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PIERCE v. F.R. TRIPLER & CO.

March 25, 1991

JOHN PIERCE, PLAINTIFF,
v.
F.R. TRIPLER & CO., INC., AND HARTMARX SPECIALTY STORES, INC., DEFENDANTS.



The opinion of the court was delivered by: Whitman Knapp, District Judge.

OPINION AND ORDER

This case arises out of a claim of age discrimination in violation of 29 U.S.C. § 621 et seq. (hereinafter the "ADEA"). On October 5, 1990 the jury returned a verdict for plaintiff, finding that the defendants violated the ADEA and that their actions were willful. Judgment awarding plaintiff $112,000 was entered on October 12. Pursuant to Fed.R.Civ.P. 50(b), on October 24 defendants moved for judgment notwithstanding the verdict, or in the alternative for a new trial, and on November 16 plaintiff moved, pursuant to 29 U.S.C. § 626(b), for attorneys' fees, costs and disbursements, and renewed a previously filed motion for Rule 11 sanctions asserting that certain motions made by the defendants in the course of discovery and during the trial were frivolous and intended for harassment and delay.

On January 18, 1991 we heard oral argument on these motions, and on that date — for the reasons stated on the record — we determined that the verdict for plaintiff could not be set aside, and denied defendants' motion for a new trial. Accordingly, as plaintiff is the prevailing party, we presently address plaintiff's fee application and Rule 11 motion. We substantially approve plaintiff's application for attorneys' fees, with certain modifications noted in the discussion which follows; and — contrary to our intention as expressed during oral argument*fn1 — we grant plaintiff's Rule 11 motion.

ATTORNEY'S FEES

The complaint was filed on November 6, 1986. Plaintiff has at all times been represented by the firm of Vladeck, Waldman, Elias and Engelhard, P.C. (hereinafter "Vladeck firm"), and more specifically by Debra Raskin, a partner in that firm. Plaintiff contends that the attorneys and legal personnel who worked on this case should be compensated according to the following fee schedule:

Judith Vladeck (senior partner)                $300/hr.
Debra Raskin (partner)                         $200/hr.
Ann Vladeck (partner)                          $200/hr.
Cary Bricker (associate)                       $175/hr.
Dennis Parker (associate)                      $175/hr.
Jill Roisen (associate)                        $150/hr.
Stuart Lichten (associate)                     $150/hr.
Law Clerks                                     $55/hr.
Paralegals                                     $45/hr.

In support of the reasonableness of these rates plaintiff has submitted affidavits of attorneys who are experienced in employment discrimination litigation and who practice in the New York City area, each attesting to the fact that they charge hourly rates between $200 and $250 for such work. Plaintiff also informs us that in County of Suffolk v. Long Island Lighting Co. (E.D.N.Y. 1989) 710 F. Supp. 1477 Judge Weinstein awarded legal fees to members of the Vladeck firm at the rate of $275/hr. for Judith Vladeck and $175/hr. for Anne Vladeck and Debra Raskin, and that more recently, in Huntington Branch NAACP v. Town of Huntington (S.D.N.Y. 1990) 749 F. Supp. 62, Judge Glasser awarded other experienced civil rights attorneys fees at the hourly rates of $225 for partners and $175 for associates. (Pl. Mem. at 4-5).

Plaintiff asserts that over the course of the last four years more than 2,000 individual hours of work have been expended in preparation and trial, and has submitted copies of time records to document how each hour was spent.*fn2 The time records include the date, the initials of the person recording the time, a description of the task performed and an estimate — in fifteen minute units — of the amount of time expended. In total plaintiff seeks to recover for:

 57.75  hours by        Judith Vladeck
 57.00     "            Anne Vladeck
611.50     "            Debra Raskin
323.00     "            Cary Bricker
 22.00     "            Dennis Parker
 25.50     "            Stuart Lichten
 54.75     "            Jill Roisen
285.75     "            paralegals & law clerks

By affidavit, Debra Raskin informs us that "[t]o the extent practicable, non-lawyers were used in preparation of the case . . . [and] in every way consistent with the maintenance of the highest professional standards, the least expensive level of personnel was employed for specific tasks". D.R.Affid. ¶ 3.

In support of the claim for compensation of disbursements and costs, plaintiff submits copies of relevant expense vouchers and the affidavits of Cary Bricker and Debra Raskin attesting to the fact that all costs sought to be recovered are of the type normally charged to clients. Plaintiff also seeks recovery, among other things, of $13,638.43 for: the expert witness fee of Thomas Fitzgerald who testified at trial as to the calculation of damages, certain telephone calls and fax communications, photocopies, postage for special mailings, transportation, court fees, messenger service, clerical overtime, transcripts, certain witness fees and expenses, binding, LEXIS computer time, and some miscellaneous expenses.

DISCUSSION

Section 626(b) of the ADEA*fn3 incorporates by reference § 216(b) of the Fair Labor Standards Act which provides in relevant part:

  The court . . . shall, in addition to any
  judgment awarded to the plaintiff . . . allow a
  reasonable attorney's fee to be paid by the
  defendant, and costs of the action.

29 U.S.C. § 626(b), § 216(b) (1990). The Supreme Court has asserted that the "most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate". Hensley v. Eckerhart (1983) 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. This "lodestar" amount may then be enhanced by means of a multiplier pursuant to the court's evaluation of certain factors including the financial risks counsel undertook in pursuing such litigation, e.g. the contingent nature of the case. Pennsylvania v. Delaware Valley Citizens' Council (1987) 483 U.S. 711, 729-31, 107 S.Ct. 3078, 3088-90, 97 L.Ed.2d 585; see Blum v. Stenson (1984) 465 U.S. 886, 899, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891. Plaintiff does not request any enhancement.

Defendants make several objections. They assert that both the rates charged by plaintiff's counsel and the number of hours expended are excessive and should be reduced, that plaintiff's inadequate documentation warrants a reduction in fees, that the costs of expert witness fees and administrative proceedings are not compensable under the ADEA, and that a reduction of the fee award is warranted in light of a damage award of only $112,000. We address each of these objections in turn.

I.  Hourly Rates

The Court, in Blum v. Stenson (1984) 465 U.S. 886, 895-896, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 has determined that a reasonable hourly rate is one which is "in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation". Relying on our own observations that the quality of representation offered by counsel in the instant case was outstanding, upon the affidavits submitted by plaintiff, and upon the determinations by other courts as to what is presently the prevailing market rate for counsel who specialize in discrimination law, we find that the rates of $300/hr. for the services of Judith Vladeck and $200/hr. for the services of other partners, namely Anne Vladeck and Debra Raskin, are reasonable. Although the fee charged here by Judith Vladeck is higher than that awarded in any similar case that has been brought to our attention, we observe that she is an exceptional attorney and widely recognized as an expert in the field of employment discrimination litigation. With respect to the fees of associates Cary Bricker and Dennis Parker, we view the experience of these persons as considerably less than that of Debra Raskin and Anne Vladeck, compare D.R.Affid. ¶¶ 59, 60 and ¶¶ 56-58, and find insufficient support in the affidavits submitted to justify an award of $175/hr. Taking into account the recent determination by Judge Glasser that a fee of $135/hr. was an appropriate award for a civil rights attorney who had five years experience and had clerked for a judge of the Court of Appeals of the Third Circuit, we find that this same amount is appropriate for these individuals. See Huntington, 749 F. Supp. at 65; cf. Sussman v. Vornado (D.N.J. 1984) No. 78-422-A (awarding associates in the Vladeck firm $100/hr.). Since plaintiff concedes that the experience of associates Jill Roisen and Stuart Lichten is less than that of Bricker and Parker, D.R.Affid. ¶¶ 61, 62, we proportionately reduce the rates chargeable by them, and assign $115/hr. as appropriate for their services. Noting that the fees requested for the services of paralegals and law clerks have not changed since 1984, see Sussman, supra, we find the respective charges of $45/hr. and $55/hr. to be more than reasonable and accordingly allow them.

II. Time Expended

Although we can find fault with some of the time records submitted by plaintiff, we note that on the whole plaintiff has provided remarkably well kept documentation of the efforts expended by counsel in this lawsuit. Defendants have rightfully objected to the charge of $300/hr. for the eleven hours Judith Vladeck vouchered for attendance in court after the jury had begun its deliberations and for the eight hours Stuart Lichten spent "observing the trial". Plaintiff's counsel concedes in its reply papers that some of these charges were inadvertently included, Pl.Reply Mem. at 10 n. 9. Accordingly, of these disputed charges, we will allow compensation for only the three hours which Mrs. Vladeck spent reviewing settlement matters with the plaintiff and advising on damages negotiations.

In response to defendants' objection that many of plaintiff's charges for "conferencing" are an abusive duplication of fees, we note that defendants offer no evidence to support the conclusion that such conferences were a duplication of efforts, and find that it is not unreasonable to assign — over the course of four years — different attorneys to the various stages of a case necessitating several briefings and conferences. See Soler v. G & U, Inc. ((S.D.N.Y. 1987) 658 F. Supp. 1093, 1099; Lenihan v. City of New York (S.D.N.Y. 1986) 640 F. Supp. 822, 825 (quoting Johnson v. University College of the University of Alabama (11th Cir.) 706 F.2d 1205, 1208, cert. denied, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983)) ("The retaining of multiple attorneys in a . . . lengthy employment discrimination case . . . is understandable and not a grounds for reducing the hours claimed."). Accordingly, given that plaintiff's counsel's affidavit informs us that the fees requested already reflect a reduction where duplication of efforts did in fact occur, absent more than mere conclusory statements that the charges requested are abusive, we decline — with one exception discussed below — further to reduce plaintiff's recovery for these expenses.

Cary Bricker joined the Vladeck firm shortly before this case went to trial. Trial counsel, Debra Raskin, elected to have Bricker assist her by sitting with her at the counsel table during the trial. This required Bricker to spend considerable time familiarizing herself with prior proceedings and with the various factual and legal questions expected to arise. While Raskin was perfectly competent to try the case unassisted by anyone, it is generally recognized that it should be left to a trial attorney to decide whether or not an in-court assistant would be helpful. See e.g. Lenihan, 640 F. Supp. at 825; cf. New York Ass'n. for Retarded Child. v. Carey (2d Cir. 1983) 711 F.2d 1136, 1146 ("prevailing parties are not barred as a matter of law from receiving fees for sending a second attorney . . . into court to observe and assist."). We agree with that proposition and therefore allow compensation for Bricker's in-court time. However as there was no particularized need for the involvement of Bricker — as opposed to some other associate already familiar with the case — we disallow recovery for all time spent by Bricker familiarizing herself with the specifies of this case. ...


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