Grottano et al v. City Of New York et al

Filing 446

DECISION & ORDER granting in part and denying in part 343 Motion for Attorney Fees. For the foregoing reasons, Class Counsels Motion for Attorneys Fees and Expenses [Dkt. 343] is granted in part and denied in part. The Court awards Class Counsel & #036;2.6 million in attorney's fees. The Court awards $10,574.94 in expenses. The Court also intends to award an additional $998.88 in expenses subject to Class Counsel providing further documentation for the "Printing Notice for DOC Facilities" expense on or before August 15, 2022. Defendants' Cross Motion for Reimbursement of Administrative Costs [Dkt. 352] is granted in part and denied in part. Class Counsel is ordered to reimburse (from the $2.6 million attorneys' fee aware) Defendants for half of the total amount of fees paid and to be paid to the Claims Administrator in excess of $500,000. (Signed by Judge Richard M. Berman on 7/15/2022) (clt)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------DANA GROTTANO, et al.,
Plaintiffs,
- against CITY OF NEW YORK, et al.,
Defendants.
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15 CV 9242 (RMB)
DECISION & ORDER

This Decision & Order resolves Plaintiffs’ Motion for Attorneys’ Fees and Expenses, dated
September 21, 2021, seeking $4.5 million plus $14,651.48 in expenses (“Motion”); and
Defendants’ Cross Motion for Reimbursement of Administrative Costs, dated October 8, 2021
(“Cross Motion”), seeking “reimbursement from Class Counsel’s attorneys’ fees for the [amount]
paid to the Claims Administrator” in excess of $500,000. For the reasons set forth below, the Court
awards to Class Counsel the total amount of $2.6 million in attorneys’ fees. The Court awards
$10,574.94 in expenses; an additional $998.88 may be awarded subject to Class Counsel providing
supporting documentation. The Court also orders and directs Class Counsel to reimburse and/or
share with Defendants one half (50%) of the total amount of claims administration fees paid or to
be paid to the Claims Administrator in excess of $500,000.
I.

Motion for Attorneys’ Fees and Expenses

The parties’ settlement agreement, dated June 20, 2019 (“Settlement Agreement”),
provides for distribution of a $12.5 million settlement fund (“Settlement Fund”) to class members
who were subjected to invasive searches when visiting New York City Department of Correction
(“DOC”) facilities between November 23, 2012 and October 30, 2019. Settlement Agmt. ¶¶ 11,
30. The Settlement Agreement also includes an injunction against the DOC which requires changes
to DOC visitor search protocols, including a two-year period of oversight of DOC visitor searches
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by Class Counsel. Settlement Agmt. ⁋⁋ 34-52, 56; see also Grottano v. City of New York, 2021
WL 5563990, at *1 (S.D.N.Y. Nov. 29, 2021).
The Settlement Agreement also provides that “[e]ach eligible claimant will receive a
minimum of $1,000, unless they are part of the sub-category of individuals who were found with
contraband during their visit to a DOC facility,” in which case “they will receive $500.” See
Stipulation Modifying the Class Action Settlement Agreement, dated Apr. 22, 2021, ⁋ 11, ECF
No. 322-2 (“Settlement Modification”). The settlement checks were mailed to all class members
in early 2022. See Ltr. from Oren Giskan, dated Apr. 12, 2022, at 1, ECF No. 442. As detailed in
the Court’s November 29, 2021 Decision and Order, Defendants also advised the Court that they
have implemented the injunctive relief by, among other things, revising DOC “policies and
procedures concerning searches of visitors to [DOC] facilities” and “training materials regarding
visitor searches.” Grottano, 2021 WL 5563990, at *1–2. DOC has also revised its visitor “pat-frisk
poster” which is “prominently placed in all visit areas, so that visitors know what to expect if they
consent to a pat-frisk search.” Id. During the oversight period, which began on November 29,
2021, “Class Counsel [are] permitted to visit every DOC facility [twice] with a DOC legal escort,”
and “observe up to six officer training sessions.” Ltr. from Oren Giskan, dated Apr. 12, 2022. DOC
is providing “Class Counsel all visitor complaints received by DOC Constituent Services, and
Class Counsel will . . . review the complaints for any indication of improper search practices.” Id.;
see also Settlement Agmt. ¶ 52.
The Settlement Agreement also provides for Class Counsel “seeking Court approval for
attorneys’ fees of up to $5,400,000.00,” which are to be paid by Defendants independently of the
Settlement Fund. See Settlement Agmt. ¶ 53; Mot. at 10 (“[A] fee award in this case will not
decrease the settlement fund because it will be paid separately” by Defendants.). Class Counsel

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have submitted billing records (“Class Counsel Billing Records”) as well as a supplemental
declaration, dated March 4, 2022, stating that their billing records reflect a lodestar amount (before
applying a multiplier) of $2,561,625.65. See Supp. Decl. of Scott Simpson, dated Mar. 4, 2022,
¶ 20, ECF No. 427 (“Simpson Decl.”). Class Counsel argue that a multiplier of 1.76 should be
applied to the lodestar amount “because [the case] required an extraordinary amount [of] time and
labor [and] involved difficult and complex legal questions, significant risk, and a defendant with
substantial resources” and because a multiplier would compensate for the time spent “overseeing
the administration of the settlement and monitoring the injunctive relief.” Mot. at 10–11, 14; see
also Simpson Decl. ¶¶ 19–20.
Class Counsel argue that a $4.5 million attorneys’ fee award is reasonable under the factors
articulated in Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000) because, among
other things, (1) “three [law] firms spent thousands of hours investigating, litigating, and settling
this sprawling case”; (2) the case “successfully challenged systemic constitutional violations [and]
ensured that thousands of visitors to City jails receive just compensation for their injuries . . . and
[Class Counsel] secured a robust injunctive relief regimen that will help to protect hundreds of
thousands of visitors”; (3) “the case appears to be the first damages class action filed on behalf of
visitors to correctional facilities who were subjected to unlawfully invasive searches”; (4) Class
Counsel’s representation reflects “substantial civil rights and class action experience”; (5) the
requested award “is well within the range of similarly sized class action settlements”; and (6) “the
proposed fee award strikes the right balance between moderation and encouraging litigants to bring
forward substantive and impactful cases that are crucial to enforcing our constitutional liberties.”
Mot. at 15–21.
Defendants oppose the Motion by memorandum, dated October 8, 2021, arguing that

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“Class Counsel’s total fee award should be limited to between $2.4 and $2.6 million” and that
expense reimbursement should be reduced to $10,574.94. Cross Mot. at 2. Defendants also
submitted a letter, dated March 11, 2022, in further opposition to the Motion stating, among other
things, that a reduction of Class Counsel’s “lodestar to $2,000,000 . . . would be appropriate [and
that] [m]ultiplying the adjusted lodestar of $2,000,000 by 1.2 to 1.3 would yield a range of $2.4 $2.6 million for the attorney’s fee award.” Defs. Ltr., dated Mar. 11, 2022, at 2, ECF No. 430
(emphasis added).
Defendants contend that Class Counsel’s requested fee award of $4.5 million is
unreasonable under the six Goldberger factors because: (1) while “Class Counsel expended a
substantial amount of time and labor on this case . . . [their] time was spent inefficiently and their
records have a number of deficiencies”; (2) no “legal or evidentiary difficulties [] made this case
more complex to litigate than other class actions against municipal entities”; (3) litigation here was
not “any riskier than any other class action against the City of New York”; (4) “courts should not
necessarily award an increased fee where counsel simply displays the general level of skill
expected”; (5) “a [fee award] closer to 15.4% - 16.5%, or $2.4 million - $2.6 million, is reasonable,
and would be in line with prior class action settlements decided by this Court”; and (6) a lower
award would “balance[] the overarching concern for moderation with public policy considerations
of encouraging the filing of Section 1983 actions.” Cross Mot. at 19–22. 1

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Defendants also argue that Class Counsel’s lodestar should be reduced because their
billing records reveal, among other things, “inefficient staffing” and “vague [time] entries.” Id. at
10-14. Defendants do not take issue with most of Class Counsel’s expenses, but point out that
Class Counsel did not provide certain supporting documentation and that Class Counsel “agreed .
. . to split the [mediation] payment . . . on the limited issue of whether or not there should be a
$1,000 minimum payment to claimants.” Id. at 22–23.
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II.

Problems with Initial Claims Notice and Much Lowered Expectations

As discussed in the Court’s November 29, 2021 Decision and Order, the parties’ first effort
in December 2019 to notify potential class members of the settlement was seriously flawed. See
Grottano, 2021 WL 5563990, at *3. The original notice and claim form to potential class members
(“Initial Claims Notice”) stated that the Settlement Agreement includes cash payments of up to
$12,500,000 to the class and that “Settlement Class Members will be eligible to receive a
payment of approximately $4,000.00.” Initial Claims Notice at 1, 4, ECF No. 228-2 (emphasis
added). “[C]laim forms were mailed to the approximately 300,000 people who visited DOC
facilities during the class period” and “[n]otice of the proposed settlement was also provided
through extensive publication” (including newspapers, public transit postings, and social media).
Mot. at 5. In response to the Initial Claims Notice, more than 40,000 people submitted claims,
which would have yielded average payments of less than $300 per claimant—far below the Initial
Claims Notice’s estimate of “approximately $4,000.” See Grottano, 2021 WL 5563990, at *3.
Following this serious underestimation by the parties of the number of potential
claimants, the parties reversed course and returned to the negotiating table to address the
problems with the Initial Claims Notice. And, the Court was called upon to oversee these
unforeseen proceedings more intensively than in any other class action on the Court’s docket.
The parties also obtained the assistance of a highly regarded and expert class action mediator,
Harvard Law Professor William B. Rubenstein, who, along with his students, dedicated hundreds
of hours to this case pro bono. See Grottano, 2021 WL 5563990, at *3. The parties spent over a
year re-negotiating a new settlement structure and fashioning a new claims notice to supersede the
Initial Claims Notice.
The new notice and claim form explained:
[The Initial Claims Notice] advised you that you would be eligible
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to receive a payment of “approximately $4,000” to settle your claim.
In response to the [Initial Claims Notice], a significantly larger
number of people than expected made claims. Because of that, you
would have received less than $1,000 under the original terms of the
class action settlement. . . . Under the new terms of the class action
settlement . . . you will receive at least $1,000 . . . .
Supplemental Notice at 1, ECF No. 322-1 (emphasis in original). Among other things, the new
notice and claim form required substantial additional information from claimants to enable the
parties better to determine each claimant’s eligibility to participate in the settlement, including “the
date and location of the searches they experienced as well as [ ] a narrative description of those
searches.” Decl. of Bruce Menken, dated Aug. 13, 2021, ¶ 29, ECF No. 335; see also Settlement
Modification ⁋ 3. The new notice and claim form was mailed to the same 40,000 individuals who
had submitted claims in response to the Initial Claims Notice on May 16, 2021. See Grottano,
2021 WL 5563990, at *3. And, it ultimately resulted in approximately 12,500 substantiated claims
rather than the 40,000 claims submitted in response to the Initial Claims Notice. Id. at *4. As the
new notice and claim form indicated, Defendants agreed to a $1,000 minimum payment for all
verified claims. Settlement Modification ⁋ 11.
Owing, in part, to the need for extensive revisions of the Initial Claims Notice and
attendant proceedings, the Court has extensive familiarity with this case. See, e.g., Tr. of Apr.
8, 2021 Conference at 11:3-8 (Court: “[I]t seems to me that you have to explain why all those
people that submitted claims before are not getting paid based on their doing what you asked them
to do . . . . It does not do that. It does not explain what happened clearly, definitively.”); Tr. of Apr.
20, 2021 Conference at 19:22 – 20:7 (Defendants’ counsel: “[T]he City sent back our edits for
consistency . . . to the supplemental notice. . . . So I think the Court just needs to review the City’s
edits to the supplemental notice document.”); see also In re IndyMac Mortg.-Backed Sec. Litig.,
94 F. Supp. 3d 517, 521-22 (S.D.N.Y. 2015), aff'd, 673 F. App'x 87 (2d Cir. 2016) (citation
6

omitted) (court was “intimately familiar with the nuances of the case” and found that requested
attorneys’ fee award was “unreasonably high”).
III.

Cross Motion for Reimbursement of Administrative Costs

On October 8, 2021, Defendants filed their Cross Motion which seeks reimbursement from
“Class Counsel’s [attorneys’] fee award” of claims administration fees that Defendants have paid
or will pay to the Claims Administrator in excess of $500,000. Cross Mot. at 23–25. Defendants
contend that they should be reimbursed for payments they have made or will make to the Claims
Administrator totaling more than $500,000 because: (1) “the Settlement Agreement provides that
Defendants would not reimburse the Claims Administrator for any amount in excess of $500,000”;
and (2) decisions regarding the Initial Claims Notice that Defendants opposed led to the new
notice, additional proceedings, protracted claims period, and overrun of administrative costs. Id.
at 24.
Class Counsel oppose the Cross Motion, arguing that: (1) Defendants “negotiated and
agreed to the [$159,024] additional costs” of the first round of claims administration; and
(2) Defendants also agreed to the Initial Claims Notice which “did not seek specific information
about claimants’ searches. . . . [Defendants] knew the costs of sending a second claim form and . .
. the costs of reviewing the claim forms. And [Defendants] agreed to all of it.” Pls. Reply Br. at
10.
IV.

Legal Standard

In evaluating an application for attorneys’ fees, “the trend in the Second Circuit is toward
the percentage method . . . .” Perez v. Ultra Shine Car Wash, Inc., 2022 WL 2129053, at *5
(S.D.N.Y. June 14, 2022) (quoting Wal–Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 121
(2d Cir. 2005)). “[T]he lodestar remains useful as a baseline even if the percentage method is [ ]
chosen.” Goldberger v. Integrated Resources, Inc., 209 F.3d 43, 50 (2d Cir. 2000). Where a court
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awards fees on a percentage basis, “the reasonableness of the claimed lodestar can be tested by the
court’s familiarity with the case” and the Court need not “exhaustively scrutinize[]” billing
records. Id. “[N]o matter which method is chosen, district courts should [ ] be guided by the
traditional criteria in determining a reasonable common fund fee, including: (1) the time and labor
expended by counsel; (2) the magnitude and complexities of the litigation; (3) the risk of the
litigation . . . ; (4) the quality of representation; (5) the requested fee in relation to the settlement;
and (6) public policy considerations.” Id. (citation omitted).
Where the money paid to the attorneys is entirely independent of money awarded to the
class, it has been said that the Court’s fiduciary role in overseeing the award is reduced because
there is no conflict of interest between attorneys and class members. McBean v. City of New York,
233 F.R.D. 377, 392 (S.D.N.Y. 2006). “Nevertheless, a court must still assess the
reasonableness of the fee award . . . . [by] look[ing] to the factors specified in Goldberger . . .
.” Jermyn v. Best Buy Stores, L.P., 2012 WL 2505644, at *9 (S.D.N.Y. June 27, 2012) (emphasis
added) (internal quotation marks and citation omitted); see also Schwartz v. Intimacy in N.Y., LLC,
2015 WL 13630777, at *6 (S.D.N.Y. Sept. 16, 2015) (employing the percentage of the fund
method with a lodestar cross check and analyzing the Goldberger factors ); Shapiro v. JPMorgan
Chase & Co., 2014 WL 1224666, at *19 (S.D.N.Y. Mar. 24, 2014). A court may reduce an
attorneys’ fee award where there is “significant mismanagement of the claims administration
process.” In re PaineWebber Ltd. P’ships Litig., 2003 WL 21787410, at *2 (S.D.N.Y. Aug. 4,
2003); accord Trinidad v. Pret a Manger (USA) Ltd., 2014 WL 4670870, at *11 (S.D.N.Y. Sept.
19, 2014) (reducing requested attorneys’ fee award where class counsel “may have led class
members to overestimate their shares of the settlement”).
V.

Analysis: Motion for Attorneys’ Fees and Expenses

Applying the Goldberger factors, employing the percentage method with a lodestar cross
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check, and considering that the City of New York will be paying the legal fees, the Court finds
that Class Counsel’s request for $4.5 million in attorneys’ fees (“Requested Award”) is excessive.
The Court awards to Class Counsel $2.6 million as the total legal fees in this case, which equates
to 20.8% of the $12.5 million Settlement Fund. 2 The Court also awards $10,574.94 in expenses,
and an additional $998.88 subject to Class Counsel providing certain supporting documentation
for the $998.88. See infra Section VI.
Class Counsel suggests that the Court use $17.7 million, rather than the $12.5 million
Settlement Fund with reference to the percentage of the fund. According to Class Counsel, $17.7
million represents the total “benefit to the class” and “is comprised of the [S]ettlement [F]und
[$12.5 million], the [requested] attorneys’ fees [$4.5 million], and the settlement administration
costs (approximately $700,000, to date).” Mot. at 1 n.3. In this District, when awarding fees on a
percentage-of-the-fund basis, the denominator is usually the settlement net of costs. Tapia v. Lira,
2021 WL 5086300, at *4 (S.D.N.Y. Nov. 2, 2021) (emphasis in original) (internal quotation marks
and citation omitted). If, arguendo, the Settlement Fund were to be “pooled” together with the
requested attorneys’ fee award and the claims administration costs, a $2.6 million award would
represent 14.7% of the total. See Shapiro, 2014 WL 1224666, at *19 (attorneys’ fee award
represented 7.6% of sum of settlement fund, attorneys’ fees, and administrative costs).
A. The Goldberger Factors Support an Award of No More Than $2.6 million
in Legal Fees
The first Goldberger factor—“time and labor expended by counsel”—weighs in favor of
reducing the Requested Award. See Trinidad, 2014 WL 4670870, at *10. While Class Counsel’s

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The Court adheres to the practice of calculating the percentage of legal fees in reference
to the Settlement Fund rather than to the sometimes so-called total benefit to the class. See Tapia
v. Lira, 2021 WL 5086300, at *4 (S.D.N.Y. Nov. 2, 2021); cf. Hart v. BHH, LLC, 2020 WL
5645984, at *8 (S.D.N.Y. Sept. 22, 2020).
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records demonstrate that they have dedicated some 5,816 hours to this case, the records also
include time entries for unanticipated investigation, drafting, negotiations, court appearances, and
protracted settlement re-negotiations attributable to the need to correct the flawed Initial Claims
Notice process and to devise a workable supplemental notice and claim form (with considerable
help from Professor Rubenstein). See Class Counsel Billing Records (“Legal research re high
claims rate”; “TC w/Prof Rubenstein re: various options, brainstorming on dealing with notice and
claims rate issues”; and “TC w/all counsel re: supplemental notice[]”); see also Decl. of Bruce
Menken, dated Sept. 21, 2021, ¶¶ 9-15, ECF No. 345 (“Menken Decl.”); Cross Mot. at 21. The
Court has also considered and factored into the fee award the fact that Class Counsel is expected
(if not required) to spend some time overseeing injunctive relief over the next year or so. See
Simpson Decl. ¶ 16. 3
The second and third Goldberger factors—“the magnitude and complexities of the
litigation” and “the risk of litigation”—also weigh in favor of reducing the Requested Award. To
be sure, this case revealed “an invidious and disturbing practice that was allegedly carried out for
years at New York City jails, namely the invasive ‘strip/body cavity searches’ of individuals
visiting [DOC] facilities.” Grottano, 2021 WL 5563990, at *1. But apart from the parties’ scramble
to correct defects in the Initial Claims Notice and to adjust for claims that were not remotely

3

Class Counsel has agreed to:
a) review[] all DOC visitor complaints, . . . ; b) continu[e] on site-monitoring by
visiting all DOC facilities; c) participat[e] [in] at least three ‘All-Parties’
meetings with the City’s attorneys and DOC officials to discuss the
implementation of the injunctive relief . . . ; d) continue to observe and attend
trainings of DOC employees on visitor searches; e) . . . review and advocate for
amendments and/or additions to [any new DOC directives and/or instruction
materials concerning visitor search procedures.]

Simpson Decl. ¶ 18.
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predicted, the litigation was not overly complex. Defendants’ “liability was never vigorously
contested, as the parties settled early in the litigation . . . and there have been no objections to the
proposed settlement.” Grice v. Pepsi Beverages Co., 363 F. Supp. 3d 401, 407 (S.D.N.Y. 2019);
see also Mot. at 4. The litigation in this case included a motion to dismiss, depositions, discovery
disputes, and settlement. See Mot. at 4. The Court acknowledges that “[f]or the past [six] years,
Class Counsel has had to dedicate resources without guarantee of compensation.” Stinson v. City
of N.Y., 256 F. Supp. 3d 283, 296 (S.D.N.Y. 2017). There is always risk where attorneys take a
case on a contingency fee. See Alderman v. Pan Am World Airways, 169 F.3d 99, 102-03 (2d Cir.
1999).
The fourth Goldberger factor—“the quality of representation”—weighs in favor of
reducing the Requested Award. As noted, the Initial Claims Notice to potential class members and
the attendant underestimation of the number of claimants were far from optimal and, among other
things, resulted in serious delay and dashed expectations of the amount of payments to class
members. See Trinidad, 2014 WL 4670870, at *11. The Initial Claims Notice attracted a much
larger number of claims than anticipated, in part, perhaps, because Class Counsel projected and
publicized individual payouts of “approximately $4,000” per claimant. See supra Section II; see
also Grottano, 2021 WL 5563990, at *3-4. Remedying this problem required at least two outside
expert mediators, i.e., Professor Rubenstein and former Magistrate Judge James C. Francis IV,
more than a year of re-negotiations, drafting and circulating a supplemental claims notice, and a
second round of claims administration and costs. See Grottano, 2021 WL 5563990, at *3-4. Not
to mention multiple additional and extensive court submissions and proceedings. See, e.g., Ltr.
from Raymond Audain, dated Mar. 15, 2020, ECF No. 282; Dfs. Ltr. dated Mar. 15, 2020, ECF
No. 283; Tr. of Nov. 9, 2020 Conference at 7:18 – 8:19; Settlement Modification ¶ 3.

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As a result, settlement payments to class members were significantly delayed and
dramatically reduced. The amount ultimately paid to class members was a minimum of $1,000 and
was much less than the “approximately $4,000” stated in the Initial Claims Notice. Grottano, 2021
WL 5563990, at *3. In sum, the fourth Goldberger factor weighs in favor of reducing the
Requested Award significantly in light of the troublesome management of claims and the claims
process. “Although not the fault of Class Counsel alone, the . . . errors nevertheless occurred on
Class Counsel’s watch and [] led to lengthy delays and not insignificant errors in the settlement
distribution process and the final resolution of this action.” In re PaineWebber Ltd. P’ships Litig.,
2003 WL 21787410, at *2. That no class member has objected to the requested attorneys’ fees of
$4.5 million is not surprising because the class awards were always independent of Class Counsel’s
legal fees (which are being paid by the City of New York, the primary Defendant in this case). See
Settlement Agmt. ¶¶ 11, 53.
The fifth Goldberger factor—“the requested fee in relation to the settlement”—also weighs
in favor of reducing the Requested Award. The Requested Award is 36% of the Settlement Fund
and is well above the upper limit of fee awards granted by this Court—and also well above many
fee awards in this District. See, e.g., Shapiro, 2014 WL 1224666, at *19 (citations omitted) (“[A]
review of district court decisions in this Circuit applying the Goldberger factors place a reasonable
percentage of the fund range between 10% and 30%.”); see also McDaniel v. Cnty. of Schenectady,
595 F.3d 411, 426 (2d Cir. 2010) (affirming 13% fee award in strip search case). The Requested
Award also falls above the top end of the range for civil rights actions in this District and for strip
search cases generally. See Stinson, 256 F. Supp. 3d at 297; McDaniel, 595 F.3d at 426 (citing
Nilsen v. York Cnty., 400 F. Supp. 2d 266, 281 (D. Me. 2005) (collecting strip search cases)).
The sixth and final Goldberger factor is “public policy considerations.” “The court

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considers what fee would adequately encourage class counsel to continue bringing cases of merit
in the future. . . .” Seijas v. Republic of Argentina, 2017 WL 1511352, at *14 (S.D.N.Y. Apr. 27,
2017). “[B]ut courts must also guard against providing a monetary windfall to Class Counsel
. . . .” Hart v. BHH, LLC, 2020 WL 5645984, at *11 (S.D.N.Y. Sept. 22, 2020) (emphasis added)
(internal quotation marks omitted); see also In re NTL Inc. Sec. Litig., 2007 WL 1294377, at *8
(S.D.N.Y. May 2, 2007) (“[A] 15% fee is reasonable because it will not bring a windfall to co-lead
plaintiffs’ counsel.”). The Court also considers that the fee will be paid directly by the City of New
York and will not come at the class’ expense. See Hart, 2020 WL 5645984, at *11.
The court finds that a 20.8% fee award strikes the right balance between outcomes for the
class and encouraging litigants to bring forward impactful cases concerning constitutional liberties.
Seijas, 2017 WL 1511352, at *14.
B. Lodestar Cross Check
The Court also finds that it is appropriate to reduce Class Counsel’s proposed lodestar by
10%, i.e., from $2,561,625.65 to $2,305,463.08, to account for weaknesses in the billing records,
including, among other things, vague time entries, partner-heavy billing, and the time spent to
correct the Initial Claims Notice problems. See N. L-C. v. N.Y.C. Dep’t of Educ., 2022 WL 831820,
at *5 (S.D.N.Y. Mar. 18, 2022).
Class Counsel Billing Records include dozens of vague entries such as: “Many emails/calls
with and about class members – various issues”; “Telephone conference with co-counsel re case”;
“Telephone conference with opposing counsel re case”; “confer with RA”; and “doc review.” See
Class Counsel Billing Records (3/2/2022 attorney Simpson entry; 4/11/2019 attorney Audain
entry; 10/7/2015 Giskan entry; 5/12/2016 attorney Simpson entry). A court “may reduce the
[attorneys’] fees requested for billing entries that are vague and do not sufficiently demonstrate
what counsel did.” Ryan v. Allied Interstate, Inc., 882 F. Supp. 2d 628, 636 (S.D.N.Y. 2012)
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(citations omitted); see also Abeyta v. City of New York, 2014 WL 929838, at *5 (S.D.N.Y. Mar.
7, 2014), aff’d, 588 F. App’x 24 (2d Cir. 2014) (“[A] selection of [billing] entries are impermissibly
vague.”).
Class Counsel Billing Records also reflect that Class Counsel’s allocation of time was
heavily weighted towards partners. In re Platinum & Palladium Commodities Litig., 2015 WL
4560206, at *4 (S.D.N.Y. July 7, 2015). “Courts have reduced the fee percentage requested where,
as here, the lodestar value reflects an over-allocation of work to more expensive partners.” Id.
(citation omitted). Three partners (Messrs. Giskan, Menken, and Simpson) and one senior counsel
(Audain) billed 3,201 hours, or 55% of all hours billed to the case. See Simpson Decl. ¶ 23. Class
Counsel’s 55% allocation of work to the most expensive attorneys supports a reduction of the
proposed lodestar. See Rozell v. Ross-Hoist, 576 F. Supp. 2d 527, 541 (S.D.N.Y. 2008) (“[A]
disproportionate amount of time was billed by the more senior counsel . . . relative to that billed
by more junior associates with lower hourly rates.”); see also Ravina v. Columbia Univ., 2020 WL
1080780, at *8 (S.D.N.Y. Mar. 6, 2020) (reducing hours billed by 35% where “the participation
of [four] high-billing attorneys was indeed inefficient”).
Class Counsel Billing Records also reflect dozens of time entries—recorded over the
course of more than a year—relating to the problems caused by the flawed Initial Claims Notice.
These entries include, among others, “Legal research re high claims rate”; “TC w/Prof Rubenstein
re: various options, brainstorming on dealing with notice and claims rate issues”; and “TC w/all
counsel re: supplemental notice[]; Meeting w/SS to discuss options and next steps”; “Draft letter
to court regarding high claims rate; legal research re same”; “Edit and revise brief re technical
deficiencies and final approval hearing”; “t/c with court regarding status of sett[lement], confer
with co-counsel regarding same.” See Class Counsel Billing Records (2/6/2020 Audain entry;

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2/6/2020 Menken entry; 2/3/2020 Menken entry; 2/7/2020 Audain entry; 3/24/2021 Audain entry;
1/19/2021 Giskan entry). “[T]he district court (unfortunately) bears the burden of disciplining the
market, stepping into the shoes of the reasonable, paying client, who wishes to pay the least amount
necessary to litigate the case effectively.” Arbor Hill Concerned Citizens Neighborhood Ass’n v.
Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182, 184 (2d Cir. 2008). It is doubtful
that a reasonable client would pay for the considerable time that Class Counsel spent resolving
problems they, along with Defendants, created. See Ge Chun Wen v. Hair Party 24 Hours Inc.,
2021 WL 3375615, at *23 (S.D.N.Y. May 17, 2021), report and recommendation adopted, 2021
WL 2767152 (S.D.N.Y. July 2, 2021) (“Counsel’s fee records, however, reflect that they are
seeking recovery for the fees incurred for both the work that was improperly performed and the
same work that was later redone. It would not be reasonable for Defendants to have to pay for
Plaintiff’s counsel’s errors.”) The excess time devoted to resolving the problems created by the
Initial Claims Notice significantly delayed settlement payments to Class Members—and the final
resolution of this case. See supra Sections II and V.A.
It is not entirely clear to the Court why a multiplier is warranted where, as here, Class
Counsel are billing at handsome hourly rates. Mr. Giskan bills at $665 per hour; Mr. Menken bills
at $650 per hour; Mr. Audain bills at $532 per hour; and Mr. Simpson bills at $475 per hour.
Simpson Decl. ⁋ 23. Associates working on this case billed at an average rate of $364 per hour;
paralegals billed at a rate of $125 per hour. Id. “Historically, the two major factors driving a fee
multiplier have been quality [of representation] and risk.” In re AOL Time Warner S'holder
Derivative Litig., 2010 WL 363113, at *21 (S.D.N.Y. Feb. 1, 2010) (citation omitted). And, “it is
unquestionably true that risk, quality and experience are ingredients in the formulation of an hourly
billing rate.” Id. at *22 (citing Herbert B. Newberg and Alba Conte, Newberg on Class Actions §

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14:6 (4th ed. 2002)). The Second Circuit has affirmed a district court’s denial of any multiplier on
the basis that “the high hourly rates of counsel already accounted for risk and quality.” Id. (citing
Goldberger, 209 F.3d at 56-57). “The Court finds that [Class Counsel’s] high billable rates have
inflated the lodestar to a point where [they] need not benefit from a significant multiplier in order
to be adequately compensated for the work performed.” Steinberg v. Nationwide Mut. Ins. Co.,
612 F. Supp. 2d 219, 224 (E.D.N.Y. 2009).
Following a 10% reduction of Class Counsel’s proposed lodestar, the fee award of $2.6
million returns a lodestar multiplier of 1.13. See, e.g., In re PaineWebber Ltd. P’ships Litig., 2003
WL 21787410, at *2 (internal quotation marks omitted) (concluding that “applying a multiplier is
unwarranted here in light of the significant mismanagement of the claims administration process”
and noting that “courts in this and other districts have declined to award any multiple to hours
spent on claims administration, since there is no longer any risk involved at this stage in the
proceedings”); Tiro v. Public House Invs., LLC, 2013 WL 4830949, at *15 (S.D.N.Y. Sept. 10,
2013) (“[I]f the lodestar is significantly out of line with the percentage of recovery, it raises a red
flag.”); Schwartz, 2015 WL 13630777, at *7. After thoroughly considering all of the circumstances
of this case and utilizing the percentage of the fund method and a lodestar cross-check, the Court
finds that a lodestar multiplier of 1.13 and a lodestar of $2,305,463.08 are appropriate. See
Schwartz, 2015 WL 13630777, at *7. The Court finds that an attorneys’ fee award of $2.6 million
is reasonable.
VI.

Reimbursement of Litigation Costs and Expenses

Class Counsel seek to be reimbursed for $14,651.48 in expenses. They have submitted a
list of expenses by category which appears to include, among other things, filing fees, transcripts,
postage, printing, mediation fees, and process servers. See Menken Decl.; Decl. of Oren Giskan,
dated Sept. 20, 2021, ECF No. 346. Class Counsel state that these expenses are “modest” and
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“represent[] .08% of the total recovery.” Mot. at 22. Defendants contend that reimbursement should
be withheld for two particular costs: (1) a $998.88 charge for “Printing Notice for DOC Facilities,”
for which Class Counsel did not provide “supporting documentation”; and (2) “$3,077.66 paid to
JAMS [formerly known as Judicial Arbitration and Mediation Services] for binding mediation”
because Defendants agreed to use a paid mediator “with the proviso that costs would be evenly
split.” Cross Mot. at 23.
“Counsel in common fund cases may recover those expenses that would normally be
charged to a fee-paying client.” Bekker v. Neuberger Berman Grp. 401(k) Plan Inv. Comm., 504
F. Supp. 3d 265, 271 (S.D.N.Y. 2020). “[A] district court has broad discretion in awarding costs.”
L-3 Commc’ns Corp. v. OSI Sys., Inc., 607 F.3d 24, 30 (2d Cir. 2010) (quoting Lerman v. Flynt
Distrib. Co., 789 F.2d 164, 166 (2d Cir.1986)).
The Court finds that Class Counsel are not entitled to reimbursement for the $3,077.66
mediation expense. Class Counsel “agreed to pay half of the price of the mediation” before Judge
Francis at which Defendants agreed to a minimum payment of $1,000 for all eligible class
members. Pls. Reply at 9. The parties’ agreement to split the costs of this mediation was
memorialized in a January 22, 2021 letter from Class Counsel to the Court. Ltr. from Raymond
Audain, dated Jan. 22, 2021, ECF No. 304 (“We write to advise the Court that the Parties have
agreed to request binding arbitration before The Honorable James C. Francis IV (Ret.) for three
hours. The Parties have agreed to 50/50 cost splitting.”).
The Court awards Class Counsel $10,574.94 in expenses. The Court will authorize an
additional $998.88 for “Printing Notice for DOC Facilities” subject to Class Counsel providing
the Court with additional documentation supporting that expense on or before August 15, 2022.
The December 6, 2019 email between Class Counsel and Defendants attached to the Reply

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Declaration of Oren Giskan, dated October 15, 2021, is not alone sufficient documentation for the
expense. See ECF No. 357-1.
VII.

Cross Motion for Reimbursement of Administrative Costs

The dispute here is not entirely simple because the Settlement Agreement contemplates a
maximum of $500,000 in administrative costs, which limit was exceeded by March of 2020. See
Cross Mot. at 24. Because of the flawed Initial Claims Notice and attendant proceedings, claims
administration costs currently exceed $1 million. See Ltr. from Claims Administrator, dated Mar.
3, 2022, ECF No. 431; Decl. of Angharad Wilson, dated Oct. 8, 2021, ¶¶ 3–4, 6 (“Wilson Decl.”),
ECF No. 353; see also Cross Mot. at 24; Pls. Reply at 10.
Defendants agreed to pay for the second round of notice and claims administration, but in
doing so they “reserve[d] the right to seek partial or full reimbursement of this amount from Class
Counsel attorneys’ fees application.” See Settlement Modification ⁋ 12. The Court finds that the
most equitable solution is to have both sides share the claims administration costs in excess of
$500,000. Defendants are entitled to reimbursement from Class Counsel’s fee award of one half
(or 50%) of the amount Defendants have paid (or will pay) to the Claims Administrator, over and
above the $500,000 Defendants agreed to pay in the Settlement Agreement. See Goldberger, 209
F.3d at 47 (“What constitutes a reasonable fee is properly committed to the sound discretion of the
district court.”); see also OSI Sys., Inc., 607 F.3d at 30. Defendants are entitled to reimbursement
because (1) they reserved their right to seek reimbursement for administrative costs in excess of
$500,000; and (2) Class Counsel and Defendants share responsibility for the notice problems and
the resulting overrun in administrative costs.
The Settlement Agreement provides that: “The Parties have agreed that the administrative
costs shall not exceed $500,000.00. . . . The City will not reimburse the Claims Administrator for
any amount that exceeds $500,000.00.” Settlement Agmt. ⁋ 54. As a result of the flawed Initial
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Claims Notice process, administrative costs rose significantly and have exceeded the $500,000
limit by more than 100%. Notwithstanding the terms of the Settlement Agreement, Defendants
paid the Claims Administrator an additional $159,024 on February 23, 2021 for costs incurred
“during the first phase of claims administration.” Wilson Decl. ¶ 6. On April 22, 2021, the parties
modified the Settlement Agreement to allocate among themselves the costs of the second phase of
the notice and claims administration process: “[Defendants] will pay the additional administrative
costs associated with mailing the Supplemental Notice and Information and Certification Form,
and reviewing and processing those forms. [Defendants] reserve the right to seek partial or full
reimbursement of this amount from Class Counsel attorneys’ fees application.” See Settlement
Modification ⁋ 12.
It is difficult, and likely neither fruitful nor possible, to precisely allocate responsibility for
the overrun in administrative costs—not to mention the significant reduction in the proposed
payments to class members. The fairest and most equitable solution appears to be for Class Counsel
and Defendants to share equally the claims administration costs in excess of $500,000. The excess
costs have resulted from the flawed Initial Claims Notice and attendant processes and proceedings
for which both parties are responsible. The parties agreed to the form and substance of the Initial
Claims Notice when they negotiated and executed the Settlement Agreement. See Settlement
Agmt. ⁋ 9 (emphasis added) (referring to Initial Claims Notice as “the form agreed to by the Parties
that Class Members must complete and submit in order to receive payment from this settlement”).
Both Class Counsel and Defendants voiced support for the Initial Claims Notice while seeking
preliminary approval of the Settlement from the Court. Class Counsel expressed confidence that
the $12.5 million Settlement Fund would be sufficient for each claimant to receive the
“approximately $4,000” which was included in the Initial Claims Notice. See Tr. of Oct. 30, 2019

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Preliminary Approval Hearing at 24:9–25:2 (Court: “Do you have any basis for thinking that it
will be 3,000 claimants, or around that number?”; Class Counsel: “. . . we believe it is likely that
the 12.5 [million dollars] will cover everybody. . . . at $4,000 a person.”). And, Defendants
expressed confidence that the Initial Claims Notice would not attract claimants who did not belong
in the class. Id. at 25:9-12 (Court: “do you think [the Initial Claims Notice] will engender people
to respond who ultimately are not included in the class?”; Defendants’ Counsel: “Your Honor, I
don’t believe so, because the parties agreed that on the claim form . . . [claimants] are signing the
document on penalty of perjury.”).
As it turned out, both parties were mistaken. The Initial Claims Notice was problematic. It
gave rise to more than 40,000 potential class members, which would have meant less than $300
per claimant rather than $4,000 per claimant. It gave rise to a cost overrun of more than $159,000
in administrative fees on the first round of notice and claims administration and it has given rise
to a second round of notice and claims administration costing more than $390,000. See Wilson
Decl. ¶¶ 4, 6; Ltr. from Claims Administrator dated Mar. 3, 2022. It is fair that Class Counsel and
Defendants share the added costs associated with their mutual mistake. See See Standifer v.
Franklin Collection Servs., Inc., 2005 WL 8158437, at *5 (N.D. Ala. Jan. 31, 2005) (there were
far more claims, and lower pro rata payout, than parties expected); see also McDaniels v. Westlake
Servs., LLC, 2013 WL 2491337, at *17 (D. Md. June 7, 2013) (where class action settlement notice
contained misstatement concerning payments to class members, court ordered party responsible
for misstatement to bear cost of new notice to class members); Ann. Manual Complex Lit. § 21.313
(4th ed.) (“Those who made the misstatements should bear the cost of a [class action] notice to
correct misstatements.”).
VIII.

Conclusion & Order

For the foregoing reasons, Class Counsel’s Motion for Attorneys’ Fees and Expenses [Dkt.
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