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LV v. New York City Dep't of Education

April 1, 2010

LV, ET AL., PLAINTIFFS,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is plaintiffs' motion for an award of attorneys' fees and expenses incurred in connection with a civil rights class action. The class action resulted in a settlement that this Court approved. Defendants argue that the fees and costs requested are excessive. For the reasons below, the Court awards attorneys' fees to plaintiffs in the amount of $1,238,403.09 and costs in the amount of $123,964.45.

BACKGROUND

The Individuals with Disabilities in Education Act ("IDEA") seeks to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A). Among other things, it requires "school officials and parents of a disabled child to design an Individualized Education Program ('IEP') for each year of the child's education." LV v. New York City Dept. of Educ., No. 03-9917, 2005 WL 2298173, at *1 (S.D.N.Y. Sept. 20, 2005) (citing 20 U.S.C. §§ 1401(11), 1414(d)). Under the IDEA, states must also "offer parents and disabled students procedural safeguards to challenge the decisions of local educational agencies" with respect to a child's IEP. Id. at *1 (citing Murphy v. Arlington Central School Dist. Bd. of Educ., 297 F.3d 195, 197 (2d Cir. 2002)). New York's procedural safeguards entitle parents to a review of their child's IEP before an impartial hearing officer ("IHO"), as well as an administrative appeal of the IHO's decision ("IHO order"). See N.Y. Educ. Law § 4404.

In 2003, plaintiffs brought this class action claiming that their rights had been violated by the failure of the New York City Department of Education ("DOE") to timely implement IHO orders. They were represented by the non-profit organization Advocates for Children of New York ("AFC") and the law firm Milbank, Tweed, Hadley & McCloy LLP ("Milbank"). The Court granted plaintiffs' request for class certification. Later it amended the class definition to include an "injunctive relief subclass" and a "compensatory relief subclass." After protracted discovery and extensive negotiations, the parties agreed to a settlement on December 11, 2007 that provided compensatory and injunctive relief for the two subclasses. Following a fairness hearing on April 10, 2008, the Court approved the Stipulation and Agreement of Settlement (the "Stipulation") between the class and the defendants. The injunctive relief included a provision for the appointment of an independent auditor to monitor DOE's success in improving the implementation of IHO orders. On March 26, 2008, the Court appointed Daylight Forensic and Advisory LLC ("Daylight") to serve as the independent auditor.

The parties agreed in the Stipulation that defendants deserve reasonable attorneys' fees and reimbursement of their expenses, and they agreed to try to negotiate a fee. (See Henkin Decl. Ex. A ¶¶ 41, 42.) In the event that negotiations proved fruitless, however, the Stipulation allowed the plaintiffs to seek an award from this Court. (Id.) After unsuccessful negotiations on this issue, the plaintiffs filed this motion for $1,590,625.25 in attorneys' fees and $132,705.93 in expenses. They seek $1,072,724.00*fn1 for work performed by Milbank and $517.901.25 for work performed by AFC, and $130,133.29 for expenses incurred by Milbank and $2,572.64 for expenses incurred by AFC.

DISCUSSION

The parties have agreed that plaintiffs are entitled to reasonable attorneys' fees and costs. (See Stip. ¶¶ 41, 42.) It is plaintiffs' burden to establish "with satisfactory evidence-in addition to the attorney's own affidavits"-why their requested fee is appropriate. Chambless v. Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1059 (2d Cir. 1989). The "starting point" for calculating a reasonable attorneys' fee is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Imbeault v. Rick's Cabaret Int'l Inc., RCI, No. 08-5458, 2009 WL 2482134, at *1 (S.D.N.Y. Aug. 13, 2009) (Lynch, J.) (quoting Hensley v. Eckerhard, 461 U.S. 424, 433 (1983)). The resulting figure is the "presumptively reasonable fee," Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 522 F.3d 182, 183 (2d Cir. 2008),although it evidently "can be further adjusted as circumstances warrant," McDow v. Rosado, 657 F. Supp. 2d 463, 467 (S.D.N.Y. 2009).*fn2 Here, the defendants challenge plaintiffs' rates and hours and raise a few other miscellaneous objections.

I. Rates

A reasonable hourly rate is the rate a "paying client would be willing to pay."*fn3 Arbor Hill, 522 F.3d at 190. In determining the rate, courts should consider, among other things, the factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717--19 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92--93 (1989).*fn4

See Arbor Hill, 522 F.3d at 187. They should take into account the reality that "a paying client wishes to spend the least amount possible to litigate the case in an effective manner." Kahlil v. Original Old Homestead Restaurant, Inc., 657 F. Supp. 2d 470, 475 (S.D.N.Y. 2009). Courts may also rely on their "own knowledge of comparable rates charged by lawyers in the district." Robinson v. City of New York, No. 05-9545, 2009 WL 3109846, at *4 (S.D.N.Y. Sept. 29, 2009) (Lynch, J.) (internal quotation marks and citation omitted). "[C]urrent rates, rather than historical rates, should be applied in order to compensate for the delay in payment . . . ." LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998).*fn5 Those rates, however, should still take into consideration "the varying level of experience of the lawyers over the course of the litigation." Davis v. New York City Hous. Authority, Nos. 90-628, 92-4873, 2002 WL 31748586, at *2 (S.D.N.Y. Dec. 6, 2002); Marisol A. v. Giuliani, 111 F. Supp. 2d 381, 387 n.2 (S.D.N.Y. 2000) ("Each attorney should receive fees based on the average of his or her level of experience over the course of the litigation, as opposed to their current level of experience.").*fn6

The reasonable hourly rate is determined "by reference to prevailing rates in the community for similar services by lawyers of reasonably comparable skill, expertise, and reputation." McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension, 450 F.3d 91, 97 n.6 (2d Cir. 2006) (citations and alterations omitted). The Second Circuit has said that "[t]o define markets simply by geography is too simplistic. Sometimes, legal markets may be defined by practice area." Arbor Hill, 522 F.3d at 192. Even according to that principle, however, determining the relevant market for the legal services provided in this case is far from simple. To be sure, this was a civil rights lawsuit, which counsels in favor of awarding rates of the sort lawyers generally garner in that substantive area of practice. But civil rights lawyers, like lawyers in other areas of practice, do not all perform similar services and are not all of comparable skill, expertise, and reputation. Milbank and AFC represented a class of plaintiffs in a class action alleging systemic violations of state and federal statutes and federal constitutional law.*fn7 The matter was factually and logistically challenging to say the least. It involved a substantial amount of discovery, particularly because DOE had no centralized system for documenting its implementation of IHO orders. (See Defs.' Br. 20.) It required plaintiffs' lawyers to collect, organize, and analyze a very large number of documents to assess how well DOE had implemented IHO orders. And it occasioned the use of statistical analysis, because during discovery defendants proposed using statistical sampling to retrieve certain representative documents without having to produce them all. In short, viewed on the spectrum of civil rights cases, this case was much more complex than the ordinary single-plaintiff lawsuit.

As the particular challenges of this litigation underscore, there are at least two overlapping markets here-one for the provision of complex class action legal services, the other for the provision of civil rights legal services. In measuring the reasonableness of plaintiffs' hourly rates, it would be a mistake to seek guidance from one of these markets to the exclusion of the other. Accordingly, the Court finds it appropriate to look to rates courts in this district have awarded in similarly complex civil rights cases, remembering that lawyers with the skills and resources necessary to litigate this case generally command higher rates. Cf. Arbor Hill, 522 F.3d at 184 (in determining reasonable hourly rates, district court may consider, among other things, "the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), [and] the resources required to prosecute the case effectively"). With these observations in mind, the Court turns to the alleged deficiencies in Milbank's and AFC's requested rates.

A. Milbank Lawyers

Defendants contend that Milbank's fees should be reduced because none of its attorneys working on this case has professed to have any experience in civil rights or education law. (Defs.' Br. 6.) Even if that is true, however, experience in the substantive field of law is only one way to assess lawyers' skill and expertise. A class action like this one requires a large number of skills, many of them unrelated to intimate knowledge of the relevant law. See Simmonds v. New York City Dept. of Corrections, No. 06-5298, 2008 WL 4303474, at *4 (S.D.N.Y. Sept. 16, 2008) (although putative civil rights plaintiffs might be unwilling to pay a large law firm its usual rates, they might well pay a reduced rate to take advance of the firm's "expertise in federal litigation and trial practice"). On this point Robinson v. City of New York, No. 05-9545, 2009 WL 3109846 (S.D.N.Y. Sept. 29, 2009),is instructive. There, Judge Lynch found that employment discrimination lawyers' experience was "wholly transferable and relevant" to a civil rights case. Id at *5. The case involved no "difficult or novel issues in employment law, but rather was proved through an assiduous review of numerous records"; the skills required were "investigative and trial-oriented, not conceptual or based in expertise in substantive law." Id. So too here, where the case's particular complexity stemmed more from ...


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