-page application to ferret out properly documented time
entries and set a reasonable fee. In such a situation as this, the Court can and should “consider
the fee request … so outrageously unreasonable that outright denial of the request … would be
appropriate.” LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 906 (D.C. Cir. 1998).
Second , Gibson is not entitled to exorbitant NYC rates (at an average rate of $1,174 per
hour) for lead attorney Mitchell Karlan because it failed to show (1) that local counsel D&D and
its lead attorney, Paul DerOhannesian II lacked the experience necessary to prosecute this action
and (2) that plaintiffs’ exclusive retention of D&D would have produced a substantially inferior
result. Osterweil v. Bartlett , 2015 WL 1066404, at *5 (N.D.N.Y. Mar. 11, 2015). Nor can
grotesque fees serve as punishment - the “award of counsel fees is not intended to punish the
defendant in any way,” Milwe v. Cabuoto, 653 F.2d 80, 84 (2d Cir. 1981), and the Court noted
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that the County has made “laudable progress to address racial disparities in the County,” Pope v.
County of Albany, --- F. Supp. 3d ---, at *1 (N.D.N.Y. 2015).
Third , the Second Circuit’s factors for analyzing a request for attorneys’ fees - including
D&D’s familiarity with the substance of this dispute, D&D’s expertise in redistricting matters,
Plaintiffs’ scorched earth tactics, and the reputational, training, and other collateral benefits that
Gibson acquired from this matter--establish that the requested rates are unreasonable. See Arbor
Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d Cir. 2008).
Fourth, Gibson’s and D&D’s time records reflect numerous unsupportable billing
practices that justify a 90 plus percent across-the-board reduction in hours billed. For example,
Vague descriptions for work that make it impossible to determine what was doneand whether it was reasonable.
Full attorneys’ fees for work that should have been performed by clerical staff.
Thousands of dollars for nothing more than meeting with other firm members.
Multiple unjustified charges for duplicative work (e.g., overstaffing almost everyconference and deposition).
Travel time billed at full rate with no indication that work was performed.
Numerous erroneous entries for matters completely unrelated to this litigation.
1
Block billing that obscures the time spent on specific tasks they performed -making it impossible to evaluate the reasonableness of their time.
In sum, even if this Court excused plaintiffs’ false and inaccurate records, a reasonable
fee should be measured only by the fees properly requested and supported in their bills.
POINT I
THE APPLICATION SHOULD BE DENIEDAS PATENTLY EXCESSIVE IN ALL MATERIAL RESPECTS
1 For the Court’s convenience and if the Court desires, the County offers the services of the CountyComptroller or District Attorney to assist with a forensic audit of the submitted bill.
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Federal courts have discretion to deny attorneys' fees applications where the application
is “obviously inflated to an intolerable degree.” Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.
1980). Plaintiffs’ multi-million dollar fee application is intolerably inflated. Plaintiffs billed
hundreds of thousands of dollars for training young litigation associates, excessive charges for
overstaffing and duplicative work, intra-office conferences, travel time, and routine
administrative tasks, and by careless block billing for hundreds of thousands of dollars in fees.
See Point II. Plaintiffs’ requested fee is grossly disproportionate to the fee awards in this Court.
See Appendix 1 to this Memorandum of Law.2
Additionally, the fee application bears several indicia of bad faith. Plaintiffs knew and
were told last litigation they were not entitled to out-of-district rates. Nevertheless, plaintiffs
argue that the County should be saddled with an inflated legal bill as a form of punishment. See
Pls.’ Mot. at 1. Plaintiffs understands this argument to be impermissible -- the “award of counsel
fees is not intended to punish the defendant in any way.” Milwe, 653 F.2d at 84.3 A naked bad
faith demand for an out-of-district rate does not become a good faith demand by veiling it in a
frivolous argument. Second, plaintiffs submitted a 900 page bill that contains entries that are the
result of either unprofessional sloppiness or an effort to conceal improper and illegal billing
practices. Secreted within the massive document are charges for thousands of dollars in
unrelated cases and charges for travel time at the full hourly rate in violation of the law of this
2 Appendix 1 represents a diligent search of fee awards in the Northern District for civil rights cases.
Normal fee requests seldom rise above $250,000 to take a case from pleading to summary judgment totrial (including an occasional interlocutory appeal) in the Northern District of New York. The averageaward is much smaller. A reasonable plaintiff would expect to pay at the most no more than $240,000 forthe legal services rendered in this case.
3 This Court noted that the County has made “laudable progress to address racial disparities in theCounty,” Pope v. County of Albany, -- F. Supp. 3d --, at *1. Moreover, fee awards “should not serve as avehicle to charge exorbitant fees and such excessive fees should not act to chill good faith defenses toclaims brought under the Civil Rights Act.” Jaquette v. Hawk County, 710 F. 2d 455, 463 (8th Cir. 1983).
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Court that has been established for nearly two decades. Delancett v. Village of Saranac, 986
F.Supp. 126, ) (NDNY 1997); Ferran v. Town of Grafton, No. 90-CV-155 (FJS), 1998 WL
295674, at *2 (N.D.N.Y. 1998).
Striking the entire fee or a fee of an individual attorney is an appropriate remedy within
the Court’s arsenal to combat the misuse of fee applications. See Environmental Defense Fund,
Inc. v. Reilly, 1 F.3d 1254, 1258-60 (D.C. Cir. 1993). Under these circumstances, courts have
rejected inflated fee applications. Stackler, 612 F.2d at 1059.
What the County seeks may seem harsh and it is certainly done with grave caution and
reticence. However, in the rare case, such as this, where the misuse of billing practices deviates
beyond all known precedent, to treat and examine with solemnity such an extreme request would
encourage a claimant to make unreasonable demands -- knowing that the only unfavorable
consequence of such conduct would be reduction of their fee to what they should have asked for
in the first place. To discourage such greed, especially by sophisticated counsel, a severe reaction
unfortunately is needed and indeed justified.4 See Lewis, 944 F.2d at 958 (noting that
“Appellant’s counsel submitted a claim which was so intolerably inflated that the District Court
was warranted in departing from the usual practice and reacting vigorously to prevent such abuse
of the court’s authority to award reasonable compensation to counsel”).
POINT II
HOURLY RATES ARE UNREASONABLE AND SHOULD BE REDUCED
As the moving party, Plaintiffs “bear[] the burden of documenting . . . [their] reasonable
hourly rates.” Hines NYLJ 1202659661779 at *8. Plaintiffs have not met this burden: D&D’s
4 No reply is allowed under the rules nor should one be granted in this case. Local Rule 7.1(b)(2). Plaintiffhad a full and fair opportunity to present a reasonable fee for the purpose of a good faith discussion – theychose not to. They should not be able to employ an inflated fee as a diversionary tactic to get a second bite of the apple – their request is their request.
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hourly rates exceed those customarily awarded in this district for civil rights actions, while
Gibson’s rates (ranging from $416 to $1,174 per hour) are unprecedented. Plaintiffs’ requested
hourly rates must be reduced to no more than $275 for Karlan and DerOhannesian; $210 for
other partners; $150 for senior associates; $120 for junior associates; and $80 for paralegals.
Osterweil, 2015 WL 1066404, at *7 (awarding $300 per hour to the 43rd Solicitor General of the
United States in a civil rights matter); Arbor Hill Concerned Citizens Neighborhood Ass’n v.
County of Albany, 419 F. Supp. 2d 206, 211 (N.D.N.Y. 2005), aff’d , 522 F.3d 182, 184 (2d Cir.
2008) (awarding $210 per hour for experienced attorneys, $150 for senior associates, $120 for
junior associates, and $80 for paralegals in a nearly identical VRA matter against the County).
A. The Forum Rule Bars Gibson from Collecting Its Usual NYC Rate.
The Second Circuit has held that “when faced with a request for an award of higher out-
of-district rates, a district court must first apply a presumption in favor of application of the
forum rule” - that is, the principle that “courts should generally use the hourly rates employed in
the district in which the reviewing court sits in calculating the presumptively reasonable fee.”
Simmons v. New York City Transit Auth., 575 F.3d 170, 174, 175 (2d Cir. 2009).
To rebut this presumption, “a litigant must persuasively establish that a reasonable client
would have selected out-of-district counsel because doing so would likely (not just possibly)
produce a substantially better result. In determining whether a litigant has established such a
likelihood, the district court must consider experience-based , objective factors,” including
“counsel’s expertise in litigating the particular type of case.” Id. at 175-76 (emphasis added);
see Osterweil, 2015 WL 1066404, at *5 (To receive out-of-district rates, a party must “make a
particularized showing, not only that the selection of out-of-district counsel was predicated on
experience-based, objective factors, but also of the likelihood that use of in-district counsel
would produce a substantially inferior result.”). Plaintiffs failed to make this showing.
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First , objective factors establish that local counsel D&D’s expertise in litigating VRA
cases actually surpasses that of Gibson. For example,
Election law is a cornerstone of D&D’s business, and D&D holds itself out to be a
specialist in such matters. Marcelle Decl., Exh. 1 (“At DerOhannesian &DerOhannesian, we work hard to uphold New York State voters’ rights and ensureadherence to local and state election administration process. When rights and process areviolated, we staunchly defend them. Our firm also works with clients to challengeredistricting initiatives . . . and other elements of election law.”); see also Pls.’ Mot. at 10(“D&D’s legal services were integral to [sic] success of this case . . . .”).
DerOhannesian has litigated at least three other VRA actions, including a priorredistricting suit against the County (DerOhannesian Decl. ¶ 8), while Karlan haslitigated just two prior VRA cases - only one involving redistricting (Karlan Decl. ¶ 24).
DerOhannesian is more senior than Karlan. Cf. DerOhannesian Decl. Exh. A (graduatedlaw school in 1978), with Karlan Decl., Exh. 2 (graduated law school in 1979).
Second , courts exercise particular caution in VRA matters to “ensure that the attorney
does not recoup fees that the market would not otherwise bear” because “a plaintiff bringing suit
under the [VRA] … has little incentive to negotiate a rate structure with his attorney prior to
litigation.” Arbor Hill, 522 F.3d at 184.
Indeed, when deciding a prior suit involving the same law firms, the same substantive
issues, the same experts, and the same defendants, the Second Circuit affirmed this Court’s
decision slashing Gibson’s and D&D’s requested compensation by 66% because it “believe[d]
that a reasonable, paying resident of Albany would have made a greater effort to retain an
attorney practicing in the Northern District of New York …. The rates charged by attorneys
practicing in the Southern District of New York would simply have been too high for a thrifty,
hypothetical client—at least in comparison to the rates charged by local attorneys, with which he
would have been familiar.” Id. at 185. See also Osterweil, 2015 WL 1066404, at *6, *7
(reducing the former Solicitor General of the United States’ requested hourly rate from $1,100 to
$300 for his work in a civil rights matter where plaintiff failed to “identify what specific
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expertise or skills his attorneys possessed that attorneys within the Northern District of New
York do not possess”). Gibson’s attorneys have failed to demonstrate why their rates should
exceed those customarily charged in this District.
Moreover, as a result of DerOhannesian’s experience in VRA matters - which has only
increased since this Court’s decision in Arbor Hill (see DerOhannesian Decl. ¶ 8) - the Court
should deny Karlan’s request to be paid at more than three times DerOhannesian’s rate. See,
e.g., Hines, NYLJ 1202659661779, at *11 (“[I]t would be unreasonable to expect a client to pay
Mr. Marcelle at a higher rate than Mr. Steck, an attorney with more years of experience.”).
B. The Relevant Johnson
Factors Favor Reducing Plaintiffs’ Requested Rates.
“A reasonable hourly rate is what a reasonable, paying client would be willing to pay,
given that such a party wishes to spend the minimum necessary to litigate the case effectively.”
Hines, NYLJ 1202659661779, at *5; Arbor Hill, 522 F.3d at 184 (“[T]he reasonable, paying
client . . . wishes to pay the least amount necessary to litigate the case effectively.”) (emphasis
added). In determining what a reasonable client would be willing to pay, courts in this circuit
consider the following factors: (1) complexity and difficulty of the case; (2) available expertise
and capacity of the client’s other counsel; (3) resources required to prosecute the case effectively
(taking account of resources being marshaled on the other side but not endorsing scorched earth
tactics); (4) timing demands of the case; (5) whether an attorney might have an interest
(independent of that of his client) in achieving the ends of the litigation or might initiate the
representation himself; (6) whether an attorney might have initially acted pro bono (such that a
client might be aware that the attorney expected low or non-existent remuneration); and (7) other
returns (such as reputation, etc.) that an attorney might expect from the representation. Arbor
Hill, 522 F.3d at 184. These factors weigh in favor of reducing plaintiffs’ requested fees.
1. Plaintiffs’ counsel has prior experience litigating an identical matter.
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The underlying dispute was factually and legally a straightforward matter. As explained
above, Karlan and DerOhnannesian previously litigated an essentially identical case in 2003.
See Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany , No. 1:0-3cv-00502
(N.D.N.Y. 2003). Arbor Hill involved the exact same issues (allegations that the County had
violated the VRA by adopting a redistricting plan following a census), the same defendants, the
same lead counsel, and the same experts. Marcelle Decl. ¶ 4. In that matter - decided in 2005
and affirmed in 2008 - this Court awarded $210 per hour to experienced attorneys, $150 per hour
to senior associates, $120 per hour for junior associates, and $80 per hour for paralegals. Arbor
Hill, 419 F. Supp. 2d at 211. The passing of several years does not justify Karlan’s request to be
paid $1,174 per hour - a rate more than five times that found reasonable in Arbor Hill.
2. D&D could have litigated this case without Gibson.
DerOhannesian was fully capable of performing the required legal service properly
without the assistance of out-of-district counsel. DerOhannesian advertises himself as a
specialist in election law on his own website and, as explained above, possesses prior litigation
experience against the exact same defendants for the exact same cause of action. Marcelle Decl.,
Exh. 2 (“At DerOhannesian & DerOhannesian, we work hard to uphold New York State voters’
rights and ensure adherence to local and state election administration process. When rights and
process are violated, we staunchly defend them. Our firm also works with clients to challenge
redistricting initiatives, campaign financing, and other elements of election law.”).
3. The underlying dispute did not require an exceptional amount ofresources to prosecute.
Due to their role in the 2003 litigation, Gibson and D&D were already positioned to
litigate this case efficiently. Instead, they pursued a scorched earth strategy that repeatedly
racked up unnecessary charges and burdened the County.
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For example, the underlying litigation featured more than 30 depositions, almost all of
which Gibson overstaffed with an inordinate number of associates. Marcelle Decl. ¶ 5. For the
deposition of Aaron Mair, which lasted seven hours —including breaks—four Gibson attorneys
billed 77.55 hours, racking up a bill of $39,792.25. Even more absurd, five Gibson attorneys
billed an astonishing 63.55 hours for the deposition of Frank Commisso, even though Mr.
Commisso had opposed the County’s redistricting plan and the deposition itself lasted for less
than two hours. Id. ¶ 6. As a result of this extraordinary overstaffing, Gibson Dunn now seeks
$38,253.25 in fees. And six Gibson attorneys billed 59.95 hours at a cost of $32,791.75 for the
three-hour deposition of Vicente Alfonso. Id. ¶ 7.
This kind of overstaffing and overbilling is seen repeatedly in Gibson’s bills for all
depositions, see Marcelle Decl. Exh. “3” (deposition excerpts), including those depositions (“P”)
where Gibson was representing the deponent:
Deponent No. of
GibsonAttys.
Deposition
Length
Block
Billed Costs
Block
BilledHours
Certain
Costs
Certain
Hours
Total
Costs
Liu (P) 7 8 hrs 10 mins $88,937.40 160.14 $27,190.50 52.35 $116,127.90
Gaddie 6 7 hrs 49 mins $93,462.00 165.95 $13,424.50 24.2 $106,886.50
Scarff 6 4 hrs 16 mins $56,883.50 112.7 $6,948.50 12.9 $63,832.00
Pope (P) 6 2 hrs 22 mins $57,146.00 85.3 __ __ $57,146.00
Morse 6 3 hrs 30 mins $54,475.50 97.1 __ __ $54,475.50
Perrin 4 5 hrs 15 mins $26,979.00 52.1 $18,310.00 30 $45,289.00
Bell (P) 3 1 hr 50 mins $42,234.00 71.1 __ __ $42,234.00
Merrill 7 __ $25,512.75 48.55 $16,585.00 26.75 $42,097.75Mair (P) 4 7 hrs 15 mins $39,112.00 77.55 $680.25 1.35 $39,792.25
Commisso 5 1 hr 45 mins $38,253.25 63.55 __ __ $38,253.25
5 It is impossible to determine the amount plaintiffs billed on depositions or on any other discrete task because they used improper block billing that makes it impossible to determine the amount of time spenton each task or whether the time was reasonable. See Point III(G), infra.
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Evers 4 __ $22,312.00 31.65 $14,707.00 24.6 $37,019.00
Willingham (P) 4 5 hrs 40 mins $30,851.00 58.7 $3,100.00 5 $33,951.00
McCoy 4 6 hrs 40 mins $33,751.25 64.1 __ __ $33,751.25
Alfonso (P) 6 2 hrs 51 mins $25,554.00 49 $7,237.75 10.95 $32,791.75
Gonzalez (P) 4 2 hrs 34 mins $22,714.00 44.35 $1,442.00 2.8 $24,156.00
Benedict 3 2 hrs 30 mins $21,835.75 44.75 __ __ $21,835.75
Pinckney (P) 2 1 hr 10 mins $21,562.00 36.2 __ __ $21,562.00
Breslin 5 6 hrs 55 mins $21,047.25 40.65 __ __ $21,047.25
Coleman (P) 3 1 hr 35 mins $18,832.50 33 __ __ $18,832.50
Wilkerson 4 6 hrs 5 mins $17,715.75 36.05 __ __ $17,715.75
Frazier (P) 2 3 hrs 26 mins $11,924.25 17.55 $4,387.50 6.5 $16,311.75
Alomar (P) 3 2 hrs 52 mins $14,512.50 21.5 $1,406.50 2.9 $15,919.00
Conway 3 3 hrs 51 mins $15,274.25 29.95 __ __ $15,274.25
Gomez (P) 2 1 hr 15 mins $14,533.75 29.25 __ __ $14,533.75
McKnight (P) 4 2 hrs 5 mins $13,282.50 27.5 __ __ $13,282.50
Condon 4 3 hrs 15 mins $13,203.25 26.55 __ __ $13,203.25
McLaughlin 1 2 hrs 10 mins $2,626.50 5.1 __ __ $2,626.50
Totals $844,527.90 1529.89 $155,419.50 200.3 $959,947.40
Further, many depositions were only required because plaintiffs amended their complaint
after summary judgment, while the County prevailed on every single discovery dispute. Id. ¶ 8.
Moreover, plaintiffs’ sole cause of action in the complaint was a “coalition claim”- i.e., claiming
that the County’s plan diluted the combined voting strength of blacks and Hispanics. Most of the
depositions and arguments were aimed at this coalition claim (id. ¶ 9), yet the court never
reached this issue. Pope, -- F. Supp. 3d --, at *1 (N.D.N.Y. Mar. 24, 2015) (noting that “[t]his
conclusion renders it unnecessary for the Court to reach the issue of plaintiffs’ coalition claim”).
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As an international firm with over 1,000 lawyers dispersed across four continents
(Marcelle Decl., Exh. 2), Gibson possesses a war chest far deeper than the County. The Court
should not reward Gibson’s extravagant and unnecessary billing.
4. The timing demands of this action do not justify plaintiffs’ retentionof Gibson.
The undisputed facts belie any assertion that timing demands required plaintiffs to retain
Gibson instead of seeking less expensive local counsel. D&D learned of the matter before
Gibson and actively recruited Gibson as co-counsel. Karlan Decl. ¶ 7. Accordingly, plaintiffs’
reliance on Trudeau v. Bockstein, 2008 WL 3413903 (N.D.N.Y. Aug. 8, 2008) is misplaced.
Pls.’ Mot. at 10. This is not a case where “it was reasonable to retain [ ] longtime counsel . . .
rather than searching out a cheaper alternative” or where plaintiffs were “required to retain
counsel on an expedited basis due to [their] perception that harm was imminent.” Trudeau, 2008
WL 3413903, at *6. And this is not a case where “the client[] actually assented to the rates.” Id.
5. Gibson used this matter as a training opportunity.
Plaintiffs overstaffed nearly every aspect of this litigation to train their junior associates.
Marcelle Decl. ¶ 5. However, a fee-shifting statute is designed to “ensure effective access to the
judicial process ... not to serve as a full employment or continuing education programs for
lawyers and paralegals.” Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992) (citation omitted).
For example, Gibson and D&D staffed an inordinate number of associates at every
deposition. See Point II(B)(3), supra. Indeed, Gibson acknowledges that one reason it pursues
pro bono opportunities is to train its associates. Marcelle Decl., Exh. 4 (“[Gibson] . . . believe[s]
that community involvement adds an important dimension to the growth and development of our
attorneys, as both lawyers and citizens of those communities.”). Gibson would have reaped a
benefit even if it had been unsuccessful in the underlying dispute.
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6. Gibson and D&D expected to receive low remuneration.
Gibson and D&D knew that they were unlikely to receive their usual rates. As explained
above, this Court previously awarded Gibson and D&D rates no greater than $210 for
experienced attorneys for their work prosecuting a nearly identical action against the County.
Arbor Hill, 419 F. Supp. 2d at 211. Accordingly, Karlan’s request for $1,174 per hour—coupled
with his conspicuous silence regarding the rate he received in Arbor Hill —borders on bad faith, a
transparent attempt to anchor the Court at an insupportably high number.
7. Gibson and D&D have garnered significant reputational benefits fromtheir prosecution of this action.
The Court should reduce Gibson’s and D&D’s usual hourly rates because “a reasonable,
paying client might consider whether a lawyer is willing to offer his services in whole or in part
pro bono, or to promote the lawyer’s own reputational or societal goals.” Arbor Hill, 522 F.3d at
192. Gibson regularly provides pro bono services and advertises its pro bono accomplishments
to attract new associates and clients. Marcelle Decl., Exh. 5 (listing the awards and accolades
Gibson has achieved for its commitment to pro bono). Indeed, Gibson seeks $242.50 for time
billed “[e]diting a submission on VRA case for the Global Pro Bono Newsletter.” Id. at Exh. 1.
And D&D might have been willing to offer a reasonable client a reduced fee to reap the
reputational benefits for its participation in such a high-profile dispute, particularly because
election law is one of D&D’s primary practice areas. Marcelle Decl., Exh. 1 (“Our firm also
works with clients to challenge redistricting initiatives . . . and other elements of election law.”).
For all of the above reasons, defendants respectfully request that the Court award
plaintiffs’ counsel fees in accordance with the following hourly rates:
$275 for Karlan and DerOhannesian.
$210 for Gibson partners Aric Wu and Anne Champion.
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$150 to Gibson senior associates Molly Claflin, Lindsey Schmidt, Brendon Fleming, Jon
Fortney, Teresa Kung, Christopher Muller, Sapnai Pandya, Jeana Maute, Kristin Carlson,Kyle Kolb, Brittany Garmyn, Gabriel Gillett, Amy Mayer, and Rena Kates Stern.
$150 for D&D senior associate Danielle R. Smith.
$120 for Gibson junior associates Peter Wade, Masha Bresner, Alyssa Kuhn, and Chelsea
Kelly.
$80 for D&D paralegal Kristin Bruno and D&D law student Alyssa Bombard. Osterweil,2015 WL 1066404, at *8 (awarding $80 for paralegal work in a civil rights matter); Arbor Hill, 419 F. Supp. 2d at 211 (awarding $80 for paralegal work in a VRA matter).
$0 for D&D secretaries Stacey Civello and Alicia Segura. Menghi v. Hart , 745 F. Supp.2d 89, 113 (E.D.N.Y. 2010), aff’d , 478 F. App’x 716 (2d Cir. 2012) (“Typically, in thisCircuit, clerical and secretarial services are part of overhead and are not generally
charged to clients.”) (quotation omitted).
These rates are consistent with those awarded by this Court in the prior Arbor Hill case
and affirmed by the Second Circuit in 2008. Arbor Hill, 419 F. Supp. 2d at 211 ($210 for
experienced attorneys, $150 for associates with more than four years’ experience, $120 for junior
associates, and $80 for paralegals). See Hines, 2015 WL 3479820, at *2 (“Determination of a
reasonable hourly rate . . . may include judicial notice of the rates awarded in prior cases and the
court’s own familiarity with the rates prevailing in the district.”).
Moreover, defendants propose awarding Karlan and DerOhannesian $275 per hour. This
reasonable rate - nearly 31% greater than the $210 hourly rate awarded in Arbor Hill - should
serve to sufficiently compensate Karlan and DerOhannesian for their expertise in VRA matters.
POINT III
BILLABLE HOURS SHOULD BE SUBSTANTIALLY REDUCED BECAUSE TIME RECORDS CONTAIN UNJUSTIFIABLE CHARGES
The time records contain excessive charges for routine activities that had little to no
impact on the course of the litigation, including time for work in unrelated cases. They bill
hundreds of thousands of dollars for doing little more than meeting with members of their own
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team. They record hundreds of hours for redundant and unnecessary work. Gibson even charges
its full rates for travel time without any indication its attorneys performed work and even seeks
payment for bills completely unrelated to this litigation. And compounding all the above
problems, they block bill their time. Thus, the requested hours should be substantially reduced.
As with reasonable hourly rates, plaintiffs “bear[] the burden of documenting the hours
reasonably expended … . To prove that a fee request is reasonable, a party must support that
request with contemporaneous time records that show, for each attorney, the date, the hours
expended, and the nature of the work done.” Hines v, NYLJ 1202659661779, at *8, aff’d 2015
WL 3479820 (2d Cir. June 3, 2015) (quotation and citations omitted). Gibson’s and D&D’s bills
do not meet this basic standard.
A. Gibson’s Time Record Contains Entries for Other Cases.
Gibson’s time records are littered with erroneous time entries that clearly have nothing to
do with this litigation and that even a cursory examination of the records would have uncovered.
For example, Gibson submitted the following improper entries from associate Peter M. Wade:
$204 for “[c]all with J. Chin-Fong; [p]rint materials for use in revising civil complaint;[e]lectronic communications with Library regarding background research on J. Conti andB. White” on March 13, 2013.
$2,244 for “[e]mail with A. Wollin regarding authorization forms; [f]ill out forms for
each provider for J. Chin-Fong’s signature; [m]eet with J. Chin-Fong to review forms andsign and notarize forms; [s]end authorization forms to the comptroller’s office; [e]ditcomplaint and claims research” on June 5, 2013.
$204 for “[c]all with J. Chin-Fong; [c]all with N. Biancanello at UMC” on June 20, 2013.
$204 for “[r]eview medical treatment records” on December 10, 2013.
$153 for “[c]onfer with D. Feinstein regarding the 1983 plan and upcoming casedeadlines” on December 12, 2013.
$1,062.50 for “[c]all with J. Chin-Fong; draft position paper in advance of mediationsession” on March 24, 2014.
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$3,000 for “[d]raft talking points for mediation session; prepare materials for mediation
session; research damages awards in personal injury cases; draft summary of cases formediation session” on March 29, 2014.
$375 for “[c]all with D. Feinstein regarding depositions; draft email to D. Olds regarding
discovery issues and deposition dates; call with office of Dr. Nadkarni regarding potentialexpert testimony” on July 14, 2014.
Karlan Decl., Exh. 1. Moreover, on October 8, 2014, Chelsea Kelly billed $242.50 for “[e]diting
a submission on VRA case for the Global Pro Bono Newsletter.” Id.
Plaintiffs have entirely failed to carry their “burden of documenting the hours reasonably
expended” with respect to these entries. Hines, NYLJ 1202659661779, at *8. Accordingly, the
requested fees should be substantially discounted.
B. Gibson’s and D&D’s Time Records Contain Excessive Charges forOverstaffing and Duplicative Work.
Plaintiffs’ counsel inflated their time records by overstaffing this matter and by spending
an inordinate amount of time handling various aspects of the litigation. See Guardians Ass’n of
Police Dep't of New York v. City of New York , 133 F. App’x 785, 786 (2d Cir. 2005) (noting that
302 billable hours can be “facially excessive” for a simple case that goes to trial). Counsels’
time records are particularly egregious in light of their prior involvement in the substantially
similar Arbor Hill matter and their reassertion of many of the same arguments. Osterweil, 2015
WL 1066404, at *14 (“As counsel has provided no justification for why nearly ninety hours of
work was necessary to reassert arguments Plaintiff had already developed . . . the Court will
reduce the time counsel spent preparing its briefs to the Court of Appeals by two-thirds.”).
For example, Gibson and D&D billed up to 238.99 hours at a cost of $121,111.40 to file
and amend their 17-page complaint in this action. This is plainly excessive. Hines, NYLJ
1202659661779, at *13 (finding 52.5 hours for the research, drafting and editing of the
complaint to be excessive); Hofler v. Family of Woodstock, Inc., 2012 WL 527668, at *5
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(N.D.N.Y. Feb. 17, 2012) (9 hours drafting and 4.2 hours editing an 11-page complaint was an
example of “sheer excessiveness”).
Similarly, Gibson alone billed at least 265.7 hours at a cost of $207,797.75 to complete
its summary judgment papers. This is also excessive. Id. at *13 (finding 52.5 hours for the
research, drafting and editing of a cross-motion for summary judgment to be excessive); Hofler ,
2012 WL 527668, at *5 (101.1 hours spent “preparing opposition to Defendant’s motion for
summary judgment and drafting their cross-motion” was an example of “sheer excessiveness”).
Further, Gibson and D&D attorneys repeatedly billed for the same work. For example,
on July 22, 2011, DerOhannesian and five Gibson attorneys billed 8.7 hours at a cost of
$5,280.50 for work related to a conference before Judge Homer. Similarly, on July 26, 2012,
Karlan and Gibson associates Sapna Desai Pandya, Brendon S. Fleming, and Kyle J. Kolb block
billed $9,380.50 to prepare and attend (some via telephone) a discovery conference before Judge
Homer. Gibson associate Brittany Garmyn billed an additional $1,781.25 to prepare for the
conference, though she did not attend. DerOhannesian block billed 2.5 hours at a cost of more
than $700 for the same conference. And on May 15, 2014, DerOhannesian, his associate, and
two Gibson attorneys billed $12,676.25 to attend another conference before Judge Hummel.
Counsel should not be rewarded for their redundant work. Jimico Enterprises, Inc. v.
Lehigh Gas Corp., 2011 WL 4594141, at *11 (N.D.N.Y. Sept. 30, 2011), aff’d , 708 F.3d 106 (2d
Cir. 2013) (“[T]he Court finds that both the in-district partner and the out-of-district partner
billing for some of the same work was somewhat excessive (and/or unnecessarily duplicative). . .
. Having each practiced law for at least nineteen years, and therefore presumably attended
numerous settlement conferences, there was little, if any, reason for both in-district counsel and
out-of-district counsel to attend an initial settlement conference.”).
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C. Gibson’s Time Records Contain Inappropriate Charges for Intra- Office Conferences.
Gibson’s records are larded with hundreds of thousands of dollars’ worth of charges for
intra-office conferences and yet fail to explain why multiple attorneys were necessary. In re
Bennett Funding Group, Inc., 213 B.R. 234 (Bankr. N.D.N.Y. 1997) (“It is [ ] an accepted
principle that generally no more than one attorney may bill for time spent in intra-office
conferences or meetings absent an adequate explanation.”); Simmonds v. New York City Dep’t of
Corr., 2008 WL 4303474, at *8 (S.D.N.Y. Sept. 16, 2008) (reducing total number of hours by
40% where “attorneys spent approximately sixty (60) hours drafting and reviewing
correspondence to each other and discussing the case internally” and “thirty (30) hours were
billed by the second, third, fourth, and often, fifth attorneys who attended court conferences and
participated in conference calls and meetings with Simmonds and opposing counsel”).
For example, associate Jeana M. Maute block billed $1,620 on June 6, 2011 to, inter alia,
“meet with M. Karlan, B. Fleming, and T. Kung to be introduced to team.” Karlan Decl., Exh. 1.
That same day, associate Teresa M. Kung block billed $2,075.80 to “[m]eet with M. Karlan, B.
Fleming, and J. Maute to discuss case and initial administrative matters[.]” Id. And also on that
same day, associate Brendon S. Fleming billed $2,568 for “conference and electronic
correspondence with M. Karlan, J. Bisnar Maute, and T. Kung.” Id.
Similarly, on July 27, 2011, Karlan billed $1,642.50 for “[c]onference call with team;
email with opposing counsel; trial preparation.” Id. That same day, partner Aric H. Wu billed
$1,650 for “[t]elephone calls and e-mails regarding prep for preliminary injunction hearing.” Id.
Likewise, associate Teresa M. Kung billed $428 for “[p]articipate in team conference call” on
that day. And also at that same time, associate Molly M. Claflin block billed $2,408 for, inter
alia, “[c]orresopnd with co-counsel, J. Maute, A. Wu, B. Fleming re hearing prep tasks.” Id.
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Finally, associate Jeana M. Maute block billed $3,375 hours to “[m]eet with team,” and associate
Brendon S. Fleming block billed $2,996 for, inter alia, “[t]elephone conferences with J. Bisnar
Maute and M. Claflin regarding planning for preliminary injunction hearing; telephone
conference and electronic correspondence with J. Bisnar Maute, T. Kung, M. Claflin, A. Wu, M.
Karlan, and P. DerOhannesian regarding same,” again on July 27, 2011. Id. These duplicative
charges are unjustified and should be substantially reduced.
D. Gibson’s Time Record Contains Charges for Travel Time atAttorneys’ Full Rates.
Attorneys cannot justifiably charge their full rates for travel time. Hines, NYLJ
1202659661779, at *14 (“Consistent with Northern District precedent, . . . reimbursement for
travel time should have been billed at . . . one-half of counsel’s hourly rate.”) (quotation
omitted); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 419 F. Supp.
2d 206, 211 (N.D.N.Y. 2005), aff’d , 522 F.3d 182, 184 (2d Cir. 2008) (finding the “traditional
one-half” hourly rate “for time spent traveling” to be reasonable). A reduction is especially
warranted where, as here, attorneys have compounded the problem by block billing their travel
time. See, e.g., LV v. New York City Dep’t of Educ., 700 F. Supp. 2d 510, 526 (S.D.N.Y. 2010)
(“The Court agrees that [plaintiff’s entries that seek to bill travel time at full rates] should be
reduced by 50 percent. This includes travel time that is included in block-billed entries.”).
For example, Karlan billed $12,550 to “[a]ttend trial; return from trial” on August 1,
2015; $12,200 to “[t]ravel to and from Albany for pretrial conference; attend conference with
client; conference with panel” on August 10, 2014; and $15,060 for “[t]ravel to Albany; team
phone call; attend trial; return from Albany” on December 1, 2015. Karlan Decl., Exh. 1. In
total, Karlan block billed hundreds of thousands of dollars for travel, yet he failed to identify any
legal work completed while traveling. Id.
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E. Gibson’s and D&D’s Time Records Contain Excessive Charges for Routineor Administrative Tasks.
Both Gibson’s and D&D’s time records contain excessive charges for routine tasks that
should have been performed by clerical staff or paralegals. Osterweil, 2015 WL 1066404, at
*15 (“The Court agrees that the district’s prevailing rate of $80 per hour for paralegal work
should apply to the following tasks: (1) preparation and filing of Plaintiff’s notice of appearance;
(2) preparation and filing of the Second Circuit’s Form C and Form D, which are brief
administrative forms; (3) filing of various scheduling notifications; (4) conferral with the court
regarding filings; and (5) preparation and filing of Plaintiff’s oral argument statement to the
Second Circuit[.]”); Hines, NYLJ 1202659661779, at *14 (“[T]he Court finds that Plaintiffs’
counsel should not have billed their full hourly rate for the performance of non-legal
clerical/secretarial task[s], such as (1) filing a complaint and (2) filing motion papers.”).
For example, a Gibson associate billed .7 hours on August 15, 2011, to “[d]raft and file
notice of appearance” for a cost of $374.50; .4 hours on August 16, 2011, to “[f]ile notice of
appearance” for a cost of $214; and 1.57 hours on December 8, 2011, to “[d]raft notice of
appearance; register for ECF; work on motion for expedited discovery” for a cost of $839.95.
Karlan Decl., Exh. 1. On August 17, 2011, another Gibson associate block billed 1.2 hours to,
inter alia, “[f]inalize and prepare for filing notice of appearance and certificate of service for
same” at a cost of $642. Id. Such administrative work could have been accomplished by a
paralegal or clerical employee and is thus excessive.
Moreover, on June 26, 2011, DerOhannesian block billed 1.0 hours to “[r]eview draft
complaint’s changes to relief requested, send to co-counsel; conference call with GDC – re
complaint, filing (7:00-7:45)” for a cost of $350. DerOhannesian Decl., Exh. C-1 (emphasis
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added). And on June 12, 2013, D&D’s associate block billed 1.0 hours to, inter alia, “file[]
notice of appearance” at a cost of $215. These charges are excessive and should be reduced.
F. Gibson’s and D&D’s Time Records Are Too Vague to Support the Charges.
Both Gibson’s and D&D’s time records contain intolerably vague entries that preclude
any review of the reasonableness of the work done or the amount billed and should therefore be
disallowed. Osterweil, 2015 WL 1066404, at *10 (excluding in their entirety all entries that
“omit any reference to specific issues or subject matter and rely on generic descriptions, such as
‘examined,’ ‘conferred,’ and ‘corresponded’” and noting that “[t]he courts in this circuit have
found that vague entries such as ‘conference with’ or ‘call to’ a specific person” generally lack
sufficient specificity, while “time entries that refer to unspecified communications with
unidentified ‘outside counsel’ or ‘colleagues’ are plainly inadequate) (quotations omitted);
Hines, NYLJ 1202659661779, at *14-15 (reducing entire bill by 30%, in part because some of
the attorneys’ time entries contained vague descriptions, such as “Adj. letter,” “Finish
discovery,” and “discovery discussion”).
For example, Karlan billed the following vague entries:
.5 hours for “[w]ork on papers” on July 6, 2011.
.5 hours for “[w]ork on discovery” on November 1, 2011.
4 hours (total) for “[a]ppeal work” on November 16 and November 17, 2011.
.5 hours for “[t]eam call” on August 9, 2012.
.75 hours for “[t]eam meeting” on November 13, 2012.
1.0 hours (total) for “[v]arious discovery and expert issues” on January 7 and January
10, 2013.
.5 hours for “[e]mails with P. DerOhnannesian and team” on February 3, 2014.
.5 hours for “[e]mails with team” on February 28, 2014.
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.5 hours for “[e]mails with experts” on March 22, 2014.
.5 hours for “[d]raft letter to court” on April 9, 2014.
.5 hours for “[l]etter to court” on May 10, 2014.
.5 hours for “[s]ettlement work” on May 29, 2014.
.5 hours for “[s]ettlement efforts” on June 24, 2014.
.5 hours for “[t]rial preparation” on September 10, 2014.
.5 hours for “[w]ork on experts” on November 2, 2014.
.5 hours for “[l]etter to Court” on January 28, 2015.
Karlan Decl., Exh. 1. Similarly, DerOhannesian billed the following vague charges:
.5 hours for “[m]eet with Aaron (5:40 – 6:15)” on June 22, 2011.
.25 hours for “[l]etter to T. Homer – ECF filing” on November 16, 2011.
.25 hours for “[t]elephone call Alice Green (1:20-1:40); see notes; additionalinformation for case” on December 23, 2011.
.75 hours for “[t]elephone call Aaron (4:00-4:35); email Brendon re experts anddepositions” on December 31, 2011.
.25 hours for “[t]elephone call Declarant (Joe Gomez) 4:30-4:50” on March 8, 2012.
1.75 hours for “[t]elephone call Lucy McKnight (1:05-1:25); telephone call Brendon,Molly, Aaron (3:10-4:00); telephone call Brendon, Molly & Kyle (5:20-6:05)” onMay 4, 2012.
.25 hours for “[t]elephone call Molly & Brendon” on July 10, 2012.
1.25 hours for “[c]onference with Dr. Liu, Brendon and Molly (4:30-5:45)” onSeptember 4, 2012.
.25 hours for “[c]onference call S/J, additional plaintiffs” on April 4, 2013.
.5 hours for “[e]mails with Brendon; meet with Aaron (5:45-6:15)” on August 12,
2013.
.5 hours “TC declarant re case (see notes), charter revision” on May 1, 2014.
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.5 hours for “Call and review of Reply to County’s two trial briefs” on February 7,2015.
DerOhannesian Decl., Exh. C-1. These entries account for tens of thousands of dollars in
unsupportable charges and the descriptions are inscrutably vague. Marshall v. State of New York
Div. of State Police, 31 F. Supp. 2d 100, 106 (N.D.N.Y. 1998) (“Plaintiff’s vague and blanket
description of ‘prepare for trial’ in its time records does not adequately inform the Court of the
nature and extent of the work performed and therefore provides an inadequate basis to determine
the reasonableness of these claimed hours.”) The bill should be reduced substantially as a result.
G.
Gibson’s and D&D’s Time Records Contain Inappropriate Block Billing.
As demonstrated above, Gibson’s and D&D’s exorbitant bills are rife with errors and
over-billings that, taken together, cast the entire bill in doubt. But these problems are severely
and irreparably compounded by Gibson’s decision to block bill nearly all of its time, making it
impossible for defendants or the Court to determine whether the time spent was reasonable.
Hines, NYLJ 1202659661779, at *14-15 (reducing bill by 30%, in part because attorneys “failed
to specify the amount of time spent on separate tasks, frustrating meaningful review of the
reasonable number of the hours billed”); In re Bownetree, LLC , 2009 WL 2843278, at *2 (Bankr.
E.D.N.Y. Aug. 28, 2009) (reducing fees from all block billed entries by 50%).
For example, on November 18, 2014, Gabriel K. Gillett billed 17.1 hours for
Revise trial modules; attend trial; teleconference with N. Lebron to prepare fortestimony; revise trial outline.
Karlan Decl., Exh. 1. This sundry list of tasks racked up $11,542.50 in charges, yet it is
impossible to tell what work was done, whether the time spent on each task was reasonable, or
whether the work could have been performed by someone less qualified and less expensive.
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On January 7, 2015, Gibson’s associate Jonathan D. Fortney block billed $9,473 through
the following entry:
Finalize compilation of documents and turning of edits from M. Karlan for
Merrill testimony and Marcelle testimony; conference with M. Karlan and K.Kolb to turn and finalize Merrill and Marcelle exam scripts; finalize documentsand take to court; attend court for examination of Merrill and Marcelle;conference with team to turn edits from M. Karlan on McCoy exam script;finalize exhibits and script for court; attend court for examination of McCoy;conference with team regarding preparations for spoliation witnesses; read Perrindeposition transcript and work on exam script for cross of Perrin.
Id. These tasks took 14.5 hours to complete, yet it is impossible to discern whether the amount
spent on any individual task was reasonable because the associate did not break out his time.
Similarly, on November 17, 2014, DerOhannesian block billed 6.75 hours at a cost of
$2,531.25 through the following entry:
Review counterproposal fr County – review fees; research legal issues on layopinion; email JEC (TU); trial prep w Kyle and Brittany, witness outlines andexhibits; go to Fed Ct – drop off boxes and review IT in courtroom; prep w andfor Dr. Liu; meet w Anne Pope 3:30-5:50; emails County re maps, possiblerestitution; prepare Alomar and Pope testimonies; County’s filing – PFOFCOL –R&R
DerOhannesian Decl., Exh. C-1. Block billing thoroughly infests the records and frustrates any
effort to assess the reasonableness of the work performed and renders the bills meaningless.
For all the above reasons, including erroneous, duplicative, vague, and block billing,
defendants respectfully request that the Court reduce Gibson’s and D&D’s requested hours by
90% or more applying Northern District of New York rates. Guardians Ass’n, 133 F. App’x at
786 (affirming district court’s 80% across-the-board reduction where attorneys’ time records
were vague; attorneys billed full rates for travel time and time spent performing clerical tasks;
and counsel billed excessive hours even though plaintiffs’ complaint “was drawn largely from a
complaint in a factually related case”); Romeo & Juliette Laser Hair Removal, Inc. v. Assara I,
LLC , 2013 WL 3322249, at *8 (S.D.N.Y. July 2, 2013) (employing across-the-board 75%
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reduction where the block billing “made it [so] difficult to separate tasks that are compensable
from those that are not, or tasks that should have been billed at lower rates from those
compensable at ordinary rates” that “the only feasible way of reducing [her] fees is to apply an
overall reduction”).
Further as demonstrated by Appendix 1 fee requests seldom rise for civil rights cases above
$250,000 for work which includes pleading to summary judgment to trial (including an occasional
interlocutory appeal) in the Northern District of New York. The average award is much smaller. A
reasonable plaintiff would expect to pay at most no more than $240,000 to secure the work performed by
plaintiffs’ attorney. Given the fatally flawed submission, this award is more than reasonable.
CONCLUSION
Defendants respectfully request that this Court enter an Order that:
(1) Denies Plaintiffs’ Application in its entirety; or in the alternative
(2) If the Application is not denied, plaintiffs’ records justify reasonable attorneys’
fees of no more than $240,000.
Dated: July 2, 2015 ALBANY COUNTY DEPARTMENT OF LAWBy: /s/Thomas Marcelle
Thomas Marcelle, Esq.Of counsel: Bar Roll No. 117102
Albany County Attorney, Department of LawAdam Giangreco, Esq. 112 State Street, Suite 1010
Albany, New York, 12207
MURPHY, BURNS, BARBER & MURPHY, LLPBy: _______/s/ Peter G Barber________________
Peter G. Barber, Esq.
Bar Roll No. 301523226 Great Oaks BoulevardAlbany, New York, 12203
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APPENDIX 1
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Attorney Fees Awarded in the Northern District of New York unde
Case Name Case Cite Civil Rights Considered Nature of ProceedingsAttn'y Fee
Requested
At
Aw
Lewis v. City of Albany
Police Dep't
2009 WL
2356798
Excessive force and equal
protection Appeal to 2nd Circuit
Amount not
provided $1
Lore v. City of Syracuse
2009 WL
2957784
Title VII- Gender
Discrimination and
Retaliation; NYHRL
Summary Judgment, Jury Trial, Post-Trial
Motions, and multiple Appeals $351,529.25 $1
Countryman v. Farber
2009 WL
2835263 State Civil Law Claims Jury Trial $198,357.37 $13
Martinez v. Thompson
2008 WL
5157395
Excessive Force and Due
Process Jury Trial, Post-trial motions $242,083.00 $1
Lewis v. City of Albany
Police Dep't
554 F. Supp.
2d 297
Excessive Force and
Equal Protection
Motion for reconsideration of Motion to Dismiss,
Trial $47,252.00 $44
Luessenhop v. Clinton
Cnty., N.Y.,
558 F. Supp.
2d 247 Due Process
State Court proceedings, District Court moitons,
Appeal, Negotiations, in opposition to Motion to
Dismiss, Summary Judgement and more
negotiations
$99,082.53
(includes
costs) $62
McDaniel v. Cnty. ofSchenectady
2007 WL3274798 4th Amendment
Class Certification, Motions in opposotion to
Dismissal and Summary Judgment and Settlement Negotiations $650,000.00 $34
Trudeau v. Bockstein
2008 WL
3413903 First Amendment
TRO, Preliminary Injunction, motion in
opposition to Summary Judgment, Motion for
reconsideration $395,222.00 $10
Lee v. Glessing
2006 WL
2524185
Title VII-gender &
disability discrimination Jury Trial, Summ Jdgmt FRCP 50(a), Appeal $149,336.69 $12
Lake v. Shoharie County
Com'r of Social Services
2006 WL
1891141 8th Amendment- Prisoner
Jury Trial (Plaintiff Won), Post-Trial Motion for
Atty Fees (Report and Recommendation Served) $217,449.00 $1
Farbotko v. Clinton Cnty.
of New York 433 F.3d 204 §1983-Due Process One-day Bench Trial, Appeal $41,129.00 $10
Arbor Hill Concerned
Citizens Neighborhood
Ass'n v. County of
Albany
2005 WL
670307
Violation of VRA (Voting
Rights Act)
Prelim Injunct, Appeal (Remedial Plan Created),
Motion for Appellate Atty Fees Granted $483,948.64 $1
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Attorney Fees Awarded in the Northern District of New York unde
Case Name Case Cite Civil Rights Considered Nature of ProceedingsAttn'y Fee
Requested
At
Aw
Romaine v. Rawson
2004 WL
1013316 8th Amd- Prisoner Bench Trial, Appeal, Settlement $73,484.00 $10
Kassim v. City ofSchenectady 415 F.3d 246 §1983-Due Process Partial Summary Judgment, Trial on damages $65,400.00 $12
Torres v. Cross
2003 WL
25719934 §1983- Excessive Force Pre-Trial Discovery, Settlement, $66,429.25 $1
Patterson v. Balsamico, 440 F.3d 104
Title VII- Discrimination,
Retaliation; §1983- Due
Process
Summary Judgement, Trial, Separate Trial on
punative damages, Appeal
Amount not
provided $1
Patterson v. Julian
250 F. Supp.
2d 36 Title VII and Due Process 5-day Jury Trial, Post-Trial Motions
Amount not
provided $4
Baim v. Notto316 F. Supp.2d 113 4th Amendment
Partial Summary Judgement, Trial, Post-TrialMotions
Amount not provided $7
People ex rel. Vacco v.
Rac Holding, Inc
135 F. Supp.
2d 359 Title VII Motions to Intervene, Complaints, Settlement $42,006.22 $3
Noga v. Potenza
2002
WL34945085
Civil Rights Violation
(under 42 U.S.C. §1983
and NY Sate Law)
Jury Verdict--Plaintiff Won, Plaintiff's Post-Trial
Motion for Atty's Fees Granted $44,375.00 $44
Young v. Healey
1999 WL
1281503 Excessive Force Jury Trial and Appeal $5,726.74 $4
Blissett v. Casey
1999 WL
1034502 8th Amendment Appeal to C ircuit and Appeal to Supreme Court
Amount not
provided $14
John S. v. Cuomo
1999 WL
592693 $243,996.50 $1
Cay v. Burleigh
1999 WL
408790 8th Amendment Bench Trial $33,270.42 $32
Carroll v. DeBuono
48 F. Supp. 2d
191
Equal Protection and 14th
Amd Class Certification and Summary Judgment
Amount not
provided $7
Lunday v. City of Albany 42 F.3d 131 8th Amendment Jury Trial
Amount not
provided $1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________________
ANNE POPE, JANIS GONZALEZ, WANDA WILLINGHAM,
GERALDINE BELL, SAMUEL COLEMAN, LEE PINCKNEY,VICENTE ALFONSO AND ELAINE FRAZIER,
Plaintiffs,Index No.: 1:11-cv-0736
-against- (LEK/CFH)
COUNTY OF ALBANY AND THE ALBANY COUNTYBOARD OF ELECTIONS,
Defendants.
____________________________________________________
DECLARATION OF THOMAS MARCELLE, ESQ.
Thomas Marcelle declares under penalty of perjury the following:
1. I am the County Attorney for the County of Albany and counsel for the County of
Albany and the Albany County Board of Elections (“Defendants” or the “County”) in this action.
I make this Declaration in opposition to Plaintiffs’ application for attorneys’ fees and costs.
2. DerOhannesian & DerOhannesian (“D&D”) holds itself out to be a specialist in
election law. Attached hereto as Exhibit 1 is an excerpt from D&D’s website that describes the
firm’s expertise in election law.
3. Gibson, Dunn & Crutcher LLP (“Gibson”) is an international firm with over
1,000 lawyers dispersed across four continents. Attached hereto as Exhibit 2 is an excerpt from
Gibson’s website that describes the firm’s magnitude.
4. Gibson and D&D represented plaintiffs against the County of Albany in Arbor
Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, No. 1:0-3cv-00502 (N.D.N.Y.
Case 1:11-cv-00736-LEK-CFH Document 447-1 Filed 07/02/15 Page 1 of 108
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2
2003). That action involved the exact same issues, the exact same Defendants, the exact same
lead counsel, and the exact same experts.
5. The underlying litigation featured more than 30 depositions, almost all of which
Gibson overstaffed with an inordinate number of associates in what was clearly an effort to
provide young associates with litigation experience.
6. Four Gibson attorneys billed 77.5 hours at a cost of $39,792.25 for the deposition
of Aaron Mair, which lasted seven hours.
7. Five Gibson attorneys billed 63.55 hours for the deposition of Frank Commisso,
even though the deposition lasted for less than two hours. Attached hereto as Exhibit 3 are the
relevant portions of the deposition transcripts from this action which show the inordinate number
of Gibson attorneys per deposition.
8. Many of the depositions in the underlying litigation were only required because
Plaintiffs amended their complaint after summary judgment, while the County prevailed on
every single discovery dispute.
9.
A substantial portion of Plaintiffs’ arguments and the matters discussed at
depositions addressed Plaintiffs’ coalition claim.
10. Plaintiffs overstaffed nearly every aspect of this litigation in order to train their
junior associates. In fact, Gibson acknowledges that one reason it pursues pro bono
opportunities is to train its associates. Attached hereto as Exhibit 4 is an excerpt from Gibson’s
website that describes the firm’s pro bono practice. Attached hereto as Exhibit 5 is an excerpt
from Gibson’s website that describes the awards the firm has received for its pro bono practice.
I hereby declare under penalties of perjury that the foregoing is true and correct.
Case 1:11-cv-00736-LEK-CFH Document 447-1 Filed 07/02/15 Page 2 of 108
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3
Dated: July 2, 2015Thomas Marcelle
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Exhibit 1
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Email *
Submit
White collar crimes violate federal law and are usually charged in federal court. If you face charges for
any of the following, call us at 1-800-675-6420 or contact us online to tell us about your situation.
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Election law
At DerOhannesian & DerOhannesian, we work hard to uphold New York State voters' rights and ensure
adherence to local and state election administration process. When rights and process are violated, we
staunchly defend them. Our firm also works with clients to challenge redistricting initiatives, campaign
financing, and other elements of election law.
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New York law entitles you to compensation if you have been injured through the negligence or
wrongdoing of someone else. DerOhannesian & DerOhannesian represents clients who have been injure
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You can hold manufacturers, resellers, distributors, and product designers responsible for defective
products when they cause harm to you. Safety or warning labels may not have appropriately provided
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a loved one has been a victim of a product defect, contact DerOhannesian & DerOhannesian. We
conduct a thorough investigation of the product to determine the root cause of its failure to perform
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Exhibit 2
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Gibson, Dunn & Crutcher, with more
than 1,200 lawyers in 18 offices in
major cities throughout the United
States, Europe, the Middle East, Asia
and South America, is committed to
providing the highest quality legal
services to its clients. In Europe, ourestablished, internationally
networked group of qualified U.S.,
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EXHIBIT 3
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EXHIBIT 4
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Home > Pro Bono & Communi t y Serv ice
OUR COMMITMENT
Gibson, Dunn & Crutcher has a long-
standing and greatly valued tradition
of service to the community. We are
privileged to be able to give back to
the communities that have been such
a part of our success, and believe that
community