Castelluccio v. International Bus Machines Corp

Filing 237

ORDER granting in part and denying in part 197 Plaintiff's Motion for Attorney Fees, Prejudgment Interest, and Compensation for Increased Tax Liability, and granting 231 Supplemental Motion for Attorney Fees. See attached Ruling. Signed by Judge Thomas P. Smith on July 23, 2014. (Slitt, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMES CASTELLUCCIO,
- Plaintiff
v.

CIVIL NO. 3:09CV1145(TPS)

INTERNATIONAL BUSINESS
MACHINES CORPORATION,
- Defendant
Ruling on Plaintiff's Motion for Attorneys' Fees
Following a nine-day trial, the jury returned a verdict in
favor of the plaintiff, James Castelluccio, on his claims under the
Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §
621 et seq., and the New York State Human Rights Law ("NYSHRL"), NY
CLS Exec § 196(a), against the defendant,
Machines

Corporation

("IBM").

International Business

Judgment

in

the

amount

of

$999,891.64 for back pay and benefits, $999,891.64 for liquidated
damages, and $500,000 for emotional distress damages has been
entered.

(Doc. #195).

Castelluccio has filed a motion for an

award of attorney's fees, prejudgment interest, and compensation
for increased tax liability as a prevailing party under the ADEA.1
See 29 U.S.C. § 626(b); (Doc. #197).

Castelluccio has also filed

a supplementary motion for attorneys' fees for work related to
certain post-trial motions in this case.
For

1

the

reasons

that

follow,

(Doc. #231).

Castelluccio's

motion

for

Castelluccio also seeks an award for costs incurred in this
litigation. The court does not address Castelluccio's application
for costs because it is premature and must be submitted to the
clerk of court, not the court itself.

attorney's

fees,

prejudgment

interest,

and

compensation

for

increased tax liability [Doc. #197] is GRANTED in PART and DENIED
in PART.

Castelluccio is awarded $894,053.50 in attorneys' fees

for work set forth in that motion. Absent objection, he is awarded
$13,236 in prejudgment interest, and $209,488 in compensation for
increased tax liability.
Castelluccio's supplementary motion for attorneys' fees [Doc.
#231] is GRANTED. He is awarded $102,360.00 in attorneys' fees for
work set forth in that motion.
I. DISCUSSION
An award of attorneys' fees is mandatory to a prevailing party
under the ADEA.

Hagelthorn v. Kennecott Corp., 710 F.2d 76, 86 (2d

Cir. 1983) (Detje v. James River Paper Corp., 167 F. Supp. 2d 248,
250 (D. Conn. 2001)).

In determining an appropriate fee award,

both the Second Circuit and the Supreme Court "have held that the
lodestar–- the product of a reasonable rate and the reasonable
number of hours required by the case–- creates a presumptively
reasonable fee."

Milea v. Metro-North R. Co., 658 F.3d 154, 166

(2d Cir.2011) (citing Arbor Hill Concerned Citizens Neighborhood
Assoc. v. County of Albany, 522 F.3d 182 (2d Cir.2008); Perdue v.
Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 176 L.Ed.2d
494 (2010)).

"'[T]he most critical factor' in determining the

reasonableness of a fee award 'is the degree of success obtained.'"
Farrar v. Hobby, 506 U.S. 103, 114 (1992), quoting Hensley v.
2

Eckerhart, 461 U.S. 424, 436, 103 S. Ct. 1993, 76 L. Ed. 2d 40
(1983). The court notes at the outset that the jury found in favor
of Castelluccio on every claim he advanced at trial, and that the
jury verdict was left undisturbed by the court in its denial of
IBM's motion for judgment as a matter of law, or new trial, or
remittitur.

(Doc. #202).

In response to Castelluccio's motion for attorneys' fees (Doc.
#197), IBM objects to four categories of activity that it believes
should be excluded from Castelluccio's attorneys' fees calculation:
(1) secretarial tasks and routine work; (2) abandoned claims,
unsuccessful motions, and tasks unrelated to the outcome of the
case; (3) tasks billed to two or more attorneys; and (4) work that
has been "block" billed. IBM objects also, on similar grounds, to:
(5) Castelluccio's (Doc. #231) supplementary motion for attorneys'
fees.

IBM does not contest the reasonableness of the hourly rate

of Castelluccio's counsel.

The court addresses each category IBM

identifies in turn.
1. Routine Legal Work and Secretarial Tasks
IBM

first

claims

that

the

fees

Castelluccio

seeks

for

secretarial tasks and routine work is excessive. It asks the court
to deduct 4.4 hours of secretarial work from the attorneys' fee
award and to also reduce by 50 percent the billable hours for the
following work: 22.3 hours spent drafting the federal complaint; 25
hours spent negotiating a confidentiality agreement; 17.2 hours

3

spent drafting discovery requests; 272.30 hours spent drafting the
response and sur-reply to IBM's motion for summary judgment; 4.4
hours spent preparing Castelluccio for a second deposition; and
1,054.70 hours spent preparing for trial. Castelluccio claims that
IBM's estimation of hours billed for many of these tasks is
inaccurate and that the time actually billed was justified.
In instances where the record supports competing conclusions
regarding the amount of time billed, the court affords the benefit
of the doubt to Castelluccio.

This approach is supported by the

presumption that the lodestar figure represents a reasonable fee
and also by the courts' belief that Castelluccio's counsel, who has
sworn to the accuracy of the billing statements, is in a better
position than IBM to attest to the amount of time billed for
certain tasks.

Accordingly, the court accepts the representation

of counsel that he billed only 12.1 hours for negotiating a
confidentiality agreement and only 240 hours to contest IBM's
motion for summary judgment.

The expenditure of time to negotiate

the confidentiality agreement was reasonable, especially in light
of the fact that it required review of language proposed by IBM and
was put in place for IBM's benefit.

The time billed to contest

IBM's motion for summary judgment, which included a warranted surreply, was also reasonable. See e.g., Serricchio v. Wachovia Sec.,
LLC, 706 F.Supp.2d 237, 258 (D.Conn.2010) aff'd, 658 F.3d 169 (2d
Cir.2011) (294.25 hours of attorney time spent opposing motion for

4

summary judgment was reasonable).
The

court

also

accepts

Castelluccio's

representation

concerning the time he spent drafting discovery requests.

The

record reasonably supports Castelluccio's position that IBM has
overestimated the amount of time he spent drafting discovery
requests inasmuch as IBM's estimation includes time Castelluccio
was billed for responding and objecting to IBM's requests for
production, scheduling a settlement conference, participating in a
conference call with a Magistrate Judge, and reviewing IBM's
confidentiality agreement.

(Doc. #223-5).

The court therefore

finds that the time Castelluccio was billed to respond to discovery
requests was reasonable.
The court also accepts Castelluccio's representation that time
for certain secretarial tasks was not billed by his attorneys. The
court has reviewed the entries in question, which include time
spent drafting the federal complaint, reviewing the law and the
court's ruling, and finds that these tasks do not amount to work
that is secretarial in nature.
entry

related

to

filing

To the extent IBM identifies a time

the

complaint,

the

court

accepts

Castelluccio's representation that the time for that task was
billed to a paralegal.
The court also disagrees with IBM's position that the time
Castelluccio spent preparing for trial was excessive.

The court

finds that IBM's estimate of the hours billed to Castelluccio for

5

trial preparation is overly broad.

Its estimate collects entries

dating back to 11 months before trial and does not challenge any
single entry with specificity.

(Doc. #223-8).

Accordingly, the

court cannot conclude that the hours billed to Castelluccio for the
purpose of trial preparation were excessive.
The

court,

however,

agrees

with

IBM's

position

that

a

reduction of attorneys' fees is warranted for the time spent
drafting the federal complaint in this case.

(Doc. #223-4).

The

court finds that 22.3 hours for this task is excessive in light of
the fact that the complaint was produced on the heels of litigation
at the administrative level.

Accordingly, the court reduces

attorneys' fees for this excessive work by $2,811.
The court also agrees with IBM's position that a reduction of
attorneys' fees is warranted for time spent preparing Castelluccio
for a second day of deposition.

While the court does not believe

that Castelluccio acted in bad faith, it finds that a second
deposition was induced to some extent by Castelluccio's failure to
produce prior to the first deposition all documents related to his
efforts to mitigate damages.

Accordingly, the court reduces

attorneys' fees for the second day of Castelluccio's deposition by
$792.50.
2. Abandoned Claims, Unsuccessful Motions, and Other Tasks
IBM next claims that Castelluccio should not be awarded
attorneys'

fees

for

certain

abandoned

6

claims

and

theories,

unsuccessful motions, and tasks unrelated to the outcome of the
case.

A plaintiff who prevails on some but not all of his claims

is not entitled to a fee award for unsuccessful claims that were
based on different facts and different legal theories.
461 U.S. at 434, 103 S.Ct. 1933).

Hensley,

However, a plaintiff's lack of

success on some of his claims does not require the court to reduce
the lodestar amount where the successful and unsuccessful claims
were interrelated and required essentially the same proof.

Murphy

v. Lynn, 118 F.3d 938, 951 (2d Cir.1997), cert denied, 522 U.S.
1115, 118 S.Ct. 1051, 140 L.Ed.2d 114 (1998); Lunday; Grant v.
Bethlehem Steel Corp., 973 F.2d 96, 101 (2d Cir.1992), cert.
denied, 506 U.S. 1053, 113 S.Ct. 978, 122 L.Ed.2d 132 (1993);
DeLeon v. Little, No. 3:94CV902RNC, 2000 WL 435494, at *4 (D.Conn.
Mar.2, 2000).
A. Abandoned Claims and Theories
IBM

specifically

argues

that

Castelluccio

should

not

be

permitted to recover attorneys' fees for the following abandoned
claims: (1) his claim that IBM allegedly breached an implied
contract, which was abandoned before the complaint was filed; (2)
his claim for retaliation, which was abandoned after the close of
discovery;

(3)

his

claim

that

IBM

violated

its

progressive

discipline policy; (4) his claim that his pension should not be
used to offset his damages claim; (5) his efforts to introduce
evidence of a coworker's earnings as evidence supporting his claim

7

for lost stock options; and (6) his failed application to amend the
case management plan in order to designate a rebuttal expert.
With respect to Castelluccio's claims of breach of implied
contract and retaliation, the court finds that these claims are
factually

interrelated

to

Castelluccio's

claim

of

wrongful

termination such that no reduction of fee is warranted. Dominic v.
Consol. Edison Co. Of New York, Inc., 822 F.2d 1249, 1259 (2d Cir.
1987) ("[W]hen a plaintiff's claims for relief involve a common
core of facts or are based on related legal theories, the lawsuit
cannot be viewed as a series of discrete claims."
quotations and brackets omitted)).

(Internal

In addition, the court finds

that those claims were reasonably viable legal theories that
counsel had a duty to investigate.
this

respect

would

serve

only

To disallow attorneys' fees in
to

discourage

attorneys'

investigating all reasonable theories of recovery.

from

See Marisol A.

ex. re.. Forbes v. Guiliani, 111 F.Supp.2d 381, 393 (S.D.N.Y. 2000)
("Preventing . . . prevailing parties from recovering fees for
unsuccessful efforts during the course of an otherwise successful
litigation may discourage attorneys from zealously representing
their clients and raising novel but reasonable arguments on their
behalf.").

In any event, the court finds that time spent on these

claims does not appear to be unreasonable, and notes that the
claims were timely abandoned when Castelluccio determined they were
not meritorious.

Accordingly, no reduction of attorneys' fees is

8

warranted for the abandoned claims of breach of implied contract
and retaliation.
Likewise, the court disagrees with IBM that Castelluccio
should not be allowed to recover attorneys' fees associated with
efforts to introduce evidence of his successor's earnings in order
to establish damages for his wrongful termination. IBM argues that
attorneys' fees should not be awarded because Castelluccio did not
ultimately introduce this evidence at trial, opting instead to base
his theory of damages on his own earnings.

Castelluccio argues

that not introducing this evidence was a reasonable litigation
decision designed to streamline the evidence at trial.

"The

relevant issue . . . is not whether hindsight vindicates an
attorney's time expenditures, but whether, at the time the work was
performed, a reasonable attorney would have engaged in similar time
expenditures."

Grant v. Martinez, 973 F.2d 96, 99 (2d Cir.1992).

Applying this analysis, the court cannot conclude that it was
unreasonable to explore a successor's earnings as a possible
measure of damages and to thereafter abandon that theory in order
to streamline the presentation of evidence at trial.

Accordingly,

the court will not reduce the attorneys' fees award in this
respect.
The court also disagrees with IBM's claim that Castelluccio
should not be awarded attorneys' fees associated with his argument
that IBM violated its progressive discipline policy.

9

IBM argues

that this time is not compensable because Castelluccio abandoned
this argument. The record reveals that Castelluccio filed a motion
to admit evidence of IBM's failure to follow its progressive
discipline policy prior to trial.

(Doc. #148).

The court granted

that motion in part at the pretrial conference.

Specifically, it

held that evidence of interim reviews would be admissible, but
disallowed evidence of performance improvement plans.
Castelluccio

ultimately

introduced

evidence

of

regarding interim reviews through Kelton Jones.
1065).

At trial,

IBM's

policy

(Tr. 1062 and

This testimony established that interim reviews applied to

all executives at IBM, including Castelluccio, and, considered
against the fact that Castelluccio never received one, allowed the
jury to draw an inference of age discrimination. This argument was
therefore not abandoned.
that

Castelluccio

Accordingly, the court cannot conclude

abandoned

his

claim

that

IBM

violated

its

progressive discipline policy or that a reduction of attorneys'
fees is warranted in this respect.
The court also disagrees with IBM's position that Castelluccio
abandoned his claim concerning how pension benefits should factor
into the calculation of damages.

At the pretrial conference,

Castelluccio argued that IBM had the burden to establish the amount
to be deducted from Castelluccio's damages in order to account for
pension payments he received after his termination.

Castelluccio

argues that he pursued this claim on a good faith belief that an

10

open question of law existed as to which party had the burden to
establish

this

offset

amount,

but

ultimately

decided

not

to

introduce into the record an appealable issue after finding no
controlling precedent.
with the

court

at

Because the parties discussed this point

the pretrial

conference,

the

court

cannot

conclude that this claim was abandoned. Nor can the court conclude
that a reasonable attorney would not have pursued what appeared to
be

an

open

question

of

law.

Accordingly,

no

reduction

of

attorneys' fees is warranted here.
The court, however, finds that Castelluccio should not be
awarded attorney's fees for his failed application to amend the
case management plan in order to extend the deadline for disclosure
of an expert witness to rebut IBM's expert on employability and
efforts to mitigate damage.

The court denied that motion on the

basis that Castelluccio was tardy in seeking additional time and
had not acted diligently or shown good cause for the extension.
(Doc. #44).

The court finds that it would be unreasonable for IBM

to bear the costs associated with the motion to amend the case
management plan in light of the court's findings in this respect.
The

court

will

reduce

the

billable

hours

associated

with

Castelluccio's application to amend the case management plan by
$575.
B. Unsuccessful Motions and Other Tasks
IBM next argues that Castelluccio should not be able to

11

recover for the following unsuccessful motions and other tasks not
related to the outcome of the case.

IBM specifically argues that

Castelluccio should not be able to recover attorneys' fees for: (1)
128.10 hours opposing its two motions to preclude expert testimony;
(2) 72.20 hours deposing Barbara Brickmeier, Patricia O'Malley,
Garret Walker, and Jack Overacre; (3) 40.7 hours opposing its
application to seal; (4) 27 hours spent on a motion to compel
discovery; and (5) 22.4 hours spent on a motion to revise the
parties' pre-trial stipulations with respect to IBM's pre-trial
investigation.

This court disagrees.

Castelluccio's opposition to IBM's motion to preclude the
expert testimony of his damages expert, Dr. Crakes, was not an
unreasonable expenditure of time.

IBM sought to preclude Dr.

Crakes's testimony on the basis that, inter alia, his opinion was
based on an unreliable methodology concerning the exercise of stock
options.

(Doc.

#50,

51).

Castelluccio in his response.

This

position

(Doc. #72).

was

challenged

by

In granting in part and

denying in part IBM's motion to preclude expert testimony, the
court agreed with IBM that Dr. Crakes's methodology with respect to
the exercise of stock options was unreliable, and accordingly
deemed inadmissable that portion of his testimony.

However, the

court held that Dr. Crakes would otherwise be able to testify on
the issue of Castelluccio's economic loss as indicated in other
areas of the report.

(Doc. #114).

12

The court sees no reason why it

should now disallow Castelluccio's partially successful response to
IBM's motion to preclude expert testimony.
conclude

that

a

reasonable

attorney

would

The court cannot
not

have

pursued

Castelluccio's argument that economic damages should be based on
stock options.
In the same vein, the court cannot conclude that attorneys'
fees

are

unreasonable

for

efforts

to

revise

Dr.

Crakes's

methodology and Castelluccio's opposition to IBM's second motion to
preclude expert testimony.
Crakes's

testimony

After the court's order deeming Dr.

concerning

the

exercise

of

stock

options

unreliable, Castelluccio sought to cure the defect by basing the
valuation of stock options on an arguably less speculative metric-–
the stock options awarded to his successor.

(Doc. #123).

The

court again held that this second approach did not cure the
speculative nature of Dr. Crakes's opinion. (Doc. #127). Although
Castelluccio was unsuccessful in this respect, the court cannot
conclude that a reasonable attorney would not have similarly
engaged in efforts to incorporate a generally recoverable component
of damages.

Grant, 973 F.2d at 99.

Accordingly, the court will

not reduce attorneys' fees in this respect.
Neither does the court agree with IBM's argument that a
reduction of fees is warranted for the depositions of Brickmeier,
O'Malley, Walker and Overacre, who IBM claims added nothing to the
litigation or the outcome of the case.

13

It was not unreasonable for

Castelluccio to depose Brickmeier, O'Malley, Walker and Overacre,
because those very individuals were identified by IBM in response
to Castelluccio's Rule 30(b)(6) deposition Notice.

Serricchio v.

Wachovia Sec., LLC, 706 F. Supp. 2d 237, 258 (D. Conn. 2010),
aff'd, 658 F.3d 169 (2d Cir.2011) (finding that time billed to
depose witnesses designated pursuant to Fed. R. Civ. P. 30(b)(6)
and 26 was compensable).
The court also disagrees with IBM's position that a fees
reduction is warranted for time Castelluccio spent opposing IBM's
motions to seal certain material submitted in supported of its
motion for summary judgment and motion to exclude expert testimony.
IBM argues that Castelluccio's opposition to its motion to seal was
unnecessary and therefore not compensable.
basis

to

conclude

that

this

opposition

The court finds no
was

an

unnecessary

expenditure of time. The opposition was induced by IBM's filing of
the motions to seal in the first instance.

Moreover, the court, in

granting in part and denying in part IBM's motion to seal, agreed
with Castelluccio on many of the points of contention raised in his
opposition.

(Doc. #117).

No reduction of attorneys' fees is

warranted for Castelluccio's justified expenditure of time in this
respect.
The court also disagrees with IBM's position that a fees
reduction
discovery.

is

warranted

(Doc. #159).

for

Castelluccio's

motion

to

compel

Castelluccio filed this motion several

14

months before trial to compel the discovery of certain documents
related to IBM's performance review procedures as well as documents
related

to

its

"open

door

investigation."

IBM

argues

that

Castelluccio's motion to compel was unsuccessful and that it was
untimely because it was filed more than three years after discovery
closed.

The motion to compel was filed well after the close of

discovery;

however,

engendered

to

the

some

court

extent

by

notes
IBM's

that

it

failure

may

to

have

been

documents when Castelluccio requested them in 2009.

produce these
In addition,

the court disagrees with IBM's position that the motion to compel
was unsuccessful.

Rather,

the motion to compel was largely

rendered moot by the court's subsequent order at the pretrial
conference precluding much of the evidence related to performance
review procedures and its order precluding evidence of IBM's open
door investigation.

(Doc. ## 163, 170).

Castelluccio should not

be denied attorneys' fees for a motion to compel discovery in light
of the court's evidentiary rulings thereafter, which obviated the
need for the production of most of the documents in question.
The court also disagrees with IBM that a reduction of time is
warranted for time spent on an unsuccessful motion to revise the
parties' pretrial stipulations with respect to IBM's pre-trial
investigations.
trial

memorandum

Before trial, the parties stipulated in the joint
to

certain

facts

regarding

IBM's

investigation, which were to be read to the jury.

15

open

door

When the court

later granted Castelluccio's motion to preclude the open door
evidence, IBM contacted Castelluccio seeking to enter into a
revised

stipulation

investigation.

of

facts

with

regard

to

the

open

door

The parties were unable to reach an agreement

regarding the revision.

Thereafter, Castelluccio filed the motion

to revise the joint trial memorandum seeking to remove references
to the open door investigation altogether. IBM now argues that the
time Castelluccio spent on this motion was excessive. Castelluccio
argues that the time IBM identifies as excessive does not pertain
to the motion to revise the joint trial memorandum; rather, it
concerns time spent reviewing the stipulations proposed by IBM
subsequent to the court's ruling granting Castelluccio's motion to
preclude the open door evidence.
representation

of

the

The court accepts Castelluccio's

expenditure

of

time

in

this

respect.

Further, the court's review of the billing entries in question do
not support IBM's position that some 22.4 hours were spent on the
motion to revise the pre-trial stipulations.
multitude

of

other

tasks,

such

as

IBM has included a

Castelluccio's

review

and

revision of exhibit lists and IBM document production, into its
estimation of time spent on the motion.

No reduction of time is

warranted in this respect.
3. Tasks Billed to Two or More Attorneys
IBM next seeks a reduction of 314.2 hours or $87,039.50 for
Castelluccio's regular use of two or more attorneys throughout this

16

case

on

the

same

task,

or

interoffice

communication

between

lawyers. It cites the following as the most egregious examples of
this practice: two lawyers attend the Rule 26(f) conference and
various routine teleconferences with the court; two lawyers appear
to

defend

plaintiff's

deposition

and

attend

those

of

IBM's

witnesses; two lawyers appear at non-binding mediation; and four
lawyers confer about whether to make a settlement counter-offer.
Castelluccio argues that the billing entries at issue reflect
reasonable collaboration between attorneys, that whenever possible
he was either not billed or billed at a reduced rate when more than
one attorney attended a deposition, and that two partners were
never present at any court preceding, including trial.
It is not uncommon for parties to recover attorneys' fees for
the collaboration

of

multiple

attorneys

on

a

case,

when the

district court decides that such collaboration is appropriate given
the scope and complexity of the litigation.

See, e.g., New York

State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d
Cir.1983) ("Prevailing parties are not barred as a matter of law
from receiving fees for sending a second attorney to depositions or
an extra lawyer into court to observe and assist.

Nor are counsel

forbidden from receiving fees for background research."); Luca v.
County

of

(awarding

Nassau,

698

attorneys'

F.Supp.2d

fees

and

296,

costs

305-07
to

two

(E.D.N.Y.2010)
attorneys

who

collaborated on appellate brief and oral argument); Lenihan v. City

17

of New York, 640 F.Supp. 822, 826 (S.D.N.Y.1986) ("intra-office
conferences among attorneys familiar with and working on particular
litigation enhance the possibility of competent and efficient
litigation, and hours spent in such conferences are not reduced
under the

rubric

of 'billing

judgment'

unless the

result

is

unproductive.").
The court notes as an initial matter that IBM's position that
Castelluccio's counsel spent 314.2 hours working jointly on tasks
is a gratuitous over-statement of the time billed in this respect.
The 314.2 hours identified in IBM's exhibit 14 include a collection
of entries that contain the word "confer" or indicate that counsel
discussed an issue with each other or worked together in some
respect.

Because notations reflecting this collaboration are

included alongside other tasks in block time entries, many, if not
most of the entries, also record tasks that the attorney or another
member of the office performed independently. IBM does not attempt
to account for those tasks completed independently and asks for a
wholesale reduction of the 314.2 hours it identifies.

Therefore,

the time that Castelluccio was actually billed for tasks completed
by multiple attorneys is substantially less than what IBM claims.
Further, the court finds that the 314.2 hours of billing entries in
question

reflect

a

duplicative billing.

collaborative

work

process

as

opposed

to

Collaboration on all manner of tasks was not

unreasonable in light of the scope and factual complexity of the

18

case.

The time sheet reflects a level of cooperation between

attorneys

that

would

be

expected

in

a

case

of

this

nature.

Accordingly, no reduction of time is warranted here.
4. Block Billing
IBM claims that a reduction of attorneys' fees is warranted
for the remaining tasks charged in this case to account for
Castelluccio's

practice

of

"block-billing,"

that

is,

aggregation of multiple tasks into a single billing entry.

the
To

account for this practice, IBM argues that an additional 35 percent
reduction of attorneys' fees, or $173,942.47, is warranted for the
remainder of tasks identified in Castelluccio's fee application
that it has not specifically challenged above.

IBM argues that

Castelluccio's counsel deliberately engaged in block billing in
order to conceal his time entries from subsequent judicial review.
The court finds it very hard to believe that Castelluccio's
counsel deliberately engaged in block billing in order to conceal
his time entries from its review.

In any event, the block billing

entries at issue comply with the Second Circuit's requirements of
specificity because such entries specify "the date, hours expended,
and the nature of the work done."
Although

Carey 711 F.2d at 1148.

courts have levied across the board reduction for block

billing entries in some instances, "more often, courts have ordered
such reductions for block-billing only where there was evidence
that the hours billed were independently unreasonable or that the

19

block-billing was mixing together tasks that were not compensable,
or not at all compensable at the same rate."

See Hnot v. Willis

Group Holdings Ltd., 01 CV. 6558 GEL, 2008 WL 1166309 at *6
(S.D.N.Y. Apr. 7, 2008) (citing collected cases).

Here, IBM does

not identify which time entries it claims are improper.

In the

absence of evidence that Castelluccio has obscured unreasonable
billing, the court will not impose an across the board penalty
simply because a law firm has engaged in a generally accepted
billing practice.

See Hnot 2008 WL 1166309 at *6.

5. Supplemental Motion for Attorneys' Fees
Finally,
supplemental

IBM

objects

motion

for

to

Castelluccio's

attorneys'

fees.

In

(Doc.

#231)

Castelluccio's

supplemental motion, he seeks attorneys fees for work related to,
inter alia, his (Doc. #197) motion for attorneys' fees, including
(Doc. #198) a memorandum of law in support of that motion, and
(Doc. #229) a reply to IBM's opposition to the motion.

He also

seeks attorneys' fees for work related to his lengthy memorandum of
law in opposition to IBM's motion for judgement as a matter of law,
or new trial or remittitur.

(Doc. #212).

In total, Castelluccio

seeks in his supplemental motion fees of $102,360.00, representing
302 hours of work performed by attorneys or paraprofessionals.
(Doc. 232).
IBM claims that this figure should be reduced by a total of
$54,733.90.

IBM

specifically

20

argues

that

119.80

hours,

or

$40,642.50, for work associated with the bill of costs and fee
application is excessive for such routine work, and should be
reduced

by

50

percent.

IBM

also

argues

that

18.7

hours,

or

$15,445.83, should be excluded from the fee award to account for
redundant and duplicative billing practices.

Finally, IBM argues

that the balance of the fee award Castelluccio seeks in his
supplemental motion should be reduced by 45 percent, or $29,966.81,
to account for block billing entries.
The court has reviewed the billing entries in question and
cannot conclude that a reduction of fees is warranted.

The court

disagrees with IBM's position that the attorneys' fees associated
with the bill of costs and fee application are excessive.

The

attorneys' fees charged for this purpose are explained in large
part by the lengthy memorandum of law Castelluccio submitted in
support of the motion, his reply to IBM's opposition to the motion,
and time spent assembling affidavits and time sheets in support of
the motion.

(Doc. ## 198, 229).

Moreover, much of this work was

billed by an associate, as opposed to a partner, and therefore
billed at an appropriate rate.
In addition, the court can not conclude that a reduction of
fees is warranted for work IBM describes as duplicative.

IBM asks

for a reduction of fees for time Castelluccio's attorneys spent
conferring with each other concerning various aspects of the bill
of costs, fee application and other trial post-trial motions.

21

These notations were included alongside other tasks in various
billing entries.

Consequently, the court cannot conclude that any

time spent in this respect was excessive in the first instance.

In

addition, the court has reviewed the billing entries in question,
and concludes that they reflect justifiable collaboration between
attorneys as opposed to a duplication of fees.
Finally, the court cannot conclude that an across the board
reduction of fees is warranted for block billing entries. Like the
other block billing entries IBM challenges above, IBM does not
present evidence that Castelluccio obscured these billing entries
either.

Accordingly the court will not reduce the attorneys' fees

award for an acceptable billing practice.
II. CONCLUSION
For the reasons stated herein, Castelluccio's supplementary
motion for attorneys' fees [Doc. #231] is GRANTED.

He is awarded

$102,360.00 in attorneys' fees for work set forth in that motion.
Castelluccio's

motion

for

attorney's

fees,

prejudgment

interest, and compensation for increased tax liability [Doc. #197]
is GRANTED in PART and DENIED in PART.

Castelluccio is awarded

$894,053.50 in attorneys' fees for work set forth in that motion.
Absent objection, he is awarded $13,236 in prejudgment interest,
and $209,488 in compensation for increased tax liability.
The Clerk is directed to issue a Final Judgment in the amount
of $3,718,920.78.
22

IT IS SO ORDERED.
Dated at Hartford, Connecticut this 23rd

day of July, 2014.

/s/ Thomas P. Smith
Thomas P. Smith
United States Magistrate Judge

23