American Booksellers Foundation for Free Expression et al v. Sullivan
Filing
89
DECLARATION of Richard M. Zuckerman 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. (Bamberger, Michael)
Michael A. Bamberger (pro hac vice)
SNR Denton US LLP
1221 Avenue of the Americas
New York, New York 10020
Phone: 212-768-6756
michael.bamberger@snrdenton.com
D. John McKay
Law Offices of D. John McKay
117 E. Cook Ave.
Anchorage AK 99501
Phone: 907-274-3154
mckay@alaska.net
Alaska Bar No. 7811117
Thomas Stenson
ACLU of Alaska Foundation
1057 W. Fireweed Lane - Suite 207
Anchorage, AK 99503
Phone: 907-258-0044
tstenson@akclu.org
Alaska Bar No. 0808054
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
AMERICAN BOOKSELLERS FOUNDATION FOR FREE
EXPRESSION, et al.
Plaintiffs,
v.
JOHN BURNS, in his official capacity as ATTORNEY
GENERAL OF THE STATE OF ALASKA,
Civil No. 3:10-cv-00193-RRB
Defendant.
DECLARATION OF RICHARD M. ZUCKERMAN
RICHARD M. ZUCKERMAN declares:
1.
I am a member of the law firm of SNR Denton US LLP (known as Sonnenschein
Nath & Rosenthal LLP when this case commenced) (“SNR Denton”), counsel to Plaintiffs.
2.
I have personal knowledge of the facts set forth in this Declaration, which I make
Declaration of Richard M. Zuckerman in Support of
Plaintiffs’ Application for Attorneys’ Fees and Expenses
American Booksellers et al. v. John Burns,
Case 3:10-cv-00193-RRB
1
in support of SNR Denton’s application for an award of attorneys’ fees.
3.
I have been a member of the Bar of the State of New York for 35 years, since
January 1976. I have been a member of the Bar of the United States Court of Appeals for the
Ninth Circuit for 15 years. I am also a member of the Bar of the United States Supreme Court,
the United States Courts of Appeals for the District of Columbia, Federal, Second, Third, Fifth,
and Tenth Circuits, and the United States District Courts for the Southern and Eastern Districts
of New York and the District of Connecticut. I have also appeared pro hac vice in additional
federal and state courts. I am a member in good standing of each of the Courts to which I have
been admitted.
4.
I graduated from Dartmouth College, summa cum laude, in 1972, and from Yale
Law School, in 1975. In law school, I was an editor of the Yale Law Journal, a director of Moot
Court, an Assistant-in-Instruction, and the recipient of the Harlan Fiske Stone Prize for appellate
advocacy.
5.
Since my admission to the Bar, the overwhelming majority of my practice has
been devoted to civil litigation, including both trials and appeals. I am a Co-Author of Appeals
to the Second Circuit (7th Ed.), published by the Association of the Bar of the City of New York.
6.
Since 2002, I have worked with my law partner, Michael Bamberger, on a broad
range of matters which, since 2008, have included representing members of the Media Coalition,
a coalition of media-related entities organized to protect First Amendment rights, in First
Amendment litigation. In addition to my work on this case, my work for Media Coalition and/or
its members has included:
(a)
Brown v. Entertainment Merchants Ass’n, ___ S.Ct. ___, 2011 WL
Declaration of Richard M. Zuckerman in Support of
Plaintiffs’ Application for Attorneys’ Fees and Expenses
American Booksellers et al. v. John Burns,
Case 3:10-cv-00193-RRB
10457533\V-5
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2518809 (U.S. Sup. Ct., June 27, 2011) (enjoining California law restricting violent video
games as violative of First Amendment), counsel for ABFFE, AAP, FTRF, and others, as
amici curiae;
(b)
American Booksellers Foundation for Free Expression v. Coakley, 2010
WL 4273802 (D. Mass. 2010) (enjoining, as violative of First Amendment, the extension
of Massachusetts “harmful to minors” law to electronic communications); and
(c)
American Booksellers Foundation for Free Expression v. Cordray, 124
Ohio St.3d 329, 922 N.E.2d 192, 2010 Ohio 149 (Ohio 2010) (limiting construction of
Ohio “harmful to minors” statute to comply with First Amendment).
7.
In addition, I have been honored to serve as counsel for the American Bar
Association and several other amici curiae before the United States Supreme Court in these,
among other, cases:
(a)
Fitzgerald v. Barnstable School Committee, 555 U.S. 246 (2009) (whether
gender discrimination claims under 42 U.S.C. § 1983 are preempted by Title IX of the
Education Amendment Acts of 1972), counsel for American Bar Association, as amicus
curiae;
(b)
Horne v. Flores, 557 U.S. ---, 129 S.Ct. 2579 (2009) (equal access to
education for students for whom English is a second language), counsel for Asian
American Justice Center and other civil rights organizations, as amici curiae;
(c)
Al-Marri v. Spagone, --- U.S. ---, 129 S.Ct. 1545 (2009) (criminal due
process rights during times of threat to national security), counsel for American Bar
Association, as amicus curiae; and
Declaration of Richard M. Zuckerman in Support of
Plaintiffs’ Application for Attorneys’ Fees and Expenses
American Booksellers et al. v. John Burns,
Case 3:10-cv-00193-RRB
10457533\V-5
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(d)
Samantar v. Yousuf, --- U.S. ---, 130 S.Ct. 2278 (2010) (whether foreign
sovereign immunity may be asserted as a defense to civil rights claims under 42 U.S.C. §
1983), counsel for professors of international litigation and foreign relations law, as amici
curiae.
8.
I have served as pro bono counsel to Human Rights Watch, one of the world’s
leading human rights organizations, for over 15 years. I regularly counsel Human Rights Watch
on First Amendment matters, including pre-publication vetting of reports, and responses to
subpoenas seeking the production of research notes containing confidential source materials.
9.
My regular litigation practice includes a broad range of commercial litigation and
civil rights litigation, including First Amendment litigation. My cases include:
(a)
Edwards v. First American Corp., 610 F.3d 514 (9th Cir. 2010) (Article
III standing under the Real Estate Settlement Procedures Act);
(b)
In re WestPoint Stevens, Inc., 600 F.3d 231 (2d Cir. 2010) (scope of
appellate review of bankruptcy court’s sale order);
(c)
Eastern Paralyzed Veterans Ass'n, Inc. v. Secretary of Veterans Affairs,
257 F.3d 1352 (Fed. Cir. 2001) (constitutionality of regulations permitting Secretary of
Veterans Affairs to discontinue medical care to veterans);
(d)
DeGirolamo v. Alitalia-Linee Aeree Italiane, S.p.A., 159 F.Supp.2d 764
(D. N.J. 2001) (liability of airline for discrimination against wheelchair user);
(e)
In re Letters of Request From Supreme Court of Hong Kong, 821 F.Supp.
204 (S.D.N.Y. 1993) (due process rights of defendant relating to discovery taken in
United States for use in Hong Kong criminal proceeding);
Declaration of Richard M. Zuckerman in Support of
Plaintiffs’ Application for Attorneys’ Fees and Expenses
American Booksellers et al. v. John Burns,
Case 3:10-cv-00193-RRB
10457533\V-5
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(f)
Eastern Paralyzed Veterans Ass'n, Inc. v. Veterans' Admin., 762 F.Supp.
539 (S.D.N.Y. 1991) (equal protection claim on behalf of spinal cord injured veterans
relating to care provided at Veterans Administration Medical Center);
(g)
Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner,
881 F.2d 1184 (3d Cir. 1989) (civil rights claim related to accessibility of mass transit
system);
(h)
Kelly v. Schmidberger, 806 F. 2d 44 (2d Cir. 1986) (defense of defamation
claim against priest);
(i)
In re Grand Jury Subpoena Dated Jan. 4, 1984, 750 F.2d 223 (2d Cir.
1984) (whether academic researcher may assert “scholar’s privilege,” under First
Amendment, in response to grand jury subpoena);
(j)
Recording Industry Ass'n of America v. Copyright Royalty Tribunal, 662
F.2d 1 (D.C.Cir. 1981) (appeal from proceeding of Copyright Royalty Tribunal
establishing royalty rates for recorded music);
(k)
New York Charter School Ass'n v. Smith, 15 N.Y.3d 403, --- N.E.2d ----
(2010) (whether charter schools are subject to prevailing wage laws);
(l)
ATI, Inc. v. Ruder & Finn, Inc., 42 N.Y.2d 454, 368 N.E.2d 1230, 398
N.Y.S.2d 864 (1977) (speech protected by First Amendment could not subject speaker to
liability for prima facie tort); and
(m)
Quirk v. Municipal Assistance Corp. for City of New York, 41 N.Y.2d 644,
363 N.E.2d 549, 394 N.Y.S.2d 842 (1977) (constitutionality of Municipal Assistance
Corporation of the City of New York).
Declaration of Richard M. Zuckerman in Support of
Plaintiffs’ Application for Attorneys’ Fees and Expenses
American Booksellers et al. v. John Burns,
Case 3:10-cv-00193-RRB
10457533\V-5
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10.
My regular billing rates range from $730 to $810 per hour. SNR Denton requests
an award at the reduced rate of $550 an hour, in recognition of the fact that hourly rates in New
York are higher than those in many other areas of the country, including Alaska.
11.
In further support of the reasonableness of my hourly rate, plaintiffs request that
this Court take into account the accompanying declaration of Stephen E. Jenkins, president of the
law firm of Ashby & Geddes, P.A. in Wilmington, Delaware.
I declare under penalty of perjury that the foregoing is true and correct.
Dated: July 25, 2011
/s/ Richard M. Zuckerman
Richard M. Zuckerman
Declaration of Richard M. Zuckerman in Support of
Plaintiffs’ Application for Attorneys’ Fees and Expenses
American Booksellers et al. v. John Burns,
Case 3:10-cv-00193-RRB
10457533\V-5
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