Major League Baseball Properties, Inc. v. Corporacion de Television y Microonda Rafa, S.A.

Filing 55

OPINION & ORDER: For the foregoing reasons, MLB is awarded $72,100.00 in attorney's fees and $4,520.39 in costs, for a total of $76,620.39. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 1/7/2021) (ks)

Case 1:19-cv-08669-MKV-GWG Document 55 Filed 01/07/21 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
MAJOR LEAGUE BASEBALL PROPERTIES,
:
INC.,
:
Petitioner,
v.
CORPORACION DE TELEVISION Y
MICROONDA RAFA, S.A.,

:
:

OPINION & ORDER
19 Civ. 8669 (MKV) (GWG)

:

Respondent.
:
---------------------------------------------------------------x
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Major League Baseball Properties, Inc., (“MLB”) brought this petition seeking to confirm
an arbitration award it had obtained against Corporación de Televisión y Microonda Rafa, S.A.
(“Telemicro”). The district court confirmed the award and also ruled that the arbitration award
permitted MLB to obtain the attorney’s fees it expended in pursuing the petition. MLB has now
submitted its application for those fees. 1
I. BACKGROUND
MLB had a dispute with Telemicro over its failure to make payments for broadcast rights
due under a contract. See Opinion and Order Granting Motion for Summary Judgment and
Confirming Arbitration Award, filed September 14, 2020 (Docket # 37) (“SJ Op.”) at 2. The

1

Declaration of Steven G. Kobre Establishing Reasonable Costs and Disbursements,
filed October 5, 2020 (Docket # 39) (“Kobre Decl.”); Memorandum of Law in Opposition to
Application for Attorneys’ Fees and Costs, filed October 27, 2020 (Docket # 45) (“Res. Opp.”);
Declaration of Russell M. Yankwitt in Opposition to Attorneys’ Fees and Costs, filed October
27, 2020 (Docket # 46) (“Yankwitt Decl.”); Reply Memorandum of Law in Support of
Declaration Establishing Reasonable Costs and Disbursements, filed November 16, 2020
(Docket # 51) (“Pet. Reply Mem.”); Second Declaration of Steven G. Kobre in Support of
Reasonable Costs and Disbursements, filed November 16, 2020 (Docket # 52).

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proceeding was arbitrated, as required by the contract, and the arbitrator issued a final award on
May 29, 2019, awarding MLB various categories of damages totaling more than $5 million,
Final Award, annexed as Exhibit 4 to Declaration of Steven G. Kobre in Support of MLB’s
Petition to Confirm, Recognize and Enforce Arbitration Award ¶¶ A-D, filed September 18,
2019 (Docket # 5) (“Kobre Pet. Decl.”), as well as “attorneys’ fees and all costs and expenses
incurred by [MLB] in connection with the collection of the amounts due under [the] Final
Award, including . . . fees, costs and expenses associated with” the conversion of the Final
Award “into a final judgment and enforcement of said judgment[,]” id. ¶ F.
On January 17, 2020, MLB filed a Motion for Summary Judgment to confirm the final
arbitration award (Docket # 23), which was opposed by Telemicro. The district court granted
summary judgment in MLB’s favor, finding that “the attorneys’ fees were awarded [by the
arbitrator] based on the provision of the parties’ contract that provided for reimbursement of
attorneys’ fees and costs incurred by MLB in connection with a breach of the contract and
collection of amounts due[.]” SJ Op. at 7. In a separate Judgment and Order, the district court
instructed MLB to “submit documentation establishing the reasonable costs and disbursements
incurred from the date of the Final Award through the date of issuance of [the] Judgment and
Order that are associated with the conversion of the Final Award into [the] Judgment and Order
and the collection and enforcement of the same.” Judgment and Order ¶ 2, filed September 14,
2020 (Docket # 38) (“Judgment and Order”). Briefing on this motion followed.
II. DISCUSSION
MLB’s entitlement to attorney’s fees arises from the underlying contract between the
parties. See SJ Op. at 7. That contract states that it is governed by New York law. MLB and

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Telemicro Agreement, annexed as Exhibit 1 to Kobre Pet. Decl. § Q. Accordingly, we apply
New York law to the request for attorney’s fees.
A. Law Governing the Award of Attorney’s Fees
MLB seeks $179,483.87 in attorney’s fees and $4,520.39 in costs for its hours expended
in obtaining the judgment in this action, not the underlying arbitration. Kobre Decl. ¶ 3.
Where attorney’s fees are provided for by a provision in a contract, such a provision is
enforceable under New York law and courts “will order the losing party to pay whatever
amounts have been expended . . . so long as those amounts are not unreasonable.” F.H. Krear &
Co. v. Nineteen Named Trs., 810 F.2d 1250, 1263 (2d Cir. 1987); accord Wells Fargo Bank,
N.A. v. Bivona & Cohen, P.C., 2016 WL 2745847, at *5 (S.D.N.Y. May 11, 2016); Ford Motor
Credit Co. v. Miller, 990 F. Supp. 107, 112 (N.D.N.Y. 1998). Under New York law, an award of
attorney's fees must be “calculated on the basis of the hours actually and reasonably spent on the
matter by counsel, multiplied by counsel’s reasonable hourly rate[.]” Stefaniak v. NFN
Zulkharnain, 180 A.D.3d 1366, 1367 (4th Dep’t 2020) (citation and internal quotation marks
omitted). Additionally,
[a]n award of an attorney’s fee pursuant to a contractual provision may only be
enforced to the extent that the amount is reasonable and warranted for the services
actually rendered. In determining reasonable compensation for an attorney, the
court must consider such factors as the time, effort, and skill required; the
difficulty of the questions presented; counsel’s experience, ability, and reputation;
the fee customarily charged in the locality; and the contingency or certainty of
compensation. While a hearing is not required in all circumstances, the court
must possess sufficient information upon which to make an informed assessment
of the reasonable value of the legal services rendered. There must be a sufficient
affidavit of services, detailing the hours reasonably expended and the prevailing
hourly rate for similar legal work in the community.
Sterling Natl. Bank v. Alan B. Brill, P.C., 186 A.D.3d 515, 520 (2d Dep’t 2020) (citations and
internal punctuation omitted).

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Because of the similarity between principles governing attorney fee awards under New
York law and under federal law, we will sometimes cite to federal cases to guide our decisionmaking. Indeed, New York cases themselves commonly cite to federal case law in articulating
principles relating to an award of attorney’s fees. See, e.g., Albunio v. City of New York, 23
N.Y.3d 65, 73-74 (2014); Degregorio v. Richmond Italian Pavillion, Inc., 90 A.D.3d 807, 809
(2d Dep’t 2011).
B. Hourly Rate
A reasonable hourly rate is determined by considering “what a reasonable, paying client
would be willing to pay[.]” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of
Albany, 522 F.3d 182, 184 (2d Cir. 2008). Any such rate must be “in line with those [rates]
prevailing in the community for similar services by lawyers of reasonably comparable skill,
experience, and reputation.” Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 232 (2d Cir.
2006) (alteration in original) (internal quotation marks omitted) (quoting Blum v. Stenson, 465
U.S. 886, 895 n.11 (1984)). In addition, as was noted in Arbor Hill, a court must “step[] into the
shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate
the case effectively.” 522 F.3d at 184. In other words, we are not called upon merely to
determine whether the attorneys on this case properly command the rates they seek in the
marketplace. We also must award the “cheapest hourly rate an effective attorney would have
charged.” O.R. v. N.Y.C. Dep’t of Educ., 340 F. Supp. 3d 357, 364 (S.D.N.Y. 2018) (emphasis
in original).
Because the fee applicant bears the burden of establishing the reasonableness of the
hourly rates requested, the applicant must “produce satisfactory evidence . . . that the requested
rates are in line with those prevailing in the community[.]” Blum, 465 U.S. at 895 n.11; accord

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Ortiz v. City of N.Y., 2016 WL 4532983, at *3 (S.D.N.Y. July 15, 2016). The Court may also
“rely on its own familiarity with prevailing rates in the District.” Noble v. Crazetees.com, 2015
WL 5697780, at *9 (S.D.N.Y. Sept. 28, 2015) (citing A.R. ex rel. R.V. v. N.Y.C. Dep’t of Educ.,
407 F.3d 65, 82 (2d Cir. 2005); and Miele v. N.Y. State Teamsters Conf. Pension & Ret. Fund,
831 F.2d 407, 409 (2d Cir. 1987)).
MLB’s attorneys, Kobre & Kim, seek fees for Seven G. Kobre (identified as a “founding
partner”); another partner, Josef M. Klazen; and an associate, Joshua C. Kushner --- even though
“other attorneys and support staff devoted significant time to the” confirmation. Kobre Decl. ¶ 5.
MLB states that the typical hourly rates for attorneys at Kobre & Kim are “$1,275 per hour for a
Founding Partner, $995 per hour for a Partner, … and $695 per hour for an Associate.” Id. ¶ 4.
However, the firm gave MLB a 15% discount for this matter effectively making the hourly rates
$1,083.75 for Kobre, $845.75 for Klazen, and $590.75 for Kushner. Pet. Reply Mem. at 4.
To support these rates, MLB submitted a declaration by Kobre, but that declaration does
not give much assistance in determining “the prevailing hourly rate for similar legal work in the
community,” Sterling Natl. Bank, 186 A.D.3d at 520, other than the conclusory assertion that the
rates charged are “similar or higher” to those charged “to clients for comparable work[,]” Kobre
Decl. ¶ 11. As far as the background of the lawyers, we are told only that Kobre is a founding
partner of the firm, Kobre Decl. ¶ 1; Klazen “is a partner with over 15 years of experience and a
particular focus on the enforcement of judgments and arbitration awards[,]” id. ¶ 5; and Kushner
“is an associate with over 9 years of experience[,]” id. No other information is provided as to
any of the attorney’s educational backgrounds or previous litigation experience. Typically,
courts are provided much more information about rates and attorney’s backgrounds. See, e.g.,

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Flemming v. Barnwell Nursing Home & Health Facilities, Inc., 56 A.D.3d 162, 165 (3d Dep’t
2008) (three affidavits submitted explaining “the resumes of attorneys who worked on the case”).
While case law might help in determining an appropriate rate, MLB cites primarily to
cases considering attorney’s fees for complex commercial litigation issues, see Pet. Reply Mem.
at 3-6, and the Court does not consider this a complex case inasmuch as it was simply a petition
to confirm an arbitration award involving no discovery whatsoever. While the petition was
certainly contested by Telemicro, the briefing was not complex as is reflected by the issues it
raised as well as the length of the substantive portions of the briefs: MLB’s initial brief in
support of summary judgment was 15 pages (Docket # 24), the opposition was 10 pages (Docket
# 31), and the reply was 10 pages (Docket # 34).
In light of the lack of complexity, we question the relevance of MLB’s citation to case
law recognizing that partner billing of over $1,000 for “premium legal services” is now common.
Pet. Reply Mem. at 4 (citing Themis Cap. v. Dem. Republic of Congo, 2014 WL 4379100, at *7
(S.D.N.Y. Sept. 4, 2014)). Our own inquiry into case law reflects that courts in this District have
found varying rates to be reasonable in commercial litigation matters. As one case noted,
“[c]ourts in this District have determined that hourly rates ranging from $250 to $1,260 per hour,
for attorneys’ work on a commercial litigation matter, were reasonable.” Tessemae’s LLC v.
Atlantis Capital LLC, 2019 WL 2635956, at *4 (S.D.N.Y. June 27, 2019).
While there is not much case law on attorney rates in motions to confirm arbitration
awards, there is a body of case law reflecting that hourly rates in breach of contract
suits — which we view as normally being more complex, if anything, than petitions to confirm
arbitration awards — are far lower than what is requested here. We note that a number of cases
have commonly found partner rates in the range of $350 to $650 per hour to be reasonable for

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such cases. See Hitachi Data Sys. Credit Corp. v. Precision Discovery, Inc., 2020 WL 5731953,
at *2 (S.D.N.Y. Sept. 24, 2020) ($335 to $525 for three partners); Abraham v. Leigh, 2020 WL
5512718, at *10 (S.D.N.Y. Sept. 14, 2020) (approving rate of $435 in 2019 for junior partner in
“complex commercial dispute[]’’), reconsideration denied, 2020 WL 5836511 (S.D.N.Y. Oct. 1,
2020); Precise Leads, Inc. v. Nat’l Brokers of Am., Inc., 2020 WL 736918, at *7 (S.D.N.Y. Jan.
21, 2020) (awarding partner rate of $512.50 in breach of contract action and noting that “other
courts in this district awarding attorneys’ fees in straightforward breach of contract actions have
found partner rates in the range of $375 to $650 to be reasonable”); Euro Pacific Capital, Inc. v.
Bohai Pharmaceuticals Group, Inc., 2018 WL 1229842, at *7-8 (S.D.N.Y. Mar. 9, 2018) ($375
for shareholder and co-chair of firm practice group); Carlton Group, Ltd. v. Par-La-Ville Hotels
& Residences Ltd., 2016 WL 3659922, at *3 (S.D.N.Y. June 30, 2016) ($450 reasonable for
“experienced partners and senior attorneys”); 615 Bldg. Co. LLC v. Rudnick, 2015 WL
4605655, at *3 (S.D.N.Y. July 31, 2015) ($316 to $475 for partners characterized as the “midrange of acceptable billing rates approved in this district” (internal quotation marks omitted));
Mazzei v. Money Store, 2015 WL 2129675, at *3 (S.D.N.Y. May 6, 2015) ($450 for attorneys
with fifteen to twenty years of experience in complex litigation); Rhodes v. Davis, 2015 WL
1413413, at *3 (S.D.N.Y. Mar. 23, 2015) (in breach of contract action, awarding rates of “$450
per hour (for a founding partner with approximately forty years of practice)”), aff’d, 628 F.
App’x 787 (2d Cir. 2015).
Courts have awarded associate rates in simple commercial disputes at a rate far lower
than the rate for partners. See, e.g., Winklevoss Capital Fund, LLC v. Shrem, 360 F. Supp. 3d
251, 257 (S.D.N.Y. 2019) ($265 for junior associate); Hitachi Data Sys. Credit Corp., 2020 WL

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5731953, at *2 ($160 for associates in breach of contract suit); Rhodes, 2015 WL 1413413, at *3
($300 “for an associate with approximately ten years of practice”).
We certainly do not suggest that the attorneys in this case do not command the hourly
rates they charged in the legal marketplace. But the requirement that any rate awarded by a court
pursuant to a contractual attorney’s fees petition be “reasonable” requires us, as was recognized
by Arbor Hill, to “step[]into the shoes of the reasonable, paying client, who wishes to pay the
least amount necessary to litigate the case effectively.” 522 F.3d at 184. In light of this
mandate, we award the following hourly rates for the three attorneys in this case: for Kobre,
$650; for Klazen, $500; and for Kushner, $300.
C. Number of Hours
The Second Circuit has squarely held that an application for attorney’s fees in a case
arising under federal law must normally be supported by contemporaneous time records. See,
e.g., Scott v. City of N.Y., 643 F.3d 56, 57-59 (2d Cir. 2011) (per curiam). The Second Circuit
has recognized, however, that the rule does not apply where fees are sought under New York
law. See Marion S. Mishkin Law Office v. Lopalo, 767 F.3d 144, 147-48 (2d Cir.
2014); accord Nationstar Mortg. LLC v. Dolan, 2019 WL 1970522, at *3-4 (N.D.N.Y. May 3,
2019). Nonetheless, under New York law, “it is settled that the award of fees must be predicated
upon a ‘proper and sufficient affidavit of services[.]’” Bankers Fed. Sav. Bank FSB v. Off W.
Broadway Devs., 224 A.D.2d 376, 378 (1st Dep’t 1996) (quoting Matter of T.J. Ronan Paint
Corp., 98 A.D.2d 413, 419 (1st Dep’t 1984)). Thus, even under New York law, the party
seeking a fee “bears the burden of showing the reasonableness of the fee by providing definite
information regarding the way in which time was spent[.]” Flemming v. Barnwell Nursing
Home & Health Facilities, Inc., 56 A.D.3d 162, 164-65 (3d Dep’t 2008).

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MLB has not submitted contemporaneous time records. Instead, MLB has attached
“summaries” of such records in the form of three charts along with a chart detailing the costs
expended, which we will collectively refer to as the “Fee Summary Charts.” See Fees and
Expenses Invoiced to Major League Baseball, annexed as Exhibit A to Kobre Decl. (“Fee
Summary Charts”). These charts divide the litigation into three phases: (1) “the preparation of
MLB’s Petition to Confirm the Final Award and supporting documentation” (126.6 hours),
Kobre Decl. ¶ 6; (2) “the service of process on Telemicro” (54 hours), id. ¶ 7, and (3) “the
preparation and litigation of MLB’s Motion for Summary Judgment” (91.5 hours), id. ¶ 10.
The Fee Summary Charts show the hours expended by each attorney, with blocks
generally describing the work that was done, the dates over which the work was done, and the
total fees associated with those hours. See Fee Summary Charts at Charts 1-3. In his
declaration, Kobre explains what was ultimately created or accomplished with each project. For
example, for MLB’s Motion for Summary Judgment, MLB prepared “a supporting 15-page
memorandum of law, a 10-page reply memorandum . . . and additional declarations supporting
documentation[.]” Kobre Decl. ¶ 10 (citations omitted). Aside from these explanations, the only
real effort made by MLB to explain the hours spent on a project in any detail is for the service of
process on Telemicro. See Kobre Decl. ¶¶ 7-9. Kobre explained that significant time had to be
expended on this project to determine how to legally serve Telemicro in the Dominican
Republic. Id.
Telemicro does not argue for any specific number of hours to be reduced from MLB’s
summaries. Instead, Telemicro objects to MLB’s use of block billing and its “duplicative or
excessive billing,” and argues that MLB could have used portions of its previous filings to
prepare later ones, and that work performed by partners and senior associates could have been

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performed by more junior attorneys or staff. Res. Opp. at 4-6. Telemicro therefore argues for a
general reduction in the number of hours billed by MLB based on these points, citing to cases
that have imposed reductions of between 5% and 15% to the total hours sought. See id.
The most significant problem with MLB’s Fee Summary Charts is that the charts
summarize vast swaths of work into a single summary form. MLB has combined multiple tasks
in the same blocks spanning weeks and months. See Fee Summary Charts at Charts 1-3. For
instance, the chart detailing the hours spent on the petition to confirm the arbitration award
reflects that Kushner billed 91.5 hours over two months with no detail given as to what specific
tasks Kushner performed. Id. at Chart 1. Instead, the block only says: “[p]reparation and
revision of Petition to Confirm Arbitration Award and supporting submissions; legal research in
support of same.” Id.
MLB explains that the Charts are “a summary prepared specifically to support MLB’s
request for attorneys’ fees and costs, not a direct duplication of the invoices sent to MLB over
more than a year of Kobre & Kim’s work on this matter.” Res. Opp. at 8. While MLB offers to
provide its invoices “if the Court deems it necessary,” id. at 9, the Judgment and Order awarding
fees specifically instructed MLB to “submit documentation establishing the reasonable costs and
disbursements incurred[,]” Judgment and Order ¶ 2, and there is no reason to delay this case to
obtain more documentation simply to allow MLB to comply with a pre-existing order. In the
end, as is true for block billing generally, the submission of the Fee Summary Charts “interferes
with the ability of a court to evaluate the reasonableness of attorney hours,” which normally
results “in a reduction of fees.” Crowhurst v. Szczucki, 2019 WL 6122645, at *6 (S.D.N.Y.
Nov. 19, 2019); Bhungalia Family, LLC v. Agarwal, 317 F. Supp. 3d 727, 742 (S.D.N.Y. 2018)
(“[C]ounsel’s extensive use of block billing . . . [hindered the] Court’s ability to understand how

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much time was devoted to particular tasks, so as to determine whether that time was reasonably
spent.”). While Telemicro is certainly to be faulted for forcing MLB to bring the instant
litigation by refusing to pay the final arbitration award, see Kobre Decl. ¶ 3; Pet. Reply Mem. at
2-3, it is also true that MLB “bears the burden of showing the reasonableness of the fee by
providing definite information regarding the way in which time was spent[,]” Flemming, 56
A.D.3d at 164-65.
Turning to the hours themselves, we are given pause by the fact that the preparation of
the petition to confirm the award, including its supporting exhibits, consumed 126.6 hours.
Kobre Decl. ¶ 6; see Fees Summary Charts at Chart 1. The petition itself is a straightforward
recounting of the procedural history and law governing petitions to confirm arbitration. See
Petition to Confirm Arbitration, filed September 18, 2019 (Docket # 1). The accompanying
exhibits consist simply of copies of pre-existing documents, with the exception of a two-page
document calculating damages and interest. See Kobre Pet. Decl. Case law recognizes that
confirmation of an arbitration award is a “summary proceeding” that merely “makes what is
already a final arbitration award a judgment of the court.” D.H. Blair & Co., Inc. v. Gottdiener,
462 F.3d 95, 110 (2d Cir. 2006) (citation and internal quotation marks omitted). Our own review
of case law shows that reasonable hours attributed to the preparation of a petition to confirm an
arbitration award are far fewer than what is sought here. See, e.g., Rong De Investments Ltd. v.
GFS Investments, Inc., 2019 WL 5682894, at *2 (S.D.N.Y. Nov. 1, 2019) (finding it
unreasonable that “attorneys spent more than twenty-seven hours preparing, filing, and serving”
a petition to confirm an arbitration); Finkel v. IAG Electric, Inc., 2019 WL 3281012, at *3
(E.D.N.Y. July 19, 2019) (“1.7 hours is a reasonable amount of time to have spent in preparation
of the petition”); Trustees of New York City Dist. Council of Carpenters Pension Fund, Welfare

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Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educ. and Indus. Fund v.
Regal USA Constr. Inc., 2018 WL 401515, at *3 (S.D.N.Y. Jan. 12, 2018) (4.7 hours).
In light of the extraordinary number of hours spent preparing the petition and the lack of
detail justifying the hours sought, the overall hours will be reduced by 25%.
D. Presumptively Reasonable Fees and Costs
The fees to be awarded are thus as follows:
Hourly Rate

Hours Requested

Hours Awarded

Total

Steven Kobre

$650.00

6.1

4.6

$ 2,990.00

Josef Klazen

$500.00

61.7

46.3

$23,150.00

Joshua Kushner

$300.00

204.3

153.2

$45,960.00

Total:

$72,100.00

E. Costs
MLB seeks $4,520.39 in costs for translation services, a special online database for
Westlaw, and FedEx costs. Fee Summary Charts at Chart 4. Because Telemicro has not made
any specific objections to MLB’s request for costs, they are awarded in full.

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III. CONCLUSION
For the foregoing reasons, MLB is awarded $72,100.00 in attorney’s fees and $4,520.39
in costs, for a total of $76,620.39.
SO ORDERED.
Dated: January 7, 2021
New York, New York

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