N.Y. Ass'n for Retarded Children v. Cuomo, 72 CV 356 (RJD)
| Decision Date | 22 July 2019 |
| Docket Number | 72 CV 357 (RJD),72 CV 356 (RJD) |
| Parties | NEW YORK ASSOCIATION FOR RETARDED CHILDREN et al., Plaintiffs, v. ANDREW M. CUOMO, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
This motion for attorneys' fees and costs arises out of a 1972 class action ("Willowbrook Litigation") related to the deprivation of basic rights, including unclean and unsafe living conditions, of individuals with intellectual and developmental disabilities housed at the Willowbrook State Developmental Center in Staten Island, New York. The litigation resulted in a 1975 Consent Judgment, which was replaced in 1993 by a Permanent Injunction ("Injunction"). The Injunction provided for, inter alia, legal services for members of the Willowbrook class, compliance monitoring, and attorneys' fees and costs related to monitoring and enforcement of certain terms of the Injunction. After years of resolving fee disputes without court intervention, the parties have reached an unprecedented impasse. Plaintiffs' counsel now bring the instant motion for attorneys' fees and costs dating back to 2012, which the Court grants, subject to a number of modifications discussed herein.
The facts surrounding the Willowbrook Litigation and the conditions that prompted the litigation are set forth in a number of prior opinions and the Court assumes familiarity with those facts. New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983); New York State Ass'n for Retarded Children, Inc. v. Carey, 596 F.2d 27 (2d Cir. 1979); New York State Ass'n for Retarded Children, Inc. v. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975); New York State Ass'n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973). Relevant to this motion, the Injunction requires that the New York Office for People with Developmental Disabilities ("OPWDD") monitor the Willowbrook class and ensure class members receive certain Injunction-mandated services. Plaintiffs' counsel are responsible for auditing OPWDD services targeting the Willowbrook class, compiling observed systemic deficiencies and approving the OPWDD's plan to correct those deficiencies. However, attempts to resolve whether the OPWDD has, in fact, complied with its obligation to create and implement plans to correct systemic deficiencies have been unsuccessful for over 20 years. Haroules Decl., ECF No. 127, ¶ 20, n.22; Baer Decl., ECF No. 131, ¶ 19-20. Whereas the OPWDD takes the position that systemic deficiencies have been adequately corrected and Plaintiffs' counsels' monitoring and enforcement role must be dramatically reduced, if not entirely eliminated, Baer Decl. ECF No. 131, ¶¶ 18, 20, n.26, Plaintiffs' counsel maintains the OPWDD has yet to achieve full compliance with the terms of the Injunction and as a result counsel must continue to perform critical monitoring and enforcement activities, Haroules Decl., ECF No. 127, ¶ 20, n.22. Plaintiffs' counsel continues to request attorneys' fees related to those endeavors.
Plaintiffs' counsel also perform an advocacy role for the Willowbrook class pursuant to the terms of the Injunction. Counsel ensure class members receive notice with respect to any changes in placement or programming and review grievances and incident reporting with respect to Injunction compliance. Plaintiffs' counsel consists of attorneys from the New York Civil Liberties Union ("NYCLU") and New York Lawyers for the Public Interest ("NYLPI"). NYPLI "takes the lead role on due process notices" and NYCLU "addresses protection from harm issues," "guardianship matters, end of life issues, medical consent issues...research initiatives" as well as "regulatory initiatives, legislative enactments and programmatic initiatives issued by the New York State Department of Health and/or the...OPWDD." Haroules Decl., ECF No. 127, ¶¶ 19, 54. NYCLU has represented Plaintiffs since the litigation began in 1972. NYLPI has worked with NYCLU as co-counsel since 1995. Though the parties dispute the precise number of class members remaining, at the time of the 1993 Injunction Plaintiffs' counsel represented close to 6,000 class members; a little over one-third of those class members are alive today. Haroules Decl., ECF No. 127, ¶ 8; Baer Decl., ECF No. 131, ¶ 12.
For many years the parties resolved attorneys' fee disputes without court intervention. A review of the electronically-available docket going back to 1997 reveals close to 20 so-ordered stipulations and orders of settlement related to attorneys' fees and costs. Defendants, while noting the shrinking size of the Willowbrook class, at this juncture have nevertheless been willing to reimburse Plaintiffs' counsel for an expansive monitoring and consultation role with OPWDD for over 15 years. Now, however, Defendants claim Plaintiffs' counsel (i) bill at excessive hourly rates, (ii) engage in vague and duplicative block billing, and (iii) submit fee demands with unwarranted delay, undermining Defendants attempts to accurately verify timeentries. Defendants ask the Court to order Plaintiffs' counsel submit fee demands at regular intervals—at least every six months. Defendants also assert that fee demands should have been made and should now be made in accordance with Fed. R. Civ. P. 23(h), which requires any notice of motion for fees be "directed to class members in a reasonable manner," in the Court's discretion, such that class members have an opportunity to object. Plaintiffs, on the other hand, move for attorneys' fees from 2012 through 2019 claiming that counsel performs "critical post-judgment work," requiring sophistication, skill and in-depth institutional knowledge and note that Fed. R. Civ. P. 23(h) is inapplicable because counsels' fee applications are not related to a large class financial settlement in which counsel would be entitled to a portion of settlement funds available to class members. Specifically, Plaintiffs request attorneys' fees and costs in the amounts of $3,789,386.39 for NYCLU, $124,140 for NYLPI and $88,137.50 for the law firm of Kasowitz, Benson and Torres LLP ("the Kasowitz firm"), retained specifically to prepare Plaintiffs' fee application. The requested fee award is based on Southern District of New York ("SDNY") hourly billing rates between $525 and $600 for attorneys from NYCLU and NYLPI and between $300 and $925 for attorneys from the Kasowitz firm, and accounts for almost 7,000 hours of time over seven years, including over 200 hours spent preparing this fee application.
In evaluating a motion for attorneys' fees, the Court is tasked with determining a "reasonable," fee, taking into account reasonable hourly rates multiplied by the "reasonable" number of hours worked. Millea v. Metro-N. R.R. Co., 658 F.3d 154, 166-67 (2d Cir. 2011). This amount, referred to as the "lodestar," represents a presumptively reasonable fee. Id. at 166. However, "the lodestar is not always conclusive" and may be adjusted in the Court's discretion. Id. The party seeking the fee award bears the burden of submitting sufficient evidence tosupport the hourly rates and hours billed, Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hugo v. Kimso Apartments, LLC, 852 F. Supp. 2d 281, 298 (E.D.N.Y. 2012), and though the amount requested must be supported by evidence, the Court is not required to perform extensive calculations over the entire billing record in awarding attorneys' fees. Instead, the Court is permitted to "use estimates in calculating and allocating an attorney's time," and so long as such an estimate is explained and supported by law and fact, the Court's discretion will not be disturbed. Fox v. Vice, 563 U.S. 826, 838-39 (2011); Sleepy's LLC v. Select Comfort Wholesale Corp., 909 F.3d 519, 533 (2d Cir. 2018).
To determine an attorney's appropriate billing rate, the Second Circuit applies the "forum rule." The forum rule articulates a rebuttable presumption that "courts should generally use the hourly rates employed in the district in which the reviewing court sits in calculating the presumptively reasonable fee." Simmons v. New York City Transit Auth., 575 F.3d 170, 174 (2d Cir. 2009). However, "[a] district court may use an out-of-district hourly rate—or some rate in between the out-of-district rate sought and the rates charged by local attorneys—in calculating a presumptively reasonable fee if it is clear that a reasonable, paying client would have paid those higher rates" assuming that a "reasonable, paying client would in most cases hire counsel...whose rates are consistent with those charged locally." McDaniel v. County of Schenectady, 595 F.3d 411, 420-21 (2d Cir. 2010) (citing Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cty. of Albany, 493 F.3d 110, 191 (2d Cir. 2007)).
To rebut the forum rule presumption, the moving party must make a "particularized showing" demonstrating "the likelihood that the use of in-district counsel would have produced a substantially inferior result," McDaniel, 595 F.3d at 421 n.6, because, for example, "the case required special expertise beyond the competence of forum district law firms," Dzugas-Smith v. Southold Union Free School Dist., 2010 WL 3852003, at *3 (E.D.N.Y. Sept. 27, 2010) (citing Simmons v. New York City Transit Auth., 575 F.3d 170, 175 (2d Cir. 2008)); see also Vilkhu v. City of New York, 372 F. App'x 222, 224 (2d Cir. 2010) ().
The hourly billing rate must also take into account (i) the complexity and difficulty of the case, (ii) the available expertise and capacity of the client's other counsel (if any), (iii) the resources required...
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