A.S. v. HARRISON TOWNSHIP BOARD OF EDUCATION et al

Filing 202

OPINION. Signed by Judge Noel L. Hillman on 4/12/2017. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HONORABLE NOEL L. HILLMAN

A.S., a minor, individually
and by his parents H.S. and
M.S.,

CIVIL ACTION NO. 14-147
(NLH/KMW)

Plaintiffs,

OPINION

v.
HARRISON TOWNSHIP BOARD OF
EDUCATION and EAST GREENWICH
SCHOOL DISTRICT,
Defendants.

APPEARANCES:
JAMIE EPSTEIN, ESQ.
107 Cherry Parke, Suite C
Cherry Hill, New Jersey 08002
Counsel for Plaintiff
PARKER McCAY, P.A.
By: Brett Gorman, Esq.
9000 Midlantic Drive, Suite 300
Mount Laurel, New Jersey 08054
Counsel for Defendant Harrison Township Board of Education
COOPER LEVENSON, P.A.
By: William S. Donio, Esq.
1125 Atlantic Avenue, Third Floor
Atlantic City, New Jersey 08401
Counsel for Defendant East Greenwich School District

HILLMAN, United States District Judge:

1

Presently before the Court is Plaintiffs’ unopposed Motion for
Approval of Settlement in this IDEA 1 case.

The Court held a

“friendly” hearing on February 8, 2017, and March 20, 2017. 2

For the

reasons stated below, the Court will approve the settlement, but
does so noting its serious concerns regarding the billing practices
of Plaintiffs’ counsel, Jamie Epstein, Esq.

Disappointingly, the

undersigned must now join an ever-growing chorus of judicial
colleagues who have found Mr. Epstein’s billing and recordkeeping
practices inadequate and unprofessional. See, e.g., M.G. v. Eastern
Regional High School, 386 F. App’x 186, 189-90 (3d Cir. 2010)(“We
agree that the fee petition submitted by Epstein was seriously
deficient. . . .”), and the authorities cited herein.
I.
Plaintiff A.S. is presently nine years old.

His disabilities

include autism spectrum disorder, attention deficit hyperactivity
disorder, epilepsy and hearing impairment.

While this federal

action was instituted in 2014, this case began at the state

Individuals with Disabilities Education Act, 20 U.S.C. §§ 14001491.
1

A “friendly” hearing is a proceeding pursuant to N.J. Ct. R.
4:44-3 wherein the court reviews a settlement of a minor’s claims.
See Impink v. Reynes, 396 N.J. Super. 553 (App. Div. 2007). It is
unclear whether a friendly hearing is required in this federal court
case which asserts causes of action under both federal and New
Jersey law. The Court need not answer that question in this case
however. Plaintiff requested a friendly hearing and Defendants did
not object; indeed, Defendants appeared for, and participated in,
the hearing.
2
2

administrative level in 2012.

That is to say that A.S.’s parents

have been involved in formal adversarial litigation with their
child’s school district for approximately half of A.S.’s life.

The

Court has no doubt that the proposed settlement between Plaintiffs
and Defendant Harrison Township School Board, upon approval, will
bring some much needed peace of mind to Plaintiffs and allow the
parties to focus on the education of the child unburdened by the
stress and uncertainly of the adversarial process.
The specific dollar figures of the settlement are filed under
temporary seal and are subject to a contested motion to seal.
Accordingly, the Court will not, at this time, in this publiclyaccessible opinion, discuss the specifics of the minor’s settlement.
Moreover, those specific numbers are not directly relevant to the
instant discussion, as the Court’s concerns about the settlement
relate only to the portion that will be paid to Mr. Epstein.
II.
When a settlement involves resolution of minors’ claims, courts
in New Jersey review the settlement to “determine whether [it] is
reasonable as to its amount and terms.” N.J. Ct. R. 4:44-3.

After

review, the Court may accept the settlement, reject the settlement,
or suggest different terms. Impink v. Reynes, 396 N.J. Super. 553,
562 (App. Div. 2007).

The Court may not re-write the settlement by

ordering different terms absent the parties’ consent. Id. at 564.

3

III.
The settlement agreement between Plaintiffs and Harrison
Township provides that Mr. Epstein’s fees will be paid out of the
total settlement lump sum payment.

As such, Defendant Harrison

Township does not formally object to Mr. Epstein’s fees; the
township has agreed to pay what it has agreed to pay.

While the

agreement specifies three categories of compensation, one of which
is Mr. Epstein’s fee, how the settlement amount is divided between
Plaintiffs and Plaintiffs’ counsel, or whether the basis for Mr.
Epstein’s requested fee is properly documented, is apparently not
the township’s concern.

That is to say they have not provided the

Court, beyond the agreement itself, with specific arguments as to
the logic applied or factors considered in the apportionment of the
lump sum amount or the propriety of the overall legal fee.
However, such matters are the Court’s concern, as the Court
must review not only the amount, but the terms of a settlement that
implicates the rights of a minor and provides a remedy to that same
child. 3

Since some portion of the settlement involves payments in

trust for the minor child, at least in theory, the settlement at

The Court notes that the settlement resolves the remaining
claims in this matter and also addresses the issue of Mr. Epstein’s
overall fee. Although subject to possible appeal and review absent
a final settlement, the plaintiff child and his parents have
previously received substantial relief from this Court and the
administrative process through the efforts of Mr. Epstein. Apart
from the not insubstantial issue of the ethics of proper attorney
billing and recordkeeping, the question is less whether Mr. Epstein
is entitled to a fee and more what the fee should be.
4
3

issue is structured in such a way that every dollar Mr. Epstein
recovers in fees is one less dollar that will be deposited into a
trust account for A.S.

For this reason alone, the Court must

carefully consider whether Mr. Epstein’s fees are fair and
reasonable, which of course, requires a careful inspection of Mr.
Epstein’s billing records filed in support of the instant motion.
Problematically, even a cursory inspection of Mr. Epstein’s
billing records reveals glaring deficiencies.

Most obviously, Mr.

Epstein billed years’ worth of emails in single entries: “8/31/12 –
10/14/13 DRAFT/REVIEW 468 EMAILS, 46.8 [hours]”; “3/14 – 2/15
EMAILS; OAL4 AND DISTRICT COURT, 79.1 [hours]”; “10/13 – 3/14
EMAILS; DISTRICT COURT 23.1 [hours].”

(Docket Entry 182-2 4)

Not only do these entries represent impermissible blockbilling, they also suggest double-billing in that the entries
overlap for two weeks during the month of October 2013, and the
entire month of March 2014.

They also suggest overbilling in two

independent respects: (a) every email is billed at the attorney rate
(as opposed to a clerical or paralegal rate), when it is highly
implausible that every email identified required legal training to
address 5, and (b) every email is asserted to have taken 6 minutes
(0.1 hours) to read or draft.

This document was not filed under seal. The Court expresses no
opinion whether it should, or should not, be under seal.
4

Paragraph 11 of Mr. Epstein’s “Affidavit of Services” “affirms”
that “I did not have any paraprofessionals work on this case,
5
5

Mr. Epstein has been admonished several other times about these
specific billing practices.

In 2006, Judge (now Chief Judge)

Simandle stated,
[c]ounsel must perform such routine tasks more efficiently or
delegate such work to either a junior lawyer, paralegal or
other member of Mr. Epstein’s support staff. . . .
Other entries cause the Court to question why Mr. Epstein
failed to delegate certain work to his support staff. For
example, on August 22, 2001 Mr. Epstein recorded 1.2 hours to
review three certificates of service and file return of
service with this Court. This task could have (and should
have) been performed by a paralegal or capable legal
assistant, or, if actually done by Mr. Epstein personally,
these should have been billed at a much lower rate or absorbed
as routine office overhead.
Deptford Twp. Sch. Dist. v. H.B., 2006 U.S. Dist. LEXIS 92456, *17*19 (D.N.J. Dec. 21, 2006).

however, if a task I performed could have been performed by a
paralegal it was billed at $150 per hour but there were none.”
(Docket #182-5)(emphasis added). This statement, “made under
penalty of perjury,” id., strains credulity. It seems impossible
that no tasks over the course of a 4+ years-long litigation could
have, and should have, been performed by a paralegal or other
clerical staff. The Court further notes that Mr. Epstein appears to
have made a very similar misstatement in J.L. v. Harrison Township,
2016 U.S. Dist. LEXIS 110478, *60 (D.N.J. Aug. 19, 2016)(“Mr.
Epstein affirms in his Affidavit of Services that he did not have
any paraprofessionals work on the case, but that tasks he performed
‘which could have been performed by a paralegal were billed at $150
per hour.’ Affidavit of Services ¶ 25 [Docket No. 83-2]. Yet, the
Court does not find even one entry where Mr. Epstein billed at $150
per hour although he billed for many clerical tasks.”).
Mr. Epstein has been reminded before of his Rule 11 obligations
to the Court. See M.G., 2009 U.S. Dist. LEXIS 98631 at *32; J.L.,
2016 U.S. Dist. LEXIS 110478 at *80, n.36; see generally Fed. R.
Civ. P. 11(b)(3)(“By presenting to the court a pleading, written
motion, or other paper . . . an attorney . . . certifies that to the
best of the person’s knowledge, information and belief . . . the
factual contentions have evidentiary support.”). Mr. Epstein’s
further reflection in this regard is clearly warranted.
6

In 2007, Magistrate Judge Schneider, citing Judge Simandle’s
opinion in Deptford, wrote, “the Court rules this work should have
been done by plaintiff’s administrative employee.” J.N. v. Mt.
Ephraim Board of Education, 2007 U.S. Dist. LEXIS 94067, *14 (D.N.J.
Dec. 21, 2007).
Again in 2009, Judge Simandle criticized Mr. Epstein’s
“billings for clerical tasks” particularly as they pertained to
“certain email-related activities” for which Mr. Epstein billed 0.1
hours of work.

Judge Simandle observed, “not only would these tasks

normally consume a matter of seconds, but they would ordinarily be
performed by secretarial or non-legal staff, not [at] a[n] . . .
attorney [rate].” L.J. v. Audubon Board of Education, 2009 U.S.
Dist. LEXIS 31473, *44-46 (D.N.J. April 13, 2009).
Later in 2009, Judge Kugler observed that, as to “billing for
clerical tasks,” “Mr. Epstein did not take L.J.’s clear
admonishment” that clerical tasks cannot be billed at an attorney
rate and “that billing for certain email related activities is
inappropriate.” M.G. v. Eastern Regional High School District, 2009
U.S. Dist. LEXIS 98631, *29-31 (D.N.J. Oct. 21, 2009).
More recently, in 2015, Judge Kugler again observed that Mr.
Epstein inappropriately engaged in “multi-day block billing”, and
“inadequately documented the hours he billed for emails” when “Mr.
Epstein billed 29.5 hours for drafting and reviewing 590 emails from
May 1, 2012 to October 22, 2013.” C.G. & R.G. v. Winslow Township
7

Board of Education, 2015 U.S. Dist. LEXIS 161281, *9, *13-15 (D.N.J.
Dec. 2, 2015).
The Court called to Mr. Epstein’s attention these deficiencies
and prior precedent at the first friendly hearing on February 8th,
and granted Mr. Epstein leave to amend his submissions.

This also

provided an opportunity for both sides to reexamine the terms of the
settlement consistent with Impink v. Reynes, 396 N.J. Super. 553,
562 (App. Div. 2007).
At the very least, the Court expected that Mr. Epstein would
take the Court’s concerns to heart and carefully review -- and where
necessary, alter -- each of his billing entries.

However, his

revised submission evidences no such careful review.

While Mr.

Epstein did individually bill each email at 0.01 attorney hours (3
minutes), 6 his revised submission reveals an embarrassing lack of
knowledge and understanding as to why such revision was necessary.
To wit, Mr. Epstein writes, “Query: why in the world would anyone
want a lawyer to spend days and days writing billing entries for
1000s of emails and the other party’s lawyer and the judge to spend

6

While an improvement on the initial submission, the Court does
not imply that such revisions are entirely satisfactory. Compare
C.G. & R.G., 2015 U.S. Dist. LEXIS 161281 at *14 (observing that
some emails “should have taken Mr. Epstein seconds, not 3 minutes”
to open and read).
8

days and days reviewing 1000s of entries?” [Docket Entry 197,
Epstein Affidavit, p. 7 fn. 3] 7
These serious professional failings notwithstanding, the Court
is constrained by its limited role in reviewing a settlement, and is
mindful that settlement agreements are encouraged as a matter of

For Mr. Epstein’s benefit, the Court will repeat the answer to
this question, which Mr. Epstein should know, given that nature of
his practice, and the frequency with which he has applied to this
Court for fees: “[i]n its evaluation, the district court must
conduct more than a cursory review of the billing records, and must
go line, by line through the billing records supporting the fee
request.” P.N., 2007 U.S. Dist. LEXIS 29289 at *6 (Mr. Epstein
appearing for Plaintiff); “‘A court must do more than a cursory
review of billing records and must go line, by line through the
billing records supporting the fee request.” J.N., 2007 U.S. Dist.
LEXIS 94067 at *7 (quoting P.N.)(Mr. Epstein appearing for
Plaintiffs); “[c]ounsel for the party claiming the fees has the
burden of proving hours to the district court by submitting
meticulous, contemporaneous time records that reveal, for each
lawyer for whom fees are sought, all hours for which compensation is
requested and how those hours were allotted to specific tasks. A
district court is justified in reducing the reasonable number of
hours if the attorney’s time records are sloppy and imprecise and
fail to document adequately how he or she utilized large blocks of
time.” L.J., 2009 U.S. Dist. LEXIS 31473 at *54-55 (Mr. Epstein
appearing for Plaintiff); “[t]he district court must go line, by
line through the billing records supporting the fee request. As
part of the determination of reasonable hours expended, attorneys
seeking fees must document the hours for which payment is sought
with sufficient specificity.” T.B. v. Mount Laurel Bd. of Educ.,
2012 U.S. Dist. LEXIS 44848 at *17 (D.N.J. Mar. 30, 2012)(Mr.
Epstein appearing for Plaintiff); “[t]he Court must go line by line
to determine whether Plaintiffs met their burden to justify the
hours expended.” C.G., 2015 U.S. Dist. LEXIS 161281 at *9 (Mr.
Epstein appearing for Plaintiffs). Further, it does not matter that
the cases cited are in a different procedural posture than the
instant case. At the time Mr. Epstein made the billing entries (or
at least should have made the billing entries), he did not know
whether this case would end by way of settlement or a judgment in
his clients’ favor.
7

9

public policy. See generally Ehrheart v. Verizon Wireless, 609 F.3d
590, 593 (3d Cir. 2010) (“a strong public policy exists . . .
favoring settlement of disputes, finality of judgments and the
termination of litigation.”); Puder v. Buechel, 183 N.J. 428, 437
(2005)(“For nearly forty-five years, New Jersey courts have found
that the settlement of litigation ranks high in the public policy of
this State.”)(internal citations and quotations omitted).
Moreover, while the Court recognizes it should take such
statements with a grain of salt, 8 Plaintiffs have stated on the
record that they are fully satisfied with the total amount of the
settlement, and the specific amount that will be paid to Mr.
Epstein.

Nor is there anything in the record to suggest that Mr.

Epstein’s recordkeeping failings had the effect of lowering the
minor’s share of the settlement to the benefit of Mr. Epstein.

If

so, the result here would have been different. 9

See Burd v. Hackensack Hosp. Ass’n, 195 N.J. Super 35, 477 A.2d
843, 844 (N.J. Super App. Div. 1984)(noting difficulty lay person
may have in assessing the reasonableness of attorneys’ fees).
8

The undersigned is aware that Senior District Judge Joseph H.
Rodriguez, after a friendly hearing, recently rejected a proposed
settlement between one of Mr. Epstein’s clients and a school
district. Senior Judge Rodriguez found that “the terms of the
settlement [are] not fair and reasonable to the minor as they
provide for attorneys’ fees that are grossly disproportionate to the
minor’s recovery.” C.C. v. Eastern Camden County Regional School
District, 2017 U.S. Dist. LEXIS 46386 at *1. In C.C., Mr. Epstein
had been paid $98,000 for his work at the administrative level and
later sought, along with co-counsel, $20,000 of a total settlement
of $33,400 as part of a negotiated settlement of follow-on
litigation in this Court.
10
9

Thus, the Court is faced with the following situation.

After

suggesting how to revise the attorney’s fees portion of settlement
at the first friendly hearing, and those suggestions apparently
having been rejected, the Court must now either reject the
settlement and essentially force unwilling parties 10 to continue this
protracted litigation which centers on the well-being and education
of a special needs child and risk the collateral harm that might
follow, or accept the settlement.

Under the circumstances, the

Court concludes it has no viable choice but to accept the settlement
as presented to the Court.

If the amount of Mr. Epstein’s fees were

presented to the Court in a different procedural posture, Mr.
Epstein likely would not be awarded, on the present record, the

The instant case is distinguishable. As Senior Judge Rodriguez
specifically noted, C.C. “is not a case where Plaintiffs received
equitable relief at the administrative level that cannot be
quantified, but Plaintiff’s counsel was not awarded fees.” Id. at
*17. In this case, most, if not all, of the relief obtained at the
administrative level was equitable in nature and Mr. Epstein has
represented to this Court that the fee described in the settlement
is his total, and only, fee for four administrative proceedings and
the current case over a span of five years.
However, as this opinion should make apparent, the undersigned
shares Senior Judge Rodriguez’s concerns regarding Mr. Epstein’s
billing practices and recordkeeping. See C.C., 2017 U.S. Dist. LEXIS
at *13 (“The Court finds that the amount of time logged and
resulting fees are disproportionate to the activity reflected on the
docket.”).
Counsel for the Defendants kindly allowed the Court to discuss
the settlement with the parent plaintiff ex parte, along with Mr.
Epstein. Without revealing those discussions in detail, it is fair
to say both parents, with the best interests of their child in mind,
expressed their profound hope the Court would approve the
settlement.
11
10

amount of fees that he will receive from the settlement of this
case.
Other judges have expressed well-founded doubt concerning Mr.
Epstein’s future improved behavior. See, e.g., J.L., 2016 U.S. Dist.
LEXIS 110478 at *80 n. 36 (“Given Mr. Epstein’s long history of
questionable conduct in this District, the Court is skeptical that
any [Rule 11] sanction would actually deter Mr. Epstein from
engaging in similar litigation tactics in the future.”).
undersigned also has doubts.

The

Nonetheless, Mr. Epstein is invited to

consider that any future fee application filed in this Court is a
“new opportunity to demonstrate his good faith in making fee
requests.” T.B., 2011 U.S. Dist. LEXIS 66682 at *27.

“The Court

hopes he will seize it.” Id.
IV.
For the reasons set forth above, the Motion for Settlement
Approval will be granted.

An appropriate Order and Judgment

accompany this Opinion.

At Camden, New Jersey
Dated: April 12, 2017

___s/ Noel L. Hillman_____
Noel L. Hillman, U.S.D.J.

12