Case Nos. 14-4083/14-4084/14-4132/14-4133/15-3295/15-3296/15-3380/15-3381 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT NORTHEAST OHIO COALITION, et al, Plaintiffs-Appellees/Cross Appellants v. JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee And SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al, Plaintiffs-Appellees/Cross Appellants v. JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO; CASE NOS. 2:06CV00896/2:12CV00562 FIRST BRIEF OF DEFENDANT-APPELLANT/CROSS-APPELLEE JON HUSTED, SECRETARY OF STATE AND STATE OF OHIO MICHAEL DEWINE Ohio Attorney General ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 [email protected][email protected]Counsel for Defendant-Appellant/Cross-Appellee Jon Husted, Secretary of State and State of Ohio
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Case Nos. 14-4083/14-4084/14-4132/14-4133/15-3295/15-3296/15-3380/15-3381
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
NORTHEAST OHIO COALITION, et al,
Plaintiffs-Appellees/Cross Appellants v.
JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee
And
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al,
Plaintiffs-Appellees/Cross Appellants v.
JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO; CASE NOS. 2:06CV00896/2:12CV00562
FIRST BRIEF OF DEFENDANT-APPELLANT/CROSS-APPELLEE
JON HUSTED, SECRETARY OF STATE AND STATE OF OHIO
MICHAEL DEWINE Ohio Attorney General
ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 [email protected][email protected] Counsel for Defendant-Appellant/Cross-Appellee
Jon Husted, Secretary of State and State of Ohio
Counsel for Plaintiffs-Appellees/Cross Appellants: STEPHEN P. BERZON BARBARA J. CHISHOLM STACEY M. LEYTON DANIELLE LEONARD Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco CA 94108 Tel: 415-421-7151 [email protected][email protected][email protected][email protected] CATHRINE J. HARSHMAN MICHAEL J. HUNTER Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus OH 43221 Tel: 614-442-5626 [email protected][email protected] Counsel for Service Employees International Union Local 1 SUBODH CHANDRA SANDHYA GUPTA The Chandra Law Firm 1265 West 6th Street, Suite 400 Cleveland OH 44113 Tel: 216-578-1700 [email protected][email protected] Counsel for Northeast Ohio Coalition for the Homeless and Service Employees International Union Local 1
CAROLINE H. GENTRY Porter Wright Morris & Arthur, LLP One South Main Street, Suite 1600 Dayton OH 45402 Tel: 937-449-6748 [email protected] Counsel for Northeast Ohio Coalition for the Homeless and Columbus Coalition for the Homeless DONALD J. MCTIGUE MARK A. MCGINNIS J. COREY COLOMBO McTigue McGinnis & Colombo, LLC 545 East Town Street Columbus OH 43215 Tel: 614-263-7000 [email protected][email protected][email protected] Counsel for Ohio Democratic Party
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... v
I. The district court abused its discretion by awarding 6,000+ hours. .............................................................................................................. 17
A. A reasonable hour total must exclude hours not reasonably expended: courts should exclude hours for lack of billing judgment; overstaffing; and insufficient documentation. .................................................................................... 17
iii
B. Counsel requested, and received, excessive hours. ............................. 22
1. Counsel billed for unreasonably high attendance at, and travel to, court proceedings. .......................................... 23
2. Counsel spent unreasonable time conferencing with one another. ....................................................................... 30
3. Counsel billed for unreasonable levels of research. ................. 33
4. Counsel overbill for drafting and editing filings. ..................... 36
5. Counsel should not charge the State ~150 hours for an unfiled proposal. ................................................................... 41
6. Counsel billed for unnecessarily cumulative discovery. .................................................................................. 42
7. Counsel billed unreasonable time for the NEOCH Consent Decree extension. ........................................................ 45
8. SEIU attorneys spent unreasonable time on post-appeal activities, including obtaining unopposed relief. ......................................................................................... 47
9. Counsel overbill for trying to hold nonparty relators in contempt. .................................................................. 49
10. Counsel should not bill the State 100+ hours for their abandoned attempt to certify a class of separate defendants. .................................................................. 50
11. The NEOCH motion to modify was duplicative of, and subsumed by, the SEIU preliminary injunction motion. ...................................................................................... 52
C. This Court should mandate an across-the-board hour reduction; at a minimum, a more thorough review and a better explanation are necessary. ......................................................... 55
iv
II. The district court abused its discretion by awarding too high of rates to too many lawyers. ............................................................................. 57
A. A reasonable rate is a rate sufficient to encourage capable representation in the local market; it is not what a precise attorney might charge a well-to-do client. .......................................... 59
B. The rates awarded exceed what was necessary to attract capable counsel in Southern Ohio. ...................................................... 61
1. The district court’s award is inconsistent with prior awards in Ohio election-related cases. ...................................... 61
2. Other evidence demonstrates these rates are unreasonable. ............................................................................. 65
CERTIFICATE OF COMPLIANCE ....................................................................... 72
DESIGNATION OF DISTRICT COURT RECORD ............................................. 73
v
TABLE OF AUTHORITIES
Cases Page(s)
ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999) .....................................................................passim
Amedisys, Inc. v. Nat’l Century Fin. Enterprises, Inc., No. 2:04-CV-493, 2006 WL 1209372 (S.D. Ohio May 2, 2006) ....................... 20
Auto Alliance Intern., Inc. v. U.S. Customs Serv., 155 F.App’x 226 (6th Cir. 2005) ........................................................................ 55
Ceres Env’l Servs., Inc. v. Col. McCrary Trucking, LLC, 476 F.App’x 198 (11th Cir. 2012) ...................................................................... 21
Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp. 1017 (N.D. Ohio 1997) .................................................................. 31
Coulter v. State of Tenn., 805 F.2d 146 (6th Cir. 1986) ............................................................ 19, 34, 55, 60
In re Donovan, 877 F.2d 982 (D.C. Cir. 1989) ............................................................................ 20
Evans v. Port Authority of New York & New Jersey, 273 F.3d 346 (3rd Cir. 2001) .............................................................................. 68
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) .............................................................................. 23
Kentucky Restaurant Concepts Inc. v. City of Louisville, 117 F.App’x 415 (6th Cir. 2004) .................................................................. 19, 61
Lamar Advertising Co. v. Charter Tp. of Van Buren, 178 F.App’x 498 (6th Cir. 2006) ........................................................................ 59
Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991) ............................................................................... 55
Lib. Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL 4833033 (S.D. Ohio Sept. 11, 2013).......... 62, 64, 68
Project Vote v. Blackwell, No. 1:06–CV–1628, 2009 WL 917737 (N.D. Ohio Mar. 31, 2009) ...... 63, 65, 68
viii
Cases Page(s)
Ray v. Franklin Cnty. BOE, No. 2:08–CV–1086, 2009 WL 1542737 (S.D. Ohio June 2, 2009) ................... 63
Riley v. City of Jackson, Miss., 99 F.3d 757 (5th Cir. 1996) ................................................................................ 30
Robinson v. Elida Local Sch. Dist., Bd. of Educ., 99 F.3d 1139, 1996 WL 593535 (6th Cir. Oct. 15, 1996) .................................. 29
Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608 (6th Cir. 2013) ............................................................ 13, 16, 50, 51
Schlacher v. Law Offices of Phillip J. Rotche & Assoc., P.C., 574 F.3d 852 (7th Cir. 2009) .............................................................................. 18
hours, requesting ~$120,000, for this isolated issue. Id., PageID#13719. The State
opposed the request as unreasonably high. SEIU-Doc.390, PageID#13779-97.
III. 13BThe district court’s fee award
On September 29, 2014, the district court granted Plaintiffs’ three fee
motions with only slight modifications. NEOCH-Doc.436/SEIU-Doc.140,
PageID#7458-88.
The court offered limited analysis addressing the State’s first challenge
(excessive hours for necessary work), stating that it reviewed counsel’s
billing/declarations and found “no unnecessary duplication and that the time spent
was reasonable.” Id., PageID#7463-66. The court accused the State of
“invoke[ing] a phantom specter”, implying that the State’s hour challenges
12
consisted of “conclusory allegations”. Id., PageID#7466. The court then
addressed the State’s second challenge (hours for unnecessary/unsuccessful work).
Id., PageID#7467-76.
Of the thousands of hours submitted, the court cut fewer than forty main-
case hours (re: third-party intervention).2F
3 See id., PageID#7475-76. Consistent
with binding precedent, the court limited “fees for fees” hours (time obtaining
attorney fees) to 3% of time on the main cases. Id., PageID#7469-70.
The court made minor reductions to requested hourly rates, awarding rates
ranging from $215-$600/hour. Id., PageID#7485. The twenty-five rates average
$378/hour.3F
4 Twenty-one attorneys received $300/hour or above, with ten of these
twenty-one receiving $425/hour or above.
Plaintiffs submitted a bill calculating the award. NEOCH-Doc.428/SEIU-
Doc.142, PageID#7491-97. It was for 6,147 total hours. Id. The court approved
Plaintiffs’ bill on February 17, 2015, awarding $2,227,179.90 in fees and costs.
NEOCH-Doc.444/SEIU-Doc.147, PageID#7687-96.
3 In reply, Plaintiffs also withdrew ~80 hours initially submitted. 4 Although excluded from the initial decision, Ms. Trice received $240/hour. NEOCH-Doc.444/SEIU-Doc.147, PageID#7694-95.
13
6BSUMMARY OF ARGUMENT
There are “two sides to these attorney-fee debates,” both of which the Court
must honor. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 612 (6th Cir. 2013).
On one side, Ҥ 1988 plays a critical role in ensur[ing] that federal rights are
adequately enforced, and attorneys have every right to be compensated for any fees
and expenses they reasonably incur.” Id. (internal quotations omitted). But, on the
other side, “§ 1988 occasionally is misunderstood and misused”; “these cases can
all too easily become a way of life for the attorneys involved, and consequently
over time it can become increasingly unclear, for both the attorneys and the courts,
precisely what work falls within the ambit of § 1988.” Id. What both the Supreme
Court and this Court have made “abundantly clear” is that “the aim of [§ 1988] is
not for the purpose of aiding lawyers. The purpose of th[e] bill is to aid civil
rights.” Id. (internal quotations omitted); Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 552 (2010) (the statute’s aim is “not to provide a form of economic relief
to improve the financial lot of attorneys”) (internal quotations omitted).
The fee award goes against this aim. It is markedly unreasonable as to both
lodestar factors.
First, the thousands of hours far exceed reasonableness. Counsel could have
performed the tasks necessary in these cases, at a high level, in far less time.
Billing entries reveal that counsel overstaffed and overlawyered this litigation.
14
And while counsel’s rates suggest considerable experience, their hours do not
reflect corresponding efficiency.
Many elements contributed to overbilling. The sheer volume of attorneys
naturally resulted in duplication. Counsel staffed these cases with a combined
twenty-five attorneys (and teams of paralegals/law clerks), using six to thirteen
lawyers on most projects. A closer review of the 6,000+ hour total uncovers
several unreasonable practices:
1. unduly high attendance at, and travel to, court proceedings;
2. inordinate time conferencing among co-counsel;
3. unreasonably high/duplicative research hours;
4. unreasonable time drafting/editing/reviewing filings;
5. unnecessary time drafting an unfiled law/fact proposal;
6. unnecessarily cumulative discovery;
7. unreasonable time obtaining the Consent Decree extension;
8. unreasonable time obtaining an unopposed permanent injunction;
9. unreasonable time trying to hold nonparty relators in contempt;
10. billing for an unnecessary attempt to certify a separate defendant class; and
11. billing for a NEOCH motion to modify that was duplicative of, and subsumed by, the SEIU motion for preliminary injunction.
15
Counsel did not meet their burden of justifying this billing. And, given detailed
challenges and the many hours at stake, the court’s minimal hours analysis was
insufficient.
Second, the district court awarded rates too high to too many lawyers. In
assigning reasonable rates, the question is not what rates these precise lawyers
might be able to charge some well-to-do client willing to spare no expense. The
controlling question is what rates are sufficient to attract capable representation in
the local market. The awarded rates (especially the many $425+ rates) go well
beyond the rates necessary to incentivize capable counsel in Southern Ohio. The
significant gap between the awarded rates and previous Ohio awards makes the
court’s error plain. And the court’s error is exacerbated by the fact that it did not
just award high rates to a few lawyers, it awarded high rates to more than twenty.
Based on these problems, the district court abused its discretion; this Court
should reverse and remand for a substantial decrease of the award.
16
7BARGUMENT
Section 1988 permits “reasonable attorney’s fee[s]” to prevailing parties. 42
U.S.C. § 1988(b). Reasonable fees strike the balance of (1) being “adequately
compensatory to attract competent counsel”, but not (2) “producing a windfall for
(6th Cir. 2014). “[T]he lodestar calculation is objective” and “cabins the discretion
of trial judges, permits meaningful judicial review, and produces reasonably
predictable results.” Perdue, 559 U.S. at 552 (internal quotations omitted).
Here, the district court abused its discretion in determining both lodestar
factors.
I. 14BThe district court abused its discretion by awarding 6,000+ hours.
A. 21BA reasonable hour total must exclude hours not reasonably expended: courts should exclude hours for lack of billing judgment; overstaffing; and insufficient documentation.
In determining hours, a court must “exclude from this initial fee calculation
hours that were not ‘reasonably expended.’” Hensley, 461 U.S. at 434 (quoting
legislative history). A few considerations are especially relevant.
Billing Judgment. Like private attorneys, attorneys seeking statutory fees
must exercise billing judgment as to their hours. Id. (“In the private sector, billing
judgment is an important component in fee setting. It is no less important here.”)
(internal quotations omitted). “Counsel for the prevailing party should make a
18
good faith effort to exclude from a fee request hours that are excessive, redundant,
or otherwise unnecessary, just as a lawyer in private practice ethically is obligated
to exclude such hours from his fee submission.” Id.
Inherent in billing judgment is the commonsense notion that lawyers should
bill fee-paying defendants in the same manner as reasonable clients. Id. “Hours
that are not properly billed to one’s client also are not properly billed to one’s
adversary pursuant to statutory authority.” Id. (internal quotations omitted,
emphasis in original).
Overstaffing. Of importance here, courts must account for overstaffing
when calculating hours. Hensley, 461 U.S. at 434. “There is nothing inherently
unreasonable about a client having multiple attorneys”, but groups of attorneys
cannot charge for “unreasonably doing the same work” and must demonstrate “the
distinct contribution of each lawyer”. ACLU of Georgia v. Barnes, 168 F.3d 423,
conferences to be excessive “especially when many are described simply as
‘regarding status.’”); Harkless v. Husted, No. 1:06-cv-02284, 2011 WL 2149179,
at *21 (N.D. Ohio Mar. 31, 2011) (“Plaintiffs’ counsel spent an incredible amount
of time emailing, conferencing, meeting, consulting and developing strategy.”)
(adopted with modification by 2011 WL 2149138).
In re Olson, 884 F.2d 1415 (D.C. Cir. 1989) is instructive. That court
reduced fees by ten percent based on insufficient documentation and over-
conferencing. Id. at 219. The court concluded that frequent conferencing among
experienced attorneys resulted in significant redundancy and inefficiency:
The attorneys also engaged in a plethora of conferences, most often denoted simply as “strategy” conferences, consuming the time of several attorneys who bill at very high rates. The hourly rates charged are of such magnitude as to indicate that the attorneys should have been able to decide on the proper strategy without the great number of strategy conferences attended by numerous firm lawyers. . . . We recognize that the case was very important, protracted, unique and was very ably handled, but we find that the number of conferences among the twenty-one attorneys who did some work on the matter were excessive.
Id. (emphases added, internal citation omitted).
As in In re Olsen, these cases involve unreasonable amounts of
conferencing. Even quick review of billing entries reveals many “strategy
32
conferences” among counsel and staff. See NEOCH-Doc.393-3; SEIU-Doc.120-3.
On closer inspection, 1,190 entries—659 in SEIU, 531 in NEOCH—include some
form of internal conference. NEOCH-Doc.407-4; SEIU-Doc.131-3. These
conferences often involved three or more attorneys, and many lasted an hour or
longer. See id. The entries describe conferences on virtually every subject,
including narrow topics such as “related case notice”; “privity”; “cite check”;
“harm standards”; “indexing Hunter transcript”; “county pleadings”; and “potential
amicus brief”. Id.
Routine block billing makes it impossible to tell how much time is billed
just for conferencing. But the total is quite large. Even conservative estimates,
completely omitting ~250 block bills of 2+ hours, suggest the legal teams are
charging for 650+ conferencing hours (~300 in NEOCH, ~370 in SEIU). See id.
This estimate is more than a tenth of the awarded hours.
Counsel also seek many hours for emailing. See Harkless, 2011 WL
2149179, at *21 (rebuking attorneys for an “incredible amount of time emailing”).
The problem with frequent email billing is that it allows many attorneys—copied
on emails—to bill for emails regardless of their actual involvement.
Mr. McTigue’s billing demonstrates this problem. His entries reflect a
limited role in NEOCH. See NEOCH-Doc.393-12. So his billing centers on
emails. Of his 137 billing entries (~108 hours) for the primary NEOCH fee
motion,
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hourly rates for experienced counsel in § 1983 litigation is that their very
experience and skill will result in economies of time because of their lack of need
for extensive background legal research.”) (emphasis added).
Counsel billed for excessive research and review of pleadings. Although
block billing makes precision difficult, NEOCH/SEIU legal teams apparently billed
at least 750 hours devoted to research activities. See NEOCH-Doc.407-21; SEIU-
Doc.131-22. Specifically, omitting research block billed with drafting, the SEIU
team billed ~400 hours for research-related activities. SEIU-Doc.131-22.
Applying the same method, the NEOCH team billed ~370 hours. NEOCH-
Doc.407-21. Billing entries report long chunks of research, including ~50 billing
entries of five hours or longer consisting primarily, or solely, of research.
NEOCH-Doc.407-21; SEIU-Doc.131-22.
35
Some highlights:
x Fifteen NEOCH attorneys billed their own research;
x Eight SEIU attorneys billed their own research;
x On April 17, 2012, four different attorneys billed between 2-5 hours with the same billing descriptions, “Review and analyze Niehaus complaint; confer with co-counsel”, NEOCH-Doc.393-8, PageID#13959;
x Ms. Reddy billed 20+ hours researching “expansion of consent decree” in just two days, NEOCH-Doc.393-3, PageID#13918;
* * * 5 This does not include a 12.6 hour entry from Ms. Leonard referencing the related-case notice. SEIU-Doc.120-3, PageID#6870.
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43
State estimates 1300+ hours for coordinating discovery, organizing evidence, and
filing declarations/exhibits.
The universe of discovery counsel chose was overbroad for fee purposes.
Rather than conducting discovery on sample counties, counsel conducted
discovery—via public-record requests/subpoenas—on all eighty-eight Boards of
Elections. In Harkless, the Northern District of Ohio criticized a similar choice.
2011 WL 2149138, at *2. The court held that “conducting discovery in all 88 Ohio
counties was excessive”, resulted in “significant and unnecessary fees for
document review and cataloguing”, and led to “duplicative and unnecessary
expenses.” Id. (internal quotations omitted).
Counsel’s decision to conduct discovery on every Ohio County resulted in
unreasonable hour totals. Counsel’s 2012 bills are full of entries for coordinating
and cataloguing discovery. For instance, from May 24-25 staff charged ~30 hours
to travel to counties and pick-up/inspect documents. NEOCH-Doc.393-8,
PageID#13962-63; but see R.C. 149.43(B)(7) (allowing public records to be sent
by mail or other means). Mr. Klaus submitted repeated entries referencing what
appear to be clerical discovery tasks, e.g., cataloguing emails and compiling
records. NEOCH-Doc.393-8, PageID#13963-65. Over just two days in June, he
billed 15+ hours for such activities, including “creating spreadsheet showing status
of public record requests to each county”. Id., PageID#13964.
44
More senior attorneys also benefitted from extensive discovery billing. For
example, Ms. Harshman ($300/hour) block billed 12 hours for “Preparation of
BOE subpoenas; request for production” on June 29; Mr. Hunter ($450/hour) block
billed another 6 hours that same day with an identical billing description. SEIU-
Doc.120-7, PageID#6941. Between July 2-11, Ms. Harshman reported ~60 hours
of document review and conferencing with Boards. Id.
Counsel also filed an unnecessary number of declarations. NEOCH
Plaintiffs, for instance, submitted seventeen declarations (eight reply declarations)
with their motion to modify. NEOCH-Docs.289-97, 311-18. SEIU Plaintiffs
similarly filed many declarations, reply declarations, and supplemental reply
declarations regarding their preliminary injunction motion. SEIU-Docs.4-1–4-7, 7-
13, 24, 34-35, 37-38, 41, 44-45, 48, 53, 55. These declarations often came from
the same individuals and involved highly-similar evidence.
The constant filing/re-filing of declarations led to redundant hours. The
legal teams submit numerous hours drafting, editing, reviewing, analyzing,
redacting, discussing, fact-checking, compiling exhibits for, finalizing, and filing
these declarations. In SEIU, seven different attorneys just from Alschuler-Berzon
billed for drafting, editing, and/or reviewing declarations. SEIU-Doc.120-3. From
June 13-17, Ms. Reddy billed 44.3 hours for reviewing documents and drafting
declarations. Id., PageID#6877. During the same period, Ms. Cincotta spent ~25
hours re
June 18
declarat
June 22
complai
T
reasona
absolute
costs or
diminish
no such
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quickly
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documents
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IU-Doc.12
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ther topics
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EOCH-Do
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practices,
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0-7, PageI
d: “Prepara
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#7466.
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D#6866. F
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14.5 hour
ctronic filin
he State a
give attor
no matter
very costs
here acted
nal benefit
se. The c
s involved,
rly cumula
OCH Con
ining the 2
to extend
From
and
rs on
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as a
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r the
s and
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court
, but
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nsent
2013
d the
46
Consent Decree, counsel billed ~335 hours.5F
6 NEOCH-Doc.428, PageID#15256.
Review of billing reflects ~150 hours regarding deciding to file; researching;
drafting; editing; and talking about their motion to extend. See NEOCH-Docs.388-
3, 388-4, 388-6. Excluding tables of contents/authorities, the motion is ~twenty-
five pages. NEOCH-Doc.362, PageID#12925-54. As one example of this
“extension” billing, on April 5, Ms. Gupta billed 2.9 hours solely referencing
discussions with Mr. Chandra and Mr. McTigue. NEOCH-Docs.388-3,
PageID#13736. These two attorneys, however, each only billed an hour for these
discussions. Id.; NEOCH-Doc.388-4, PageID#13755.
Counsel submitted ~65 more hours for reply-related activities. See
NEOCH-Docs.388-3, 388-4, 388-6. They also included ~28 hours of billing
entries referencing 2013 mediation (also concerning other issues/appeals).
NEOCH-Docs.388-3, PageID#13732-42. Finally, counsel charged ~80 hours for
argument preparation, attendance, and travel. NEOCH-Docs.388-3, 388-4, 388-6.
Billing ~335 hours for the extension (not appealed) was unreasonable.
When counsel performed this work, they were already familiar with NEOCH.
They should have been able to address this limited topic in significantly less time.
Over $115,000 for ~fifty pages of briefing and an hour-long argument is excessive.
6 Because NEOCH Plaintiffs moved separately for these hours (NEOCH-Doc.388), they are not included within above hour totals for conferencing and researching.
S
prelimin
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counsel
order, a
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location/w
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-appeal bi
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-92.
illed ~100
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ttorneys ss, includin
illing simi
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five page m
tion/propos
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the only 2
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88-91. Th
ecinct bal
orneys cha
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0 hours (en
gs. Id., P
ior SEIU e
47
spent unrng obtainin
ilarly refle
merits of
opposition
motion, eig
sed order
ours for 20
2013 work
lace/wrong
s for 2013
his mediat
llots (e.g.,
rged ~50
egy memo”
ntries from
PageID#71
experience,
reasonableng unoppo
ects lack
f correct
n (based
ght additio
seeking e
013 post-a
within the
g precinct
mediation
tion focus
, wrong
hours for
” and revie
m seven att
85-88. In
, counsel d
e time onosed relief
of judgm
location/w
on prelim
onal exhibi
expedited
appeal acti
e scope of
t permane
n, with entr
sed on issu
location/w
assorted 2
ewing NEO
torneys) re
nstead of
delegated d
n post-apf.
ment. De
wrong prec
minary rulin
its, a prop
considera
ivities. SE
f the SEIU
ent injunc
ries from se
ues other
wrong prec
2013 activ
OCH litiga
elating to
assigning
drafting to
ppeal
spite
cinct
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osed
ation.
EIU-
U fee
ction.
even
than
cinct
vities
ation.
their
g the
Ms.
48
Trice, who had no SEIU experience. She spent ~69 hours on permanent-injunction
activities. SEIU-Doc.120-3, PageID#6882-83.
The many hours on this stage of litigation were inappropriate. The State did
not oppose a correct location/wrong precinct permanent injunction following
appeal. SEIU-Doc.110, PageID#6709 (“As Defendants previously represented to
the Court, Defendants fully expected to be able to agree to convert the preliminary
injunction into a permanent injunction.”). The State’s failure to agree to the
precise language of Plaintiffs’ proposed filing did not justify re-litigation.
Consistent with the State’s position, the district court only felt a four-page order,
incorporating preliminary rulings, was necessary. SEIU-Doc.112, PageID#6718-
21.
The district court erred in allowing unreduced post-appeal billing. The
merits of the correct location/wrong precinct challenges were fully litigated at the
preliminary stage, and the State did not oppose permanent relief. Consequently,
there was no reason to think anything more than a short, unopposed motion for
permanent relief, incorporating past decisions, was necessary. After summarizing
the parties’ positions, the court stated that it was satisfied with counsel’s billing.
NEOCH-Doc.426/SEIU-Doc.140, PageID#7471-72. The court did not adequately
explain, however, why it was reasonable to bill ~100 hours for already-litigated,
unoppo
SEIU bi
T
Court sh
constitu
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As deta
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giving
NEOCH
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twenty
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sed relief.
illing.
These billin
hould not a
utional issu
9.
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ailed abov
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relators th
H-Doc.261
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ys) referen
block bill
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avily billed
culation, th
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nce contem
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lled the St
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, PageID#
court did n
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f piling on
gated and t
overbillpt.
unsuccessf
ving to en
ause procee
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5817.
d the State
hey spent 5
3, PageID#
mpt. NEO
urs focus
ate ~90 ho
mus action
13819.
49
not address
bling not o
permanen
the State no
for tryin
ful contem
njoin the
edings. Th
ply with t
e for their c
532 hours o
#13819. A
CH-Doc.4
on contem
ours of ant
n, where th
the other
only here, b
nt-injunctio
o longer op
ng to hold
mpt request
2012 man
he district c
the injunc
contempt r
on the “mo
Approximat
407-8. Ev
mpt. Id. A
ticipatory w
the Secreta
80+ hours
but for futu
on fees afte
pposes reli
d nonpart
t are likew
ndamus ac
court denie
ction (whi
request (ag
otion to en
tely 130 h
en comple
And, even
work regar
ary was th
of post-ap
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er the meri
ief.
ty relator
wise exces
ction, NEO
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gainst relat
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hours (from
etely remo
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ppeal
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OCH
uest,
did).
tors).
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ourt accept
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contempt
ontempt re
of the mot
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essing the
forget tha
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rages stick
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t court ab
ted withou
/SEIU-Doc
of its ow
erization t
oc.140, Pa
unsel to spe
35BCounsel abandon
lled for th
of all me
n charging
hours, at a
quest was
tion to enj
hours on
e reasonab
at State De
d at 635 (h
king defen
used its d
ut qualific
c.140, Pag
wn decisi
that the co
ageID#747
end so man
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embers of
the State
50
a minimum
only a sm
njoin). NE
this subjec
leness of
efendants d
holding, in
ndant with
discretion b
cation that
geID#7474
on, NEOC
ontempt re
74. The c
ny hours o
not bill tpt to certif
cessary an
f Ohio’s e
for litigati
m, are unre
mall piece o
EOCH-Do
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charging
did not con
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4-75. It ev
CH-Doc.26
equest was
court did n
on this issu
the State fy a class o
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eighty-eigh
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easonable.
of injunctio
c.246, Pag
involved b
the State
ntrol the tw
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’s billing
ven agreed—
61, PageID
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100+ hoof separat
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xt, attorney
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D#5817—
ied. NEO
in why it
not.
urs for tte defenda
pt to certi
of Electi
rties (the S
ast to
dings
8-34.
ards.
, the
ators’
y-fee
tion”
lling.
ified.
g the
—with
OCH-
was
their ants.
ify a
ions.
State
51
took no position). Cf. Binta, 710 F.3d at 635. SEIU Plaintiffs voluntarily
withdrew their certification attempt, moving to amend their complaint. Yet,
counsel billed ~115 hours for their failed attempt to certify a separate defendant
class, and their ultimate decision to amend. SEIU-Doc.131-6.
Counsel’s time was completely unnecessary. As early as June 27, 2012, the
district court questioned why—given time constraints and the Secretary’s
participation—such a class was necessary. Tr.6/27/12, NEOCH-Doc.329,
PageID#12259-12263; see, e.g., id., PageID#12262 (Q: “Aren’t [Board members]
duty-bound by state law to follow the directives of the secretary?”, A:“They are
duty-bound.”). Ohio law confirms that the Secretary has authority over Board
members. See, e.g., R.C. 3501.05(B) (detailing Secretary’s authority to direct
Board members). Nevertheless, SEIU Plaintiffs filed the motion to certify (two
days after the court’s questioning). And even though they eventually sought
(unopposed) to withdraw class pleadings, they took the time (during the same
period) to draft a separate reply brief. See SEIU-Doc.131-6.
Counsel’s certification attempt was wasted time, and the State should not be
charged for it. In holding that counsel’s hours were “not unreasonable”, the court
rested on a confusing comparison between Board members and the two legislators
that brought the Supreme Court mandamus action. See NEOCH-Doc.426/SEIU-
Doc.140, PageID#7472-73 (emphasis in original). This is apples and oranges.
Pursuan
making
superflu
Furtherm
Consent
Decree
F
NEOCH
motion
was dup
N
modific
alleged
Doc.288
filed a s
also re
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7 Ten of
nt to Ohio
their pa
uous. The
more, as S
t Decree,
had any be
11.
Finally, cou
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for prelim
plicative.
NEOCH P
cation of th
ongoing e
8. Two d
separate m
ested on e
onal ballot
oters.
f the twelv
o law, the
articipation
e Secretary
SEIU was
it is unc
earing on n
36BThe NEsubsume
unsel shou
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minary injun
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equal prote
days later,
otion for p
equal pro
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n in a s
y has no c
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EOCH moed by, the
uld not hav
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SEIU Pla
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and sough
orneys wer52
has direc
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SEIU defen
otion to mSEIU pre
ve billed a
tion to mod
SEIU, and,
motion
—applying
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aintiffs, rep
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nd substan
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re also NE
ct authority
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modify weliminary i
any hours,
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therefore,
to modify
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e due proc
presented
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EOCH attor
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ty over Oh
ments, no
regarding
as duplicinjunction
much less
subsumed b
, billing fo
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SSN-4 vot
cess violati
by the sam
Doc.4. The
process
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rneys.
oard memb
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hio legisla
t the NEO
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cative of, n motion.
s 300+, for
by the bro
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e 20, see
ters—based
ons. NEO
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OCH
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and
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OCH-
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7
otion
s to
to all
53
The district court granted the SEIU injunction (ultimately affirmed in part,
reversed in part). SEIU-Doc.67, PageID#5886-88. In light of SEIU relief, the
court indefinitely stayed the motion to modify. Id. Although counsel charged the
State hundreds of hours for researching and drafting the SEIU motion (see, e.g.,
SEIU-Doc.131-12, 131-22), they billed an additional 305.3 hours for the motion to
modify. NEOCH-Doc.393, PageID#13819. Notably, Alschuler-Berzon, the
primary SEIU firm, billed 212.6 hours for the motion to modify. NEOCH-
Doc.393-3, PageID#13919.
The overlap of the two motions is undeniable. As the district court
recognized, “the requested relief in the Motion to Modify is encompassed with the
Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction” and “the
basis for relief in the Motion to Modify depends on the determination of the
constitutional violations at issue in the SEIU case.” SEIU-Doc.67, PageID#5831;
see also Tr.7/30/12, NEOCH-Doc.330, PagedID#12287 (Court: “They’re almost
one in the same.”). NEOCH Plaintiffs admitted that the motions sought “the same
injunctive relief” and requested that “these motions be heard together, so that the
constitutionality or unconstitutionality of Ohio’s provisional ballot system may be
adjudicated”. NEOCH-Doc.288, PageID#6910.
Given the SEIU preliminary injunction motion, the NEOCH motion to
modify was entirely unnecessary. Compared to the SEIU motion, the NEOCH
54
motion (1) sought the same relief, (2) was based on the same constitutional
theories, and (3) applied to a narrower class. The result of the SEIU motion was
inevitably going to determine the NEOCH motion. If, as happened, the court
granted the SEIU motion—seeking the same relief, applied to a broader universe—
the NEOCH motion would automatically be moot. If the SEIU motion failed, the
NEOCH motion—relying on the same constitutional challenges—would also fail.
There was no reason to file both.
Allowing complete recovery for 300+ hours on the NEOCH motion was
abuse of discretion. The district court held that NEOCH Plaintiffs did not have to
be fully successful on the motion (rendered moot) and that the work was
“reasonably undertaken” at the time performed. NEOCH-Doc.426/SEIU-Doc.140,
PageID#7473-74. This is incorrect. At the time these attorneys performed this
work, they knew they would be filing an SEIU motion that would subsume the
Crunching the numbers, the average rate awarded to the twenty-five
attorneys was $378/hour. These rates are an abuse of discretion.
59
A. 24BA reasonable rate is a rate sufficient to encourage capable representation in the local market; it is not what a precise attorney might charge a well-to-do client.
The governing standard is not complicated: “[i]n short, a reasonable hourly
rate should be sufficient to encourage competent lawyers in the relevant
community to undertake legal representation.” Lamar Advertising Co. v. Charter
Tp. of Van Buren, 178 F.App’x 498, 501-02 (6th Cir. 2006). The relevant
community is “the venue of the court of record.” Gonter, 510 F.3d at 618 (internal
quotations omitted); see also S.D. Ohio Civ. R. 82.1 (listing Southern Ohio
counties).
This standard contains an inherent limit. “Hourly rates should not exceed
what is necessary to encourage competent lawyers within the relevant community
to undertake legal representation.” Hadix v. Johnson, 65 F.3d 532, 535-36 (6th
Cir. 1995) (emphasis added). The Hadix Court held that a district court abused its
discretion—in its rate to out-of-town counsel—by violating this tenet. Id.
Although the Court acknowledged the case “present[ed] unusually complex legal
and factual issues”, it still found that local counsel would have been available at “a
significantly lower rate” than the court assigned. Id. It concluded that “a rate
which apparently falls toward the high end of rates charged by partners in large
Detroit law firms” was improper. Id.
60
In determining rates, courts look to many factors including “part[ies’]
submissions, awards in analogous cases, state bar association guidelines, and its
own knowledge and experience in handling similar fee requests.” Van Horn v.
“[C]ourt[s] should consider the hourly rates prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Oakley v. City of Memphis, 566 F.App’x 425, 432 (6th Cir. 2014)
(internal quotations omitted). But the ultimate standard does not change; the
controlling question remains what rates are necessary to attract competent counsel,
not the exact counsel involved. “The appropriate rate, therefore, is not necessarily
the exact value sought by a particular firm, but is rather the market rate in the
venue sufficient to encourage competent representation.” Gonter, 510 F.3d at 618.
Coulter is helpful. It cogently explained that reasonable rates “are different
from the prices charged to well-to-do clients by the most noted lawyers and
renowned firms in a region.” 805 F.2d at 149. Accordingly, “a renowned lawyer
who customarily receives $250 an hour in a field in which competent and
experienced lawyers in the region normally receive $85 an hour should be
compensated at the lower rate.” Id. (emphasis added).
B
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ards
nably
1-52.
62
But from a review of prior Ohio election-related awards, it would have been
hard, if not impossible, to predict what happened here. Review of recent election-
related awards shows that the current award is not like the rest:
Case # Attorneys Mean Rate7F
8 # 300+ Rates
# 400+ Rates
Current award (combined) 25 $378 21 10 Current NEOCH award 23 $384 20 10 Current SEIU award 12 $400 10 6 Ohio Right to Life v. OEC, No. 2:08-cv-492, 2013 WL 5728255, at *6-7 (S.D. Ohio Oct. 23, 2013) adopted by 2014 WL 234677 (S.D. Ohio Jan. 22, 2014) vacated by 590 F.App’x 597 (6th Cir. 2014) (affirming rates) (“ORTL”)
2 $250 0 0
Hunter v. Hamilton Cnty. BOE, No. 1:10cv820, 2013 WL 5467751, at *17 (S.D. Ohio Sept. 30, 2013)
13 $317 8 3
Lib. Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL 4833033, at *5 (S.D. Ohio Sept. 11, 2013) (“LPO”)
1 $300 1 0
Mooneyhan v. Husted, No. 3:12–cv–379, 2013 WL 1326506 (S.D. Ohio Mar. 29, 2013) 8F
9
4 $228 0 0
Harkless v. Husted, No. 1:06-cv-2284, 2011 WL 2149179, at *20 (N.D. Ohio Mar. 31, 2011) adopted by 2011 WL 2149138 (N.D. Ohio May 31, 2011)
21 $193 6 0
NEOCH v. Brunner, No. 2:06–CV–896, 2010 WL 4939946, at *7 (S.D. Ohio
6 $273 2 1
8 In some of the following awards, a single attorney was awarded multiple rates. In such cases the State used the highest rate to that attorney in calculating the mean. 9 Mooneyhan does not detail the precise awarded rates. Information on rates requested/awarded was gathered from Mooneyhan-Doc.19-1–19-4, PageID#120-31.
63
Case # Attorneys Mean Rate7F
8 # 300+ Rates
# 400+ Rates
Nov. 30, 2010) (NEOCH-Doc. 234); NEOCH-Doc.213-15 (detailing all rates requested/awarded) Moore v. Brunner, Nos. 2:08-cv-224, 2:08-cv-555, 2010 WL 317017, at *3 (S.D. Ohio Jan. 25, 2010)
2 $250 0 0
NEOCH v. Brunner, 652 F.Supp.2d 871, 885 (S.D. Ohio 2009) (NEOCH-Doc. 203); NEOCH-Docs.96-1–96-3, 177-82 (detailing all rates requested/awarded)
26 $217 3 0
Ray v. Franklin Cnty. BOE, No. 2:08–CV–1086, 2009 WL 1542737, at *5 (S.D. Ohio June 2, 2009) 9F
10
7 $247 1 0
Project Vote v. Blackwell, No. 1:06–CV–1628, 2009 WL 917737, at *17 (N.D. Ohio Mar. 31, 2009)
13 $250 5 3
As the chart displays, prior awards show present rates are excessive. Indeed,
recent cases reflect a reasonable rate for experienced attorneys in Ohio election
cases is somewhere between $250-$300/hour. In Moore, the Southern District
rejected $400/$450 rates for attorneys with over twenty years of experience. 2010
WL 317017, at *3. Because these rates exceeded competent representation in the
local market, the court concluded that “the obligation to pay such rates may not be
shifted to Defendant.” Id. The court instead held that “an hourly rate of $250 is
adequate to attract competent counsel within this Court’s venue while avoiding
producing a windfall for attorneys.” Id.
10 These Ray figures presume that a $138/hour rate was for a non-attorney.
64
In 2013, the Southern District again rejected rates of ~$450/hour concluding
that $250/hour was reasonable. ORTL, 2013 WL 5728255, at *6 (adopted with
modification by 2014 WL 234677). The Magistrate Judge recommended that
“$250 was the prevailing market rate within this jurisdiction during the relevant
time frame for experienced attorneys litigating election-law actions.” Id.
(emphasis added). This Court ultimately affirmed $250/hour rates, crediting
reliance on “the thorough analysis set forth in Moore”. 590 F.App’x at 602.
Also in 2013, the same district court involved here, reduced the rate of an
attorney (with over twenty years of experience) from $350 to $300 (for 2011
work). LPO, 2013 WL 4833033, at *5. The court noted that the case involved
“inherently complex” voting litigation and the “skill and standing of counsel” was
“substantial”. Id. The court, however, reduced the requested rate to $300/hour:
“A rate of $300 appears to be sufficient to motivate skillful attorneys to undertake
representation in § 1983 cases, but not excessive so that it would constitute a
windfall.” Id. (emphasis added).
Even looking to other “attorney team” cases, past election-related awards
pale in comparison. In Hunter—an award at the top of the spectrum on which the
district court heavily relied—the average rate was still $67/hour below NEOCH
and $83/hour below SEIU. See 2013 WL 5467751, at *16-18. Only three Hunter
attorneys received $400/hour, and no attorney received above $410/hour, id.; the
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66
competent counsel in this market. Ms. Gentry is a perfect example. By any
definition, she represents “competent” counsel. She graduated from Yale Law
School in 1995, was a federal clerk, and is a partner at a prominent Columbus firm.
NEOCH-Doc.393-7, PageID#13951-52. She asked for, and received, a rate of
$350/hour, which was her actual rate in 2012. Id., PageID#13954.
Despite Ms. Gentry’s clear qualifications, reflective of competent lead
counsel, the award turns her into a middling attorney. Her rate is $28/hour below
average, with thirteen attorneys receiving greater rates. NEOCH-Doc.426/SEIU-
Doc.140, PageID#7485. Notably, Ms. Sletvold—ten less years of experience—
received the same rate. The court permitted seven attorneys with less experience
to bill higher rates than Ms. Gentry. It awarded four such attorneys (Leyton,
Leonard, Chisholm, Thoreen) $100/hour more than Ms. Gentry. Mr. Weisglass—
one more year of experience—received $200/hour more.
These comparisons show unreasonableness. If $350/hour was enough to
entice Ms. Gentry, it was more than enough to entice capable representation; the
court committed reversible error in awarding so many (a baker’s dozen) higher
rates.
A 2013 Ohio State Bar Association survey also indicates the awarded rates
are too high. See Gonter, 510 F.3d at 619 (approving use of bar survey for
paralegal rates). This survey set forth billing rates of ~1000 Ohio private
67
practitioners. NEOCH-Doc.394-10, PageID#14380. Although the survey did not
purport to provide exact averages for Ohio billing rates, its objective was to
provide “useful and usable information” including “[p]revailing hourly billing rates
for attorneys”. Id., PageID#14345.
Survey results were substantially below awarded rates. The average rate for
~1000 lawyers was $233/hour. Id., PageID#14380. Every Plaintiffs’ attorney
except for Mr. Klaus (2011 graduate) exceeded this rate. The survey also provided
billing rates by years in practice. Id. All of the twenty-five attorneys were
awarded rates above the 75th percentile by their years in practice. Id.; see also
NEOCH-Doc.407/SEIU-Doc.131, PageID#7086-88 (chart comparison of rate
requests and survey data). Eight attorneys (Berzon, Weisglass, Leyton, Leonard,
Chisholm, Thoreen, Sletvold, Murray) were awarded rates above the 95th
percentile by their years in practice.
Contrary to the district court’s suggestion, survey results for civil-rights
lawyers also reflect that the awarded rates went beyond what was necessary. The
record specifically contained results—although for a much smaller thirty-lawyer
sample—for attorneys identifying civil rights as their first, second, or third field.
NEOCH-Doc.349-9, PageID#14341. The average hourly rate of these attorneys
was $331, and the median rate was $305. Id. In these cases, the average rates
68
(NEOCH: $384, SEIU: $400) and median rates (NEOCH: $360, SEIU: $413) are
much higher.
* * *
Given rates in prior cases, as well as other benchmarks, the district court
abused its discretion by awarding so many attorneys such high rates. Although the
court purported to rely on past decisions like Hunter and LPO (NEOCH-
Doc.426/SEIU-Doc.140, PageID#7484-85), its awarded rates are considerably
more. These rates suggest that the court focused too much on what these specific
attorneys might be able to charge a well-to-do private client, and not enough on
what was necessary to attract capable representation in the locality.
Two final points. First, the rates for these twenty-five attorneys should
reflect appropriate staffing. When cases are this heavily staffed, not everyone gets
to bill like a partner; some attorneys (even if overqualified) should take on the
roles, and rates, of junior lawyers. See Evans v. Port Authority of New York &
New Jersey, 273 F.3d 346, 362 (3rd Cir. 2001) (suggesting for tasks requiring two
attorneys, one should receive an associate rate). In legal-team cases like Hunter,
Harkless, and Project Vote, many attorneys received rates of $250/hour or below;
in Harkless and Project Vote, many received below $200/hour.
But in these cases, staffing, and billing, is partner heavy:
x Billing declarations describe nine of the thirteen (Berzon, Leyton, Leonard, Chisholm, Chandra, McTigue, Harshman, Hunter, Gentry) as partners;
x Four (Berzon, Chandra, McTigue, Hunter) are founding/managing partners;
x Seven of the nine partners received rates of $425/hour or more.
To the extent such large teams of attorneys were actually necessary, counsel used a
disproportionate number of senior attorneys; they should not receive so many
partner-esque rates.
Second, the rates for Alschuler-Berzon attorneys are particularly extreme.
Plaintiffs did not demonstrate that San Francisco attorneys were necessary, and
they should not be able to place extra fees (via out-of-town rates) on the State. The
two markets are obviously different. For example, U.S. Census Bureau data
estimates that 2008-2012 median earning for legal occupations in Columbus was
$50,667. NEOCH-Doc.407-23/SEIU-Doc.131-23, PageID#7207. The San
Francisco estimate was $105,007. NEOCH-Doc.407-24/SEIU-Doc.131-24,
PageID#7211.
The district court’s limited reduction of these lawyers’ rates was not enough.
Even with reduction, the court allowed the nine Alschuler-Berzon attorneys to bill
an average of $432/hour. Mr. Berzon was the highest at $600/hour. But rates to
Ms. Leonard and Ms. Chisholm might be the biggest problem. These two
70
attorneys—both 2001 graduates, and the two heaviest billers—received $450/hour
rates far above their ~10 years of experience at the relevant time.
In sum, the rates for these twenty-five attorneys exceeded what was
necessary to attract competent counsel in Southern Ohio. Given staffing, all rates
should receive dramatic cuts. See NEOCH-Doc.407/SEIU-Doc.131,
PageID#7095-97 (submitting reasonable alternatives). At a minimum, rates for
less experienced attorneys (post-2000 graduates) should be capped at $300/hour,
and more experienced attorneys at $400/hour.
8BCONCLUSION
For the above reasons, the Court should reverse the district court’s fee award
and mandate substantial reductions of hours and rates. Given the fees at stake, and
everyone’s interests in avoiding further fee litigation, the State respectfully
requests that the Court offer detailed guidance as to reductions.
In the alternative, the State requests that the Court reverse and remand for
more thorough review and better explanation.
71
Respectfully submitted, MICHAEL DEWINE Ohio Attorney General s/ Zachery P. Keller ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 [email protected][email protected] Counsel for Defendant-Appellant/Cross-Appellee Jon Husted, Secretary of State and State of Ohio
72
9BCERTIFICATE OF COMPLIANCE
I hereby certify that this brief contains 13,941 words, as determined by the
word processing program used to generate this document. This count includes
headings, footnotes and quotations but does not include table of contents, table of
citations, statement regarding oral argument, addendums or certifications of
counsel. Fed. R. App. Pro. 32(a)(7).
s/ Zachery P. Keller ZACHERY P. KELLER (0086930)
CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2015, the foregoing was filed electronically.
Notice of this filing will be sent to all parties for whom counsel has entered an
appearance by operation of the Court’s electronic filing system. Parties may
access this filing through the Court’s system. I further certify that a copy of the
foregoing has been served by e-mail or facsimile upon all parties for whom counsel
has not yet entered an appearance and upon all counsel who have not entered their
appearance via the electronic system.
s/Zachery P. Keller ZACHERY P. KELLER (0086930) Assistant Attorney General
73
10BDESIGNATION OF DISTRICT COURT RECORD
Defendants-Appellees, pursuant to Sixth Circuit Rule 30(g), designate the
following filings from the district court’s electronic records:
NEOCH v. Husted, 2:06-cv-896
Date Filed Doc.No.; PageID# Document Description
10/24/06 2; 2-53 Complaint
1/4/08 96–96-3; 1652-1700 Pls.’ Mot. Att’y Fees & Related Docs.
1/20/09 176–78; 4664-4711 Pls.’ Supp. Fee Br. & Related Docs.