American Booksellers Foundation for Free Expression et al v. Sullivan
Filing
100
RESPONSE in Opposition re 87 MOTION for Attorney Fees Plaintiffs' Application for Attorneys' Fees and Expenses filed by John Burns. (Attachments: # 1 Exhibit)(Athens, Marika)
Marika R. Athens (AK Bar No. 0411096)
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K St., Suite 308
Anchorage, Alaska 99501
Telephone: 907-269-6250
Facsimile: 907-269-7939
Email: marika.athens@alaska.gov
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION;
AMERICAN CIVIL LIBERTIES UNION OF
ALASKA; ASSOCIATION OF AMERICAN
PUBLISHERS, INC.; COMIC BOOK LEGAL
DEFENSE FUND; ENTERTAINMENT
MERCHANTS ASSOCIATION; FREEDOM
TO READ FOUNDATION; DAVID &
MELISSA LLC d/b/a Fireside Books; BOOK
BLIZZARD LLC d/b/a Title Wave Books;
BOSCO’S, INC.; DONALD R. DOUGLAS
d/b/a Don Douglas Photography; and
ALASKA LIBRARY ASSOCIATION,
Plaintiffs,
v.
JOHN J. BURNS, in his official capacity as
ATTORNEY GENERAL OF THE STATE OF
ALASKA
Defendant.
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CIVIL ACTION NO.:
3:10-cv-00193-RRB
OPPOSITION TO APPLICATION FOR ATTORNEYS’ FEES AND EXPENSES
The State of Alaska, John J. Burns, files this opposition to the plaintiffs’ Application for
Attorneys’ Fees and Expenses filed on July 25, 2011. Under 42 U.S.C. § 1988, the plaintiffs are
entitled to attorney fees. However, they are only entitled to reasonable attorney fees and, in this
case, they are not entitled to all the fees they seek. The State does not oppose the plaintiffs’
attorneys receiving $116,704.40 in fees and expenses.
Argument
I.
PLAINTIFFS’ REQUESTED HOURLY RATES ARE GENERALLY NOT
REASONABLE
It is well established that attorney’s fees under 42 U.S.C. § 1988 are to be calculated
according to the “prevailing market rates in the relevant community.” Blum v. Stenson, 465 U.S.
886,895 (1984). Generally, “the relevant community is the forum in which the district court
sits.” Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991). However, this can change
“if local counsel was unavailable, either because they are unwilling or unable to perform because
they lack the degree of experience, expertise, or specialization required to properly handle the
case.” Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1992). However, “If a high priced,
out of town attorney, renders services which local attorneys could do as well, and there is no
other reason to have them performed by the former, then the judge in his discretion, might allow
only an hourly rate which local attorneys would have charged for the same services.” Corbett v.
Wild West Enterprises, Inc., 713 F. Supp 1360, 1364 (D. Nev. 1989)(citing Chrapliwy v.
Uniroyal, Inc., 670 F.2d 760, 768 (7th Cir. 1982)). Here, the relevant community is Anchorage,
Alaska and the plaintiffs have not put forward any evidence to convince the court otherwise.
Instead of demonstrating that local counsel was unavailable, the plaintiffs merely argue
that adjusted New York City, New York billing rates should apply to Michael Bamberger,
Richard Zuckerman, and Devereux Chatillon because of their First Amendment expertise. While
Opposition to Application for Attorneys’ Fees and Expenses
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the State does not contest that these three attorneys are highly knowledgeable and skilled in their
field, this expertise is not relevant to the court’s initial inquiry. Before evaluating the skill of the
plaintiffs’ attorneys, the court must first ask whether local counsel was unavailable.
Here, the plaintiffs have proffered no evidence that local counsel was unavailable to
handle this litigation. On that basis alone, the court could reject the plaintiffs’ argument that they
are entitled to out of town billing rates. Further, it is doubtful that they could argue that local
counsel was unavailable given that there is local counsel quite qualified to handle this type, and
much more difficult types, of litigation. One such local counsel is D. John McKay, one of the
local attorneys in this case, who has a great deal of experience and expertise in litigating First
Amendment issues. While the other plaintiffs’ attorneys ignore his expertise in their motion, he
is generally recognized as one of the most experienced and most qualified First Amendment
lawyers in the entire state.1 In his declaration, he notes:
Since coming to Alaska, the principal focus of my practice has been First
Amendment-related law, and particularly representation of news media,
journalists, writers, and photographers. I represent or have represented most of
the news media in the state during this time, as well as a number of prominent
national news organizations. For the past 27 years have also taught a Media Law
course at University of Alaska Anchorage, focusing on First Amendment, libel,
copyright, privacy, broadcast regulation, and related issues, and I have
represented parties in a number of other cases involving First Amendment issues.
Declaration of D. John McKay, para. 2. Thus, Mr. McKay is neither a new nor inexperienced
lawyer. While it may be presumed that much of his work does not advance to litigation, a review
of Westlaw indicates that he has practiced in appellate and trial courts, federal court and state
court, and in Alaska and Outside. See Ex. B. There is nothing in his history or experience that
suggests that he was not eminently capable of handling this litigation without assistance from
attorneys from New York City.
1
See Ex. A.
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Additionally, this case was not a complex case. It did not involve highly unusual or
complex areas of the law, nor did it have multiple defendants, nor was it a highly undesirable
case. Because it was a facial challenge rather than an as applied challenge, it was not equivalent
to the plaintiffs representing pedophiles or some sort of other undesirable client. Rather, the case
primarily addressed fairly run of the mill free speech and commerce clause arguments. These are
not new arguments and, as the plaintiffs argued, similar cases to this one have been litigated
across the United States, often involving some of the same attorneys here.2
As such, this case is quite different from two of the cases relied on by the plaintiffs. See
Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992)(involving a complex class action suit
against multiple defendants concerning comprehensive prison conditions where the appellate
court affirmed the trial court’s award of attorney fees based on a San Francisco billing rate rather
than the local forum of Sacramento); Guam Society of Obstetricians and Gynecologists v. Ada,
100 F.3d 691 (9th Cir. 1996)(involving a highly undesirable case where the local counsel
received death threats and the trial court found that the local counsel “faced unusual and trying
personal and professional pressures during the pendency of the lawsuit” and the appellate court
affirmed the trial court’s award of attorney fees based on New York rates rather than the local
forum of Guam). The third case relied on by the plaintiffs, Corbett v. Wild West Enterprises,
Inc., 713 F. Supp. 1360 (D. Nev. 1989), supports this court declining to use New York billing
2
See, e.g. PSInet, Inc. v. Chapman, 362 F.3d 227 (4th Cir. 2004), reh’g denied. 372 F.3d 671, aff’g 167 F.Supp. 2d
878 (W.D. Va. 2001); Amer. Booksellers Found. for Free Expression v. Dean, 342 F.3d 96 (2d Cir. 2003), aff’g 202
F.Supp. 2d 300 (D. Vt. 2002); ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999), aff’g 4 F.Supp. 2d 1029 (D.N.M.
1998); Southeast Booksellers Ass’n v. McMaster, 371 F.Supp. 2d 773 (D.S.C. 2005); ACLU v. Napolitano, Civ. No.
00-0505 (D. Ariz. June 14, 2002), sub nom. ACLU v. Goddard, 2004 WL 3770439 (D. Ariz. Apr. 23, 2004);
Cyberspace Commc’ns, Inc. v. Engler, 142 F.Supp. 2d 827 (E.D. Mich. 2001), aff’d 238 F.3d 420 (6th Cir. 2000);
Am. Libraries Ass’n v. Pataki, 969 F.Supp. 160 (S.D.N.Y. 1997); American Booksellers Foundation for Free
Expression v. Coakley, 2010 WL 4273802 (D. Mass. Oct. 26, 2010).
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rates. Corbett involved a case where the trial court declined to use San Francisco rates rather
than the local forum rates because the court found that out-of-town counsel was not required. Id.
Therefore, the attorney fees in this case should be based on Alaska rates. While the trial
court in American Booksellers Assoc., Inc. v. Hudnut, 650 F.Supp 324 (S.D. Indiana 1986) found
that non-local billing rates were appropriate, that case is not binding and it is distinguishable
from the underlying case here. First, given the age of that case, it appears that it was one of the
first cases of this nature and thus presented more novel issues of law. Second, whether or not
Indiana had qualified constitutional attorneys in the 1980s is not relevant to whether attorneys
were available in Alaska for this case. As such, this court should use the local Alaskan forum to
set the billing rates for the out of town attorneys in this case.
Here, the State does not disagree with the billing rate set forward by Mr. McKay of $225
per hour. However, because that is on the low side for someone with his experience and
knowledge, the State does not oppose Mr. Bamberger, Mr. Zuckerman and Ms. Chatillon
receiving the increased billing rate of $300 per hour. The State also does not disagree with the
billing rate set for by Mr. Kroot of $175 per hour. However, given that Mr. Stenson’s experience
is more similar to that of Mr. Kroot than that of Mr. McKay, it seems that a billing rate of $175
per hour would also be appropriate for him.
II.
THE PLAINTIFFS ARE NOT ENTITLED TO BE COMPENSATED FOR
ADMINISTRATIVE WORK
The plaintiffs should not recover fees for work that could have been performed by a
secretary or other staff person. See, e.g., Robinson v. Plourde, 717 F.Supp.2d 1092, 1099 (D.
Hawaii 2010)(citation omitted)(“Tasks such as reviewing Court-generated notices, notifying
clients of court hearings, filing documents with the Court, communication with court staff,
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scheduling, and corresponding regarding deadlines, are clerical and not compensable.”);
Michigan v. United States E.P.A., 254 F.3d 1087, 1095-96 (D.C. Cir. 2001)(holding that tasks
such as copying or delivery of documents could be undertaken by clerical, not legal staff, and
therefore were not part of reasonable attorney’s fees); Diaz v. Paragon Motors of Woodside, Inc.,
2007 WL 2903920 *9 (E.D.N.Y. 2007)(deducting charges in fee-shifting case for attorney and
paralegal time spent performing clerical work such as making photocopies, faxing documents
and mailing documents); Gates v. Bamhart, 325 F.Supp.2d 1342, 1348 (M.D.Fla. 2002)(stating
that “tasks of a clerical nature are not compensable as attorneys’ fees”). Here, a number of the
billing entries are for clerical work.
The majority of this time can be attributed to the hours billed by Mr. Kroot. They
include:
6/4/10
2.3 hours
Solicit comments on draft compl. from plaintiffs
6/11/10
1.4 hours
Assemble comments from the plaintiffs, revise
same; send revised compl. to plaintiffs
8/24/10
8.8 hours
Revise and finalize declarations; proof revised
compl.; create Fed-Ex airbills for receipt of hardcopy declarations; incorporate comments by
plaintiffs and counsel into pleadings
8/26/10
8.6 hours
Revise declarations; revise compl. and motion for
preliminary injunction; prepare papers for filing;
coordinate receipt of finalized declarations; create
PDFs of signature pages
8/30/10
7.3 hours
Follow up with plaintiffs re: outstanding
declarations; draft/revise motions; conform
pleadings to local rules; create table of contents and
table of authorities for memorandum in support of
preliminary injunction motion
8/31/10
7 hours
Coordinate receipt of final signature pages from
remaining plaintiffs; create PDFs of remaining
declarations; conform documents to Mr. McKay’s
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U.S. District Court of Alaska No. 3:10-cv-00193-RRB
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suggestions; prepare papers for filing; conference
call with Mr. McKay and Mr. Stenson re: same
9/1/10
3.4 hours
Draft proposed order; prepare declarations for
filing; coordinate with Mr. McKay to do the same
9/8/10
.6 hours
Research local rules; create file from docket papers
10/8/10
.6 hours.
Revise reply brief; update table of contents for
same; finalize same for filing
10/28/10
.6 hours
Proof and file response to Def. motion for
clarification
12/23/10
2.4 hours
Revise and proof motion to dismiss papers; add
table of authorities to same
12/27/20
4.2 hours
Finalize and proof summary judgment papers; file
same
4/21/11
2.1 hours
Create list of potentially obscene works listed in
depositions
The State presumes that the above entry for April actually refers to declarations rather than
depositions as there were not any depositions taken in this case. The total amount of the billed
time in the above section is 49.3 hours. Most of this time was clerical work, but present in the
block billing is some time that was spent on legal work. As such, for this section, rather than
deducting the full 49.3 hours from Mr. Kroot’s billed time, the State would agree that only 44
hours should be deducted.
Mr. Bamberger and Mr. Zuckerman requested attorney fees for time spent time doing
clerical work:
3/21/11
.5 hours
Bamberger: send out draft brief
3/23/11
.8 hours
Bamberger: draft request for oral argument; filing
issues
4/29/11
1.8 hours
Bamberger: file joint stip.; review status
Opposition to Application for Attorneys’ Fees and Expenses
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
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4/29/11
.4 hours
Zuckerman: file joint stip.; receipt of order by
court; conf. Mr. Bamberger
Mr. McKay requested attorney fees for the following time entries that are more properly
considered clerical work. Given that this was done in block billing with legal work, the State
would agree that these entries be reduced by ½ from the times requested:
8/31/10
7.8 hours
Review, edit, comment on declarations; emails with
co-counsel; telephone conference re: matters related
to filing lawsuit; proof and edit pleadings; finalize
pro hac vice motion; coordinate obtaining executed
declarations; finalize exhibits; review Bamberger
memo to plaintiffs; prepare civil cover sheet and file
complaint and related documents; obtain check for
filing fee; pay clerk; address issues raised by clerk;
obtain case number and judicial assignment; finalize
preliminary injunction motion with case number;
file declarations; telephone calls and emails with
Kroot; coordinate with Stenson on preparing
documents and summonses for service on
defendants; work on issues with declarations
9/1/10
9.4 hours
Finalize and file remaining pleadings and motion
for preliminary injunction; TC with clerk re: issue
of summons; revise and file proposed order; file
motion for leave to file over-length brief and hard
copy; prepare draft certificate of service; attend to
misc. matters relating to filings, incl. issues with
size and format of declarations; e-mail re:
completed filings; TC with Stenson and Kroot
9/28/10
.2 hours
E-mails; new filings; TC with clerk re: oral
argument
1/28/11
.3 hours
TC with clerk; draft and file revised notice re:
extension of time; e-mail to co-counsel re: same
The total above billed hours for Mr. McKay are 17.7 hours. Half of that time is 8.85 and, as
such, 8.85 hours should be subtracted from Mr. McKay’s hours.
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III.
THE PLAINTIFFS ARE NOT ENTITLED TO BE COMPENSATED FOR VAGUE
AND DUPLICATIVE WORK
To establish that the hours expended are reasonable, “[t]he party seeking attorney's fees
must present adequately documented time records to the court. Using this time as a benchmark,
the court should exclude all time that is excessive, duplicative, or inadequately documented.
Hensley v. Eckerhart, 461 U.S. 424, 432–34, 437 n.12 (1933). The Ninth Circuit has approved a
reduction of hours because the time records were deficient and the information in them was
“indefinite, non-specific, uninformative and generally inadequate.” In re Washington Public
Power, 19 F.3d 1291, 1305 (9th Cir. 1994); see also Ackerman v. Western Elec. Co., 860 F.2d
1514, 1520 (9th Cir. 1988)(reducing fee awards where time records were deficient). Counsel
does not receive fees for duplicative work. Robinson v. Plourde, 717 F.Supp.2d 1092, 1099 (D.
Hawaii 2010)(“The Court reduces counsel’s hours for meetings, discussions and other
communications, for which both attorneys billed. The general rule is that two professionals
cannot bill for attending the same meeting.”)(citation omitted).
Here, there are a number of billing entries for Mr. Bamberger that are inadequate because
they are inadequately documented as to how they pertain to the litigation or duplicated with other
attorneys:
4/27/10
1 hour
Work on email to CLU
5/5/10
.1 hours
Email L. Cranor (also billed by Mr. Zuckerman)
5/26/10
.2 hours
Call Weddleton
6/16/10
.3 hours
Conference call with Kroot and email Chmara
8/16/10
.8 hours
Meeting with Josh; miscellaneous papers
8/31/10
1.5 hours
Calls with co-counsel and work regarding filing
11/19/10
.5 hours
Meeting on Summary Judgment motion strategy
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(also billed by Ms. Chatillon and Mr. Kroot)
3/4/22
.3 hours
Revise paragraph for Alaska committee
For the meeting on 11/19/10, that time should also be deducted from Mr. Kroot’s billed time so
that only one attorney, Ms. Chatillon, is receiving payment for this meeting.
On 4/29/10, Mr. Zuckerman sent an email about both the Alaska and the Massachusetts
litigation for .3 hours. Given that the Massachusetts litigation was separate from this litigation,
Alaska should not be responsible for any of the time spent on that case. As such, this time
should be reduced to .1.
On 6/3/11, Mr. McKay billed .2 hours reviewing new case and emails. There is no
description of what this new case is, or how it or the emails affect the litigation. As such, this
time should be discounted.
IV.
THE PLAINTIFFS ARE NOT ENTITLED TO BE COMPENSATED FOR PUBLIC
RELATIONS WORK
Federal courts routinely disallow fees for public relations work under fee-shifting statutes
that allow recovery for reasonable fees. See, e.g., American Petroleum Institute v. United States
E.P.A., 72 F.3d 907, 913 (D.C. Cir. 1991)(“Costs associated with media relations . . . are not
‘costs of litigation’ under [the Clean Air Act].”); Halderman by Halderman v. Pennhurst State
School & Hospital, 49 F.3d 939, 942 (3rd Cir. 1995)(stating, in considering fees under 42 U.S.C.
§ 1988, that “the proper forum for litigation is the courtroom, not the media.”); Watkins v.
Fordice, 7 F.3d 453, 458 (5th Cir. 1992)(holding that the trial court did not err in disallowing
fees for press conferences in Voting Rights Act case). Here, on 7/7/11, Mr. McKay spent .9
hours emailing about the form of the judgment and talking with the press about the decision. It
is not clear precisely how much time was spent on each act and it would be reasonable to
Opposition to Application for Attorneys’ Fees and Expenses
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subtract .5 hours from his billed time, so that he receives fees for .4 hours for this work only.
Additionally, Mr. Zuckerman and Mr. Bamberger spent time on 11/22/10 and 11/23/10
discussing and notifying the defense bar of the preliminary injunction. This has no bearing on
the litigation in this case. The total time for Mr. Bamberger was .6 hours and for Mr. Zuckerman
was .4 hours.
V.
THE PLAINTIFFS ARE NOT ENTITLED TO BE COMPENSATED FOR
POLITICAL WORK
While fees for extra-litigation activity sometimes may be recovered under attorney fee
provisions, compensation is limited to activity that is within the purview of litigation, that is
“directly and intimately related to the successful representation of a client,” and that is work
“only a lawyer appropriately should do.” Davis v. City and County of San Francisco, 976 F.2d
1536, 1545, 1558 (9th Cir. 1992)(emphasis added). Compensation is not warranted just because
the activity relates to the same parties or issues involved in the case if it would have occurred
regardless of the pending litigation. Ninth Circuit caselaw makes clear that the only extralitigation activites that should be compensated under fee statutes are those in which the attorney
would not have been engaged but for the litigation. In other words, if an activity would serve the
interests of the plaintiffs notwithstanding the litigation, then it is not necessary to advance the
litigation and should not be part of the fee award.
The cases in which courts have permitted recovery for extra-litigation activities have
involved situations where the activity would have had no purpose outside of litigation. In the
leading case, the parties reached a consent decree that eliminated discriminatory hiring and
promotion policies for firefighters. Davis, 976 F.2d at 1536. The San Francisco Board of
Supervisors had to approve the consent decree before the parties could seek to have it entered,
Opposition to Application for Attorneys’ Fees and Expenses
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however, so attorneys for the plaintiff class lobbied the Board for approval. Id. at 1545. The
Ninth Circuit upheld the district court’s fee award for the lobbying and the public relations
because it was “directly and intimately related to the successful representation of [the] client.”
Id.
The Ninth Circuit required more than a “direct and intimate relationship,” however. It
also required that the work be “something only a lawyer appropriately should do.” Id. at 1558.
It therefore remanded the case to the district court to strike public relations and lobbying hours
unless they involved work that only an attorney would properly do. Id.; see also David C.
Leavitt, 900 F. Supp. 1547, 1558 (D. Utah 1995)(disallowing fees for lobbying that could have
been performed by public relations persons).
Here, some of the time claimed by the plaintiffs does not meet the Ninth Circuit criteria
for extra-litigation activities because the activities were not “directly and intimately related” to
the representation of the plaintiffs in this case. Davis, 976 F.2d at 1545. Here, reviewing and
revising a draft bill in the legislature was not directly and intimately related to the representation
of the plaintiffs. Given that the lawsuit filed was based on the current and historical amendments
to the statute, it was not necessary to the plaintiffs’ success that they review pending legislation.
This had no effect on the outcome and it is not clear that any of these attorneys even lobbied the
legislature for a change in the law. Nor is it clear that a change in the law would have in any
way affected the lawsuit given that it included that a historical version of the law was
unconstitutional.
For Mr. Bamberger, the time that should not be included in an attorneys fees award
includes:
1/27/11
.3 hours
Review bill
Opposition to Application for Attorneys’ Fees and Expenses
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 12 of 16
2/7/11
.8 hours
Mark-up draft bill; Stenson comments
2/9/11
.4 hours
Email; revise draft bill; call DH
2/11/11
.3 hours
Bill revision issues
This is for a total of 1.8 hours. Because of the block billing, the State would not oppose reducing
this to 1.5 hours that should be deducted from his total billing amount.
For, Mr. Zuckerman, the time that should not be included in an attorneys fees award
includes:
2/3/11
.1 hours
Email re HB 127
2/10/11
.3 hours
Review proposed language of Alaska amendment;
emails re same; comparison with Massachusetts
language
2/14/11
.1 hours
Conf. M. Bamberger re status of proposed
amendment to law
This is for a total of .5 hours.
For Mr. Mckay, he spent .2 hours spent on 1/27/11 reviewing the bill that should not be
part of an attorney fees award.
VI.
THE PLAINTIFFS ARE NOT ENTITLED TO BE COMPENSATED FOR ALL OF
THE EXPENSES THEY SUBMITTED
The State also objects, in part, to the request for $5576.29 for the expenses incurred for
FedEx and delivery expenses, document reproduction, LEXIS and WESTLAW. Here, while
expenses are recoverable under § 1988, they are still subject to a reasonableness review.
Guillemard-Ginorio v. Contreras, 603 F.Supp. 2d 301, 327 (D. Puerto Rico 2009). This is
especially true in a case where one could assume (because the actual costs are not itemized) that
some of the expense is attributed to the plaintiffs’ having out of state counsel as the lead
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attorneys. As has already been discussed, the plaintiffs have not shown that out of state counsel
was necessary. Further, this is not a case where the plaintiffs sought out an attorney to bring this
lawsuit, but rather where out of state attorneys sought out named plaintiffs in order to bring this
lawsuit. As such, the plaintiffs should not be awarded the monies spent on FedEx and Delivery
expenses. There has been no showing as to why these expenses where necessary, or why
cheaper methods such as the United States Postal System, email or fax were not used.
Regarding the LEXIS and WESTLAW charges, these expenses are usually recoverable
but they are also subject to verification and a reasonableness review. Here, the plaintiffs have
not submitted any documentation regarding what was researched or the reasonableness of the
searches performed. However, because it can be presumed that LEXIS and/or WESTLAW
research is a necessary part of any modern litigation, the State suggests that the research amount
submitted by the plaintiffs be reduced by ½. As such, the State does not oppose the plaintiffs
receiving $2801.90 in expenses.
Conclusion
The state does not oppose paying the plaintiffs $116,704.40. However, the State objects
to paying anything above this. While this is below the amount requested by the plaintiffs, there
is no reason for the court to apply a multiplier.
extraordinary circumstances.
A multiplier is only to be applied in
Perdue v. Kenny A. ex re. Winn, 130 S. Ct. 1662, 1669
(2010)(stating that “there is a strong presumption that the lodestar is sufficient.”). Given the lack
of complexity to the case, the lack of novelty to the case, the lack of undesirability of the case
and the fact the plaintiffs’ out of state attorneys sought out this case, the state’s proposal wellencompasses what is necessary to compensate them for this lawsuit. See Kerr v. Screen Extras
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Guild, Inc., 526 F.2d 67 (9th Cir. 1975). It is the plaintiffs’ burden to justify that they are
entitled to a multiplier. Blum v. Stenson, 465 U.S. 886, 901-02 (1984). An enhancement is not
necessary to provide fair and reasonable compensation.
Id. at 901.
See also Jordan v.
Multnomah County, 815 F.2d 1258 (9th Cir. 1987)(affirming the denial of a multiplier);
This amount in fees and expenses submitted by the defendant was reached in the
following manner. Mr. Bamberger submitted that he should be entitled to receive attorney fees
for 65.4 hours spent on the case. For the above enumerated reasons, this number should be
reduced by 9.9 hours. This leaves a total number of hours billed as 55.5 hours. As already
stated, an appropriate billing amount for him is $300 an hour. 55.5 hours times $300 = $16,650.
For Mr. Zuckerman, he submitted that he should be entitled to receive attorney fees for
52.7 hours spent on the case. For the above enumerated reasons, this number should be reduced
by 1.4 hours. This leaves a total number of hours billed as 51.3 hours. As already stated, an
appropriate billing amount for him is $300 an hour. 51.3 hours times $300 = $15,390.
For Mr. Kroot, he submitted that he should be entitled to receive attorney fees for 318.9
hours spent on the case. For the above enumerated reasons, this number should be reduced by
44.5 hours. This leaves a total number of hours billed as 274.4 hours. As already stated, an
appropriate billing amount for him is $175 an hour. 274.4 hours times $175 = $48,020.
For Ms. Chatillon, she submitted that she should be entitled to receive attorney fees for
67.6 hours spent on the case. The State does not contest this number. As already stated, an
appropriate billing amount for her is $300 an hour. 67.6 hours times $300 = $20,130.
For Mr. McKay, he submitted that he should be entitled to receive attorney fees for 65
hours spent on the case. For the above enumerated reasons, this number should be reduced by
9.75 hours. This leaves a total number of hours billed as 55.25 hours. The State does not
Opposition to Application for Attorneys’ Fees and Expenses
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 15 of 16
disagree with the billing amount he submitted of $225 an hour. 55.25 hours times $225 =
$12,487.50.
For Mr. Stenson, the State does not disagree with the hours that he submitted. However,
as already argued, his billing rate should be reduced to $175 an hour. 7 hours times $175 =
$1225.
Finally, as already expenses, the State does not oppose that the plaintiffs are entitled to
$2801.90 for the expenses incurred.
In conclusion, the total of this is $116,704.40. The State does not object to this amount.
DATED this 16th day of September, 2011.
JOHN J. BURNS
ATTORNEY GENERAL
By: s/Marika R. Athens
Assistant Attorney General
Department of Law
Office of Special Prosecutions and Appeals
310 K St., Suite 308
Anchorage, Alaska 99501
Telephone: 907-269-6250
Facsimile: 907-269-7939
Email: marika.athens@alaska.gov
CERTIFICATE OF SERVICE
I hereby certify that on the 16th day of September, 2011, a
copy of the foregoing document was served electronically on:
Michael Bamberger
D. John McKay
Thomas W. Stenson
s/Marika R. Athens
Marika R. Athens
Opposition to Application for Attorneys’ Fees and Expenses
U.S. District Court of Alaska No. 3:10-cv-00193-RRB
Page 16 of 16
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