Schoolcraft v. The City Of New York et al

Filing 624

REPLY MEMORANDUM OF LAW in Support re: 559 MOTION for Attorney Fees , Costs and Disbursements. . Document filed by Adrian Schoolcraft. (Fitch, Joshua)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------------------------X
ADRIAN SCHOOLCRAFT,
Plaintiff,

-against-

10 CV 6005 (RWS)

THE CITY OF NEW YORK, et al.

Defendants.
---------------------------------------------------------------------------------X

REPLY MEMORANDUM OF LAW ON BEHALF OF THE NORINSBERG
TEAM IN FURTHER SUPPORT OF PLAINTIFF’S MOTION
FOR ATTORNEY'S FEES, COSTS AND DISBURSEMENTS

JOSHUA P. FITCH
COHEN & FITCH LLP
Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, N.Y. 10279
[phone]
[e-mail]
[e-mail]

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iv
PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ..................................................................................................................................1
I.

DEFENDANTS VASTLY UNDERESTIMATE THE COMPLEXITY AND SCOPE
OF THE SCHOOLCRAFT MATTER ..........................................................................1

II.

DEFENDANTS’ FORMULAIC COMPARISON TO OTHER “SIMILAR” CASES
IS NEITHER RELEVANT NOR USEFUL IN DETERMINING THE
REASONABLENESS OF THE FEES SOUGH HERE................................................2
A. The Cases Relied Upon By Defendants Fail to Provide an Accurate Comparison .3
B. Defendants’ Boilerplate Objections to the “Unprecedented” Size of Plaintiff’s Fee
Petition Should Be Rejected ....................................................................................5

III.

DEFENDANTS’ “EXPERT” REPORT IS NOT ADMISSIBLE UNDER RULE 702
AND SHOULD BE DISREGARDED BY THE COURT ............................................6
A. Ms. Bronsther’s Self-Serving and Conclusory Opinions Do Not Help the Court
“Understand the Evidence” or “Determine a Fact in Issue” ....................................6
B. Ms. Bronsther’s Opinions Are Not Based on Generally Accepted Billing
Practices... ................................................................................................................7
C. Ms. Bronsther’s Report is Rife with Erroneous Facts and Mistaken Assumptions.8
D. Defendants’ Mere Parroting of Their Expert’s Findings Does Not Satisfy Their
Burden in Opposing the Fee Application.................................................................9

IV.

DEFENDANTS SEEK A REDUCTION OF FEES BASED ON IMPROPER LEGAL
GROUNDS ..................................................................................................................10
A. Where the Ultimate Success is Not Disputed, Success on Individual Claims or
Against Individual Defendants is Irrelevant to the Lodestar Calculation..............10
B. Since All Claims Share a Common Core of Facts and Legal Issues, There is No
Basis to Reduce Fees for the “Unsuccessful” Claims............................................11
C. Defendants’ Proposed Reductions Based on Claims Allegedly "Unrelated" to the
Municipal Defendants Fail as a Matter of Law .....................................................13
i. Defendants Cannot Propose Reductions in Contravention of the Plain
Language of the Rule 68 Offer ..................................................................13
ii. All Work Relating To The Medical Defendants Must Be Compensated, As

i

Such Work Was Inextricably Intertwined With The Claims Against The
Municipal Defendants................................................................................14
a. The NYPD Was Directly Involved with, and Responsible for, the
JHMC’s Decision to Confine Officer Schoolcraft.........................17
b. The NYPD Was Present at JHMC Throughout Officer
Schoolcraft’s Involuntary Confinement.........................................19
c. NYPD Psychologist Catherine Lamstein Spoke to a Hospital
Social Worker on at least Two Separate Occasions.......................20
V.

DEFENDANTS’ HODGEPODGE ATTACKS ON THE REASONABLENESS OF
PLAINTIFF’S FEE APPLICATION ARE BASELESS AND SHOULD BE
REJECTED ..................................................................................................................22
A. Defendants’ “Billing Judgment” Argument is Frivolous.......................................22
B. Defendants’ Objection to the Use of Multiple Attorneys is Baseless....................23
C. Defendants’ Attacks on Strategy Meetings Are Meritless.....................................26
D. Defendants’ Claim of Duplicative Work Is Particularly Specious As It Relates to
the Work Performed by Plaintiff’s Initial Attorneys For the First 2.5 Years of
Litigation................................................................................................................27
E. The Work Performed by the Norinsberg Team and the Smith Team Was Very
Clearly Delineated Throughout this Litigation ......................................................28
F. The Collaborative Efforts of Mr. Norinsberg and Mr. Meehan Are Fully
Compensable..........................................................................................................30
G. The Work spent of Trial Preparation was Essential Given the Scope of this
Litigation................................................................................................................31
H. Defendants have Mischaracterized the Hours Spent Related to “Media
Activity".................................................................................................................32

VI.

DEFENDANTS’ OBJECTIONS TO PLAINTIFF'S BILLING PRACTICES ARE
FACTUALLY INACCURATE AND LEGALLY UNSUBSTANTIATED ..............34
A. Defendants’ Reductions Regarding Alleged “Block Billing” Are Based on a
Mischaracterization of Counsels’ Billing Entries ..................................................34
B. Defendants’ Claims Regarding “Vague” Billing Entries Are Unfounded.............35
C. Defendants’ Claims of Improper Billing Increments and Unnecessary Client
Communications Are Without Merit .....................................................................36
D. Defendants’ Objections to Plaintiff’s Use of .1 Increments For Discrete Tasks Are
Baseless..................................................................................................................37
ii

E. Defendants’ Accusations Regarding the Contemporaneity of Plaintiff’s Records
Are Baseless and Have Already Been Rejected By the Court...............................40
VII.

DEFENDANTS’ PROPOSED REDUCTION AMOUNT TO IMPERMISSIBLE
DOUBLE-COUNTING ...............................................................................................42
A. Defendants Seek to Penalize Plaintiff’s Counsel Twice For the Same “Flawed”
Entries ....................................................................................................................42
B. Defendants Seek Across-the-Board Percentage Reductions on Top of the
Reductions Already Made for Work That is Claimed to be Non-Compensable ...44

VIII.

COUNSELS’ PROPOSED HOURLY RATES ARE REASONABLE AND
COMMENSURATE WITH THE LEVEL OF SKILL AND EXPERIENCE
BROUGHT TO BEAR IN THIS CASE......................................................................45
A. Hourly Rates in the Southern District Are Significantly Higher Than Those in the
Eastern District.......................................................................................................45
B. Cohen & Fitch LLP’s Hourly Rates are Reasonable .............................................47
C. Given Mr. Norinsberg’s Outstanding Track Record of Multiple Million Dollar
Verdicts, His Proposed Billing Rate Is Reasonable and Well Supported by
Existing Law ..........................................................................................................51
i. Mr. Norinsberg Was Awarded $550 An Hour in the Southern District in
2015............................................................................................................52
ii. The Stanczyk Hourly Rate Was Fact-Specific And Should Be
Disregarded.... ............................................................................................53
iii. Defendants’ Ad Hominem Attacks on Mr. Norinsberg and Innuendo About
His “Reputation” Are Improper and Baseless ...........................................54
iv. Mr. Norinsberg’s Practice Is Devoted Almost Exclusively to Federal Civil
Rights Cases...............................................................................................55
v. Mr. Norinsberg’s Proposed Billing Rate is Well Within the Range of Rates
Upheld in the Southern District .................................................................55
D. The Proposed Billing Rate of Mr. Meehan is Reasonable.....................................56

CONCLUSION..............................................................................................................................58

iii

TABLE OF AUTHORITIES

Adorno v. Port Auth. of New York & New Jersey, 685 F. Supp. 2d 507 (S.D.N.Y. 2010), on
reconsideration in part, 2010 WL 727480 (S.D.N.Y. 2010) ................................................. Passim
Amaprop Ltd. v. Indiabulls Fin. Servs. Ltd., 2011 WL 1002439 (S.D.N.Y. 2011) aff’d, 483 F.
App’x 634 (2d Cir. 2012) .............................................................................................................56
Ambac Assur. Corp. v. Adelanto Pub. Util. Auth., 2013 WL 4615404 (S.D.N.Y. 2013) ............28
Ansoumana v. Gristede's Operating Corp., 2004 WL 504319 (S.D.N.Y. 2004) ..........................32
Arbor Hill Concerned Citizens Neighborhood Ass'n. v. Cty. of Albany, 2005 WL 670307
(N.D.N.Y. 2005) ...........................................................................................................................48
A.R. ex rel. R.V. v. New York City Dep't of Educ., 407 F.3d 65 (2d Cir. 2005) .........................46
Baird v. Boies, Schiller & Flexner LLP, 219 F. Supp. 2d 510 (S.D.N.Y. 2002) ..........................12
Barbour v. City of White Plains, 788 F. Supp. 2d 216 (S.D.N.Y. 2011), aff'd, 700 F.3d 631 (2d
Cir. 2012) .............................................................................................................................. Passim
Bivins v. Wrap It Up, Inc., 548 F.3d 1348 (11th Cir. 2008) ...................................................42, 44
Bjornson v. Dave Smith Motors Leasing & Sales, 578 F. Supp. 2d 1269 (D. Idaho 2008) .........51
B-K Cypress Log Homes Inc. v. Auto-Owners Ins. Co., 2011 WL 6151507 (N.D. Fla. 2011),
report and recommendation adopted, 2011 WL 6152082 (N.D. Fla. 2011) ...................................9
Blanchard v. Bergeron, 489 U.S. 87 (1989) .................................................................................49
Blanco-Jimenez v. Puerto Rico, 2015 WL 4064737 (D.P.R. 2015) .............................................36
Bridges v. Eastman Kodak Co., 1996 WL 47304 (S.D.N.Y. 1996) aff'd, 102 F.3d 56 (2d Cir.
1996) .......................................................................................................................................27, 41
Brown v. City of New York, 2012 WL 628496 (E.D.N.Y. 2012) report and recommendation
adopted, 2012 WL 626395 (E.D.N.Y. 2012) ................................................................................58
Brown v. Patelco Credit Union, 2011 WL 4375865 (N.D. Ill. 2011) ...........................................37
Cabral v. City of New York, 2015 WL 4750675 (S.D.N.Y. Aug. 2015) .....................................15
Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002) ..........................................................5

iv

Canada Dry Delaware Valley Bottling Co. v. Hornell Brewing, Inc., 2013 WL 6171660
(S.D.N.Y. 2013) ............................................................................................................................57
CARCO GROUP, Inc. v. Maconachy, 718 F.3d 72, 88 (2d Cir. 2013) .......................................58
Castelluccio v. Int'l Bus. Machines Corp., 2014 WL 3696371 (D. Conn. 2014) .........................24
Catanzano v. Doar, 378 F. Supp. 2d 309 (W.D.N.Y. 2005) .........................................................25
Chu v. Boeing Co., 497 F. App'x 978 (Fed. Cir. 2012) ................................................................15
City of Riverside v. Rivera, 477 U.S. 561 (1986) ...................................................................26, 50
Clark v. Bend-La Pine Sch. Dist., 2013 WL 5536884 (D. Or. 2013) ...........................................38
Cohen v. Brown University, 2001 U. S. Dist. Lexis 22438 (D.R. I. 2001) ....................................9
Concrete Flotation Sys., Inc. v. Tadco Const. Corp., 2010 WL 2539771 (E.D.N.Y. 2010), report
and recommendation adopted, 2010 WL 2539661 (E.D.N.Y. 2010) ...........................................46
Correjter v. Port Authority of New York and New Jersey et. al., 11 Civ. 7847 (PGG) ...............57
Cronin v. Executive House Realty, 1982 WL 1303 (S.D.N.Y. 1982) ..........................................58
Davis v. New York City Hous. Auth., 2002 WL 31748586 (S.D.N.Y. 2002) .......................49, 50
DeCurtis v. Upward Bound Intern., Inc., 2011 WL 4549412 (S.D.N.Y. 2011) ...........................51
De La Riva Const., Inc. v. Marcon Eng'g, Inc., 2014 WL 794807 (S.D. Cal. 2014) ...................43
Delph v. Dr. Pepper Bottling Co. of Paragould, 1997 WL 16067 (E.D. Mo. 1997), aff'd, 130 F.3d
349 (8th Cir. 1997) ........................................................................................................................43
Deocampo v. Potts, 2014 WL 788429 (E.D. Cal. 2014) ..............................................................44
E. Associated Coal Corp. v. Dir., Office of Workers' Comp. Programs, 724 F.3d 561 (4th Cir.
2013) ...............................................................................................................................................5
Espinosa v. Wells Fargo Bank, N.A., 2014 WL 1017912 (Bankr. D. Or. 2014) .........................58
Evans v. Lafayette Ins. Co., 2008 WL 6928250 (E.D. La. Jan. 2008) ...........................................8
Fantasy, Inc. v. Fogerty, 94 F.3d 553 (9th Cir. 1996) .....................................................................3
Fox ex rel. Fox v. Barnes, 2013 WL 4401802 (N.D. Ill. 2013) ....................................................48

v

Frenkel v. New York City Off–Track Betting Corp., 611 F.Supp.2d 391 (S.D.N.Y.2009) ..........58
Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001) ............................24, 26
George v. GTE Directories Corp., 114 F. Supp. 2d 1281 (M.D. Fla. 2000) .................................50
Goodheart Clothing Co., Inc. v. Laura Goodman Enterprises, Inc., 962 F.2d 268 (2d Cir.1992) 13
Goos v. Nat'l Ass'n of Realtors, 68 F.3d 1380 (D.C. Cir. 1995), decision clarified on denial of
reh'g, 74 F.3d 300 (D.C. Cir. 1996) ..............................................................................................12
Groben v. City of New York, et al., No. 11 CV 6823 (S.D.N.Y.) ................................................25
Hardaway v. Ridgewood Corp., 706 F. Supp. 2d 436 (S.D.N.Y. 2010) .......................................11
Harris v. Superior Court of Arizona in & for Cty. of Maricopa, 2009 WL 775462 (D. Ariz.
2009), vacated sub nom. Harris v. Maricopa Cty. Superior Court, 631 F.3d 963 (9th Cir. 2011) .2
Heng Chan v. Sung Yue Tung Corp., 2007 WL 1373118 (S.D.N.Y. 2007) ................................50
Hensley v. Eckerhart, 461 U.S. 424(1983) ...................................................................................10
Hernandez v. Grullense,, 2014 WL 1724356 (N.D. Cal. 2014), appeal dismissed (July 2014) ...43
Hicks v. City of New York, Index No. 307045/2012 (N.Y. Sup. Ct.) ..........................................25
Hnot v. Willis Grp. Holdings Ltd., 2008 WL 1166309 (S.D.N.Y. 2008) .....................................35
Hurley v. Coombe,1996 WL 46889 (S.D.N.Y. 1996) ..................................................................35
Inclusive Communities Project, Inc. v. Texas Dep't of Hous. & Cmty. Affairs, 2013 WL 598390,
(N.D. Tex. 2013), rev'd and remanded, 747 F.3d 275 (5th Cir. 2014), aff'd and remanded, 135 S.
Ct. 2507 (2015) .............................................................................................................................34
ING Glob. v. United Parcel Serv. Oasis Supply Corp., 2014 WL 4090552 (S.D.N.Y. 2014) .......9
In re Cendant Corp. PRIDES Litig., 243 F.3d 722 (3d Cir. 2001) .................................................4
In re Clinkscale, 525 B.R. 399 (Bankr. W.D. Mich. 2015) ..........................................................28
In re Grand Jury Subpoenas Dated Mar. 24, 2003 Directed to (A) Grand Jury Witness Firm &
(B) Grand Jury Witness, 265 F. Supp. 2d 321 (S.D.N.Y. 2003) ..................................................33
In re Monahan Ford Corp. of Flushing, 390 B.R. 493 (Bankr. E.D.N.Y. 2008) ............................8
Jackson v. Jump, No. 2014 WL 10558844 (S.D. Ga. 2014) .........................................................44
vi

Johnson v. City of New York, 2016 WL 590457 (E.D.N.Y. 2016) .......................................23, 41
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) .......................................49
Kahlil v. Original Old Homestead Rest., Inc., 657 F. Supp. 2d 470 (S.D.N.Y.2009) ..................28
Kassim v. City of Schenectady, 415 F.3d 246 (2d Cir. 2005) ......................................................10
Kauffman v. Maxim Healthcare Servs., Inc., 2008 WL 4223616 (E.D.N.Y. 2008) ....................45
Kennelly v. State of Rhode Island, 682 F.2d 282 (1st Cir.1982) ..................................................16
K.F. v. New York City Dep't of Educ., 2011 WL 3586142 (S.D.N.Y. 2011), adhered to as
amended, 2011 WL 4684361 (S.D.N.Y. 2011) ......................................................................31, 48
Kim v. Kum Gang, Inc., 2015 WL 3536593 (S.D.N.Y. 2015) .....................................................24
Kovach v. City Univ. of New York, 2015 WL 3540798 (S.D.N.Y. June 2015) ..........................48
Kurzweil v. Philip Morris Companies, Inc., 1999 WL 1076105 (S.D.N.Y. Nov. 1999) ...............5
Lane v. Grant Cty., 2013 WL 5306986 (E.D. Wash. 2013) aff'd, 610 F. App'x 698 (9th Cir.
2015) .............................................................................................................................................15
Legrand v. City of New York, 2010 WL 742584 (S.D.N.Y. 2010) .............................................46
Lenihan v. City of New York, 640 F. Supp. 822 (S.D.N.Y. 1986) ..............................................26
Lightfoot v. Walker, 619 F. Supp. 1481 (S.D. Ill. 1985), aff'd, 826 F.2d 516 (7th Cir. 1987) .6, 26
Lilienthal v. City of Suffolk, 322 F. Supp. 2d 667 (E.D. Va. 2004) .............................................36
Lochren v. Cty. of Suffolk, 2008 WL 2039458 (E.D.N.Y. 2008) ..................................................3
Luca v. Cty. of Nassau, 2008 WL 2435569 (E.D.N.Y. 2008), aff'd in part, vacated in part,
remanded, 344 F. App'x 637 (2d Cir. 2009) .................................................................................36
Lunday v. City of Albany, 42 F.3d 131 (2d Cir.1994) .................................................................11
LV v. New York City Dep't of Educ., 700 F. Supp. 2d 510 (S.D.N.Y. 2010) .............................51
Makinen v. City of New York, 2016 WL 1451543 (S.D.N.Y. 2016) ...........................................35
Marisol A. ex rel. Forbes v. Giuliani, 111 F. Supp. 2d 381 (S.D.N.Y. 2000) ........................48, 49
Marshall v. Randall, et ano., 10 CV 2714 (JBW) (VVP) (E.D.N.Y. 2013) ..................................47
vii

Martinez v. Port Auth. of N.Y. & N.J., 2005 WL 2143333 (S.D.N.Y. 2005), aff'd sub nom.
Martinez v. The Port Auth. of New York & New Jersey, 445 F.3d 158 (2d Cir. 2006) ..............16
Matthews v. City of New York, et al., No. 12 CV 1354 (S.D.N.Y.) ............................................25
McCown v. City of Fontana, 565 F.3d 1097 (9th Cir. 2009) .................................................15, 16
Meriwether v. Coughlin, 727 F. Supp. 823 (S.D.N.Y. 1989) .......................................................23
Merrick v. D.C., 2015 WL 5732105 (D.D.C. Sept. 2015) ............................................................12
Messer v. Astrue, 2012 WL 136270 (D. Neb. 2012) ......................................................................4
Millea v. Metro N. R. Co., 658 F.3d 154 (2d Cir. 2011) ..............................................................52
Moreno v. City of Sacramento, 534 F.3d 1106 (9th Cir. 2008) ....................................................30
Moriarty v. Muzyka, 2006 WL 224098 (N.D. Ill. 2006) ..............................................................48
Munson v. Milwaukee Bd. of Sch. Directors, 969 F.2d 266 (7th Cir. 1992) ...............................15
Mugavero v. Arms Acres, Inc., 2010 WL 451045 (S.D.N.Y. 2010) ......................................11, 47
Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319 (D.C.Cir.1982) ................9, 26
Nautilus Neurosciences v. Fares, 2014 WL 1492481 (S.D.N.Y. 2014) .......................................57
New York Dist. Council of Carpenters Pension Fund v. Perimeter Interiors, Inc., 657 F.Supp.2d
410 (S.D.N.Y. 2009) .....................................................................................................................57
New York State Nat. Org. for Women v. Terry, 94 F. Supp. 2d 465 (S.D.N.Y. 2000) ................49
Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292 (11th Cir. 1988) ......................30
Norwood v. City of Yonkers, et al., 12 Civ. 8828 (LMS) ............................................................57
Oakley v. City of Memphis, 2012 WL 2682755 (W.D. Tenn. 2012), report and recommendation
adopted, 2012 WL 2681822 (W.D. Tenn. 2012), aff'd, 566 F. App'x 425 (6th Cir. 2014) ...........37
O’Hara v. City of New York, et. al., 11 Civ. 3990 (TLM) (RML) (March 16, 2015 E.D.N.Y.) ..53
Perez v. Siragusa, 2008 WL 2704402 (E.D.N.Y. 2008) ...............................................................44
Pers. v. NCO Fin. Sys., Inc., 2011 WL 3654452 (D. Kan. 2011) .................................................13

viii

Pilkington v. Bevilacqua, 522 F. Supp. 906 (D.R.I. 1981) ...........................................................49
Playtex Prods. v. Procter & Gamble Co., 2003 U.S. Dist. LEXIS 8913, (S.D.N.Y. 2003) ............7
Proctor v. Educ. Credit Mgmt. Corp., 2010 WL 4919670 (S.D. Ohio Nov. 2010) ........................8
Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1999) ............................................................15
Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481 (2d Cir.1999) .........................13
Restivo v. Nassau Cty., 2015 WL 7734100 (E.D.N.Y. 2015) .............................................. Passim
Richards v. New York City Bd. of Educ., 1988 WL 70209 (S.D.N.Y. 1988) ..............................26
Ricks v. Barnes, 2007 WL 956940 (D.D.C. 2007) .........................................................................5
RJM v. Astrue, 2009 WL 2382679 (S.D. Ind. 2009) ......................................................................3
Robinson v. City of New York, 2009 WL 3109846 (S.D.N.Y. 2009) ...................................11, 51
Rodriguez v. Puerto Rico, 764 F. Supp. 2d 338 (D.P.R. 2011) ....................................................38
Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1st Cir. 1998) ................................24, 26
Rodriguez ex rel. Kelly v. McLoughlin, 84 F. Supp. 2d 417 (S.D.N.Y. 1999) .................... Passim
Rogers v. Cofield, 935 F. Supp. 2d 351 (D. Mass. 2013) .............................................................38
Rozell v. Ross-Holst, 576 F. Supp. 2d 527 (S.D.N.Y. 2008) .................................................51, 56
Scott v. City of New York, 643 F.3d 56 (2d Cir. 2011) ...............................................................51
Siracuse v. Program for the Dev. of Human Potential, 2012 WL 1624291 (E.D.N.Y. 2012) ......46
Simmons v. New York City Transit Auth., 575 F.3d 170 (2d Cir. 2009) ............................ Passim
Slabaugh v. State Farm Fire & Cas. Co., 2014 WL 1767088 (S.D. Ind. 2014) ..............................5
Stanczyk v. City of New York, 990 F.Supp. 2d 242 (E.D.N.Y. 2013) .........................................53
Statler v. Buffalo-Bodega Complex, Inc., 2008 WL 4695118 (D.S.D. 2008) ..............................15
Steiner v. Lewmar, Inc., 2016 WL 860359 (2d Cir. Mar. 7, 2016) ..............................................13
Stinson v. City of New York, 2012, U.S. Dist. LEXIS 56748 (S.D.N.Y. 2012) ....................25, 55

ix

Sugarman v. Vill. of Chester, 213 F. Supp. 2d 304 (S.D.N.Y. 2002) ...........................................35
Takeda Chemical Industries v. Mylan Laboratories, Inc., 2007 U. S. Dist. Lexis 19614 (S.D.N.Y.
2007) ................................................................................................................................................7
Tchemkou v. Mukasey, 517 F.3d 506 (7th Cir. 2008) ....................................................................4
Torres v. Walker, 356 F.3d 238 (2d Cir. 2004) .......................................................................13, 14
Tottey v. Life Ins. Co. of N. Am., 2009 WL 3764222 (N.D.N.Y. 2009) .....................................34
Townes v. City of New York, 2013 WL 153726 (E.D.N.Y. 2013) ..............................................39
Tucker v. City of New York, 704 F. Supp. 2d 347 (S.D.N.Y. 2010) ...........................................22
Uniroyal Goodrich Tire Co. v. Mut. Trading Corp., 63 F.3d 516 (7th Cir. 1995) .......................11
U.S. Football League v. Nat'l Football League, 704 F. Supp. 474 (S.D.N.Y.) aff'd, 887 F.2d 408
(2d Cir. 1989) ..........................................................................................................................32, 33
Valdez v. Squier, 676 F.3d 935 (10th Cir. 2012) ..........................................................................14
Veterans Educ. Project v. Secretary of the Air Force, 515 F.Supp. 993 (D.D.C.1981) .........26, 27
Welch v. Metro. Life Ins. Co., 480 F.3d 942 (9th Cir. 2007) .......................................................51
Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F. Supp. 509 (S.D.N.Y.
1984) .......................................................................................................................................24, 26
Wise v. Kelly, 620 F.Supp.2d 435 (S.D.N.Y.2008) ...............................................................50, 56
Zahrey v. City of New York, et al., 98 Civ. 4546 (DCP) (JCF) ...................................................51

x

PRELIMINARY STATEMENT
Plaintiff Adrian Schoolcraft respectfully submits this Memorandum of Law in Reply to
defendants’ brief in opposition to plaintiff’s fee petition. 1 (“Def. Mem.”). In their opposition
brief, defendants attack virtually every conceivable aspect of plaintiff’s fee petition in order to
support their drastic reduction of plaintiff’s fees (78% of the total amount). Yet, as detailed
below, defendants’ analysis is plagued with erroneous factual assertions, mistaken assumptions,
and incorrect statements of law. In place of a proper substantive analysis, defendants have
chosen to launch ad hominem attacks against plaintiff’s counsel and have vastly understated the
complexity of this case. Moreover, defendants have wholly disregarded plaintiff’s undisputed
success in this case, which the Supreme Court has held is the single most important factor in
assessing a fee petition. In sum, defendants’ vitriolic attacks and hyperbole cannot alter a simple
fact: defendants have contractually obligated themselves to pay reasonable attorneys’ fees in this
action. Defendants are now bound by this decision, and their personal attacks on counsel and
flawed legal analysis cannot help them avoid this obligation.
ARGUMENT
I.

DEFENDANTS VASTLY UNDERSTATE THE COMPLEXITY AND SCOPE OF
THE SCHOOLCRAFT MATTER.
In seeking a massive fee reduction, defendants attempt to minimize the complexity of this

matter, referring to it as a “single-plaintiff civil rights action,” which was “centered on a single
incident” and involved only “one individual.” (Def. Mem. at 1, 10-12). In fact, nothing could be
further from the truth. This case did not begin and end with the events of October 31, 2009.
Rather, it involved a series of complicated and interrelated events that spanned a period of one                                                            
1

This Memorandum of Law relates solely to the hours and fees submitted by the Norinsberg Team. The Smith team
has submitted a separate reply brief to address the specific attacks made on their bills.

‐1‐

and-one-half years, from January 2009 until June 2010. It involved allegations of serious
misconduct against some of the highest-ranking members of the NYPD. It spawned lengthy
investigations by three separate NYPD agencies – the Quality Assurance Division (“QAD”),
Internal Affairs, and the Brooklyn North Investigations Unit – regarding P.O. Schoolcraft’s
allegations of downgrading, quotas and retaliation. 2 And it involved repeated attempts at
harassment and retaliation by the NYPD against Officer Schoolcraft at his home in upstate New
York, long after he was discharged from Jamaica Hospital.
A review of court filings on the Docket Sheet further confirms the magnitude and
complexity of this case. The Court’s summary judgment opinion alone was over 200 pages long,
with 71 pages of facts set forth in individually numbered paragraphs. The defendants’ JPTO,
which itself was 40 pages long, listed over 500 exhibits and over 100 potential witnesses from all
parties. (Docket No. 477-1). In fact, defendants represented to the Court that “the trial is
expected to last forty (40) trial days,” or 8 weeks. (Id.). In short, this was simply not a “singleplaintiff civil rights action” nor did it involve a “single incident”, as defendants falsely suggest.
II.

DEFENDANTS’ FORMULAIC COMPARISON TO OTHER “SIMILAR” CASES
IS NEITHER RELEVANT NOR USEFUL IN DETERMINING THE
REASONABLENESS OF THE FEES SOUGHT HERE.
Defendants’ legal analysis is based on irrelevant, unhelpful and distorted comparisons to

other civil rights cases in order to support the drastic fee reduction that they seek. As courts have
recognized, however, such an approach is “pointless because each case is unique and requires
different work.” Harris v. Superior Court of Arizona in & for Cty. of Maricopa, 2009 WL
775462, at *15 (D. Ariz. 2009), vacated sub nom. Harris v. Maricopa Cty. Superior Court, 631

2

The QAD investigation alone involved interviewing 43 police officers and reviewing over 1,000 crime reports,
culminating in a 95 page single-spaced report that corroborated P.O. Schoolcraft’s allegations and concluded, inter
alia, that defendants had, in fact, engaged in a “concerted effort to deliberately underreport crime in the 81st
Precinct.”

‐2‐

F.3d 963 (9th Cir. 2011) (emphasis supplied). Indeed, the reasonableness of a fee application is
inherently fact-specific and must be decided on a case-by-case basis. See Fantasy, Inc. v.
Fogerty, 94 F.3d 553, 561 (9th Cir. 1996) (“Fantasy's comparisons to fee awards in other cases
are largely irrelevant, and certainly not determinative, inasmuch as the reasonableness of a
particular fee award depends on a case-by-case analysis.”) (emphasis supplied). Accordingly,
defendants’ comparison to “other cases solely on the number of attorney hours expended,
without more, does nothing to support a finding of reasonableness in this case [because] [t]he
complexity, number and types of issues, the size of the underlying record, and other factors
cannot be compared based only on the numbers of hours spent.” RJM v. Astrue, 2009 WL
2382679, at *1 (S.D. Ind. 2009) (emphasis supplied).
A.

The Cases Relied Upon By Defendants Fail to Provide an Accurate
Comparison.

Defendants principally rely on Adorno v. Port Auth. of New York & New Jersey, 685 F.
Supp. 2d 507, 516 (S.D.N.Y. 2010), on reconsideration in part, 2010 WL 727480 (S.D.N.Y.
2010) and Lochren v. Cty. of Suffolk, 2008 WL 2039458, at *5 (E.D.N.Y. 2008), vacated, 344 F.
App'x 706 (2d Cir. 2009), in an overly simplistic attempt to argue that reductions should be made
here because they were made in those cases.

(Def. Br. at 7, 8, 22, 23, 33, 59).

These

comparisons fail for several reasons.
First, a simple review of the docket entries in both Adorno and Lochran reveal that – as a
matter of mathematical proportions – this matter was six times the size of Adorno (101 entries,
versus 616 in this case) and at least three times the size of Lochran (208 entries). Further, unlike
the present matter, Adorno was a straightforward Title VII discrimination case and contained no
Monell claim for pervasive and massive departmental corruption. Adorno, 685 F. Supp. at 510.

‐3‐

It had only three defendants, all of whom were represented by the same legal team, versus
seventeen defendants represented by five separate legal teams. Id. The trial lasted only “ten
days,” versus the City Defendants’ estimate that the trial here would last “forty (40) trial days,”
with over 100 proposed witnesses on the JPTO. (Docket No. 477-1). There were 24 depositions
in Adorno, versus 38 depositions in this case. There were 11,000 documents in Adorno, versus
over 15,000 documents here, as well as hundreds of hours of audio/visual evidence. (Id.) at 15.
A similar disparity is also present in the facts of Lochren, which involved a claim of
pregnancy discrimination based on a single employment policy that applied to all plaintiffs.
Lochran pales in comparison to the complexity and novelty of the instant matter. Indeed, the
Lochran court “question[ed] why the plaintiffs required four attorneys to try a week long civil
rights case,” and the necessity of sixteen plaintiff's attorneys (as opposed to five in this matter) 3
“given the [minimal] number of plaintiffs [and] witnesses” Id. at *5.
In sum, defendants’ attempt to reduce the fees here by using a “formulaic” comparison of
the hours spent in “other civil rights cases” is baseless. In re Cendant Corp. PRIDES Litig., 243
F.3d 722, 736 (3d Cir. 2001); Tchemkou v. Mukasey, 517 F.3d 506, 511 (7th Cir. 2008) (“We do
not believe that a comparison of raw numbers of hours is helpful in determining whether the
hours here were “reasonably expended.”). Accordingly, this Court should reject defendants’
suggestion to “reduce the attorney's fee award based solely on its relationship to awards that
were approved in other cases.” Messer v. Astrue, 2012 WL 136270, at *2 (D. Neb. 2012).

3

Although there were 8 overall attorneys who performed some amount of billable work over the six years that this
case was litigated, only five attorneys (i.e., Jon Norinsberg, Nathaniel Smith, John Lenoir, Joshua Fitch and Gerald
Cohen) accounted for 96% of the legal work submitted in the fee application (76% of the total work overall
including paralegal time).

‐4‐

B.

Defendants’ Boilerplate Objections to the “Unprecedented” Size of Plaintiff’s
Fee Petition Should Be Rejected.

Defendants argue that an enormous fee reduction is warranted simply because plaintiff’s
fee application “is without precedent for a single-plaintiff civil rights action.” (Def. Mem. at 1).
However, contrary to defendants’ contentions, “[t]he allegedly ‘unprecedented size of the award’
does not automatically make it unreasonable.” Cairns v. Franklin Mint Co., 292 F.3d 1139, 115859 (9th Cir. 2002). Instead, “it is the duty of the Court to examine the reasonableness of the
allegations in the motion before it, not to make a finding based on allegations that have been
brought before other courts.” Slabaugh v. State Farm Fire & Cas. Co., 2014 WL 1767088, at *3
(S.D. Ind. 2014).
Here, defendants’ brief consists largely of boilerplate claims that counsel took excessive
time to perform each and every task alleged. However, this generic attack is wholly inadequate,
and if accepted, would “improperly [] escalate a fee applicant's present burden” and would
render the analysis of reasonable fees meaningless in any given context. E. Associated Coal
Corp. v. Dir., Office of Workers' Comp. Programs, 724 F.3d 561, 577 (4th Cir. 2013). Without a
substantive analysis by defendants as to why such work was excessive – notwithstanding the vast
scope and complexity of this case – this Court should “reject [such] conclusory arguments in
opposition to a fee petition.” Ricks v. Barnes, 2007 WL 956940, at *8 (D.D.C. 2007); see also,
Kurzweil v. Philip Morris Companies, Inc., 1999 WL 1076105, at *3 (S.D.N.Y. 1999):
Although I have an independent obligation to determine a reasonable fee in this
case, I see no need to reduce arbitrarily the amount requested by able and diligent
counsel merely to demonstrate that I have fulfilled that obligation. Plaintiffs'
counsel have requested a reasonable fee and they will receive it.
Id.

‐5‐

In short, defendants’ arguments regarding the excessiveness of the hours spent by counsel
“consists of abstract references to specific attorneys' hours during various time periods,” which is
simply insufficient to establish that the hours were excessive or that the case was overstaffed.
Restivo v. Nassau Cty., 2015 WL 7734100, at *4 (E.D.N.Y. 2015). 4
III.

DEFENDANTS’ “EXPERT” REPORT IS NOT ADMISSIBLE UNDER RULE 702
AND SHOULD BE DISREGARDED BY THE COURT.
A.

Ms. Bronsther’s Self-Serving and Conclusory Opinions Do Not Help the
Court “Understand the Evidence” or “Determine a Fact in Issue.”

Under the guise of providing “help” to the Court in deciding this motion, defendants offer the
“expert” opinion of Judith Bronsther. However, Ms. Bronsther’s report consists of little more
than unsupported and conclusory “expert” opinions, such as: i) “this work did not advance the
interests of the litigation”; ii) this work was an “unnecessary time expenditure;” iii) this work
“was not related to the litigation;” or iv) “this duplication of effort was especially wasteful.”
Simply put, Ms. Bronsther’s subjective opinions about the reasonableness of counsels’ fees and
their billing practices are not proper subjects of expert testimony, and cannot survive the Daubert
analysis, which is a threshold admissibility issue. 5 Since Ms. Bronsther’s opinions fail to meet
the threshold requirements for admissibility under Rule 702, they should be disregarded in their
entirety by the Court. 6

4

Moreover, defendants’ claim that the fee amount sought here is “without precedent” is simply wrong. Both Restivo
v. Nassau Cty., 2015 WL 7734100, at *4 (E.D.N.Y. 2015) and Lightfoot v. Walker, 619 F. Supp. 1481, 1488 (S.D.
Ill. 1985), aff'd, 826 F.2d 516 (7th Cir. 1987), involve comparable hours and litigation. Specifically, the court in
Lightfoot not only found that over 6000 hours was reasonable, but that this amount was actually “conservative” and
that “a great deal of time [was] greatly understated or totally excluded.” Id. at 1487. Likewise, in Restivo, the Court
found that 11,000 hours was reasonable. Thus, defendants’ claim that the fee request here is unprecedented is wrong
and should be rejected.
5
Defendants implicitly acknowledge that Ms. Bronsther’s “opinions” are most likely not admissible: “Even if the
[Report] is not deemed admissible as expert testimony per se, it is a useful guide for the Court to the contents of
plaintiff’s submission and counsel’s billing practices.” (Def. Mem at 2, n. 4.) (emphasis supplied).  
6
Plaintiff has filed a separate motion to strike the expert report of Ms. Bronsther (Docket No. 605), which is
currently pending before the Court.

‐6‐

B.

Ms. Bronsther’s Opinions Are Not Based on Generally Accepted Billing
Practices.

Ms. Bronsther does not employ any objective methodology to support her conclusions.
Rather, her “expert” opinions are based on her own subjective views about the reasonableness of
the fees and the bills. Yet, purely subjective opinions are improper under Rule 702. See Playtex
Prods. v. Procter & Gamble Co., 2003 U.S. Dist. LEXIS 8913, (S.D.N.Y. 2003) (holding that
"heavy reliance on [a party's] subjective view, without analysis of the basis for that party's
conclusion, is wholly insufficient to survive a Daubert motion"). Indeed, Ms. Bronsther’s Report
does not cite any established or peer-based standards about which there are any generally
accepted methodologies. Instead, Ms. Bronsther claims to have read some of the materials filed
in the public record in this action, and offers her own conclusions as a lawyer about the
reasonableness of the fees and bills submitted. Yet, courts have repeatedly rejected this type of
opinion evidence. See, e.g., Takeda Chemical Industries v. Mylan Laboratories, Inc., 2007 U. S.
Dist. Lexis 19614 (S.D.N.Y. 2007) ("legal fee auditor" opinion in a fee application was
inadmissible under Daubert).
Further, Ms. Bronsther fails to identify any cognizable standard to support the
conclusions in her expert report. Instead, Ms. Bronsther simply opines that “most lawyers do not
pass the auditor’s tests of efficiency, reasonableness and cost-effectiveness.” Watching the
Clock, by Judith Bronsther, LOS ANGELES DAILY JOURNAL, May 4, 1999 at p. 8 (emphasis
supplied). Thus, while Ms. Bronsther "purports to apply generally accepted billing practices,”
in fact, she “has failed to show that there is any such standard, or that [she] has followed any
recognized standard in preparing his evaluation of [plaintiff's] fee request," which is fatal to her
"expert" analysis. Takeda, 2007 WL 840368 at *7 (emphasis added).

‐7‐

In sum, whether labeled an “expert opinion” or a “useful guide” (Def. Mem. at 2, n.4),
Ms. Bronsther’s opinions are not admissible on this motion. See Evans v. Lafayette Ins. Co.,
2008 WL 6928250, at *1 (E.D. La. 2008) (excluding attorney's fees expert because "[t]he issue
of amount of attorneys' fees will be decided by the court rather than the jury."); In re Monahan
Ford Corp. of Flushing, 390 B.R. 493, 504 (Bankr. E.D.N.Y. 2008) (“a judge, who routinely
observes and evaluates the professional performance of attorneys in bankruptcy cases, is better
situated than a law professor to judge the professional competence of debtor's counsel"); Proctor
v. Educ. Credit Mgmt. Corp., 2010 WL 4919670, at *6 (S.D. Ohio 2010) ("Indeed, it is not even
necessary for defendant to provide an expert witness regarding the reasonableness of its attorneys
fees because the court “is itself an expert on the question.' "). Rather, it is this Court who must
decide the issues on this fee motion – based on the Court’s decades of experience and based on
the Court’s direct and personal knowledge of the this action, which has been pending before
Your Honor for the past six years – and not a non-practicing, non-civil rights attorney hired by
the City of New York to admittedly “reduc[e] their legal fees.” Accountability Services, Inc.
website at http://www.legalbills.com/, visited April 29, 2016.
C.

Ms. Bronsther’s Report is Rife with Erroneous Facts and Mistaken
Assumptions.

Apart from the conclusory nature of Ms. Bronsther’s opinions, her “expert” opinion is
riddled with erroneous factual assertions, mistaken assumptions and unsupported conclusions.
These fundamental flaws – which are discussed in detail below, see Pt. V(A), Pt. VI, and Pt. VII,
infra. – provide further reason to doubt the accuracy of her report and the validity of her findings.
In fact, this is not the first time such issues have plagued a report produced by Ms. Bronsther.

‐8‐

See e.g., Cohen v. Brown University, 2001 U. S. Dist. Lexis 22438 at * 32-33 (D.R. I. 2001). In
that case, the court rejected her report about the legal fees as unreliable, stating:
Plaintiffs assert that [Bronsther’s report] is completely unreliable and full of
errors. ‘The errors range from apparent transcription and coding errors to
wholesale rewriting of plaintiffs’ actual records. The labeling and categorization
by Brown also exhibited a lack of familiarity with the record, the witnesses and
the proceedings.’ After comparing Brown’s App. B, Ex. B-1 with [plaintiffs’
counsel’s] time records, the court agrees that Plaintiffs’ criticism of Brown’s
App. B, Ex. B-1 is valid.
Id. (Ms. Bronsther was the individual who had prepared the analysis relied upon by
defendant Brown University).
Ms. Bronsther’s report in this case is likewise “completely unreliable and full of errors,”
(id.), should be rejected by the Court here as well.
D.

Defendants’ Mere Parroting of Their Expert’s Findings Does Not Satisfy
Their Burden in Opposing the Fee Application.

Defendants’ brief largely parrots the flawed conclusion of their expert. As a result,
defendants’ arguments are equally flawed, and defendants have failed to meet their burden in
opposing plaintiff’s fee application. Just “[a]s the district court must be reasonably precise in
excluding hours thought to be unreasonable or unnecessary, so [too] should be the objections and
proof from fee opponents.” ING Glob. v. United Parcel Serv. Oasis Supply Corp., 2014 WL
4090552, at *4 (S.D.N.Y. 2014); B-K Cypress Log Homes Inc. v. Auto-Owners Ins. Co., 2011
WL 6151507, at *2 (N.D. Fla. 2011), report and recommendation adopted, 2011 WL 6152082
(N.D. Fla. 2011) (rejecting defendants’ “arbitrar[y] [request to] reduce the corresponding fees by
one-third” because they “fail[ed] to specify why these entries are excessive, redundant, or
otherwise unnecessary”); Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319,
1337-38 (D.C.Cir.1982) (“Just as the [fee] applicant cannot submit a conclusory application, an

‐9‐

opposing party does not meet his burden merely by asserting broad challenges to the
application.”).
IV.

DEFENDANTS SEEK A REDUCTION OF FEES BASED ON IMPROPER
LEGAL GROUNDS.
A.

Where the Ultimate Success is Not Disputed, Success on Individual Claims or
Against Individual Defendants is Irrelevant to the Lodestar Calculation.

It is well-settled that “[w]here a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee...encompass[ing] all hours reasonably expended...[and]
should not be reduced simply because the plaintiff failed to prevail on every contention raised in
the lawsuit.” Kassim v. City of Schenectady, 415 F.3d 246, 253 (2d Cir. 2005) (emphasis
supplied). Thus, “[l]itigants in good faith may raise alternative legal grounds for a desired
outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason
for reducing a fee. The result is what matters.” Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)
(emphasis supplied).
Here, defendants have implicitly conceded plaintiff’s overall success in this case. In fact,
defendants have expressly disavowed any reduction of fees based on degree of success. (See Def.
Mem. at 16) (“the City does not argue for a reduction in the fee award as a result of the
plaintiff’s mixed success”). Nevertheless defendants argue that plaintiff’s hours must be reduced
for time spent on the claims involving the Medical Defendants, or on claims against defendants
that were “unsuccessful” as part of the initial lodestar analysis. (Def. Br. at 13-16; 26-30).
However, it is well-settled that the degree of success calculation is not included within the
Johnson factors used to first calculate the lodestar, or presumptively reasonable fee, but rather,
that “[f]ollowing 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

‐10‐

such as the extent of plaintiff's success in the litigation.” Robinson v. City of New York, 2009
WL 3109846, at *3 (S.D.N.Y. 2009); Mugavero v. Arms Acres, Inc., 2010 WL 451045, at *3
(S.D.N.Y. Feb. 9, 2010)(same) (citing Lunday v. City of Albany, 42 F.3d 131, 134 (2d
Cir.1994); Hardaway v. Ridgewood Corp., 706 F. Supp. 2d 436, 439 (S.D.N.Y. 2010)(“courts in
the Second Circuit have continued the traditional practice of calculating a ‘reasonable fee’ first,
and then considering whether limited success mandates a percentage reduction.”).
Indeed, it is only, where “a plaintiff has achieved only partial or limited success” that the
lodestar may be later reduced “by considering the relationship of successful and unsuccessful
claims to the amount of success achieved.” Kassim, 415 F.3d at 253. Similarly, while courts may
“exclude time spent on unsuccessfully pursued, distinct claims” when they are “distinctly
different claims for relief that are based on different facts and legal theories,” they can only do so
in “situations in which a Court [] reduce[s] fees for limited success.” Hardaway, 706 F. Supp. 2d
at 439. A fortiori, since defendants have expressly disclaimed any post-lodestar reduction based
on any purported lack of success, they cannot attempt to discount any of plaintiffs’ hours on a
per-claim or per-defendant basis as part of the initial lodestar calculation.
B.

Since All Claims Share a Common Core of Facts and Legal Issues, There is
No Basis to Reduce Fees for the “Unsuccessful” Claims.

Even assuming, arguendo, that this Court were to ignore the defendants’ concession
regarding plaintiff’s success, the time spent on losing theories or on losing issues is still
compensable if plaintiff is found to be a prevailing party in the case as a whole. In particular, so
long as the suit as a whole involved a “common core of facts” and involved “related legal
theories,” all the time spent on the case—including time spent on losing motions—must be
compensated. See Kassim, 415 F.3d at 253; see also Uniroyal Goodrich Tire Co. v. Mut. Trading

‐11‐

Corp., 63 F.3d 516, 526 (7th Cir. 1995) (“[The defendant] seeks to exclude fees incurred for any
work performed by Uniroyal’s attorneys on motions which were eventually denied… Common
sense, however, informs us that such a rule is inappropriate.”). Thus, where – as here – “the
claims all share a common core of facts and legal issues; counsel's time spent pursuing
‘alternative ways to obtain relief’ is therefore compensable.” Baird v. Boies, Schiller & Flexner
LLP, 219 F. Supp. 2d 510, 522 (S.D.N.Y. 2002).
Indeed, it is only “[w]here a related claim would potentially have yielded the plaintiff
additional relief [that] the failure on that claim will of course be relevant in determining the
plaintiff's overall success.” Goos v. Nat'l Ass'n of Realtors, 68 F.3d 1380, 1387 (D.C. Cir. 1995),
decision clarified on denial of reh'g, 74 F.3d 300 (D.C. Cir. 1996). Accordingly, if “the
unsuccessful claim could not have given relief beyond the scope of the successful claim, th[at]
fact of failure is not an independent basis for a reduction.” Merrick v. D.C., 2015 WL 5732105,
at *4 (D.D.C. 2015).
In the present case, defendants have never argued – nor could they – that any of the
claims dismissed on summary judgment would have given plaintiff relief beyond the scope of
what he obtained through the Rule 68, to wit, compensatory damages for his loss of liberty and
emotional distress, as well as back pay and future pension benefits. Therefore, defendants cannot
seek a reduction of fees on that basis. As such, even if any alleged lack of success on any
individual claims could be considered in this case – which it cannot – defendants’ proposed
reductions that rely on distinguishing work on a per defendant, or per claim, basis must fail.

‐12‐

C.

Defendants’ Proposed Reductions Based on Claims Allegedly "Unrelated" to
the Municipal Defendants Fail as a Matter of Law
i.

Defendants Cannot Propose Reductions in Contravention of the Plain
Language of the Rule 68 Offer.

Defendants claim that plaintiff should not be compensated for time spent on any work
relating to the Medical Defendants or any work performed on claims unrelated to his federal
claims against the Municipal defendants. However, it is well-settled that “Offers of judgment
pursuant to Fed.R.Civ.P. 68 are construed according to ordinary contract principles.” Goodheart
Clothing Co., Inc. v. Laura Goodman Enterprises, Inc., 962 F.2d 268, 272 (2d Cir.1992). Further,
"courts must 'take care not to alter or go beyond the express terms of the agreement, or to impose
obligations on the parties that are not mandated by the unambiguous terms of the agreement
itself.'” Steiner v. Lewmar, Inc., 2016 WL 860359, at *3 (2d Cir. 2016); Red Ball Interior
Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir.1999) (same). Therefore, “[t]he
court's authority to award attorneys' fees and costs in this case is a function of the parties'
agreement reached through the Rule 68 procedure [, and the] court is to enforce a Rule 68
agreement guided by common principles of contract law,” based on the express terms of the Rule
68 offer. Pers. v. NCO Fin. Sys., Inc., 2011 WL 3654452, at *1 (D. Kan. 2011).
Here, defendants’ Rule 68 offer of judgment states that "[s]hould plaintiff accept this
offer of judgment, plaintiff shall be entitled to reasonable attorneys' fees, expenses, and costs to
the date of this offer for plaintiff's federal claims." (Dkt. 531). The language of the Rule 68 made
no limitation on fees that accrued in connection with certain defendants, claims or on the basis of
which claims or defendants succeeded. Consequently, having incorporated no express limitations
on fees within the Rule 68 itself, defendants cannot now suggest – as they do in their opposition
brief – that such limitations should be impliedly read into the terms of the contract.  Torres v.

‐13‐

Walker, 356 F.3d 238, 245-46 (2d Cir. 2004) (“a party cannot create an ambiguity in an
otherwise plain agreement merely by urg[ing] different interpretations in the litigation.”).
In other words, defendants could have easily written into the Rule 68 that they would
only pay reasonable attorney's fees on "successful claims," "successful motions," "claims related
solely to the City defendants," but they chose not to do so. See e.g., Steiner, 2016 WL 860359, at
*3. ("The simplest way for parties to avoid ambiguity—and the risk of further litigation—is to
refer explicitly to “attorneys' fees” in the written Rule 68 offer."). Accordingly, since no such
limitation was included in the express terms of the agreement, none can be incorporated now into
the plain language of the contract ‒ against plaintiff who did not draft it ‒ and serve as a basis for
a fee reduction. See e.g., Torres v. Walker, 356 F.3d 238, 245-246 ("[E]ven assuming the
language in the stipulation regarding payment of reasonable attorneys' fees to be ambiguous, any
ambiguity therein must be construed against Defendants, who drafted the stipulation."); Valdez
v. Squier, 676 F.3d 935, 949 (10th Cir. 2012) ("[T]he Secretary of State argues that, 'because
[plaintiffs] did not segregate their fees on a defendant-by-defendant basis, [plaintiffs] failed to
provide an adequate lodestar justification...however, nothing in the parties' settlement agreement
required plaintiffs to segregate their fees on this basis."). Thus, defendants should not be
allowed to make reductions for categories of work (i.e., against certain defendants or for certain
claims) that were never incorporated into the Rule 68 offer.
ii. 

All Work Relating To The Medical Defendants Must Be
Compensated, As Such Work Was Inextricably Intertwined With The
Claims Against The Municipal Defendants

Setting aside the impropriety of defendants’ proposed reduction under the plain language
of the Rule 68, the mechanical method of reducing fees suggested by defendants ignores the
general rule that “if a plaintiff prevails on a claim that generates a fee award, he may recover for

‐14‐

work done on other claims if they were substantially related to the claim on which he prevailed."
Cabral v. City of New York, 2015 WL 4750675, at *10 (S.D.N.Y. 2015) (citation omitted). As
one Circuit court noted, "separating out the legal services rendered with respect to these
overlapping claims would be an exercise in futility.'” Chu v. Boeing Co., 497 F. App'x 978, 988
(Fed. Cir. 2012); see also McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009) ("in
a lawsuit where the plaintiff presents different claims for relief that “involve a common core of
facts” or are based on 'related legal theories,' the district court should not attempt to divide the
request for attorney's fees on a claim-by-claim basis."). Indeed, it is well established that
"[a]ttorney's fees may be awarded for unsuccessful claims as well as successful ones, however,
where they are ‘inextricably intertwined’ and ‘involve a common core of facts or are based on
related legal theories.’” Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999); Munson
v. Milwaukee Bd. of Sch. Directors, 969 F.2d 266, 271-72 (7th Cir. 1992) ("denying the
prevailing plaintiff compensation for work done on unsuccessful pendent state law claims in a
civil rights action, even if the pendent claims were not directly compensable under a fee-shifting
statute, would be “contrary to the precepts established in Hensley ... because it [would fail] to
consider the interrelated nature of the lawsuit as a whole.”) (citation omitted).
Similarly, defendants cannot exclude claims on a per defendant basis where the lawsuit
as a whole is ‒ as it was here ‒ was based on a unified and connected set of facts and claims.
Lane v. Grant Cty., 2013 WL 5306986, at *6 (E.D. Wash. 2013) aff'd, 610 F. App'x 698 (9th Cir.
2015) ("Claims are related for purposes of determining attorney's fees even though they are
brought on the basis of different legal theories against different defendants if the claims arose
from a common core of facts.")(emphasis added); Statler v. Buffalo-Bodega Complex, Inc., 2008
WL 4695118, at *1 (D.S.D. 2008) (finding that the work done in connection with state law

‐15‐

claims against different defendants compensable because the work was "subsumed within the
attorney fees generated in establishing a Title VII violation.").
In this case, the claims against the Medical Defendants and the work done in connection
therewith was essential and inseparable from the federal claims, and is thus compensable.
McCown, 565 F.3d at 1103:
Each of McCown's claims, though brought on the basis of different legal theories
against different defendants, arose from a common core of facts, namely, his
arrest on June 2, 2004. Therefore, the district court did not abuse its discretion
when it treated all the claims, successful and unsuccessful, as arising out of a
common core of facts.
Id. (emphasis added).
Finally, since during “the course of pretrial discovery it [is] incumbent upon plaintiffs'
counsel to explore the degree of participation” of related defendants in order to successfully
pursue the claim, this work should not be discounted. Kennelly v. State of Rhode Island, 682
F.2d 282, 283 (1st Cir.1982) (per curiam) (refusing to “fractionalize[]” plaintiff’s hours “into
successful and unsuccessful claims” where the discovery obtained against non-successful
defendants “was useful in challenging the credibility of the state troopers' testimony.”); Martinez
v. Port Auth. of N.Y. & N.J., 2005 WL 2143333, at *24 (S.D.N.Y. 2005), aff'd sub nom.
Martinez v. The Port Auth. of New York & New Jersey, 445 F.3d 158 (2d Cir. 2006) (citations
omitted):
Although the trial court has discretion to reduce a lodestar fee based on the
number of hours expended on a severable, unsuccessful claim[s]…Pretrial
discovery into the Port Authority was necessary for the prosecution of this action,
and the plaintiff contends that the round of discovery that defendants frame as
meritless yielded documents that were introduced as trial exhibits, and helped to
frame counsel's questioning of witnesses at trial…Although that round of
document discovery may not have yielded a smoking gun, there is no evidence
indicating that it was frivolous, dilatory or otherwise constituted harassment.

‐16‐

Based on the record before me, I conclude that plaintiff's attorneys' fees should
not be reduced based on the results of this round of document discovery.
Id.
a.

The NYPD Was Directly Involved with, and Responsible for, the
JHMC’s Decision to Confine Officer Schoolcraft.

The interrelationship between the Medical and Municipal defendants here is beyond
cavil. While the City acknowledges that there was an “initial statement attributed to Sgt. James”
in the hospital chart, they nevertheless attempt to downplay the significance of her damaging
statements. (Def. Br. at 34). However, Sgt. James’s false statements to the hospital – namely, that
Schoolcraft “barricaded himself and the door had to be broken to get to him,” and that “he ran
and had to be chased and brought to the medical ER, handcuffed” (Reply Declaration of Joshua
Fitch (“Reply Dec.”), Ex. A) – were repeatedly cited by JHMC doctors as a critical factor in
detaining Schoolcraft. For example, Indira Patel, M.D., the attending physician in Jamaica
Hospital’s Emergency Room, testified that she believed that Schoolcraft was a danger to himself
because, inter alia:
The patient had barricaded himself. They had to break up his door to bring him
out. When in he was [outside the apartment] – they had to chase him – he tried to
run away. They had to chase him to bring him to the medical emergency room.
(Patel Dep. at 41, Reply Dec., Ex. B).
Similarly, Dr. Bernier, the Director of the Psychiatric ER who made the decision to
involuntarily confine Schoolcraft in the psychiatric ward at JHMC, referred to Sgt. James’
statements as a basis for her decision to confine him:
Q:
A:
Q:
A:

So you were told about what happened in his apartment?
Everything, yes.
And you were considering what you were told by the police when they
arrived at the hospital.
That’s correct.
‐17‐

(Bernier Dep. at 170, Reply Dec., Ex. C).
Likewise, Dr. Tariq, a psychiatric resident who evaluated Schoolcraft – and whose note
was relied upon by Dr. Bernier – wrote as follows: “As per ER consult done earlier today, the
accompanying NYPD officer, Sergeant James of the 81st Precinct, [Schoolcraft] barricaded
himself in his room and refused to come out so the door had to be broken down. He initially
agreed to go with them but once outside he made a run for it and had to be chased and
handcuffed.” (Reply Dec., Ex. D). Dr. Lwin similarly testified that “according to Sgt. James, []
he had to barricaded himself and the door had to be broken to get him.” (Lwin Dep. at 45, Reply
Dec., Ex. E).

Thus, at least four different doctors at JHMC cited Sgt. James’ statements as a

basis for their decision to involuntarily confine Officer Schoolcraft. Accordingly, defendants’
attempt to minimize the impact of the “initial statement” by Sgt. James is both disingenuous and
misleading.
Sgt. James false statements were also directly relevant to the medical malpractice claims.
In fact, the Medical Defendants’ experts repeatedly cited Sgt. James’ statements as a basis for
concluding that the doctors had acted appropriately in deciding to involuntarily confine P.O.
Schoolcraft. See, e.g., Report of Frank Dowling, M.D., Reply Dec., Ex. F, at 3 (opining that Dr.
Isakov was “justified in considering the information in the hospital record, including statements
made by police officers that the patient locked himself in his apartment and refused to open the
door when the police directed him to do so; that he ran away from them and had to be chased
down and put into handcuffs [and] had to be brought to the hospital by force ....”); Report of
Laurence R. Tancredi, M.D., Reply Dec., Ex. G, at 1, 2 (“Members of the NYPD went to his
home, where he barricaded himself in his room,” which was “bizarre behavior” and evidence of

‐18‐

“paranoid ideation”) (emphasis supplied); Robert H. Levy, M.D., Reply Dec., Ex. H, at 4, 6
(“The police reported that the patient had left work precipitously and that he was agitated and
had barricaded himself in his apartment, forcing them to break down the door.”). Thus, there was
a clear overlap between plaintiff’s civil rights claims against the NYPD and plaintiff’s
malpractice claims against the Medical Defendants.
b.

The NYPD Was Present at JHMC Throughout Officer Schoolcraft’s
Involuntary Confinement.

Apart from Sgt. James, there were multiple other police officers who were present
throughout Officer Schoolcraft’s involuntary stay at the hospital. For example, on the night that
P.O. Schoolcraft was first brought to JHMC, Lt. Broschart, Sgt. Sawyer, P.O. Sadowski, and
P.O. Miller were all present and were all involved in various interactions with P.O. Schoolcraft
and the hospital staff on that night or early in the morning on November 1, 2009. In fact, the
abusive conduct of these officers formed the basis of one of plaintiff’s claims against JHMC,
namely, that the hospital violated its duty toward P.O. Schoolcraft, and its own internal policies,
by allowing him to be restrained in handcuffs and strapped to a gurney for over nine hours. See
Report of Roy Lubit, M.D., Reply Dec., Ex. I at 23 (“It was inappropriate of the hospital staff to
allow the police to control the patient’s restraints and a dereliction of their duty to allow the
police to use restraints in a way that was grossly inappropriate and abusive. The hospital staff
had a fiduciary responsibility to the patient once he was in their care.”).
There was also evidence that at least two of the officers present at JHMC – Sgt. James
and Sgt. Sawyer – were in direct contact with their superiors at the 81st Precinct regarding
Schoolcraft’s confinement at JHMC. Specifically, Sgt. James spoke to Captain Lauterborne
regarding Schoolcraft, and Captain Lauterborne told her that Schoolcraft “can’t leave” the

‐19‐

hospital. (Dept. Adv. Tr. at 108). Similarly, Sgt. Sawyer called DI Mauriello at his home – after
receiving a message that “DI Mauriello wanted me to call him” – to advise Mauriello that
Schoolcraft had, in fact, been “admitted to Jamaica Hospital.” (Sawyer Dep. at 111-112, Reply
Dec., Ex. J). Thus, there is ample evidence of the NYPD’s involvement with JHMC’s decision
to confine Schoolcraft at the hospital.
While defendants suggest that “there was no indication of NYPD involvement” after the
first day at JHMC, this is simply wrong. (Def. Br. at 34). In fact, at least five different NYPD
officers were present at various times throughout Schoolcraft’s stay at JHMC. For example, Sgt.
Frost and Sgt. Brennan, both of whom were from the Internal Affairs Bureau, were present in the
hospital and interviewed Officer Schoolcraft on November 2, 2009 at 5:00 p.m., as reflected in
the hospital chart. (Reply Dec., Ex. K). Similarly, Detective Wachter and Sgt. Scott were present
at the hospital and interviewed Officer Schoolcraft on November 2, 2009 at 9:30 p.m. (Reply
Dec., Ex. L). In fact, Detective Wachter’s business card is actually copied into the hospital chart.
(Id.) Further, on November 5, 2009, Sgt. Chu interviewed Officer Schoolcraft and his father,
Larry, in the presence of Dr. Isakov and Christine McMahon, a JHMC social worker. (Reply
Dec., Ex. M). Sgt. Chu’s summary of this interview (id.), as well as the actual transcript of the
interview (Ex. N), was listed on defendants’ JPTO and was going to be relied upon by the
Medical Defendants in their defense of this action. (Ex. O).
c.

NYPD Psychologist Catherine Lamstein Spoke to a Hospital Social
Worker on at least Two Separate Occasions.

Apart from the officers who were physically present at the hospital, another NYPD
employee – Catherine Lamstein, Ph.D., the psychologist who removed Schoolcraft’s gun and
placed him on restricted duty – was also in contact with JHMC. Specifically, Dr. Lamstein had

‐20‐

two separate conversations with Christine McMahon – who herself had previously worked at the
NYPD and who was present during Sgt. Chu’s interview of P.O. Schoolcraft on November 5,
2009, and who had interviewed P.O. Schoolcraft three times at hospital – regarding Schoolcraft’s
mental status at the hospital. (Lamstein Dep. at 309, 313, Reply Dec., Ex. P).

These

conversations took place on November 6, 2009 and November 9, 2009.
Based on the above evidence, it is clear that defendants' argument that “the claim against
the Medical Defendants concerned the conduct of medical personnel – not the police – most of
which occurred outside of the presence of City employees over the course of Schoolcraft’s sixday stay at JHMC,” is baseless. (Def. Br. at 33) (emphasis supplied). Further, defendants claim
that “[a]side from that initial statement attributed to Sgt. James” (Def. Br. at 34), the NYPD had
no involvement with Officer Schoolcraft’s stay at the hospital – is demonstrably false. At least
10 different police officers were physically present at the hospital 7 ; two other NYPD supervisors
were in phone contact with officers at the hospital and kept apprised of Schoolcraft’s status; Dr.
Lamstein, the NYPD psychologist who removed plaintiff’s gun, was in phone contact with the
hospital social worker, Christine McMahon; Officer Schoolcraft was interviewed on three
separate occasions by IAB officers while at Jamaica Hospital – as documented in the hospital
chart – and these interviews became important evidence in this case; and, above all, the false
statements attributed to the NYPD were repeatedly cited by doctors as directly influencing the
hospital’s decision to involuntarily confine Schoolcraft to the psychiatric ward, as confirmed by
Dr. Bernier, Dr.Patel, Lwin, Dr. Tariq, and by defense experts, Robert Levy, M.D., Frank
Dawling, M.D., and Laurence Tancredi, M.D.

7

Detective Yeager from ESU was also present at JHMC and spoke to various JHMC nurses, who directly
contradicted Sgt. James’ claims regarding Schoolcraft’s behavior in the ER.

‐21‐

In short, the record is rife with evidence showing the extensive interrelationship ‒ both
factually and legally ‒ between the Municipal Defendants and Medical Defendants in this case,
and it would be improper to artificially dissect the work that counsel performed relating to the
Medical Defendants from the work that counsel performed relating to the claims against the
NYPD. Thus, as a matter of trial, discovery and settlement analysis, working diligently on these
related hospital defendants in the case ‒ and fending off their motion to dismiss at the outset ‒
was essential work that facilitated the resolution in this case against the City Defendants and
should therefore be compensable. See e.g., Tucker v. City of New York, 704 F. Supp. 2d 347,
358 (S.D.N.Y. 2010):
[T]he assertion of the state-law claims in this suit can fairly be viewed as a
reasonable strategy by counsel for maximizing the likelihood of a successful
outcome in two related respects. First, some of the state common-law claims
impose a potentially less demanding standard on the plaintiff, and therefore might
give him a greater likelihood of achieving success even if he could not prevail on
the federal claims. Second, and more crucially, that very fact means that inclusion
of those claims in the complaint potentially increased plaintiff's bargaining
leverage in seeking to resolve the entire suit, even if-as occurred here-on the basis
of a settlement designated as being predicated on the federal claims.
Id. (emphasis added). Accordingly, all of the legal work performed in connection with
such events is compensable and no deductions should be made for work relating to the medical
defendants.
V.

DEFENDANTS’ HODGEPODGE ATTACKS ON THE REASONABLENESS OF
PLAINTIFF’S FEE APPLICATION ARE BASELESS AND SHOULD BE
REJECTED.
A.

Defendants’ “Billing Judgment” Argument is Frivolous.

Defendants propose a drastic 50% reduction (on top of the 15% reduction for billing
practices and the specific hourly reduction for allegedly “non-compensable” work) for plaintiff’s

‐22‐

purported lack of "billing judgment" in this case. 8 In other words, Ms. Bronsther “concludes”
that plaintiff’s counsel doubled the amount of work that was actually necessary in this case. This
argument is premised exclusively on their “expert’s” summary conclusions that time spent on
certain tasks throughout this litigation (i.e., trial preparation, depositions, communications, intraoffice attorney conferences, preparing the complaint, etc.) was excessive, unnecessary, and that
staffing decisions caused duplication of effort. As is apparent from the “expert” report, Ms.
Bronsther’s “conclusions” consist solely on tallying up the number of hours spend on a given
task and saying it was unreasonable, without a shred of factual or legal basis for believing that
the time was, in fact, unnecessary. Defendant’s “billing judgment” argument is thus wholly
unsupported, and should be rejected.
B.

Defendants’ Objection to the Use of Multiple Attorneys is Baseless.

Defendants contend that having multiple attorneys on the case was “wasteful” and
resulted in duplication of efforts. However, as courts have repeatedly recognized, "[t]he practice
of dividing work among various attorneys in a complex and lengthy case is a common and
practice," and should not be deemed per se duplicative. Meriwether v. Coughlin, 727 F. Supp.
823, 827-28 (S.D.N.Y. 1989). Further, where multiple lawyers or “legal teams [are] conducting
[the] litigation some duplication is unavoidable.” Johnson v. City of New York, 2016 WL
590457, at *4 (E.D.N.Y. 2016).

8

Defendants aver that, apart from eliminating phone hundreds of phone calls between plaintiff and counsel, plaintiff
has exercised "no billing judgment." However, not only is this argument belied by the records discussed herein, but
plaintiff has also exercised a great deal of billing judgment with respect to the 355.3 hours spent in connection with
the fee application ‒ nearly 85% of which was spent in defense of the application after it was filed ‒ none of which
has been sought in this case. Notwithstanding, should defendants continue to protract the resolution of this
application with, inter alia, requests for a sur-opposition, appeal of any decision made on this application or
additional requests for discovery or evidentiary hearings in connection herewith, plaintiff reserves the right to
supplement this application with those additional hours and fees.

‐23‐

Moreover, it is well settled that “[t]ime spent by two attorneys on the same general task is
not, however, per se duplicative [because ] careful preparation often requires collaboration and
rehearsal.” Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998);
Williamsburg Fair Hous. Comm. v. Ross-Rodney Hous. Corp., 599 F. Supp. 509, 518 (S.D.N.Y.
1984) (“The use of multiple attorneys, however, is not unreasonable per se.”). Indeed, “there is
no...authority for allowing only one lawyer to charge for time that more than one lawyer
justifiably spent.” Ricks, 2007 WL 956940, at *8. As one Circuit Court has noted:
Given the complexity of modern litigation, the deployment of multiple attorneys
is sometimes an eminently reasonable tactic…[thus] the mere fact that more than
one lawyer toils on the same general task does not necessarily constitute excessive
staffing... ...[e]ffective preparation and presentation of a case often involve the
kind of collaboration that only occurs when several attorneys are working on a
single issue.
Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297 (1st Cir. 2001).
More importantly, “in a case as factually and legally complex as this, we would expect
plaintiffs to be represented by more than one or two lawyers, as a matter of good practice.” Kim
v. Kum Gang, Inc., 2015 WL 3536593, at *4 (S.D.N.Y. 2015). Therefore, “[i]t is not uncommon
for parties to recover attorney’s fees for the collaboration of multiple attorney’s on a case when
the district court decides that such collaboration is appropriate given the scope and complexity of
the litigation.” Castelluccio v. Int'l Bus. Machines Corp., 2014 WL 3696371, at *7-8 (D. Conn.
2014).
As previously stated, this case was truly exceptional; Schoolcraft’s allegations were the
first ever significant allegations by a police officer with personal knowledge of the illegal use of
quotas within the NYPD for law enforcement activity and the first to bring the policies of
statistical fraud to the forefront within the NYPD. Plaintiff’s recordings alone shaped the face of

‐24‐

the Floyd litigation, which in turn led to a change in the policy of the NYPD regarding its stopand-frisk practices. Further, plaintiff’s recordings spawned one of the largest class actions in
New York City history involving the illegal use of summons quotas, as well as numerous first
amendment retaliation lawsuits brought by the NYPD’s own rank and file members. 9 Thus, it is
hardly surprising that a significant number of attorneys and hours were necessary for a case of
this scope and complexity. Defendants’ attempts to oversimplify this case are both disingenuous
and indicative of the fact that defense counsel himself only worked the last eight months on this
six-year litigation. See e.g., Catanzano v. Doar, 378 F. Supp. 2d 309, 322 (W.D.N.Y. 2005):
It is also worth noting that this was a lengthy case involving complex issues of
considerable significance to many members of the public…No less than fourteen
decisions (not including this one) on substantive issues have been rendered by this
Court and the Court of Appeals over the course of this action, and there have also
been six appeals argued before the Second Circuit, and dozens of motions of
various types. Given the Byzantine statutory and regulatory schemes involved, it
should come as no surprise that this case took many years to litigate. Likewise, it
is hardly surprising that many attorneys would end up working on this case at one
time or another…
Id. Therefore, “[i]n light of the importance of these matters to the successful prosecution
of this case, and the skill with which the case was prosecuted, the Court [should] not penalize
counsel for plaintiffs for doing their job thoroughly.” Rodriguez ex rel. Kelly v. McLoughlin, 84
F. Supp. 2d 417, 425-26 (S.D.N.Y. 1999). 
Lastly, the City’s “overstaffing” arguments reveal a double-standard that wholly
undermines their position on this issue – namely, that while it was reasonable for the City to
heavily staff this case (nine attorneys have appeared on behalf of the City defendants, see Docket

9

Stinson v. City of New York, 282 F.R.D. 360, 378 (S.D.N.Y. 2012); Matthews v. City of New York, et al., No. 12cv-1354 (S.D.N.Y.); Groben v. City of New York, et al., No. 11-cv-6823 (S.D.N.Y.)(same), Hicks v. City of New
York, Index No. 307045/2012 (N.Y. Sup. Ct.); Raymond et al v. City of New York, No. 15-cv-6885 (S.D.N.Y.)
(LTS).

‐25‐

Sheet at pp. 3-6), this Court should nevertheless punish plaintiff for doing the same. In fact,
courts have previously rejected such hypocritical positions from the City. See e.g. Richards v.
New York City Bd. of Educ., 1988 WL 70209, at *8 (S.D.N.Y. June 27, 1988) (the court rejected
"a similar argument" regarding "duplicative efforts "as "meritless."); Lenihan v. City of New
York, 640 F. Supp. 822, 825 (S.D.N.Y. 1986):
I do not agree that these activities reflect unnecessary duplication on the part of
Lenihan's counsel. The City evidently felt that the pretrial conferences, the
preliminary injunction hearing, and the trial warranted the presence of more than
one attorney; it frequently sent two or more attorneys to pretrial conferences, and
three attorneys sat at its counsel table throughout most if not all of the trial. I do
not doubt that the City would seek compensation for these attorneys were it in a
position to do so.
Id. (emphasis supplied).

Accordingly, it should “amaz[e] this court to hear the

defendants now argue that so much of this time was unnecessary when so much of this time was
caused directly by the defendants.” Lightfoot, 619 F. Supp. at 1488. 10
C.

Defendants’ Attacks on Strategy Meetings Are Meritless.

Defendants further argue that plaintiff’s counsel engaged in too many meetings during
the course of this 5 year litigation. However, in a case of this magnitude, “attorneys must spend
at least some of their time conferring with colleagues,” as such work in an indispensable part of
“ensur[ing] that a case is managed in an effective as well as efficient manner. Nat'l Ass'n of
Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1337 (D.C. Cir. 1982); Veterans Educ.

10

Moreover, the use of multiple attorneys might appear even more reasonable where – as here – there are multiple
defendants represented by multiple opposing counsel, such that “[t]he defendants' use of multiple attorneys may
have, in itself, contributed to the plaintiffs' need for representation by more than one attorney.” Williamsburg Fair
Hous. Comm., 599 F. Supp. at 518; City of Riverside v. Rivera, 477 U.S. 561, 581 n.11 (1986) (a defendant “cannot
litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.”);
Rodriguez-Hernandez, 132 F.3d at 860 (“Indeed, because a litigant's staffing needs and preparation time will often
‘vary in direct proportion to the ferocity of her adversaries' handling of the case, this factor weighs heavily in the
balance.’”)(citations omitted). Gay Officers Action League, 247 F.3d at 298 (“it seems disingenuous for the
[defendant] to castigate the plaintiffs for putting too many troops into the field…the court should not reward
defendants for their vehement ‘Stalingrad defense,’”).

‐26‐

Project v. Secretary of the Air Force, 515 F.Supp. 993, 994 (D.D.C.1981) (“intra-office
conferences among attorneys familiar with and working on particular litigation enhance the
possibility of competent and efficient litigation, and hours spent in such conferences are not
reduced under the rubric of ‘billing judgment’ unless the result is unproductive”).
Further, for “each [attorney] to bill time” for a “conference [that] seems [to] have been a
meeting between the two” is not a basis for reduction. Bridges v. Eastman Kodak Co., 1996 WL
47304, at *6-7 (S.D.N.Y. Feb. 6, 1996) aff'd, 102 F.3d 56 (2d Cir. 1996) ("the time spent by two
attorneys discussing the case with one another is properly billed"). To that end, plaintiffs should
“not be penalized, as defendants suggest, for frequent intra-office conferences." Rodriguez ex
rel. Kelly, 84 F. Supp. 2d at 426. Indeed, defendants’ claim that, in hindsight, counsel should not
have spent as much time meeting with one another throughout this litigation, is baseless, since
“determining whether hours should be excluded, the inquiry is not based on what effort appears
necessary in hindsight.” Barbour v. City of White Plains, 788 F. Supp. 2d 216, 222 (S.D.N.Y.
2011), aff'd, 700 F.3d 631 (2d Cir. 2012); Restivo, 2015 WL 7734100 at *5 (“[A]t the conclusion
of this litigation saga, rendering an opinion on how long a strategy meeting should take in a
complicated case does not seem productive.”).
D.

Defendants’ Claim of Duplicative Work Is Particularly Specious As It
Relates to the Work Performed by Plaintiff’s Initial Attorneys For the First
2.5 Years of Litigation.

Apart from the flaws discussed above, defendants’ “duplication of work” argument is
especially suspect when it is used to subtract hours from the first two-and-a-half years of this
litigation. This is so because the three attorneys on the Norinsberg Team were the only attorneys
who litigated this case during this time period. A fortiori, since any work done by this team was
the very first work done on the case, it could not be ‒ by definition ‒ “duplicative” of any other

‐27‐

attorney's work performed on the case. For example, Ms. Bronsther alleges that the work being
performed in connection with Schoolcraft’s original retention of the Norinsberg team is
redundant or otherwise non-compensable. However, for defendants’ expert to claim that the
work spent in connection with the initial retention of the Norinsberg team – the very first
attorneys who worked on the case 11 – is redundant or unnecessary is simply illogical, since those
activities are undoubtedly compensable under the law and were never previously billed by any
attorney in this case. Kahlil v. Original Old Homestead Rest., Inc., 657 F. Supp. 2d 470, 477
(S.D.N.Y.2009) (“[c]ourts in this circuit typically award attorneys' fees for pre-filing
preparations.”); In re Clinkscale, 525 B.R. 399, 407 (Bankr. W.D. Mich. 2015) (“Fee Petitions
include customary and reasonable charges for initial consultations, preparation of schedules,
client meetings and similar activities” and these charges should “naturally, dr[a]w no
objection.”). Therefore, there can be no credible argument that the Norinsberg Team engaged in
any duplicative billing during the first 2.5 years of this litigation.
E.

The Work Performed by the Norinsberg Team and the Smith Team Was
Very Clearly Delineated Throughout this Litigation.

In support of their massive 78% proposed hourly reduction in this case, defendants' brief
focuses on the global number of hours expended over the course of this litigation up to the Rule
68 Offer of Judgment (63 months). However, this ignores the fact that work expended by the
Norinsberg Team and the Smith Team were very clearly delineated, and were limited to specific
periods of time throughout the course of this litigation. Specifically, for the first 28 months, the
three attorneys from the Norinsberg Team were the only attorneys working on this case. During

11

Although prior to retaining the Norinsberg Team, Schoolcraft had retained the services of Jonathan Moore, at the
time he contacted the Norinsberg Team, no work whatsoever had been performed by Mr. Moore and plaintiff has
not claimed any of the “time” spent by Mr. Moore as a basis for fees in this case.

‐28‐

that time period, they collectively expended 1,888.55 hours. Thus, when properly broken down
in that manner, it is revealed that for the first 28 months, each of the three attorneys in the
Norinsberg Team only spent ‒ on average ‒ approximately 45 minutes per day working on this
case, an abundantly reasonable amount. Further, during the last nine (9) months of trial
preparation, in which each team had very specific roles and work responsibilities, the Norinsberg
Team collectively spent 1,264.75 hours. This represents a per day work expenditure of only 1.5
hours (11 hours per week) for each of the three attorneys ‒ whose responsibilities included, inter
alia, the examination of over thirty witnesses, the opening statement, the motions in limine and
collaborating with the Smith team on their portion of the trial work. Without doubt, a reasonable
paying client would have had no objection paying for this amount of work ‒ and might have
even considered this somewhat insufficient ‒ to adequately prepare this case for trial.
By contrast, under defendants' proposal, each of the attorneys on the Norinsberg Team
would have been restricted to spending only 15 minutes per day on this case for the first 28
months. 12 A reasonable paying client might well have wondered what possible amount of work
could have been performed in 15 minutes a day (5.5. hours per week) on a case of such scope
and magnitude. Moreover, during the trial preparation phase, defendants' proposal would have
limited the three attorneys to a mere 30 minutes per day to prepare for trial. There is simply no
credible argument that any attorneys who wished to be successful in this case would only need to
spend 15 minutes per day (2 hours per week) for the first two plus years of litigation and only 30
minutes per day (or approximately 4 hours per week) on such a massive undertaking. No

12

These figures were reached by taking 60% of the total number of hours proposed by defendants' reduction and
applying it to the first 28 months of the case (which is the percentage of total hours - 1888.55 of 3153 hours actually expended during that period for the Norinsberg team) and applying remaining 40% of their proposal to the
nine (9) months of trial preparation work (which is the percentage of total hours - 1264.75 of 3153 hours - actually
expended during that period by the Norinsberg team).

‐29‐

reasonable paying client would have expected such a limited commitment to this case. See e.g.,
Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“the court should defer to
the winning lawyer's professional judgment as to how much time he was required to spend on the
case; after all, he won, and might not have, had he been more of a slacker.”); Norman v. Hous.
Auth. of City of Montgomery, 836 F.2d 1292, 1306 (11th Cir. 1988)(“the measure of reasonable
hours is determined by the profession's judgment of the time that may be conscionably billed and
not the least time in which it might theoretically have been done.”).
F.

The Collaborative Efforts of Mr. Norinsberg and Mr. Meehan Are Fully
Compensable.

Defendants’ attack on the billing entries of Mr. Norinsberg and Mr. Meehan ‒ as “wasted
effort” (Def. Mem. at 21) ‒ is based on erroneous assumptions and is simply wrong. Specifically,
defendant takes issue with the manner in which Mr. Norinsberg and Mr. Meehan collaborated in
preparing the cross-examination outlines for several police witnesses (Lt. Caughey, Lt. Weiss,
Capt. Trainor), arguing that Mr. Meehan spent a certain number of hours on the outline and then
Mr. Norinsberg “started” working on it. (Scheiner Decl.., Ex. D, 93 - 96). However, such
arguments merely confirm that defense counsel ‒ and more importantly their expert ‒ lacks even
the most basic understanding of this case and what it takes to prepare for, and win, at trial.
The collaborative process employed by Mr. Norinsberg and Mr. Meehan is about
dividing up labor amongst the trial team, so as to maximize the contributions of each team
member. Mr. Meehan’s role is to provide the foundation for what becomes the eventual crossexamination outline used at trial. Mr. Meehan culls through the witness’s prior testimony and
extracts all potential points that the witness may be questioned about. Mr. Meehan then drafts a

‐30‐

preliminary cross-examination outline. 13 Then, once Mr. Meehan is done with his preliminary
outline, Mr. Norinsberg then takes over the cross-examination and makes substantial edits and
additions in order to ensure that the witness has no avenue of escape. This is an extremely
arduous and time-consuming process; there are simply are no short-cuts to preparing an effective
cross-examination. Indeed, as the chart below illustrates, Mr. Norinsberg’s work actually
doubled each cross-examination outline that Mr. Meehan had started:
Cross examination

Length of Meehan’s outline

Length of Norinsberg’s Final Outline

Lt. Caughey

150 pages

268 pages

Lt. Weiss

63 pages

115 pages

Captain Trainor

55 pages

117 pages

Thus, the work done by Mr. Meehan and Mr. Norinsberg was not duplicative in any
manner.
G.

The Work spent of Trial Preparation was Essential Given the Scope of this
Litigation.

While defendants acknowledge that the Schoolcraft trial would have been “a long trial of
30-40 days for all claims and parties” (Def. Mem. at 20), defendants nonetheless take issue with
the global amount of hours spent on trial preparation. However, simply tallying up the hours of
trial preparation to further a claim of “excessive billing” is misleading. The trial of this case was
a massive undertaking, and involved the marshalling of over 15,000 documents, hundreds of

13

While defense counsel takes issue with this collaborative effort, the simple fact is that someone at plaintiff’s firm
must do the foundational work that Mr. Meehan performed. If Mr. Norinsberg had done this work himself – instead
of Mr. Meehan – then the billing rates for this same work would have been much higher. See K.F. v. New York City
Dep’t Educ., 2011 WL 3586142 at *6 (S.D.N.Y. 2011) (using junior attorneys to perform certain tasks “often leads
to lawyers with lower billing rates completing tasks rather than a more senior lawyer with a higher rate.”). Thus,
defendants actually saved money by having an associate attorney prepare the foundation of the cross examination
outlines.

‐31‐

audio recordings and thousands of pages of deposition testimony. Indeed, a snapshot into the
enormous amounts of work that the Norinsberg Team had to spend on trial preparation can be
seen in the cross examination outlines for the three main NYPD defendants, Chief Marino,
Captain Lauterborn, and Deputy Inspector Mauriello. Each cross-examination outline was
literally hundreds of pages long, and the three outlines – consisting of eight separate bound
volumes – totaled over 1,100 pages in length. The chart below gives the Court some idea of the
prodigious amount of work that was required to prepare just for these three witnesses:
Cross-examination

No. of volumes

Total pages

Chief Marino

2

306

Deputy Inspector Mauriello

4

510

Captain Lauterborn

2

275

Similarly, the Norinsberg Team prepared similar outlines for all of the NYPD witnesses
in this case ‒ approximately 20 in total. 14 Thus, the idea that the time spent for trial prep of this
matter was unreasonable is entirely without merit.
H.

Defendants have Mischaracterized the Hours Spent Related to “Media
Activity”

Defendants have attempted to discount any hours spent on media related activities.
However, apart from the fact that "many courts 15 have compensated lawyers, in making fee

14

Plaintiff’s counsel has maintained all of these cross-examination outlines and can readily provide them to the
Court for an in camera inspection.
15
“There is precedent for awarding fees for media work, as informing the public about court proceedings is often
necessary to fully vindicate the public interest implicated by the case [and] [c]ompensation for these hours should
therefore be allowed." Rodriguez ex rel. Kelly, 84 F. Supp. 2d at 425. Further, given that “‘media coverage...helped
the Plaintiffs' efforts’[][,] – in terms of obtaining evidence and other whistleblower witnesses – “controlling case law
permits such services to be compensated.” Ansoumana v. Gristede's Operating Corp., 2004 WL 504319, at *3
(S.D.N.Y. 2004). Accordingly, since “[t]he substantial public interest in this case required counsel to deal
extensively with the media. The nature of the lawsuit necessitated this activity; the comparatively few hours spent
on required media relations are fully compensable." U.S. Football League v. Nat'l Football League, 704 F. Supp.
474, 481-82 (S.D.N.Y.) aff'd, 887 F.2d 408 (2d Cir. 1989).

‐32‐

awards under civil rights and other statutes, for public relations efforts in recognition of the
importance of such work in the clients' interests" (In re Grand Jury Subpoenas Dated Mar. 24,
2003 Directed to (A) Grand Jury Witness Firm & (B) Grand Jury Witness, 265 F. Supp. 2d 321,
327 (S.D.N.Y. 2003)), the hours that defendants have attributed to counsels’ “media work” are
grossly exaggerated. For example, many entries that defendants and their “expert” attributes to
this work was actually time spent reviewing the variety of media information that was already
being disseminated about this case, including stories that revealed important facts, witnesses,
evidence and statements regarding the claims in this case. (Expert Report, Page 38)(“Read Voice
articles on Schoolcraft”; Discussion with JF re: location of witnesses from This American Life
Interview”; Reviewed Schoolcraft Graham Raymond Materials made summary of most
important points from clients email and chronological summary”).
Accordingly, to say that these were “media activities” that might plausibly be excludable
(i.e. press releases, interviews, etc.) is not even remotely accurate. It would have been
malpractice for counsel to not familiarize themselves with the evidence and stories already being
published – both good and bad – in order to be fully aware of the strengths and weaknesses and
to help develop litigation and discovery strategies. 16

16

Defendants also object to time spent dealing with state and federal prosecutors who were investigating this case.
However, monitoring and supervising such activities and contacts between plaintiff and these individuals and
organizations was unequivocally necessary to protect his interests in this litigation. Therefore, since "competent
representation would require such monitoring," those hours are also compensable. U.S. Football League, 704 F.
Supp. at 481 aff'd, 887 F.2d 408 (2d Cir. 1989).

‐33‐

VI.

DEFENDANTS’ OBJECTIONS TO PLAINTIFF'S BILLING PRACTICES ARE
FACTUALLY INACCURATE AND LEGALLY UNSUBSTANTIATED.
A.

Defendants’ Reductions Regarding Alleged “Block Billing” Are Based on a
Mischaracterization of Counsels’ Billing Entries.

A review of plaintiff’s billing records will confirm that what Ms. Bronsther has labeled as
"block billing" does not even come close to meeting that definition. For example, whenever a
member of the Norinsberg Team reviewed a series of documents, or listened to a recording and
took notes while doing so, Ms. Bronsther labeled that activity as “block billing.” (See, e.g.,
Exhibit 9 of Expert report) ("Reviewed transcript of Polanco tapes; took notes re: same" or
"Continued review of Schoolcraft roll calls (2009); took notes on same"). However, an attorney's
review of documents or recordings that simultaneously includes taking notes during that process,
is a single task and does not require a separate time entry and is therefore not “block billing” by
definition. See e.g., Tottey v. Life Ins. Co. of N. Am., 2009 WL 3764222, at *3 (N.D.N.Y. 2009)
(no reduction warranted where “[t] examples of block billing to which Defendant directs the
Courts attention are not vague and the tasks included in those entries either related to a single
process or to related processes”); Inclusive Communities Project, Inc. v. Texas Dep't of Hous. &
Cmty. Affairs, 2013 WL 598390, at *4 (N.D. Tex. 2013), rev'd and remanded, 747 F.3d 275 (5th
Cir. 2014), aff'd and remanded, 135 S. Ct. 2507 (2015) ("[B]illing entries for “analysis, research,
drafting” are not block billing because these tasks are sufficiently intertwined to be treated as one
task.").
Similarly, Ms. Bronsther labeled entries that identify distinct tasks such as "Review of
Schoolcraft recordings (2008 roll calls)" as block billing. (See Exhibit 9 of Expert Report). As
this Court is well aware, this case involved hundreds of hours digitally recorded evidence, which
the attorneys had to review in order to draft the complaint, turn over in discovery, and to be

‐34‐

familiar with the overall evidence in the case. The notion that such a time-consuming task is
considered "block billing" -- simply because plaintiff’s counsel did not identify each and every
recording (out of hundreds) that they listened to -- is absurd. Such a rule would “require plaintiff
to maintain the exceedingly detailed fee logs” which “would be overly burdensome and would
only serve to unnecessarily inflate the ultimate fee application.” Sugarman v. Vill. of Chester,
213 F. Supp. 2d 304, 312-13 (S.D.N.Y. 2002).
B.

Defendants’ Claims Regarding “Vague” Billing Entries Are Unfounded.

Defendants further claim that substantial reductions should be made for counsel’s
“vague” billing entries.

However, “[p]laintiffs need not describe in meticulous detail the

particularities of every task.” Hurley v. Coombe, 1996 WL 46889, at *3 (S.D.N.Y. 1996).
Moreover, “[w]hile it may be true that, read in isolation, some entries appear vague,” if “the
nature or purpose becomes clear from reading the time entries immediately preceding or
following them,” or from the court’s knowledge of what stage of the litigation was at during that
period, then the facial vagueness of these entries will not provide a basis for a fee reduction.
Hnot v. Willis Grp. Holdings Ltd., 2008 WL 1166309, at *5 (S.D.N.Y. 2008). Thus, only those
entries that are “stated in the sparest of terms” will violate this rule. Makinen v. City of New
York, 2016 WL 1451543, at *5 (S.D.N.Y. 2016).
Here, despite Ms. Bronsther’s classification of 191 entries as “vague,” anyone who was
actually involved in this case would know exactly what work was being described. For example,
while Ms. Bronsther believed that the entries that stated "Review of deposition exhibits," which
were logged in February and March of 2015, were too vague (See Expert Report at 54), it would
be

clear

to

anyone

who

participated

‐35‐

in

this

case

that

the

Smith

Team had introduced 174 deposition exhibits, and meticulously kept them in order, so that these
exhibits could be reviewed in preparation for trial.
Ms. Bronsther also claimed as “vague” the following entry from Mr. Cohen: "Reviewed
JN cross outlines and updated my own witness examinations." (See Expert Report at 55). Not
only is the plain text of this entry clear, but also, the context of the surrounding entries makes it
clear that counsel were exchanging their cross-examination outlines so as to conform their trial
strategy for each witness. There is nothing vague or ambiguous about this entry whatsoever. In
fact, all of the “vague” entries identified by Ms. Bronsther can be readily understood simply by
looking at the surrounding entries, or to the work being done at that stage of the case. Since this
“is all that is required,” defendants’ objections must fail. Luca v. Cty. of Nassau, 2008 WL
2435569, at *8 (E.D.N.Y. 2008), aff'd in part, vacated in part, remanded, 344 F. App'x 637 (2d
Cir. 2009).
C.

Defendants’ Claims of Improper Billing Increments and Unnecessary Client
Communications Are Without Merit.

Defendants propose across-the-board percentage reductions for plaintiff’s use of certain
billing increments in connection with emails and other communications. However, other than
generically attacking the time spent on communications, defendants have failed to provide any
reason to believe that this time was excessive. In particular, an attorney’s “‘commitment to work
closely with his client is [] laudable...and attorney time reasonably spent with clients in preparing
a case should be part of the hours compensated in an attorney's fee award.’” Lilienthal v. City of
Suffolk, 322 F. Supp. 2d 667, 673 (E.D. Va. 2004). Indeed, the necessity of such communication
is virtually academic – namely, “for a competent attorney to identify the alleged wrong, craft
appropriate documents, and adequately prepare a case”. Blanco-Jimenez v. Puerto Rico, 2015

‐36‐

WL 4064737, at *2 (D.P.R. 2015); Brown v. Patelco Credit Union, 2011 WL 4375865, at *6
(N.D. Ill. 2011) (“telephone correspondence with the client should be expected to properly
prosecute the case—and in most cases turns out to be much less expensive than face-to-face
meetings between attorney and client that might be necessary absent telephone or e-mail
contacts”).
In the present matter, frequent communication with plaintiff was not only important, it
was essential to the successful prosecution of this case, especially since plaintiff had a far more
intimate knowledge of the inner workings of the NYPD than any member of his legal team.
Further, a large number of telephone consultations were needed because plaintiff had moved
upstate, thereby making the in-person meetings the exception rather than the rule. Moreover, the
need for frequent contact and discussion with plaintiff was also necessitated by the fact that
defendants themselves spent a large portion of the case attempting to prevent plaintiff from
viewing document discovery which would have undoubtedly alleviated much of the need to
spend so much time in consult with plaintiff. Accordingly, defendants’ argument that counsel
spent too much time communicating with plaintiff – without any supporting analysis (once
again) – is simply insufficient, and should be rejected. See e.g., Oakley v. City of Memphis,
2012 WL 2682755, at *5 (W.D. Tenn. 2012), report and recommendation adopted, 2012 WL
2681822 (W.D. Tenn. 2012), aff'd, 566 F. App'x 425 (6th Cir. 2014) (“The court also rejects the
City's argument that plaintiffs' counsel spent an excessive amount of time communicating with
their clients…”) (holding that 106.30 hours of client communication over the course of
approximately one year was not excessive).

‐37‐

D.

Defendants’ Objections to Plaintiff’s Use of .1 Increments For Discrete Tasks
Are Baseless.

Defendants also take issue with the use of .1 increments for minor, discrete tasks.
Specifically, defendants allege that “too much” time was spent on emails and/or that using
billing increments of .1 for reviewing or sending brief emails was improper. 17 However, there is
no basis to support the proposition that .1 increments – the lowest possible billing increment –
are somehow per se unreasonable for emails.

Indeed, courts have held that “[n]o serious

attorney can claim to be able to write and edit every email sent to a client or other counsel in six
minutes or less.” Rodriguez v. Puerto Rico, 764 F. Supp. 2d 338, 345 (D.P.R. 2011); Clark v.
Bend-La Pine Sch. Dist., 2013 WL 5536884, at *3 (D. Or. 2013) (“Defendant primarily takes
issue with the minimum billing unit of 6 minutes used to bill the e-mails. Of course it is
reasonable for counsel and her paralegal to communicate during the course of litigation and a
minimum billing unit of .1 hours is also reasonable.”); Rogers v. Cofield, 935 F. Supp. 2d 351,
371 (D. Mass. 2013)(“The .20 hours expended on writing the email is reduced to .10 hours to
reflect the amount of time reasonably spent on the task.”).

Further, contrary to defendants’ assertion, the Norinsberg Team did not bill for review of

every email it sent and received. In fact, the Norinsberg group's practice to bill .1 was really to
average out the actual time it took to respond to the thousands of emails it received over the
course of this case. Specifically, there were innumerable times that the Norinsberg group did not
bill at all for emails that it sent or received, a fact that would have been readily apparent to
defense counsel, Alan Scheiner, Esq., had he bothered to look at many of his own email

17

This is somewhat peculiar since Ms. Bronsther herself has previously testified in federal court that “generally
accepted [billing increments are] quarter-hour increments,” thereby illustrating the incredulity of her suggestion that
.1 billing increments for such tasks are improper. Ambac Assur. Corp. v. Adelanto Pub. Util. Auth., 2013 WL
4615404, at *2 (S.D.N.Y. 2013) (Bronsther objected to the use entries billed in “increments of thirty minutes”).

‐38‐

correspondence with counsel, which never appeared on the bill. (See e.g. Alan Scheiner emails
May 5, 2015, June 2, 2015, June 11, 2015, August 12, 2015, August 31, 2015, Reply Dec., Ex.
Q). 18 Indeed, there were hundreds of emails that the Norinsberg group spent time drafting and/or
reviewing that were not included in the bill, or were merely reduced to .1 for billing as a
discount, even though they took much longer to review. For example, on March 11, 2015, June
25, 2010 and August 31, 2015, Ms. Bronsther identifies entries in which Jon Norinsberg and
Gerald Cohen both bill for emails that she suggests did not reasonably reflect the time the
Norinsberg Team actually spent on these tasks. (See Expert Report Exhibit 7). However, an
examination of the actual emails exchanged on that date show that the Norinsberg Teams
exchanged and reviewed many more emails than they actually billed for. (See Reply Dec., Ex.
R). Even a cursory comparison of Mr. Scheiner's email box, alongside the Norinsberg Team time
entries, would have shown that Ms. Bronsther’s assessment of these "formulaic billing" practices
is simply false.
As such, much of what defendants claim to be excessive is in reality a lower amount of
time than was actually spent reviewing and drafting the thousands of emails sent and received in
this case – or at minimum, the overall time averaged out. See e.g., Townes v. City of New York,
2013 WL 153726, at *3 (E.D.N.Y. 2013):
The problem with defendants' argument is that even assuming they are correct and
these discrete activities should not have each taken up to six minutes, Mr. Harvis
was entitled to round up and bill six minutes for each activity, whether it took two
minutes or an actual six minutes…this Court's experience on the bench and in
practice confirms happens generally, there are lots of times when a lawyer spends
a minute or two or three, or even five or ten, and does not make any time entry at
all. The practice of rounding to the nearest 1/10 of an hour does not concern me
because in the end, it generally averages out.

18

This is only a representative sample of innumerable emails that the Norinsberg Team received and reviewed, but
did not include in its billing entries.

‐39‐

Id.
E.

Defendants’ Accusations Regarding the Contemporaneity of Plaintiff’s
Records Are Baseless and Have Already Been Rejected By the Court.

As this Court is aware, defendants’ “suspicions” regarding plaintiff’s alleged failure to
keep “contemporaneous” records was already raised, briefed, argued and rejected by this Court
before defendants filed their opposition. (Docket No. 586). Nevertheless, the City raises this
identical objection based on what they now claim is “additional evidence” of a lack of
contemporaneity. However, this “additional evidence” is the exact same evidence put before
Your Honor in the first instance – namely that certain entries on the Norinsberg Team are similar
in description. These arguments fail for the same reasons that they previously did.
As was explained at oral argument, the firms of Jon L. Norinsberg, Esq. and Cohen &
Fitch worked together intimately on this case and shared an office for the period of their original
retention in this case (i.e., 2010 to 2012) – and even for the period following 2012, the
Norinsberg Teams’ offices remain next door to each other. Thus, when the efforts were
collaborative like this, counsel made an effort to ensure that the descriptions of the work
reflected in the hourly records were the same, and therefore “rightfully overlap because the three
shared an office at the time and worked on the case together.” (Decision, Dkt, 586 at 7).
Moreover, these “duplicate” entries are all instances where the parties were not only working
together but in fact were simultaneously working together (i.e. conferences, meetings, discussing
and reviewing evidence together on the same date and time). As such, while “the records
therefore appear duplicative” they are nonetheless “accurate reflections of time spent that do not
give rise to an inference that they were not recorded contemporaneously.” (Id.). Consequently,
“the time spent by two attorneys discussing the case with one another is properly billed” and for

‐40‐

“each to bill time” for a “conference [that] seems [to] have been a meeting between the two” is
not a basis for reduction. Bridges, 1996 WL 47304 at *6-7; Johnson, 2016 WL 590457 at *4
(where “legal teams [are] conducting [the] litigation some duplication is unavoidable.”).
Accordingly, since the City has “thus far been unable to point to any particular records or
evidence tending to show the records are not contemporaneous,” and has simply regurgitated the
same arguments previously made on this very issue, any request to reduce or deny fees on this
basis should be rejected. (Id.).
The only other “evidence” the City points to is, quite simply, no evidence at all. While
the City presumably refers to their “expert” opinion as being the “additional evidence,” that
“opinion” is nothing more than a parroting of the exact same arguments that defendants made in
the first instance – and indeed highlights the same entries that were put before this Court at that
time. 19 For example, defendants and their expert opine as “suspicious” certain entries showing
counsel “doing the exact same thing independently for the exact same amount of time.” 20 (Def.
Mem. at 46). To be clear, out of 3,242 entries – solely for the Norinsberg team – defendants and
their “expert” have pointed to 27, or .008% of the total entries, where this has occurred.
Moreover, of those 27 entries, 11 of them are indeed group collaborative tasks such as “Revised
and help draft proposed AEO stip w[ith]…[members of the Norinsberg Team]”; Read and
Review of defendants letter to quash and discussion w[ith] [members of the Norinsberg Team]”;
and, “Review of witness/exhibit list and discuss with [members of the Norinsberg Team].”
(Expert Rep. at 53). Consequently when these 11 entries are removed, the occurrence of this

19

Indeed even defendants “expert’s” opinion equivocates in her conclusion regarding contemporaneity, stating that
the Norinsberg Team “did not record their own time and/or keep their contemporaneous records.”
20
Defendants also point to a single date of 8/9/10 to suggest that it was “standard operating procedure [for] counsel
[] to have met or communicated about virtually every event occurring that day.” Not only is reference to this single
day of billing grossly insufficient to establish a “standard operating procedure,” but that argument is neither relevant
nor probative of their contention that the records were not kept contemporaneously.

‐41‐

“suspicious” activity amounts to 16 of the total entries – or less than half of a percent (.0049%).
In other words, defendants have raised no objection regarding contemporaneity for over 99% of
counsel’s time entries.

In light of this fact, defendants’ rank speculation and false accusations

should be rejected by the Court. 21
VII.

DEFENDANTS’ PROPOSED REDUCTIONS AMOUNT TO IMPERMISSIBLE
DOUBLE-COUNTING.
A.

Defendants Seek to Penalize Plaintiff’s Counsel Twice For the Same
“Flawed” Entries.

Defendants propose drastic reductions of the total hours (globally over 65%) submitted
by plaintiff in the form of a 15% across-the-board percentage reduction for alleged issues such as
block billing, vagueness, and other deviations from “acceptable billing practices”; 50% acrossthe-board reductions for other purported errors in billing judgment; and then specific hourly
reductions for certain claims and for certain activities (i.e. claims against medical defendants and
“media activities”). In addition, defendants then propose large reductions in the proposed billing
rates of all counsel and their staff. In total, these reductions multiplied by the proposed hourly
rate reductions amount to a 78% reduction in the total fees sought in connection with this case –
an unprecedented amount where plaintiff’s success is undisputed. See e.g., Bivins v. Wrap It Up,
Inc., 548 F.3d 1348, 1352 (11th Cir. 2008) ("[T]he district court erred in adjusting the lodestar
downward by 50%. Such an adjustment is warranted only if the plaintiff was partially successful
in his claims.") (emphasis added). Thus, it is clear that defendants’ are proposing reductions
upon reductions for the same time entries, which is clearly impermissible.

21

We wish to reiterate, however, that if the Court has any concerns about the contemporaneity of our time entries,
all members of the Norinsberg Team are willing – as we previously stated in open Court -- to submit our
handwritten timesheets for the Court’s in camera review.

‐42‐

This same flawed analysis is found throughout Ms. Bronsther’s report. For example, Ms.
Bronsther alleges that approximately 270 hours of the Norinsberg Team’s bill should have been
allocated exclusively to the Medical Defendants and should not be compensated. In support of
this assertion, Ms. Bronsther lists the specific entries that she claims can only be attributed to
work done against the Medical Defendants. (See Expert Report at 28 and Exhibit 3). However,
upon examination of these entries, it becomes apparent that many of the same entries are then
used again in other the sections of the report as support for other alleged deficiencies. For
example, in Exhibit 3 (Billing for Medical Defendants), the report lists "Discussion with JN re:
arguments to make in response to JHMC motion" and then that same exact entry is used again in
Exhibit 10 to show that the Norinsberg group did not use proper billing judgment.
Similarly, Ms. Bronsther lists "Email Response to GC re statements from Jamaica
Hospital to Village Voice" in Exhibit 7 to support its claim that the Norinsberg group engaged in
formulaic billing, but also includes this same entry in Exhibit 3 as well. (See Report Exhibits 3
and 7). In fact, Ms. Bronsther’s report is replete with this type of double counting "deficiencies"
in the bill. Worse still, the report also purports to show the percentage of the aggregate bill each
alleged deficiency represents. Such ad hoc calculations using the same time entries over and
over again – but labeling them differently – is emblematic of the deeply flawed analysis that Ms.
Bronsther has conducted. Accordingly, the Court should disregard Ms. Bronsther’s report in its
entirety, or, at minimum should reject such proposed reductions as impermissible double
counting – i.e. “penalizing [counsel] twice for the same entry.” Hernandez v. Grullense,, 2014
WL 1724356, at *9 (N.D. Cal. 2014), appeal dismissed (July 2014); De La Riva Const., Inc. v.
Marcon Eng'g, Inc., 2014 WL 794807, at *7 (S.D. Cal. 2014) (granting reconsideration regarding
plaintiff’s claim of double counting because “upon further review of the billing records, it

‐43‐

appears that certain billing entries totaling 11 of Mr. Andrade's hours were reduced for both
excessive deposition times and for block billing.”); Delph v. Dr. Pepper Bottling Co. of
Paragould, 1997 WL 16067, at *1 (E.D. Mo. 1997), aff'd, 130 F.3d 349 (8th Cir. 1997)(“the
court should not engage in ‘double counting’ by considering essentially the same factors twice to
arrive at a total award.”); Deocampo v. Potts, 2014 WL 788429, at *5 (E.D. Cal. 2014)(“The
Ninth Circuit has explicitly admonished courts that imposing this sort of double penalty on billed
hours is improper.”).
B.

Defendants Seek Across-the-Board Percentage Reductions on Top of the
Reductions Already Made for Work That is Claimed to be NonCompensable.

A similar problem arises in the context of specific hourly reductions in addition to
percentage reductions. Specifically, defendants propose that the court impose both specific
reductions to the number of hours spent on certain issues, claims and defendants and also
proposes two across-the- board percentage reductions. The inherent flaw in this calculus – apart
from the substance of the requested reductions – is that where a district court finds that certain
hours were unreasonable, it may either “exclude these hours from the calculation of fees, or
impose an across the board percentage cut.” Perez v. Siragusa, 2008 WL 2704402, at *8
(E.D.N.Y. 2008). However, “the district court may not use both methods (hour-by–hour analysis
and an across-the-board cut), as this may result in double discounting of the requested hours.”
Jackson v. Jump, No. 2014 WL 10558844, at *3 (S.D. Ga. Sept. 30, 2014); Bivins, 548 F.3d at
1351-52:
We conclude that the district court erred in two ways. First, in arriving at the
lodestar, the district court conducted both an hour-by-hour analysis and applied an
across-the-board reduction of the requested compensable hours…the district court
is to apply either method, not both. The reason for this is easy to understand: by
requiring the district court to conduct either analysis instead of both, we ensure

‐44‐

that the district court does not doubly-discount the requested hours, as was the
case here.
Id. (emphasis added).
Accordingly, having requested multiple across-the-board reductions for categories that
contain overlapping time entries constitutes impermissible double-counting; and, requesting
specific hourly reductions in addition to multiple across the board percentage reductions
constitutes impermissible double counting. Therefore, since the only way to achieve the 78%
percentage fee reduction that defendants propose is to manipulate the data presented to this
Court, and perform reductions in contravention of the law, defendants’ flawed analysis should be
rejected.
VIII. COUNSELS’ PROPOSED HOURLY RATES ARE REASONABLE AND
COMMENSURATE WITH THE LEVEL OF SKILL AND EXPERIENCE
BROUGHT TO BEAR IN THIS CASE.
As will be discussed herein, the Norinsberg Team's hourly rates are reasonable and
commensurate with attorneys of their skill, reputation and experience. Defendants’ vitriolic
attacks on counsel – consisting largely of name-calling and hyperbole – are based on erroneous
factual assumptions and improper statements of law, and should be rejected. 22
A.

Hourly Rates in the Southern District Are Significantly Higher Than Those
in the Eastern District.

First, contrary to defendants’ assertions, it is well settled that “the prevailing hourly [in the
Eastern District] are substantially lower” than those in the Southern District. Simmons v. New

22

Any argument that any of the attorneys on the Norinsberg Team should receive no fee or a reduced fee or lower
rate because they “w[ere] terminated” by plaintiff should be rejected. The fact is that the plaintiff thought so highly
of the Norinsberg Team that when it was time to actually try the case, the Norinsberg Team – of all the lawyers
available in New York City – was the plaintiff’s top choice. Further, all of the cases referenced by defendants apply
solely in the context of fee disputes between clients and their discharged attorney and have literally no bearing on
plaintiff's right to recover all reasonable attorney's fees in connection with this case especially where there is no
dispute between plaintiff and these attorneys and indeed they were re-hired and currently represent him in
connection with this application.

‐45‐

York City Transit Auth., 575 F.3d 170, 172 (2d Cir. 2009) (emphasis supplied); Kauffman v.
Maxim Healthcare Servs., Inc., 2008 WL 4223616, at *9 (E.D.N.Y. Sept. 9, 2008) (“the
Bernbach Law Firm is located in the Southern District of New York where attorneys' hourly
rates are recognized to be higher than in the Eastern District of New York”). Indeed, Second
Circuit has “reinforced a sharp distinction in rates for attorneys' fees between these two districts”
such that an attorney Concrete Flotation Sys., Inc. v. Tadco Const. Corp., 2010 WL 2539771, at
*3 (E.D.N.Y. 2010), report and recommendation adopted, 2010 WL 2539661 (E.D.N.Y.
2010)(emphasis added); A.R. ex rel. R.V. v. New York City Dep't of Educ., 407 F.3d 65, 80 (2d
Cir. 2005) (“The same lawyer may be paid at different rates with respect to otherwise identical
legal services provided in cases heard in the Southern District of New York from those at which
he or she is paid with respect to legal services provided in cases heard in the Eastern District of
New York.”). Thus there is no real question – despite defendants’ suggestion to the contrary –
“that it is more lucrative for plaintiffs' attorneys to file civil rights lawsuits against the City in the
Southern rather than the Eastern District of New York due to higher prevailing rates for
attorney's fees in the Southern District.” Legrand v. City of New York, 2010 WL 742584, at *3
(S.D.N.Y. 2010).
Further, although defendants contend that there is “no case cited by plaintiff (or known to
the City) [that] quantifies the supposed difference, so there is no basis to” quantify this difference
at all, this is both illogical and without merit. Specifically, Simmons – the very case cited by
plaintiff’s in their moving brief – contains such a quantification. In fact the Second Circuit in
that case gave the distinction a precise numerical value – namely, “reduc[ing] the attorney's fee
award by $45,000, [to] account[] for the difference between the prevailing rates in the Southern
and Eastern Districts.” Siracuse v. Program for the Dev. of Human Potential, 2012 WL 1624291,

‐46‐

at *27 (E.D.N.Y. 2012); Simmons, 575 F.3d at177 (remanding the case the “to reduce the
attorney's fees award [of $213,085.25] by $45,000, which represents the difference between the
prevailing hourly rates of the Southern District and Eastern District.”). As such, since the
original award in Simmons was $213,085.25 and the reduction to account for the rate difference
was $45,000.00, it is axiomatic that the Southern District rates are 21% higher than those in the
Eastern District. This is particularly important in light of defendants suggestion that Messiers
Norinsberg and Cohen & Fitch LLP be billed at the same rate as there Eastern District billing
rate from four years ago, which even at that time would have logically been 21% higher in this
District.
B.

Cohen & Fitch LLP’s Hourly Rates are Reasonable.

Almost four years ago, both Mr. Fitch and Mr. Cohen were approved at a rate of $325.00
per hour in the Eastern District. See Report & Recomm., Marshall v. Randall, et ano., 10 CV
2714 (JBW) (VVP) (E.D.N.Y. 2013) (Dkt. No. 103); Order, 10 CV 2714 (JBW)(VVP)
(E.D.N.Y. April 9, 2013). Defendants nevertheless argue that this should remain the billing rate
for Cohen & Fitch LLP, an argument, which quite frankly strains the bounds of credibility.
Indeed as mentioned previously, under the Second Circuit precedent of Simmons, even at the
time of the Marshall decision, the fees for Cohen & Fitch LLP would have been 21% higher in
the Southern District – namely, $393.25 per hour. Therefore, it simply defies logic and the law
for defendants to even suggest that Cohen & Fitch LLP should be billed at $325 per hour for
their work in this case.
Further, since Cohen & Fitch LLP Southern District rate would have been at least
approximately $400.00 at the end of 2012, it is not unreasonable to suggests that they command
a current rate of $500 as “it is now understood that awarding fees based on current rates is an

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appropriate means of compensating attorneys in protracted litigation such as this.” Mugavero,
2010 WL 451045, at *5 (S.D.N.Y. 2010). This necessarily accounts for the fact that billing rates
are "presumed [to] increase with the passage of time.” Kovach v. City Univ. of New York, 2015
WL 3540798, at *5 (S.D.N.Y. 2015); see also K.F. v. New York City Dep't of Educ., 2011 WL
3586142, at *2 (S.D.N.Y. 2011), adhered to as amended, 2011 WL 4684361 (S.D.N.Y.
2011)(“In each instance of a citation to an hourly rate in a reported decision, the Court has
remained mindful of the likely increase in rates during the passage of time since the reported
decision and the present.”); Moriarty v. Muzyka, 2006 WL 224098, at *2 (N.D. Ill. Jan. 25,
2006)(“taking into account the passage of time and the escalation of market rates over the yearsfirmly support the requested hourly levels”); Fox ex rel. Fox v. Barnes, 2013 WL 4401802, at *3
(N.D. Ill. 2013) ("Indeed, hourly fees often increase over time, both because of inflation and
because of the increasing skill and reputation of the attorney, suggesting that rates higher than
those awarded three years ago are appropriate.")(emphasis added). For example, the court in
Arbor Hill Concerned Citizens Neighborhood Ass'n. v. Cty. of Albany, 2005 WL 670307
(N.D.N.Y. 2005)(parallel citations omitted) acknowledged that in a litigation in the Northern
District that spanned the course of six years – the same length of time as the instance case – the
current rates should have accounted for “an increase of approximately 20% over that previously
found and reasonably.” Id. at *6. Accordingly, even at what presumably would be considered a
moderate increase in the Southern District simply due to the passage of time, Cohen & Fitch
LLP’s current rates in 2016 versus 2012 should represent a similar 20% increase thereby making
their reasonable hourly rate $480 per hour, at minimum.
While defendants have cited the decision in Marisol A. ex rel. Forbes v. Giuliani, 111 F.
Supp. 2d 381, 387 (S.D.N.Y. 2000) for the proposition that counsel should “receive fees based

‐48‐

on the average of his or her level of experience over the course of the litigation, as opposed to
their current level of experience,” this decision is easily distinguishable from the facts of this
case. Marisol A., 111 F. Supp. 2d at 387. Specifically, that proposition derives from situations
where the position of the attorney has changed over the course of the litigation and that in such
instances attorneys are “not entitled to compensation based on their current positions.” New
York State Nat. Org. for Women v. Terry, 94 F. Supp. 2d 465, 473 (S.D.N.Y. 2000). Indeed as
Your Honor has recognized, the “average” rule is meant to deal with a situation where an
“attorney who starts a litigation as a first-year associate and continues with that litigation over
the course of a decade, should not then be entitled to be billed out as a tenth-year associate.”
Davis v. New York City Hous. Auth., 2002 WL 31748586, at *2 (S.D.N.Y. 2002). Conversely,
one “who is billing as a mid-level partner should be billed out at the current rate for mid-level
partners as opposed to a sliding scale of fees over the course of the litigation.” Id. at *2.
In the present case, Cohen & Fitch LLP’s positions have never changed over the course
of this litigation, they were and still remain founding partners of a recognized and successful
civil rights firm. In addition, defendants cannot simply use years of experience – of which the
partners have twelve, not eight as defendants suggest 23 – to establish that Cohen & Fitch LLP
should be presumed to be billed at a lower rate since “the number of years before the bar is not
the touchstone that determines the worth of an attorney's fee.” Pilkington v. Bevilacqua, 522 F.
Supp. 906, 909 (D.R.I. 1981). Consequently, “longevity per se [] should not dictate the higher
fee[, and] [i]f a young attorney demonstrates the skill and ability, he should not be penalized…”

23

Defendants attempt to discount as relevant the years of experience the partners of Cohen & Fitch LLP have as
prosecutors in the calculation of their fees as if this experience had no relevance to their civil rights and/or trial
experience. However, it is this law enforcement background that attracts clients to the firm because they possess
intimate knowledge of the criminal justice system – from all sides – in a way that many other civil rights attorneys
simply do not.

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Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 719 (5th Cir. 1974) abrogated by
Blanchard v. Bergeron, 489 U.S. 87 (1989); Page v. Astrue, 2009 WL 1798070, at *1 (D.N.H.
June 23, 2009)(“an attorney's age would not appear to be relevant to that determination” of their
reasonable fee); City of Riverside, 477 U.S. at 570 (“counsel's excellent performances in this
case entitled them to be compensated at prevailing market rates, even though they were relatively
young when this litigation began.”). Indeed “experience and reputation ‘are only proxies for
skill’” of which Cohen & Fitch LLP certainly had enough of to attract a client – twice – with
such a highly desirable case as defendants suggest. George v. GTE Directories Corp., 114 F.
Supp. 2d 1281, 1287 (M.D. Fla. 2000). Accordingly, Cohen & Fitch LLP’s hourly rate should
not be determined – as defendants suggest – simply by referenced to their cumulative years of
experience.
Notwithstanding, there is ample precedent to support an award at the rates requests for
attorneys with commensurate years of experience. For example, in Restivo, the court awarded
two attorneys with nearly identical – and in one instance fewer – years of experience $500 per
hour in 2015. See Restivo, 2015 WL 7734100 at *5 (Anna Benvenutti Hoffman compensated at
$500.00, admitted to the bar in 2005; Deborah Cornwall admitted to the bar in 2001). Indeed,
even Your Honor awarded an attorney with only fifteen years’ experience – only three more than
counsel here – $375 per hour twelve years ago. See Davis, 2002 WL 31748586 at *2–3. Similar
cases in this district have awarded commensurate compensation almost ten years ago. See e.g.,
Wise v. Kelly, 620 F.Supp.2d 435, 447 (S.D.N.Y.2008) (Scheindlin, J.) ($425 for a founding
partner with eighteen years of experience in 2008); Heng Chan v. Sung Yue Tung Corp., 2007
WL 1373118, at *3–4 (S.D.N.Y. May 8, 2007) (Lynch, J.) ($450 an hour for partner at private
firm with sixteen years of experience in 2007).

‐50‐

Thus, despite their comparably fewer years of experience than some of the other
attorneys in this case, Gerald M. Cohen and Joshua P. Fitch’s requested hourly rate of $500 is
commensurate with attorneys of their skill who possess a similar extent of relevant civil rights
litigation experience and expertise.24 See, e.g., Adorno, 685 F. Supp. 2d 507 (“A rate of $550.00
is also consistent with rates awarded in this district for experienced civil rights lawyers.”); See
also Zahrey v. City of New York, et al., 98 Civ. 4546 (DCP) (JCF), Report and
Recommendation, dated June 8, 2010 (Docket No. 264) (awarding experienced criminal defense
attorney, who had litigated only 20 civil rights claims in his career, a billing rate of $575.00 per
hour in 2010); Scott v. City of New York, 643 F.3d 56, 59 (2d Cir. 2011) (holding $550 per hour
rate in FLSA case to be reasonable); Barbour, 788 F.Supp.2d at 225 (awarding rate of $625 to
experienced civil rights litigator); Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y.
2008)(awarding $600 per hour partner in employment discrimination case); Robinson, 2009 WL
3109846, *5 (S.D.N.Y. 2009) (approving 500 per hour for a partner in 2009 in an employment
litigation case); DeCurtis v. Upward Bound Intern., Inc., 2011 WL 4549412 (S.D.N.Y. 2011)
(approving $550 for a partner in labor and employment litigation); LV v. New York City Dep't
of Educ., 700 F. Supp. 2d 510, 519 (S.D.N.Y. 2010) (finding $600 per hour a reasonable rate for
experienced litigators).

24

To the extent that defendants claim that hourly rates need to be supported with evidence of bills from paying
clients, this argument is a non sequitur because “the determination of a reasonable hourly rate “is not made by
reference to the rates actually charged the prevailing party.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 946 (9th
Cir. 2007); Bjornson v. Dave Smith Motors/Frontier Leasing & Sales, 578 F. Supp. 2d 1269, 1286 (D. Idaho
2008) (“The determination of a reasonable hourly rate is guided not by the rates actually charged”).

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C.

Given Mr. Norinsberg’s Outstanding Track Record of Multiple Million
Dollar Verdicts, His Proposed Billing Rate Is Reasonable and Well
Supported by Existing Law.

Defendants acknowledge that Mr. Norinsberg has “significant experience in the field of
civil rights litigation,” is “successful and competent” and has “substantial” litigation experience.
(Def. Mem. at 53, 61). Nonetheless, defendants insist that Mr. Norinsberg’s hourly billing rate
should be reduced to $400.00 – the same rate he was awarded four years ago in the Eastern
District – because he is “no Barry Scheck.” (Id. at 61). Yet, apart from this improper ad
hominem attack, defendants’ argument fails on the merits. Mr. Norinsberg has an outstanding
track record of success, and a reasonable paying client most certainly would (and in this case,
did) seek out his talents to handle this complex and challenging trial. Since 2011, Mr. Norinsberg
has obtained five verdicts in excess of one million dollars. 25 In 2013 alone, Mr. Norinsberg
obtained two multimillion dollar civil rights verdicts – one for $7,724,936 dollars and one for
$2,474,000 – both of which made the New York Law Journal’s list of top verdicts in the entire
State of New York for that year. In fact, both the Guzman verdict and the Morse verdict made
the top five list of all government verdicts for the State of New York for the year of 2013.
Defendants wholly fail to mention such accomplishments in their attack on Mr. Norinsberg.
i.

Mr. Norinsberg Was Awarded $550 An Hour in the Southern District
in 2015.

Defendants argue that the proposed billing rate for Mr. Norinsberg ($600.00 per hour) is
“excessive,” and that a rate of $400 per hour should be awarded. (Def. Mem. at 53). However, in
April 2015, Mr. Norinsberg received a $550 per hour award in the Southern District in an Order
by the Honorable Lorna Schofield. (See Norinsberg Decl., Ex. A, Order, dated April 20, 2015).

25

Most recently, on April 12, 2016 Mr. Norinsberg won a $1,200,000.00 verdict in Manhattan Supreme Court in
Balfour v. Quest Diagnostics, et. al., Index No. 106531/11, an employment discrimination action.

‐52‐

Defendants seek to minimize the importance of this Court Order – referencing it once only via
footnote (n. 53) in their 73 page brief – by suggesting that the award of $16,107.50 was too
“minuscule” to contest. (id.). However, $16,107.50 is not “minuscule” by any standard. See
Millea v. Metro N. R. Co., 658 F.3d 154, 168 (2d Cir. 2011) (“The $612.50 award was not de
minimis”). The fact of the matter is that the City of New York – represented by the same office
as Mr. Scheiner – had an opportunity to contest Mr. Norinsberg’s billing rate of $550.00 per
hour, but chose not to do so.

The City’s failure to challenge this $550.00 billing rate is an

implicit concession that this was an appropriate billing rate for Mr. Norinsberg in the Southern
District in 2015. Accordingly, any determination of Mr. Norinsberg’s billing rate should be
based on the $550.00 an hour rate ordered by Judge Schofield in 2015, not the $400.00 billing
rate ordered four years ago in the Eastern District.
ii.

The Stanczyk Hourly Rate Was Fact-Specific And Should Be
Disregarded.

Defendants’ argue that Stanczyk v. City of New York, 990 F.Supp. 2d 242 (E.D.N.Y.
2013) militates against the proposed rate here. (Def. Mem. at 61). However, this same argument
was made – and rejected – in O’Hara v. City of New York, et. al., 11 Civ. 3990 (TLM) (RML)
(March 16, 2015 E.D.N.Y.) (“Defendants’ reliance on Stanczyk v. City of New York is
misplaced ... The Stanczyk decision, as plaintiff argues, is fact-specific ....”) (emphasis supplied).
Moreover, in Stanczyk, Judge Block actually agreed that Mr. Norinsberg’s billing rate in the
Eastern District in 2013 would normally have been $450.00 per hour. Stanczyk, 990 F.Supp. 2d
at 248 (“[C]ounsels’ requested hourly rates are consistent with prevailing rates in this district for
attorneys of similar experience and skill.”) (citations omitted). Further Judge Block noted that
“Norinsberg is a seasoned civil rights litigator with over 20 years of experience. During his
career, he has successfully litigated over 200 § 1983 cases.” Id., 990 F.Supp. 2d at 254, n.2.
53

However, Judge Block concluded that Mr. Norinsberg’s

$450.00

hourly rate required a

“downward adjustment” in that particular case, due to plaintiff’s counsel’s alleged “failure to
provide the jury with any monetary semblance of guidance” and his alleged “laissez-faire
summation.” 26 (Id., 990 F. Supp. 2d at 248) (emphasis supplied).
In the instant matter, none of the factors that the Court considered Stanczyk are
applicable. As Magistrate Judge Levy concluded, the Stanczyk holding is “fact specific” and has
no application whatsoever to this case. O’Hara, 11 Civ. 3990 (TLM) (RML).
iii.

Defendants’ Ad Hominem Attacks on Mr. Norinsberg and Innuendo
About His “Reputation” Are Improper and Baseless.

Rather than acknowledge Mr. Norinsberg’s outstanding track record, defendants resort to
defamatory attacks on Mr. Norinsberg, casting aspersions about his alleged “reputation” in the
legal community. (Def. Mem. at 61) Not only is this ad hominem attack improper, it is utterly
baseless. If anything, Mr. Norinsberg enjoys a stellar reputation in the legal community. In fact,
Mr. Norinsberg is often sought out by other highly experienced attorneys for his advice and
judgment on complex legal issues and trial matters. Most tellingly, Mr. Norinsberg was recently
recognized – for the first time in his 25 year career – as a “Superlawyer” in New York in the
field of civil rights litigation. Mr. Norinsberg did not seek out this recognition, and had nothing
to do with the selection process. Rather, this selection was made by his peers in New York City
who have come to recognize Mr. Norinsberg as a preeminent and highly successful attorney in
the field of civil rights litigation. Since 95% of the attorneys in New York City did not receive
this distinction (as the City implicitly acknowledges, Def. Br. at 61, n.62), Mr. Norinsberg is
honored to have received such professional recognition by his peers.

26

This impression was not shared by defense counsel, Andrew Wenzel, Esq., who described Mr. Norinsberg’s
summation as having “a lot of energy,” and “a lot of emotion,” and altogether a “very seasoned summation.”
54

iv.

Mr. Norinsberg’s Practice Is Devoted Almost Exclusively to Federal
Civil Rights Cases.

Defendants argue that Mr. Norinsberg “does not practice exclusively in the area of civil
rights, and appears [to] have a very active practice in the area of medical malpractice and state
court torts,” (Def. Mem. at 53). However, as defendants well know, Mr. Norinsberg’s practice is
devoted almost exclusively to civil rights cases in Federal courts. (Norinsberg Decl., ¶9).
Indeed, as Your Honor noted four years ago, “Jon L. Norinsberg is a civil rights attorney with
nearly twenty years of civil litigation experience, including civil rights litigation against state and
local governments,” and is “competent and experienced in federal class action and federal civil
rights litigation.”). Stinson v. City of New York, 2012, U.S. Dist. LEXIS 56748 *31 (S.D.N.Y.
2012). Further, “[d]uring his career, [Mr. Norinsberg] has successfully litigated over 200 § 1983
cases,” Stanczyk, 990 F.Supp. 2d at 254, n.2.
To the extent that defendants argue otherwise, defendants erroneously conflate Mr.
Norinsberg’s extensive trial experience with the specialty areas of his law practice. Yet, the vast
scope of Mr. Norinsberg’s trial experience – which includes not only civil rights cases, but also
medical malpractice cases, trademark cases, employment discrimination cases, and products
liability cases – cannot possibly be a basis for lowering Mr. Norinsberg’s billing rate. To the
contrary, such extensive trial experience only further supports Mr. Norinsberg’s requested hourly
rate, as few civil rights attorneys in New York, if any, have a comparable level of

trial

experience, much less the same track record of success that Mr. Norinsberg has enjoyed.
v.

Mr. Norinsberg’s Proposed Billing Rate is Well Within the Range of
Rates Upheld in the Southern District.

Mr. Norinsberg’s proposed rate is well within the range of fees which have been upheld
by Courts in the Southern District for experienced civil rights attorneys with Mr. Norinsberg’s
55

resume and track record. See, e.g., Restivo, 2015 WL 7734100 at *3 (Awarding $700 an Hour to
senior partners based on, inter alia, “the market for legal services in the Southern District of
New York, which supports a $700 per hour rate for senior partners.”); Amaprop Ltd. v.
Indiabulls Fin. Servs. Ltd., 2011 WL 1002439, at *5 (S.D.N.Y. 2011) aff’d, 483 F. App’x 634
(2d Cir. 2012) (approving an hourly rate of $761 for a senior partner in a case about compelling
arbitration); Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (“Based on all of
these factors, a reasonable rate for partners and counsel is $600”); Barbour v. City of White
Plains, 788 F. Supp. 2d 216, 226 (S.D.N.Y. 2011), aff'd, 700 F.3d 631 (2d Cir. 2012) (upholding
billing rate of $625.00 per hour, and finding that plaintiff’s attorney’s rate “within the range of
rates paid to civil rights lawyers in the Southern District of New York of similar skill and
experience”); 27 Rozell, 576 F. Supp. 2d 527 (upholding billing rate of $600.00 per hour);
Adorno, 685 F. Supp. 2d 507 (awarding $550.00 per hour to an “experienced civil rights
lawyer”); Wise, 620 F. Supp. 2d 435 (S.D.N.Y. 2008) (awarding civil rights litigator with 18
years of experience a rate of $425 hour).
In sum, while the City claims that Mr. Norinsberg “is no Barry Scheck,” (id at. 61), he
nevertheless is a highly experienced, widely regarded civil rights practitioner – as noted by the
New York Law Journal and Super Lawyers – as well as a highly successful trial attorney, who
routinely wins multi-million dollar verdicts. As such, Mr. Norinsberg should be awarded $600 an
hour for the work performed on the instant matter.
D.

The Proposed Billing Rate of Mr. Meehan is Reasonable.

While defendants argue that Mr. Meehan’s billing rate should be $250 an hour, Mr.
Meehan was awarded $300 an hour in 2015 by the Hon. Lorna Schofield. (See Ex. A, Order,

27

Mr. Norinsberg actually has two years more experience in the field of civil rights litigation than the plaintiff’s
attorney in Barbour, Michael Spiegal, Esq.
56

dated April 20, 2015). Mr. Meehan’s requested hourly rate is $350.00 an hour, which is
consistent with the rates awarded in the Southern District for associates with comparable
experience. See, e.g., Nautilus Neurosciences v. Fares, 2014 WL 1492481, at *2–3 (S.D.N.Y.
2014) (approving hourly rate of $337.50 for an associate with three years of experience); Canada
Dry Delaware Valley Bottling Co. v. Hornell Brewing, Inc., 2013 WL 6171660, at *2– 3
(S.D.N.Y. 2013) (approving hourly rates of $330–350 for a New York-based fifth year
associate); Kim, 2014 WL 2514705 at *2 (awarding $300 to a third-year associate). See also
New York Dist. Council of Carpenters Pension Fund v. Perimeter Interiors, Inc., 657 F.Supp.2d
410 (S.D.N.Y. 2009) (noting that $300 for an associate was “commensurate with those generally
charged for similar work in this district” in the year 2009).
Mr. Meehan has tried multiple civil-rights cases to verdict in the Southern District. See
Correjter v. Port Authority of New York and New Jersey et. al., 11 Civ. 7847 (PGG), Norwood
v. City of Yonkers, et al., 12 Civ. 8828 (LMS). Mr. Meehan has also had an active role (i.e.,
questioning witnesses, handling charge conferences, drafting motions in limine) in nine different
trials where Mr. Norinsberg was lead counsel. Accordingly, a reasonable paying client would
pay $350 an hour to retain Mr. Meehan’s services, especially preparing for trial, the area in
which the majority of Mr. Meehan’s work on the instant matter took place. 28

28

As defendants have conceded in their opposition, Ms. Bursztyn should receive $125 an hour. Ms. Bursztyn was
previously award $125 an hour in Marshall. As such “the City allows for a $125 rate [] for Bursztyn.” (Def. Mem.
At 68, n. 73). Accordingly, as her rate is unopposed, Ms. Bursztyn should be awarded $125 an hour.
57

CONCLUSION 29
WHEREFORE, plaintiff respectfully requests that this Honorable Court grant plaintiff's
motion for attorneys’ fees, costs 30 , and expenses, plus New York statutory interest at a rate of
9% running from October 16, 2015. 31
Dated: New York, New York
April 29, 2016
Respectfully submitted,

________/S_____________
JOSHUA P. FITCH
GERALD M. COHEN
COHEN & FITCH LLP

29

On April 26, 2016, all plaintiffs’ counsel requested permission to file separate, oversized briefs in connection with
their respective replies to defendants’ voluminous submissions, including a 73-page opposition brief and a 195-page
expert report. (Docket No. 617). At the time of this filing, however, plaintiff’s application is still pending. If this
Court should deny or otherwise impose limitations on plaintiff’s reply in connection with that application that
should have affected the length or format of this brief, plaintiff respectfully requests permission to re-file this reply
in accordance with any such ruling.
30
Since the only challenge mounted against the 3,800.00 in costs by Cohen & Fitch LLP is a lack of documentation,
a copy of the Veritext bill is attached hereto. See Reply Dec., Ex. S.
31
Since the “district court cases examining this question have concluded that disputes over federal settlements, even
those that resolve federal claims, are ‘quintessentially...of contractual interpretation and performance and wholly
governed by state law.’” Brown v. City of New York, 2012 WL 628496, at *2 (E.D.N.Y. 2012) report and
recommendation adopted, No. 09-CV-1809, 2012 WL 626395 (E.D.N.Y. 2012); Frenkel v. New York City Off–
Track Betting Corp., 611 F.Supp.2d 391, 396–97 (S.D.N.Y.2009)(characterizing plaintiff's claim for breach of a
federal settlement as “alleg[ing] a state law breach of contract claim”). Therefore, since “‘usual rules of contract
construction’ apply to a Rule 68 offer of judgment[,] [and] State law applies to the interpretation of contracts
generally, even if the underlying cause of action is federal” the interest rate on any fee award in this case must apply
the New York statutory rate of 9% from October 16, 2015. Espinosa v. Wells Fargo Bank, N.A., 2014 WL 1017912,
at *1 (Bankr. D. Or. 2014); Cronin v. Executive House Realty, 1982 WL 1303, at *15 (S.D.N.Y. 1982) (“in New
York, the statutory rate of postjudgment interest is 9%,”); CARCO GROUP, Inc. v. Maconachy, 718 F.3d 72, 88 (2d
Cir. 2013)(“interest on any attorneys' fees awarded [] [] should be calculated from the date on which Carco was
found to be the prevailing party.”).

58

Attorneys for Plaintiff
233 Broadway, Suite 1800
New York, N.Y. 10279
[phone]
[e-mail]
[e-mail]
JON L. NORINSBERG
Attorney for Plaintiff
225 Broadway, Suite 2700
New York, New York 10007
[phone]
[e-mail]

59