Obergefell et al v. Kasich et al

Filing 70

MOTION for Attorney Fees by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell. (Attachments: # 1 Gerhardstein Declaration, # 2 Branch Declaration, # 3 Meeks Declaration) (Branch, Jennifer)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES OBERGEFELL and
JOHN ARTHUR,
Plaintiffs,
vs.
JOHN KASICH, et al,

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Case No. 1:13-cv-501
Judge Timothy S. Black
DECLARATION OF JENNIFER L.
BRANCH IN SUPPORT OF
REQUEST FOR ATTORNEY FEES

Defendants.
I, Jennifer L. Branch, pursuant to 28 U.S.C. §1746, declare under the penalty of perjury
that the following is true and correct.
1. I was an attorney who worked on this case for Plaintiffs.
2. The fees requested comport with and are reasonable in light of the factors contained
in Ohio Rules of Professional Conduct 1.5 insofar as they accurately reflect the time
and labor required in the prosecution of this matter, the difficulty of the questions
involved, the skill required to perform the work properly, comport with the fees
customarily charged by others for similar legal services, and are appropriate in light
of the results obtained.
3. I am a 1984 graduate of New York University. In 1987 I graduated cum laude from
Case Western Reserve University School of Law and was admitted to practice that
same year. I practiced with the Legal Aid Society of Cincinnati for nine years,
focusing my practice in complex litigation, housing rights, and prisoner rights. I
served as a Senior Attorney at the Legal Aid Society of Cincinnati from 1992 – 1996

1

and as a staff attorney for that same organization from 1987-1992. I co-counseled six
class actions or complex cases at Legal Aid.
4. In July 1997 I joined the private law firm of Laufman & Gerhardstein, as an attorney.
Laufman & Gerhardstein concentrated its practice in civil rights litigation. I cocounseled with Alphonse Gerhardstein and Robert Laufman on several dozen civil
rights cases. In January 2005 I became a partner in the firm. I have litigated civil
rights cases in federal and state court and have argued in the Ohio Supreme Court, the
Ohio First and Tenth District Courts of Appeal, the Sixth Circuit Court of Appeal,
and tried cases to the bench and to the jury in the U.S. District Courts in the Northern
and Southern Districts in Ohio and in numerous Ohio Common Pleas Courts and
Municipal Courts. (Branch resume Exhibit 1).
5. In the vast majority of my cases and Mr. Gerhardstein’s cases, including this case, our
fee is contingent or dependent on success.
6. My billing rate was $300 per hour from January 2007 until April 2012. It increased
to $350 in April 2012. My rate increased to $385 in September 2013. We have
settled cases at these rates, had clients pay us at these rates, and been awarded fees at
these rates. I was awarded fees at the requested rate in Hunter v. Hamilton Cnty. Bd.
of Elections, 1:10CV820, 2013 WL 5467751 (S.D. Ohio Sept. 30, 2013) at *17.
7. The market rates in the Cincinnati market are comparable to the rates being charged
by Plaintiff’s attorneys. Other Cincinnati litigators with similar years of experience as
the lead attorneys in this case bill at higher rates:

2

Attorney Name
(date of admission)
David Altman (1974)
Jim Helmer (1975)

Awarded rate
(year of award)
$390 (2004) 1
$420 (2004)2
$498 (2010)3
$375 (2004) 4
$425 (2010) 5
$500 (2010) 6
$450 (2010) 7
$450 (2008)8

Paul Martin (1979)
Julie Popham (1992)
Frederick Morgan, Jr. (1983)
Jennifer Verkamp (1996)
David M. Cook ( 1978)

8. The chart below summarizes the current rates compared to Judge Rubin’s rubric using
his committee’s 1983 rates updated for 2013 by increasing the rate by 4% per year
since 1983.
Name

Al Gerhardstein
Jennifer Branch
Lisa Meeks
Jacklyn Gonzalez Martin
Paralegals
Law Clerk

Hourly Year
Years in
Rate
Admitted Practice
$450
$385
$350
$225
$80-95
$85

1976
1987
1993
2010

37
26
20
3

Rubin
Rate as of
2013
415
415
366
200
122
77

9. I exercised billing judgment at the time the work was recorded and did not record
every short assignment, email, conversation, or phone call. I have reviewed each
time entry and made a good faith effort to exclude hours that are excessive,
redundant, or otherwise unnecessary. Thus, compensation is not sought for all the
1

Opinion and Order awarding fees (Judge Spiegel Aug. 23, 2005) in Unites States of America v. Sierra Club,
Case No. C-1-02-107 and affidavit of Helmer in support thereof (Aug. 6, 2004).
2
Opinion and Order awarding fees (Judge Spiegel Aug. 23, 2005) in Unites States of America v. Sierra Club,
Case No. C-1-02-107 and affidavit of Helmer in support thereof (Aug. 6, 2004).
3
U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010).
4
Doc. 177, Order granting fees (Judge Black June 1, 2004) in Estate of Roger Owensby, Jr. v. City of
Cincinnati (and Doc. 133, Declaration of Paul Martins in support thereof).
5
U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010).
6
U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010).
7
U.S. ex rel. Ellison v. Visiting Physicians Association, P.C. 2010 WL 2854137(S.D. OH 2010).
8
Bailey v. AK Steel Corp., 2008 WL 553764 (S.D. OH 2008).

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work performed. All staff is instructed to exercise billing judgment at the time the
work is recorded and are supervised by me in this regard. Not all time worked on the
case has been billed. All time is entered on the case contemporaneous with the work
done.
/s/ Jennifer L. Branch
Date: February 5, 2014

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JENNIFER L. BRANCH
GERHARDSTEIN & BRANCH CO. LPA
432 Walnut Street, Suite 400
Cincinnati, OH 45202
513-621-9100 ext. 13
fax: [phone]
[e-mail]
www.gbfirm.com
EDUCATION
May 1987
CASE WESTERN RESERVE UNIVERSITY SCHOOL OF LAW
Cleveland, Ohio
J.D. Degree; cum laude
Health Law Journal Editor; Moot Court Board
Honors: Order of the Barrister; American Jurisprudence Awards for
Trial Practice, Administrative Law, and Conflict of Laws
Publication: “The Right to Withdraw Life-Sustaining Medical Treatment,"
Health Matrix Vol. III, No. 4 (1986)
May 1984

NEW YORK UNIVERSITY
New York, New York
B.A. Degree with Honors in Politics
Majors: Politics and Philosophy

LEGAL EMPLOYMENT
Jan. 2005- present
PARTNER
GERHARDSTEIN & BRANCH CO. LPA (Aug. 2006 – present)
GERHARDSTEIN BRANCH & LAUFMAN CO. LPA (Jan. 2005-Aug. 2006)
Gerhardstein & Branch Co. LPA is a private civil rights litigation firm. We
represent plaintiffs discriminated against on the basis of age, race, gender,
sexual orientation, and disability in the areas of private and public
employment. We also litigate prisoner civil rights cases, police misconduct
cases, and women’s reproductive rights issues.
June 1997- 2005

ATTORNEY
LAUFMAN & GERHARDSTEIN

Sept. 1992-June 1996 SENIOR ATTORNEY
Sept. 1987-Sept. 1992 STAFF ATTORNEY
LEGAL AID SOCIETY OF CINCINNATI
Represented low income clients in prison litigation, subsidized and private
housing cases, utility rate cases, race, gender, handicap and familial
discrimination, special education, and benefits.

Exhibit 1

LITIGATION
I have litigated cases in federal and state court trial courts, Ohio Courts of Appeals, Ohio Supreme
Court, Sixth Circuit Court of Appeals, and Ohio administrative agencies. Below is a partial list of
significant cases:
Mark Broach v. City of Cincinnati (September 2013) (Magistrate Judge Bowman), $224,522.41
jury verdict for Fire Lieutenant based on employment claims for retaliation based on opposition to
race discrimination, retaliation based on participation, and hostile work environment.
Parrish v. City of Mason (March 2013) (Judge Spiegel) summary judgment denied in case filed by
estate of man tased by police who died after multiple tasings in less than two minutes. Appeal
pending.
Howard v. Haas (settled 2013) family of young man tased by U.C. police officer settled claims for
$2,000,000, reforms, and a memorial on the U.C. campus.
Hunter v. Hamilton County Board of Elections (settled May 2012) (Chief Judge Dlott), Equal
Protection challenge to provisional voting process resulted in additional ballots being counted and
judicial candidate Hunter declared winner of election by 73 votes. Hunter v. Hamilton County
Board of Elections et, al. 635 F.3d 219 (6th Cir. 2011); Hunter v. Hamilton County Board of
Elections et, al., 850 F. Supp.2d 795, 2012 WL 404786 (permanent injunction); Hunter v. Hamilton
County Board of Elections et, al., ___ F. Supp.2d ___, 2013 WL 5467751 (attorney fees).
P.C. and W.C. v. Milford Schools, 2013 WL 209478 (S.D. Ohio 2013) (Judge Spiegel), Ohio
Department of Education administrative decisions denying private reading service to disabled
junior high student overturned because school predetermined student’s education placement and
thus committed a procedural violation of IDEA.
Logan v. Sycamore Schools, 2012 WL 2011037 (S.D. Ohio 2012) (Judge Spiegel), Title IX case
sought damages against school district for estate of high school student who was bullied and
sexually harassed before she committed suicide. Summary judgment denied.
McCullum v. Butler County (S.D. Ohio settled 2012) (Judge Black) estate of 19 year old jail
detainee sued for failure to treat mental health needs, which led to his suicide. Settlement of
$300,000 from various defendants after summary judgment denied. McCullum v. Tepe, 693 F.3d
696 (6th Cir. 2012).
Tana Cross v. Pickaway County (S.D. Ohio settled 2012) (Judge Smith) Settlement of $200,000
after summary judgment was denied for estate of woman who committed suicide in local jail after
being denied medical treatment.
B.H. v. West Clermont Schools (S.D. Ohio settled 2011) (Judge Black) successful appeal of
administrative decision denying special education student services and settlement of 1983 claims
for restraining student for $70,000 plus fees awarded.

Jennifer Branch resume updated October 2013

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Darla Jennings v. City of Lima, OH, et al. (N.D. Ohio settled 2010) (Judge Carr) $2.5 million
settlement for woman killed and children injured in SWAT raid.
Aldini v. Johnson, et al, (S.D. Ohio settled 2010) (Magistrate Judge Merz) $125,000 settlement
after appeal Aldini v. Bodine, 609 F.3d 858 (6th Cir. 2010) for detainee at Montgomery County Jail
who sued jail corrections officers for injuries from beating, tasing, and being held in a restraint
chair.
Meyer v. Nichols (S.D. Ohio verdict 2009) (Magistrate Judge King) $40,000 jury verdict plus fees
for failure to protect inmate injured by inmate assault.
Fredericks v. Potter, (S.D. Ohio Verdict 2008) (Magistrate Judge Hogan) $382,000 jury verdict for
disabled postal worker for disability discrimination, plus attorney fees.
Probst v. Central Ohio Youth Center, 511 F.Supp.2d 862 (summary judgment denied to
Consolidated Care, Inc); (Judge Marbley) private non-profit corporation and its social worker held
to be state actors while performing contract to provide mental health care at juvenile correctional
facility; 2008 WL 320148 (S.D. Ohio 2008) (summary judgment denied to Central Ohio Youth
Center.) juvenile who committed suicide stated a claim against the juvenile correctional facility.
Fossyl v. Watson, 317 Fed. Appx. 467 (S.D. Ohio 2009) (Judge Watson) $1 million jury verdict for
family of Cheryl Fossyl for wrongful death affirmed ; settlement with Brown County, Ohio for
unconstitutional law enforcement services from the time of Cheryl’s death in 1977 until 2001.
E.M. and D.M. on their behalf and on behalf of their son R.M v. Sycamore Community Schools,
(S.D. Ohio resolved 2008), parents of student receiving special education reading services
Sycamore High School filed due process complaint seeking private school reading services for son
with disabilities.
Benaugh v. Ohio Civil Rights Commission, 278 Fed. Appx. 501 (6th Cir. 2008) (Verdict 2006)
(Magistrate Judge Black) jury verdict for disabled employee for $68,000 against employer who
failed to accommodate her disability (asthma) affirmed.
Riggins v. Hunt, (S.D. Ohio, Verdict 2006) (Judge Barrett) jury verdict for Plaintiff for $125,000 in
prisoner civil rights action against state prison corrections officers for using excessive force plus
attorney fees (2007 WL 433303).
Cundiff v. Mueller, (S.D. Ohio settled 2006) excessive force case against New Vienna police officer
who shot and killed client and against Village and officers for covering up his crime. Case settled
for $950,000.
Kemper v. City of Milford, (S.D. Ohio settled 2005), substantive due process case on theory of
state created danger against police officer who sent husband to home of man sleeping with the
husband’s wife. Summary judgment denied; case settled for $200,000.

Jennifer Branch resume updated October 2013

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Jack Doe v. Butler County, Ohio (S.D. Ohio settled 2005), prisoner civil rights case for failure to
protect boy raped at the Butler County Juvenile Detention Center; case settled for $250,000.
Spencer v. Blackwell, (S.D. Ohio 2004) (Judge Dlott) elections case enjoining Republican
challengers to democratic voters in African American precincts in Cincinnati in the presidential
2004 election and challenging the constitutionality of Ohio’s challenger law. Injunction stayed on
appeal 388 F.3d 547 (6th Cir.), stay affirmed Spencer v. Pugh, 125 S.Ct. 305 (2004)(Justice Stewart)
Meyers v. Booher, (Hamilton County Common Pleas Court 2004) (Judge Martin) bench verdict of
$130,000 for parents and teenage daughter who was seduced by her boss and harbored from her
parents.
Herbert v. Milford Towing, (S.D. Ohio 2003) (Judge Hogan) jury trial on behalf of male employee
sexually harassed by male supervisor (settled before verdict).
Johnny Roe v. Butler County, Ohio (S.D. Ohio 2003) (Judge Beckwith) settlement for $200,000 in
prisoner civil rights case on behalf of 11 year old boy raped at the Butler County Juvenile Detention
Center.
Women’s Professional Medical Corp. v. J. Nick Baird, 277 F. Supp.2d 862 (S.D. Ohio 2003)
(Judge Marbley), Permanent Injunction obtained for abortion provider who was ordered by the
Ohio Department of Health to cease and desist operations. ODH was undue burden on a woman’s
right to choose and a violation of due process. Attorney fees awarded. Affirmed in part 438 F. 3d.
595 (6th Cir. 2006)
Pancake v. McGowan, 64 Fed. Appx. 464 (6th Cir. 2003) (Judge Dlott), due process challenge to
Lawrence County, Ohio judge’s practice to grant ex parte TROs granting marital residence and
property to first party in divorce case to file motion. Case was dismissed on Rooker-Feldman
abstention grounds.
Philecia Barnes formerly known as Phillip Barnes v. City of Cincinnati, jury verdict for plaintiff
($150,000 compensatory damages, $30,000 back pay and $120,000 front pay) February 26,
2003(S.D.OH) (Judge Dlott), for employment discrimination against transsexual police officer.
Jury found City discriminated against transsexual police officer in violation of Title VII because of
gender stereotyping and in violation of the Equal Protection clause for discrimination based on
perceived sexual orientation, cross dresser, transgender, or non conformity with sex stereotypes.
Attorney fees with 1.75 multiplier for extraordinary results awarded. Affirmed 401 F.3d 729 (6th
Cir. 2005), rehearing en banc denied (June 8, 2005), cert. denied 126 S.Ct. 624; summary
judgment denied at 2002 U.S. Dist. LEXIS 26207.
In re Founder’s Women’s Health Center v. Ohio Department of Health, 2002-Ohio-4295 (10th Dist.
Court of Appeals 2002), 2002 WL 1933886 (Ohio App. 10 Dist.). Administrative challenge to
ODH requirement that doctor owned abortion clinics must be licensed as Ambulatory Surgical
Facilities.

Jennifer Branch resume updated October 2013

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Greene v. Bowles, case settled after summary judgment for warden reversed by 361 F.3d 290 (6th
Cir. 2004); jury verdict for defendant April 2002 (S.D.OH) (Judge Beckwith), transsexual prisoner
beaten by inmate lost at trial on claim against officer for failure to protect her from harm. Qualified
immunity denied to officers. Doe v. Bowles, 254 F.3d 617 (6th Cir. 2001).
Riester v. Riverside Community School, charter school teacher sued for violation of her first
amendment rights, court held charter school and charter school principal are state actors reported at
257 F.Supp.2d 968 (S.D.OH 2002) (Judge Spiegel). Case settled for an undisclosed amount.
Women’s Medical Professional Corporation v. Taft, trial 2001, successful constitutional challenge
to Ohio House Bill 351, the “partial birth abortion” law reversed on appeal. Decisions reported at
199 F.R.D. 597 (S.D. Ohio 2001) (Judge Rice) (extending TRO); 114 F. Supp.2d 694 (S.D.OH
2000) (preliminary injunction); 162 F. Supp.2d. 929 (S.D. OH 2001) (permanent injunction); 353
F.3d 436 (6th Cir 2003) reversed.
Culberson v. Doan, 1997 – 2001, civil rights claim against police chief and village for violating
parent’s property rights by failing to secure the scene where their daughter’s body was hidden. Jury
verdict for $3.75 million February 1, 2001. Case settled after trial for $2 million. Pre-trial
decisions: 65 F.Supp.2d 701 (S.D. OH 1999) (Judge Spiegel) (motion to dismiss denied); 72
F.Supp.2d 865 (S.D. OH 1999); 125 F. Supp.2d. 252 (S.D. OH 2000) (summary judgment
denied).
In Re: Northeast Ohio Correctional Center, (N.D. OH 1997 – 2001) (Judge Polster) federal class
action litigation on behalf of Washington D.C. inmates housed in a private for-profit prison in
Youngstown, Ohio on Eighth Amendment medical, use of force, and failure to protect claims. Case
settled for $1.75 million to be distributed to all 2,000 inmates and a three year agreement to monitor
prison conditions. Prison closed in July 2001.
Jane Roe v. Simon Leis, trial 2000, assisted female incarcerated at the Hamilton County Jail in
obtaining right to have an abortion in jail by securing injunction in federal Court (S.D. OH) (Judge
Dlott) and obtaining written policy change.
Jane Doe v. River City Correctional Center, (S.D. OH 1999) (Judge Dlott), assisted female prisoner
in obtaining right to have an abortion by securing TRO in federal court for client to be transported
from local correctional center to abortion clinic. Decision at 92 F. Supp.2d 694 (S.D. OH 1999).
McIntyre v. Shea, jury verdict 2000 (S.D. OH) (Judge Perelman), jury did not find that corrections
officer watched and failed to protect inmate while he was stabbed several times by another inmate.
Morrison v. Davis, jury verdict 1999, (N.D. OH) (Judge Marbley), Eighth Amendment excessive
force case where jury returned $15,000 verdict for prisoner against corrections officers who beat
prisoner. PLRA fee decision reported at 195 F.Supp.2d 1019 (SD. OH 2001).
Glover v. Williamsburg Local School District, trial 1998, federal court trial decision found plaintiff
school teacher was fired because of his sexual orientation and ordered reinstatement as a teacher

Jennifer Branch resume updated October 2013

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and $75,000 in compensatory damages. Decision reported at 20 F. Supp.2d 1160 (S.D. OH 1998)
(Judge Dlott).
Weil v. Postmaster General, jury trial 1998, (S.D. OH) (Judge Hogan), co-counseled jury trial in
sexual harassment case where jury found plaintiff was discriminated against and awarded $175,000
in compensatory damages.
Partridge v. Fath, jury trial 1994, (S.D. OH) (Judge Rubin), federal race discrimination jury trial on
behalf of African-American tenants.
Daugherty v. Wallace, 1992-1993, statewide class action in state court against Ohio Department of
Human Services to reinstate General Assistance benefits.
In Re Cincinnati Gas & Electric Co. 1991 & 1993, administrative litigation on behalf of lowincome ratepayers in electric rate increase cases. Appeal reported at 67 Ohio St.3d 531, 1993.
Henry v. Korte, 1989-1991, state court class action on behalf of subsidized housing tenants against
landlord for violation for substandard housing conditions, and In Re Korte, 1991-1993, bankruptcy
class action on behalf of class of subsidized tenants to obtain security deposits and new
management.
Wells v. CMHA, 1989-1991, (S.D. OH) (Judge Spiegel), obtained consent decree in class action
against the metropolitan housing authority to provide federally mandated grievance hearings to
tenants.
Heath v. De Courcy, 1989 – 1996, (S.D. OH) (Judge Weber), class action on behalf of local jail
prisoners on Eighth Amendment claims and enforcement of consent decree.
OTHER LEGAL EXPERIENCE
Summer 1986 Law Clerk for S.D.N.Y. U.S. Attorney’s Office (Rudolph Giuliani)
Civil Rights and Appellate Divisions
Summer 1985 Law Clerk for Federal Magistrate Ila Jean Sensenick (W.D.PA)
Worked on prisoner rights and social security cases
Summer 1982 Congressional Intern
Congressman Austin J. Murphy (S.W. PA)
BAR ADMISSIONS
U.S. Supreme Court (2005)
Ohio Supreme Court (1987)
U.S. Court of Appeals for the Sixth Circuit (1991)
U.S. District Court for the Southern District of Ohio (1988)
U.S. District Court for the Northern District of Ohio (2004)
PROFESSIONAL MEMBERSHIPS
Cincinnati Bar Association Grievance Committee (2004-2012)
Cincinnati Employment Lawyer’s Association
Jennifer Branch resume updated October 2013

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ACLU Southwest Ohio Chapter Board Member 1993-1996
CIVIC ACTIVITIES
Cincinnati Women’s Political Caucus Board Member and Treasurer (1996-1999)
Community Shares Board Member (2005)
Democratic Precinct Executive Cincinnati (1998-2010)
Hamilton County Democratic Forum Board Member, Steering Committee Member, Secretary,
and President (1992-1998)
Kennedy Heights Citizens on Patrol (2001-2005)
Woman’s City Club Board Member (1989-1991)

Jennifer Branch resume updated October 2013

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