County fees response.pdf

8/20/2019 County fees response.pdf

1/140

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK ____________________________________________________

ANNE POPE, JANIS GONZALEZ, WANDA WILLINGHAM,

GERALDINE BELL, SAMUEL COLEMAN, LEE PINCKNEY,VICENTE ALFONSO AND ELAINE FRAZIER,

Plaintiffs,Index No.: 1:11-cv-0736

(LEK/CFH)

-against-

COUNTY OF ALBANY AND THE ALBANY COUNTY

BOARD OF ELECTIONS,

Defendants. ____________________________________________________

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS’ APPLICATION FOR ATTORNEYS’ FEES AND COSTS

ALBANY COUNTY DEPARTMENT OF LAWThomas Marcelle, Esq.

Bar Roll No. 117102

Of counsel: Albany County Attorney

Department of LawAdam Giangreco, Esq. 112 State Street, Suite 1010

Albany, New York, 12207

MURPHY, BURNS, BARBER & MURPHY, LLP

Peter G. Barber, Esq.

Bar Roll No. 301523226 Great Oaks Boulevard


Telephone: 518-690-0096Telefax: 518-690-005

Attorneys for Defendants

Case 1:11-cv-00736-LEK-CFH Document 447 Filed 07/02/15 Page 1 of 32


2/140

PRELIMINARY STATEMENT

The question before the Court is this: Are Gibson, Dunn & Crutcher LLP (“Gibson”) and

DerOhannesian & DerOhannesian (“D&D”) entitled to an amount of compensation over 40

times greater than that previously awarded by this Court for prosecution of a nearly identical

action against the County. The answer is no. The Court should deny plaintiffs’ unprecedented

request, either in whole or in part, for four reasons.

First, the over seven million dollar fee request deviates so significantly from what the

Judges of this Court have deemed reasonable for a civil trial that plaintiffs’ request should be

deemed on its face outrageously unreasonable. The burden rests with plaintiffs to document a

reasonable attorney’s fee and not saddle the County, and ultimately this Court, with the burden

of sifting through nearly a thousand-page application to ferret out properly documented time

entries and set a reasonable fee. In such a situation as this, the Court can and should “consider

the fee request … so outrageously unreasonable that outright denial of the request … would be

appropriate.” LaPrade v. Kidder Peabody & Co., 146 F.3d 899, 906 (D.C. Cir. 1998).

Second , Gibson is not entitled to exorbitant NYC rates (at an average rate of $1,174 per

hour) for lead attorney Mitchell Karlan because it failed to show (1) that local counsel D&D and

its lead attorney, Paul DerOhannesian II lacked the experience necessary to prosecute this action

and (2) that plaintiffs’ exclusive retention of D&D would have produced a substantially inferior

result. Osterweil v. Bartlett , 2015 WL 1066404, at *5 (N.D.N.Y. Mar. 11, 2015). Nor can

grotesque fees serve as punishment - the “award of counsel fees is not intended to punish the

defendant in any way,” Milwe v. Cabuoto, 653 F.2d 80, 84 (2d Cir. 1981), and the Court noted



3/140

2

that the County has made “laudable progress to address racial disparities in the County,” Pope v.

County of Albany, --- F. Supp. 3d ---, at *1 (N.D.N.Y. 2015).

Third , the Second Circuit’s factors for analyzing a request for attorneys’ fees - including

D&D’s familiarity with the substance of this dispute, D&D’s expertise in redistricting matters,

Plaintiffs’ scorched earth tactics, and the reputational, training, and other collateral benefits that

Gibson acquired from this matter--establish that the requested rates are unreasonable. See Arbor

Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 522 F.3d 182 (2d Cir. 2008).

Fourth, Gibson’s and D&D’s time records reflect numerous unsupportable billing

practices that justify a 90 plus percent across-the-board reduction in hours billed. For example,

Vague descriptions for work that make it impossible to determine what was doneand whether it was reasonable.

Full attorneys’ fees for work that should have been performed by clerical staff.

Thousands of dollars for nothing more than meeting with other firm members.

Multiple unjustified charges for duplicative work (e.g., overstaffing almost everyconference and deposition).

Travel time billed at full rate with no indication that work was performed.

Numerous erroneous entries for matters completely unrelated to this litigation.

1

Block billing that obscures the time spent on specific tasks they performed -making it impossible to evaluate the reasonableness of their time.

In sum, even if this Court excused plaintiffs’ false and inaccurate records, a reasonable

fee should be measured only by the fees properly requested and supported in their bills.

POINT I

THE APPLICATION SHOULD BE DENIEDAS PATENTLY EXCESSIVE IN ALL MATERIAL RESPECTS

1 For the Court’s convenience and if the Court desires, the County offers the services of the CountyComptroller or District Attorney to assist with a forensic audit of the submitted bill.



4/140

3

Federal courts have discretion to deny attorneys' fees applications where the application

is “obviously inflated to an intolerable degree.” Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir.

1980). Plaintiffs’ multi-million dollar fee application is intolerably inflated. Plaintiffs billed

hundreds of thousands of dollars for training young litigation associates, excessive charges for

overstaffing and duplicative work, intra-office conferences, travel time, and routine

administrative tasks, and by careless block billing for hundreds of thousands of dollars in fees.

See Point II. Plaintiffs’ requested fee is grossly disproportionate to the fee awards in this Court.

See Appendix 1 to this Memorandum of Law.2

Additionally, the fee application bears several indicia of bad faith. Plaintiffs knew and

were told last litigation they were not entitled to out-of-district rates. Nevertheless, plaintiffs

argue that the County should be saddled with an inflated legal bill as a form of punishment. See

Pls.’ Mot. at 1. Plaintiffs understands this argument to be impermissible -- the “award of counsel

fees is not intended to punish the defendant in any way.” Milwe, 653 F.2d at 84.3 A naked bad

faith demand for an out-of-district rate does not become a good faith demand by veiling it in a

frivolous argument. Second, plaintiffs submitted a 900 page bill that contains entries that are the

result of either unprofessional sloppiness or an effort to conceal improper and illegal billing

practices. Secreted within the massive document are charges for thousands of dollars in

unrelated cases and charges for travel time at the full hourly rate in violation of the law of this

2 Appendix 1 represents a diligent search of fee awards in the Northern District for civil rights cases.

Normal fee requests seldom rise above $250,000 to take a case from pleading to summary judgment totrial (including an occasional interlocutory appeal) in the Northern District of New York. The averageaward is much smaller. A reasonable plaintiff would expect to pay at the most no more than $240,000 forthe legal services rendered in this case.

3 This Court noted that the County has made “laudable progress to address racial disparities in theCounty,” Pope v. County of Albany, -- F. Supp. 3d --, at *1. Moreover, fee awards “should not serve as avehicle to charge exorbitant fees and such excessive fees should not act to chill good faith defenses toclaims brought under the Civil Rights Act.” Jaquette v. Hawk County, 710 F. 2d 455, 463 (8th Cir. 1983).



5/140

4

Court that has been established for nearly two decades. Delancett v. Village of Saranac, 986

F.Supp. 126, ) (NDNY 1997); Ferran v. Town of Grafton, No. 90-CV-155 (FJS), 1998 WL

295674, at *2 (N.D.N.Y. 1998).

Striking the entire fee or a fee of an individual attorney is an appropriate remedy within

the Court’s arsenal to combat the misuse of fee applications. See Environmental Defense Fund,

Inc. v. Reilly, 1 F.3d 1254, 1258-60 (D.C. Cir. 1993). Under these circumstances, courts have

rejected inflated fee applications. Stackler, 612 F.2d at 1059.

What the County seeks may seem harsh and it is certainly done with grave caution and

reticence. However, in the rare case, such as this, where the misuse of billing practices deviates

beyond all known precedent, to treat and examine with solemnity such an extreme request would

encourage a claimant to make unreasonable demands -- knowing that the only unfavorable

consequence of such conduct would be reduction of their fee to what they should have asked for

in the first place. To discourage such greed, especially by sophisticated counsel, a severe reaction

unfortunately is needed and indeed justified.4 See Lewis, 944 F.2d at 958 (noting that

“Appellant’s counsel submitted a claim which was so intolerably inflated that the District Court

was warranted in departing from the usual practice and reacting vigorously to prevent such abuse

of the court’s authority to award reasonable compensation to counsel”).

POINT II

HOURLY RATES ARE UNREASONABLE AND SHOULD BE REDUCED

As the moving party, Plaintiffs “bear[] the burden of documenting . . . [their] reasonable

hourly rates.” Hines NYLJ 1202659661779 at *8. Plaintiffs have not met this burden: D&D’s

4 No reply is allowed under the rules nor should one be granted in this case. Local Rule 7.1(b)(2). Plaintiffhad a full and fair opportunity to present a reasonable fee for the purpose of a good faith discussion – theychose not to. They should not be able to employ an inflated fee as a diversionary tactic to get a second bite of the apple – their request is their request.



6/140

5

hourly rates exceed those customarily awarded in this district for civil rights actions, while

Gibson’s rates (ranging from $416 to $1,174 per hour) are unprecedented. Plaintiffs’ requested

hourly rates must be reduced to no more than $275 for Karlan and DerOhannesian; $210 for

other partners; $150 for senior associates; $120 for junior associates; and $80 for paralegals.

Osterweil, 2015 WL 1066404, at *7 (awarding $300 per hour to the 43rd Solicitor General of the

United States in a civil rights matter); Arbor Hill Concerned Citizens Neighborhood Ass’n v.

County of Albany, 419 F. Supp. 2d 206, 211 (N.D.N.Y. 2005), aff’d , 522 F.3d 182, 184 (2d Cir.

2008) (awarding $210 per hour for experienced attorneys, $150 for senior associates, $120 for

junior associates, and $80 for paralegals in a nearly identical VRA matter against the County).

A. The Forum Rule Bars Gibson from Collecting Its Usual NYC Rate.

The Second Circuit has held that “when faced with a request for an award of higher out-

of-district rates, a district court must first apply a presumption in favor of application of the

forum rule” - that is, the principle 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, 175 (2d Cir. 2009).

To rebut this presumption, “a litigant must persuasively establish that a reasonable client

would have selected out-of-district counsel because doing so would likely (not just possibly)

produce a substantially better result. In determining whether a litigant has established such a

likelihood, the district court must consider experience-based , objective factors,” including

“counsel’s expertise in litigating the particular type of case.” Id. at 175-76 (emphasis added);

see Osterweil, 2015 WL 1066404, at *5 (To receive out-of-district rates, a party must “make a

particularized showing, not only that the selection of out-of-district counsel was predicated on

experience-based, objective factors, but also of the likelihood that use of in-district counsel

would produce a substantially inferior result.”). Plaintiffs failed to make this showing.



7/140

6

First , objective factors establish that local counsel D&D’s expertise in litigating VRA

cases actually surpasses that of Gibson. For example,

Election law is a cornerstone of D&D’s business, and D&D holds itself out to be a

specialist in such matters. Marcelle Decl., Exh. 1 (“At DerOhannesian &DerOhannesian, we work hard to uphold New York State voters’ rights and ensureadherence to local and state election administration process. When rights and process areviolated, we staunchly defend them. Our firm also works with clients to challengeredistricting initiatives . . . and other elements of election law.”); see also Pls.’ Mot. at 10(“D&D’s legal services were integral to [sic] success of this case . . . .”).

DerOhannesian has litigated at least three other VRA actions, including a priorredistricting suit against the County (DerOhannesian Decl. ¶ 8), while Karlan haslitigated just two prior VRA cases - only one involving redistricting (Karlan Decl. ¶ 24).

DerOhannesian is more senior than Karlan. Cf. DerOhannesian Decl. Exh. A (graduatedlaw school in 1978), with Karlan Decl., Exh. 2 (graduated law school in 1979).

Second , courts exercise particular caution in VRA matters to “ensure that the attorney

does not recoup fees that the market would not otherwise bear” because “a plaintiff bringing suit

under the [VRA] … has little incentive to negotiate a rate structure with his attorney prior to

litigation.” Arbor Hill, 522 F.3d at 184.

Indeed, when deciding a prior suit involving the same law firms, the same substantive

issues, the same experts, and the same defendants, the Second Circuit affirmed this Court’s

decision slashing Gibson’s and D&D’s requested compensation by 66% because it “believe[d]

that a reasonable, paying resident of Albany would have made a greater effort to retain an

attorney practicing in the Northern District of New York …. The rates charged by attorneys

practicing in the Southern District of New York would simply have been too high for a thrifty,

hypothetical client—at least in comparison to the rates charged by local attorneys, with which he

would have been familiar.” Id. at 185. See also Osterweil, 2015 WL 1066404, at *6, *7

(reducing the former Solicitor General of the United States’ requested hourly rate from $1,100 to

$300 for his work in a civil rights matter where plaintiff failed to “identify what specific



8/140

7

expertise or skills his attorneys possessed that attorneys within the Northern District of New

York do not possess”). Gibson’s attorneys have failed to demonstrate why their rates should

exceed those customarily charged in this District.

Moreover, as a result of DerOhannesian’s experience in VRA matters - which has only

increased since this Court’s decision in Arbor Hill (see DerOhannesian Decl. ¶ 8) - the Court

should deny Karlan’s request to be paid at more than three times DerOhannesian’s rate. See,

e.g., Hines, NYLJ 1202659661779, at *11 (“[I]t would be unreasonable to expect a client to pay

Mr. Marcelle at a higher rate than Mr. Steck, an attorney with more years of experience.”).

B. The Relevant Johnson

Factors Favor Reducing Plaintiffs’ Requested Rates.

“A reasonable hourly rate is what a reasonable, paying client would be willing to pay,

given that such a party wishes to spend the minimum necessary to litigate the case effectively.”

Hines, NYLJ 1202659661779, at *5; Arbor Hill, 522 F.3d at 184 (“[T]he reasonable, paying

client . . . wishes to pay the least amount necessary to litigate the case effectively.”) (emphasis

added). In determining what a reasonable client would be willing to pay, courts in this circuit

consider the following factors: (1) complexity and difficulty of the case; (2) available expertise

and capacity of the client’s other counsel; (3) resources required to prosecute the case effectively

(taking account of resources being marshaled on the other side but not endorsing scorched earth

tactics); (4) timing demands of the case; (5) whether an attorney might have an interest

(independent of that of his client) in achieving the ends of the litigation or might initiate the

representation himself; (6) whether an attorney might have initially acted pro bono (such that a

client might be aware that the attorney expected low or non-existent remuneration); and (7) other

returns (such as reputation, etc.) that an attorney might expect from the representation. Arbor

Hill, 522 F.3d at 184. These factors weigh in favor of reducing plaintiffs’ requested fees.

1. Plaintiffs’ counsel has prior experience litigating an identical matter.



9/140

8

The underlying dispute was factually and legally a straightforward matter. As explained

above, Karlan and DerOhnannesian previously litigated an essentially identical case in 2003.

See Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany , No. 1:0-3cv-00502

(N.D.N.Y. 2003). Arbor Hill involved the exact same issues (allegations that the County had

violated the VRA by adopting a redistricting plan following a census), the same defendants, the

same lead counsel, and the same experts. Marcelle Decl. ¶ 4. In that matter - decided in 2005

and affirmed in 2008 - this Court awarded $210 per hour to experienced attorneys, $150 per hour

to senior associates, $120 per hour for junior associates, and $80 per hour for paralegals. Arbor

Hill, 419 F. Supp. 2d at 211. The passing of several years does not justify Karlan’s request to be

paid $1,174 per hour - a rate more than five times that found reasonable in Arbor Hill.

2. D&D could have litigated this case without Gibson.

DerOhannesian was fully capable of performing the required legal service properly

without the assistance of out-of-district counsel. DerOhannesian advertises himself as a

specialist in election law on his own website and, as explained above, possesses prior litigation

experience against the exact same defendants for the exact same cause of action. Marcelle Decl.,

Exh. 2 (“At DerOhannesian & DerOhannesian, we work hard to uphold New York State voters’

rights and ensure adherence to local and state election administration process. When rights and

process are violated, we staunchly defend them. Our firm also works with clients to challenge

redistricting initiatives, campaign financing, and other elements of election law.”).

3. The underlying dispute did not require an exceptional amount ofresources to prosecute.

Due to their role in the 2003 litigation, Gibson and D&D were already positioned to

litigate this case efficiently. Instead, they pursued a scorched earth strategy that repeatedly

racked up unnecessary charges and burdened the County.



10/140

9

For example, the underlying litigation featured more than 30 depositions, almost all of

which Gibson overstaffed with an inordinate number of associates. Marcelle Decl. ¶ 5. For the

deposition of Aaron Mair, which lasted seven hours —including breaks—four Gibson attorneys

billed 77.55 hours, racking up a bill of $39,792.25. Even more absurd, five Gibson attorneys

billed an astonishing 63.55 hours for the deposition of Frank Commisso, even though Mr.

Commisso had opposed the County’s redistricting plan and the deposition itself lasted for less

than two hours. Id. ¶ 6. As a result of this extraordinary overstaffing, Gibson Dunn now seeks

$38,253.25 in fees. And six Gibson attorneys billed 59.95 hours at a cost of $32,791.75 for the

three-hour deposition of Vicente Alfonso. Id. ¶ 7.

This kind of overstaffing and overbilling is seen repeatedly in Gibson’s bills for all

depositions, see Marcelle Decl. Exh. “3” (deposition excerpts), including those depositions (“P”)

where Gibson was representing the deponent:

Deponent No. of

GibsonAttys.

Deposition

Length

Block

Billed Costs

Block

BilledHours

Certain

Costs

Certain

Hours

Total

Costs

Liu (P) 7 8 hrs 10 mins $88,937.40 160.14 $27,190.50 52.35 $116,127.90

Gaddie 6 7 hrs 49 mins $93,462.00 165.95 $13,424.50 24.2 $106,886.50

Scarff 6 4 hrs 16 mins $56,883.50 112.7 $6,948.50 12.9 $63,832.00

Pope (P) 6 2 hrs 22 mins $57,146.00 85.3 __ __ $57,146.00

Morse 6 3 hrs 30 mins $54,475.50 97.1 __ __ $54,475.50

Perrin 4 5 hrs 15 mins $26,979.00 52.1 $18,310.00 30 $45,289.00

Bell (P) 3 1 hr 50 mins $42,234.00 71.1 __ __ $42,234.00

Merrill 7 __ $25,512.75 48.55 $16,585.00 26.75 $42,097.75Mair (P) 4 7 hrs 15 mins $39,112.00 77.55 $680.25 1.35 $39,792.25

Commisso 5 1 hr 45 mins $38,253.25 63.55 __ __ $38,253.25

5 It is impossible to determine the amount plaintiffs billed on depositions or on any other discrete task because they used improper block billing that makes it impossible to determine the amount of time spenton each task or whether the time was reasonable. See Point III(G), infra.



11/140

10

Evers 4 __ $22,312.00 31.65 $14,707.00 24.6 $37,019.00

Willingham (P) 4 5 hrs 40 mins $30,851.00 58.7 $3,100.00 5 $33,951.00

McCoy 4 6 hrs 40 mins $33,751.25 64.1 __ __ $33,751.25

Alfonso (P) 6 2 hrs 51 mins $25,554.00 49 $7,237.75 10.95 $32,791.75

Gonzalez (P) 4 2 hrs 34 mins $22,714.00 44.35 $1,442.00 2.8 $24,156.00

Benedict 3 2 hrs 30 mins $21,835.75 44.75 __ __ $21,835.75

Pinckney (P) 2 1 hr 10 mins $21,562.00 36.2 __ __ $21,562.00

Breslin 5 6 hrs 55 mins $21,047.25 40.65 __ __ $21,047.25

Coleman (P) 3 1 hr 35 mins $18,832.50 33 __ __ $18,832.50

Wilkerson 4 6 hrs 5 mins $17,715.75 36.05 __ __ $17,715.75

Frazier (P) 2 3 hrs 26 mins $11,924.25 17.55 $4,387.50 6.5 $16,311.75

Alomar (P) 3 2 hrs 52 mins $14,512.50 21.5 $1,406.50 2.9 $15,919.00

Conway 3 3 hrs 51 mins $15,274.25 29.95 __ __ $15,274.25

Gomez (P) 2 1 hr 15 mins $14,533.75 29.25 __ __ $14,533.75

McKnight (P) 4 2 hrs 5 mins $13,282.50 27.5 __ __ $13,282.50

Condon 4 3 hrs 15 mins $13,203.25 26.55 __ __ $13,203.25

McLaughlin 1 2 hrs 10 mins $2,626.50 5.1 __ __ $2,626.50

Totals $844,527.90 1529.89 $155,419.50 200.3 $959,947.40

Further, many depositions were only required because plaintiffs amended their complaint

after summary judgment, while the County prevailed on every single discovery dispute. Id. ¶ 8.

Moreover, plaintiffs’ sole cause of action in the complaint was a “coalition claim”- i.e., claiming

that the County’s plan diluted the combined voting strength of blacks and Hispanics. Most of the

depositions and arguments were aimed at this coalition claim (id. ¶ 9), yet the court never

reached this issue. Pope, -- F. Supp. 3d --, at *1 (N.D.N.Y. Mar. 24, 2015) (noting that “[t]his

conclusion renders it unnecessary for the Court to reach the issue of plaintiffs’ coalition claim”).



12/140

11

As an international firm with over 1,000 lawyers dispersed across four continents

(Marcelle Decl., Exh. 2), Gibson possesses a war chest far deeper than the County. The Court

should not reward Gibson’s extravagant and unnecessary billing.

4. The timing demands of this action do not justify plaintiffs’ retentionof Gibson.

The undisputed facts belie any assertion that timing demands required plaintiffs to retain

Gibson instead of seeking less expensive local counsel. D&D learned of the matter before

Gibson and actively recruited Gibson as co-counsel. Karlan Decl. ¶ 7. Accordingly, plaintiffs’

reliance on Trudeau v. Bockstein, 2008 WL 3413903 (N.D.N.Y. Aug. 8, 2008) is misplaced.

Pls.’ Mot. at 10. This is not a case where “it was reasonable to retain [ ] longtime counsel . . .

rather than searching out a cheaper alternative” or where plaintiffs were “required to retain

counsel on an expedited basis due to [their] perception that harm was imminent.” Trudeau, 2008

WL 3413903, at *6. And this is not a case where “the client[] actually assented to the rates.” Id.

5. Gibson used this matter as a training opportunity.

Plaintiffs overstaffed nearly every aspect of this litigation to train their junior associates.

Marcelle Decl. ¶ 5. However, a fee-shifting statute is designed to “ensure effective access to the

judicial process ... not to serve as a full employment or continuing education programs for

lawyers and paralegals.” Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992) (citation omitted).

For example, Gibson and D&D staffed an inordinate number of associates at every

deposition. See Point II(B)(3), supra. Indeed, Gibson acknowledges that one reason it pursues

pro bono opportunities is to train its associates. Marcelle Decl., Exh. 4 (“[Gibson] . . . believe[s]

that community involvement adds an important dimension to the growth and development of our

attorneys, as both lawyers and citizens of those communities.”). Gibson would have reaped a

benefit even if it had been unsuccessful in the underlying dispute.



13/140

12

6. Gibson and D&D expected to receive low remuneration.

Gibson and D&D knew that they were unlikely to receive their usual rates. As explained

above, this Court previously awarded Gibson and D&D rates no greater than $210 for

experienced attorneys for their work prosecuting a nearly identical action against the County.

Arbor Hill, 419 F. Supp. 2d at 211. Accordingly, Karlan’s request for $1,174 per hour—coupled

with his conspicuous silence regarding the rate he received in Arbor Hill —borders on bad faith, a

transparent attempt to anchor the Court at an insupportably high number.

7. Gibson and D&D have garnered significant reputational benefits fromtheir prosecution of this action.

The Court should reduce Gibson’s and D&D’s usual hourly rates because “a reasonable,

paying client might consider whether a lawyer is willing to offer his services in whole or in part

pro bono, or to promote the lawyer’s own reputational or societal goals.” Arbor Hill, 522 F.3d at

192. Gibson regularly provides pro bono services and advertises its pro bono accomplishments

to attract new associates and clients. Marcelle Decl., Exh. 5 (listing the awards and accolades

Gibson has achieved for its commitment to pro bono). Indeed, Gibson seeks $242.50 for time

billed “[e]diting a submission on VRA case for the Global Pro Bono Newsletter.” Id. at Exh. 1.

And D&D might have been willing to offer a reasonable client a reduced fee to reap the

reputational benefits for its participation in such a high-profile dispute, particularly because

election law is one of D&D’s primary practice areas. Marcelle Decl., Exh. 1 (“Our firm also

works with clients to challenge redistricting initiatives . . . and other elements of election law.”).

For all of the above reasons, defendants respectfully request that the Court award

plaintiffs’ counsel fees in accordance with the following hourly rates:

$275 for Karlan and DerOhannesian.

$210 for Gibson partners Aric Wu and Anne Champion.



14/140

13

$150 to Gibson senior associates Molly Claflin, Lindsey Schmidt, Brendon Fleming, Jon

Fortney, Teresa Kung, Christopher Muller, Sapnai Pandya, Jeana Maute, Kristin Carlson,Kyle Kolb, Brittany Garmyn, Gabriel Gillett, Amy Mayer, and Rena Kates Stern.

$150 for D&D senior associate Danielle R. Smith.

$120 for Gibson junior associates Peter Wade, Masha Bresner, Alyssa Kuhn, and Chelsea

Kelly.

$80 for D&D paralegal Kristin Bruno and D&D law student Alyssa Bombard. Osterweil,2015 WL 1066404, at *8 (awarding $80 for paralegal work in a civil rights matter); Arbor Hill, 419 F. Supp. 2d at 211 (awarding $80 for paralegal work in a VRA matter).

$0 for D&D secretaries Stacey Civello and Alicia Segura. Menghi v. Hart , 745 F. Supp.2d 89, 113 (E.D.N.Y. 2010), aff’d , 478 F. App’x 716 (2d Cir. 2012) (“Typically, in thisCircuit, clerical and secretarial services are part of overhead and are not generally

charged to clients.”) (quotation omitted).

These rates are consistent with those awarded by this Court in the prior Arbor Hill case

and affirmed by the Second Circuit in 2008. Arbor Hill, 419 F. Supp. 2d at 211 ($210 for

experienced attorneys, $150 for associates with more than four years’ experience, $120 for junior

associates, and $80 for paralegals). See Hines, 2015 WL 3479820, at *2 (“Determination of a

reasonable hourly rate . . . may include judicial notice of the rates awarded in prior cases and the

court’s own familiarity with the rates prevailing in the district.”).

Moreover, defendants propose awarding Karlan and DerOhannesian $275 per hour. This

reasonable rate - nearly 31% greater than the $210 hourly rate awarded in Arbor Hill - should

serve to sufficiently compensate Karlan and DerOhannesian for their expertise in VRA matters.

POINT III

BILLABLE HOURS SHOULD BE SUBSTANTIALLY REDUCED BECAUSE TIME RECORDS CONTAIN UNJUSTIFIABLE CHARGES

The time records contain excessive charges for routine activities that had little to no

impact on the course of the litigation, including time for work in unrelated cases. They bill

hundreds of thousands of dollars for doing little more than meeting with members of their own



15/140

14

team. They record hundreds of hours for redundant and unnecessary work. Gibson even charges

its full rates for travel time without any indication its attorneys performed work and even seeks

payment for bills completely unrelated to this litigation. And compounding all the above

problems, they block bill their time. Thus, the requested hours should be substantially reduced.

As with reasonable hourly rates, plaintiffs “bear[] the burden of documenting the hours

reasonably expended … . To prove that a fee request is reasonable, a party must support that

request with contemporaneous time records that show, for each attorney, the date, the hours

expended, and the nature of the work done.” Hines v, NYLJ 1202659661779, at *8, aff’d 2015

WL 3479820 (2d Cir. June 3, 2015) (quotation and citations omitted). Gibson’s and D&D’s bills

do not meet this basic standard.

A. Gibson’s Time Record Contains Entries for Other Cases.

Gibson’s time records are littered with erroneous time entries that clearly have nothing to

do with this litigation and that even a cursory examination of the records would have uncovered.

For example, Gibson submitted the following improper entries from associate Peter M. Wade:

$204 for “[c]all with J. Chin-Fong; [p]rint materials for use in revising civil complaint;[e]lectronic communications with Library regarding background research on J. Conti andB. White” on March 13, 2013.

$2,244 for “[e]mail with A. Wollin regarding authorization forms; [f]ill out forms for

each provider for J. Chin-Fong’s signature; [m]eet with J. Chin-Fong to review forms andsign and notarize forms; [s]end authorization forms to the comptroller’s office; [e]ditcomplaint and claims research” on June 5, 2013.

$204 for “[c]all with J. Chin-Fong; [c]all with N. Biancanello at UMC” on June 20, 2013.

$204 for “[r]eview medical treatment records” on December 10, 2013.

$153 for “[c]onfer with D. Feinstein regarding the 1983 plan and upcoming casedeadlines” on December 12, 2013.

$1,062.50 for “[c]all with J. Chin-Fong; draft position paper in advance of mediationsession” on March 24, 2014.



16/140

15

$3,000 for “[d]raft talking points for mediation session; prepare materials for mediation

session; research damages awards in personal injury cases; draft summary of cases formediation session” on March 29, 2014.

$375 for “[c]all with D. Feinstein regarding depositions; draft email to D. Olds regarding

discovery issues and deposition dates; call with office of Dr. Nadkarni regarding potentialexpert testimony” on July 14, 2014.

Karlan Decl., Exh. 1. Moreover, on October 8, 2014, Chelsea Kelly billed $242.50 for “[e]diting

a submission on VRA case for the Global Pro Bono Newsletter.” Id.

Plaintiffs have entirely failed to carry their “burden of documenting the hours reasonably

expended” with respect to these entries. Hines, NYLJ 1202659661779, at *8. Accordingly, the

requested fees should be substantially discounted.

B. Gibson’s and D&D’s Time Records Contain Excessive Charges forOverstaffing and Duplicative Work.

Plaintiffs’ counsel inflated their time records by overstaffing this matter and by spending

an inordinate amount of time handling various aspects of the litigation. See Guardians Ass’n of

Police Dep't of New York v. City of New York , 133 F. App’x 785, 786 (2d Cir. 2005) (noting that

302 billable hours can be “facially excessive” for a simple case that goes to trial). Counsels’

time records are particularly egregious in light of their prior involvement in the substantially

similar Arbor Hill matter and their reassertion of many of the same arguments. Osterweil, 2015

WL 1066404, at *14 (“As counsel has provided no justification for why nearly ninety hours of

work was necessary to reassert arguments Plaintiff had already developed . . . the Court will

reduce the time counsel spent preparing its briefs to the Court of Appeals by two-thirds.”).

For example, Gibson and D&D billed up to 238.99 hours at a cost of $121,111.40 to file

and amend their 17-page complaint in this action. This is plainly excessive. Hines, NYLJ

1202659661779, at *13 (finding 52.5 hours for the research, drafting and editing of the

complaint to be excessive); Hofler v. Family of Woodstock, Inc., 2012 WL 527668, at *5



17/140

16

(N.D.N.Y. Feb. 17, 2012) (9 hours drafting and 4.2 hours editing an 11-page complaint was an

example of “sheer excessiveness”).

Similarly, Gibson alone billed at least 265.7 hours at a cost of $207,797.75 to complete

its summary judgment papers. This is also excessive. Id. at *13 (finding 52.5 hours for the

research, drafting and editing of a cross-motion for summary judgment to be excessive); Hofler ,

2012 WL 527668, at *5 (101.1 hours spent “preparing opposition to Defendant’s motion for

summary judgment and drafting their cross-motion” was an example of “sheer excessiveness”).

Further, Gibson and D&D attorneys repeatedly billed for the same work. For example,

on July 22, 2011, DerOhannesian and five Gibson attorneys billed 8.7 hours at a cost of

$5,280.50 for work related to a conference before Judge Homer. Similarly, on July 26, 2012,

Karlan and Gibson associates Sapna Desai Pandya, Brendon S. Fleming, and Kyle J. Kolb block

billed $9,380.50 to prepare and attend (some via telephone) a discovery conference before Judge

Homer. Gibson associate Brittany Garmyn billed an additional $1,781.25 to prepare for the

conference, though she did not attend. DerOhannesian block billed 2.5 hours at a cost of more

than $700 for the same conference. And on May 15, 2014, DerOhannesian, his associate, and

two Gibson attorneys billed $12,676.25 to attend another conference before Judge Hummel.

Counsel should not be rewarded for their redundant work. Jimico Enterprises, Inc. v.

Lehigh Gas Corp., 2011 WL 4594141, at *11 (N.D.N.Y. Sept. 30, 2011), aff’d , 708 F.3d 106 (2d

Cir. 2013) (“[T]he Court finds that both the in-district partner and the out-of-district partner

billing for some of the same work was somewhat excessive (and/or unnecessarily duplicative). . .

. Having each practiced law for at least nineteen years, and therefore presumably attended

numerous settlement conferences, there was little, if any, reason for both in-district counsel and

out-of-district counsel to attend an initial settlement conference.”).



18/140

17

C. Gibson’s Time Records Contain Inappropriate Charges for Intra- Office Conferences.

Gibson’s records are larded with hundreds of thousands of dollars’ worth of charges for

intra-office conferences and yet fail to explain why multiple attorneys were necessary. In re

Bennett Funding Group, Inc., 213 B.R. 234 (Bankr. N.D.N.Y. 1997) (“It is [ ] an accepted

principle that generally no more than one attorney may bill for time spent in intra-office

conferences or meetings absent an adequate explanation.”); Simmonds v. New York City Dep’t of

Corr., 2008 WL 4303474, at *8 (S.D.N.Y. Sept. 16, 2008) (reducing total number of hours by

40% where “attorneys spent approximately sixty (60) hours drafting and reviewing

correspondence to each other and discussing the case internally” and “thirty (30) hours were

billed by the second, third, fourth, and often, fifth attorneys who attended court conferences and

participated in conference calls and meetings with Simmonds and opposing counsel”).

For example, associate Jeana M. Maute block billed $1,620 on June 6, 2011 to, inter alia,

“meet with M. Karlan, B. Fleming, and T. Kung to be introduced to team.” Karlan Decl., Exh. 1.

That same day, associate Teresa M. Kung block billed $2,075.80 to “[m]eet with M. Karlan, B.

Fleming, and J. Maute to discuss case and initial administrative matters[.]” Id. And also on that

same day, associate Brendon S. Fleming billed $2,568 for “conference and electronic

correspondence with M. Karlan, J. Bisnar Maute, and T. Kung.” Id.

Similarly, on July 27, 2011, Karlan billed $1,642.50 for “[c]onference call with team;

email with opposing counsel; trial preparation.” Id. That same day, partner Aric H. Wu billed

$1,650 for “[t]elephone calls and e-mails regarding prep for preliminary injunction hearing.” Id.

Likewise, associate Teresa M. Kung billed $428 for “[p]articipate in team conference call” on

that day. And also at that same time, associate Molly M. Claflin block billed $2,408 for, inter

alia, “[c]orresopnd with co-counsel, J. Maute, A. Wu, B. Fleming re hearing prep tasks.” Id.



19/140

18

Finally, associate Jeana M. Maute block billed $3,375 hours to “[m]eet with team,” and associate

Brendon S. Fleming block billed $2,996 for, inter alia, “[t]elephone conferences with J. Bisnar

Maute and M. Claflin regarding planning for preliminary injunction hearing; telephone

conference and electronic correspondence with J. Bisnar Maute, T. Kung, M. Claflin, A. Wu, M.

Karlan, and P. DerOhannesian regarding same,” again on July 27, 2011. Id. These duplicative

charges are unjustified and should be substantially reduced.

D. Gibson’s Time Record Contains Charges for Travel Time atAttorneys’ Full Rates.

Attorneys cannot justifiably charge their full rates for travel time. Hines, NYLJ

1202659661779, at *14 (“Consistent with Northern District precedent, . . . reimbursement for

travel time should have been billed at . . . one-half of counsel’s hourly rate.”) (quotation

omitted); Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, 419 F. Supp.

2d 206, 211 (N.D.N.Y. 2005), aff’d , 522 F.3d 182, 184 (2d Cir. 2008) (finding the “traditional

one-half” hourly rate “for time spent traveling” to be reasonable). A reduction is especially

warranted where, as here, attorneys have compounded the problem by block billing their travel

time. See, e.g., LV v. New York City Dep’t of Educ., 700 F. Supp. 2d 510, 526 (S.D.N.Y. 2010)

(“The Court agrees that [plaintiff’s entries that seek to bill travel time at full rates] should be

reduced by 50 percent. This includes travel time that is included in block-billed entries.”).

For example, Karlan billed $12,550 to “[a]ttend trial; return from trial” on August 1,

2015; $12,200 to “[t]ravel to and from Albany for pretrial conference; attend conference with

client; conference with panel” on August 10, 2014; and $15,060 for “[t]ravel to Albany; team

phone call; attend trial; return from Albany” on December 1, 2015. Karlan Decl., Exh. 1. In

total, Karlan block billed hundreds of thousands of dollars for travel, yet he failed to identify any

legal work completed while traveling. Id.



20/140

19

E. Gibson’s and D&D’s Time Records Contain Excessive Charges for Routineor Administrative Tasks.

Both Gibson’s and D&D’s time records contain excessive charges for routine tasks that

should have been performed by clerical staff or paralegals. Osterweil, 2015 WL 1066404, at

*15 (“The Court agrees that the district’s prevailing rate of $80 per hour for paralegal work

should apply to the following tasks: (1) preparation and filing of Plaintiff’s notice of appearance;

(2) preparation and filing of the Second Circuit’s Form C and Form D, which are brief

administrative forms; (3) filing of various scheduling notifications; (4) conferral with the court

regarding filings; and (5) preparation and filing of Plaintiff’s oral argument statement to the

Second Circuit[.]”); Hines, NYLJ 1202659661779, at *14 (“[T]he Court finds that Plaintiffs’

counsel should not have billed their full hourly rate for the performance of non-legal

clerical/secretarial task[s], such as (1) filing a complaint and (2) filing motion papers.”).

For example, a Gibson associate billed .7 hours on August 15, 2011, to “[d]raft and file

notice of appearance” for a cost of $374.50; .4 hours on August 16, 2011, to “[f]ile notice of

appearance” for a cost of $214; and 1.57 hours on December 8, 2011, to “[d]raft notice of

appearance; register for ECF; work on motion for expedited discovery” for a cost of $839.95.

Karlan Decl., Exh. 1. On August 17, 2011, another Gibson associate block billed 1.2 hours to,

inter alia, “[f]inalize and prepare for filing notice of appearance and certificate of service for

same” at a cost of $642. Id. Such administrative work could have been accomplished by a

paralegal or clerical employee and is thus excessive.

Moreover, on June 26, 2011, DerOhannesian block billed 1.0 hours to “[r]eview draft

complaint’s changes to relief requested, send to co-counsel; conference call with GDC – re

complaint, filing (7:00-7:45)” for a cost of $350. DerOhannesian Decl., Exh. C-1 (emphasis



21/140

20

added). And on June 12, 2013, D&D’s associate block billed 1.0 hours to, inter alia, “file[]

notice of appearance” at a cost of $215. These charges are excessive and should be reduced.

F. Gibson’s and D&D’s Time Records Are Too Vague to Support the Charges.

Both Gibson’s and D&D’s time records contain intolerably vague entries that preclude

any review of the reasonableness of the work done or the amount billed and should therefore be

disallowed. Osterweil, 2015 WL 1066404, at *10 (excluding in their entirety all entries that

“omit any reference to specific issues or subject matter and rely on generic descriptions, such as

‘examined,’ ‘conferred,’ and ‘corresponded’” and noting that “[t]he courts in this circuit have

found that vague entries such as ‘conference with’ or ‘call to’ a specific person” generally lack

sufficient specificity, while “time entries that refer to unspecified communications with

unidentified ‘outside counsel’ or ‘colleagues’ are plainly inadequate) (quotations omitted);

Hines, NYLJ 1202659661779, at *14-15 (reducing entire bill by 30%, in part because some of

the attorneys’ time entries contained vague descriptions, such as “Adj. letter,” “Finish

discovery,” and “discovery discussion”).

For example, Karlan billed the following vague entries:

.5 hours for “[w]ork on papers” on July 6, 2011.

.5 hours for “[w]ork on discovery” on November 1, 2011.

4 hours (total) for “[a]ppeal work” on November 16 and November 17, 2011.

.5 hours for “[t]eam call” on August 9, 2012.

.75 hours for “[t]eam meeting” on November 13, 2012.

1.0 hours (total) for “[v]arious discovery and expert issues” on January 7 and January

10, 2013.

.5 hours for “[e]mails with P. DerOhnannesian and team” on February 3, 2014.

.5 hours for “[e]mails with team” on February 28, 2014.



22/140

21

.5 hours for “[e]mails with experts” on March 22, 2014.

.5 hours for “[d]raft letter to court” on April 9, 2014.

.5 hours for “[l]etter to court” on May 10, 2014.

.5 hours for “[s]ettlement work” on May 29, 2014.

.5 hours for “[s]ettlement efforts” on June 24, 2014.

.5 hours for “[t]rial preparation” on September 10, 2014.

.5 hours for “[w]ork on experts” on November 2, 2014.

.5 hours for “[l]etter to Court” on January 28, 2015.

Karlan Decl., Exh. 1. Similarly, DerOhannesian billed the following vague charges:

.5 hours for “[m]eet with Aaron (5:40 – 6:15)” on June 22, 2011.

.25 hours for “[l]etter to T. Homer – ECF filing” on November 16, 2011.

.25 hours for “[t]elephone call Alice Green (1:20-1:40); see notes; additionalinformation for case” on December 23, 2011.

.75 hours for “[t]elephone call Aaron (4:00-4:35); email Brendon re experts anddepositions” on December 31, 2011.

.25 hours for “[t]elephone call Declarant (Joe Gomez) 4:30-4:50” on March 8, 2012.

1.75 hours for “[t]elephone call Lucy McKnight (1:05-1:25); telephone call Brendon,Molly, Aaron (3:10-4:00); telephone call Brendon, Molly & Kyle (5:20-6:05)” onMay 4, 2012.

.25 hours for “[t]elephone call Molly & Brendon” on July 10, 2012.

1.25 hours for “[c]onference with Dr. Liu, Brendon and Molly (4:30-5:45)” onSeptember 4, 2012.

.25 hours for “[c]onference call S/J, additional plaintiffs” on April 4, 2013.

.5 hours for “[e]mails with Brendon; meet with Aaron (5:45-6:15)” on August 12,

2013.

.5 hours “TC declarant re case (see notes), charter revision” on May 1, 2014.



23/140

22

.5 hours for “Call and review of Reply to County’s two trial briefs” on February 7,2015.

DerOhannesian Decl., Exh. C-1. These entries account for tens of thousands of dollars in

unsupportable charges and the descriptions are inscrutably vague. Marshall v. State of New York

Div. of State Police, 31 F. Supp. 2d 100, 106 (N.D.N.Y. 1998) (“Plaintiff’s vague and blanket

description of ‘prepare for trial’ in its time records does not adequately inform the Court of the

nature and extent of the work performed and therefore provides an inadequate basis to determine

the reasonableness of these claimed hours.”) The bill should be reduced substantially as a result.

G.

Gibson’s and D&D’s Time Records Contain Inappropriate Block Billing.

As demonstrated above, Gibson’s and D&D’s exorbitant bills are rife with errors and

over-billings that, taken together, cast the entire bill in doubt. But these problems are severely

and irreparably compounded by Gibson’s decision to block bill nearly all of its time, making it

impossible for defendants or the Court to determine whether the time spent was reasonable.

Hines, NYLJ 1202659661779, at *14-15 (reducing bill by 30%, in part because attorneys “failed

to specify the amount of time spent on separate tasks, frustrating meaningful review of the

reasonable number of the hours billed”); In re Bownetree, LLC , 2009 WL 2843278, at *2 (Bankr.

E.D.N.Y. Aug. 28, 2009) (reducing fees from all block billed entries by 50%).

For example, on November 18, 2014, Gabriel K. Gillett billed 17.1 hours for

Revise trial modules; attend trial; teleconference with N. Lebron to prepare fortestimony; revise trial outline.

Karlan Decl., Exh. 1. This sundry list of tasks racked up $11,542.50 in charges, yet it is

impossible to tell what work was done, whether the time spent on each task was reasonable, or

whether the work could have been performed by someone less qualified and less expensive.



24/140

23

On January 7, 2015, Gibson’s associate Jonathan D. Fortney block billed $9,473 through

the following entry:

Finalize compilation of documents and turning of edits from M. Karlan for

Merrill testimony and Marcelle testimony; conference with M. Karlan and K.Kolb to turn and finalize Merrill and Marcelle exam scripts; finalize documentsand take to court; attend court for examination of Merrill and Marcelle;conference with team to turn edits from M. Karlan on McCoy exam script;finalize exhibits and script for court; attend court for examination of McCoy;conference with team regarding preparations for spoliation witnesses; read Perrindeposition transcript and work on exam script for cross of Perrin.

Id. These tasks took 14.5 hours to complete, yet it is impossible to discern whether the amount

spent on any individual task was reasonable because the associate did not break out his time.

Similarly, on November 17, 2014, DerOhannesian block billed 6.75 hours at a cost of

$2,531.25 through the following entry:

Review counterproposal fr County – review fees; research legal issues on layopinion; email JEC (TU); trial prep w Kyle and Brittany, witness outlines andexhibits; go to Fed Ct – drop off boxes and review IT in courtroom; prep w andfor Dr. Liu; meet w Anne Pope 3:30-5:50; emails County re maps, possiblerestitution; prepare Alomar and Pope testimonies; County’s filing – PFOFCOL –R&R

DerOhannesian Decl., Exh. C-1. Block billing thoroughly infests the records and frustrates any

effort to assess the reasonableness of the work performed and renders the bills meaningless.

For all the above reasons, including erroneous, duplicative, vague, and block billing,

defendants respectfully request that the Court reduce Gibson’s and D&D’s requested hours by

90% or more applying Northern District of New York rates. Guardians Ass’n, 133 F. App’x at

786 (affirming district court’s 80% across-the-board reduction where attorneys’ time records

were vague; attorneys billed full rates for travel time and time spent performing clerical tasks;

and counsel billed excessive hours even though plaintiffs’ complaint “was drawn largely from a

complaint in a factually related case”); Romeo & Juliette Laser Hair Removal, Inc. v. Assara I,

LLC , 2013 WL 3322249, at *8 (S.D.N.Y. July 2, 2013) (employing across-the-board 75%



25/140

24

reduction where the block billing “made it [so] difficult to separate tasks that are compensable

from those that are not, or tasks that should have been billed at lower rates from those

compensable at ordinary rates” that “the only feasible way of reducing [her] fees is to apply an

overall reduction”).

Further as demonstrated by Appendix 1 fee requests seldom rise for civil rights cases above

$250,000 for work which includes pleading to summary judgment to trial (including an occasional

interlocutory appeal) in the Northern District of New York. The average award is much smaller. A

reasonable plaintiff would expect to pay at most no more than $240,000 to secure the work performed by

plaintiffs’ attorney. Given the fatally flawed submission, this award is more than reasonable.

CONCLUSION

Defendants respectfully request that this Court enter an Order that:

(1) Denies Plaintiffs’ Application in its entirety; or in the alternative

(2) If the Application is not denied, plaintiffs’ records justify reasonable attorneys’

fees of no more than $240,000.

Dated: July 2, 2015 ALBANY COUNTY DEPARTMENT OF LAWBy: /s/Thomas Marcelle

Thomas Marcelle, Esq.Of counsel: Bar Roll No. 117102

Albany County Attorney, Department of LawAdam Giangreco, Esq. 112 State Street, Suite 1010


MURPHY, BURNS, BARBER & MURPHY, LLPBy: _______/s/ Peter G Barber________________

Peter G. Barber, Esq.

Bar Roll No. 301523226 Great Oaks BoulevardAlbany, New York, 12203



26/140

APPENDIX 1



27/140


28/140

Attorney Fees Awarded in the Northern District of New York unde

Case Name Case Cite Civil Rights Considered Nature of ProceedingsAttn'y Fee

Requested

At

Aw

Lewis v. City of Albany

Police Dep't

2009 WL

2356798

Excessive force and equal

protection Appeal to 2nd Circuit

Amount not

provided $1

Lore v. City of Syracuse

2009 WL

2957784

Title VII- Gender

Discrimination and

Retaliation; NYHRL

Summary Judgment, Jury Trial, Post-Trial

Motions, and multiple Appeals $351,529.25 $1

Countryman v. Farber

2009 WL

2835263 State Civil Law Claims Jury Trial $198,357.37 $13

Martinez v. Thompson

2008 WL

5157395

Excessive Force and Due

Process Jury Trial, Post-trial motions $242,083.00 $1

Lewis v. City of Albany

Police Dep't

554 F. Supp.

2d 297

Excessive Force and

Equal Protection

Motion for reconsideration of Motion to Dismiss,

Trial $47,252.00 $44

Luessenhop v. Clinton

Cnty., N.Y.,

558 F. Supp.

2d 247 Due Process

State Court proceedings, District Court moitons,

Appeal, Negotiations, in opposition to Motion to

Dismiss, Summary Judgement and more

negotiations

$99,082.53

(includes

costs) $62

McDaniel v. Cnty. ofSchenectady

2007 WL3274798 4th Amendment

Class Certification, Motions in opposotion to

Dismissal and Summary Judgment and Settlement Negotiations $650,000.00 $34

Trudeau v. Bockstein

2008 WL

3413903 First Amendment

TRO, Preliminary Injunction, motion in

opposition to Summary Judgment, Motion for

reconsideration $395,222.00 $10

Lee v. Glessing

2006 WL

2524185

Title VII-gender &

disability discrimination Jury Trial, Summ Jdgmt FRCP 50(a), Appeal $149,336.69 $12

Lake v. Shoharie County

Com'r of Social Services

2006 WL

1891141 8th Amendment- Prisoner

Jury Trial (Plaintiff Won), Post-Trial Motion for

Atty Fees (Report and Recommendation Served) $217,449.00 $1

Farbotko v. Clinton Cnty.

of New York 433 F.3d 204 §1983-Due Process One-day Bench Trial, Appeal $41,129.00 $10

Arbor Hill Concerned

Citizens Neighborhood

Ass'n v. County of

Albany

2005 WL

670307

Violation of VRA (Voting

Rights Act)

Prelim Injunct, Appeal (Remedial Plan Created),

Motion for Appellate Atty Fees Granted $483,948.64 $1

Case 1:11-cv-00736-LEK-CFH Document 447 Filed 07/02/15 Page 28


29/140

Attorney Fees Awarded in the Northern District of New York unde

Case Name Case Cite Civil Rights Considered Nature of ProceedingsAttn'y Fee

Requested

At

Aw

Romaine v. Rawson

2004 WL

1013316 8th Amd- Prisoner Bench Trial, Appeal, Settlement $73,484.00 $10

Kassim v. City ofSchenectady 415 F.3d 246 §1983-Due Process Partial Summary Judgment, Trial on damages $65,400.00 $12

Torres v. Cross

2003 WL

25719934 §1983- Excessive Force Pre-Trial Discovery, Settlement, $66,429.25 $1

Patterson v. Balsamico, 440 F.3d 104

Title VII- Discrimination,

Retaliation; §1983- Due

Process

Summary Judgement, Trial, Separate Trial on

punative damages, Appeal

Amount not

provided $1

Patterson v. Julian

250 F. Supp.

2d 36 Title VII and Due Process 5-day Jury Trial, Post-Trial Motions

Amount not

provided $4

Baim v. Notto316 F. Supp.2d 113 4th Amendment

Partial Summary Judgement, Trial, Post-TrialMotions

Amount not provided $7

People ex rel. Vacco v.

Rac Holding, Inc

135 F. Supp.

2d 359 Title VII Motions to Intervene, Complaints, Settlement $42,006.22 $3

Noga v. Potenza

2002

WL34945085

Civil Rights Violation

(under 42 U.S.C. §1983

and NY Sate Law)

Jury Verdict--Plaintiff Won, Plaintiff's Post-Trial

Motion for Atty's Fees Granted $44,375.00 $44

Young v. Healey

1999 WL

1281503 Excessive Force Jury Trial and Appeal $5,726.74 $4

Blissett v. Casey

1999 WL

1034502 8th Amendment Appeal to C ircuit and Appeal to Supreme Court

Amount not

provided $14

John S. v. Cuomo

1999 WL

592693 $243,996.50 $1

Cay v. Burleigh

1999 WL

408790 8th Amendment Bench Trial $33,270.42 $32

Carroll v. DeBuono

48 F. Supp. 2d

191

Equal Protection and 14th

Amd Class Certification and Summary Judgment

Amount not

provided $7

Lunday v. City of Albany 42 F.3d 131 8th Amendment Jury Trial

Amount not

provided $1

Case 1:11-cv-00736-LEK-CFH Document 447 Filed 07/02/15 Page 29


30/140

Attorney Fees Awarded in the Northern District of New York undeCase 1:11-cv-00736-LEK-CFH Document 447 Filed 07/02/15 Page 30


31/140



32/140



33/140

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________________

ANNE POPE, JANIS GONZALEZ, WANDA WILLINGHAM,

GERALDINE BELL, SAMUEL COLEMAN, LEE PINCKNEY,VICENTE ALFONSO AND ELAINE FRAZIER,

Plaintiffs,Index No.: 1:11-cv-0736

-against- (LEK/CFH)

COUNTY OF ALBANY AND THE ALBANY COUNTYBOARD OF ELECTIONS,

Defendants.

____________________________________________________

DECLARATION OF THOMAS MARCELLE, ESQ.

Thomas Marcelle declares under penalty of perjury the following:

1. I am the County Attorney for the County of Albany and counsel for the County of

Albany and the Albany County Board of Elections (“Defendants” or the “County”) in this action.

I make this Declaration in opposition to Plaintiffs’ application for attorneys’ fees and costs.

2. DerOhannesian & DerOhannesian (“D&D”) holds itself out to be a specialist in

election law. Attached hereto as Exhibit 1 is an excerpt from D&D’s website that describes the

firm’s expertise in election law.

3. Gibson, Dunn & Crutcher LLP (“Gibson”) is an international firm with over

1,000 lawyers dispersed across four continents. Attached hereto as Exhibit 2 is an excerpt from

Gibson’s website that describes the firm’s magnitude.

4. Gibson and D&D represented plaintiffs against the County of Albany in Arbor

Hill Concerned Citizens Neighborhood Ass’n v. County of Albany, No. 1:0-3cv-00502 (N.D.N.Y.

Case 1:11-cv-00736-LEK-CFH Document 447-1 Filed 07/02/15 Page 1 of 108


34/140

2

2003). That action involved the exact same issues, the exact same Defendants, the exact same

lead counsel, and the exact same experts.

5. The underlying litigation featured more than 30 depositions, almost all of which

Gibson overstaffed with an inordinate number of associates in what was clearly an effort to

provide young associates with litigation experience.

6. Four Gibson attorneys billed 77.5 hours at a cost of $39,792.25 for the deposition

of Aaron Mair, which lasted seven hours.

7. Five Gibson attorneys billed 63.55 hours for the deposition of Frank Commisso,

even though the deposition lasted for less than two hours. Attached hereto as Exhibit 3 are the

relevant portions of the deposition transcripts from this action which show the inordinate number

of Gibson attorneys per deposition.

8. Many of the depositions in the underlying litigation were only required because

Plaintiffs amended their complaint after summary judgment, while the County prevailed on

every single discovery dispute.

9.

A substantial portion of Plaintiffs’ arguments and the matters discussed at

depositions addressed Plaintiffs’ coalition claim.

10. Plaintiffs overstaffed nearly every aspect of this litigation in order to train their

junior associates. In fact, Gibson acknowledges that one reason it pursues pro bono

opportunities is to train its associates. Attached hereto as Exhibit 4 is an excerpt from Gibson’s

website that describes the firm’s pro bono practice. Attached hereto as Exhibit 5 is an excerpt

from Gibson’s website that describes the awards the firm has received for its pro bono practice.

I hereby declare under penalties of perjury that the foregoing is true and correct.



35/140

3

Dated: July 2, 2015Thomas Marcelle



36/140

Exhibit 1



37/140

Email *

Submit

White collar crimes violate federal law and are usually charged in federal court. If you face charges for

any of the following, call us at 1-800-675-6420 or contact us online to tell us about your situation.

Antitrust violations

Bank fraud

Bankruptcy fraud

Bribery

Computer/Internet fraud

Credit card fraud

Counterfeiting

Economic espionage

Embezzlement

Extortion

Forgery

Insurance fraud

Money laundering

Securities fraud

Tax evasion and fraud

Click here to read about our notable white collar crime case.

Back to top

Election law

At DerOhannesian & DerOhannesian, we work hard to uphold New York State voters' rights and ensure

adherence to local and state election administration process. When rights and process are violated, we

staunchly defend them. Our firm also works with clients to challenge redistricting initiatives, campaign

financing, and other elements of election law.

Back to top

Personal injury

New York law entitles you to compensation if you have been injured through the negligence or

wrongdoing of someone else. DerOhannesian & DerOhannesian represents clients who have been injure

in the following situations:

Auto accidents

Trucking accidents

Motorcycle accidents

Bus accidents

Boating accidents

Premises liability

Slip and fall

Wrongful death

We handle your legal matter so you can focus on your healing. We work with insurance companies,

witnesses, and experts to secure for you compensation that covers past and future medical expenses,

lost wages and earning capacity, and pain and suffering.

Back to top

Medical malpractice

When you seek medical help from a health care professional, you expect that person to adhere to a

certain set of standards. But sometimes, procedures go awry. If this has happened to you or a loved one

we apply our skilled team of investigators to determine negligence of the medical professional. You are

entitled by law to compensation and we work zealously to recover damages for you.

Back to top

Products liability

You can hold manufacturers, resellers, distributors, and product designers responsible for defective

products when they cause harm to you. Safety or warning labels may not have appropriately provided

caution or the product may have operated incorrectly due to a manufacturing or design defect. If you or

a loved one has been a victim of a product defect, contact DerOhannesian & DerOhannesian. We

conduct a thorough investigation of the product to determine the root cause of its failure to perform

safely. We bring your claim to justice and fight for fair compensation for your damages.

Back to top

Estates and estate litigation

Estates


http://-/?-http://-/?-http://www.derolaw.com/cases/#white_collar_crimehttp://-/?-http://-/?-http://-/?-http://www.derolaw.com/contact-us/http://www.derolaw.com/contact-us/


38/140

Exhibit 2



39/140

H o m e > O f f i c e s

GLOBAL REACH

Gibson, Dunn & Crutcher, with more

than 1,200 lawyers in 18 offices in

major cities throughout the United

States, Europe, the Middle East, Asia

and South America, is committed to

providing the highest quality legal

services to its clients. In Europe, ourestablished, internationally

networked group of qualified U.S.,

English, French, Spanish and

German lawyers have considerable

experience in representing clients

with global business interests that

require a coordinated, seamless

response within and across European

national borders.

VIEW GIBSON DUNN OFFICES

Beijing

Brussels

Century City

Dallas

Denver

Dubai

Hong Kong

London

Los Angeles

Munich

New York

Orange County

Palo Alto

Paris

San Francisco

São Paulo

Singapore

Washington, D.C.


http://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/diversityhttp://www.gibsondunn.com/offices/Beijinghttp://www.gibsondunn.com/offices/Dallashttp://www.gibsondunn.com/offices/Parishttp://www.gibsondunn.com/offices/NewYorkhttp://www.gibsondunn.com/probonohttp://www.gibsondunn.com/newshttp://www.gibsondunn.com/offices/OrangeCountyhttp://www.gibsondunn.com/http://www.gibsondunn.com/offices/Brusselshttp://www.gibsondunn.com/offices/CenturyCityhttp://www.gibsondunn.com/offices/NewYorkhttp://www.gibsondunn.com/offices/Singaporehttp://www.gibsondunn.com/offices/Londonhttp://www.gibsondunn.com/offices/OrangeCountyhttp://www.gibsondunn.com/offices/Dallashttp://www.gibsondunn.com/offices/WashingtonDChttp://www.gibsondunn.com/offices/Munichhttp://www.gibsondunn.com/offices/SanFranciscohttp://www.gibsondunn.com/offices/S%C3%A3oPaulohttp://www.gibsondunn.com/default.aspxhttp://www.gibsondunn.com/offices/Dubaihttp://www.gibsondunn.com/practiceshttp://www.gibsondunn.com/offices/Denverhttp://www.gibsondunn.com/publicationshttp://www.gibsondunn.com/offices/PaloAltohttp://www.gibsondunn.com/offices/Denverhttp://www.gibsondunn.com/offices/Parishttp://www.gibsondunn.com/offices/Dubaihttp://gd_opencareersitewindow%28%29/http://www.gibsondunn.com/storyhttp://www.gibsondunn.com/lawyershttp://www.gibsondunn.com/offices/HongKonghttp://www.gibsondunn.com/Pages/login.aspxhttp://www.gibsondunn.com/offices/LosAngeleshttp://www.gibsondunn.com/officeshttp://www.gibsondunn.com/offices/Beijinghttp://www.gibsondunn.com/offices/PaloAltohttp://www.gibsondunn.com/offices/WashingtonDC


40/140

EXHIBIT 3



41/140



42/140



43/140



44/140



45/140



46/140



47/140



48/140



49/140



50/140



51/140



52/140



53/140



54/140



55/140



56/140



57/140



58/140



59/140



60/140



61/140



62/140



63/140



64/140



65/140



66/140



67/140



68/140



69/140



70/140



71/140



72/140



73/140



74/140



75/140



76/140



77/140



78/140



79/140



80/140



81/140



82/140



83/140



84/140



85/140



86/140



87/140



88/140



89/140



90/140



91/140



92/140



93/140



94/140



95/140



96/140



97/140



98/140



99/140



100/140



101/140



102/140



103/140



104/140



105/140



106/140



107/140



108/140



109/140



110/140



111/140



112/140



113/140



114/140



115/140



116/140



117/140



118/140



119/140



120/140



121/140



122/140



123/140



124/140



125/140



126/140



127/140



128/140



129/140



130/140



131/140



132/140



133/140



134/140



135/140

EXHIBIT 4



136/140

Home > Pro Bono & Communi t y Serv ice

OUR COMMITMENT

Gibson, Dunn & Crutcher has a long-

standing and greatly valued tradition

of service to the community. We are

privileged to be able to give back to

the communities that have been such

a part of our success, and believe that

community

County fees response.pdf

Documents