Guckenberger v. Boston University

• Decision Date: 29 May 1998
• Docket Number: No. CIV.A. 96-11426-PBS.,CIV.A. 96-11426-PBS.
• Citation: 8 F.Supp.2d 91
• Parties: Elizabeth GUCKENBERGER, et al., Plaintiffs, v. BOSTON UNIVERSITY, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

8 F.Supp.2d 91

Elizabeth GUCKENBERGER, et al., Plaintiffs, v. BOSTON UNIVERSITY, et al., Defendants.

No. CIV.A. 96-11426-PBS.

United States District Court, D. Massachusetts.

May 29, 1998.

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Frank J. Laski, Newton, Guy B. Wallace, Laurence W. Paradis, Disability Rights Advocates, Oakland, CA, William J. Hunt, William F. Ahern, Jr., Henry W. Clark, Clark, Hunt & Embry, Cambridge, MA, Sidney Wolinsky Sid Wolinsky, Disability Rights Advocates, Oakland, CA, for Plaintiffs.

Lawrence S. Elswit, Office of the General Counsel, Michael B. Rosen, Office of the General Counsel Boston University, Judith A. Goldberg, McDermott, Will & Emory, Alan D. Rose, Rose & Associates, Erika Geetter, Boston University, Office of the General Counsel, for Boston University, Jon Westling, Craig Klafter, Defendants.

Dale C. Kerester, Lynch, Brewer, Hoffman & Sands, Boston, MA, Jo Anne Simon, Law Offices of Jo Anne Simon, Brooklyn, NY, for Loring Brinkerhoff, Defendant.

Reed Martin, Law Office of Reed Martin, Houston, TX, for National Learning Disability Association, interested party.

Sidney Wolinsky, Disability Rights Advocates, Oakland, CA, for Disability Rights Advocates, interested partys.

MEMORANDUM AND ORDER ON ASSESSMENT OF ATTORNEYS' FEES AND COSTS

SARIS, District Judge.

INTRODUCTION

After prevailing in a bench trial in a discrimination action brought by learning disabled students against a private university, plaintiffs petition for an assessment of attorneys' fees and costs under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12205, and the Rehabilitation Act, 29 U.S.C. § 794a(b). Plaintiffs request slightly more than $2 million in fees and $122,000.00 in costs for the work of eight lawyers and at least eighteen clerks in California and Massachusetts. Defendant Boston University ("BU"), asserting gross overbilling and overstaffing by plaintiffs' attorneys and arguing that plaintiffs enjoyed only limited success on the merits of their claims, vigorously attacks virtually every aspect of the fee petition and takes the position that it owes plaintiffs only $274,658.00. In support of their positions, the parties inundated the Court with hundreds of pages of briefing, mounds of billing records, surveys and audits, and at least a score of affidavits from lawyers in two cities.

After hearing and analysis of billing records, the Court ORDERS BU to pay a total of $1,247,519.50 in fees and $52,311.23 in costs.

BACKGROUND

The Court incorporates by reference the extensive analysis of the facts and legal issues in its three opinions in this case. See 957 F.Supp. 306 (D.Mass.1997) (mem. and order allowing in part and denying in part defendants' motion to dismiss and allowing plaintiffs' motion for class certification) ("Guckenberger I"); 974 F.Supp. 106 (D.Mass.1997) (findings of fact, conclusions of law, and order of judgment) ("Guckenberger II"); and Memorandum and Order on the Issue of Course Substitutions, 8 F.Supp.2d 82 (D.Mass.1998) ("Guckenberger III"). Here, the Court only reviews the germination of the case and its procedural history and summarizes the fee and cost request as essential background for the Court's determination of what award is reasonable based on these particular facts.

This case grew out of a sea change in BU's policies concerning reasonable accommodations provided to students with learning disabilities and attention deficit disorder during the 1995-96 school year. Attorney Frank Laski, a Boston-area civil rights attorney with specific experience in education issues, "received a concentration of calls" from such students and their parents in December 1995. (Laski Oct. 1 Decl. ¶ 3.) He began researching the policies of BU toward the learning disabled during that winter and early spring, first logging billable time in this matter on January 23, 1996 with a phone call to Anne Schneider, the mother of Andrea Schneider, a learning disabled BU student who ultimately became a named plaintiff. (Id. ¶ 3 & Ex. B.) Laski was responsible for contacting Attorney Sid Wolinsky, of Disability Rights Advocates ("DRA") in Oakland, California, who traveled to Boston in April 1996 for a meeting with Laski and several students and their parents. At the meeting, Wolinsky agreed on behalf of his firm to take the case jointly with Laski. (Id. ¶ 3.)

The plaintiffs' search for primary counsel prior to the April 1996 meeting was apparently limited to public interest firms or non-profit organizations with a specialty in disability law. Before DRA was retained, Laski had "urged the students and their parents to find additional counsel" besides him because none of the "non-profit centers" in Boston and Philadelphia with which he was associated could handle the case. (Laski Oct. 1 Decl. ¶ 3.) Laski decision to seek "co-counsel from outside Massachusetts" was based on his judgment that "this case required the skills, knowledge and experience of a number of attorneys who have represented persons with mental disabilities previously in actions for reasonable accommodations in the educational context." (Laski Feb. 4 Decl. ¶ 5.) Several attorneys employed by specialized non-profit organizations or public interest firms in the Boston area indicate that they could not have taken the case, and they agree with Laski that special expertise was required. (See Laski Feb. 4 Decl. ¶¶ 4-5; S. Schwartz Supp. Decl. ¶¶ 3-5; Griffin Decl. ¶¶ 4-5.) Plaintiffs largely ignored private general practice and civil rights firms in Boston and never contacted numerous prominent Boston trial attorneys. (See, e.g., Ashton Aff. ¶ 11; Pyle Aff. ¶ 6; Todd Aff. ¶ 10; H. Schwartz Aff. ¶ 6; Rapaport Aff. ¶ 10; Hernandez Aff. ¶ 10.)

Anne Schneider claims that, though she and "others ... preferred" to find a Boston firm, "[a]fter repeated efforts, we were unable to find a firm in the Boston area that had expertise in the necessary areas, that did not have a conflict, that was large enough to take on a case of this magnitude and was willing to undertake the contingent risk involved." (Schneider Aff. ¶ 7.) Schneider does not indicate which, if any, Boston attorneys she contacted. She only indicates that she contacted Professor Arthur Miller of Harvard Law School in an effort to retain counsel for her daughter and other students. Schneider writes that she and Professor Miller "mutually" felt several sole practitioners in Boston were "not appropriate," (id. ¶ 6), a claim Professor Miller himself denies. (Miller Aff. ¶¶ 3-4.) Without further elaboration, Schneider testifies that "I was informed that the best firm in the country to handle a matter of this nature was Disability Rights Advocates." (Id. ¶ 8.)

Despite the focus on disability specialists in plaintiffs' search for primary representation, they retained the private general practice firm of Clark, Hunt & Embry ("CH & E") as additional local counsel in July 1996, after DRA was retained. A "senior civil rights litigator" referred the case to Attorney Henry Clark of CH & E, which was selected, in Clark's view, because "it has the combined disabilities rights and trial experience and expertise necessary to handle a case of this nature ...." (Clark Aff. ¶ 12.) Clark's partner, Attorney William Hunt, describes Clark as "one of the two or three leading experts in the law of disabilities in New England." (Hunt Aff. ¶ 20.) Hunt also testifies that his own trial experience and abilities rendered him fully capable of handling this case, and at least one colleague supports his assertion. (See Hunt Aff. ¶¶ 3-4; LaCroix Aff. ¶ 5.) Other than CH & E, plaintiffs submit no evidence of attempts to secure non-specialized firms, whether public or private.

Several months later, ten students and four organizations sued the defendants for injunctive, declaratory and compensatory relief under the ADA, the Rehabilitation Act and state law. In the complaint, plaintiffs alleged that BU had: "unreasonably erected a series of harsh eligibility requirements for students who seek accommodations for their learning disabilities"; "subjected the students' accommodation requests to an unfair evaluation and appeal procedure"; and "imposed a discriminatory blanket prohibition against course substitutions for mathematics and foreign languages." Guckenberger I, 957 F.Supp. at 311. Additionally, plaintiffs claimed the BU "created a hostile learning environment for learning disabled students," "breached its contractual agreement to provide reasonable accommodations for such students," and caused plaintiffs emotional distress. Id.

The case was randomly assigned to this Court on July 16, 1996. Plaintiffs moved for a preliminary injunction to enjoin the change in BU's policies toward the learning disabled, but BU's agreement to a partial standstill on September 5, 1996 mooted the motion. All parties urged this Court to resolve the case before the start of the following academic year. Discovery proceeded at a fast clip. Plaintiffs moved for class certification, and BU moved to dismiss. On January 28, 1997, the Court allowed plaintiffs' motion for class certification for injunctive relief only and allowed in part and denied in part BU's motion to dismiss the majority of plaintiffs' claims and certain named plaintiffs and defendants. See id. at 327. The majority of plaintiffs' case remained intact, and BU answered on February 14, 1997. After plaintiffs' claim for class damages was denied on March 7, 1997, a ten-day bench trial was held from April 7 to April 18, 1997. The Court issued its findings of fact, conclusions of law and order of judgment on August 15, 1997. Guckenberger II, 974 F.Supp. at 106.

Both sides proclaimed victory in the media. See, e.g., Jon Westling, Editorial, One University Defeats Disability Extremists, Wall St. J., Sept. 3, 1997, at A21; Patricia Nealon, BU Loses Suit Brought By Students, Boston Globe, Aug. 16, 1997, at B1 (quoting Attorney...