American Booksellers Foundation for Free Expression et al v. Sullivan

Filing 88

DECLARATION of Michael A. Bamberger re 87 MOTION for Attorney Fees Plaintiffs' Application for Attorneys' Fees and Expenses by Alaska Library Association, American Booksellers Foundation for Free Expression, American Civil Liberties Union of Alaska, Association of American Publishers, Inc., Book Blizzard LLC, Bosco's, Inc., Comic Book Legal Defense Fund, David & Melissa LLC, Donald R. Douglas, Entertainment Merchants Association, Freedom to Read Foundation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Bamberger, Michael)

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Exhibit E I THE IJNITED STATES DISTRICT COURT N FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVlSIC7N 1 Southeast Booksellers Association, et al., Plaintif'fs, 1 1 ) 1 C.A. NO. 2:02-3747-23 V. 1 1 1 1 1 OWER Henry D, McMaster, Anorney General of South Carolina, et a/., Defendants. This matter is before the court on Plaintiffs' petition for attorney's fees pursuant to 42 U.S.C. $1988. Defendants Henry McMaskr, Attorney General, and Solicitors mereinaftcr "Defendants"') fled a memorandum in opposition to Plaintiffs' pet~tion, claiming that no award af anamey's fees and costs should be made. In the alternative, if any award is made, Defendants ask the court to make such award against the state of South Carolina as an entity rather than against the Attorney General and the solicitors and/or to substantially reduce the award below the amount requested by Plaint~ffs. For the reasons set forth below, the cowt grants Plaintiffs' petition for attorney's fees, but only in the amount of $405,485.61. BACKGROUNQ In this case, Plaintiffs' initially brought a pre-enforcement constitutional challenge to ' With the exception of Families Against Intemct Censorship ("'FAIC"), which is an organization representing families with Internet access and at least one child, Plaintiffs are organizat~ons that represent artists, writers, booksellers, and publishers who usc the Internet to engage in expression, including graphic arts, literature, and health-related rnfomar~on. Most of these organizations maintain websites that contain resources on obstetrics, gynecoiogy, and sexual health; vtsual art and poetry; and other ~peech which could be considered "harmhl to minors" rn some comu1iit1cs under the Act, despltc the fact that thcir speech is constitutionalfy protected as Declarat~on M~chael Bamberger, E x h ~ bE,t Page 1 of 28 of A ~ - - -- - - + < - - - - - - s ~ M # M ~ . ~ # pemanently enjoin the operation of S.C. Code fi 16-15-385, which provides criminal sanctions for 'Udisscminating harmhl material to minors" as applied to "digital electronic files" that are sent or rcccived via thc Internet under S.C. Code Ann. Ej 16-15-375 (2). See S.C. Code Ann. Cj 16-15-375; S.C. Code Ann. 5 16-15-385 (collectively hereinafter "the Act"). The Act defines "harmhf,to minors" as follows: '"I-larmful to m~nors" means that quality of any material or pcrformance that depicts sexually explicit nudity or sexual act~vttyand that, taken as a whole, has the titllowing characteristics: (a) the average adult pcrson applying contemporary cornunity standards would find that the material or perfomancc has a predominant tendency to appeal to a prurient interest of minors in sex; and (b) the average adult person applytng contemporary community standards would find that the depiction of sexually explicit nudity or sexual activity in the material or performance is patently offensive to prevailing standards in the adult community concerning what ts suitable for minors; and (c) to a reasonable person, the material or performance taken as a whole lacks serious literary, artistic, political, or scientific vafue for minors. S.C. Code Ann. Cj 16-15-375. A violation of 9 16- 15-375 is a felony, punishable by up to five years in prison, a fine of $5,000, or both. See S.C. Code Ann. 8 16- 15-385. The controversy in this case centered primarily around an amendmcrlt to the Act, srgned by former Governor Jim Hodgcs on July 20,2001, which added the definition of "material" as follows: "Matcria'f' means pictures, drawings, video recordings, films, digitaleiecfronic$les, or other visual depictions or represenfafionsbut not material consisting entireiy of written words." S.C. Code fi to adults. Declaration of Michael A. Bamberger, Exhibit E, Page 2 of 28 16-15-375(2) (emphasis added). Pursuant to this amendment, the Act proscribes the dissemination to minors of obscene "digital electronic files." Plaint$& initially challenged this proscription as viofative of the First Amendment and the Commerce Clause because it prohibits adults, and even older minors, from viewing and sending constitutionaily-protected images over the Internet and has the effect of prohibiting constitutionally-protectcd comunications nationwide. (Compl. @ 1; 78- PROCEDURAL HISTORY In this case, both parties filed cross motions for summary judgment. This court held those cross-motions in abeyancc pending the United States Supreme Court" decision in Ashcrojj v. ACL li, 542 U.S. 656 (2004), due to the similarities between the relevant provisions of the Child Onlinc Protection Act ("COPA"), which were under review in Ashcrop, and those at issue in the present action."ollowing the Supreme Court's decision in AshcroJi on June 29,2004, this court issued its ruling denying summay judgment to both sides in the present case on July 6,2004. In the July 6, 2004 ruling, the court denied Defendants' motion for summary judgment because Defendants simply reasserted argumen& previously addressed and rejected at the motion to dismiss stage. With respect lo Plaintif%' motion, the court concluded that summaryjudgment was inappropfiate under the reasoning in Ashcrofr. Specifically, the court denied summary judgmcnt In Ashcrofi, the Supreme Court hetd thar Internet content providers and civit liberties groups were entitled to a pre tirnrnary injunction against enforcement of COPA because the plaintiffs were tikely to prevail on their claim that COPA vioIatcd the First Amendment by unduly burden~ng adults' access to protected speech. 542 U.S. at 703. Notably, however, the Court stopped short of declaring COPA unconstitutionat. Id. at 703-06. The Court heId thar, instcad of considering the broader question of the constiturionaIiry of COPA, Ule United States Court of AppeaIs for thc Third Circuit should have remanded the case to the district court to conduct a "full trial on the merits " lu! at 704. Declaration of Mlchael A Bamberger, Exhlblt E, Page 3 of 28 " ~ pursuant to the admonition in Ashcrofi that a full trial on the merits might be necessary before a court could rule on the constitutionality of a statute such as the one at issue in order to allow adequate devetoprnent of the record with respect to the question of piausible, less restrictive alternati\~cs.At the time of the court's July 6th Order, the record simply did not contaln sufficient evidence regarding the effectiveness of less restrictive alternatives vis-a-vis the challenged statute. On October 7,2004, Plaintiffs filed an updated motion for summary judgment including the Supplementai Expert Declaration of D . r Lome Faith Cranor ("Cranor Declaration"). On November 24,2004, Defendants filed their updated motion for summaryjudgment, Including a Declaration of Dr. Dan R. Olsen, Jr ("Olscn Declaration7'), who, like Cranor, offered a factual account of pertinent Internet technology. Through these expert declarations, both parties attempted to answer the question of whether the restriction at issue was the least restnctlve means of furthering the goals of the statute. Ultimately, the court granted Plaintiff's motion for summaryjudgment and permanently enjoined and prohibited Defendants from enforcing S.C. Code ,Ann. 6 16-15-385 as applied to "digital electronic files" that are sent or received via the Internet under S.C. Code Ann. 375(2). Defendants did not appeal the court's decision. Declaration of Mlchael A Bamberger, Exhlblt E, Page 4 of 28 ~ ~ A \ " e ~ # H " ~ # ~ ~ --~ , * XX 7 ~ ~ - " --- 5 16- 15- ANALYSIS In their rcqucst for attorney's fees and costs under 42 U.S.C. 1988, Piamtiffs seek a total amount of $480,669.89, broken down as follows: (1) Derker, AItman & Wilbom, LLC $32,658.02 (2) Wilmer Cutter Pickering Hale and Don LLP $364,668.30 (3) Sonncnschein Nath & Rosenthal LLP $83,343 57 TOTAL %480,659.89 Unfoort-unately, however, the court finds that Plaintiffs made some mathematical miscalculations3 in reaching their total of $480,669.89, and in rcality, according to Plaintiffs' requestedrates and hours, the correct figure sought should be $490,699.89. First, the court considers whether Plaintiffs are entitled to such an award under the standard for awarding fees under 42 U.S.C. 5 1988 and then turns to the reasonableness of Plaintiffs' request. The miscafculations appear to be with Attorney Kenneth Bamberger and Attorney Brian Murray's requested rates. For instance, Plaintiffs assert that Mr. Bamberger spent 293.7 hours working on this case at an hourly rate of $420. Flowever, according to the time records and the charts in Attorney Ogden's Declaration, Plaintiffs actually apply a rate of $340 for work done before 2002, $370 for work done in 2003, $409 for work done in 2004, and $420 for work done in 2005 Similarly, Attorney Brian ulfurray requests a rate of $370 an hour. However, in the time sheets, Plaintiffs charge a rate of $340 for work completed in 2004 and a rate of $370 for work completed in 2005. The court understands that this reflects the change in thcse Attorneys' rates over the years. However, hourly rates for the other attorneys at Wilrner Cutler Pickenng Hale and Don, l,LP do not vary over the ycars, even though Mr. Ogden's Declaration notes each attorney's historic rates. For example, Attorney Ogden charges a rate of$650 for work done in every year, from 2002-2005, even though his rate was $540 in 2002, $580 in 2003, and $625 in 2004. Similarly, Attorney Kestcnbaum charges a consistent rate of $430 for work done even though her rate has increased over time, and Attorney Strayer charges a consistent rate of $310 even though his rates also have incrcascd. Moreover, in their Fee Petition, Plaintiffs request that the court calculate fees at the attorneys' current rates because the litigation spanned a number of years. The court finds that if Plaintiffs had applied a cons~stent hourly rate oE$420 for Attorney Barnberger and $370 for Attorney Murray, the calculation of the fee award would be $490,669.89. Declaration of Michael A. Bamberger, Exhibit E, Page 5 of 28 A. Standard for awarding attorney's fees under 42 U.S.C. 1988 In civil rights actions, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs . . . ." See 42 U.S.C. tj 1988(b). The provision allowing attorney's fccs in 1988 helps ensure "'effective access to the judicial process' for persons with civil rights pevances." Hensley vv. Eckerhart, 461 U.S. 424,429 (1983) (quoting H,R.Rep.No. 94- 1558 at 1 (1976)). Although the decision to award a fee is discretionary, "a prevailing plaintiff 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust."' f-fms/ey, U.S. at 329 (quoting S.Rep. No. 94-101 1 at 4 (1976)). In thls case, 461 Defendants claim both that Plaintiffs arc not prcvailing parties and that special circumstances render an award of fees unjust. The court addresses each of these issues in turn. 1. P revailing Party Determination As a threshold matter, the court first must determine whether Plaintiffs are in fact prevailing parties within the meaning of 42 U.S.C. ij 1988. In their Memorandum in Opposition to Plaintiffs' Petition for Attorney's Fees, Defendants claim that no award should be made because Plaintiffs are not "prevailing parties" under 5 $988. The court disagrees with Defendants' contention that PIaintiffs merely won a "technical'\ictory and are not prevailing parties. ''[Tlo qualify as a prevailing party, a civil rights plaintiflmust obtain at least some relicf on s the merits of h ~ claim . . . aplaintiff prevails when actual relief on the merits of his claim materially alters the legal relationship bctwcen the parties by modifying the defendant's behavior in a way that dzrectly benefits the plaintiff." Farray v ffohby, 506 U.S. 103, I 1 1-12 ( I 992) "Thus, at a minimum, to be considered a prevailing party within the meanlng of 5 1988, thc plaint~ff must be able to point to a resolution of the dispute which changes the legal relationship between itself and Declaration of Michael A. Bamberger, Exhibit E, Page 6 of 28 the defendant." Texas Slate Teuchet-s Ass 'n v. GurlandIndep. Sch. Dht.,489 C S. 782,792 (1989) (citing Ifewrtl r?. IJelmns, it82 U.S. 755,760-61 ( f 987)); ree a l ~ f-lewzrt, 482 C S. at 760 (finding that o the pIaintiffwas not a prevailing pasty because he did not receive a damages award, an injuncdon, a declaratory judgment, or a consent decree or settlement). h the present case, the court granted Plaintiffs' motion for s u m a r y judgement and pennanently enjoined and prohibited Defendanrs from enforcing S.C. Code Ann. 5 16- 15-385 as applied to "digital electronic files" that are sent or rcccived via thc Internet under S.C. Code Ann. 5 16-15-375(2). Defendants claim that because they had neither enforced nor thrcatcned to enforce the statute, Piamtiffs have not prevailed in any legal victory, and the court's declaratory relief and ~njunctionis but a '"technical" victory. The court disagrees entirely and finds that there 1s no question that PlaintiEs are prevailing parties. Clcarly, Plaintiffs can point to a resolution of thc dispute which altered the relationship befiveen the parties. Plaintiffs received all of the relief they sought under both their First Amendment-and their Commerce Clause claims; the court grantcd summary judgment In Plaintiffs' favor, declared the Act unconstitutional, and permanently enjo~ned Defendants &om enforcrng the Act, a statute that they previously had the ability to enforce had they so chosen Therefore, Plaintiffs' victory alters the relationship between the parties by modifying Defendants' behavior in a way that benefits Plaintiffs. See, e.g., Filtration Dev. Co., LLC v U S , 63 Fed. C1. 6 12 (Fed. CI. 2005) ("The permanent injunction in thls case altered the legal relationsh~p between the parties and 1s sufficient to confer prcvaillng party status."); Gerling Globai Retnsurance Gorp. ofArnerrca v Garamend, 300 F.3d 803,806 (9th Cir. 2005) (finding that insurance cornpanics presailed in their clnallerage to California's Holocaust Victtm Insurance Relief Act when they obtalncd a prtmtai~ent Declarat~onof M~chael Bamberger, E x h ~ b E,t Page 7 of 28 A ~ _ _ _ -->-- H- __ _ _ _-- --m -_ I injunction against enforcement of the act), amended on other grounds on denial of'rek g , 4 10 F.3d 53 1 (9th Cir. 2005); ilbrahamson v Bd. ofEduc. of Wuppmngers Cent. Fulls Sch. Disf., 374 F.3d 76 (2d Gir. 2004) (holding that plaintiff teachers who obtained an injunction requiringdcfcndant school district to bring collect-ive bargaining agreement in compliance with Age Discrimination In Employment Act were prevailing parties because the existence of the injunction and the ability to enforce it materially altered the relationship between the parties); Lewis v. Wilson, 253 F.3d 1077, 1082 (8th Cir. 2001) (finding that plaintifl'was entitled to an injunction against a statute found facially invalid under the First Amendment, and therefore, she was a prevailing party entitled to fees under 5 1988); Xhode Island &fed. Soc. v. Whitehause, 323 F.Supp.2d 283, 298 (D.R.I. 2004) (finding that plaintiffs constitute prevailing parties because the district court granted a permanent injunction against defendants and as a result, the state could no longer enforce the statute at issue); I'assky v. Kings C o t r n ~ Dernocrutic County Cornrn., 259 F.Supp.2d 2 10,2 I 7- 18 (E.D.N.Y. 2003) (finding that the legat relationship between the parties was permanently altered in plaintiffs' favor only because oftfie Issuance of a permanent injunction against defendants and the judgmcnt in favor of plaintiffs); West Vr'rgmzaforLife, Inc. v. Smith, 952 F.Supp. 342,344 (S.D.W.Va. 1996) ("Here, there is no questmn that plaintiffs .we prevarllng partlcs, They obtained a summary judgment order granting the preclse relief prayod for in their complaint - a determination that the challenged starute was unconstitutional and a pemanent injunction against its enforcement."); Durry Maid,Inc v L!S., 837 F.Supp. 1370 (E.D.Va. 1993) (noting that the Army did not dispute that plaintiff was a prevailing party when the court entered a permanent injunction). In the present case, Plaintiffs clearly qualify for prevailing party status. Therefore, havrng found Plaintiffs entitled to reasonable attorney's fees as prevailing parties, the court must next determine who is liable for those fees and Declaration of Michael A. Bamberger, Exhibit E, Page 8 of 28 to what extent. 2. Defendants' Authority to Pay Attorney's Fees "In general, losing Title VII defendants are held presumptively liable for anorncy's fees." iMhllory v. Harki~ess, F.Supp. 1546, 155 1 (S.D. FIa. 1996)(citing Chrrstiamburg Garment v 923 EEOC, 434 U.S. 412,418 (1978)). Howcvcr, Defendants claim that "no attorneys award may be made against the Attorney General or soticitors because state law does not appropnate funds or authorize the use of public monies I'or that purpose by those defendants," and therefore, if an award is made, tt should be against the State of South Carolrna as an entity. (Def Memo In Opposition 15.) In Plaint~ffs'Repiy Brief In Support of their Petltion for Plttontcy's Fccs, Plainttfts do not opposc excusing the county solicitor and ~nstcadmaking the Attorney General and thc Statc of South Carolina jointly and sevcratty Iiable for the fee award. (PI. Reply Br. I 1 ) In response, Defendants fried a Supplemental Memorandum claiming that only the State of South Carolina as an entity, and not the Anorney General, should be liable if the court grants an award. (Def. Supp, Memo in Opposition 1-3.) Accordingly, the court must determine against whom any award of attorney's fees should be made. for "As the case law of the circuits ampiy demonstrates, the allocation of l~abii~ty attorneys' fees remains an area in which there is no simple formula of unxvcrsal applicability." Herbsr v. Rynn, 90 F.3d 1300,1304(7th Cir. 1997)(citing Coztncrlfor Perrodical Drstrtbs. Ass 'snv Evum, 827 F.2d 1483, 1487 (1 1th Cis. 1987), and Grendel'.~ Den, Inc. v. Larkin, 749 F.2d 945,959 ( I st Cir. 1984)). Additionally, the legiblatlve history of 1988 provides '"that the attorney's fees . wtll be collected either directly from the official, in his oEcia1 capacity, from the hnds of his agency or under his control, or from the Staxe or local g o v e m e n t (whether or not the agency or governnlent 1s a namcd Declaration of Michael A. Bamberger, Exhibit E, Page 9 of 28 party)." f i r t o e F i ~ n e y437 U.S. 67, 694 (1978) (citations omitted). , Were. Defendants cite Herbst in support of their claim that only the State of South Carolina should be liable for an award of attorney's fees In Iferbst, Plaintiffs, a group of physicians in Illinois, brought suit for declaratory and injunctive relief against the enforcement of various amendments to the Illinois abortion law against: ( I ) the State's Attorney of Cook County, in his oMicial capacity and as a representative of a class of the State's Attorneys; (2) the Attorney Gcneral of Xlfinois in his official capacity; and (3) the Director of the Illinois Depament of Public Health, in his official capacity. 90 F.3d at 1302. "The District Court noted that a state is liable for attorneys' fees under section 1988 when a state official is sued in his official capacity." Id. (citing fitto, 437 U.S. at 693-94). Plaintiffs argued for joint and scveraI liability, but the district court concluded that the fee award should be entered solely against the State of Illinois. The Seventh Circuit Court of Appeals affirmed the District Court's decision, noting that in requiring the State of Illinois to bear full responsibility for the fee award, "[tlhc distr~ct court certainly committed no abuse of discretion in determining that the 'moving force' behind the statute at issue here was the State of Illinois , , . [and] the disrrict court certainly in no way impaired the purposes of 8 1988 or thc concerns of federalism.'" Id. at 1306. In Herbst. the court stared: Because the officers were sued in their official capacities, the liability for attorney's fees is not their personal liability but the liability of the govemmental body of which they are oficers. . . . Liability can be imposed on a governmental entity, and on its officer in hls official capacity, only when that governmental entity is the "movlng force" behind thc constitutional wrong that forms the basis of the suit. Here, the Attomey General of the State and the State Director of Public Health clearly undertook the defense of the challenged amcndrnents on behalf of the state. The State's Attorneys also undertook the defense of the const~tutionalityof this state statute and the srare policy that it ernbodled. It is clear that the Stare's Attorneys, Declaration of Michael A. Bamberger, Exhibit E, Page 10 of 28 In this case, Plaintiffs request that the court award fees against the Attorney General and the state of South Carolina jointly and severally. In support of their position, Plaintiffs also cite Herbst and claim that there is no basis to excuse Defendant McMasrer Erom liability for the fee award. (Pfs.' Reply Br. 13.) In Nerhst, the court noted "that a number ofcourts have upheld the irnposltlon of joint and several 1iabiIzty for a fee award where there existed a question as to whether the fee would be coIlectible from one of the defendants." 90 F.3d at 1306 (citations omitted). However, Plaintiffs only cite the "uncertainty and potentla1 practical difficulties wrth awarding a fee award against a non party" in support of their request for joint and scveral Ilability. (Pls' Reply Br. 14.) Interestingly, Plaintiffs also state: "Nor is thcrc any meaninghl distinction between the state Attorney General and the entity called the 'State of South Carolina,'. . . And whether the AMomey General or 'the State of South Carolina' pays the attorney's fee award, the money will uitimately come fiam the same place - the South Carolina State Treasury." (Pls.' Reply Brief 13.) Accordingly, because Plaintiffs sued Defendants in thcir official capacities and because a state is liable for attorney's fees when a state official is sued in his official capacity, the court believes that an award of attorney's fees against the State of South Carolina as an entity 1s when bringing an action under the criminal Iaws of the State of Illinois, also are operating as officers of the state. k short, the undertaking was a defense of a state policy by state oficers on behalf of the state. The district court certainly cornmifled no abuse of discretion in determining that the "moving force" behind the statute at issue here was the State of Illinois. Declaration of Michael A. Bamberger, Exhibit E, Page 11 of 28 proper. _ n 11, ReasonabIeness of Plaintiffs' Request 1. Lodestar Calcutatiun After detemining that Plaintiffs are in fact prevailing parties entitled to a fee award against the State of South Carolina, the court must evaluate the reasonableness of Plaintiffs' fee request. In so doing, the court begins by calculating the lodestar figure. The Iodestar figure is calculated by multiplying the number of reasonable hours expended times a reasonable rate. To determine the reasonable rate and reasonable number of hours to use in calculating the lodestar, a district court's analysis must strictly follow the factors enumerated in Johnson v. Georgia Highway Erpress. Inc., 488 F.2d 714 (5th Cir. 19741, as modified by Wensley v. Eckerharf, 461 U.S. 424 (1983). 'fhe Johnson factors are: ( I ) the time and labor required to litigate the suit; (2) the novelty and difficulty of the questions presented by the lawsuit; (3) the skill rcquired to properly perform the legal scrviccs; (4) the attorney's opportunity costs in pursu~ng litigation; (5) the customary fee for the such services; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the anorney; (10) the. undesirabiliy of the case; (1 1) the nature and length of the attorney's professional relationship with the client; and (1 2) awards in similar cases. See Da(y v. Hill, 790 F.2d t 071, 1075 n. 2 (4th Cir. 1986). The court will therefore constdcr these factors to determine the reasonabie rate and the reasonable number of hours In this case. See rd at 1078. a. Reasonable Rate The first prong of the lodestar analysis invoives determining the reasonable hourly rate of compensation to apply. See h'ensfey, 461 U.S. at 433. See Wagner v. DriEard Dep 't Stores, Inc., 2000 WL 3332 1252, at "2 (M.D.N.C. 2000). Defendants argue that local rates should control, not Declarat~on M~chael Bamberger, E x h ~ bE,t Page 12 of 28 of A ~ *------,. r r -/ + -- _ -- -- _ ___ -_ ---- the New York and Washington, D.C. rates proposed by Plaintif'fs. In lVarronal Wflu'($e Federation v. tfnnson, 859 F.2d 3 13 (4th Cir. 19881, the Fourth Circuit observed that the communiry in which the court sits is the first place to look to in evaluating the prevailing market rate. "Ratcs charged by attorneys in other cities, however, may be considered when 'the complexity and spectalized nature of a case may mean that no attorney, with the required skills, is available locally,' and the part?, choosing the aEomey from elsewhere acted reasonably in making the choice." Rum Cvcek C o d Sales, Inc. v. Caperton, 3 1 F.3d 169,179 (4th Cir. 1994)(quotingi?iationai Wikdye, 859 F 2d at 3 E 7). In this case both criteria are satisfied. The iitigated issues include complicated First ~Zmcndmcnt questions, and because Plaintlffs' counsel are specialists in these fields and regularly litigate cases involving the questions at issue, consideration of their customary rates is proper. See Rum Creek, 31 F.3d at 179 (reversing the district court's downward adjustment of out-of-town counsel's rates when the issues "included questions of preemption and constltut~onal law" and outof-town counsel were "concededly well-experienced In the type of matters ~nvolved."). Accordingly, the requirements of iVafzonai Kidlge are satisfied, and this court declines to apply local rates to non-local attorneys. 'fbe court's inquiry does not end here. The court must now determine whether Plaintlffs' counsels' proposed hourly rates are reasonable - that is, "that the requested rates are in line w~th those prevailing in the cornunity for similar services by lawyers of reasonably comparable sklll, experience, and reputation." Blzrrn v. Stenson, 465 U.S. 886, 895 n.11 (1984). Here, at least three of the Johnson factors - the customary fee; the attorney's experience, reputation, and ability, and awards in similar cases - are relevant to determining the prevail~ngmarket rate for the services rendered by all three of PlaintiEs' counsel. Declarat~on M~chael Bamberger, E x h ~ bE,t Page 13 of 28 of A ~ + - - ---- M- f , 2l m % v --, < Defendants argue that the hourly rates requested by Plamtiffs are too high: From the Charleston, South Carolina firm of Derfner, Altman & WiIborn, LLC, Mr. Derfncr requests a rate of $400 an hour while both Mr. A I n m and Mr. Wilborn request a rate of 327.5 an hour. From thewashington, D.C. office of Wilmer Cutier Pickerin8 Hale and Dorr LLP, Mr. Ogden, partner, requests $650 an hour; Ms. Kestenbaum, counsel, requests $430 an hour; Mr. Kenneth Bamberger, counsef, requests $420 an hour; Brian Murray, assoelate, requests $370 an hour, Roben Strayer, associate, requests $3 1.0an hour; and compensation for five law clerks and paralegals is requested at rates varying from $1 60 to $200 an hour. From the New York City office of Somenschein Nath cPr Rosenthal LLP, Mr. Michael Bamberger requests $650 an hour. n e court addresses each firm's situation in turn. i, Derfner, Altrnan & Wigborn LLC (Charleston, SC) 1. Armand Derfner Attorney Derher documents that he spent 75 5 hours on this case at a rate of $400 an hour. Piaintlffs have submitted Mr. Derfner's Declaration, in which he details the extent of his expertise and expcrlcnce in civll rights Iitigation and affirms that the rate of $40O is reasonable given his experience. (Derfner Decl.) Mr. Derher has extensive experience in first amendment and constihltional litigation. Consideration of the customary fees awarded in similar litigation and the awards in other cases support a rate of $400 an hour for Mr. Derfner. AIso, Mr. Derfker has received similar fees in this district, See, e.g., Unired States v Charkstun County, C.A. No. 2301-00155-23 (D.S.C. Aug. 8, 2005) (awarding Mr. Derfner $400 an hour); ZUE-CWA v. EnerSys, Irzc., C.A. No. 3:0f.-4766-10 (D.S.C. Aug. 10, 2004) (approving a rate of $4.50 an hour). Therefore, given Mr. Defier's Declaration of Michael A. Bamberger, Exhibit E, Page 14 of 28 experience and similar past awards, the court believes his requested rate of $400 an hour is reasonable. 2. Jonathan Altman and Peter Wilborn, Jr. Attorney AItman documents that he spent 1.4 hours on this case, and Attorney Wilborn documents that he spent 5.7 hours on this case. Both attorneys request a rate of $275. In Mr. Derfner's Declaration, he notes that both Mr. Altman and Mr. Wilborn are experienced Iitigatorj with skill comparable to lawyers in this area who charge $275 or more an hour. (Derf. Deci.) Additionally, Mr. Wilborn has been awarded a rate of $267 an hour in Muxey v. ALGOA, C.A. No. 1:02-CV-0280 (N.D. Oh. Sept. 25,2003), and a rate near that in IUE-CWA. Therefure, given the cxpcrience and similar awards, the court believes that Mr. Altman and Mr. Witborn's requested rate of $275 an hour is not umeasonabie. ii. Wiirner Cutler Picketing Male and Dorr LLP(Washington, D.C.) I. David W. Ogden, Partner First, Attorney Ogden documents that he spent 43.3 hours working on this ease at a rate of $650 per hour. Plaintiffs have submitted Mr. Ogden's Declaration, in which he details the extent of his expemse and experience in First Amendment and Commerce Clause issues and affims that the rate of $650 m hour would be reasonable given his experience. (Ogden Decl. 7-10 ) Mr. Ogden graduated magna cum laude from Warvard Law School in 1981, where he served as an editor of the HanlarJ Law Kevtew. Overall, he has a highly impressive background including vast experience In First Amendmcnt litlgat~on.Many of the cases in which he has participated have involved constttutional challenges to federal or state legislation that purported to restrict spcech, and some of which have involved statutes directed at the protection of children from obscene or harmful Declarat~on M~chael Bamberger, E x h ~ bE,t Page 15 of 28 of A ~ *----*"#w##M#,% material, including, for example: ACLU v Reno, 2 17 F.3d 162 (3d Cir. 2000); American L~brary Ass'n v. Reno, 33 F.3d 78 (D.C. Cir. 1994); and Amerrcan Llbvury Ass'n v. Barr, 794 F.Supp. 412 (D.D.C. 1992). In addition, Mr. Ogdcn bas co-taught a course entitled, "Constitutional Law: Theories of Free Speech," at Georgeto\m University Law Center. Although the court recognizes that Mr. Ogden has vast expertise and expcncncc, thc court rejects Mr. Ogden's request for payment at $650 an hour in favor of a more reasonable figure. In his Declaration, Mr. Ogden claims that his requested hourly rate of $650 an hour is in Iine with those in the Washington, D.C. comn~unily.In support of this claim, Mr. Ogden attached a copy of the Nationaf Law Journal's December 6,2004 survcy of billing rates nationwide. See Firm-BJI-Firm Sampling of Billing Rates Nationwide, 12/6/04 NAT'L L J. 20 This survey does not include a sampling of rates for Wilmer Cutler Pickering Hale and Don LLP, and therefore, Mr. Ogdcn directs the court's attention to the comparable firms of Akin, Cump, Strauss, Hauer & Fcld; Covlngton & Burling; and Hogan & f Iartson. These three firms report billing rates for partners as follows: $425$750: $390-$690; and $230-$725, respectively. Frankly, as these rates range anywhere from $230 to $750, they do not help the court in detemining a reasonable hourly fee for Mr. Ogden. Fu&emore, Mr. Ogden does not support his request for $650 an hour w ~ t h affidavit or with an reference to recent case law awarding either him or partners sirnilarty situated with such a steep rate. Additionally, Plaintifys include thc Memorandum Opinion &om PSINet, Inc. as Anachmer?t A to their Reply Briec in this Memorandum Opinion, the court capped counsels' rates at $300 an hour for partners and $200 an hour for associates, finding that the hzgher rates that counsel had requested exceeded "the outer limits of the court's 'conscience cap."' (Attachment A to Pls.' Reply Br. 7.) Although this Op~nion dated March, 27, 2002, and almost three and one-half years have since rs Declaration of Michael A. Bamberger, Exhibit E, Page 16 of 28 passed, the court likewise finds that Mr. Ogden's request for $650 an hour, without any support other than the National Law Joumat's survey, exceeds its conscience cap. Therefore, the court Emits Mr. Ogden's ratc to $500 an hour, $10 more than the average of the $230 to $750 range provided in rhc National t a w Joumai survey for partners at comparable firms. 2. Janis C. Kestenbaum, Counsel Attorney Kcstenbaum documents that she spent 348.9 hours on this case at a rate of $430 an hour. Mr. Ogden's Declaration details the extent of her expertise and experience in First Amendment Iitigation and Iitigation involvrny sther constitutional issues. (Ogden Deci. 10.) Ms. Kestenbaum graduated magna cam /aude from Harvard Law School, where shc served as an editor of rhe Ifurvard Law Review, in which she published three pieces on const~tut~onal issues, including one involving the First Amendment, (Qgden Decl. 10.) As with Mr. Ogden, Ms. Kestenbaum has extensive experience with the subject matter at issue. Fwthermore. from a review of the timc records, it appears that Ms. Kcstenbaum, along with Attorney Kenncth Bambcrger, put in the brunt of the work in this case. Although Plaintiffs again do not include a supporting rtfidavit or a reference to case law providing for a fee of $430 an hour for Ms. Kestenbaum, after a review of the record and constderation of awards In simslar lrtlgation, the court belicvcs that Ms Kestenbaum's requested rate of $430 an hour is reasonable. 3. Kenneth A. Bamberger, Counsel Attorney Kenneth Bamberger documents that he spent 293.7 hours working on this case at a ratc of $420 an hour. Mr. Ogden's Declaration outlines Mr. Bambergcr's histoncai rates and details the exrent of his expertise and expenence, (Ogdcn Decl. 1 1 .) Like Ms. Kestenbaum, Mr. Bamberger graduated from Harvard Law School, where he served Declaration of Michael A. Bamberger, Exhibit E, Page 17 of 28 - -- as President of the Ilurvard Law Review. (Ogden Decl. 1 1 .) Mr. Barnberger's pract~cehas primarily involved constitutional and statutory litigation - including First Amendment issues raised by the regulation of telecommunications - in proccedings raised against government and private parties at ihc tnaf and appeilate court levels, and in admlnistratlve proceedings. fOgden Dec1. I I .) As prev~ously mentioned, a review of the record indicates that Mr. Bamberger, along with Ms. Kestenbaum, perfomcd a great portion of the work involved in this case. Accordingly, the court finds Mr. Bamberger's requested rate of $420 an hour reasonable in light of the circumstances. 4. Brian Murray, Associate Artorney Murray documents that he spent 44.2 hours on this case at a billing rate of S370 per hour. Mr. Ogden's Declaratron outlines Mr. Murray's background and experience. (Ogden Decl. 11-12.) Mr. Ogden graduated from the University of Virginia School of Law in 2000, where he was an Executive Editor of the Firgznia LQW Review. Mr Murray clerked both at thc U.S. District Court for the District ofCoIumbia and at the U.S. Court of Appeals for the Eleventh Circuit before joining Wilmer Cutler Pickering Hale and Don LLP, where he works with the finn's Conlmunicat~ons and E-Commerce Depattment. (Ogden Decl. 12.) Again, Plaintiffs provide no support for this requested rate other than Mr. Ogden's Declaration and the National Law Journal survey. Accordingly, and in light of a mathematlcal error in Mr. Ogden's Declaration that concerns Mr. Murray's houriy rate, the court finds a rate of $350 an hour to be more reasonable than the requested rate of $370 an hour. 5. Robert Strayer, Associate Attorney Strayer documents that hc spent 19.9 hours on this case at a rate of $3 10 dn hour. s Mr. Ogden's Declaration describes Mr. Strayer's background and experience in t h ~ area. (Ogden Declaration of Mlchael A Bamberger, Exhlblt E, Page 18 of 28 q 7 w - Dccl. 12.) Mr. Strayer graduated from Vanderbiit Law School in 2000, Order o the Go$ Prior to f joining the firm, he clerked at the U.S. Court of Appeals for the Eleventh Circuit and also served a one-year fellowship with the State Solicitor in the Ohio Anomey General's Office, where his practice focused on fedcraI constrtutionai litigation, including litigation before the U.S. Supreme Court. (Ogden Decl. 12.) Mr. Strayer was a third-year associate in 2004, and ultimately, the court finds a bilfing rate of $300 to be more reasonable than Mr. Strayer's requested b~lling of $3 10 rate an hour. 6. Law Clerks and Paralegals Defendants advance no qerious challenge to the rates assessed for Iaw clerk and paralegal usistance given to litigation c o ~ n s e l Nowithstanding, the court finds the rates charged by such .~ support staff are not unreasonable or unconscionable under the circumstances of this case. iii. Sonnenschein Nath & Rosenthal LLP (New York, BY) 1. klichaei A. Bamberger, Partner Attorney Bambergcr documents that he spent 12 1.6 hours worklng on t h ~ case at a billing s rate of $650 an hour. Plaintiffs h a ~ submitted Mr. Bamberger's Declaration, in whrch he deta11s e his extensive cxperlence and expertise tn First Amendment Ittigation. (Bamberger's Dccl.) .4dditionally,Plaintifls have subrn~rtedMr. Bnice Rich's Decfaratlon In support ofMr. Bamberger's request for a billing rate of $650 an hour. (Rich Decf.) Mr Rambergcr graduated tntlgna cum laude from Haward Law School, where he was an As the court more fbily addrcsscs below, Defendants do challenge the number of hours assessed for law clerk and parategal assistance tn ch~s litigation. Declaration of Mlchael A Bamberger, Exhlblt E, Page 19 of 28 - - - - " - # 3 4 # r # editor of the Nan~ard Law Review. Mr. Bamberger has participated in over 60 First Amendment cases, many of which have involved the regulation of access by mxnors to sexually explicit material, namely PSINet, Inc. v Chapman, 342 F.3d 227 (4th Gir. 20041, reh k.den. 372 F.3d 671 (4 th Cir. 20041, aff'g 167 F.Supp.2d 878 (D. Va. 2001). Additionally, he has represented members of the iMedia Coalition for over twenty years. (Bamberger Decl.) In the Declaratron of Bruce Rich, a member of the f r of Weil Gotshal &: Manges LLP in im New York, Mr. Rich states that Mr. Bamberger is one of the leading First A m e n h e n t attorneys in the nation. (Rich Dccl.) Additionally, Mr. Rich states that he is familiar with the billing rates of leading New York attorneys and that "the billing rate of $650 pcr hour is within the range of what one would reasonably expect for an attorney of his stature and expericnce." (Rich Decl.) Although the court recognizes the extent of Mr. Bambcrger's expertise and expericnce in this ficId, the court believes that a rate declines to accept Mr. Bambcrger's requested rate of $650 an hour and ~nstead of $600 an hour 1s more reasonable. 2. Reasonabte Number of Hours Defendants arguc that the requested amount of compensation, $480,669.89, is unreasonable because it shocks the conscience and thc hours claimcd by Plaintiffs are grossly excessive due to overstaffing and unnecessary work which created duplication of effort.6 Additionally, Defendants claim that the amount of time needed to present this caw should have been minimized because of previous expericncc and participation by some Plaintiffs in these typcs of cases. In return, Plaintiffs argue both that Dcfcndants' actions prolonged and complicated the case and that Defendants grossly Using the hourly rates and the numbers of hours actually requested by Plaintiffs, the court finds that PlaintifYs actually seek a fee award of $490,669.89. Declaration of Michael A. Bamberger, Exhibit E, Page 20 of 28 underestimate the complexify of the case and amount of work necessary to prosecute this case. To establish the reasonable number of hours expended, Plaintiffs must submit evidence supposing the number of hours worked. See Hensley, 46 1 U.S. at 433. The number ofhours should be reduced to exclude: "hours that are excessive, redundant, or otherwise unnecessary" in order to retlect the number of hours that would be propcrly billed to the client. Id. at 434. Plaintlffs request compensation for 954.2 attorney hours and 1 14.1 law clerk and paralegal hours, for a total of 1068.3 hours. The party seeking reimbursement of attorney's fecs has the burden of present~ng adequate documentation of the hours reasonably expended. See L-eugue ofdrf~rredLatzt? CI~IZCIW. 1117~ tt35.52 v Roscoe Indep. Sch. Dlsr., 1 19 F 3d 1228, 1233 (5th Cir. t 997). Accordingly, the fee applicant must document the hours expended in a manner suficicnt for the court to verifjl that the applicant has met his burden. See La. Power & Light Cb. v. Kellstram, 50 F.3d 3 19,324 (5th Cir. 1995) (per curiam). The court may reduce fee requests that are based on inadequate documentation. See LLXAC, 199 F.3d at 1233; La. Power d Light Co., 50 F.3d at 326. Here, the court finds that attorneys provided sufficiently detailed bit ling records that adequately descnbe the date, hours, and work perfomed, and as such, the court will not discount the hours for inadequate documentation. Defendants argue that the hours Plaintlffs ctaim are grossly cxccssivc due to overstaffing and unnecessary work. For example, in their Memo in Opposrt~on PlaintjEs' Fee Petition, Defendants to note that Ptaintiffs submitted time records fbr nine attorneys and five paralegals, and at any one time, at least six lawycrs were working on the case. (Defs.' Memo in Opp. 2 1.) Also, three lawyers attended each hearing although only one made oral arguments, and two anended the depositlon of Defendants' cxpert m Utah although only one asked questions of the deponent. (Defs.' Memo in Declaration of Michael A. Bamberger, Exhibit E, Page 21 of 28 Opp. 21, 24,26.) The involvement of this number of attorneys necessarily lnvolvcs some degree of duplication and overlap, and accordingly, the court must take this into account in detcmining the reasonabte number of hours to compensate Plaintiffs. See, e.g., Alexander S. By und Through Bowers v. Boyd, 929 I-' Supp. 925,946 (I?.S.C.,1995) ("Courts will substantially reduce bills when unnecessary duplication is brought about by having an excessive number of attorneys involved in a case. Dupticative work, such zrs several attorneys attending the same hearing, should genefalIy not bc part of a fee award.") (citations omitted). Additionally, Defendants argue that the time is particularly unconscionabIe in light of a recent similar case, PSIiYet v. Chcrpman, 372 F 3d 671 (4th Cir. 2004), which involved one of the same attorneys and two of the same experts.' After reviewing counseIs' declarations and billing records, the court does not find that the hours requested by Plaintiffs "shock the conscience," as Defendants assert. However, the court does find some unnecessary duplication of effort and excessive billing and therefore reduces the award accordingly. For example, as previously mentioned, three attorneys attended the Motion to Drsmiss hearing, but only one attorney argued the matter. Anywhere from three to slx attorneys worked on most documents at any given tlme. In addition, three attorneys attended and prepared for oral argument for Plaintiffs on the updated Motion for Summary Judgment, although only one attorney actually argued it. Also, Plaintiffs' records include more than 44 hours In connection with a moot ' In PSINet, the district court awarded fees for more than 1,429.75 hours through the surnmary judgment stage and I 5 additional hours spent on litigation of the fee petition rtsclf Plaintiffs note that they seek roughly 500 fewer attorney hours than the dlstrlct court awarded in PSflYef. However, in addition to the 954.2 attorney hours Plaintiffs request in this case, Pla~ntiffs also request 1 14.1 hours for the work of taw clerks and paralegals. Declaration of Michael A. Bamberger, Exhibit E, Page 22 of 28 court held in advance ofthe a r g ~ r n c n t .See Planned Parenthood afCenf. hTewJerxey v. Attoroey ~ Gen. of New Jersey, 297 F.3d 253 (3d Cir. 2003) (holding that moot court time of 25.5 hours was excessive for purposes of attorney fee award under 3 1988). In preparing the fee petition alone, Plaintiffs claim almost 70 hours. See Spell v ,WeDaniel, 852 F.2d 762,770 (4th Cir. 1988) (finding counsel's 64.6 hours spent preparing the fee pet~tion "s~rnpiyincredibic" and noting that 19 attorney hours were sufficient to accomplish the task). Lastly, Plaintiffs' records indlcate that one paralegal spent f 2.6 hours cite checking Plainrrffs' Motion for Summary Judgment, a document of less than 2 pages. Overall, and in light of the foregoing examples, the court believes that Plaintiffs' hours arc somewhat excessive due to duplication a d o r waste of effort of the nine attorneys and five law clerks and paralegals.%erefore, the court believes that a 15% reductioni0 in fees and costs is ' Plaintiffs' records fiom April of 2005 include the following entr~es connection with in moot court: (I) for Kenneth Bamberger, entries for 3.6 and 3.2 hours for a total of 7 8 hours; (2) for Janis Kcstenbaum, entries for 5,4.5, and 7 hours for a total of 21 5 hours; (3) for Brian Murray, 5, entries for 4 and 4 hours for a total of 8 hours; (4) for David Ogden, entries for 1.5 and 2 hours for a total of 3 5 hours, and; ( 5 ) for Michael Bamberger, entries for .75 and 2.6 hours. Entries for these five attorneys in connection with the moot court total 44.15 hours. Plaintiffs claim that Defendants' actions prolonged the litigation and complicated the case. For example, Plaintiffs note that Defendants refbsed to enter into certain stipulations, and Defendants Bicd numerous motlons that were w~thout merit. Although the court finds Plaintiffs' hours to bc somewhat excesslve andlor redundant, the court also considers the extent to which Defendants proIongcd this litigation in addressing the reasonableness of the fee award. "' In Copeland v. .nilarshuli, the U.S. Court of Appeals for the D.C. Circuit stated Once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluat~onof each phase or category of counsel's work. . . . We think that the Dlstrlet Court Judge in this case - recognizing, as he did, that some duplication or waste of effort had occurred - did not err in simply reducing the proposed "ilodcstar" fee by a reasonable amount without performing an item-by-item accounting. 4 I F.2d 880,903 (D.C. Cir 1980) (citing Lzndy Bros. Bui/ders, Inc. oJPhiladelphzn v Am. Rudiuror Declaration of Michael A. Bamberger, Exhibit E, Page 23 of 28 appropriate, to be applied after application of the court-approved hourly billing rates." Total Reasonable Attorney's Fees Accordingly, based on the discussion above, thc court finds that Plaintiffs arc entitled to attorney's fees in the amount of $405,485.61. & SfandnrdSanifa~ o y . , 540 F 2d 102, 1 t 6 (3d Cir. 1976)) (citation omitted). C " Using the hourly rates and the numbers of hours actually requested by Plaintiffs, the court finds that Plaintiffs actually seek a fee award of $490,469.89 00. Using the court's approved hourly rates, the new amount is calculatcd as follows: - Attomey Derfner: 75.5 hours at $400ihour = $30,200 Attorney AItman: 1.4 hours at $275/hour $385 Attorney Wilborn: 5.7 hours at $275/hour = $1,567.50 Attorncy Ogdcn: 43.3 hours at $5001%our= $21,650 Attorney Kestenbaum: 348.9 hours at $430&our = $ I 50,027 Attorney Barnbergcr: 293.7 hours at $420ihour = $1 23,354 Anorney Murray: 44.2 hours at $350/hour = $1 5,470 Anorney Strayer: 19.9 hours at $300ihour = 5,970 Attorney Rarnbergcr: 121.6 hours at $6f)Oihour= $72,960 Law Clerks and Paralegals: 114.1 hours at rates betwecn $160 to $200&our = $20,378 Costs and fees: (1) for Derher, Alman & Wilborn, LLC: $505.52. (2) for Wilmer Cutler Pickering Hale and Dorr LLP: $30,2? 1.30; (3) for Sonnenschcin Nath & Rosenthal LLP: $4,303.57. The sum of these amounts is: $477,041 89. This is $13,628 less than the actual amount sought by Plaintiffs. After calculating thns amount, the court believes that a 15% reduction b excessive and r duplicative work is necessary. Fifteen percent of $477,041 89 amounts ro $7 1,556.28. Subtracting this amount from $477,04 1.89 leaves $405,485.6 1 Declaration of Michael A. Bamberger, Exhibit E, Page 24 of 28 CONCLUSION It is therefore ORDERED, for thc forcgoi~ig reasons, that Plaintiffs' petition for attorney's fees and costs m the aggregate amount of $405,485.61 is GRANTED kYD IT IS SO ORDERED. United States District Judge Charleston, SC September 8,2005 Declaration of Michael A. Bamberger, Exhibit E, Page 25 of 28 Case 1:08-cv-00596-SEB-TAB Document 36 Filed 11/25/08 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERh' DlSTIUCT OF I r n I A N A INDIAVAPOLIS DIVISION BIG HAT BOOKS, et a/., Plaintiffs, 1 1 1 1 ) V. CASE NUMBER: I :08-cv-0596-SEB-TAB 1 PROSECUTORS: ADAMS, er al. Defendarlts. 1 1 1 NOTICE OF SETTLEMENT OF ATTORWY F'EES Come now all parties, by their respective counsel, and report to the Court that the matter of at-tomey fees and costs has been settled pursuant to the attached listing of rates, costs and totals, Accordingly, all fee and cost claims in this case have been resolved. Respectf'ully submitted, Respectfully submitted, i s / Kemeth J. Falk (with pcmission) ! s i Jon B. Laramore (with permission) Kenneth J, Falk NO. 6777-49 ACLU of Indiana 1031 E. Washington St. Indianapolis, IN 46202 3 17/635-4059 ext. 229 fax: 3 I7/635-4105 kfalkaaciu-in. org Attorney for Big Hat Books, Boxcar Books and Communit-y Center, Inc.; Liberties Union of American Civ~l Indiana Foundation Jon B. Laramore No. 17166-49 lsl Matthew T. Albaugh (with permission) No. 2329349 Baker & Daniels LLP 300 N , Meridian St., Suite 2700 Indianapolis, IN 46204 3 171237-0300 fax: 3 17i237-1000 jon. manhew,albaughabakerd .corn Attorneys for Indianapolis Museum of Art, Indianapolis Downtown Artists and Dealers Association Declaration of Michael A. Bamberger, Exhibit E, Page 26 of 28 Case 1:08-cv-00596-SEB-TAB Document 36 Filed 11/25/08 Page 2 of 3 Respectfully submitted, Respectfully submitted, is/ Michael A. Bamberger (with permission) Is1 David A. Arthur David A. Arthur Deputy Attorney Genera1 indiana Government Center South, Fifth Floor 302 W. Washington St. Indianapolis, IN 46204-2770 Telephone: (3 17) 232-5286 Fax: (317) 232-7979 E-Mail: David.Arthuraatg. Attorney for Defendant Prosecutors Michael A. Bamberger Admirted Pro Hac Vice Somenschein Nath & Rosenthai LLP 1221 Avenue of the Americas New York, NY 10020 2 E 21768-6756 fax: 2121768-6800 Attorney for American Booksc3llers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, Entenaiment Merchants Association, National Association of Recording Merchandisers, and Great Lakes Bvoksellers Association Declaration of Michael A. Bamberger, Exhibit E, Page 27 of 28 - -- - - a -e iA -H - p - - ~ - / Case 1:08-cv-00596-SEB-TAB Document 36 Total Hours Expended by Counsel - w * - w ~ ~ Filed 1 1/25/08 Page 3 of 3 199.8 hours Total Hours Expended by Non-lawyers - 20.5 hours Rates: ACLU Kemeth J. Falk Jaquelyn Bowie Suess $350/hr $275/hr Somenschein Baker and Daniels Jon Lararnore Manhew Albaugh TotaI Fees: $74,544.00 Total Costs: 57031.79 TOTAL PAID- $81,575.79 Declaration of Michael A. Bamberger, Exhibit E, Page 28 of 28 -- * / * " ?

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