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MARISOL A. EX REL. FORBES v. GIULIANI
August 30, 2000
MARISOL A., BY HER NEXT FRIEND, REV. DR. JAMES ALEXANDER FORBES, JR., ET AL., PLAINTIFFS,
RUDOLPH W. GIULIANI, MAYOR OF THE CITY OF NEW YORK, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Ward, District Judge.
Plaintiffs, who were represented by Children's Rights, Inc. ("CRI"),
Schulte, Roth and Zabel, LLP ("Schulte"), and Lawyers for Children, Inc.
("LCI"), move for attorneys' fees and expenses pursuant to
42 U.S.C. § 1988. They initially sought $9,359,569.39 in fees and
out-of-pocket expenses, but later reduced their request to
$7,997,313.67. For the reasons hereinafter stated, the Court awards
plaintiffs $5,835,116.78 in attorneys' fees and expenses.
The Court assumes familiarity with the underlying facts of this case,
which are more fully reported in Marisol A. v. Giuliani, 929 F. Supp. 662
(S.D.N.Y. 1996) (denying motion to dismiss and certifying class)
("Marisol I"), aff'd, 126 F.3d 372
(2d Cir. 1997), and Marisol A. v. Giuliani, 185 F.R.D. 152 (S.D.N.Y.
1999) (approving settlement agreements) ("Marisol II"), aff'd sub nom.,
Joel A. v. Giuliani, 218 F.3d 132 (2d Cir. 2000). Nevertheless, the Court
will provide a brief overview of the facts which are relevant to the
Plaintiffs filed a complaint in this Court on December 13, 1995,
alleging systemic deficiencies in the administration of the New York City
child welfare system. The complaint sought declaratory and injunctive
relief against various officials of the City of New York (the "City
defendants" or "defendants") and various officials of the State of New
York who were responsible for the operation or oversight of New York's
child welfare system.*fn1
At the same time they filed their complaint, plaintiffs moved for class
certification seeking to represent a class consisting of all children who
were in or would be in the custody of the City's child welfare system,
who were or would be at the risk of abuse or neglect, and whose status
was known to the responsible City agency. Defendants moved to dismiss the
complaint and opposed the motion for class certification. The Court
denied defendants' motion to dismiss and granted plaintiffs' motion for
class certification in an opinion dated June 18, 1996. See generally
Marisol I, 929 F. Supp. 662.
On the eve of trial, which was to commence on July 27, 1998, the
parties informed the Court that they were engaged in settlement
negotiations. The trial was adjourned and on December 2, 1998, after four
months of negotiations, two Settlement Agreements were filed with the
Court. One Settlement Agreement was between plaintiffs and the City
defendants and the other was between plaintiffs and the State. The Court
approved the Settlement Agreements on March 31, 1999. See generally
Marisol II, 185 F.R.D. 152.
The Settlement Agreement between plaintiffs and the City defendants
established an Advisory Panel of experts in the child welfare field. Id.
at 157. The Administration for Children's Services ("ACS") agreed to
cooperate with the Advisory Panel and to provide the Panel with full
access to information, documents, and personnel. Id. at 158. The Advisory
Panel is required to produce reports to determine whether ACS is acting
in good faith in making efforts toward reform in certain areas. Id. If
the Advisory Panel determines that ACS is not acting in good faith,
plaintiffs may seek judicial relief. Id. The City Settlement Agreement,
which expires on December 15, 2000, contains certain limitations on the
filing of lawsuits through covenants not to sue and release provisions.
Id. at 158-59.
Plaintiffs filed the instant motion while an appeal of the Court's
approval of the Settlement Agreements was pending. The Court delayed
ruling on the motion until the appeal was decided. The Court's decision
was affirmed on July 10, 2000.
In federal civil rights actions, "the court, in its discretion, may
allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs." 42 U.S.C. § 1988(b). The
parties agree that plaintiffs are prevailing parties for purposes of
§ 1988. Therefore, the only issue remaining is determining an award
of reasonable attorney's fees.
I. Calculating Fees With the "Lodestar" Method
"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, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The
result of this
calculation, the so-called "lodestar" figure, is presumed to be the
reasonable fee. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d
Cir. 1998) (citations omitted). Plaintiffs have the burden of submitting
evidence supporting the hours worked and rates claimed. Hensley, 461
U.S. at 433, 103 S.Ct. 1933. If the documentation is inadequate, for
example, if it reflects excessive or redundant time, the court may reduce
the award accordingly. Id. at 43334, 103 S.Ct. 1933.
The Court will first determine plaintiffs' attorneys' reasonable hourly
rates. It will then decide how many hours were reasonably expended on the
litigation and consider whether any reduction in the lodestar amount is
A. Calculating the Reasonable Hourly Rate
In determining the reasonable hourly rate to be applied, the Court
should look to market rates "`prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and
reputation.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)
(quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11, 104 S.Ct. 1541, 79
L.Ed.2d 891 (1984)). The relevant community to which the court should
look is the district in which the case was brought. See In re Agent
Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987). The rates
used by the Court should be "`current rather than historic hourly
rates.'" Gierlinger, 160 F.3d at 882 (quoting Missouri v. Jenkins,
491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989)).
Furthermore, non-profit civil rights attorneys should receive a "`fully
compensatory fee,'" Jenkins, 491 U.S. at 286, 109 S.Ct. 2463 (quoting
Hensley, 461 U.S. at 435, 103 S.Ct. 1933), "comparable to what `is
traditional with attorneys compensated by a fee-paying client.'" Id
(quoting S.Rep. No. 94-1011, p. 6 (1976), U.S. Code Cong. & Admin.
News 1976, pp. 5908, 5913); see also Blum, 465 U.S. at 895, 104 S.Ct.
1541 ("The statute and legislative history establish that `reasonable
fees' under § 1988 are to be calculated according to the prevailing
market rates in the relevant community, regardless of whether plaintiff
is represented by private or nonprofit counsel.").
Plaintiffs are also entitled to seek fees for paralegal services. See
Jenkins, 491 U.S. at 286-87, 109 S.Ct. 2463; United States Football
League v. National Football League, 887 F.2d 408, 415-16 (2d Cir. 1989),
cert. denied, 493 U.S. 1071, 110 S.Ct. 1116, 107 L.Ed.2d 1022 (1990).
Like the work performed by attorneys, the work performed by paralegals is
billed by using the prevailing hourly rate for paralegal services in the
community. United States Football League, 887 F.2d at 416.
After researching recent fee awards in civil rights cases, the Court
finds that a reasonable rate scale is as follows: $350 for attorneys with
more than fifteen years of experience, $300 for attorneys with ten to
fifteen years of experience, $230-250 for attorneys with seven to nine
years of experience, $180-200 for attorneys with four to six years of
experience, and $130-150 for attorneys with one to three years of
experience. See, e.g., Robinson v. Instructional Sys., Inc.,
105 F. Supp.2d 283, 286-87 (S.D.N.Y. 2000) ($250 for attorney with
fifteen years of experience and $175 for attorney with four to five years
of experience in Title VII case); Pascuiti v. New York Yankees,
108 F. Supp.2d 258, 266 (S.D.N.Y. 2000) ($250 for attorneys at small firm
with twenty-nine and twenty-eight years of experience); National
Helicopter Corp. of America v. City of New York, 96 Civ. 3574, 1999 WL
562031, at *6 (S.D.N.Y. July 30, 1999) ($300 for partners and $140 for
associates is reasonable for attorneys at large law firm); Ward v. New
York City Transit Auth., 97 Civ. 8550, 1999 WL 446025, at *10 (S.D.N.Y.
June 28, 1999) ($300 for experienced civil rights litigator, $175, $150,
and $125 for associates with varying
levels of experience); Skold v. American Int'l Group, Inc., 96 Civ.
7137, 1999 WL 405539, at *7 (S.D.N.Y. June 18, 1999) ($400 for
experienced civil rights litigator who provided overall direction and
strategy, $275 for attorney who served as lead counsel, $225 for attorney
who served as co-lead counsel, and $175 for associate), aff'd,
205 F.3d 1324 (2d Cir. 2000); Perry v. S.Z. Restaurant Corp., 95 Civ.
5424, 1999 WL 370648, at *1 (S.D.N.Y. June 8, 1999) ($275-300 for senior
partner, $250 for senior associate, $195-225 for junior associate);
Rodriguez v. McLoughlin, 84 F. Supp.2d 417, 421-23 (S.D.N.Y. 1999) ($425
for senior partner at large firm who was an experienced civil rights
lawyer, $240 for attorney at large firm with four years of experience,
and $175 for attorney at large firm with two years of experience); TM
Park Ave. Assocs. v. Pataki, 44 F. Supp.2d 158, 166-68 (N.D.N.Y. 1999)
(applying Southern District rates and awarding $275 to senior partners at
large firms, $200 for senior associates, and $175 for junior
associates), vacated on other grounds, 214 F.3d 344 (2d Cir. 2000);
Broome v. Biondi, 17 F. Supp.2d 230, 237 (S.D.N.Y. 1997) ($295-320 for
senior partners at large firm, $290 for junior partners, and $175-265 for
associates based on varying levels of experience); Williams v. New York
City Hous. Auth., 975 F. Supp. 317, 323 (S.D.N.Y. 1997) ($250 for junior
partners, $200 for senior associates, $150 for mid-level associates, and
$135 for junior associates); Wilder v. Bernstein, 975 F. Supp. 276, 282
(S.D.N.Y. 1997) (awarding attorneys at CRI $300 for M. Lowry, $220 for
S. Lambiase, and $130 for R. Kimura); Kim v. Dial Serv. Int'l Inc., 96
Civ. 3327, 1997 WL 458783, at *16-17 (S.D.N.Y. Aug. 11, 1997) ($250 for
attorney with eighteen years of experience and $175 for attorney with
five years of experience), aff'd, 159 F.3d 1347 (2d Cir. 1998), cert.
denied, 525 U.S. 1140, 119 S.Ct. 1030, 143 L.Ed.2d 39 (1999); Collins v.
Stolzenberg, 970 F. Supp. 303, 304 (S.D.N.Y. 1997) ($250 for experienced
civil rights litigator); Bridges v. Eastman Kodak Co., 91 Civ. 7985, 1996
WL 47304, at *11 (S.D.N.Y. Feb. 6, 1996) ($250 for attorneys with thirty
and twenty years of experience in civil rights litigation and $200 for
attorney with seven years of experience), aff'd, 102 F.3d 56 (2d Cir.
1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211
(1997); Helbrans v. Coombe, 890 F. Supp. 227, 233-34 (S.D.N.Y. 1995)
($350 for experienced civil rights litigator, $300 for senior partners,
$250 for junior partners, $225 for senior associates, $175 for mid-level
associates, and $125 for junior associates).
With respect to Marcia Robinson Lowry, the director of CRI and lead
attorney in this case, plaintiffs request an hourly rate of $450.
Notwithstanding the rate scale described above, Ms. Lowry is awarded $375
per hour as lead attorney and because she has great expertise in child
welfare litigation. Ms. Lowry has been working on child welfare matters
since the early 1970s. She is the founder and executive director of CRI
and brings with her a level of experience in, and understanding of, the
issues that undoubtedly conferred a considerable benefit on the
plaintiffs. The remaining CRI attorneys' fees will be calculated as
Attorney Average Level of Hourly Rate
In addition, CRI seeks fees for the work performed by its paralegals at
an hourly rate of $75. Defendants oppose this rate and argue that the
prevailing rate in this district is $60-75. In Wilder, this Court approved
an hourly rate of $60-75 for paralegals at CRI. 975 F. Supp. at 282. Soon
after Wilder, this Court approved an hourly rate of $75 for paralegals in
another civil rights action. See Williams, 975 F. Supp. at 323. The cases
cited by defendants indicate that the prevailing market rate for
paralegal services is still within the range of $60-75. Since an hourly
rate of $75, is within the range proposed by defendants and appears
reasonable, the Court has determined to apply that rate to this case.*fn3
Plaintiffs propose rates for Schulte in accordance with the hourly
rates actually charged to the firms' fee-paying clients in the normal
course of the firm's business. The hourly rates requested for Schulte
range from $140 for first year associates to $515 for the senior
partner, David Brodsky. According to the affidavit of Mr. Brodsky, these
rates are consistent with those charged by other large New York City law
Based on the cases cited above, however, the Court finds that a more
reasonable rate scale is the one the Court used for CRI attorneys.
Because Mr. Brodsky, a seasoned litigator with over thirty years of
experience, served as co-lead counsel with Ms. Lowry and made a
significant contribution to the settlement of the case, he is also
awarded $375 per hour.
Although, courts have recognized that attorneys at large "Wall Street"
law firms may receive higher compensation due to the higher overhead and
additional costs associated with practice at such firms, see, e.g.,
Rodriguez, 84 F. Supp.2d at 421-22 (and cases cited therein), the Court
finds that the rate scale used above adequately takes into account these
additional costs and is consistent with hourly rates awarded to other
large firms in this district. See, e.g., National Helicopter, 1999 WL
562031, at *6 (finding that rates of $300450 for partners and $140-295
for associates at Dewey Ballantine are reasonable at the lower end of
those scales); Rodriguez, 84 F. Supp.2d at 422 (awarding attorneys at
Chadbourne & Parke $425 for senior partner who was an experienced
civil rights lawyer, $240 for attorney with four years of experience, and
$175 for attorney with two years of experience); TM Park Ave. Assocs., 44
F. Supp.2d at 166-68 (applying New York City rates and awarding senior
partner at Stroock Stroock & Lavan $275 hourly rate instead of
requested $460 to $505 rate, and awarding partners at Debevoise &
Plimpton and Rosenman & Colin $275 hourly rate, while awarding $200
to senior associates and $175 to junior associates).*fn4
Therefore, in addition to Mr. Brodsky's hourly rate of $375, the
Schulte attorneys' fees will be calculated according to the following
Attorney Average Level of Hourly Rate
Like CRI, Schulte also seeks fees for work performed by its
paralegals. However, unlike CRI, seeks hourly rates far in excess of $75
per hour. According to Schulte, is hourly rates range from $65-150,
depending on level of experience, paralegals' Plaintiffs have cited
several cases in which courts have awarded more experienced paralegals at
large law firms an hourly rate higher than $75, but none awarded
paralegals as much as the $150 requested by plaintiffs for Schulte
paralegals. See, e.g., Rodriguez, 84 F. Supp.2d at 427 (awarding
paralegals between $75 and $130 per hour depending on level of
experience). The Court will apply the following rates to Schulte's
paralegals, which are reasonable and within the range of rates awarded in
Paralegal Average Level of Hourly Rate
K. Brombach 15 $110 M. Alston
14 110 D. McCracken 8
90 P. Hamlen 6 75 Others
Karen Freedman is the co-founder and executive director of LCI. She has
an average of seventeen years of experience over the course of the
litigation, and therefore, will be compensated at an hourly rate of
B. Number of Hours Reasonably Expended
In determining whether the hours expended by the parties was
reasonable, the Court must
"examine the hours expended by counsel and the value
of the work product of the particular expenditures to
the client's case. . . . In making this examination,
the district court does not play the role of an
uninformed arbiter but may look to its own familiarity
with the case and its experience ...