The opinion of the court was delivered by: Whitman Knapp, District Judge.
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.
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.
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.
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.
Section 626(b) of the ADEA*fn3 incorporates by reference
§ 216(b) of the Fair Labor Standards Act which provides in
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
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
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.
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
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. ...