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)

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
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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

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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

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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
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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.

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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
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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
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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
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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

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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

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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

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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. [e-mail]
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: [phone]
Fax: [phone]
E-Mail: David.Arthuraatg. in.gov
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: [phone]
[e-mail]
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

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Case 1:08-cv-00596-SEB-TAB Document 36

Total Hours Expended by Counsel

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Filed 1 1/25/08 Page 3 of 3

199.8 hours

Total Hours Expended by Non-lawyers

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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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