Brooks et al v. Roberts

Filing 104

MEMORANDUM-DECISION & ORDER that pltfs' 99 Motion for Attorney Fees is GRANTED in part; that pltfs' 98 Motion for Costs is GRANTED; and pltfs are granted $265,671.92 in attorney's fees and costs. The Clerk of the Court is directed to enter judgment accordingly and close the file. Signed by Judge David N. Hurd on 11/19/2020. (see)

Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 1 of 19

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------DERRICK BROOKS, on behalf
of himself and all others similarly
situated, CLIFTON DEMECO, on
behalf of himself and all others
similarly situated, and BRIAN
BLOWERS, on behalf of himself
and all others similarly situated,
Plaintiffs,
-v-

1:16-CV-1025

SAMUEL D. ROBERTS, as
Commissioner of the New York
State Office of Temporary
and Disability Assistance,
Defendant.1
----------------------------------APPEARANCES:

OF COUNSEL:

NATIONAL CENTER FOR LAW
& ECONOMIC JUSTICE, INC.
Attorneys for Plaintiffs
275 Seventh Avenue, Suite 1506
New York, NY 10001

DENNIS PARKER, ESQ.
PETRA T. TASHEFF, ESQ.
SAIMA A. AKHTAR, ESQ.
GREGORY LEE BASS, ESQ.
KATHARINE M. DEABLERMEADOWS, ESQ.

EMPIRE JUSTICE CENTER - ALBANY
Attorneys for Plaintiffs
119 Washington Avenue, Second Floor
Albany, NY 12210

SUSAN C. ANTOS, ESQ.

1

Michael P. Hein has succeeded Samuel D. Roberts as Commissioner. The Clerk of the Court will
be directed to amend the caption to substitute the current officeholder as the named defendant. See FED. R.
CIV. P. 25(d).

Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 2 of 19

NEW YORK CITY LAW DEPARTMENT
Attorneys for Defendant
100 Church Street
New York, NY 10007

OMAR J. SIDDIQI, ESQ.

HON. LETITIA JAMES
New York State Attorney General
Attorneys for Defendant
The Capitol
Albany, NY 12224

C. HARRIS DAGUE, ESQ.
Ass't Attorney General

DAVID N. HURD
United States District Judge
MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
On August 19, 2016, plaintiffs Derrick Brooks, Clifton DeMeco, and Brian Blowers
(collectively "plaintiffs") filed a class action complaint against defendant New York State
Office of Temporary and Disability Assistance ("OTDA") Commissioner Samuel D. Roberts
(the "Commissioner" or "defendant"). As relevant here, OTDA is the agency designated by
the United States Department of Agriculture ("USDA") as responsible for administering
federal Supplemental Nutrition Assistance Program ("SNAP") benefits, sometimes known as
food stamps, to qualifying low-income residents in New York State.
Plaintiffs' class complaint alleged that the Commissioner's implementation of a new
federal rule that imposed a three-month time limit on the receipt of SNAP benefits by
able-bodied adults without dependents ("ABAWDs") who did not meet certain work
requirements violated Constitutional Due Process and the federal statutory law governing the
SNAP benefits program.
Among other things, plaintiffs alleged that the Commissioner failed to provide
adequate notice to SNAP recipients about (1) the ABAW D time limit, (2) the work rule
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Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 3 of 19

requirements, (3) the conditions that would exempt an individual from the ABAWD rules, or
(4) the conditions under which "good cause" would exist for non-compliance with those new
rules. Plaintiffs sought declaratory and injunctive relief under 42 U.S.C. § 1983 and the
federal statutory law governing the SNAP program.
On August 23, 2016, plaintiffs moved for class certification under Federal Rule of Civil
Procedure ("Rule") 23 and for a preliminary injunction under Rule 65. Dkt. Nos. 9-10. The
Commissioner opposed plaintiffs' requests and cross-moved to dismiss the complaint in its
entirety under Rule 12(b)(6) for failure to state plausible claims for relief and under Rule
12(b)(7) for failure to join the USDA as a necessary party. Dkt. No. 21.
After full briefing on these motions, the Commissioner advised the Court that OTDA
had revised the language in the written notices provided to SNAP applicants and recipients
and requested permission to submit supplemental briefing in light of the revisions. Dkt. No.
33. That request was granted. Dkt. No. 36. With the benefit of the parties' supplemental
briefing on the adequacy of the revised notices, the Court heard argument on the
cross-motions on November 30, 2016 in Utica, New York. Decision was reserved.
On May 5, 2017, the Court granted in part and denied in part the Commissioner's
12(b)(6) motion to dismiss, denied the Commissioner's 12(b)(7) motion after concluding the
USDA was not a necessary party, and denied plaintiffs' motions for class certification and for
a preliminary injunction. Brooks v. Roberts, 251 F. Supp. 3d 401, 437 (N.D.N.Y. 2017).
As relevant here, Brooks held that plaintiffs were likely to succeed on several of their
statutory and process-related claims regarding lack of adequate notice but found that they
had failed to show irreparable harm because they could "immediately reestablish eligibility by
reapplying for benefits." Id. at 428, 432-33. Brooks also held that plaintiffs met all four of the
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Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 4 of 19

Rule 23(a) requirements class certification but concluded it was unnecessary to formally
certify any class because the Commissioner had represented "that he will apply any relief
obtained by plaintiffs in this action across the board to all members of the proposed
class." Id. at 417-421.
Thereafter, the parties initially engaged in written discovery in the form of document
productions and interrogatory demands. Dague Decl., Dkt. No. 102-1 ¶ 12. Beginning in
January of 2018, the parties began negotiating with an eye toward settlement. Id.; see also
Antos Decl., Dkt. No. 99-1 ¶ 5. The parties continued negotiating the terms of a settlement
throughout 2018 and well into 2019. See, e.g., Dkt. Nos. 73, 75, 77, 79, 81, 83, 85. As the
Commissioner's periodic written status updates make clear, the "nuance and complexity of
the matters involved" necessitated multiple meetings, conference calls, and the exchange of
position statement letters. Dkt. Nos. 73, 81.
On June 14, 2019, the parties notified the Court that they had reached a settlement
agreement on all of the remaining claims and submitted the matter for Court approval. Dkt.
Nos. 87-88. Among other things, this agreement (1) certified a statewide class of SNAP
recipients who had their benefits reduced or terminated for failure to meet an ABAWD work
requirement during a discrete time period; (2) directed certain changes to the language found
in written notices to SNAP recipients; (3) directed defendant to issue policy guidance and
other information to local social services districts; and (4) provided specific relief to each of
the three named plaintiffs.
On September 17, 2019, after holding a fairness hearing in open court, the parties'
settlement was approved. Dkt. Nos. 90-93. Thereafter, the parties tried to reach an
agreement on attorneys' fees and costs. Dkt. Nos. 94-95. W hen that failed, the Court set a
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briefing schedule on plaintiffs' fee request. Dkt. No. 97.
On June 26, 2020, plaintiffs moved under 42 U.S.C. § 1988 for an award of
reasonable attorneys' fees. Dkt. Nos. 99. Plaintiffs have also moved for an award of costs
under Rule 54. Dkt. No. 98. The Commissioner has opposed plaintiffs' fee request, but not
their request for costs. Dkt. No. 102. Plaintiffs have replied. Dkt. No. 103. Both motions will
be considered on the basis of the submissions without oral argument.
II. DISCUSSION
In their opening brief, plaintiffs seek an award of attorneys' fees in the amount of
$367,163.82. Pls.' Mem., Dkt. No. 99-23 at 8. 2 This figure is broken down into more detail in
plaintiffs' supporting submissions: $161,303.67 is attributable to 722.285 hours of work done
by the Empire Justice Center and $205,860.15 is attributable to 867.29 hours of work done
by the National Center on Law and Economic Justice. Antos Decl., Dkt. No. 99-1 ¶¶ 15-16.
As plaintiffs explain, these totals already include (1) a write-off of any time worked by
"five of the seven law students who worked on the case"; (2) a 50% write-down on time spent
for travel; and (3) a 10% across-the-board reduction that accounts for "any duplication
among multiple counsel." Pls.' Mem. at 12. Notably, however, the $367,163.82 does not
account for costs.
Plaintiffs have included in their submissions a chart that better illustrates the details of
the fee request and also includes a partial breakdown of their request for costs:

2

Pagination corresponds to CM/ECF.
-5-

Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 6 of 19

Empire Justice Center
Hourly
Rate

Hours
Worked

Value of
Time Worked

Billing
Judg.
Reducs.

Travel
Reducs. @
50%

Total
Hours
Charged

Presumptively
Reasonable
Fee

Attorneys
Akhtar (2008)

$250

329.50

$82,375.00

4.125

325.375

$81,343.75

Antos (1979)

$350

187.33

$65,565.50

5.25

182.08

$63,728.00

Burke (2014)

$200

82.25

$16,450.00

2.205

80.045

$16,009.00

Dellinger (1981)

$350

1.75

$612.50

0

1.75

$612.50

Hassburg (1992)

$300

1.58

$474.00

0

0

$-

Hetherington (1975)

$350

12.08

$4,228.00

0

12.08

$4,228.00

Paralegals and Law Students
Mobley

$110

61.50

$6,765.00

1

60.5

$6,655.00

Vanasdale

$110

35.83

$3,941.30

0.875

34.955

$3,845.05

Jain

$110

2.75

$302.50

0

0

$-

Jones

$110

20.17

$2,218.70

0

20.17

$2,218.70

Franklin

$110

11.58

$1,273.80

11.58

0

0

$-

Nelson

$110

0.75

$82.50

0.75

0

0

$-

Petersen

$110

0.75

$82.50

0.75

0

0

$-

Schmitt

$110

5.33

$586.30

0

5.33

$586.30

Williamson

$110

6.83

$751.30

1

0

$-

2.75

5.83

$185,708.90

722.285

$179,226.30

10% reduction

$17,922.63

Empire fees

$161,303.67

costs

$145.34

Empire Total

$161,449.01

National Center for Law and Economic Justice
Hourly
Rate

Hours
Worked

Value of
Time Worked

Billing
Judg.
Reducs.

Travel
Reducs. @
50%

Total
Hours
Charged

Presumptively
Reasonable
Fee

Attorneys
Bass (1980)

$350

126.53

$44,285.50
-6-

0

126.53

$44,285.50

Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 7 of 19

Cohan (1979)

$350

17.00

$5,950.00

0

17

$5,950.00

Deabler (2015)

$200

484.16

$96,832.00

8.38

475.78

$95,156.00

Fajana (1993)

$300

69.02

$20,706.00

0

69.02

$20,706.00

Mannix (1975)

$350

94.40

$33,040.00

0

94.4

$33,040.00

Tasheff (1985)

$350

84.56

$29,596.00

0

84.56

$29,596.00

867.29

$228,733.50

10% reduction

$22,873.35

NCLEJ Fees

$205,860.15

costs

$1,101.97

NCLEJ Total

$206,962.12

Combined Total

$368,411.13

$230,409.50

See Antos Decl. at p. 7.
In opposition, the Commissioner acknowledges that plaintiffs are entitled "to some
modest degree of fees from having obtained some minor, as compared to their original
requested relief, concessions in settlement." Def.'s Opp'n Dkt. No. 102 at 4. However,
defendant argues that plaintiffs "overstaffed the case and duplicated work among two
separate firms — both of which had a redundant hand in every filing, conference and
activity." Id. at 3. Thus, in defendant's view, the Court should impose an across-the-board
reduction in fees of 70%. Id. at 4.
In reply, plaintiffs concede that the Commissioner correctly identified some "minimal
errors" in the billing of work performed by paralegal Matthew Mobley and attorney Marc
Cohan and acknowledge that the requested fee award should be reduced by $1788.70. Pls.'
Reply, Dkt. No. 103 at 14; see also Antos Reply Decl., Dkt. No. 103-1 ¶ 14 (reducing
Mobley's time), ¶ 18 (reducing Cohan's time).

-7-

Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 8 of 19

However, plaintiffs defend the remainder of their requested fees—they insist that they
achieved substantial changes to OTDA's written notice as well as other systemic changes as
a result of this complex litigation. Pls.' Reply at 6-11. Plaintiffs also argue that they are
entitled to fees for work performed on the pre-answer motion practice even though it did not
result in preliminary relief. Id. Finally, plaintiffs maintain that they staffed the case
appropriately: junior attorneys performed most of the work, and consulted with more senior
attorneys on a more limited basis. Id.
A. Attorney's Fees
A court may award reasonable attorney fees to the "prevailing party" in a § 1983
action. 42 U.S.C. § 1988(b); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (explaining that
courts cannot depart from the so-called "American Rule" for fees absent some "express
statutory authorization to the contrary"). "Determining whether an award of attorney's fees is
appropriate requires a two-step inquiry." Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996).
1. Prevailing Party
"First, the party must be a 'prevailing party' in order to recover." Pino, 101 F.3d at
237. "A party is considered a prevailing party for purposes of awarding attorney's fees
under § 1988 if the party 'succeed[ed] on any significant issue in litigation which achieves
some fo the benefit the parties sought in bringing suit.'" Osterweil v. Bartlett, 92 F. Supp. 3d
14, 23 (N.D.N.Y. 2015) (D'Agostino, J.) (quoting Farrar v. Hobby, 506 U.S. 103, 109 (1992)).
"To qualify for attorney's fees, there must be a 'judicially sanctioned change in the legal
relationship of the parties.'" Id. (quoting Kirk v. N.Y. State Dep't of Educ., 644 F.3d 134, 137
(2d Cir. 2011)).
"In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially
-8-

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alters the legal relationship between the parties by modifying the defendant's behavior in a
way that directly benefits the plaintiff." Osterweil, 92 F. Supp. 3d at 23 (quoting Farrar, 506
U.S. at 111-12. Section 1988 "has been interpreted to create a strong preference in favor of
the prevailing party's right to fee shifting," and therefore a prevailing party "'should ordinarily
recover an attorney's fee unless special circumstances would render such an award
unjust.'" Id. (quoting Wilder v. Bernstein, 965 F.2d 1196, 1201-02 (2d Cir. 1992)).
The Commissioner acknowledges that plaintiffs prevailed in some measure but argue
that the degree of their success was modest at best. Defs.' Opp'n at 7. Upon review,
however, the Court agrees with plaintiffs that they obtained an "excellent result" in this
suit. As the Second Circuit has explained, "[i]t is sufficient that the plaintiff succeeded on any
significant issue in the litigation, regardless of the magnitude of the relief obtained." Hines v.
City of Albany, 613 F. App'x 52, 53 (2d Cir. 2015) (summary order) (cleaned up).
As relevant here, "[a] plaintiff involved in litigation ultimately resolved by settlement
may be considered a prevailing party if the relief obtained is 'of the same general type' as the
relief sought." Baird, 219 F. Supp. 2d at 518 (quoting Raishevich v. Foster, 247 F.3d 337,
345 (2d Cir. 2001)). Plaintiffs' putative class complaint and request for preliminary relief were
based on defendant's alleged failure to provide legally adequate notice of the ABAWD
rules. And in Brooks, the Court concluded that plaintiffs were likely to succeed on the merits
of several of those process-related claims. 251 F. Supp. 3d at 417-21. Although Brooks
dismissed several of plaintiffs' claims, the parties' carefully negotiated class settlement
resulted in significant improvements in defendant's procedures and in specific relief to the
three named plaintiffs.

-9-

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2. Reasonableness
Second, "the requested fee must also be reasonable." Pino, 101 F.3d at 237. "To
determine a reasonable amount of attorneys' fees, courts use the lodestar method—the
product of a reasonable hourly rate and the hours reasonably spent on the case." United
States ex rel. Rubar v. Hayner Hoyt Corp., 306 F. Supp. 3d 478, 488 (N.D.N.Y.
2018) (Sharpe, J.) (applying lodestar calculation to False Claims Act award); see also
Johnson v. Mauro, 2019 WL 5842765, at *1 (N.D.N.Y. Nov. 7, 2019) (Sannes, J.) (applying
lodestar calculation to § 1988 fee request).
Under the lodestar approach, the "reasonable hourly rate" is determined by reference
to "what a reasonable, paying client would be willing to pay." Arbor Hill Concerned Citizens
Neighborhood Ass'n v. County of Albany ("Arbor Hill"), 522 F.3d 182, 184 (2d Cir. 2008)). As
the Second Circuit has explained, "the reasonable, paying client" is one "who wishes to pay
the least amount necessary to litigate the case effectively." Id.
To make that determination, the district court should consider a number of factors,
including but not limited to:
the complexity and difficulty of the case, the available expertise and
capacity of the client's other counsel (if any), the resources required
to prosecute the case effectively (taking account of the resources
being marshaled on the other side but not endorsing scorched earth
tactics), the timing demands of the case, whether an attorney might
have an interest (independent of that of his client) in achieving the
ends of the litigation or might initiate the representation himself,
whether an attorney have initially acted pro bono (such that a client
might be aware that the attorney expected low or non-existent
remuneration), and other returns (such as reputation, etc.) that an
attorney might expect from the representation.
Arbor Hill, 522 F.3d at 184.
Going beyond this non-exclusive list of factors, district courts enjoy substantial
- 10 -

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discretion in determining an appropriate fee award, and "may use estimates based on their
overall sense of a suit." Rubar, 306 F. Supp. 3d at 489; see also Fox v. Vice, 563 U.S. 826,
838 (2011) ("The essential goal in shifting fees . . . is to do rough justice, not to achieve
auditing perfection."). Indeed, a district court may even use a "percentage deduction of the
requested fees 'as a practical means of trimming fat from a fee application[.]'" Rubar, 306 F.
Supp. 3d at 489 (quoting McDonald ex rel. Prendergast v. Pension Plan of the NYSA-ILA
Pension Tr. Fund, 450 F.3d 91, 96 (2d Cir. 2006)).
i. Hourly Rates
Plaintiffs seek $350 per hour for the "very experienced" attorneys with greater than
thirty years' experience (Antos, Dellinger, Hetherington, Feldman, Bass, Tasheff, Mannix,
and Cohan); $300 per hour for the "experienced" attorneys with between twenty and thirty
years' experience (Hassberg and Fajana); $250 per hour for the "senior associate" attorneys
with between twelve and twenty years' experience (Akhtar); $200 per hour for the "recently
admitted" attorneys (Burke and Deabler-Meadows); and $110 per hour for two paralegals
(Vanasdale and Mobley) and two law students (Schmitt and Jones). Antos Decl. ¶ 18;
Deabler-Meadows Decl., Dkt. No. 99-14 ¶ 14. Plaintiffs have submitted time records for
these individuals as well as resumes establishing their legal and other relevant experience.
In determining a reasonable hourly rate, "[t]he Second Circuit has instructed district
courts to consider 'all case-specific variables' including factors set forth in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974)." Torcivia v. Suffolk County,

- 11 -

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437 F. Supp. 3d 239, 251 (E.D.N.Y. 2020).3 However, the trial court "need not robotically
recite and make separate findings as to all twelve of the Johnson factors." Id. (cleaned up).
Under the "forum rule," the reviewing court generally applies the prevailing hourly rate
in the district in which it sits to calculate a presumptively reasonable fee. Osterweil, 92 F.
Supp. 3d at 26. Thus, "[f]ees should not be awarded at higher out-of-district rates unless a
reasonable client would have selected out-of-district counsel because doing so would
likely . . . produce a substantially better net result." Bergerson v. N.Y. State Office of Mental
Health, 652 F.3d 277, 290 (2d Cir. 2011) (citation omitted).
Plaintiffs have offered a declaration in support of their claim that the requested hourly
rates are charged by lawyers with similar experience located within the Northern District of
New York. Privitera Decl., Dkt. No. 99-13 ¶¶ 4-8. Plaintiffs have also offered recent opinions
in which courts in this District have endorsed similar hourly rates for attorneys with similar
experience. Pls.' Mem. at 10-11.
The Commissioner argues that these rates are "exceedingly high." Def.'s Opp'n at 16.
In defendant's view, the high hourly rates simply cannot be squared with the "duplication of
work, overstaffing, multiple levels of editing and rewriting, constant conference calls and
meetings with four, five six and more lawyers, and high number of hours to complete projects
recognized in this circuit as taking far less time." Id. at 17.
In particular, the Commissioner emphasizes that a $200 per hour rate for Burke and

3

The twelve Johnson factors are: "(1) the time and labor required; (2) the novelty and difficulty of
the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6)
whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8)
the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the 'undesirability' of the case; (11) the nature and length of the professional relationship with
the client; and (12) awards in similar cases." Torcivia, 437 F. Supp. 3d at 251 n.3 (citations omitted).
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Deabler-Meadows is too high because the majority of hours these two recent graduates
billed were during 2016, 2017, and 2018, years when both attorneys had between one and
three years' experience. Def.'s Opp'n at 17-18. Defendant also contends that $110 per hour
for paralegal work is excessive, especially when a review of the bills indicates that most of
these billings were "clerical" in nature. Id. at 18.
Upon review, the Court agrees in part with the Commissioner and will reduce some of
the hourly rates accordingly. "For recent cases in this District, hourly rates have ranged from
$250 to $325 for partners of a firm." Broadcast Music, Inc. v. DeJohn's on Lark, Inc., 2020
WL 1986903, at *7 (N.D.N.Y. Apr. 27, 2020) (Scullin, J.) (collecting cases). As Judge Scullin
recently concluded in Broadcast Music, $350 per hour is a reasonable hourly rate for
attorneys with thirty or more years' experience. Id. Plaintiffs' request for $300 per hour for
the attorneys with between twenty and thirty years' experience, and for $250 per hour for the
attorneys with between twelve and twenty years' experience, are also reasonable and will be
approved. See, e.g., Citizens Bank, N.A. v. Krolak, 2019 WL 3304556, at *4 (N.D.N.Y. July
23, 2019) (awarding $325 per hour to attorney with 18 years' experience and $275 per hour
to attorney with 10 years' experience).
However, $200 per hour for the "recently admitted" attorneys is slightly too high for this
District. To take one example, Judge D'Agostino recently reduced the hourly rate of an
attorney with fewer than four years of experience from $240 per hour to $120 per
hour. Osterweil, 92 F. Supp. 3d at 28. Accordingly, the Court finds that a rate of $150 per
hour is more appropriate for these "recently admitted attorneys."
The same is true of plaintiffs' request for $110 per hour for the paralegals and law
students. "Courts in this District have routinely held that $80 to $90 per hour is an
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appropriate rate for paralegals." Broadcast Music, Inc., 2020 WL 1986903 at *7 (reducing
request by "Managing Clerk" to $90 per hour); see also Williams v. N.Y. City Housing Auth.,
975 F. Supp. 317, 326 (S.D.N.Y. 1997) ("A law student's time is compensable in an award of
attorney fees at the same rate as a paralegal."). Accordingly, the Court finds that a rate of
$90 per hour is more appropriate for the paralegals and law students. These changes will be
reflected in an adjusted chart located in the conclusion section of this opinion.
ii. Hours Worked
"The fee applicant also bears the burden of documenting the hours spent by counsel,
and the reasonableness thereof." Johnson, 2019 WL 5842765, at *7 (citation omitted). "In
determining a reasonable fee, the district court should exclude . . . hours that were not
reasonably expended, including hours that are excessive redundant, or otherwise
unnecessary." Osterweil, 92 F. Supp. 3d at 28 (cleaned up).
"The relevant inquiry for the court '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.'" Osterweil, 92 F. Supp. 3d at 28 (quoting
Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). However, "[a] district court is not
obligated to undertake a line-by-line review of a fee application." Torcivia, 437 F. Supp. 3d at
253. "In excluding hours that were not reasonably expended, the court has discretion simply
to deduct a reasonable percentage of the number of hours claims as a practical means of
trimming fact from a fee application." Osterweil, 92 F. Supp. 3d at 28 (cleaned up).
Plaintiffs contend that billing for 1,589.58 hours is reasonable because "not all of
those attorneys reflected in the billing worked on the case at the same time." Pls.' Mem. at
11. As plaintiffs explain, several senior attorneys retired over the course of the litigation, and
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several others had only "very specific and limited roles." Id. at 11-12. Plaintiffs also point out
that the case was only staffed with one paralegal at a time—Mobley replaced Vanasdale at
the end of 2016. Id. at 12. Even so, plaintiffs represent that they have already voluntarily cut
their bill by 10% to account for the fact that multiple counsel were involved in this case. Id.
The Commissioner argues that plaintiffs overstaffed and brazenly overbilled for time
on the few discrete projects that were actually necessary to pursue this case from beginning
to end: the drafting of the complaint, the briefing on the motions for preliminary relief and
class certification and in opposition to the motion to dismiss, and the hours spent related to
settlement activities. Def.'s Opp'n at 9-15.
For instance, the Commissioner points out that plaintiffs have billed 195.49 hours for
the preliminary motion practice even though "courts in this district and circuit have similarly
found billings for motion practice in excess of one hundred hours to be excessive." Defs.'
Mem. at 13. Defendant also points out that plaintiffs billed 86.98 hours for drafting the
original class complaint even though courts in this District usually find that anything over 25
hours would be excessive. Id. at 14. Defendant also argues that the billing shows that each
conference call and meeting involved between four and eleven lawyers. Id. at 12.
Finally, the Commissioner argues that most of plaintiffs' paralegal billings are
improper. Def.'s Mem. at 15-16. As defendant explains, plaintiffs routinely billed for the
presence of a paralegal "at all settlement conferences, certain court conferences and
conference calls and meetings already staffed with four or more lawyers." Id. Plaintiffs also
billed for "debrief" sessions where there was no discernible need for a paralegal. Id.
Plaintiffs reply that they staffed this case at the level necessary to litigate this kind of
complex class action dispute involving difficult questions of administrative law. See Pls.'
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Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 16 of 19

Reply at 9. According to plaintiffs, defendant "actively misrepresents" plaintiffs' billing efforts,
and his own table is "riddled with errors and references numerous individuals for whom
Plaintiffs have not billed . . . and eight individuals who simply do not exist." Id.
Upon review, the Court agrees in part with the Commissioner. "The party seeking
attorney's fees must support the number of hours expended with contemporaneous time
records . . . [that] specify, for each attorney, the date, the hours expended, and the nature of
the work done." Anello v. Anderson, 191 F. Supp. 3d 262, 283 (W .D.N.Y. 2016) (cleaned
up). Plaintiffs' submissions undoubtedly comply with this requirement.
This case involved complex questions about the interplay of state and federal
administrative law. Even after the parties agreed that settlement was the top priority, the
Commissioner's periodic status updates make clear that there were numerous contested
issues to work through. The Court rejects the suggestion made in defendant's papers that
the motion for class certification and for preliminary relief were unnecessary or inappropriate
in light of the fact that OTDA undertook revisions to the written notices at or around the same
time. If anything, there is evidence that the class litigation and preliminary motion practice
filed by plaintiffs encouraged defendant to complete these revisions. Cf. Rozell v.
Ross-Holst, 576 F. Supp. 2d 527, 538 (S.D.N.Y. 2008) ("Reasonable paying clients may
reject bills for time spent on entirely fruitless strategies while at the same time paying their
lawyers for advancing plausible though ultimately unsuccessful arguments.").
However, an independent review of the billing records does show that some of the
entries may fairly be characterized as devoting excessive time to certain tasks or duplicative
in the sense that a team of lawyers were involved in an activity that could have been
accomplished just as well with leaner staffing. Accordingly, a lesser across-the-board
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Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 17 of 19

reduction of 30% will be applied to the fee award.
B. Costs
Plaintiffs have also requested $1,247.31 in costs. Under § 1988, plaintif fs are entitled
to recover costs in addition to attorney's fees. Luessenhop v. Clinton County, 558 F. Supp.
2d 247, 271 (N.D.N.Y. 2008) (Treece, M.J.). The Commissioner does not appear to dispute
plaintiffs' request for costs, and upon an independent review the request appears to be
reasonable and the type of "out of pocket disbursements which are ordinarily charged to
clients." U.S. Football League v. Nat'l Football League, 887 F.2d 408, 416 (1989); see also
Johnson, 2019 WL 5842765, at *10 (identifying costs as "out-of-pocket disbursements" that
are distinguishable from "routine office overhead"). Accordingly, plaintiffs' motion for costs
will be granted.
IV. CONCLUSION
Plaintiffs' requested rate of $350 per hour for Antos, Dellinger, Hetherington, Feldman,
Bass, Tasheff, Mannix, and Cohan will be approved. Plaintiffs' requested rate of $300 per
hour Hassberg and Fajana will be approved. Plaintiffs' requested rate of $250 per hour for
Akhtar will be approved. However, plaintiffs' requested rate of $200 per hour for Burke and
Deabler-Meadows will be reduced to $150 per hour and plaintif fs' requested rate of $110 per
hour for Vanasdale, Mobley, Schmitt, and Jones will be reduced to $90 per hour. After
recalculating those rates, the Court will apply a 30% across-the-board reduction in lieu of
plaintiffs' self-imposed 10% reduction. The Court will also reduce Mobley's time by 1.8 hours
to eliminate a duplicative entry, Antos Reply Decl. ¶ 14, and Cohan's time by 2.7 hours to
eliminate a duplicative entry, id. ¶ 18.
As a result, the attorney's fees are awarded as follows:
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Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 18 of 19

Empire Justice Center
Hourly
Rate

Hours
Worked

Value of
Time Worked

Billing
Judg.
Reducs.

Travel
Reducs. @
50%

Total
Hours
Charged

Lodestar
Amount

Attorneys
Akhtar (2008)

$250

329.50

$82,375.00

4.125

325.375

$81,343.75

Antos (1979)

$350

187.33

$65,565.50

5.25

182.08

$63,728.00

Burke (2014)

$150

82.25

$12,337.50

2.205

80.045

$12,006.75

Dellinger (1981)

$350

1.75

$612.50

0

1.75

$612.50

Hassburg (1992)

$300

1.58

$474.00

0

0

$-

Hetherington (1975)

$350

12.08

$4,228.00

0

12.08

$4,228.00

Paralegals and Law Students
Mobley

$90

59.7

$5,373.00

1

60.5

$5,445.00

Vanasdale

$90

35.83

$3,224.70

0.875

34.955

$3,145.95

$110

2.75

$302.50

0

0

$-

$90

20.17

$1,815.30

0

20.17

$1,815.30

Franklin

$110

11.58

$1,273.80

11.58

0

0

$-

Nelson

$110

0.75

$82.50

.75

0

0

$-

Petersen

$110

0.75

$82.50

.75

0

0

$-

$90

5.33

$479.70

0

5.33

$479.70

$110

6.83

$751.30

1

0

$-

Jain
Jones

Schmitt
Williamson

2.75

5.83

$185,708.90

722.285
30% reduction
Empire fees
costs
Empire Total

$172,804.95
$51,841.49
$120,963.46
$145.34
$121,108.80

National Center for Law and Economic Justice
Hourly
Rate

Hours
Worked

Value of
Time Worked

Billing
Judg.
Reducs.

Travel
Reducs. @
50%

Total
Hours
Charged

Lodestar
Amount

Attorneys
Bass (1980)

$350

126.53

$44,285.50
- 18 -

0

126.53

$44,285.50

Case 1:16-cv-01025-DNH-TWD Document 104 Filed 11/19/20 Page 19 of 19

Cohan (1979)

$350

14.3

$5,005.00

0

17

$5,950.00

Deabler (2015)

$150

484.16

$72,624.00

8.38

475.78

$71,367.00

Fajana (1993)

$300

69.02

$20,706.00

0

69.02

$20,706.00

Mannix (1975)

$350

94.40

$33,040.00

0

94.4

$33,040.00

Tasheff (1985)

$350

84.56

$29,596.00

0

84.56

$29,596.00

867.29

$204,944.50

$230,409.50

30% reduction

$61,483.35

NCLEJ Fees

$143,461.15

costs
NCLEJ Total

$1,101.97
$144,563.12

This results in a total attorney's fee award of $264,424.16, and a total costs award of
$1,247.31, for a total award of $265,671.92.
Therefore, it is
ORDERED that
1. Plaintiffs' motion for attorney's fees is GRANTED in part;
2. Plaintiffs' motion for costs is GRANTED; and
3. Plaintiffs are granted $265,671.92 in attorney's fees and costs.
The Clerk of the Court is directed to enter judgment accordingly and close the file.
IT IS SO ORDERED.

Dated: November 19, 2020
Utica, New York.

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