Rai et al v. WB Imico Lexington Fee, LLC

Filing 121

MEMORANDUM OPINION AND ORDER re: 113 MOTION for Attorney Fees . filed by WB Imico Lexington Fee, LLC. The Rai Plaintiffs are directed to pay WB Imico $415,252.11 in attorneys' fees and $11,038.79 in costs. The Clerk of the Court is directed to terminate the motion (Dkt. No. 113 ), enter judgment, and close this case. (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 3/31/2017) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:~~~-f-----\-~~~­

DATE FILED:

:if ?t} t 1

A VIRAL RAI and SANGEETARAI,
Plaintiffs and Counter-Defendants,
- against WB IMICO LEXINGTON FEE, LLC and
GARY BARNETT,

MEMORANDUM
OPINION & ORDER
09 Civ. 9586 (PGG)

Defendants and Counter-Claimants.

PAUL G. GARDEPHE, U.S.D.J.:
Plaintiffs Aviral Rai and Sangeeta Rai (the "Rais" or the "Rai Plaintiffs") are
purchasers of a condominium unit in "The Lucida," a condominium development in Manhattan
sponsored and developed by Defendant WB Imico Lexington Fee, LLC ("WB Imico") and its
principal, Gary Barnett. Having fully prevailed against the Rais in this litigation, WB Imico has
moved for an award of attorneys' fees and costs pursuant to a fee-shifting provision in the Rais'
purchase agreement. 1 (Dkt. No. 113)2 WB Imico seeks $444,059.79 in attorneys' fees and costs
incurred over six years of litigation against the Rais and four other condominium purchasers.
For the reasons stated below, WB Imico's motion for an award of attorneys' fees
and costs will be granted.

1

Although the Rai Plaintiffs also sued Gary Barnett, the instant application for attorneys' fees
and costs is brought by WB Imico only. (See Notice of Motion (Dkt. No. 113) at l; Def. Moving
Br. (Dkt. No. 114) at 5)
Unless otherwise indicated, all docket citations are to the docket in Rai v. WB Imico Lexington
Fee, LLC, 09 Civ. 9586 (PGG). All page numbers referenced correspond to the page numbers

2

designated by this District's Electronic Case Filing system.

BACKGROUND
I.

FACTS3
The Lucida is a condominium development located at 151 East 85th Street, New

York, New York. (Am. Cmplt. (Dkt. No. 7) ~ 1) On November 12, 2007, the Rai Plaintiffs
executed a purchase agreement for a condominium unit in The Lucida (the "Purchase
Agreement") and paid WB Imico a deposit of$643,119.90 - constituting 15% of the purchase
price of the unit - pursuant to that agreement. (Id.

~~

20-21)

On November 10, 2009, within two years of executing the Purchase Agreement,
the Rai Plaintiffs sent a notice to WB Imico seeking to rescind the Purchase Agreement due to
WB Imico's alleged violations of the Intcrstr..tc Land Saies Full Disclosure. Act, 15 U.S.C.
§§ 1701-1720 ("ILSA"). (See id.~~ 46, 50-79) In addition to the rescission of the Purchase
Agreement, the Rai Plaintiffs sought the return of their deposit.

II.

(Id.~~

48-49, 55, 67, 77)

PROCEDURAL HISTORY
The procedural history of this matter and related cases is long and complex.
On November 18, 2009, the Rai Plaintiffs commenced this action, alleging that

WB Imico failed to provide them with a printed property report in advance of signing the
Purchase Agreement, in violation of Section 1703(a)(l)(B) of the ILSA. (Cmplt. (Dkt. No. 1)
~~

30-34) On the basis of this violation, the Rai Plaintiffs sought to rescind the Purchase

Agreement and recover their $643,119.90 deposit.

(Id.~~

48-49, 55, 67, 77) That same day,

four other actions were filed in this District against WB lmico by other purchasers of

3

The Court's factual statement is drawn from the Rai Plaintiffs' Amended Complaint. (Dkt.
No. 7)
2

condominiums at The Lucida (the "Other Plaintiffs"). 4 In all four actions, plaintiffs alleged that
their purchase agreements violated (1) Section 1703(d)(l) of the ILSA, because the purchase
agreements did not include a tax lot number for the purchased unit, and (2) Section l 703(d)(3) of
the ILSA, because the purchase agreements did not clearly communicate certain purchaser rights
in the event of the purchaser's default. (See 09 Civ. 9609 (Dkt. No. l); 09 Civ. 9610 (Dkt. No.
l); 09 Civ. 9611 (Dkt. No. l); 09 Civ. 9612 (Dkt. No. 1)) Like the Rai Plaintiffs, the Other
Plaintiffs sought to rescind their purchase agreements and recover their deposits based on the
alleged violations of the ILSA. (See id.)
On January 28, 2010, the Rais filed an Amended Complaint that repeated their
ILSA, Section l 703(a)(l )(B) claim concerning the property report (Am. Cmplt. (Dkt. No. 7) ~~
50-57), but added claims for violations oflLSA, Sections 1703(d)(l) (tax lot number) and
1703(d)(3) (rights in event of default). (!ft~~ 58-79 ("Counts II and III")). The Rais' new
claims mirrored those asserted by the Other Plaintiffs in their respective complaints. (Compare
id., with 09 Civ. 9609 (Dkt. No. 1) ~~ 43-64; 09 Civ. 9610 (Dkt. No. 1) ~'- 43-64; 09 Civ. 9611
(Dkt. No. 1) ~~ 43-64; 09 Civ. 9612 (Dkt. No. 1) ~~ 43-64)) Because the Rai Plaintiffs'
Amended Complaint now repeated both claims presented in the Other Plaintiffs' complaints thereby raising common issues oflaw and fact - this Court's subsequent orders and opinions
addressed all five cases together throughout the litigation.

4

The four other actions are Haskell Limited Inc. v. WB lmico Lexington Fee, LLC, No. 09 Civ.
9609 (PGG), Benhamou v. WB Imico Lexi~1g_t_Q_n_[t&_,_J,LC, No. 09 Civ. 9'510 (PGG), .Bauer v.
WB Imico Lexington Fee, LLC, No. 09 Civ. 9611 (PGG), and Ezzes v. WB Imico Lexington
Fee, LLC, No. 09 Civ. 9612 (PGG). The plaintiffs in these four actions were all represented by
the same lawyers. (See,~. Apr. 7, 2010 Def. Ltr. (Dkt. No. 10) at 2) The Rai Plaintiffs had

different representation, however. (See id.)
3

On May 7, 2010, the Rai Plaintiffs moved for partial summary judgment on
Counts II and III of their Amended Complaint, which addressed the ILSA claims founded on the
failure to provide a tax lot number and to disclose rights in the event of default. (Dkt. Nos. 12,
13) The Other Plaintiffs jointly moved for summary judgment on these same claims, asserted in
their own complaints. (See 09 Civ. 9609 (D1;.t. Nos. 13, 19); 09 Civ. 9610 (Dkt. Nos. 12, 18); 09
Civ. 9611 (Dkt. Nos. 11, 17); 09 Civ. 9612 (Dkt. Nos. 14, 20)) The Rai Plaintiffs and Other
Plaintiffs "submitted virtually identical briefs in support of their separate motions for summary
judgment." (See Apr. 30, 2010 Rai Pltfs. Partial Sum. J. Reply Br. (Dkt. No. 25) at 5) The
briefs raised the same legal arguments - that the condominiums were subject to the ILSA, that
the purchase agreements violated Sections 1703(d)(l) and l 703(d)(3) of the ILSA, and that WB
Imico' s defense relating to the ILSA' s "100-Lot Exemption" did not apply - and did so using
largely identical language and citing the same case law. (See Rai Dkt. No. 13; see also 09 Civ.
9609 (Dkt. No. 19); 09 Civ. 9610 (Dkt. No. 18); 09 Civ. 9611 (Dkt. No. 17); 09 Civ. 9612 (Dkt.
No. 20)) WB Imico cross-moved for summary judgment against all plaintiffs, as to all claims.
Although WB Imico filed two sets of briefs - one set addressed to the Rai Plaintiffs and another
set addressed to the Other Plaintiffs - the briefs were substantially the same, except that in Rai
WB Imico also addressed Count I of the Rai Plaintiffs' Amended Complaint (failure to provide
property report). (Compare Dkt. Nos. 19, 23, with 09 Civ. 9612 (Dkt. Nos. 25, 29))
On December 29, 2010, this Court denied the parties' cross-motions for summary
judgment without prejudice. (Dkt. No. 33) The Court determined that the applicability of the
ILSA's "100-Lot Exemption" was a key issue because - if the exemption applied-the ILSA did
not cover plaintiffs' units. (Id. at 3-4) Because there were factual disputes about the number of
units sold at The Lucida, summary judgment was not appropriate, and this Court directed the

4

parties to conduct additional discovery. (Id. at 5-8) Moreover, on March 2, 2011, the Second
Circuit issued Bodansky v. Fifth on the Park LLC, 635 F.3d 75 (2d Cir. 2011), which addressed
the applicability of the "100-Lot Exemption."
On May 23, 2011, the parties filed renewed cross-motions for summary judgment.
As before, the Other Plaintiffs filed a joint brief, and the Rai Plaintiffs separately moved for
partial summary judgment on their Amended Complaint's Count II (tax lot number) and Count
III (rights in the event of default) - the same claims set forth in the Other Plaintiffs' complaints.
(Dkt. Nos. 38, 43; see also 09 Civ. 9612 (Dkt. No. 57, 63)) In their Notice of Motion, the Rai
Plaintiffs stated that they were "rely[ing] upon the Memorandum of Law filed by [the Other]
Plaintiffs in 09-cv-9609, 09-cv-9610, 09-cv-9611, and 09-cv-9612." (Notice of Motion (Dkt.
No. 38) at 1-2) WB Imico again cross-moved for summary judgment on all of plaintiffs' claims,
including Count I of the Rai Plaintiffs' Amended Complaint (failure to provide property report).
(Dkt. No. 49) WB Imico filed two substantially similar sets of moving briefs, which differed
only to the extent that one set addressed the Rai Plaintiffs' separate claim under Count I
(compare Dkt. No. 49, with 09 Civ. 9612 (Dkt. No. 48)). WB Imico filed a single reply brief on the dockets of the Other Plaintiffs, not the Rai Plaintiffs - addressing together all of plaintiffs'
joint arguments concerning the tax lot P.urnb~r and discl0sure of default rights issues. (See 09
Civ. 9612 (Dkt. No. 54))
On March 19, 2012 - in a single order - this Court granted the motions of the Rai
Plaintiffs and the Other Plaintiffs for summary judgment, and denied WB Imico' s cross-motions
for summary judgment. The Court concluded that the
ILSA applies to condominium units, that the [ILSA's] "100-Lot Exemption" is
not applicable [here], and that WB Imico' s failure to include tax lot numbers in
the purchase agreements constitutes a violation of[the] ILSA that permits
Plaintiffs to rescind the purchase agreements and recover their deposits.
5

(Mar. 19, 2012 Order (Dkt. No. 52) at 3) The Court directed the parties to submit briefing
concerning the plaintiffs' joint application for an award of attorneys' fees, costs, and prejudgment interest under the ILSA. Mat 24 n.9; see also May 15, 2012 Pltfs. Joint Motion for
Attorneys' Fees (Dkt. Nos. 55, 56))
On July 27, 2012, while the plaintiffs' joint motion for an award of attorneys'
fees, costs, and interest was still pending, WB Imico filed a notice of appeal concerning the
Court's March 19, 2012 Order. (See Dkt. No. 61; 09 Civ. 9612 (Dkt. No. 72))
On December 12, 2012, the Second Circuit issued Bacolitsas v. 86th & 3rd
Owner, LLC, 702 F.3d 673 (2d Cir. 2013), in which purchasers of a condominium sought to
revoke their purchase agreement under Section l 703(d)(l) of the ILSA, because it did not
contain a "unit description clause." Bacolitsas, 702 F.3d at 681. The district court had granted
the purchasers' motion for summary judgment, employing reasoning similar to that used in this
Court's March 19, 2012 Order. See id. at 679. The Second Circuit rejected that analysis,
however. Given the Second Circuit's ruling in Bacolitsas, this Court set a briefing schedule for
WB Imico's anticipated motion to vacate the March 19, 2012 Order. (Dkt. No. 69; see also 09
Civ. 9612 (Dkt. No. 74)) In support of its motion to vacate, WB Imico filed one set of briefs
applicable to both the Rai Plaintiffs and the Other Plaintiffs. (Compare Dkt. Nos. 63, 65, 66,
with 09 Civ. 9612 (Dkt. Nos. 75, 77, 78)) The Rai Plaintiffs and Other Plaintiffs filed a joint
brief opposing WB Imico's motion to vacate. (Dkt. No. 67)
On September 27, 2013, this Court granted WB Imico's motion to vacate "to the
extent that this Court's March 2012 decision holds that the purchase agreements at issue violate
[Section] l 703(d)(l) [of the ILSA]," and to the extent that this Court had held "that [the Other
Plaintiffs] are entitled to summary judgment." (Sept. 27, 2013 Order (Dkt. No. 69) at 2-3) The
6

Court further granted WB Imico's cross-motion for summary judgment as to its counterclaims
against the Other Plaintiffs. (Id.) However, the Court denied WB Imico 's cross-motion for
summary judgment as to the Rai Plaintiffs, and held that the Rai Plaintiffs were "entitled to
summary judgment [on Count I of their Amended Complaint], because they were not provided
with a copy of the property report for [their] condominium, in violation of [Section]
1703(a)(l )(B)" of the ILSA. (Id. at 3) The Rais thus - temporarily - prevailed on the one claim
in their Amended Complaint that differed from the claims set forth in the Other Plaintiffs'
complaints. This Court subsequently set briefing schedules for the Rais' application for
attorneys' fees, costs, and pre-judgment interest under the ILSA, and for WB lmico' s application
for an award of attorneys' fees and costs against the Other Plaintiffs pursuant to their purchase
agreements. (Id. at 23) As a result of the Court's resolution of WB Imico's motion to vacate, the
still-pending appeal of this Court's March 19, 2012 Order was withdrawn as moot. (See Dkt.
No. 72; 09 Civ. 9612 (Dkt. No. 83))
On November 4, 2013 - prior to submitting a brief in support of its application for
an attorneys' fee award against the Other Plaintiffs - WB Imico entered into settlement
agreements with each of the Other Plaintiffs. (See 09 Civ. 9609 (Dkt. No. 89); 09 Civ. 9610
(Dkt. No. 83); 09 Civ. 9611 (Dkt. No. 86); 09 Civ. 9612 (Dkt. No. 86)) In each settlement
agreement, the parties agreed to the dismissal of the complaint and counterclaims, and "waive[d]
any right either party may have, in law, equity or contract, to an award of costs or attorneys' fees
in [the] action." (Id.

~~

1, 3) Pursuant to the settlement agreements, WB Imico retained the

Other Plaintiffs' deposits on the condominiums at issue

fuh ~ 2), but "did not recover any of the

attorneys' fees it incurred in litigating" against the Other Plaintiffs. (Dolan D~cl. (Dkt. No. 115)
~

16)

7

On January 17, 2014, while the Rai Plaintiffs' motion for an award of attorneys'
fees was pending, WB Imico filed a notice of appeal from this Court's September 27, 2013
Order. (Dkt. No. 89) The Rai Plaintiffs filed a notice of cross-appeal on February 6, 2014.
(Dkt. No. 90) The Second Circuit dismissed both appeals for lack of jurisdiction, because a final
judgment had not been entered and no exception to the final judgment rule applied. (Dkt. No.
97)
On May 12, 2014, this Court denied the Rai Plaintiffs' motion for attorneys' fees
and costs, but granted them pre-judgment interest on their deposit at the post-judgment statutory
rate. (Dkt. No. 92) Judgment was entered on May 14, 2014. (Dkt. No. 93) WB Imico filed a
notice of appeal, and the Rai Plaintiffs cross-appealed. (Dkt. Nos. 95, 96)
On September 21, 2015, the Second Circuit issued an opinion that (1) affirmed
the judgment of this Court that WB Imico did not violate Section l 703(d)(l) of the ILSA (failure
to provide tax lot number); (2) reversed the judgment of this Court that WB Imico violated
Section 1703(a)(l )(B) by not delivering a property report to the Rais directly; and (3) held that
WB Imico was entitled to retain the Rais' deposit on the condominium unit, as well as any
interest accrued thereon, as a result of the Rais' breach of the Purchase Agreement. Rai v. WB
Imico Lexington Fee, LLC, 802 F.3d 353, 370 (2d Cir. 2015). The Second Circuit remanded the
case for further proceedings.
III.

WB IMICO'S APPLICATION FOR AN
AW ARD OF ATTORNEYS' FEES AND COSTS

On March 17, 2016, WB Imico moved for an award of $444,059.79 in attorneys'
fees and costs pursuant to a fee-shifting provision in the Rai Plaintiffs' Purchase Agreement.
(Dkt. No. 113; Def. Moving Br. (Dkt. No. 114) at 5-6) This figure represents attorneys' fees and

8

costs WB Imico incurred in defending against the claims of all five sets of plaintiffs - both the
Rai Plaintiffs and the Other Plaintiffs. (Id. at 15-16)
The Rai Plaintiffs oppose WB lmico' s motion, contending that it cannot recover
attorneys' fees and costs "allegedly incurred in defending against five separate matters, involving
five separate contracts, and five separate plaintiffs." (Pltf. Opp. Br. (Dkt. No. 119) at 5) The Rai
Plaintiffs further contend that WB Imico's application should be denied because the fee-shifting
provision in the Rais' Purchase

Agr~en1em

(1) ·'does not make the Rai Plaintiffs jointly and

severally liab[le] for all fees incurred ... on any and all related agreements," and (2) makes the
Rai Plaintiffs "only responsible for their distinct, identifiable, and unique attorneys' fees," which
WB Imico cannot now specify, because defense counsel commingled the billing records
applicable to work against the Rai Plaintiffs and work against the Other Plaintiffs. Q4. at 5-6,
14-16) The Rai Plaintiffs argue that the fee application also fails because WB Imico has not
'

"submit[ted] any evidence that the work described in th[e] fee application was reasonable or
necessary, or that the rates charged are reasonable."

ilii at 5, 16-24)

DISCUSSION
I.

WB IMICO IS ENTITLED TO AN AW ARD
OF REASONABLE ATTORNEYS' fEES
WB Imico's application for an award of attorneys' fees and costs is premised on a

fee-shifting provision in the Rai Plaintiffs' Purchase Agreement. (Def. Moving Br. (Dkt. No.
114) at 5-6; Dolan Deel. (Dkt. No. 115) ~ii 2-3) Paragraph 32 of the Rai Plaintiffs' Purchase
Agreement provides that
[the purchaser] shall be obligated to reimburse [WB Imico] for any legal fees and
disbursements incurred by [WB Imico] in defending [its] rights under this
Agreement or, in the event [the purchaser] defaults under this Agreement beyond
any applicable grace period, in canceling this Agreement or otherwise enforcing
[the purchaser's] obligations hereunder.

9

(Dolan Deel. (Dkt. No. 115) ~ 3)
The Rai Plaintiffs argue that "the express language of the fee shifting [provision]
in the Rai Plaintiffs' [Purchase] Agreement does not ... make the Rai Plaintiffs responsible for
fees [related to the] [O]ther [P]laintiffs." (Ptlf. Opp. Br. (Dkt. No. 119) at 10) The Rai Plaintiffs
further argue that, "[a]s a matter of contract, ... [they] are only responsible for their distinct,
identifiable and unique attorneys' fees[, which] ... WB Imico has failed to identify." (Isl at 16)

A.

Attorneys' Fee Awards Based on Contract
"Under the 'American Rule,' it is axiomatic that 'attorneys' fees are not ordinarily

recoverable in the absence of a statute or enforceabie contract providing therefor."' Matsumura
v. Benihana Nat. Corp., No. 06 Civ. 7609 (NRB), 2014 WL 1553638, at *3 (S.D.N.Y. Apr. 17,
2014) (quoting Summit Valley Indus., Inc. v. United Bd. of Carpenters & Joiners, 456 U.S. 717,
721 (1982)). "Parties may override the presumption by contractually agreeing to permit recovery
of attorneys' fees, [however,] in which case 'a federal court will enforce contractual rights to
attorneys' fees ifthe contract is valid under applicable state law."' Id. (quoting McGuire v.
Russell Miller, Inc., 1 F.3d 1306, 1313 (2d Cir. 1993)). In New York, "a contract that provides
for an award of reasonable attorneys' fees to the prevailing party in an action to enforce the
contract is enforceable if the contractual language is sufficiently clear." NetJets Aviation, Inc. v.
LHC Commc'ns, LLC, 537 F.3d 168, 175 (2d Cir. 2008). Indeed, the Second Circuit has stated
that "where a contract authorizes an award of attorneys' fees, such an award becomes the rule
rather than the exception.'' McGuire, 1 F. 3 d at 1313.
Here, the Rai Plaintiffs' Purchase Agreement plainly provides that they "shall be
obligated to reimburse [WB Imico] for any legal fees and disbursements incurred by [WB Imico]
in defending [its] rights under th[e] [Purchase] Agreement." (Dolan Deel. (Dkt. No. 115) ~ 3)
10

This language is "sufficiently clear" to permit WB Imico to recover attorneys' fees and costs it
incurred in litigating against the Rai Plaintiffs. See NetJets Aviation, 537 F.3d at 175.
The Rai Plaintiffs do not challenge the validity of the fee-shifting provision, but
instead dispute whether this provision permits recovery of fees and costs WB Imico incurred in
litigating against the Other Plaintiffs, who each sued WB Imico under separate purchase
agreements. (See Pltf. Opp. Br. (Dkt. No. 119) at 10, 16) Accepting the Rai Plaintiffs' assertion
that the fee-shifting provision in their Purchase Agreement only permits the reimbursement of
fees and costs "incurred by [WB Imico] in defending [its] rights under this Agreement" (Dolan
Deel. (Dkt. No. 115) ~ 3) (emphasis added), WB Imico is seeking no more here.
As discussed above, the Rai Plaintiffs asserted the same two claims raised by the
Other Plaintiffs - as well as an additional third claim - and litigated all three claims on the same
briefing schedule as the Other Plaintiffs. Moreover, throughout the litigation, the Rai Plaintiffs
filed briefs nearly identical to those filed by the Other Plaintiffs, explicitly joined in the briefs
filed by the Other Plaintiffs, or filed a joint brief with the Other Plaintiffs. (See, ~' Apr. 30,
2010 Rai Pltf. Partial Sum. J. Reply Br. (Dkt. No. 25) at 5 (acknowledging, in connection with
first round of summary judgment briefing, that the Rai Plaintiffs and the Other Plaintiffs had
"submitted virtually identical briefs in support of their separate motions for summary judgment,"
and "adopt[ing] and incorporat[ing] by reference the brief submitted on behalf of the Other
[Plaintiffs] in reply to WB Imico's opposition to [the Rai Plaintiffs'] and the Other Plaintiffs'
motion relating to WB Imico's violation of [ILSA] § 1703(d) and its cross-motion on the same
issue"); May 2, 2011 Rai Pltfs. Notice of Motion for Renewed Partial Sum. J. (Dkt. No. 38) at 12 (stating that in support of their renewed motion for summary judgment, the Rai Plaintiffs "shall

rely on the Memorandum of Law filed by the Plaintiffs in 09-cv-9609, 09-cv-9610, 09-cv-9611,

11

and 09-cv-9612, Plaintiffs' Statement of Undisputed Material Facts Pursuant to Local Civil Rule
56.1 (the 'Material Facts') and Appendix to the Material Facts"); May 23, 2011 Rai Pltfs. Opp.
Sum. J. Br. (Dkt. No. 43) at 5 (in connection with the Rai Plaintiffs' opposition to WB Imico's
renewed motion for summary judgmen.t, stating that the Rai "Plaintiffs hereby adapt[] and
incorporate[] the Other Plaintiffs' brief dated and filed May 23, [2011] in opposition to WB
Imico's motion for summary judgment"); May 15, 2012 Joint Attorneys' Fees Br. (Dkt. No. 56)
at 3, 11 Goint brief filed by Rai Plaintiffs and Other Plaintiffs in support of motion for attorneys'
fees, costs, and interest, and referring to ''the[] consolidated actions"); Jan. 25, 2013 Joint Opp.
to Motion to Vacate (Dkt. No. 67) at 2 ("Joint Memorandum of Law" submitted by Rai Plaintiffs
and Other Plaintiffs in opposition to WB Imico's motion to vacate))
Similarly, in addressing the Rai Plaintiffs' arguments, WB Imico consistently
referred the Court to briefing submitted in connection with the Other Plaintiffs' motions (see,
~'

Apr. 8, 2010 Def. Opp. to Partial Sum. J. (Dkt. No. 19) at 16 ("rather than repeating their

briefing on this point, Defendants respectfully refer ... the Court to Point II [and Point III] of
Defendants' memorandum of law in the Related Actions, dated April 8, 2010"); May 7, 2010
Def. Sum. J. Reply Br. (Dkt. No. 23) at 5-6 ("rely[ing] on Defendants' papers in the Related
Actions"); May 2, 2011 Def. Renewed Sum. J. Moving Br. (Dkt. No. 49) at 18-19 (in connection
with WB Imico's renewed motion for summary judgment, "respectfully refer[ ring] ... the Court
to Point II and [Point III] of Defendant's memorandum oflaw in the Related Actions, dated May
2, 2011 ")),or filed one brief directed to both the Rai Plaintiffs and the Other Plaintiffs. (See,
~,June

5, 2012 Def Opp. Attorneys' Fees (Dkt. No. 59) at 5 (addressing in one brief the

plaintiffs' joint brief in support of application for attorneys' fees, costs, and interest); Def.

12

Motion to Vacate Br. (Dkt. Nos. 65, 66) ("Joint Motion to Vacate and for Summary Judgment"
applicable to both Rai Plaintiffs and Other Plaintiffs))
As to the appeals, the first set of appeals were consolidated in the Second Circuit
(see Rai v. WB Imico Lexington Fee, LLC, No. 12-3190 (Dkt. No. 34)), while the second appeal
involved only the Rai Plaintiffs. See Rai v. WB Imico Lexington Fee, LLC, 802 F.3d 353 (2d
Cir. 2015).
In sum, because of the common issues of law and fact, all of the briefing WB
Imico addressed to the "Other Plaintiffs" was directly applicable to the Rai Plaintiffs. Indeed, in
briefing that addressed the Rai Plaintiffs's claims, WB Imico either directed the Court to its
briefing concerning the Other Plaintiffs, or filed one brief that addressed the arguments of both
the Rai Plaintiffs and the Other Plaintiffs. Accordingly, all of the attorneys' fees and costs WB
Imico incurred during these litigations necessarily arose from "defending its rights under [the Rai
Plaintiffs' Purchase] Agreement."
In cases involving the litigation of common claims arising from separate but
similar contracts, courts have permitted the recovery of all legal fees from a single party. See
Omni Consulting Group, Inc. v. Marina Consulting, No. 01 Civ. 51lA,2011WL815101, at *2
(W.D.N.Y. Mar. 2, 2011) (holding co-defendants jointly and severally liable for attorneys' fee
award where defendants had litigated claims under similar contracts that contained identical feeshifting provisions), aff d sub nom. Omni Consulting Gm., Inc. v. Pilgrim's Pride Corp., 488 F.
App'x 478 (2d Cir. 2012); DLJ Mortg. Capital, Inc. v. Sunset Direct Lending, LLC, No. 07 Civ.
1418 (HB) (THK), 2008 WL 4489786, at *2 (S.D.N.Y. Oct. 6, 2008) (holding co-defendants
jointly and severally liable for entire attorneys' fee award where each defendant, pursuant to
separate but similar contracts, was liable for "any losses, damages, legal fees, and related costs

13

sustained that are in any way related to" the breach of that contract); cf. Goldberg v. Blue Ridge
Farms, Inc., No. 04 Civ. 5098, 2005 WL 1796116, at *2 (E.D.N.Y. July 26, 2005) ("Where both
defendants are liable on identical theories of liability and the dispute centers around the same
facts, joint and several liability for attorneys' fees is reasonable and appropriate.").
Accordingly, given the common questions of law and fact and the briefing
practices in this case, the fee-shifting provision in the Rai Plaintiffs' Purchase Agreement
authorizes WB lmico to recover the attorneys' fees and costs it incurred in defending against the
Rai Plaintiffs and Other Plaintiffs' common claims. The Court next considers whether joint and
several liability - as opposed to apportiumnenl - is appropriate in this case.
B.

Joint and Several Liability

The Rai Plaintiffs argue that they should not be held jointly and severally liable
for an award of attorneys' fees and costs, but instead should "only [be] responsible for their
distinct, identifiable and unique attorneys' fees." (Pltf. Opp. Br. (Dkt. No. 119) at 16) The Rai
Plaintiffs further argue that because defense counsel "co-mingle[d] ... billing records and cannot
now segregate the time charges for the Rai Plaintiffs from the [O]ther [Plaintiffs]," the motion
for attorneys' fees and costs should be denied in its entirety. (Id. at 5)
1.

Applicable Law

"The allocation of fee liability is a matter committed to the district court's
discretion." Koster v. Perales, 903 F.2d 131, 139 (2d Cir. 1990) (partially abrogated on other
grounds by Buckhannon Bd. and Care Home, Inc. v. West Virginia Department of Health and
Human Resources, 532 U.S. 598 (2001)) (citing Hensley v. Eckerhart, 461 U.S. 424, 437
(1982)). In determining how to allocate attorneys' fees, "district courts have appropriately
considered a variety of factors ... including the relative culpability of the parties ... and the

14

proportion of time spent litigating against each defendant." Id. "[T]he district court may
allocate the fee award between the responsible parties, ... or it may hold the responsible parties
jointly and severally liable for the fee award. The only limitation [on joint and several liability]
is ... the pre-existing background of substantive liability rules." Id. The court "should 'make
every effort to achieve the most fair and sensible solution that is possible."' Id. (quoting
Grendel's Den Inc. v. Larkin, 749 F.2d 945, 959-60 (1st Cir. 1984)). Accordingly, "although
apportionment may in some cases be a more equitable solution, there is no rule in this circuit that
requires it whenever possible." Id.
2.

Analysis

As demonstrated above, because of the common questions of law and fact, the
work done by defense counsel in addressing the Other Plaintiffs' claims was part and parcel of
addressing the Rai Plaintiffs' claims. As a result, and as shown above, defense counsel either
filed substantially similar briefs in addressing plaintiffs' claims (compare Dkt. Nos. 19, 23, 49,
with 09 Civ. 9612 (Dkt. No. 25, 29, 48)), or filed joint briefs addressed to all plaintiffs. (See
Dkt. Nos. 59, 65, 66) The only substantial difference in the briefing was as to the Rai Plaintiffs'
property report claim, which was unique to their case. 5
Given these circumstances, joint and several liability is appropriate. The Second
Circuit has instructed that a district court need not apportion attorneys' fees "on the basis of [the]
time spent ... litigating against each [opposing party]" where "much of the balance of the
[movant's] time was devoted to activities involving [the opposing parties jointly]." See Koster,
903 F.2d at 140. Here, of course, "ali cf the legal arguments made by [defense] counsel [as to

5

Moreover, defense counsel represents that "[w]here any ... work related exclusively to a case
other than the Rai action, [counsel] ha[s] deleted those [billing] entries from the requested
award." (Dolan Deel. (Dkt. No. 115) ~ 22)
15

the Other Plaintiffs] applied with equal force" to the Rai Plaintiffs. Rubenstein v. Advanced
Equities, Inc., No. 13 Civ. 1502 (PGG), 2015 WL 585561, at *5 (S.D.N.Y. Feb. 10, 2015)
(imposing joint and several liability for fee award despite objection that promissory notes did not
make each debtor liable for fees incurred coliecting monies owed by other debtors). "Stated
another way, all of [defense counsel's] work performed on the cross-motions would have been
necessary whether or not the [Other Plaintiffs] were parties to this action." Id.
In such cases, "and in view of [the] desire to avoid transforming the
'consideration of a fee petition [into a] "second major litigation,"' ... [a] district court's
imposition of joint and several fee liability [is] a proper exercise of its discretion." Koster, 903
F.2d at 140 (quoting Webb v. Dyer Cnty. Bd. of Ed., 471 U.S. 234, 244 n.20 (1985)); see also
Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381, 390 (S.D.N.Y. 2000) (holding
defendant liable for "all the [legal] work that assisted [the movant] in [its] case," because "work
done solely in relation [to a co-defendant] ... actually aided [the movant] in [its] case against
[the defendant]"). Therefore, the fact that WB Imico incurred fees in connection with legal work
that addressed all plaintiffs' claims supports the imposition of joint and several liability. 6 See
Trs. of the Plumbers Local Union No. 1 Welfare Fund v. Manhattan Plumbing Corp., No. 08
Civ. 3036 (FB) (RML), 2010 WL 456870, at *3 n.3 (E.D.N.Y. Feb. 3, 2010) ("Having reviewed
plaintiffs' counsel's billing records, the Court concludes that it is not possible to apportion the

6

After the Other Plaintiffs settled their claims with WB Imico in November 2013, WB Imico
continued to litigate against the Rai Plaintiffs over their separate claim that WB Imico had not
provided a property report, in violation of Section 1703(a)(l)(B) of the ILSA. Any fees and
costs related to this issue are, of course, attributable solely to the Rai Plaintiffs. While the Rai
Plaintiffs argue that they are not liable even for these fees - because WB Imico "failed to
separate out the time billed ... after [November] 2013" - the time billed after November 2013 is
readily apparent from the billing records. (5-~~ Dolan Deel. (Dkt. 115) Exs. 1, 2: see ~lso Supp.
Dolan Deel. (Dkt. No. 117) ~~ 2-3, Exs. 1, 2)
16

[litigation] work performed on particular [employee-benefit] funds; therefore, [the individual
defendant] will be liable for the entire award."). In sum, the "relative culpability" or
responsibility of the plaintiffs in causing WB Imico to incur attorneys' fees is the same. See
Stavitsky v. Bd. of Elections in City ofN.Y., 198 F. Supp. 2d 271, 275 (E.D.N.Y. 2002)
(applying joint and several liability '"where the action ... of several [parties] produces a single
indivisible injury"' arising from legal fees ?.n<l ~osts incurred in defending against suit (quoting
Koster, 903 F.2d at 140)).
Accordingly, this Court concludes that joint and several liability is appropriate
7

here. Having determined that the Rai Plaintiffs are liable for WB Imico' s attorneys' fees and

7

Joint Venture Asset Acquisition v. Bhogaonker, No. 87 Civ. 5308 (RWS), 1991 WL 254556,
at *5 (S.D.N.Y. Nov. 19, 1991), cited by the Rai Plaintiffs (see Pltf. Opp. Br. (Dkt. No. 119) at
14-15), is not to the contrary. In that case, plaintiff sought an attorneys' fee award against
defendants, jointly and severally, based on a fee-shifting provision in the defendants' respective
promissory notes. Joint Venture Asset, 1991 WL 254556, at *2-3. The court found that
"[a]lthough the [movant] litigated its claims against all of the [defendants] in a consolidated
manner, each of the claims [was] based on a separate Note and each for a distinct, identifiable
and unique amount." Id. at *5. Moreover, <l.efrndants contended thatjoini and several liability
was "unjust ... in view of the fact that the aggregate figure [of attorneys' fees] ... vastly
exceed[ed] the amounts of the individual obligations enforced through th[e] litigation." Id. The
court agreed that given these circumstances, joint and several liability was "unfair." Id. at *5.
The circumstances that animate Joint Venture Asset are not present here. WB Imico' s requested
award of $444,059.79 in attorneys' fees and costs is less than the $643,119.90 deposit whose
return the Rai Plaintiffs sought in this litigation, and a small fraction of the total price of the
condominium that was the subject of the Purchase Agreement. (See Am. Cmplt. (Dkt. No. 7) ii
21) Moreover, the Rai Plaintiffs brought the claims that are the subject of this litigation including an additional claim not pursued by the Other Plaintiffs - and continued the litigation
for seven years. Given these circumstances, the application of joint and several liability for
attorneys' fees and costs is not unjust.
Finally, to the extent that the Rai Plaintiffs contend that Joint Venture Asset stands for the
proposition that joint and several liability for attorneys' fees is not appropriate in cases involving
separate contracts, more recent cases have not adopted that view. See Omni Consulting Group,

2011 WL 81510 l, at *2; DLJ Mortg. Capital, 2008 WL 4489786, at *2.
17

costs, and may be held liable on a joint and several basis, the remaining issue is the appropriate
amount of the fee award.
II.

CALCULATION OF A REASONABLE ATTORNEYS' FEE AW ARD
Schlam Stone & Dolan, LLP ("SS&D") has represented WB Imico for more than

seven years in this case. WB Imico seeks $426,901.25 in attorneys' fees, reflecting 984.l hours
of work performed by three partners, one counsel, three associates, and nine paralegals. (Dolan
Deel. (Dkt. No. 115) ~~ 30-31, 35-36)
A.

Applicable Law
"As a general matter of New York law, ... when a contract provides that in the

event oflitigation the losing party will pay the attorneys' fees of the prevailing party, the court
will order the losing party to pay whatever amounts have been expended ... so long as those
amounts are not unreasonable." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250,
1263 (2d Cir.

1987)~

see Diamond D Enterprises USA, Inc. v. Steinsvaag, 979 F.2d 14, 19 (2d

Cir. 1992) (same). "However, notwithstanding th[is] general proposition ... , the amount to be
awarded as 'an attorney's fee is within the discretion of the court."' Terra Energy & Resources
Techs., Inc. v. Terralinna Pty. Ltd., No. 12 Civ. 1337 (KNF), 2014 WL 6632937, at *4 (S.D.N.Y.
Nov. 24, 2014) (quoting Gamache v. Steinhaus, 7 A.D.3d 525, 527 (2d Dep't 2004)). Indeed,
'"[w]hen determining a fee award baseJ uµo;i a contractual attorneys' fees agreement between
the parties ... courts have "broad discretion" and need not follow a specific formula. As such,
the Court need not pore over every hour and minute billed but only make adjustments for any
unnecessary, unreasonable, or excessive fees."' Union Cent. Life Ins. Co. v. Berger, No. 10 Civ.
8408 (PGG), 2013 WL 6571079, at *2 (S.D.N.Y. Dec. 13, 2013) (quoting Clarendon Nat'l Ins.
Co. v. Advance Underwriting Managers Agency, Inc., No. 06 Civ. 15361 (BSJ), 2011 WL

18

6153691, at *2 (S.D.N.Y. Dec. 8, 2011) (quoting U.S. Fidelity & Guaranty Co. v. Braspetro Oil
Servs. Co., 369 F.3d 34, 74 (2d Cir. 2004))).
In determining whether a requested fee award is reasonable, the starting point is
the calculation of the "presumptively reasonable fee." Arbor Hill Concerned Citizens
Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183 (2d Cir. 2008). This "initial
estimate" is calculated by multiplying "the number of hours reasonably expended on the
litigation ... by a reasonable hourly rate." Hensley, 461 U.S. at 433. "In determining a
reasonable rate, a court 'may rely on its own knowledge of comparable rates charged by lawyers
in the district."' Merck Eprova AG v. Brookstone Phann., LLC, No. 09 Civ. 9684 (RJS), 2013
WL 3146768, at *l (S.D.N.Y. June 10, 2013) (quoting Morris v. Eversley, 343 F. Supp. 2d 234,
245 (S.D.N.Y. 2004)). In exercising its discretion, the Court must "bear in mind all of the casespecific variables that we and other courts have identified as relevant," including "[t]he
reasonable hourly rate ... a paying client would be willing to pay," "bear[ing] in mind that a
reasonable, paying client wishes to spend the minimum necessary to litigate the case
effectively." Arbor Hill, 522 F.3d at 190 (emphasis in original). Courts also consider "the
complexity and difficulty of the case, ... the resources required to prosecute the case effectively
... , the timing demands of the case, ... and other returns (such as reputation, etc.) that an
attorney might expect from the representation." Id. at 184.
"Following the determination of the presumptively reasonable fee, the court must
then consider whether an upward or downward adjustment of the fee is warranted based on
factors such as the extent of [the movant's) success in the litigation." Robinson v. City of New
York, No. 05 Civ. 9545 (GEL), 2009 WL 3109846, at *3 (S.D.N.Y. Sept. 29, 2009). A court
need not '"become enmeshed in a meticulous analysis of every detailed facet of the professional

19

representation'" to determine the proper award, Seigal v. Merrick, 619 F.2d 160, 164 n.8 (2d Cir.
1980) (quoting Lindy Bros. Builders, Inc. of Phila. v. Am. Radiator & Standard Sanitary Corp.,
540 F.2d 102, 116 (3d Cir. 1976)), nor should "[a] request for attorney's foes ... result in a
second major litigation." Hensley, 461 U.S. at 437. The burden is ultimately on the movant to
demonstrate the reasonableness of the hours spent and rates asserted. See id.
While a court may adjust the presumptively reasonable fee amount, there remains
throughout the fee determination process "[a] strong presumption that [this initial
calculation] ... represents a 'reasonable' fee." Pennsylvania v. Del. Valley Citizens' Council
for Clean Air, 478 U.S. 546, 565 (1986); accord Lunday v. City of Albany, 42 F.3d 131, 134 (2d
Cir. 1994).

B.

Hourly Rates
WB Imico seeks $426,901.25 for 984.1 hours spent litigating against the Rai

Plaintiffs and Other Plaintiffs. (Dolan Deel. (Dkt. No. 115) ~~ 22-24, 35-36) The attorneys
working on the litigation - three partners, one counsel, and three associates - billed $415,850. 75
for 902.8 hours of work. (Id. i1i130, 35)
Partner and counsel billings amount to 845.9 hours, representing nearly 86% of
the total hours worked. 8 (See id. ~il 30, 32) Almost all of those hours were billed by two
partners, Thomas Kissane and Richard Dolan. Kissane and Dolan billed 599.9 hours and 237.6
hours, respectively, at rates between $427.50 and $562.50 per hour. 9 (Id.) Partner Harvey Stone

8

When the hours worked by paralegals are excluded, partner and counsel billings account for
nearly 94% of SS&D's total attorney hours. (See Dolan Deel. (Dkt. No. 115) ilil 32, 35)
9

The billing records show that, during the many years of litigation, both Kissane and Dolan
increased their hourly rates - Kissane from $427 .50 to $517 .50, and Dolan from $517 .50 to
$562.50. (See Dolan Deel. (Dkt. No. 115) i1 30, Ex. 1)
20

billed 3.9 hours at the same rates. (!QJ Counsel Bradley Nash billed 4.5 hours at a rate of
$427.50 per hour. (!QJ
SS&D associates account for about 6% of SS&D's total hours. Associate David
Abrams billed 52 hours at rates between $292.50 and $360 per hour. (Id.) Associates Samuel
Butt and Niall O'Murchadha billed 2.2 hm.irs and 2.7 hours, respectively, at the same rates. (Id.)
SS&D's nine paralegals account for the remaining 8% of SS&D's total hours, having billed 81.3
hours at $135 per hour. (See id.

~~

31, 35)

The determination of reasonable hourly rates is a factual issue committed to the
court's discretion, and is typically defined as the market rate a "reasonable, paying client would
be willing to pay. " 10 Arbor Hill, 522 F.3d at 184. "[D]istrict courts should use the 'prevailing
[hourly rate] in the community' in calculating ... the presumptively reasonable fee." Id. at 190
(second alteration in original). "[T]he 'community' for purposes of this calculation is the district
where the district court sits." Id. (citing Polk v. N.Y. State Dep't of Corr. Servs., 722 F.2d 23, 25
(2d Cir. 1983)). More specifically, courts should consider the market rates '"prevailing in the
community for similar services by lawyers of reasonabiy comparable skill, experience, and
reputation.'" Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998) (quoting Blum v. Stenson,

10

The Rai Plaintiffs do not argue that SS&D's billing rates are unreasonable, but rather that WB
Imico "has not proffer[ed] any evidence to support the reasonableness of the rates charged."
(Pltf. Opp. Br. (Dkt. No. 119) at 17-18 (citing Adorno v. Port Authority ofN.Y. & N.J., 685 F.
Supp. 2d 507, 511 (S.D.N.Y. 2010)) (emphasis in original) WB Imico has offered support for
the reasonableness of its rates, however. In its moving brief, WB Imico cites case law
concerning hourly rates deemed reasonable by other courts in this District, and also cites to prior
decisions of this Court on motions for attorneys' fees in other ILSA actions involving WB Imico.
(See Def. Moving Br. (Dkt. No. 114) at 8-10) Moreover, the Second Circuit has stated that "[a]
district court may also use its knowledge of the relevant market when determining the reasonable
hourly rate." McDonald ex rel Prendergast v. Pension Plan of the NYSA-ILA Pension Trust
Fund, 450 F.3d 91, 97 (2d Cir. 2006). Accordingly, the Court finds no deficiency in WB Imico's

application as to billing rates.
21

465 U.S. 886, 896 n.11 (1984)). In determining what rates are reasonable, a court may also rely
on evidence as to the rates counsel typically charges, Farbotko v. Clinton Cnty. of N. Y., 433
F.3d 204, 209 (2d Cir. 2005), and "its own knowledge of comparable rates charged by lawyers in
the district." Morris, 343 F. Supp. 2d at 245 (citing Ramirez v. N.Y. City Off-Track Betting
Corp., No. 93 Civ. 682 (LAP), 1997 WL 160369, at *2 (S.D.N. Y. Apr. 3, 1997)).
Here, SS&D's partners and counsel are highly experienced in complex
commercial litigation. Stone and Dolan have each practiced law for four decades, while Kissane
has more than twenty-five years' experience. (Dolan Deel. (Dkt. No. 115) Ex. 4) Nash has more
than a decade of experience. (Id.) As to the associates, O'Murchadha graduated from law
school in 2003, Butt graduated from law school in 2005, and Abrams graduated from law school
in 2007. (1h ~ 34, Ex. 4)
The billing rates at issue here are within the range of rates that have been
approved by courts in this District.

See,~.

Sidley Holding Corp. v. Ruderman, No. 08 Civ.

2513 (WHP) (MHD), 2009 WL 6047187, at *26 (S.D.N.Y. Dec. 30, 2009), adopted 2010 WL
963416 (S.D.N.Y. Mar. 15, 2010) (noting that "recent fee awards within the district reflect
hourly rates in the range of $450.00 to $600.00 for experienced partners, $350.00 for senior
associates, $250.00 for junior associa~es, nnd $125.00 to $170.00 for paralega!s," and citing
Edmonds v. Seavey, No. 08 Civ. 5646 (HB) (JCF), 2009 WL 1598794, at *2 (S.D.N.Y. June 5,
2009), affd, 2009 WL 2150971 (S.D.N.Y. July 20, 2009), and RBFC One, LLC v. Zeeks, Inc.,
No. 02 Civ. 3231(DFE),2005 WL 2105541, at *2 (S.D.N.Y. Sept. 1, 2005)); In re AOL Time
Warner S'holder Derivative Litig., No. 02 Civ. 6302 (CM), 2010 WL 363113, at *13 (S.D.N.Y.
Feb. 1, 2010) ("Counsel use hourly rates ranging from $90 to $250 for paralegals, from $175 to
$550 for associates and other non-partner level attorneys and from $300 to $850 for partners.

22

These rates, though relatively high, fall within the range of those commanded by leading lawyers
in the Southern District, particularly those practicing at large firms or with high profiles."). The
Court concludes that the rates SS&D charged for its work in this litigation are reasonable.
SS&D charged $135 per hour for the work done by its paralegals. This rate is
likewise within the range that other judges in this District have found reasonable. See,

~'

Lucerne Textiles, Inc. v. H.C.T. Textiles Co., Ltd., No. 12 Civ. 5456 (KMW) (AJP), 2013 WL
174226, at *6 (S.D.N.Y. Jan. 17, 2013) (finding reasonable a $140 per hour rate for paralegal);
N.Y.C. Dist. Council of Carpenters v. Rock-It Contracting, Inc., No. 09 Civ. 9479 (JGK) (AJP),
2010 WL 1140720, at *4 (S.D.N.Y. Mar. 26, 2010) ($125 per hour is a reasonable hourly rate for
paralegal services); VFS Fin., Inc. v. Pioneer Aviation, LLC, No. 08 Civ. 7655 (GBD) (AJP),
2009 WL 2447751, at *4 (S.D.N.Y. Aug. 11, 2009) (same).
C.

Staffing and Time Expended
1.

Applicable Law

After determining appropriate hourly rates, courts must calculate the reasonable
number of hours billed in order to determine the presumptively reasonable fee. See Arbor Hill,
522 F.3d at 190. The Court will exclude any hours included in the fee application that were not
"reasonably expended." Hensley, 461 U.S. at 434. As with the determination of a reasonable
rate, the Court must consider both the "contemporaneous time records ... [that] specify, for each
attorney, the date, hours expended, and nature of the work done," New York State Ass'n for
Retarded Children v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983), and "its own familiarity with
the case ... and its experience generally." Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992).
While "[t]he use of multiple attorneys ... is not unreasonable~ se," Simmonds
v. N.Y.C. Dep't of Corr., No. 06 Civ. 5298 (NRB), 2008 WL 4303474, at *6 (S.D.N.Y. Sept. 16,

23

2008) (quoting Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F. Supp. 509,
518 (S.D.N.Y. 1984)) (alteration in original), assigning numerous attorneys to a simple and
straightforward matter presents a serious risk of inefficiency, duplication, and unnecessary
billing. See id. at *6-7. As the Second Circuit has recognized, however,
[i]n assessing the extent of staffing and background research appropriate for a
given case, a district court must be accorded ample discretion .... [A] trial judge
may decline to compensate hours spent by collaborating lawyers or may limit the
hours allowed for specific tasks, but for the most part such decisions are best
made by the district court on the basis of its own assessment of what is
appropriate for the scope and complexity of the particular litigation.
New York State Ass'n for Retarded Children, 711 F.2d at 1146. The guiding principle to
determine whether redundancy has occurred is the "degree of effort reasonably needed to prevail
in the litigation." Id.; see also Sullivan v. Syracuse Hous. Auth., No. 89 Civ. 1205, 1993 WL
147457, at *3 (S.D.N.Y. May 3, 1993) (district court must ensure that fee award reflects only
work that was "necessary to the litigation" and "a cost efficient use of co-counsel and outside
counsel").
2.

The Rai Plaintiffs' Objections to the Hours Billed

In opposing WB Imico's motion, the Rai Plaintiffs argue that the fees sought are
"unreasonable, duplicative, and, most of all, excessive," because "from [the case's] inception, all
of the time billed [by SS&D] was for work performed on all of the Related Actions" - that is, in
defending against the Rai Plaintiffs and the Other Plaintiffs. (Pltf. Opp. Br. (Dkt. No. 119) at 18)
(emphasis in original) The Rai Plaintiffs contend that WB Imico has not shown that a
"reasonable number of hours [were] expended on this litigation" and impermissibly seeks
recovery for hours billed "as a result of five separate actions on five separate agreements."
(Id. at 20-21) (emphasis in original) These arguments are rejected for the reasons discussed at
length above.
24

The Rai Plaintiffs also challenge specific billing entries as examples of "duplicity
and excess" and "time that was not 'reasonably expended' on this matter." (Id. at 22) Those
objections are listed below:
(1) Between January 14, 2010 and January 19, 2010, SS&D billed 8.40 hours, or
$3,591, for work performed on a pr0posed injunction application that did not
relate to the Rai matter.

(2) Between January 28, 2010 and January 29, 2010, SS&D billed 16.1 hours, or
$5,217.75, for work performed to "review and revise answers in ILSA-related
actions" or "revisions to answers on Lucida matters" or "complete, file
answers in Lucida matters." The Rai Plaintiffs advised at the January 21,
2010 conference with this Court that the Rai Plaintiffs would be filing an
Amended Complaint. The Rai Plaintiffs filed the Amended Complaint on
January 29, 2010. The work performed prior to the filing of the Amended
· Complaint did not pertain to the Rai Plaintiffs.
(3) Between February 8, 2010 through February 12, 2010, SS&D billed 13.3
hours, or $4,442.75, to draft an answer to the Rai [Plaintiffs'] Amended
Complaint, an answer that was substantially similar to the Answers already
filed in the other related matters. This appears on multiple invoices. Overall,
four attorneys worked on the Answer.
(4) Between March 5, 2010 through May 7, 2010, SS&D billed at least 207.4
hours, or $83,620.50, to draft WB Imico's response and cross-motion to all
Plaintiffs['] (plural) joint motion for sun.unary judgment, and reply papers
thereto.
(5) On September 28, 2010, SS&D billed 4.5 hours, or $2,328.75, to revise a
letter to [this Court] and to attend oral argument in another matter - the "20
Pine St. case."
(6) Between December 8, 2010 and December 21, 2010, SS&D billed 18.6 hours,
or $7,659.00, to review and revise a joint letter with all Plaintiffs' (plural)
counsel to [this Court].
(7) Between March 2, 2011 and March 31, 2011, SS&D billed 9.5 hours, or
$4,916.25, to attend a conference with [this Court], review Plaintiffs[']
(plural) statement of undisputed facts, revisions to response to Plaintiffs[']
(plural) statement of undisputed facts, and for conferences to discuss
"common plan" issues.
(8) Between April 25, 2012 and June 13, 2012, SS&D billed 58.7 hours, or
$26,451.00, to oppose an attorneys' fee motion. The sole issue was whether
25

attorneys' fees should be awarded based upon the statute. The quantum of
fees was not at issue, nor were bills submitted for this analysis.
(Id. at 22-24) (emphasis in original)
As to the first objection, the Court agrees that fees associated with the proposed
preliminary injunction should be deducted. WB Imico contends that this work was done in
anticipation of a motion for a preliminary injunction "that counsel for [the Other] Plaintiffs ...
informed [SS&D] they were planning to file with this Court." (Supp. Dolan Deel. (Dkt. No.
117) ~ 7) Although the application for a preliminary injunction was never filed, WB Imico
argues that "such motions often proceed on an accelerated basis" and, had it been filed, it would
have concerned the Rai Plaintiffs. (!QJ This Court is obligated to ensure, however, that a fee
award reflects only work that was "necessary to the litigation." Sullivan, 1993 WL 147457, at
*3. The Court concludes that hours billed in anticipation of a motion that was never filed should
be deducted from the fee award.
As to the second and third objections, the Court finds no impropriety. Although
the Rai Plaintiffs filed the Amended Complaint after SS&D prepared and filed answers to the
Other Plaintiffs' complaints, the Rai Plaintiffs amended their complaint in order to add two
claims identical to those asserted by the Other Plaintiffs. (See Am. Cmplt. (Dkt. No. 7); see also
Supp. Dolan Deel. (Dkt. No. 117) ~ 8) The work done preparing and filing answers to the Other
Plaintiffs' complaints was both necessary and related to the Rai Plaintiffs. Furthermore, the
additional time billed by SS&D in responding to the Rai Plaintiffs' Amended Complaint does not
ap.pear excessive. Acknowledging that the Answer "was substantially similar to the Answers
already filed in the other related matters" (Pltf. Opp. Br. (Dkt. No. 119) at 23), the Amended
Complaint asserts an additional claim under the ILSA for failing to provide a property report,
which raised separate factual and legal issues applicable to the Rais only.

26

As to the fourth, sixth, and seventh objections - which are based solely on the
argument that the billing entries include time relating to the Other Plaintiffs - these objections
fail for reasons already stated.
In their fifth objection, the Rai Plaintiffs challenge time billed by SS&D on
September 30, 2010 to attend oral argument before Judge Paul A. Crotty on cross-motions for
summary judgment in another ILSA case, Nu-Chan, LLC v. 20 Pine Street LLC, No. 09 Civ. 477
(PAC). WB Imico contends that attendance at this court session and others was necessary to stay
"informed about how the judges in the Southern District and the Second Circuit were viewing"
issues relating to the ILSA. (Supp. Dolan Deel. (Dkt. No. 117) ~ 10) This Court agrees. This
case involved a complex statute that had not previously been the subject of extensive judicial
analysis. District courts offered varying interpretations of certain issues arising under the ILSA,
see, M,., Bodansky v. Fifth on the Park Condo, LLC, 732 F. Supp. 2d 281 (S.D.N.Y. 2010);
Griffith v. Steiner Williamsburg, LLC, 760 F. Supp. 2d 345 (S.D.N.Y. 2010), and the Second
Circuit repeatedly rejected district courts' interpretations of the Act. See,

M,_,

Bacolitsas v. 86th

and 3rd Owner, LLC, 702 F.3d 673 (2d Cir. 2012); Bodansky v. Fifth on the Park Condo, LLC,
635 F.3d 75 (2d Cir. 2011). Accordingly, time spent following these developments was
"reasonably needed to prevail in the litigation." New York State Ass'n for Retarded Children,
711 F.2d at 1146.
As to the eighth objection - which concems 58.7 hours billed in opposing the Rai
Plaintiffs' motion for attorneys' fees, costs, and pre-judgment interest - the Court agrees that a
reduction in the hours billed is necessary. WB Imico argues that the pre-judgment interest issue
arose in an area of"still-developing law." (Dolan Deel. (Rai Dkt. No. 117) ~ 13) Even
accepting that argument, the many hours of editing performed partners Kissane and Dolan

27

appears excessive. (See Dolan Deel. (Dkt. No. 115) Ex. 1) The Court concludes that a 30%
reduction in the hours spent by Dolan and Ki ss::ine in opposing the motion is appropriate. I I

3.

The Reasonableness of the Hours Billed

Although seven attorneys billed time on this matter over a six year period, nearly
all of the 902.8 attorney hours billed reflects work performed by two partners - Thomas Kissane
and Richard Dolan - and one associate - David Abrams. (See Dolan Deel. (Dkt. No. 115) iJ 32)
The work appears to have been performed in an efficient manner and duplication of effort is not
apparent from the billing records. While Kissane and Dolan performed the lion's share of the
work, the complexity and novelty of the legal issues warranted their involvement, and the Rai
Plaintiffs have not argued otherwise. I2 Given the voluminous motion papers and multiple
appeals filed over more than six years of litigation, the Court concludes that the hours billed are
reasonable.
After deducting fees related to ( 1) the preliminary injunction motion that was
never filed- a reduction of $3,591; and (2) the Rai Plaintiffs' motion for attorneys' fees, costs,
and pre-judgment interest - a reduction of $8,058.14, the Court concludes that WB Imico is
entitled to recover $415,252.11 in attorneys' fees.

11

In opposing the Rai Plaintiffs' motion for attorneys' fees, costs, and pre-judgment interest,
Kissane billed 38.1 hours at a rate of $427.50, and Dolan billed 19.3 hours at a rate of$517.50.
(Dolan Deel. (Dkt. No. 115) Ex. 1) A paralegal billed the remaining 1.3 hours. Applying the
30% reduction to Kissane and Dolan's time, the attorneys' fee award will include 26.67 hours of
Kissane's time, corresponding to $11,401.43, and 13.51 hours ofDolan's time, corresponding to
$6,991.43. This results in a reduction of $8,058.14 to the proposed attorneys' fee award.
12

The Rai Plaintiffs have not argued that Kissane and Dolan should have delegated a portion of
the work to associates.
28

III.

COSTS
A.

Applicable Law
WB Imico is entitled to an award of costs under the fee-shifting provision in the

Rai Plaintiffs' Purchase Agreement. Costs include '"those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients."' U.S. Football League v. Nat'l
Football League, 704 F. Supp. 474, 483 (S.D.N.Y. 1989) (quoting Reichman v. Bonsignore,
Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)); see also Kuzma v. I.R.S., 821 F.2d
930, 933-34 (2d Cir. 1987) (providing a non-exclusive list of recoverable costs, including
"photocopying, travel, and telephone costs"); Anderson v. City of New York, 132 F. Supp. 2d
239, 245-47 (S.D.N.Y. 2001) (allowing recovery for service, filing, and photocopying expenses,
witness fees, and computerized legal research costs). Recovery is not permitted for costs
associated with routine office overhead. See Kuzma, 821 F.2d at 934 ("[N]onrecoverable routine
office overhead ... normally must be absorbed within the attorney's hourly rate.")
B.

Analysis
Here, WB Imico seeks a costs award of $17, 158.54, reflecting court fees, filing

fees, electronic legal research expenses, attorney travel expenses, and printing and binding fees.
(Dolan Deel. (Dkt. No. 115) ~ 28, Ex. 3) WB lmico has submitted a list of costs incurred, but
has not supplied invoices or other back-up documentation. In opposing WB Imico's costs
request, however, the Rai Plaintiffs have challenged only the filing fees and electronic legal
research expenses. (Pltf. Opp. Br. (Dkt. No. 119) at 24)

29

As to the request for $3,285.00 in filing fees, 13 the Rai Plaintiffs complain that
these "fees [were] incurred in all matters ... [but] are charged in the entirety to the Rai
Plaintiffs." (Id.) As discussed above, however, joint and several liability is appropriate here.
Accordingly, this objection is overruled.
As to the request for $6,119.75 in electronic legal research expenses, the Rai
Plaintiffs object to this amount as excessive and unreasonable. (See id.) The Second Circuit has
"recognized that the costs of electronic legal research are compensable, ... but only where the
charges are not already accounted for in the attorney's hourly rate." Bobrow Palumbo Sales, Inc.
v. Broan-Nutone, LLC, 549 F. Supp. 2d 274, 286 (E.D.N.Y. 2008) (citing Arbor Hill, 369 F.3d at
97-98). Courts have also "granted awards that included such costs where the invoices submitted
in support of the request demonstrated that the costs were actually charged to the requesting
party, even where they did not demonstrate the law firm's normal billing practices." Inter-Am.
Dev. Bank v. Venti S.A., No. 15 Civ. 4063 (PAE), 2016 WL 642381, at *8 (S.D.N.Y. Feb. 17,
2016). Here, however, the Court has neither invoices nor records demonstrating defense
counsel's billing practices. Accordingly, there is not an adequate basis to award costs for
electronic legal research.
All of the remaining expenses are properly included in a costs award.

See,~'

Anderson, 132 F. Supp. 2d at 245-47. After deducting $6,119.75 for electronic legal research
expenses, WB Imico is entitled to a costs award of $11,03 8. 79.

13

Although WB Imico has not explained the nature of the underlying filings, they appear to

relate to appeals filed with the Second Circuit.
30

CONCLUSION
The Rai Plaintiffs are directed to pay WB Imico $415 ,252.11 in attorneys' fees
and $11,038.79 in costs. The Clerk of the Court is directed to terminate the motion (Dkt. No.
113 ), enter judgment, and close this case.
Dated: New York, New York
March 31, 2017

SO ORDERED.

Paul G. Gardephe
United States District Judge

31