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United States District Court, S.D. New York.



Eliot SPITZER, individually and in his official capacity as Attorney General of

the State of New York, et al., Defendants.



George E. PATAKI, in his official capacity as Governor of the State of New

York, et al., Defendants.

Nos. 00 Civ. 7274(LAP), 00 CIV 7750(LAP).

March 29, 2002.




*1 Plaintiffs move for attorneys' fees as a prevailing party pursuant to 42 U.S.C. ß 1988. Defendants concede for purposes of these motions that plaintiffs are prevailing parties within the meaning of the statute and are entitled to recover reasonable fees and disbursements. (Defendant' Memorandum of Law in Opposition to Plaintiffs' Application for Attorneys' Fees dated October 22, 2001 ("Def.Br.") at 1). The only question presented is the reasonableness of such fees.


Plaintiffs Santa Fe Natural Tobacco Co., Inc. ("Santa Fe") and Brown & Williamson Tobacco Corporation and BWTDirect, LLC (the "B & W Plaintiffs") commenced these actions on or about September 26, 2000 and October 12, 2000, respectively, seeking a declaration that Section 1399-11 of the New York Public Health Law violated the Commerce Clause of the U.S. Constitution, an injunction prohibiting defendants from enforcing the statute, and such further relief as the Court deemed proper, including attorneys' fees, costs and expenses pursuant to Section 1988. On October 23, 2000, the First Scheduling Order was issued setting dates for discovery, briefing, a preliminary injunction hearing on November 27, 2000, and oral argument on December 13, 2000. The schedule contemplated an expedited, labor-intensive, and accelerated process necessitated by (1) defendants' refusal to agree to stay enforcement of Section 1399-11 for a few weeks pending a preliminary injunction hearing (thus requiring plaintiffs to seek a temporary restraining order preventing the statute from taking effect on November 14, 2000, as scheduled); and (2) defendants' refusal to consent to an extension of the temporary restraining order, if issued (thus requiring plaintiffs to conduct discovery under an accelerated schedule looking toward a preliminary injunction decision following argument in mid-December 2000).

The TRO was issued on November 13, 2000 (Santa Fe Natural Tobacco Co. v. Spitzer, 2000 WL 1694307 (S.D.N.Y. Nov. 13, 2000))--three weeks after accelerated discovery under the First Scheduling Order had begun. The next day, November 14, defendants offered to consent to a three-week extension of the TRO to permit the parties to make fuller evidentiary showings at the preliminary injunction hearing. The B & W Plaintiffs responded in a letter on the same date that a longer extension should be granted to allow the preliminary injunction hearing to be consolidated with the trial on the merits, thereby obviating the need for a second evidentiary proceeding and a third oral argument. On November 15, 2000, a Second Scheduling Order was issued setting the preliminary injunction hearing for February 6, 2001, oral argument on March 9 (based on Defendants' consent to extend the TRO through March 16, 2001) and reserving decision on consolidation.

On December 13, 2000, forty-five minutes after B & W requested an order compelling depositions of certain State staff counsel, counsel for defendants informed Covington & Burling ("C & B"), counsel to the B & W Plaintiffs, that defendants would seek to disqualify C & B as counsel to the B & W Plaintiffs. After consideration of letters on that topic, a Third Scheduling Order was issued on January 17, 2001 scheduling briefing on defendants' disqualification motion, argument on the motion on February 16, 2001, depositions and other discovery to resume at the beginning of March and the preliminary injunction hearing to begin on April 30, 2001.

*2 On February 26, 2001, defendants' disqualification motion was denied. Brown & Williamson Tobacco Corp. v. Pataki, 152 F.Supp.2d 276 (S.D.N.Y.2001). In addressing issues raised by that motion, I noted that the accelerated schedule in the case was the result of defendants' request for expedited proceedings after issuance of the TRO and that defendants' decision in that regard "is not without consequences." Id. at 290. I also noted that it was "clear that [defendants] made a tactical decision at the outset [of the case] not to seek ... disqualification (or at least raise the issue) and instead chose to pursue expedited proceedings" and that defendants, having done so, "must accept the consequence." Id.

On April 24, 2001, over the objection of defendants, the trial on the merits was consolidated with the preliminary injunction hearing, and a five-day bench trial commenced on April 30, 2001. Oral argument was held on May 30, 2001, and on June 8, 2001, an opinion was issued holding Section 1399-11 unconstitutional and permanently enjoining defendants from enforcing it. Santa Fe Natural Tobacco Co. v. Spitzer, 2001 WL 636441 (S.D.N.Y. June 8, 2001).

Santa Fe now applies for reimbursement of some $600,000 paid to its attorneys, Salans Hertzfeld Heilbronn Christy & Viner (the "Salans firm"), Enns & Archer, LLP (the "Enns firm") and Kilpatrick Stockton (the "Kilpatrick firm"), and the B & W Plaintiffs apply for reimbursement of some $3.1 million in fees and disbursements paid to their attorneys, C & B and King & Spaulding ("K & S").


42 U.S.C. ß 1988(b) provides that "... the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs...." The district court is given broad discretion in assessing a reasonable attorney's fee based on the circumstances of each case and is advised not to undertake a tedious analysis of every aspect of the attorney's representation. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); see also New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983) ("In assessing the extent of staffing and background research appropriate for a given case, a district court must be accorded ample discretion.").

Within the Second Circuit, the lodestar method may be used to ascertain attorney's fees in civil rights cases. See Quararino v. Tiffany & Co., 166 F.3d 422 (2d Cir.1999); see also Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 45 (2d Cir.2000) (either lodestar or "percentage of the recovery" method may be used in common fund cases). The lodestar method calculates fees by using the product of the number of hours reasonably expended by each attorney and the reasonable hourly rate. See Hensley, 461 U.S. at 437; Quararino, 166 F.2d at 425; Gavin-Mouklas v. Information Builders, Inc., No. 97 Civ. 3085(LAP), 1999 WL 728636, at super* 2 (S.D.N.Y. Sept. 17, 1999) (internal quotations omitted). Plaintiffs have the burden of demonstrating that the rates requested and the number of hours expended was reasonable. See Stratton v. Department for the Aging, No. 91 Civ. 6623(SAS), 1996 WL 352909, at super* 2- super* 3 (S.D.N.Y. June 25, 1996) (citing Hensley, 461 U.S. at 433-34). "Counsel for the prevailing party should make a good fath effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary...." Hensley, 461 U.S. at 434.

*3 To assess the reasonableness of the time expended by an attorney, the court must look first to the time and work as they are documented by the attorney's records. See Forschner Group, Inc. v. Arrow Trading Co., Inc., No. 92 Civ. 6953(LAP), 1998 WL 879710, at super* 2 (S.D.N.Y. Dec. 15, 1998). Next the court looks to "its own familiarity with the case and its experience generally.... Because attorneys' fees are dependent on the unique facts of each case, the resolution of the issue is committed to the discretion of the district court." AFP Imaging Corp. v. Phillips Medizin Sys., No. 92 Civ. 6211(LMM), 1994 WL 698322, at super* 1 (S .D.N.Y. Dec. 13, 1994) (quoting Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir.1992) (quoting DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir.1985))).

To assess the reasonableness of the billing rates employed, courts look to market rates " 'prevailing in the community for similar services by lawyers of reasonable comparable skill, experience and reputation." ' Gierlinger v. Gleason, 160 F.3d 858, 852 (2d Cir.1998) (quoting Blum v. Stenson, 465 U.S. 886, 896 n. 11 (1984)); see Carey, 711 F.2d at 1151. Because this action was litigated in the Southern District of New York, the prevailing community rates would normally be those of Manhattan attorneys of reasonably comparable skill and experience for similar litigation. See Polk v. New York State Dep't of Correctional Serv., 722 F.2d 23, 25 (2d Cir.1983); Gavin-Mouklas, 1999 WL 728636, at super* 2. Here, as to those timekeepers based in Manhattan, I have considered prevailing Manhattan rates for comparable counsel. Plaintiffs' fee requests for timekeepers located other than in Manhattan are based on those timekeepers' regular, non-Manhattan billing rates--rates which, not surprisingly, are lower than Manhattan rates. Accordingly, I have considered the rates requested by out-of-town counsel in comparison to comparable lawyers in the relevant out-of-town location. In determining the prevailing rate, courts also factor in the size of the law firm involved; lawyers at large firms generally recover more per hour than lawyers at small firms. Chambers v. Masters, 885 F.2d 1053, 1059 (2d Cir.1989). In addition, district court judges may rely on their own knowledge of rates charged by lawyers in the district. E.g., Miele v. New York State Teamsters Conference Pension & Retirement Fund, 831 F.2d 407, 409 (2d Cir.1987).

Finally, billing judgment must be factored into the equation. Hensley, 461 U.S. at 434; DiFilippo, 759 F.2d at 235-36. If a court finds that the fee applicant's claim is excessive, or that time spent was wasteful or duplicative, it may decrease or disallow certain hours or, where the application for fees is voluminous, order an across-the-board percentage reduction in compensable hours. In re "Agent Orange" Products Liab. Litig., 818 F.2d 226, 237 (2d Cir.1987) (stating that "in cases in which substantial numbers of voluminous fee petitions are filed, the district court has the authority to make across- the-board percentage cuts in hours 'as a practical means of trimming fat from a fee application" ' (quoting Carey, 711 F.2d at 1146)); see also United States Football League v. National Football League, 887 F.2d 408, 415 (2d Cir.1989) (approving a percentage reduction of total fee award to account for vagueness in documentation of certain time entries).

*4 The determination of the final "lodestar" amount is not necessarily the end of the inquiry; in some cases where constitutional claims are involved, the court may adjust the lodestar amount based on a variety of factors. Hensley, 461 U.S. at 434; see, e.g., Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974); Foster v. Kings Park Cent. School Dist., 174 F.R.D. 19 (E.D.N.Y.1997). These factors are (1) the time and labor required; (2) the novelty and difficulty of the question; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Foster, 174 F.R.D. at 27. With all of the above considerations in mind, I turn to the litigation at hand.

It is with abundant understatement that defendants acknowledge that the litigation "was fast-paced and, at times, challenging," (Def. Br. at 1), and that the effort involved was "not insubstantial," (Id. at 2). The factual inquiries were novel and complex. They included, for example, review of reams of statistical studies purporting to show a relationship between, for example, (1) the cost of cigarettes and demand among particular age groups, (2) the cost of cigarettes and the volume of cross-border sales, and (3) enforcement of a variety of tobacco-related regulations and demand among particular age groups. Inquiry into the legislative history of the statute was also required. The legal issues presented were equally complex, involving, for example, sophisticated Commerce Clause analysis, inquiry into New York State tax regulations and United States Postal Service regulations as applied to cigarettes and questions of State Executive privilege. Also presented on the disqualification motion was an issue of first impression of who is the client in a governmental context. See Roy Simon, Simon's New York Code of Professional Responsibility Annotated 473-74 (2002). In my judgment, the factual and legal issues presented in this action were far more challenging than those presented in the normal civil rights case. See Foster, 174 F .R.D. at 19 (considering novelty and difficulty of the question presented).

Defendants are correct that the action was "fast-paced" and the effort expended "not insubstantial." However, a good deal of the substance of the litigation, for example, the TRO motion and the disqualification motion--and the pace of the litigation, which can only be described as breakneck--were necessitated by defendants' tactical decisions. As noted above, defendants would not agree to stay enforcement of the statute, thus necessitating the TRO motion, and would only agree to extension of the TRO for limited periods, thus necessitating the breakneck pace. As also noted above, the defendants' decision not to move to disqualify C & B at the outset but to do so in the middle of an already intense litigation certainly multiplied the proceedings. These tactical decisions of defendants increased the cost of the litigation to plaintiffs. See id. (considering the time and labor required and time limitations imposed by the circumstances).

*5 The experience, reputation and ability of plaintiffs' counsel, also a Foster factor, were all first rate. All of the counsel involved in the action are presently [FN1] large firm practitioners, thus commanding higher rates in general. Chambers, 885 F.2d at 1059. As set forth more specifically below, the attorneys involved here demonstrated the highest level of experience, expertise and ability in litigating this action. [FN2]


FN1. I include Mr. Enns in this category because he departed from a large firm in the midst of this litigation and is for these purposes, in history, experience and performance, a large firm lawyer.


FN2. I note parenthetically that defendants' counsel also litigated the action at a high level of professional competence--far beyond that encountered in most civil rights cases.


Another Foster factor is the result obtained. Here the result was spectacular; counsel obtained all the relief sought in record time under difficult circumstances. It was a result private clients would be, and apparently were, happy to pay for, a result made more likely by utilization of top-of-the-line litigators who, from my review of the contemporaneous time entries and summaries, left no stone unturned. This maximum force litigation effort, while admirable and highly effective here, in some instances was above and beyond the standard of reasonableness applicable under ß 1988. Section 1988 authorizes the reimbursement of reasonable fees and expenses, not reimbursement of fees and expenses necessary to maximize the chances of success. Here, where I am being asked to shift the plaintiffs' costs of this litigation to the People of the State of New York, I must adhere to the reasonableness standard of ß 1988 and heed the Court of Appeals' caution that attorney's fees are to be awarded " 'with an "eye to moderation," ' seeking to avoid either the reality or the appearance of awarding 'windfalls." ' Evans v. State of Connecticut, 967 F.Supp. 673, 691 (D.Conn.1997) (quoting Beazer v. New York City Transit Authority, 558 F.2d 97, 101 (2d Cir.1977)).

Based on the record on these motions and my own knowledge of billing rates, plaintiffs have demonstrated the reasonableness of the rates applicable to all of the timekeepers at issue (after counsel's billing judgment reductions). Although the rates are higher than those commonly seen in civil rights litigation, the issues presented, both factual and legal, were far more complex than those commonly seen. [FN3] With minor exceptions (for example, describing tasks as "odds and ends" (Remes Decl. Ex. D, December 2000 time sheets, line 184)), counsel's contemporaneous time records comply with the requirements of Carey, 711 F.2d 1138, that is, they "overall are sufficiently detailed to allow the court to assess the reasonableness of the time spent," Burr v. Sobel, 748 F.Supp. 97, 100 (S.D.N.Y.1990). The only question, then, is the number of hours reasonably expended, a question that in some instances includes the number of attorneys involved. Because of the volume of the time sheets submitted, I will not detail each individual time entry (or part of an entry) here but will focus on the "big picture," id., and adjust the hours to meet the reasonableness standard of ß 1988 by means of across- the-board percentage cuts, where appropriate, see In re "Agent Orange", 818 F.2d at 237 (quoting Carey ); United States Football League, 887 F.2d at 415.


FN3. Although quantity does not necessarily correspond with complexity, I note that some twenty-two depositions were taken in this action, five of experts, over 60,000 pages of documents were produced, 477 exhibits proffered and a week-long trial held. See Velie Supp. Decl. 6.



The Enns Firm

*6 As set out in the Declaration of Rodrick J. Enns executed on July 27, 2001 ("Enns Decl."), when this action arose, Mr. Enns was a partner at the Kilpatrick firm, a large firm with offices throughout the Southeast and in Europe. He withdrew from that firm effective February 1, 2001, and formed the Enns firm, but several Kilpatrick attorneys and paralegals continued to work on the matter under Mr. Enns' supervision. (Enns Decl. 6). Santa Fe seeks reimbursement of $272,536.75 in fees and $28,107.95 in disbursements paid to the Kilpatrick and Enns firms, (Enns Decl. Exs. A & B; Enns Supplemental Declaration executed November 5, 2001 ("Enns Supp. Decl.") Ex. A)).

Mr. Enns, the attorney primarily responsible for this action for Santa Fe, is a 1979 law school graduate with extensive commercial litigation experience, primarily in matters relating to marketing and distributing consumer products. He has also represented Santa Fe in constitutional challenges to cigarette licensing laws in two other jurisdictions. (Enns Decl. 4-5). His billing rate was $305 per hour, both at the Kilpatrick firm and at the Enns firm, (Enns Decl. Exs. A & B; Enns Supp. Decl. Ex. A).

Defendants do not object to any aspect of the Kilpatrick or Enns firms' fees or disbursements. I have reviewed the contemporaneous time and disbursement records and find them to be reasonable in all respects.

The Salans Firm

Santa Fe retained the Salans Firm as local counsel in this matter. Franklin B. Velie, the attorney primarily responsible, has thirty years experience as a litigator, including experience in constitutional litigation. He served as an Assistant United States Attorney in the Southern District of New York from 1971 to 1975 where he became Assistant Chief of the Criminal Division. Mr. Velie's billing rates were $450 per hour until January 2001 and $500 thereafter. Mr. Velie, inter alia, supervised attorneys at the Salans firm, defended the two depositions of Santa Fe's expert witness, Fred Dunbar, and served as trial counsel. (Declaration of Franklin B. Velie in Support of Petition executed July 31, 2001 (the "Velie Decl.") 4; Reply and Supplemental Declaration of Franklin B. Velie executed November 7, 2001 (the "Velie Supp. Decl.") 12, 28).

Dierdre A. Burgman, the Salans firm attorney who also billed significant time on this matter, holds a Master of Laws degree and has practiced for 21 years. Ms. Burgman has worked at two large Manhattan firms, served as general counsel at the New York State Urban Development Corporation and as Deputy Inspector General for New York State and was named counsel for the Salans firm on October 1, 2000. Her experience includes numerous constitutional cases, most dealing with the Commerce Clause, and she has authored a variety of articles on constitutional law topics. (Id. 5). Her billing rates during the pendency of the action were $250 per hour (through September 30, 2000), $285 (through December 31, 2000) and $305 thereafter. She had primary responsibility for depositions and participated in trial preparation in this action. (Id.).

*7 Associate time (which comprised only 46.6 hours) was billed at rates from $180 to $330 per hour. Paralegal and clerk time was billed at $135 and $145 per hour. (Id. 3, 6, 7, 9). Santa Fe seeks $314,072.99 in fees and $29,847.92 in disbursements paid to the Salens firm (Velie Decl. Ex. B; Velie Supp. Decl. Ex. B).

As explained by Mr. Enns, Santa Fe's intent in engaging Mr. Velie was to retain counsel "who could most effectively present Santa Fe's position in the local forum" and work closely with Mr. Enns in managing the litigation effectively. (Enns Supp. Decl. 3). He explained that

Mr. Velie's background with the U.S. Attorney's Office and his subsequent distinguished career as a commercial litigator made clear to us that he not only possesses the requisite knowledge of local rules and procedures, but is an extraordinarily skilled courtroom lawyer. He also expressed complete willingness to work closely with me in managing the case efficiently.

(Enns Supp. Decl. 4).

In hindsight, Mr. Enns' evaluation was as follows:

My experience in working with Mr. Velie and [the] Salans [firm] during the course of this litigation not only confirmed, but exceeded my expectations. We were able to form a very effective working relationship, and Mr. Velie's judgment, experience, knowledge of the forum, and courtroom skills all proved invaluable. As an unexpected bonus, Mr. Velie involved Ms. Burgman in this case, who is not only a skilled researcher, writer, and litigator, but has substantial experience with New York state government and specifically with constitutional litigation involving the State which proved to be most valuable.

(Enns Supp. Decl. 5). Having reviewed the time and billing records of the Salans Firm and observed Mr. Velie's performance at the trial and in the other court proceedings in this action and the papers submitted on behalf of Santa Fe, I agree with Mr. Enns' evaluation.

Defendants do not object to the number of hours billed by the Salans firm. I have reviewed the contemporaneous time records and find that they reflect a high level of efficiency and are entirely reasonable.

Defendants do object to the hourly rates billed by the Salans firm. Based on the material in the record and on my own knowledge of firm billing rates, however, I find the rates of all of the timekeepers at the Salans firm to be entirely reasonable for large-firm Manhattan practitioners in light of Mr. Velie's and Ms. Burgman's high level of experience, expertise and performance and in light of the complex legal and factual issues presented here. (See Declaration of Lawrence Silverman in Support of the Petition executed July 31, 2001 (the "Silverman Decl."), Ex. B (RLS Legal Services, Inc. listing of rates requested by large New York firms); Velie Supp. Decl. Ex. A (A Firm-by-Firm Sampling of Billing Rates Nationwide, Nat'l Law J., Dec. 18, 2000, at B14); Blue Cross & Blue Shield v. Philip Morris, No. 98 CV 3287(JBW), 2002 WL 397224, at super* 15 (E.D.N.Y. Feb. 28, 2002) (awarding fee based on average partner billing rate of $540 per hour for large New York firms in complex case).

*8 Defendants have not objected to the disbursements of the Salans Firm. I have reviewed them and find them to be reasonable in all respects.


King & Spaulding

As set out in the Declaration of Dan H. Willoughby, Jr., sworn to on July 27, 2001 (the "Willoughby Decl."), K & S assisted C & B with the discovery issues in this action. Rates for attorneys ranged from $115 to $235 per hour, and rates for paralegals and clerks ranged from $50 to $124 per hour. B & W seeks $79,781.25 in fees and $41.52 in disbursements (Willoughby Decl. 10-11). Defendants do not object to the rates utilized or the hours billed. I have reviewed the time and disbursement records and find them to be reasonable in all respects.

Covington & Burling

As set out in the Declaration of David H. Remes in Support of the B & W Plaintiffs' Motion (the "Remes Decl.") and the Silverman Decl., the B & W plaintiffs seek $2,770,560 in fees and $311,752 in expenses paid to C & B. (Remes Decl. 9). C & B did not bill the B & W plaintiffs, and those plaintiffs do not seek to recover on this application $575,505 in fees and $27,257 in expenses (17.2% of C & B fees and 8.7% of C & B expenses) reflecting C & B's removal of redundant or unnecessary items and its billing judgment reductions and fees and expenses paid by another potential plaintiff prior to filing the complaint. (Remes Decl. 10).

Mr. Remes, the C & B partner primarily responsible for the action, is based in Washington, D.C., is a 1979 law school graduate and has represented tobacco industry clients in a variety of matters over the years, including in cases in the Supreme Court. (Id. 3). Although C & B raised his billing rate during the pendency of this action, his time on this matter was billed at $390 per hour throughout. A total of 10.5% of his time was written off, thus lowering his effective rate. (Id., Ex. A).

Throughout these proceedings, Mr. Remes demonstrated an extraordinary depth of knowledge of the issues raised, both the factual issues involving the tobacco industry and the legal issues involving the Commerce Clause and internet regulation. This demonstrated expertise apparently arose from Mr. Remes' experience with these issues and his and C & B's long-time representation of B & W. Even comparing his billing rate to comparable Washington, D.C.-based attorneys, his billing rate on this matter can only be considered a bargain.

Laurence Silverman, the C & B partner primarily in charge of discovery and conduct of the trial, is based in New York, is a 1977 law school graduate and has significant commercial litigation experience. (Silverman Decl. Ex. A). During the pendency of this action, his billing rate was $525 (four months), $575 (seven months) and $487.50 (two months). Of his total time charges, 25.6% was written off, thus lowering his effective rate. (Remes Decl. 11 & Ex. A).

Patricia A. Barald, a C & B Washington partner and a 1973 law school graduate, worked primarily on the economic issues in the case, such as price elasticity and cross-border sales, and legal issues relating to Indian tribes and the U.S. Postal Service. She is experienced in, inter alia, tobacco regulation issues and Commerce Clause jurisprudence. Her billing rates were $350 per hour for six months and $400 (eight months), and 21.4% of her time was written off. (Remes Decl. 13 & Ex. A).

*9 Rates for other partners and counsel who billed time ranged primarily from $350 to $575, all with varying write-offs. Rates for associates ranged from $90 to $375, with varying write-offs, and for paralegals, law clerks, court clerks, librarians, and the like from $48 to $140, with varying write- offs.

As noted above, the applicable rates after write-offs are reasonable for counsel (and other timekeepers) of this experience and level of performance on a matter of this complexity, based on my own knowledge of billing rates and on the material in the record showing rates of other large law firms experienced in complex litigation in Washington and New York. (See Remes Decl. Ex. C (RLS Legal Services, Inc. listing of rates requested by various Washington, D.C.- based firms); Silverman Decl. Ex. B (RLS Legal Services, Inc. listing of rates requested by various New York-based firms); Velie Supp. Decl. Ex. A (A Firm-by- Firm Sampling of Billing Rates Nationwide, Nat'l Law J., Dec. 18, 2000, at B14)); Blue Cross, 2002 WL 397224, at super* 15 (awarding fee based on average partner billing rate of $540 per hour for large New York firm in complex case)).

The number of hours billed, however, is a different matter. Private clients can, of course, agree to pay for any number of lawyers and hours on a matter. Indeed, the plaintiffs here were no doubt delighted with the superlative results expeditiously achieved and have paid the bills as rendered. As noted above, however, the standard under Section 1988 is more moderate and, in my view, does not contemplate the "deep bench" approach to litigation staffing. Although the deep bench approach might well be commercially acceptable under circumstances such as those presented in this action, it is not widely accepted, even in commercial matters, [FN4] and is certainly not within the reasonableness standard of Section 1988.


FN4. I am aware that numerous large commercial consumers of legal services have written guidelines for counsel that, absent prior consent, limit the number of lawyers in attendance at court appearances, depositions, etc.


Practice of the deep bench theory is apparent in many of C & B's time entries. For example, I note that the C & B time records indicate that in preparation for and participation in the roughly one-hour teleconference on December 15, 2000 (which involved plaintiffs' unsuccessful attempt to take the depositions of certain State staff counsel), five attorneys billed some 46.8 hours as follows:

Silverman 12/14 10.5 hours

12/15 9.0

Remes 12/15 10.0

Gimbel 12/15 5.0

Svirsky 12/15 6.0

Danzig 12/14 11.3

12/15 5.0

For the April 24 argument on the standard to be applied, four lawyers billed some 50 hours as follows:

Silverman 11.5 hours

Remes 6.5

Udell 15.5

Duke 16.5

At the Heronimas deposition on November 13, Messrs. Remes and Silverman, the two most senior C & B lawyers on the case, billed a total of some 22 hours, together with additional time by an associate for preparation. These and other examples of multiple lawyers where fewer would be reasonable convince me that a 20% reduction in C & B's fee is appropriate. See In re "Agent Orange", 818 F.2d at 237 (authorizing across-the-board percentage cuts in hours "as a practical means of trimming fat from a fee application") (quoting Carey, 711 F.2d at 1146).

*10 I have considered defendants' other arguments as to redactions, vagueness of time entries, block billing, uncalled witnesses and the like and find them to be without merit. I specifically reject defendants' suggestion that a greater reduction in the number of hours is appropriate. As noted above, defendants' tactical decisions multiplied the tasks--and thus the number of hours--reasonably required to litigate this action.

Finally, defendants do not object to C & B's disbursements. I have reviewed those disbursements and find them to be reasonable in all respects.


Plaintiffs are prevailing parties and are awarded the following fees and disbursements through October 31, 2001 pursuant to 42 U.S.C. ß 1988:

Fees Disbursements


Santa Fe

The Kilpatrick firm $ 171,719.25 $ 14,271.51

The Enns firm 100,817.50 13,836.44

The Salans firm 314,072.99 29,847.82

_____________ ____________

Total: $ 586,609.74 $ 57,955.77

Brown & Williamson

King & Spaulding $ 79,781.25 $ 41.52

Covington & Burling 2,216,448.00 311,752.00


Total: $ 2,296,229.25 $ 311,793.52


2002 WL 498631 (S.D.N.Y.)