Case Nos. 14-4083/14-4084/14-4132/14-4133/15...
Transcript of Case Nos. 14-4083/14-4084/14-4132/14-4133/15...
Case Nos. 14-4083/14-4084/14-4132/14-4133/15-3295/15-3296/15-3380/15-3381
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
NORTHEAST OHIO COALITION, et al,
Plaintiffs-Appellees/Cross Appellants v.
JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee
And
SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al,
Plaintiffs-Appellees/Cross Appellants v.
JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO; CASE NOS. 2:06CV00896/2:12CV00562
FIRST BRIEF OF DEFENDANT-APPELLANT/CROSS-APPELLEE
JON HUSTED, SECRETARY OF STATE AND STATE OF OHIO
MICHAEL DEWINE Ohio Attorney General
ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 [email protected] [email protected] Counsel for Defendant-Appellant/Cross-Appellee
Jon Husted, Secretary of State and State of Ohio
Counsel for Plaintiffs-Appellees/Cross Appellants: STEPHEN P. BERZON BARBARA J. CHISHOLM STACEY M. LEYTON DANIELLE LEONARD Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco CA 94108 Tel: 415-421-7151 [email protected] [email protected] [email protected] [email protected] CATHRINE J. HARSHMAN MICHAEL J. HUNTER Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus OH 43221 Tel: 614-442-5626 [email protected] [email protected] Counsel for Service Employees International Union Local 1 SUBODH CHANDRA SANDHYA GUPTA The Chandra Law Firm 1265 West 6th Street, Suite 400 Cleveland OH 44113 Tel: 216-578-1700 [email protected] [email protected] Counsel for Northeast Ohio Coalition for the Homeless and Service Employees International Union Local 1
CAROLINE H. GENTRY Porter Wright Morris & Arthur, LLP One South Main Street, Suite 1600 Dayton OH 45402 Tel: 937-449-6748 [email protected] Counsel for Northeast Ohio Coalition for the Homeless and Columbus Coalition for the Homeless DONALD J. MCTIGUE MARK A. MCGINNIS J. COREY COLOMBO McTigue McGinnis & Colombo, LLC 545 East Town Street Columbus OH 43215 Tel: 614-263-7000 [email protected] [email protected] [email protected] Counsel for Ohio Democratic Party
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... v
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
JURISDICTIONAL STATEMENT .......................................................................... 1
STATEMENT OF THE ISSUES............................................................................... 1
INTRODUCTION ..................................................................................................... 2
STATEMENT OF THE CASE AND FACTS .......................................................... 5
I. The 2012-2013 litigation ................................................................................. 5
A. NEOCH pre-appeal................................................................................ 5
B. SEIU pre-appeal .................................................................................... 7
C. NEOCH/SEIU Appeals ......................................................................... 8
D. NEOCH post-appeal .............................................................................. 9
E. SEIU post-appeal ................................................................................... 9
II. Plaintiffs’ fee motions and the State’s opposition ......................................... 10
III. The district court’s fee award ........................................................................ 11
SUMMARY OF ARGUMENT ............................................................................... 13
ARGUMENT ........................................................................................................... 16
I. The district court abused its discretion by awarding 6,000+ hours. .............................................................................................................. 17
A. A reasonable hour total must exclude hours not reasonably expended: courts should exclude hours for lack of billing judgment; overstaffing; and insufficient documentation. .................................................................................... 17
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B. Counsel requested, and received, excessive hours. ............................. 22
1. Counsel billed for unreasonably high attendance at, and travel to, court proceedings. .......................................... 23
2. Counsel spent unreasonable time conferencing with one another. ....................................................................... 30
3. Counsel billed for unreasonable levels of research. ................. 33
4. Counsel overbill for drafting and editing filings. ..................... 36
5. Counsel should not charge the State ~150 hours for an unfiled proposal. ................................................................... 41
6. Counsel billed for unnecessarily cumulative discovery. .................................................................................. 42
7. Counsel billed unreasonable time for the NEOCH Consent Decree extension. ........................................................ 45
8. SEIU attorneys spent unreasonable time on post-appeal activities, including obtaining unopposed relief. ......................................................................................... 47
9. Counsel overbill for trying to hold nonparty relators in contempt. .................................................................. 49
10. Counsel should not bill the State 100+ hours for their abandoned attempt to certify a class of separate defendants. .................................................................. 50
11. The NEOCH motion to modify was duplicative of, and subsumed by, the SEIU preliminary injunction motion. ...................................................................................... 52
C. This Court should mandate an across-the-board hour reduction; at a minimum, a more thorough review and a better explanation are necessary. ......................................................... 55
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II. The district court abused its discretion by awarding too high of rates to too many lawyers. ............................................................................. 57
A. A reasonable rate is a rate sufficient to encourage capable representation in the local market; it is not what a precise attorney might charge a well-to-do client. .......................................... 59
B. The rates awarded exceed what was necessary to attract capable counsel in Southern Ohio. ...................................................... 61
1. The district court’s award is inconsistent with prior awards in Ohio election-related cases. ...................................... 61
2. Other evidence demonstrates these rates are unreasonable. ............................................................................. 65
CONCLUSION ........................................................................................................ 70
CERTIFICATE OF COMPLIANCE ....................................................................... 72
DESIGNATION OF DISTRICT COURT RECORD ............................................. 73
v
TABLE OF AUTHORITIES
Cases Page(s)
ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999) .....................................................................passim
Amedisys, Inc. v. Nat’l Century Fin. Enterprises, Inc., No. 2:04-CV-493, 2006 WL 1209372 (S.D. Ohio May 2, 2006) ....................... 20
Auto Alliance Intern., Inc. v. U.S. Customs Serv., 155 F.App’x 226 (6th Cir. 2005) ........................................................................ 55
Bonner v. Coughlin, 657 F.2d 931 (7th Cir. 1981) .............................................................................. 34
Buffington v. Baltimore Cnty., Md., 913 F.2d 113 (4th Cir. 1990) ........................................................................ 34, 35
Cashman Equipment Corp. v. Rozel Operating Co., 569 F.App’x 283 (5th Cir. 2014) ........................................................................ 21
Ceres Env’l Servs., Inc. v. Col. McCrary Trucking, LLC, 476 F.App’x 198 (11th Cir. 2012) ...................................................................... 21
Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp. 1017 (N.D. Ohio 1997) .................................................................. 31
Coulter v. State of Tenn., 805 F.2d 146 (6th Cir. 1986) ............................................................ 19, 34, 55, 60
In re Donovan, 877 F.2d 982 (D.C. Cir. 1989) ............................................................................ 20
Evans v. Port Authority of New York & New Jersey, 273 F.3d 346 (3rd Cir. 2001) .............................................................................. 68
Flowers v. Wiley, 675 F.2d 704 (5th Cir. 1982) .............................................................................. 23
Gonter v. Hunt Valve Co., Inc., 510 F.3d 610 (6th Cir. 2007) .......................................................................passim
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Cases Page(s)
Hadix v. Johnson, 65 F.3d 532 (6th Cir. 1995) .......................................................................... 29, 59
Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939 (3rd Cir. 1995) .......................................................................... 20, 23
Harkless v. Brunner, No. 1:06 CV 2284, 2011 WL 2149138 (N.D. Ohio May, 31, 2011) ..........passim
Harkless v. Husted, No. 1:06-cv-02284, 2011 WL 2149179 (N.D. Ohio Mar. 31, 2011) (adopted with modification by 2011 WL 2149138) ............................... 31, 32, 62
Hensley v. Eckerhart, 461 U.S. 424 (1983) ................................................................................ 17, 18, 20
Hunter v. Hamilton Cnty. B.O.E., 850 F.Supp.2d 795 (S.D. Ohio 2012) ..................................................... 36, 64, 68
Hunter v. Hamilton Cnty. BOE, No. 1:10cv820, 2013 WL 5467751 (S.D. Ohio Sept. 30, 2013) .................. 62, 64
Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531 (6th Cir. 2008) ........................................................................ 20, 21
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) .............................................................................. 23
Kentucky Restaurant Concepts Inc. v. City of Louisville, 117 F.App’x 415 (6th Cir. 2004) .................................................................. 19, 61
Lamar Advertising Co. v. Charter Tp. of Van Buren, 178 F.App’x 498 (6th Cir. 2006) ........................................................................ 59
Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991) ............................................................................... 55
Lib. Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL 4833033 (S.D. Ohio Sept. 11, 2013).......... 62, 64, 68
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Cases Page(s)
Martinez v. Hernando Cnty Sheriff's Office, 579 F.App’x 710 (11th Cir. 2014) ................................................................ 29, 30
Moon v. Unum Provident Corp., 461 F.3d 639 (6th Cir. 2006) .............................................................................. 16
Mooneyhan v. Husted, No. 3:12–cv–379, 2013 WL 1326506 (S.D. Ohio Mar. 29, 2013) ..................... 62
Moore v. Brunner, Nos. 2:08-cv-224, 2:08-cv-555, 2010 WL 317017 (S.D. Ohio Jan. 25, 2010) ....................................................................................................... 63, 64
NEOCH v. Brunner, 652 F.Supp.2d 871 (S.D. Ohio 2009) ................................................................. 63
NEOCH v. Brunner, No. 2:06–CV–896, 2010 WL 4939946 (S.D. Ohio Nov. 30, 2010) ................... 62
NEOCH v. Husted, 696 F.3d 580 (6th Cir. 2012) .......................................................................passim
Oakley v. City of Memphis, 566 F.App’x 425 (6th Cir. 2014) ........................................................................ 60
Ohio Right to Life v. OEC, No. 2:08-cv-492, 2013 WL 5728255 (S.D. Ohio Oct. 23, 2013) ................. 62, 64
In re Olson, 884 F.2d 1415 (D.C. Cir. 1989) .......................................................................... 31
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) .....................................................................................passim
Precision Concrete v. N.L.R.B., 362 F.3d 847 (D.C. Cir. 2004) ............................................................................ 22
Project Vote v. Blackwell, No. 1:06–CV–1628, 2009 WL 917737 (N.D. Ohio Mar. 31, 2009) ...... 63, 65, 68
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Cases Page(s)
Ray v. Franklin Cnty. BOE, No. 2:08–CV–1086, 2009 WL 1542737 (S.D. Ohio June 2, 2009) ................... 63
Riley v. City of Jackson, Miss., 99 F.3d 757 (5th Cir. 1996) ................................................................................ 30
Robinson v. Elida Local Sch. Dist., Bd. of Educ., 99 F.3d 1139, 1996 WL 593535 (6th Cir. Oct. 15, 1996) .................................. 29
Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608 (6th Cir. 2013) ............................................................ 13, 16, 50, 51
Schlacher v. Law Offices of Phillip J. Rotche & Assoc., P.C., 574 F.3d 852 (7th Cir. 2009) .............................................................................. 18
Segocia v. Montgomery Cnty., Tenn., 593 F.App’x 488 (6th Cir. 2014) ........................................................................ 17
SEIU v. Husted, 698 F.3d 341 (6th Cir. 2012) .......................................................................passim
U.S. Tile & Composition v. G&M Roofing, 732 F.2d 495 (6th Cir. 1984) .............................................................................. 21
Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F.App’x 496 (6th Cir. 2011) ........................................................................ 60
Welch v. Metro. Life Ins. Co., 480 F.3d 942 (9th Cir. 2007) .............................................................................. 21
Statutes Page(s)
42 U.S.C. § 1988 ...............................................................................................passim
O.R.C. § 149.43(B)(7) ....................................................................................... 43, 44
O.R.C. § 3501.05(B) ................................................................................................ 51
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Other Authorities Page(s)
Ohio Civ. R. 82.1 ..................................................................................................... 59
1
1BSTATEMENT REGARDING ORAL ARGUMENT
The State requests oral argument. Given the many hours and rates at stake,
the State believes argument will assist the Court in reaching its determination.
2BJURISDICTIONAL STATEMENT
The district court granted Plaintiffs’ fee motions on September 29, 2014.
NEOCH-Doc.426/SEIU-Doc.140, PageID#7458-88.0F
1 The State filed notices of
appeal on October 28, 2014. NEOCH-Doc.427/SEIU-Doc.141. The district court
accepted Plaintiffs’ bill of costs on February 17, 2015. NEOCH-Doc.444/SEIU-
Doc.147, PageID#7687-96. The State filed supplemental notices of appeal on
March 19, 2015. NEOCH-Doc.445/SEIU-Doc.148. This Court has jurisdiction
pursuant to 28 U.S.C. § 1291.
3BSTATEMENT OF THE ISSUES
1. Whether the district court abused its discretion in awarding Plaintiffs
legal teams over 6,000 hours in these cases?
2. Whether the district court abused its discretion in awarding rates
averaging $378/hour—twenty-one rates of $300/hour or more, ten rates of
$425/hour or more, one $600/hour rate—to twenty-five attorneys?
1 For combined NEOCH/SEIU documents, the State cites the SEIU PageID#.
2
4BINTRODUCTION
The goal of attorney fees under 42 U.S.C. § 1988 is to aid civil rights, not
lawyers. Section 1988 does not promise all the legal luxury money can buy. It
does not promise litigants two dozen lawyers charging upper-end rates. Nor does
it promise lawyers the latitude to bill as many hours as they desire on every aspect
of litigation. Instead, it allows for a reasonable fee; one sufficient to encourage
capable representation in the local market, not a windfall to a full roster of high-
priced attorneys.
Fee-seeking lawyers are supposed to exercise billing judgment. And fee-
paying defendants are supposed to receive the same treatment as reasonable
clients. These things did not happen here. In awarding a collection of twenty-five
attorneys over $2 million in these cases, for primarily six months of work, the
district court lost sight of the goal of attorney fees. The fee award is a model of
extravagance, not reasonableness, as to both hours and rates.
Counsel’s hours demonstrate pervasive unreasonable billing practices. A
few examples:
x thirteen attorneys billing for a single conference;
x thirteen attorneys billing for drafting/editing a single brief;
x fifteen attorneys independently billing for research in NEOCH, eight in SEIU;
x an attorney billing 19.4 and 19.9 hour days;
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x billing 13+ hours for a related-case letter;
x submitting ~150 hours for an unfiled “findings of fact and conclusions of law” proposal;
x charging 100+ hours for an abandoned attempt to certify a separate defendant class;
x out-of-state attorneys billing full time and expenses for five round trips from San Francisco to Columbus; and
x spending 100 hours to obtain an unopposed permanent injunction (regarding already litigated issues).
While examples abound, counsel’s overall billing style breaks down to a simple
equation: overstaffing + overlawyering = overbilling. The ultimate sum of such
practices was 6100+ hours in these two interrelated cases. Over 5400 hours, took
place within a six-month window between April and October 2012.
The district court left these thousands of hours unchecked (cutting less than
40 main-case hours). Despite the fees at stake, the court performed minimal
analysis of counsel’s hours. Perhaps most disappointingly, the court failed to fairly
characterize or consider several arguments raised below.
The awarded rates are similarly over-the-top. Multiple federal courts
(including this one) have recently found that $250-$300/hour is enough to attract
experienced attorneys to Ohio election-related cases. A 2013 bar survey reported
an average billing rate of $233/hour for ~1000 Ohio attorneys. Departing
drastically from these benchmarks, the district court awarded twenty-three NEOCH
attorneys rates averaging $384/hour. Twelve SEIU attorneys (most also NEOCH
4
attorneys) received rates averaging $400/hour. The many $400+ rates (the
majority to San Francisco lawyers), are particularly inconsistent with the prevailing
market. In total, ten different lawyers received $425/hour or above, with one out-
of-state lawyer receiving $600/hour. These rates far surpass rates in previous Ohio
election-related cases, including those on which the district court relied. Compared
to the local market (Midwest not West Coast) the awarded rates are too high.
Although the State does not dispute that Plaintiffs are prevailing parties
entitled to attorney fees, attorney fees must be reasonable. In its lodestar
calculation (hours * rates), the district court abused its discretion by (1) failing to
check consistent overbilling, and (2) awarding a bevy of lawyers unreasonably
high rates. The result was a runaway fee award.
The Court should correct this abuse of discretion. The goal of attorney fees
is to attract capable representation to civil rights cases, not to make lawyers rich,
and not to punish the State for defending a case. The district court’s award, in
excess of $2 million, far surpassed the amount reasonably necessary in Southern
Ohio to attract capable lawyers. The State was not billed as a client; it was billed
as an adversary. If this Court allows the award to stand it will incentivize
inappropriate practices in future attorney-fee matters. The Court should reverse
and remand the district court’s award; and it should mandate significant reductions
of hours and rates.
5
5BSTATEMENT OF THE CASE AND FACTS
This appeal involves three fee motions in NEOCH v. Husted and SEIU v.
Husted. Plaintiffs seek fees from the State of Ohio and Secretary of State Jon
Husted (collectively “the State”) for 2012-2013 litigation.
I. 11BThe 2012-2013 litigation
A. 16BNEOCH pre-appeal
In 2006, organizations including the Northeast Ohio Coalition for the
Homeless (“NEOCH Plaintiffs”) challenged Ohio voting laws. In April 2010, the
parties agreed to a Consent Decree. NEOCH-Doc.210, PageID#4970-82. The
Decree provided conditions for counting provisional ballots of Ohioans without
identification other than social security numbers (“SSN-4 voters”). It required
Boards of Elections to accept SSN-4 ballots cast “in the wrong precinct, but in the
correct polling place, for reasons attributable to poll worker error”. Id.,
PageID#4973. Plaintiffs already received fees for work prior to the Decree,
NEOCH-Doc.203, and for negotiating the Decree, NEOCH-Doc.234.
In April 2012, two Ohio legislators, both nonparties, filed a separate
mandamus action in the Supreme Court of Ohio against the Secretary.
Mand.Compl., NEOCH-Doc.246-1, PageID#5637-51. They maintained that the
Consent Decree was inconsistent with Ohio law and that the former Secretary
exceeded her authority by agreeing to it.
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NEOCH Plaintiffs moved the district court to enjoin the mandamus action on
May 8, 2012. Mot.Enj., NEOCH-Doc.246, PageID#5612-36. Plaintiffs also
requested show-cause contempt proceedings against the legislators/relators. Id.,
PageID#5628-34. The Court held a telephone conference on May 9. Tr.5/9/12,
NEOCH-Doc.285, PageID#6850-72. The State took no position. Id.,
PageID#6858-60.
The district court held another telephone conference on May 10, at which it
orally granted the injunction. Tr.5/10/12, NEOCH-Doc.286, PageID#6873-6902.
It issued a written decision the next day. NEOCH-Doc.261, PageID#5801-17. It
ordered relators to dismiss their action, but denied show-cause proceedings. Id.,
PageID#5817. Relators dismissed their action, and no party appealed.
The court held a scheduling conference on May 16 to discuss further
litigation of the Consent Decree’s validity. Tr.5/16/12, NEOCH-Doc.433,
PageID#15522-41. The parties filed simultaneous briefs on May 30 (Plaintiffs
arguing validity, the State arguing invalidity), and simultaneous responses on June
6. NEOCH-Docs.269-71, 279-81. The court held argument on June 27, and issued
a decision in July denying the State’s request to vacate the Decree. NEOCH-
Doc.307, PageID#10382-10418.
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NEOCH Plaintiffs moved separately to modify the Decree on June 20.
Mot.Modify, NEOCH-Doc.288, PageID#6906-59. That motion sought to alter the
Decree based on alleged equal protection and substantive due process violations.
B. 17BSEIU pre-appeal
On June 22, 2012, a different Plaintiffs’ group including Service Employees
International Union Local 1 (“SEIU Plaintiffs”), represented by mostly NEOCH
attorneys, filed a new case against the Secretary. SEIU Plaintiffs moved for
preliminary relief for voters who cast provisional ballots in the wrong precinct due
to poll worker error and voters who failed to properly sign ballot affirmations.
Mot.Prel.Inj., SEIU-Doc.4, PageID#47-107.
SEIU Plaintiffs also moved to certify a defendant class consisting of all
members of Ohio’s eighty-eight Boards of Elections. Mot.Cert., SEIU-Doc.25,
PageID#3525-43. Potential class members opposed certification. SEIU-Docs.31,
39, 46, 47. The Secretary took no position. SEIU-Docs.30, 50.
Plaintiffs ultimately abandoned class certification, moving to amend their
complaint in July. Mot.Amend., SEIU-Doc.57, PageID#5655-5668. Although
amendment was unopposed, Plaintiffs also filed a reply brief regarding
certification. SEIU-Doc.58, PageID#5707-26. The district court granted leave to
amend, mooting the certification motion. SEIU-Doc.62, PageID#5735-36.
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The court held a hearing on the SEIU preliminary injunction motion, and the
NEOCH motion to modify, on July 30. Tr.7/30/12, NEOCH-Doc.330,
PagedID#12267-12361. The court granted the SEIU injunction on August 27.
SEIU-Doc.67, PageID#5828-88. The injunction required Boards to count
provisional ballots cast in the correct polling place/wrong precinct unless poll
workers met certain conditions. Id., PageID#5886-87. It also enjoined Boards
from rejecting provisional ballots due to affirmation deficiencies (absent certain
conditions). Id., PageID#5887.
Given SEIU relief, the court indefinitely stayed the NEOCH motion to
modify. Id., PageID#5887-88. The court recognized the overlap between the
motions, stating that the motion to modify requested “determinations of the merits
of the same constitutional violations” and “the same equitable relief”. Id.
C. 18BNEOCH/SEIU Appeals
The State appealed the NEOCH decision regarding Consent Decree validity
and the SEIU preliminary injunction.1F
2
This Court held a telephone argument for both cases on October 1, 2012.
Ten days later, the Court (1) affirmed the district court’s ruling as to the NEOCH
Consent Decree; (2) affirmed the SEIU correct polling place/wrong precinct
injunction, but found that the injunction was limited to correct polling place
2 Following preliminary injunction, the State of Ohio moved to intervene in SEIU.
9
ballots; and (3) reversed the SEIU ballot affirmation injunction. NEOCH v.
Husted, 696 F.3d 580 (6th Cir. 2012).
D. 19BNEOCH post-appeal
With the Consent Decree set to expire on June 30, 2013, NEOCH Plaintiffs
moved to extend the Decree indefinitely. The State opposed. The district court
held argument on July 12. Tr.7/12/13, NEOCH-Doc.382, PageID#13629-61. The
court partially granted the motion, extending the Decree until December 31, 2016.
NEOCH-Doc.383, PageID#13662-82. No party appealed.
E. 20BSEIU post-appeal
Upon remand in SEIU, the parties litigated remaining issues including wrong
location ballots. See, e.g., SEIU v. Husted, 698 F.3d 341 (6th Cir. 2012) (staying
relief as to wrong location ballots). The parties also engaged in mediation.
In July 2013, SEIU Plaintiffs sought a permanent injunction for correct
location/wrong precinct ballots. Although the State did not oppose a permanent
injunction on this previously-litigated issue, Plaintiffs filed a thirty-five page
motion. Mot.Perm.Inj., SEIU-Doc.107, PageID#6491-6525. In a four-page order,
incorporating prior decisions, the district court granted the injunction. SEIU-
Doc.112, PageID#6718-21.
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II. 12BPlaintiffs’ fee motions and the State’s opposition
In December 2013, Plaintiffs filed fee motions in NEOCH (NEOCH-
Doc.393) and SEIU (SEIU-Doc.120) for 2012-2013 litigation. NEOCH Plaintiffs
billed 2,357.85 hours. NEOCH-Doc.393, PagedID#13819. The twenty-three
NEOCH attorneys requested rates ranging from $215-$750/hour. Id.,
PageID#13825. They requested $967,593.25 in fees and $21,081.30 in expenses.
Id., PageID#13819, 13828.
SEIU Plaintiffs billed 3,641.13 hours for obtaining injunctive relief as to
correct location/wrong precinct ballots. SEIU-Doc.120, PageID#6783. The twelve
SEIU attorneys requested rates ranging from $300-$750/hour. Id., PageID#6786
(Ms. Trice was omitted from this chart). They requested $1,383,436.75 in fees and
$52,237.09 in expenses. Id., PageID#6783, 6789.
The State filed a combined response opposing both motions. NEOCH-
Doc.407/SEIU-Doc.131, PageID#7010-99. The State agreed that Plaintiffs were
prevailing parties, but challenged the reasonableness of the fee requests. The State
argued that (1) counsel’s hours exceeded the amount reasonably necessary for
relevant work; (2) counsel included hours for unnecessary/unsuccessful tasks; and
(3) counsel requested unreasonably high rates. In support, the State submitted
~eighty pages of briefing (PageID#7020-98), and twenty-three exhibits, most of
11
which categorized billing entries (NEOCH-Doc.407-2–407-24/SEIU-Doc.131-2–
131-24).
The State asked the court to eliminate non-compensable hours, reduce
remaining hours by 50%, and award rates consistent with 2013 bar survey results.
NEOCH-Doc.407/SEIU-Doc.131, PageID#7095-97. As a rate alternative, the State
proposed a $300/hour cap for less experienced attorneys (admitted post-2000) and
a $400/hour cap for more experienced attorneys. Id.
NEOCH Plaintiffs submitted a separate fee motion for the 2013 Consent
Decree extension. NEOCH-Doc.388, PageID#13692-13721. Plaintiffs billed ~340
hours, requesting ~$120,000, for this isolated issue. Id., PageID#13719. The State
opposed the request as unreasonably high. SEIU-Doc.390, PageID#13779-97.
III. 13BThe district court’s fee award
On September 29, 2014, the district court granted Plaintiffs’ three fee
motions with only slight modifications. NEOCH-Doc.436/SEIU-Doc.140,
PageID#7458-88.
The court offered limited analysis addressing the State’s first challenge
(excessive hours for necessary work), stating that it reviewed counsel’s
billing/declarations and found “no unnecessary duplication and that the time spent
was reasonable.” Id., PageID#7463-66. The court accused the State of
“invoke[ing] a phantom specter”, implying that the State’s hour challenges
12
consisted of “conclusory allegations”. Id., PageID#7466. The court then
addressed the State’s second challenge (hours for unnecessary/unsuccessful work).
Id., PageID#7467-76.
Of the thousands of hours submitted, the court cut fewer than forty main-
case hours (re: third-party intervention).2F
3 See id., PageID#7475-76. Consistent
with binding precedent, the court limited “fees for fees” hours (time obtaining
attorney fees) to 3% of time on the main cases. Id., PageID#7469-70.
The court made minor reductions to requested hourly rates, awarding rates
ranging from $215-$600/hour. Id., PageID#7485. The twenty-five rates average
$378/hour.3F
4 Twenty-one attorneys received $300/hour or above, with ten of these
twenty-one receiving $425/hour or above.
Plaintiffs submitted a bill calculating the award. NEOCH-Doc.428/SEIU-
Doc.142, PageID#7491-97. It was for 6,147 total hours. Id. The court approved
Plaintiffs’ bill on February 17, 2015, awarding $2,227,179.90 in fees and costs.
NEOCH-Doc.444/SEIU-Doc.147, PageID#7687-96.
3 In reply, Plaintiffs also withdrew ~80 hours initially submitted. 4 Although excluded from the initial decision, Ms. Trice received $240/hour. NEOCH-Doc.444/SEIU-Doc.147, PageID#7694-95.
13
6BSUMMARY OF ARGUMENT
There are “two sides to these attorney-fee debates,” both of which the Court
must honor. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 612 (6th Cir. 2013).
On one side, Ҥ 1988 plays a critical role in ensur[ing] that federal rights are
adequately enforced, and attorneys have every right to be compensated for any fees
and expenses they reasonably incur.” Id. (internal quotations omitted). But, on the
other side, “§ 1988 occasionally is misunderstood and misused”; “these cases can
all too easily become a way of life for the attorneys involved, and consequently
over time it can become increasingly unclear, for both the attorneys and the courts,
precisely what work falls within the ambit of § 1988.” Id. What both the Supreme
Court and this Court have made “abundantly clear” is that “the aim of [§ 1988] is
not for the purpose of aiding lawyers. The purpose of th[e] bill is to aid civil
rights.” Id. (internal quotations omitted); Perdue v. Kenny A. ex rel. Winn, 559
U.S. 542, 552 (2010) (the statute’s aim is “not to provide a form of economic relief
to improve the financial lot of attorneys”) (internal quotations omitted).
The fee award goes against this aim. It is markedly unreasonable as to both
lodestar factors.
First, the thousands of hours far exceed reasonableness. Counsel could have
performed the tasks necessary in these cases, at a high level, in far less time.
Billing entries reveal that counsel overstaffed and overlawyered this litigation.
14
And while counsel’s rates suggest considerable experience, their hours do not
reflect corresponding efficiency.
Many elements contributed to overbilling. The sheer volume of attorneys
naturally resulted in duplication. Counsel staffed these cases with a combined
twenty-five attorneys (and teams of paralegals/law clerks), using six to thirteen
lawyers on most projects. A closer review of the 6,000+ hour total uncovers
several unreasonable practices:
1. unduly high attendance at, and travel to, court proceedings;
2. inordinate time conferencing among co-counsel;
3. unreasonably high/duplicative research hours;
4. unreasonable time drafting/editing/reviewing filings;
5. unnecessary time drafting an unfiled law/fact proposal;
6. unnecessarily cumulative discovery;
7. unreasonable time obtaining the Consent Decree extension;
8. unreasonable time obtaining an unopposed permanent injunction;
9. unreasonable time trying to hold nonparty relators in contempt;
10. billing for an unnecessary attempt to certify a separate defendant class; and
11. billing for a NEOCH motion to modify that was duplicative of, and subsumed by, the SEIU motion for preliminary injunction.
15
Counsel did not meet their burden of justifying this billing. And, given detailed
challenges and the many hours at stake, the court’s minimal hours analysis was
insufficient.
Second, the district court awarded rates too high to too many lawyers. In
assigning reasonable rates, the question is not what rates these precise lawyers
might be able to charge some well-to-do client willing to spare no expense. The
controlling question is what rates are sufficient to attract capable representation in
the local market. The awarded rates (especially the many $425+ rates) go well
beyond the rates necessary to incentivize capable counsel in Southern Ohio. The
significant gap between the awarded rates and previous Ohio awards makes the
court’s error plain. And the court’s error is exacerbated by the fact that it did not
just award high rates to a few lawyers, it awarded high rates to more than twenty.
Based on these problems, the district court abused its discretion; this Court
should reverse and remand for a substantial decrease of the award.
16
7BARGUMENT
Section 1988 permits “reasonable attorney’s fee[s]” to prevailing parties. 42
U.S.C. § 1988(b). Reasonable fees strike the balance of (1) being “adequately
compensatory to attract competent counsel”, but not (2) “producing a windfall for
lawyers.” Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007)
(emphasis omitted).
This Court reviews fee awards for abuse of discretion. Binta, 710 F.3d at
618. “A district court abuses its discretion when it relies upon clearly erroneous
factual findings, applies the law improperly, or uses an erroneous legal standard.”
Id. (internal quotations omitted). An abuse exists when the court has “a definite
and firm conviction that the trial court committed a clear error of judgment”.
Moon v. Unum Provident Corp., 461 F.3d 639, 642 (6th Cir. 2006) (internal
quotations omitted).
But “discretion is not unlimited.” Perdue, 559 U.S. at 558. “It is essential
that the judge provide a reasonably specific explanation for all aspects of a fee
determination”. Id. “Unless such an explanation is given, adequate appellate
review is not feasible, and without such review, widely disparate awards may be
made, and awards may be influenced (or at least, may appear to be influenced) by a
judge’s subjective opinion regarding particular attorneys or the importance of the
case.” Id.
17
The lodestar method is the standard approach for calculating reasonable fees.
Id. at 551-53. The lodestar is “the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1983). The party seeking fees “has the burden of proving the basic
time/rate elements”. Segocia v. Montgomery Cnty., Tenn., 593 F.App’x 488, 491
(6th Cir. 2014). “[T]he lodestar calculation is objective” and “cabins the discretion
of trial judges, permits meaningful judicial review, and produces reasonably
predictable results.” Perdue, 559 U.S. at 552 (internal quotations omitted).
Here, the district court abused its discretion in determining both lodestar
factors.
I. 14BThe district court abused its discretion by awarding 6,000+ hours.
A. 21BA reasonable hour total must exclude hours not reasonably expended: courts should exclude hours for lack of billing judgment; overstaffing; and insufficient documentation.
In determining hours, a court must “exclude from this initial fee calculation
hours that were not ‘reasonably expended.’” Hensley, 461 U.S. at 434 (quoting
legislative history). A few considerations are especially relevant.
Billing Judgment. Like private attorneys, attorneys seeking statutory fees
must exercise billing judgment as to their hours. Id. (“In the private sector, billing
judgment is an important component in fee setting. It is no less important here.”)
(internal quotations omitted). “Counsel for the prevailing party should make a
18
good faith effort to exclude from a fee request hours that are excessive, redundant,
or otherwise unnecessary, just as a lawyer in private practice ethically is obligated
to exclude such hours from his fee submission.” Id.
Inherent in billing judgment is the commonsense notion that lawyers should
bill fee-paying defendants in the same manner as reasonable clients. Id. “Hours
that are not properly billed to one’s client also are not properly billed to one’s
adversary pursuant to statutory authority.” Id. (internal quotations omitted,
emphasis in original).
Overstaffing. Of importance here, courts must account for overstaffing
when calculating hours. Hensley, 461 U.S. at 434. “There is nothing inherently
unreasonable about a client having multiple attorneys”, but groups of attorneys
cannot charge for “unreasonably doing the same work” and must demonstrate “the
distinct contribution of each lawyer”. ACLU of Georgia v. Barnes, 168 F.3d 423,
432 (11th Cir. 1999) (emphasis added, internal quotations omitted); cf. Schlacher
v. Law Offices of Phillip J. Rotche & Assoc., P.C., 574 F.3d 852, 858 (7th Cir.
2009) (“[O]verstaffing cases inefficiently is common, and district courts are
therefore encouraged to scrutinize fee petitions for duplicative billing when
multiple lawyers seek fees.”).
It is not fee-paying defendants’ job to prove overstaffing. Rather, fee-
seeking plaintiffs bear the “burden of showing that the time spent by those
19
attorneys reflects the distinct contribution of each lawyer to the case”. Barnes, 168
F.3d at 432. “[T]he fee applicant has the burden of showing that, and where there
is an objection raising the point, it is not a make-believe burden.” Id.
This Court’s decision in Kentucky Restaurant Concepts Inc. v. City of
Louisville, 117 F.App’x 415, 419 (6th Cir. 2004) provides guidance. The case
involved a First Amendment claim that went to trial. Id. at 416-17. The district
court reduced the fees of five attorneys (compared to twenty-five) who represented
two plaintiffs’ groups, due to duplication. Id. at 418. This Court affirmed the
conclusions that “multiple attorneys spent considerable time doing very similar
work” and that “plaintiffs hired too many attorneys” for fee purposes. Id. at 419.
This Court positively quoted, as “both concise and clear”, the district court’s
explanation: “Plaintiffs are not entitled to have any number of well-qualified
attorneys reimbursed for their efforts, when fewer attorneys could have
accomplished the job.” Id. (emphasis added).
Like Kentucky Restaurant Concepts, many courts have expressed concerns
about aggressive case staffing. See, e.g., Coulter v. State of Tenn., 805 F.2d 146,
152 (6th Cir. 1986) (with “multiple representation” there is “the danger of
duplication, a waste of resources which is difficult to measure”); Harkless v.
Brunner, No. 1:06 CV 2284, 2011 WL 2149138, at *2 (N.D. Ohio May, 31, 2011)
(holding that “multiple senior lawyers” working on a voting-rights case resulted in
20
“extensive duplication”); Amedisys, Inc. v. Nat’l Century Fin. Enterprises, Inc.,
No. 2:04-CV-493, 2006 WL 1209372, at *3 (S.D. Ohio May 2, 2006) (“[H]aving
eight attorneys working on the appeal resulted in duplication and an unreasonable
number of hours billed.”).
Although plaintiffs are certainly free to staff cases as heavily as they like
(and are willing to pay for), they cannot impose such luxuries on opponents. See
Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 943 (3rd
Cir. 1995) (“The fact that a private client may accede to the practice and pay the
additional fees does not necessarily make them reasonable nor necessary when
they are to be paid by the other party to the proceedings.”); In re Donovan, 877
F.2d 982, 996 (D.C. Cir. 1989) (“Counsel is not free, however, to exercise its
judgment in a fashion that unnecessarily inflates the losing party’s fee liability, e.g.
by injecting an additional layer of attorneys into the case.”) (internal quotations
omitted).
Documentation. Fee-seeking attorneys must adequately document their
hours. Hensley, 434 U.S. at 433. The Court does not require attorneys to “record
in great detail” every minute, but “the general subject matter should be identified.”
Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 553 (6th Cir. 2008) (internal
quotations omitted). Documentation “must be of sufficient detail and probative
value to enable the court to determine with a high degree of certainty that such
21
hours were actually and reasonably expended”. U.S. Tile & Composition v. G&M
Roofing, 732 F.2d 495, 502 n.2 (6th Cir. 1984); see also Cashman Equipment
Corp. v. Rozel Operating Co., 569 F.App’x 283, 289 (5th Cir. 2014) (reduction is
proper “when the supporting documentation is too vague to permit meaningful
review”) (internal quotations omitted).
Block billing is an important factor when assessing documentation. See
Imwalle, 515 F.3d at 553 (recognizing courts have reduced fees “where billing
records ‘lumped’ together time entries under one total so that it was impossible to
determine the amount of time spent on each task”) (internal quotations omitted).
Although block billing is not always unreasonable, the practice results in
“imprecision in an attorney’s records,” Ceres Env’l Servs., Inc. v. Col. McCrary
Trucking, LLC, 476 F.App’x 198, 203 (11th Cir. 2012), and “makes it more
difficult to determine how much time was spent on particular activities.” Welch v.
Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). These are “problem[s] for
which the opponent should not be penalized”. Ceres Env’l Servs., 476 F.App’x at
203. Rather, billing attorneys should bear adverse results from their imprecision.
See id. at 203-04 (holding block billing justified across-the-board reduction).
22
B. Counsel requested, and received, excessive hours.
Plaintiffs’ attorneys submitted numerous hours not reasonably expended.
Counsel failed to demonstrate their hours were reasonable, and the district court
abused its discretion by awarding virtually all of these hours.
The court permitted 6,147 hours in these cases. More than 5,400 hours
occurred in ~six months. Such totals are difficult to conceptualize. To provide
some context, 5,400 hours is enough time for (1) five separate people (2) to submit
40 billable hours (3) each week (4) for six months (5) while still having a couple
hundred hours left over. Compare, Precision Concrete v. N.L.R.B., 362 F.3d 847,
853 (D.C. Cir. 2004) (holding that 500 hours on appellate work was excessive:
“We see nothing in this case that warranted the expenditure of over twelve and a
half weeks at forty hours per week of professional time”). Or, broken down
differently, 5,400 hours amounts to ~30 billable hours, every day (including
weekends), for an entire half-year.
In assessing hours, the Court should remember the procedural nature of
these cases. Although expedited, neither case involved an evidentiary hearing or
trial. Rather, the cases consisted of briefing, paper discovery, and oral arguments
(often repeating subjects).
Whether viewed on a large or small scale, counsel’s hours are unreasonable.
The State offers several examples of unreasonable billing below (examples the
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24
May 9, 2012. The May 9 telephone conference—addressing the NEOCH
motion to enjoin—lasted thirty-eight minutes. See Tr.5/9/12, NEOCH-Doc.285,
PageID#6850-72. Four attorneys spoke on behalf of Plaintiffs (other than
appearances), with Ms. Gentry taking lead. See id.
Thirteen attorneys billed for attendance. NEOCH-Doc407-2/SEIU-Doc.131-
2, PageID#7102. Although block billing makes precision impossible, May 9
entries referencing conference preparation and attendance total ~43 hours. Id.
Four billing attorneys (Reddy, Cincotta, Leonard, Hughes) did not even enter
appearances. Tr.5/9/12, PageID#6850-53. Two attorneys (Leonard, Reddy) billed
one hour each referencing only the thirty-eight minute conference. NEOCH-
Doc.393-3, PageID#13896-97.
May 10, 2012. The court held a follow-up telephone conference the next
day. Tr.5/10/12, NEOCH-Doc.286, PageID#6873-6902. Outside of appearances,
only Ms. Gentry and Mr. Berzon spoke for Plaintiffs. Id.
At least eleven attorneys billed for attendance. NEOCH-Doc407-2/SEIU-
Doc.131-2, PageID#7103. Mr. Chandra also attended, although it is unclear
whether his page-long block bill for that day includes the conference. NEOCH-
Doc.393-15, PageID#14046. Excluding Mr. Chandra, May 10 conference-related
entries total ~35 hours. NEOCH-Doc407-2/SEIU-Doc.131-2, PageID#7103.
25
Three attorneys billing attendance (Cincotta, Reddy, Leonard) never entered
appearances. Tr.5/10/12, NEOCH-Doc.286, PageID#6873-75.
May 16, 2012. The district court held another telephone conference on May
16 for scheduling. Tr.5/16/12, NEOCH-Doc.433, PageID#15522-41; NEOCH-
Doc.259, PageID#5797 (providing notice as to the conference’s purpose). Despite
the nature of proceedings, counsel charged for seven attorneys. NEOCH-Doc407-
2/SEIU-Doc.131-2, PageID#7103. Only Ms. Gentry and Mr. Berzon spoke.
Tr.5/16/12, NEOCH-Doc.433, PageID#15522-41.
June 27, 2012. The district court held argument on June 27 concerning
Consent Decree validity. Tr.6/27/12, NEOCH-Doc.329, PageID#12188-12266. It
also addressed SEIU scheduling. Three Plaintiffs’ attorneys handled proceedings.
Ms. Leonard (and, limitedly, Ms. Gentry) argued the merits. Ms. Chisholm spoke
concerning SEIU logistics.
Counsel charged for eight attorneys to participate. NEOCH-Doc407-
2/SEIU-Doc.131-2, PageID#7104. These eight attorneys collectively billed ~90
hours for argument-related travel, preparation, and attendance for June 26-27
alone. Id. They billed over 70 hours on the day of the argument. Id. At least four
attorneys billed travel. Id.
Entries from Ms. Leonard and Ms. Chisholm stand out. Both attorneys
billed unreduced hours for cross-country trips from San Francisco. Between the
26
two cases, Ms. Leonard billed 32.5 hours (19.4 hours on June 27) for the two days.
NEOCH-Doc.393-3, PageID#13907; SEIU-Doc.120-3, PageID#6870-71. Ms.
Chisholm—who only spoke concerning SEIU case management—billed 27.25
hours for the two days. NEOCH-Doc.393-3, PageID#13903; SEIU-Doc.120-3,
PageID#6859.
July 30, 2012. The next argument concerned the SEIU preliminary
injunction motion and NEOCH motion to modify. Tr.7/30/12, NEOCH-Doc.330,
PagedID#12267-12361. Ms. Chisholm spoke concerning potential third-party
intervention in SEIU. Ms. Leonard argued on the injunction/modification motions.
Plaintiffs charged for ten attorneys’ attendance. NEOCH-Doc407-2/SEIU-
Doc.131-2, PageID#7104. For the dates of July 29-30, these attorneys billed 100+
hours for hearing-related activities, with ~80 hours solely for June 30. Id. The
billing appears to include ~50 travel hours. Id. Beyond travel for Ohio attorneys,
counsel billed hours for (1) three San Francisco trips for Altschuler-Berzon
attorneys and (2) the travel of Ms. Judge from New Jersey.
Mr. Berzon’s attendance is a prime example of duplication. He had minimal
involvement with the relevant motions. See NEOCH-Doc.393-3, PageID#13919;
SEIU-Doc.120-3, PageID#6911-12. Ms. Leonard, not Mr. Berzon, argued for
Plaintiffs; and she spent significant time preparing, including ~40 hours from July
25-28. SEIU-Doc.120-3, PageID#6872. Nevertheless, Mr. Berzon billed 24.5
27
hours on July 29-30 for hearing-related time. Id., PageID#6912. At the $600 rate
awarded, the State is paying $14,700 so that an out-of-state founding partner could
travel from San Francisco to passively attend a hearing with nine other attorneys.
This does not include expenses. And this is just one example of over-attendance.
October 1, 2012. This Court held argument (telephone) on October 1, with
fifteen minutes per side in each case. Ms. Leonard argued.
Six attorneys billed for participation, five from Alschuler-Berzon. NEOCH-
Doc407-2/SEIU-Doc.131-2, PageID#7105. Although Ms. Leonard argued the
same matters before the district court (and spent incredible time on appellate
briefing), she still billed ~60 hours of argument preparation from September 25-30.
SEIU-Doc.120-3, PageID#6874. On top of Ms. Leonard’s considerable efforts,
Mr. Berzon billed ~21 hours referencing argument-related activities from
September 24-30. Id., PageID#6913.
July 12, 2013. The district court held argument regarding the Consent
Decree extension in 2013. Tr.7/12/13, NEOCH-Doc.382, PageID#13629-61. Mr.
Chandra argued. Counsel charged for four attorneys to attend (travel for three),
and a total of 80+ argument-related hours (excluding motion practice). NEOCH-
Doc.388-3, PageID#13743-45; NEOCH-Doc 388-4, PageID#13757; NEOCH-
Doc.388-6, PageID#13762. Although she did not argue, Ms. Gupta billed ~45
28
hours for argument preparation/travel, including a 14 hour block bill the day before
argument. NEOCH-Docs.388-3, PageID#13743-45.
* * *
In summary, counsel billed the following attendance:
Proceeding # of Attorneys Arguing # of Attorneys Billing 5/9/12 4 (mainly 1) 13
5/10/12 2 11 or 12 (Chandra?)
5/16/12 2 7
6/27/12 3 8
7/30/12 2 10
10/1/12 1 6
7/12/13 1 4
Counsel did not and cannot demonstrate these attorneys were offering
distinct contributions worthy of full compensation. Although the sheer numbers
are jarring, the Court should remember these attorneys’ characteristics. These are
not fees for tag-along attendance of a few junior associates. Counsel consistently
ask the State to pay for senior attorneys (e.g., Berzon, McTigue, Leyton, Hunter,
all $450+/hour) to sit fourth, fifth, or even ninth/tenth chair at proceedings. This is
extravagance, not reasonableness; the district court was wrong to allow it.
29
Although the State identified these excesses below, NEOCH-
Doc.407/SEIUDoc.131, PageID#7040-45, the district court spent little time
discussing the issue. The court repeated the standard for having multiple attorneys,
NEOCH-Doc.426/SEIU-Doc.140, PageID#7465-66, but made no attempt to
explain how counsel showed that as many as thirteen attorneys at a conference
offered distinct contributions justifying full fees.
Relatedly, counsel billed excessive travel. The State does not dispute that
some level of local travel is reimbursable, but the travel charges detailed above,
particularly out-of-state travel, went beyond what is permissible.
One “important virtue[]” of the lodestar method is that it places fees within
the “prevailing market”. Perdue, 559 U.S. at 551. Accordingly, any award of
travel time must be consistent with “local practice”. Robinson v. Elida Local Sch.
Dist., Bd. of Educ., 99 F.3d 1139 (table), 1996 WL 593535, at *3 (6th Cir. Oct. 15,
1996). And when plaintiffs seek extra fees caused by hiring out-of-town counsel,
they face the burden of showing that “hiring the out-of-town specialist was
reasonable in the first instance”. Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir.
1995); Martinez v. Hernando Cnty Sheriff's Office, 579 F.App’x 710, 714 (11th
Cir. 2014) (“[A]lthough there are no precise rules with respect to travel time, a fee
applicant seeking to recover expenses incurred for retaining non-local counsel
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31
757, 760 (5th Cir. 1996) (concluding “intraoffice conferences” resulted in
“duplication of attorneys’ time charges”); Cleveland Area Bd. of Realtors v. City of
Euclid, 965 F.Supp. 1017, 1021 (N.D. Ohio 1997) (finding thirty pre-complaint
conferences to be excessive “especially when many are described simply as
‘regarding status.’”); Harkless v. Husted, No. 1:06-cv-02284, 2011 WL 2149179,
at *21 (N.D. Ohio Mar. 31, 2011) (“Plaintiffs’ counsel spent an incredible amount
of time emailing, conferencing, meeting, consulting and developing strategy.”)
(adopted with modification by 2011 WL 2149138).
In re Olson, 884 F.2d 1415 (D.C. Cir. 1989) is instructive. That court
reduced fees by ten percent based on insufficient documentation and over-
conferencing. Id. at 219. The court concluded that frequent conferencing among
experienced attorneys resulted in significant redundancy and inefficiency:
The attorneys also engaged in a plethora of conferences, most often denoted simply as “strategy” conferences, consuming the time of several attorneys who bill at very high rates. The hourly rates charged are of such magnitude as to indicate that the attorneys should have been able to decide on the proper strategy without the great number of strategy conferences attended by numerous firm lawyers. . . . We recognize that the case was very important, protracted, unique and was very ably handled, but we find that the number of conferences among the twenty-one attorneys who did some work on the matter were excessive.
Id. (emphases added, internal citation omitted).
As in In re Olsen, these cases involve unreasonable amounts of
conferencing. Even quick review of billing entries reveals many “strategy
32
conferences” among counsel and staff. See NEOCH-Doc.393-3; SEIU-Doc.120-3.
On closer inspection, 1,190 entries—659 in SEIU, 531 in NEOCH—include some
form of internal conference. NEOCH-Doc.407-4; SEIU-Doc.131-3. These
conferences often involved three or more attorneys, and many lasted an hour or
longer. See id. The entries describe conferences on virtually every subject,
including narrow topics such as “related case notice”; “privity”; “cite check”;
“harm standards”; “indexing Hunter transcript”; “county pleadings”; and “potential
amicus brief”. Id.
Routine block billing makes it impossible to tell how much time is billed
just for conferencing. But the total is quite large. Even conservative estimates,
completely omitting ~250 block bills of 2+ hours, suggest the legal teams are
charging for 650+ conferencing hours (~300 in NEOCH, ~370 in SEIU). See id.
This estimate is more than a tenth of the awarded hours.
Counsel also seek many hours for emailing. See Harkless, 2011 WL
2149179, at *21 (rebuking attorneys for an “incredible amount of time emailing”).
The problem with frequent email billing is that it allows many attorneys—copied
on emails—to bill for emails regardless of their actual involvement.
Mr. McTigue’s billing demonstrates this problem. His entries reflect a
limited role in NEOCH. See NEOCH-Doc.393-12. So his billing centers on
emails. Of his 137 billing entries (~108 hours) for the primary NEOCH fee
motion,
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34
paying anyway, counsel is induced to read every case, depose every witness, examine fully every tactic, leave no stone unturned.
Bonner v. Coughlin, 657 F.2d 931, 935 (7th Cir. 1981) (emphasis added, citation
omitted). “[L]awyer[s] may have strong economic incentives to spend too many
hours on a piece of work or to exaggerate the number of hours spent or the
necessity or importance of the work.” Coulter, 805 F.2d at 150.
Furthermore, normal legal tasks, e.g., research, should be performed with
efficiency matching attorney rates. Buffington v. Baltimore Cnty., Md., 913 F.2d
113, 130 (4th Cir. 1990) (“[T]he primary justification for awarding high-end
hourly rates for experienced counsel in § 1983 litigation is that their very
experience and skill will result in economies of time because of their lack of need
for extensive background legal research.”) (emphasis added).
Counsel billed for excessive research and review of pleadings. Although
block billing makes precision difficult, NEOCH/SEIU legal teams apparently billed
at least 750 hours devoted to research activities. See NEOCH-Doc.407-21; SEIU-
Doc.131-22. Specifically, omitting research block billed with drafting, the SEIU
team billed ~400 hours for research-related activities. SEIU-Doc.131-22.
Applying the same method, the NEOCH team billed ~370 hours. NEOCH-
Doc.407-21. Billing entries report long chunks of research, including ~50 billing
entries of five hours or longer consisting primarily, or solely, of research.
NEOCH-Doc.407-21; SEIU-Doc.131-22.
35
Some highlights:
x Fifteen NEOCH attorneys billed their own research;
x Eight SEIU attorneys billed their own research;
x On April 17, 2012, four different attorneys billed between 2-5 hours with the same billing descriptions, “Review and analyze Niehaus complaint; confer with co-counsel”, NEOCH-Doc.393-8, PageID#13959;
x Ms. Reddy billed 20+ hours researching “expansion of consent decree” in just two days, NEOCH-Doc.393-3, PageID#13918;
x Ms. Reddy charged 30+ hours researching civil contempt, id., PageID#13896-97;
x Mr. Thoreen spent 28.1 hours ($12,645 at $450/hour) from July 20-26, 2012 drafting a jurisdictional memo, id., PageID# 13919.
In addition to attorney research, these figures include an unreasonable
number of law-clerk hours. The Alschuler-Berzon firm billed for hundreds of law
clerk hours. See NEOCH-Doc.393-3; SEIU-Doc.120-3. Law clerks (awarded
$150/hour) spent most of this time researching and drafting memos. They billed
many long blocks:
x 9.8 hours researching constitutional issues;
x 8 hours researching (un-litigated) HAVA claims;
x 9.4 hours researching “1983 injunction”;
x 7.8 hours researching “deliberate indifference”;
x 11.8 hours for an evidentiary standards memo.
SEIU-D
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37
its discretion by failing to exclude hours for five attorneys drafting briefs). The
Harkless court, for example, criticized having “multiple senior attorneys review[]
every pleading and document filed in this case and in the Sixth Circuit”. 2011 WL
2149138, at *2 (internal quotations omitted). It found “extensive duplication
occurred because other attorneys were reviewing and approving work already
reviewed and edited by lead counsel”. Id.
Billing entries reflect excessive time (involving teams of attorneys) drafting,
editing, reviewing, and revising nearly every filing.
The initial SEIU filings display counsel’s approach to motion practice. Even
omitting extensive hours for evidentiary declarations and preliminary research, the
SEIU team charged ~300 hours for drafting/editing the complaint and preliminary
injunction motion. SEIU-Doc.131-12. From June 7-21 alone, Ms. Leonard billed
120+ hours for work on the preliminary injunction motion. SEIU-Doc.120-3,
PageID#6869-70. Beyond Ms. Leonard’s (lead counsel) extensive billing, five
other attorneys billed for drafting and editing that motion. SEIU-Doc.131-12. For
example, from May 25-26, Ms. Reddy and Ms. Leyton billed a combined 22.1
hours described as “Research and draft substantive due process argument”. SEIU-
Doc.120-3, PageID#6876, 6903. Why two attorneys were drafting the same
argument on the same day (May 26) is unclear.
38
The SEIU team charged an additional ~130 hours, involving six attorneys,
for drafting and editing their twenty-page reply. SEIU-Doc.131-13; see SEIU-
Doc.33 (reply).
NEOCH billing is no different. By their own breakdown, NEOCH Plaintiffs
charged ~532 hours for the motion to enjoin phase (no appeal). NEOCH-Doc.393,
PageID13819. Excluding large amounts of research and conferencing, billing
entries still include ~150 hours, from eleven attorneys, for drafting and editing the
initial motion. See NEOCH-Doc.407-14. This motion is less than twenty-five
pages. NEOCH-Doc.246, PageID#5612-36.
The May 10 reply (NEOCH-Doc.257) demonstrates complete disregard for
surrounding circumstances. At Plaintiffs’ request, the district court handled the
May 8 motion to enjoin on an urgent schedule. On May 9, the court stated it
would “provide an answer by close of business tomorrow.” Tr.5/9/12, NEOCH-
Doc.285, PageID#6869. It gave relators a noon deadline for response, and stated
“plaintiffs have given me sufficient information that they can stand on, as far as
jurisdiction is concerned and my power to enjoin both the Ohio Supreme Court and
the relators.” Id., PageID#6869-70. Disregarding these instructions, counsel spent
~40 hours (52.7 block billed) on May 9-10 for a reply, with billing from nine
attorneys. NEOCH-Doc.407-15. They filed this reply only 30 minutes before the
39
court announced its decision. Tr.5/10/12, NEOCH-Doc.286, PageID#6876. This
filing, and billing, was unwarranted.
Counsel’s practices continued throughout both cases. The NEOCH team
billed ~190 hours, from thirteen attorneys, referencing drafting, editing, and/or
reviewing the May 30 brief concerning Consent Decree validity. See NEOCH-
Doc.407-16. This figure does not include extensive time planning, researching,
and coordinating evidence. Although receiving help from twelve attorneys, Ms.
Leonard reported five days of 14+ billable hours from May 23-28. NEOCH-
Doc.393-3, PageID#13906. She submitted 85.4 hours referencing drafting during
this period. Id.
Given the trial level hours, one might expect hours to subside for appellate
briefs, regarding the same subjects, drafted a few months later. Not so. NEOCH
Plaintiffs billed ~215 hours between August 21 and September 4 referencing
appellate brief work. See NEOCH-Doc.407-17. Ten different attorneys billed for
outlining, drafting, editing, revising, and/or reviewing the brief. Id.
Maybe the most aggressive billing was for the SEIU appellate brief. SEIU
Plaintiffs submitted 375+ hours (including six attorneys) describing drafting and
editing the brief. SEIU-Doc.131-18. Despite her work on earlier briefing (and
help from five attorneys), Ms. Leonard billed 130+ hours, including a 19.9
billable-hour day. SEIU-Doc.120-3, PageID#6873-74. The charge for this
40
workday is $8,955 (at $450/hour). Billing entries reflect that Mr. Berzon had little
role in the writing process, but that did not prevent him from billing 13.8 hours
($8,280) on September 20, block billing his work as “Review amicus briefs in
early voting cases; edit appeal brief; strategy conference re: reorganization and
revisions”. SEIU-Doc.120-3, PageID#6913.
The many long days on the SEIU brief, from many different attorneys, is
striking. In total (1) five different attorneys (2) billed fourteen different entries
(3) of 10+ billable hours: Berzon; Reddy; Cincotta (two); Chisholm (three);
Leonard (seven). SEIU-Doc.131-18.
Added to hundreds of hours on every motion and brief, counsel also spent
excessive time on minor filings. SEIU counsel, for instance, billed at least 8 hours
(three attorneys) to provide notice to the district court that SEIU was related to
NEOCH/Hunter.4F
5 SEIU-Doc.120-3, PageID#6858-59, 6870, 6877. SEIU counsel
billed ~13 hours (four attorneys) for a related-case letter to this Court. Id.,
PageID#6862, 6873, 6878, 6908. NEOCH counsel billed ~10 hours (five
attorneys) for appellate filings regarding the State’s purported misstatements in its
reply briefing. NEOCH-Doc.393-3, PageID#13905-16; NEOCH-Doc.393-12,
PageID#13999.
* * * 5 This does not include a 12.6 hour entry from Ms. Leonard referencing the related-case notice. SEIU-Doc.120-3, PageID#6870.
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43
State estimates 1300+ hours for coordinating discovery, organizing evidence, and
filing declarations/exhibits.
The universe of discovery counsel chose was overbroad for fee purposes.
Rather than conducting discovery on sample counties, counsel conducted
discovery—via public-record requests/subpoenas—on all eighty-eight Boards of
Elections. In Harkless, the Northern District of Ohio criticized a similar choice.
2011 WL 2149138, at *2. The court held that “conducting discovery in all 88 Ohio
counties was excessive”, resulted in “significant and unnecessary fees for
document review and cataloguing”, and led to “duplicative and unnecessary
expenses.” Id. (internal quotations omitted).
Counsel’s decision to conduct discovery on every Ohio County resulted in
unreasonable hour totals. Counsel’s 2012 bills are full of entries for coordinating
and cataloguing discovery. For instance, from May 24-25 staff charged ~30 hours
to travel to counties and pick-up/inspect documents. NEOCH-Doc.393-8,
PageID#13962-63; but see R.C. 149.43(B)(7) (allowing public records to be sent
by mail or other means). Mr. Klaus submitted repeated entries referencing what
appear to be clerical discovery tasks, e.g., cataloguing emails and compiling
records. NEOCH-Doc.393-8, PageID#13963-65. Over just two days in June, he
billed 15+ hours for such activities, including “creating spreadsheet showing status
of public record requests to each county”. Id., PageID#13964.
44
More senior attorneys also benefitted from extensive discovery billing. For
example, Ms. Harshman ($300/hour) block billed 12 hours for “Preparation of
BOE subpoenas; request for production” on June 29; Mr. Hunter ($450/hour) block
billed another 6 hours that same day with an identical billing description. SEIU-
Doc.120-7, PageID#6941. Between July 2-11, Ms. Harshman reported ~60 hours
of document review and conferencing with Boards. Id.
Counsel also filed an unnecessary number of declarations. NEOCH
Plaintiffs, for instance, submitted seventeen declarations (eight reply declarations)
with their motion to modify. NEOCH-Docs.289-97, 311-18. SEIU Plaintiffs
similarly filed many declarations, reply declarations, and supplemental reply
declarations regarding their preliminary injunction motion. SEIU-Docs.4-1–4-7, 7-
13, 24, 34-35, 37-38, 41, 44-45, 48, 53, 55. These declarations often came from
the same individuals and involved highly-similar evidence.
The constant filing/re-filing of declarations led to redundant hours. The
legal teams submit numerous hours drafting, editing, reviewing, analyzing,
redacting, discussing, fact-checking, compiling exhibits for, finalizing, and filing
these declarations. In SEIU, seven different attorneys just from Alschuler-Berzon
billed for drafting, editing, and/or reviewing declarations. SEIU-Doc.120-3. From
June 13-17, Ms. Reddy billed 44.3 hours for reviewing documents and drafting
declarations. Id., PageID#6877. During the same period, Ms. Cincotta spent ~25
hours re
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46
Consent Decree, counsel billed ~335 hours.5F
6 NEOCH-Doc.428, PageID#15256.
Review of billing reflects ~150 hours regarding deciding to file; researching;
drafting; editing; and talking about their motion to extend. See NEOCH-Docs.388-
3, 388-4, 388-6. Excluding tables of contents/authorities, the motion is ~twenty-
five pages. NEOCH-Doc.362, PageID#12925-54. As one example of this
“extension” billing, on April 5, Ms. Gupta billed 2.9 hours solely referencing
discussions with Mr. Chandra and Mr. McTigue. NEOCH-Docs.388-3,
PageID#13736. These two attorneys, however, each only billed an hour for these
discussions. Id.; NEOCH-Doc.388-4, PageID#13755.
Counsel submitted ~65 more hours for reply-related activities. See
NEOCH-Docs.388-3, 388-4, 388-6. They also included ~28 hours of billing
entries referencing 2013 mediation (also concerning other issues/appeals).
NEOCH-Docs.388-3, PageID#13732-42. Finally, counsel charged ~80 hours for
argument preparation, attendance, and travel. NEOCH-Docs.388-3, 388-4, 388-6.
Billing ~335 hours for the extension (not appealed) was unreasonable.
When counsel performed this work, they were already familiar with NEOCH.
They should have been able to address this limited topic in significantly less time.
Over $115,000 for ~fifty pages of briefing and an hour-long argument is excessive.
6 Because NEOCH Plaintiffs moved separately for these hours (NEOCH-Doc.388), they are not included within above hour totals for conferencing and researching.
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88-91. Th
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orneys cha
ng a “strate
0 hours (en
gs. Id., P
ior SEIU e
47
spent unrng obtainin
ilarly refle
merits of
opposition
motion, eig
sed order
ours for 20
2013 work
lace/wrong
s for 2013
his mediat
llots (e.g.,
rged ~50
egy memo”
ntries from
PageID#71
experience,
reasonableng unoppo
ects lack
f correct
n (based
ght additio
seeking e
013 post-a
within the
g precinct
mediation
tion focus
, wrong
hours for
” and revie
m seven att
85-88. In
, counsel d
e time onosed relief
of judgm
location/w
on prelim
onal exhibi
expedited
appeal acti
e scope of
t permane
n, with entr
sed on issu
location/w
assorted 2
ewing NEO
torneys) re
nstead of
delegated d
n post-apf.
ment. De
wrong prec
minary rulin
its, a prop
considera
ivities. SE
f the SEIU
ent injunc
ries from se
ues other
wrong prec
2013 activ
OCH litiga
elating to
assigning
drafting to
ppeal
spite
cinct
ngs),
osed
ation.
EIU-
U fee
ction.
even
than
cinct
vities
ation.
their
g the
Ms.
48
Trice, who had no SEIU experience. She spent ~69 hours on permanent-injunction
activities. SEIU-Doc.120-3, PageID#6882-83.
The many hours on this stage of litigation were inappropriate. The State did
not oppose a correct location/wrong precinct permanent injunction following
appeal. SEIU-Doc.110, PageID#6709 (“As Defendants previously represented to
the Court, Defendants fully expected to be able to agree to convert the preliminary
injunction into a permanent injunction.”). The State’s failure to agree to the
precise language of Plaintiffs’ proposed filing did not justify re-litigation.
Consistent with the State’s position, the district court only felt a four-page order,
incorporating preliminary rulings, was necessary. SEIU-Doc.112, PageID#6718-
21.
The district court erred in allowing unreduced post-appeal billing. The
merits of the correct location/wrong precinct challenges were fully litigated at the
preliminary stage, and the State did not oppose permanent relief. Consequently,
there was no reason to think anything more than a short, unopposed motion for
permanent relief, incorporating past decisions, was necessary. After summarizing
the parties’ positions, the court stated that it was satisfied with counsel’s billing.
NEOCH-Doc.426/SEIU-Doc.140, PageID#7471-72. The court did not adequately
explain, however, why it was reasonable to bill ~100 hours for already-litigated,
unoppo
SEIU bi
T
Court sh
constitu
H
As deta
Plaintiff
giving
NEOCH
C
By their
NEOCH
attorney
twenty
hours, c
interven
NEOCH
sed relief.
illing.
These billin
hould not a
utional issu
9.
Hours for a
ailed abov
ffs requeste
relators th
H-Doc.261
Counsel hea
r own calc
H. NEOCH
ys) referen
block bill
counsel bil
ntion in th
H-Doc.393
And the c
ng practice
approve of
ues are litig
34BCounsel contemp
a limited,
ve, in mov
ed show-ca
he chance
, PageID#5
avily billed
culation, th
H-Doc.393
nce contem
s, ~90 hou
lled the St
he mandam
, PageID#
court did n
es are troub
f piling on
gated and t
overbillpt.
unsuccessf
ving to en
ause procee
e to comp
5817.
d the State
hey spent 5
3, PageID#
mpt. NEO
urs focus
ate ~90 ho
mus action
13819.
49
not address
bling not o
permanen
the State no
for tryin
ful contem
njoin the
edings. Th
ply with t
e for their c
532 hours o
#13819. A
CH-Doc.4
on contem
ours of ant
n, where th
the other
only here, b
nt-injunctio
o longer op
ng to hold
mpt request
2012 man
he district c
the injunc
contempt r
on the “mo
Approximat
407-8. Ev
mpt. Id. A
ticipatory w
the Secreta
80+ hours
but for futu
on fees afte
pposes reli
d nonpart
t are likew
ndamus ac
court denie
ction (whi
request (ag
otion to en
tely 130 h
en comple
And, even
work regar
ary was th
of post-ap
ure cases.
er the meri
ief.
ty relator
wise exces
ction, NEO
ed this requ
ich they
gainst relat
njoin” phas
hours (from
etely remo
n beyond t
rding pote
he respond
ppeal
The
its of
rs in
sive.
OCH
uest,
did).
tors).
se of
m ten
oving
these
ential
dent.
T
this bill
(e.g., ~
There w
Moreov
Court s
actions.
case law
against
T
The co
NEOCH
bolded
counsel
Doc.426
reasona
C
defenda
Counse
The above
ling, the co
~6 pages o
was no nee
ver, in ass
hould not
Cf. Binta
w “discou
other parti
The district
ourt accept
H-Doc.426
language
l’s charact
6/SEIU-Do
able for cou
10.
Counsel bi
ant class
l are again
contempt
ontempt re
of the mot
ed for 90+
essing the
forget tha
a, 710 F.3d
rages stick
ies).
t court ab
ted withou
/SEIU-Doc
of its ow
erization t
oc.140, Pa
unsel to spe
35BCounsel abandon
lled for th
of all me
n charging
hours, at a
quest was
tion to enj
hours on
e reasonab
at State De
d at 635 (h
king defen
used its d
ut qualific
c.140, Pag
wn decisi
that the co
ageID#747
end so man
should nned attemp
heir unnec
embers of
the State
50
a minimum
only a sm
njoin). NE
this subjec
leness of
efendants d
holding, in
ndant with
discretion b
cation that
geID#7474
on, NEOC
ontempt re
74. The c
ny hours o
not bill tpt to certif
cessary an
f Ohio’s e
for litigati
m, are unre
mall piece o
EOCH-Do
ct, which i
charging
did not con
n intervent
h the bill f
by not red
t counsel’
4-75. It ev
CH-Doc.26
equest was
court did n
on this issu
the State fy a class o
d abandon
eighty-eigh
ion agains
easonable.
of injunctio
c.246, Pag
involved b
the State
ntrol the tw
tion contex
for plainti
ducing con
’s billing
ven agreed—
61, PageID
s not deni
not explai
ue. It was n
100+ hoof separat
ned attemp
ht Boards
st other par
In contra
on proceed
geID#5628
asic standa
such fees,
wo legisla
xt, attorney
iffs’ litigat
ntempt bil
was justi
—ignoring
D#5817—
ied. NEO
in why it
not.
urs for tte defenda
pt to certi
of Electi
rties (the S
ast to
dings
8-34.
ards.
, the
ators’
y-fee
tion”
lling.
ified.
g the
—with
OCH-
was
their ants.
ify a
ions.
State
51
took no position). Cf. Binta, 710 F.3d at 635. SEIU Plaintiffs voluntarily
withdrew their certification attempt, moving to amend their complaint. Yet,
counsel billed ~115 hours for their failed attempt to certify a separate defendant
class, and their ultimate decision to amend. SEIU-Doc.131-6.
Counsel’s time was completely unnecessary. As early as June 27, 2012, the
district court questioned why—given time constraints and the Secretary’s
participation—such a class was necessary. Tr.6/27/12, NEOCH-Doc.329,
PageID#12259-12263; see, e.g., id., PageID#12262 (Q: “Aren’t [Board members]
duty-bound by state law to follow the directives of the secretary?”, A:“They are
duty-bound.”). Ohio law confirms that the Secretary has authority over Board
members. See, e.g., R.C. 3501.05(B) (detailing Secretary’s authority to direct
Board members). Nevertheless, SEIU Plaintiffs filed the motion to certify (two
days after the court’s questioning). And even though they eventually sought
(unopposed) to withdraw class pleadings, they took the time (during the same
period) to draft a separate reply brief. See SEIU-Doc.131-6.
Counsel’s certification attempt was wasted time, and the State should not be
charged for it. In holding that counsel’s hours were “not unreasonable”, the court
rested on a confusing comparison between Board members and the two legislators
that brought the Supreme Court mandamus action. See NEOCH-Doc.426/SEIU-
Doc.140, PageID#7472-73 (emphasis in original). This is apples and oranges.
Pursuan
making
superflu
Furtherm
Consent
Decree
F
NEOCH
motion
was dup
N
modific
alleged
Doc.288
filed a s
also re
provisio
Ohio vo
7 Ten of
nt to Ohio
their pa
uous. The
more, as S
t Decree,
had any be
11.
Finally, cou
H motion t
for prelim
plicative.
NEOCH P
cation of th
ongoing e
8. Two d
separate m
ested on e
onal ballot
oters.
f the twelv
o law, the
articipation
e Secretary
SEIU was
it is unc
earing on n
36BThe NEsubsume
unsel shou
to modify.
minary injun
Plaintiffs f
he Consen
equal prote
days later,
otion for p
equal pro
practices,
e SEIU att
Secretary
n in a s
y has no c
s about co
clear how
necessary S
EOCH moed by, the
uld not hav
The mot
nction in S
filed their
nt Decree—
ction and s
SEIU Pla
preliminary
tection an
and sough
orneys wer52
has direc
suit for
comparabl
onstitutiona
legislators
SEIU defen
otion to mSEIU pre
ve billed a
tion to mod
SEIU, and,
motion
—applying
substantive
aintiffs, rep
y injunction
nd substan
ht the same
re also NE
ct authority
election-re
le authorit
al requirem
s’ actions
ndants.
modify weliminary i
any hours,
dify was s
therefore,
to modify
g only to S
e due proc
presented
n. SEIU-D
ntive due
e injunctive
EOCH attor
ty over Bo
elated inj
ty over Oh
ments, no
regarding
as duplicinjunction
much less
subsumed b
, billing fo
y on June
SSN-4 vot
cess violati
by the sam
Doc.4. The
process
e relief, bu
rneys.
oard memb
unctive r
hio legisla
t the NEO
g the Con
cative of, n motion.
s 300+, for
by the bro
r both mot
e 20, see
ters—based
ons. NEO
me attorne
e SEIU mo
challenge
ut applied t
bers,
relief
ators.
OCH
nsent
and
r the
oader
tions
eking
d on
OCH-
eys,6F
7
otion
s to
to all
53
The district court granted the SEIU injunction (ultimately affirmed in part,
reversed in part). SEIU-Doc.67, PageID#5886-88. In light of SEIU relief, the
court indefinitely stayed the motion to modify. Id. Although counsel charged the
State hundreds of hours for researching and drafting the SEIU motion (see, e.g.,
SEIU-Doc.131-12, 131-22), they billed an additional 305.3 hours for the motion to
modify. NEOCH-Doc.393, PageID#13819. Notably, Alschuler-Berzon, the
primary SEIU firm, billed 212.6 hours for the motion to modify. NEOCH-
Doc.393-3, PageID#13919.
The overlap of the two motions is undeniable. As the district court
recognized, “the requested relief in the Motion to Modify is encompassed with the
Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction” and “the
basis for relief in the Motion to Modify depends on the determination of the
constitutional violations at issue in the SEIU case.” SEIU-Doc.67, PageID#5831;
see also Tr.7/30/12, NEOCH-Doc.330, PagedID#12287 (Court: “They’re almost
one in the same.”). NEOCH Plaintiffs admitted that the motions sought “the same
injunctive relief” and requested that “these motions be heard together, so that the
constitutionality or unconstitutionality of Ohio’s provisional ballot system may be
adjudicated”. NEOCH-Doc.288, PageID#6910.
Given the SEIU preliminary injunction motion, the NEOCH motion to
modify was entirely unnecessary. Compared to the SEIU motion, the NEOCH
54
motion (1) sought the same relief, (2) was based on the same constitutional
theories, and (3) applied to a narrower class. The result of the SEIU motion was
inevitably going to determine the NEOCH motion. If, as happened, the court
granted the SEIU motion—seeking the same relief, applied to a broader universe—
the NEOCH motion would automatically be moot. If the SEIU motion failed, the
NEOCH motion—relying on the same constitutional challenges—would also fail.
There was no reason to file both.
Allowing complete recovery for 300+ hours on the NEOCH motion was
abuse of discretion. The district court held that NEOCH Plaintiffs did not have to
be fully successful on the motion (rendered moot) and that the work was
“reasonably undertaken” at the time performed. NEOCH-Doc.426/SEIU-Doc.140,
PageID#7473-74. This is incorrect. At the time these attorneys performed this
work, they knew they would be filing an SEIU motion that would subsume the
NEOCH motion. Cf. NEOCH-Doc.288, PageID#6910 (recognizing motions
requested same relief and should be heard together). Reasonable attorneys would
understand that filing the narrower NEOCH motion would be unnecessary given
the broader SEIU motion.
Seeking fees for both motions is a subtle form of double billing. It was
redundant, and objectively unreasonable, for the same attorneys to be working and
billing, during the same period, on the two overlapping motions.
55
C. 23BThis Court should mandate an across-the-board hour reduction; at a minimum, a more thorough review and a better explanation are necessary.
These hours are too much; counsel’s billing practices are facially
unreasonable and require reduction.
“This Court has recognized the propriety of an across the board reduction
based on excessive or duplicative hours.” Auto Alliance Intern., Inc. v. U.S.
Customs Serv., 155 F.App’x 226, 228 (6th Cir. 2005). As the Court has explained,
duplication “is difficult to measure.” Coulter, 805 F.2d at 152. Accordingly,
“[w]here duplication of effort is a serious problem, as in this case, the District
Court may have to make across the board reductions by reducing certain items by a
percentage figure”. Id. Other appellate courts have even supported complete
denials of awards based on “inexcusable reaching for fees”. Lewis v. Kendrick,
944 F.2d 949, 958 (1st Cir. 1991) (“[T]here must come a point where what is
sought is plainly improper.”).
Even under abuse of discretion, counsel’s hours necessitate across-the-board
reduction. See Coulter, 805 F.2d at 152 (indicating that, at times, courts will “have
to make across the board reductions”) (emphasis added); Barnes, 168 F.3d at 431
(“Although we sometimes remand fee determination issues to the district court for
further consideration, we have discretion to decide such issues at the appellate
level.”). Although counsel seek rates of experienced attorneys, their hours do not
56
reflect this experience. Instead, billing demonstrates that counsel consistently
overstaffed and overlawyered litigation. Counsel’s continuous practices of
overbilling (and block billing) make it impossible to separate the wheat from the
chaff. This Court, therefore, should mandate significant across-the-board
reduction. The State requested 50% reduction below and it continues to maintain
such reduction is necessary. The State also requests corresponding reduction of
expenses (including for out-of-state travel).
At the very least, the Court should remand for more thorough review and
better explanation. Although fee awards are discretionary, “[i]t is essential that the
judge provide a reasonably specific explanation for all aspects of a fee
determination”. Perdue, 559 U.S. at 558 (emphasis added); see also Barnes 168
F.3d at 428 (“While the court may rely on affidavits and its own knowledge and
expertise, where specific objections are made a court’s order should consist of
more than conclusory statements”).
The district court failed to adequately explain its hour award, especially as to
overall hours for litigation tasks. It would be difficult to tell, solely from reading
the decision, exactly what the State argued below. Significant categories—e.g.,
hours billed for attendance, conferencing, researching, drafting, and discovery—
received cursory attention. See NEOCH-Doc.426/SEIU-Doc.140, PageID#7466-
67. Other topics—e.g., billing five San Francisco trips, ~150 hours for an unfiled
57
proposal—received no attention. The State presented well-developed challenges to
counsel’s hours. These challenges should not have been reduced to a string of
adjectives, and cast aside as “invok[ing] a phantom specter.” Id., PageID#7466.
And the court’s suggestion that the State raised only “conclusory allegations” of
excessive hours, id., was clear error of judgment.
It was counsel’s burden to demonstrate their 6000+ hours were reasonable.
The total hours and attorney numbers should have sparked healthy skepticism.
Counsel should not have been able to rest on self-serving declarations of
reasonableness and billing judgment. See Barnes, 168 F.3d at 430 (“[G]iving
weight to sworn statements of fee applicants does not mean accepting those
statements as gospel. Courts should not delegate their duty to examine and judge
the reasonableness of fee applications to the applicants.”). Given the many hours
at stake, the district court’s formulaic review of counsel’s declarations and billing,
NEOCH-Doc.426/SEIU-Doc.140, PageID#7464-65, without specific analysis of
hours, warrants reversal.
II. 15BThe district court abused its discretion by awarding too high of rates to too many lawyers.
Unfortunately, hours were not the only excess the court allowed. The State
is being hit on two fronts. The court awarded the following rates:
Firm Attorney Rate Alshuler-Berzon Berzon $600
58
Firm Attorney Rate Weissglass $550 Leyton $475 Leonard $450 Thoreen $450 Chisholm $450 Cincotta $320 Reddy $305 Murray $290 Trice $240 Law Clerks $150 Paralegals $135 Chandra Chandra $425 Sletvold $350 Gupta $300 Paralegals $125 McTigue-McGinnis McTigue $450 Columbo $360 McGinnis $360 Porter-Wright Trafford $445 Gentry $350 Hughes $335 Gallon $335 Miller $275 Klaus $215 Law Clerks $125 Paralegals $125 Hunter-Harshman Hunter $450 Harshman $300 Advancement Pro. Judge $375
NEOCH-Doc.426/SEIU-Doc.140, PageID#7485.
Crunching the numbers, the average rate awarded to the twenty-five
attorneys was $378/hour. These rates are an abuse of discretion.
59
A. 24BA reasonable rate is a rate sufficient to encourage capable representation in the local market; it is not what a precise attorney might charge a well-to-do client.
The governing standard is not complicated: “[i]n short, a reasonable hourly
rate should be sufficient to encourage competent lawyers in the relevant
community to undertake legal representation.” Lamar Advertising Co. v. Charter
Tp. of Van Buren, 178 F.App’x 498, 501-02 (6th Cir. 2006). The relevant
community is “the venue of the court of record.” Gonter, 510 F.3d at 618 (internal
quotations omitted); see also S.D. Ohio Civ. R. 82.1 (listing Southern Ohio
counties).
This standard contains an inherent limit. “Hourly rates should not exceed
what is necessary to encourage competent lawyers within the relevant community
to undertake legal representation.” Hadix v. Johnson, 65 F.3d 532, 535-36 (6th
Cir. 1995) (emphasis added). The Hadix Court held that a district court abused its
discretion—in its rate to out-of-town counsel—by violating this tenet. Id.
Although the Court acknowledged the case “present[ed] unusually complex legal
and factual issues”, it still found that local counsel would have been available at “a
significantly lower rate” than the court assigned. Id. It concluded that “a rate
which apparently falls toward the high end of rates charged by partners in large
Detroit law firms” was improper. Id.
60
In determining rates, courts look to many factors including “part[ies’]
submissions, awards in analogous cases, state bar association guidelines, and its
own knowledge and experience in handling similar fee requests.” Van Horn v.
Nationwide Prop. & Cas. Ins. Co., 436 F.App’x 496, 499 (6th Cir. 2011).
“[C]ourt[s] should consider the hourly rates prevailing in the community for
similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Oakley v. City of Memphis, 566 F.App’x 425, 432 (6th Cir. 2014)
(internal quotations omitted). But the ultimate standard does not change; the
controlling question remains what rates are necessary to attract competent counsel,
not the exact counsel involved. “The appropriate rate, therefore, is not necessarily
the exact value sought by a particular firm, but is rather the market rate in the
venue sufficient to encourage competent representation.” Gonter, 510 F.3d at 618.
Coulter is helpful. It cogently explained that reasonable rates “are different
from the prices charged to well-to-do clients by the most noted lawyers and
renowned firms in a region.” 805 F.2d at 149. Accordingly, “a renowned lawyer
who customarily receives $250 an hour in a field in which competent and
experienced lawyers in the region normally receive $85 an hour should be
compensated at the lower rate.” Id. (emphasis added).
B
T
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eed what wio.
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U.S. at 551
ous cases.
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1-52.
62
But from a review of prior Ohio election-related awards, it would have been
hard, if not impossible, to predict what happened here. Review of recent election-
related awards shows that the current award is not like the rest:
Case # Attorneys Mean Rate7F
8 # 300+ Rates
# 400+ Rates
Current award (combined) 25 $378 21 10 Current NEOCH award 23 $384 20 10 Current SEIU award 12 $400 10 6 Ohio Right to Life v. OEC, No. 2:08-cv-492, 2013 WL 5728255, at *6-7 (S.D. Ohio Oct. 23, 2013) adopted by 2014 WL 234677 (S.D. Ohio Jan. 22, 2014) vacated by 590 F.App’x 597 (6th Cir. 2014) (affirming rates) (“ORTL”)
2 $250 0 0
Hunter v. Hamilton Cnty. BOE, No. 1:10cv820, 2013 WL 5467751, at *17 (S.D. Ohio Sept. 30, 2013)
13 $317 8 3
Lib. Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL 4833033, at *5 (S.D. Ohio Sept. 11, 2013) (“LPO”)
1 $300 1 0
Mooneyhan v. Husted, No. 3:12–cv–379, 2013 WL 1326506 (S.D. Ohio Mar. 29, 2013) 8F
9
4 $228 0 0
Harkless v. Husted, No. 1:06-cv-2284, 2011 WL 2149179, at *20 (N.D. Ohio Mar. 31, 2011) adopted by 2011 WL 2149138 (N.D. Ohio May 31, 2011)
21 $193 6 0
NEOCH v. Brunner, No. 2:06–CV–896, 2010 WL 4939946, at *7 (S.D. Ohio
6 $273 2 1
8 In some of the following awards, a single attorney was awarded multiple rates. In such cases the State used the highest rate to that attorney in calculating the mean. 9 Mooneyhan does not detail the precise awarded rates. Information on rates requested/awarded was gathered from Mooneyhan-Doc.19-1–19-4, PageID#120-31.
63
Case # Attorneys Mean Rate7F
8 # 300+ Rates
# 400+ Rates
Nov. 30, 2010) (NEOCH-Doc. 234); NEOCH-Doc.213-15 (detailing all rates requested/awarded) Moore v. Brunner, Nos. 2:08-cv-224, 2:08-cv-555, 2010 WL 317017, at *3 (S.D. Ohio Jan. 25, 2010)
2 $250 0 0
NEOCH v. Brunner, 652 F.Supp.2d 871, 885 (S.D. Ohio 2009) (NEOCH-Doc. 203); NEOCH-Docs.96-1–96-3, 177-82 (detailing all rates requested/awarded)
26 $217 3 0
Ray v. Franklin Cnty. BOE, No. 2:08–CV–1086, 2009 WL 1542737, at *5 (S.D. Ohio June 2, 2009) 9F
10
7 $247 1 0
Project Vote v. Blackwell, No. 1:06–CV–1628, 2009 WL 917737, at *17 (N.D. Ohio Mar. 31, 2009)
13 $250 5 3
As the chart displays, prior awards show present rates are excessive. Indeed,
recent cases reflect a reasonable rate for experienced attorneys in Ohio election
cases is somewhere between $250-$300/hour. In Moore, the Southern District
rejected $400/$450 rates for attorneys with over twenty years of experience. 2010
WL 317017, at *3. Because these rates exceeded competent representation in the
local market, the court concluded that “the obligation to pay such rates may not be
shifted to Defendant.” Id. The court instead held that “an hourly rate of $250 is
adequate to attract competent counsel within this Court’s venue while avoiding
producing a windfall for attorneys.” Id.
10 These Ray figures presume that a $138/hour rate was for a non-attorney.
64
In 2013, the Southern District again rejected rates of ~$450/hour concluding
that $250/hour was reasonable. ORTL, 2013 WL 5728255, at *6 (adopted with
modification by 2014 WL 234677). The Magistrate Judge recommended that
“$250 was the prevailing market rate within this jurisdiction during the relevant
time frame for experienced attorneys litigating election-law actions.” Id.
(emphasis added). This Court ultimately affirmed $250/hour rates, crediting
reliance on “the thorough analysis set forth in Moore”. 590 F.App’x at 602.
Also in 2013, the same district court involved here, reduced the rate of an
attorney (with over twenty years of experience) from $350 to $300 (for 2011
work). LPO, 2013 WL 4833033, at *5. The court noted that the case involved
“inherently complex” voting litigation and the “skill and standing of counsel” was
“substantial”. Id. The court, however, reduced the requested rate to $300/hour:
“A rate of $300 appears to be sufficient to motivate skillful attorneys to undertake
representation in § 1983 cases, but not excessive so that it would constitute a
windfall.” Id. (emphasis added).
Even looking to other “attorney team” cases, past election-related awards
pale in comparison. In Hunter—an award at the top of the spectrum on which the
district court heavily relied—the average rate was still $67/hour below NEOCH
and $83/hour below SEIU. See 2013 WL 5467751, at *16-18. Only three Hunter
attorneys received $400/hour, and no attorney received above $410/hour, id.; the
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66
competent counsel in this market. Ms. Gentry is a perfect example. By any
definition, she represents “competent” counsel. She graduated from Yale Law
School in 1995, was a federal clerk, and is a partner at a prominent Columbus firm.
NEOCH-Doc.393-7, PageID#13951-52. She asked for, and received, a rate of
$350/hour, which was her actual rate in 2012. Id., PageID#13954.
Despite Ms. Gentry’s clear qualifications, reflective of competent lead
counsel, the award turns her into a middling attorney. Her rate is $28/hour below
average, with thirteen attorneys receiving greater rates. NEOCH-Doc.426/SEIU-
Doc.140, PageID#7485. Notably, Ms. Sletvold—ten less years of experience—
received the same rate. The court permitted seven attorneys with less experience
to bill higher rates than Ms. Gentry. It awarded four such attorneys (Leyton,
Leonard, Chisholm, Thoreen) $100/hour more than Ms. Gentry. Mr. Weisglass—
one more year of experience—received $200/hour more.
These comparisons show unreasonableness. If $350/hour was enough to
entice Ms. Gentry, it was more than enough to entice capable representation; the
court committed reversible error in awarding so many (a baker’s dozen) higher
rates.
A 2013 Ohio State Bar Association survey also indicates the awarded rates
are too high. See Gonter, 510 F.3d at 619 (approving use of bar survey for
paralegal rates). This survey set forth billing rates of ~1000 Ohio private
67
practitioners. NEOCH-Doc.394-10, PageID#14380. Although the survey did not
purport to provide exact averages for Ohio billing rates, its objective was to
provide “useful and usable information” including “[p]revailing hourly billing rates
for attorneys”. Id., PageID#14345.
Survey results were substantially below awarded rates. The average rate for
~1000 lawyers was $233/hour. Id., PageID#14380. Every Plaintiffs’ attorney
except for Mr. Klaus (2011 graduate) exceeded this rate. The survey also provided
billing rates by years in practice. Id. All of the twenty-five attorneys were
awarded rates above the 75th percentile by their years in practice. Id.; see also
NEOCH-Doc.407/SEIU-Doc.131, PageID#7086-88 (chart comparison of rate
requests and survey data). Eight attorneys (Berzon, Weisglass, Leyton, Leonard,
Chisholm, Thoreen, Sletvold, Murray) were awarded rates above the 95th
percentile by their years in practice.
Contrary to the district court’s suggestion, survey results for civil-rights
lawyers also reflect that the awarded rates went beyond what was necessary. The
record specifically contained results—although for a much smaller thirty-lawyer
sample—for attorneys identifying civil rights as their first, second, or third field.
NEOCH-Doc.349-9, PageID#14341. The average hourly rate of these attorneys
was $331, and the median rate was $305. Id. In these cases, the average rates
68
(NEOCH: $384, SEIU: $400) and median rates (NEOCH: $360, SEIU: $413) are
much higher.
* * *
Given rates in prior cases, as well as other benchmarks, the district court
abused its discretion by awarding so many attorneys such high rates. Although the
court purported to rely on past decisions like Hunter and LPO (NEOCH-
Doc.426/SEIU-Doc.140, PageID#7484-85), its awarded rates are considerably
more. These rates suggest that the court focused too much on what these specific
attorneys might be able to charge a well-to-do private client, and not enough on
what was necessary to attract capable representation in the locality.
Two final points. First, the rates for these twenty-five attorneys should
reflect appropriate staffing. When cases are this heavily staffed, not everyone gets
to bill like a partner; some attorneys (even if overqualified) should take on the
roles, and rates, of junior lawyers. See Evans v. Port Authority of New York &
New Jersey, 273 F.3d 346, 362 (3rd Cir. 2001) (suggesting for tasks requiring two
attorneys, one should receive an associate rate). In legal-team cases like Hunter,
Harkless, and Project Vote, many attorneys received rates of $250/hour or below;
in Harkless and Project Vote, many received below $200/hour.
But in these cases, staffing, and billing, is partner heavy:
x Thirteen attorneys submit 100+ hours (Berzon, Leyton, Reddy, Leonard, Cincotta, Chisholm, Chandra, Sletvold, McTigue,
69
Harshman, Hunter, Gupta, Gentry), NEOCH-Doc.428-1–428-2/SEIU-Doc.142-1–142-2;
x Billing declarations describe nine of the thirteen (Berzon, Leyton, Leonard, Chisholm, Chandra, McTigue, Harshman, Hunter, Gentry) as partners;
x Four (Berzon, Chandra, McTigue, Hunter) are founding/managing partners;
x Seven of the nine partners received rates of $425/hour or more.
To the extent such large teams of attorneys were actually necessary, counsel used a
disproportionate number of senior attorneys; they should not receive so many
partner-esque rates.
Second, the rates for Alschuler-Berzon attorneys are particularly extreme.
Plaintiffs did not demonstrate that San Francisco attorneys were necessary, and
they should not be able to place extra fees (via out-of-town rates) on the State. The
two markets are obviously different. For example, U.S. Census Bureau data
estimates that 2008-2012 median earning for legal occupations in Columbus was
$50,667. NEOCH-Doc.407-23/SEIU-Doc.131-23, PageID#7207. The San
Francisco estimate was $105,007. NEOCH-Doc.407-24/SEIU-Doc.131-24,
PageID#7211.
The district court’s limited reduction of these lawyers’ rates was not enough.
Even with reduction, the court allowed the nine Alschuler-Berzon attorneys to bill
an average of $432/hour. Mr. Berzon was the highest at $600/hour. But rates to
Ms. Leonard and Ms. Chisholm might be the biggest problem. These two
70
attorneys—both 2001 graduates, and the two heaviest billers—received $450/hour
rates far above their ~10 years of experience at the relevant time.
In sum, the rates for these twenty-five attorneys exceeded what was
necessary to attract competent counsel in Southern Ohio. Given staffing, all rates
should receive dramatic cuts. See NEOCH-Doc.407/SEIU-Doc.131,
PageID#7095-97 (submitting reasonable alternatives). At a minimum, rates for
less experienced attorneys (post-2000 graduates) should be capped at $300/hour,
and more experienced attorneys at $400/hour.
8BCONCLUSION
For the above reasons, the Court should reverse the district court’s fee award
and mandate substantial reductions of hours and rates. Given the fees at stake, and
everyone’s interests in avoiding further fee litigation, the State respectfully
requests that the Court offer detailed guidance as to reductions.
In the alternative, the State requests that the Court reverse and remand for
more thorough review and better explanation.
71
Respectfully submitted, MICHAEL DEWINE Ohio Attorney General s/ Zachery P. Keller ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 [email protected] [email protected] Counsel for Defendant-Appellant/Cross-Appellee Jon Husted, Secretary of State and State of Ohio
72
9BCERTIFICATE OF COMPLIANCE
I hereby certify that this brief contains 13,941 words, as determined by the
word processing program used to generate this document. This count includes
headings, footnotes and quotations but does not include table of contents, table of
citations, statement regarding oral argument, addendums or certifications of
counsel. Fed. R. App. Pro. 32(a)(7).
s/ Zachery P. Keller ZACHERY P. KELLER (0086930)
CERTIFICATE OF SERVICE
I hereby certify that on July 15, 2015, the foregoing was filed electronically.
Notice of this filing will be sent to all parties for whom counsel has entered an
appearance by operation of the Court’s electronic filing system. Parties may
access this filing through the Court’s system. I further certify that a copy of the
foregoing has been served by e-mail or facsimile upon all parties for whom counsel
has not yet entered an appearance and upon all counsel who have not entered their
appearance via the electronic system.
s/Zachery P. Keller ZACHERY P. KELLER (0086930) Assistant Attorney General
73
10BDESIGNATION OF DISTRICT COURT RECORD
Defendants-Appellees, pursuant to Sixth Circuit Rule 30(g), designate the
following filings from the district court’s electronic records:
NEOCH v. Husted, 2:06-cv-896
Date Filed Doc.No.; PageID# Document Description
10/24/06 2; 2-53 Complaint
1/4/08 96–96-3; 1652-1700 Pls.’ Mot. Att’y Fees & Related Docs.
1/20/09 176–78; 4664-4711 Pls.’ Supp. Fee Br. & Related Docs.
1/20/09 179–82; 4712-4840 Pls.’ 2nd Mot. Att’y Fees & Related Docs.
7/28/09 203; 4930-4952 Opinion & Order, re: fees
4/19/10 210; 4970-82 Consent Decree
6/3/10 212–15; 4986-5064 Pls.’ 3rd Mot. Att’y Fees & Related Docs.
11/30/10 234; 5219-35 Opinion & Order, re: fees
5/8/12 246–246-4; 5612-58 Pls.’ Mot. Enjoin & Related Docs.
5/10/12 257;5750-66 Pls.’ Reply Mot. Enjoin
5/11/12 258; 5791-95 Relators’ Notice of Compliance
5/11/12 261; 5801-17 Opinion & Order, re: Mot. Enjoin
5/15/12 262; 5818 Order Setting Tel. Status Conf.
5/30/12 269; 5832-42 SOS’s Memo Consent Decree validity
5/30/12 270; 5843-54 Ohio’s Br. Consent Decree validity
5/30/12 271–272-23, 274–277-12; 5855-6028, 6136-6769
Pls.’ Memo Consent Decree validity & Related Decls./Docs.
6/6/12 279; 6794-6805 Ohio’s Reply Consent Decree validity
6/6/12 280; 6806-13 SOS’s Reply Consent Decree validity
74
NEOCH v. Husted, 2:06-cv-896
Date Filed Doc.No.; PageID# Document Description
6/6/12 281; 6814-31 Pls.’ Reply Consent Decree validity
6/18/12 285; 6850-72 Tr. 5/9/12 Proceeding
6/18/12 286; 6873-6902 Tr. 5/10/12 Proceeding
6/20/12 288–297-30; 6906-10329
Pls.’ Mot. Modify Consent Decree & Related Decls./Docs.
6/26/12 300; 10337-42 Pls.’ Not. Related Case
6/26/12 301; 10343-48 Pls.’ Am. Not. Related Case
7/6/12 306; 10359-74 State’s Joint Opp’n Mot. Modify Consent Decree
7/9/12 307; 10382-10418 Opinion & Order, re: Consent Decree validity
7/13/12 310–318-48; 10423-12081,
Pls.’ Reply Mot. Modify & Related Decls./Docs.
7/20/12 320–322-15; 12083-12171
Pls.’ Notice Filing Supp. Decls., re: Mot. Modify & Related Decls./Docs.
7/27/12 325–328; 12179-87 Pls.’ Notice Filing Add’tl Decls., re: Mot. Modify & Related Decls./Docs.
8/7/12 329; 12188-12266 Tr. 6/27/12 Proceeding
8/14/12 330; 12267-12361 Tr. 7/30/12 Proceeding
6/10/13 362–362-4; 12925-76 Pls.’ Mot. Extend Consent Decree & Related Decl./Docs.
6/24/13 371–371-2; 13481-13506
State’s Mem. Contra Mot. Extend Consent Decree and Related Docs.
6/28/13 373–373-3; 13551-80 Pls.’ Reply Mot. Extend Consent Decree & Related Docs./Decl.
7/11/13 378–378-4;13611-21 Notice of Filing Decls./Exs. re: Mot. Extend Consent Decree & Related Decl./Docs.
75
NEOCH v. Husted, 2:06-cv-896
Date Filed Doc.No.; PageID# Document Description
7/26/13 382; 13629-61 Tr. 7/12/13 Proceeding
8/5/13 383; 13662-82 Opinion & Order, re: Consent Decree extension
10/21/13 388–388-11; 13692-13776
Pls.’ Mot. Att’y Fees (2013 Consent Decree Extension) & Related Decls./Docs.
11/26/13 390; 13779-97 State’s Mem. Opp’n Mot. Att’y Fees (2013 Consent Decree Extension)
12/12/13 393–393-19; 13802-14094
Pls.’ Mot. Att’y Fees (2012 litigation) & Related Decls./Docs.
12/20/13 394–394-25; 14095-14639
Pls.’ Reply Mot. Att’y Fees (2013 Consent Decree Extension) & Related Decls./Docs.
2/10/14 407–407-24; 14677-14881
State’s Combined Memo Opp’n Mot. Att’y Fees (2012 litigation) & Related Exs.
3/10/14 409–417-2; 14886-15183
Pls.’ Joint Reply Mot. Att’y Fees (2012 litigation) & Related Decls./Docs.
9/29/14 426, 15220-50 Opinion & Order re: Att’y Fees (current appeal)
10/28/14 427, 15251-52 State’s Notice of Appeal
10/29/14 428–428-2; 15253-68 Pls.’ Bill of Costs & Related Docs.
11/7/14 430; 15323-26 Pls.’ Notice of Cross Appeal
11/25/14 433; 15522-41 Tr. 5/16/12 Proceeding
2/17/15 444; 15738-47 Order re: Bill of Costs
3/19/15 445; 15748-49 State’s Supp. Notice of Appeal
3/31/15 446; 15750-52 Pls.’ Supp. Notice of Cross Appeal
76
SEIU v. Husted, 2:12-cv-562
Date Filed Doc.No., PageID# Document
6/22/12 1; 1-37 Complaint
6/22/12 2; 39-44 Pls.’ Notice of Related Cases
6/22/12 4–4-7, 7–13; 47-156, 170-2208
Pls.’ Mot. Prel. Inj. & Related Decls./Docs.
6/29/12 24; 3243-3329 Decl. re: Mot. Prel. Inj.
6/29/12 25; 3525-48 Pls.’ Mot. Cert. Def. Class
7/6/12 28; 3683-3711 SOS’s Memo. Opp’n Mot. Prel. Inj.
7/13/12 30, 50; 3714-16, 5549-51
SOS’s Resp. Mot. Cert. Def. Class
7/13/12 31, 39, 46-47; 3717-25, 4225-27, 5457-5496
BOE Members’ Opp’n Mot. Cert. Def. Class
7/13/12 33–35, 37–38-48, 41–41-48, 44–45-1, 48–48-3; 3768-3832, 3835-4224, 4230-5433, 5438-5456, 5498-5544
Pls.’ Reply Mot. Prel. Inj. & Related Decls./Docs.
7/20/12 52–53-4, 55–55-15; 5553-91, 5594-5643
Notice Filing Supp. Decls. & Related Decl./Docs.
7/20/12 56–56-1; 5644-54 Pls.’ Notice Filing Revised Proposed Order & Related Doc.
7/20/12 57–57-2, 5655-5706 Pls.’ Mot. 2nd Am. Compl. & Related Docs.
7/20/12 58; 5707-26 Pls. Reply re: Mot. Cert. Def. Class
7/23/12 62; 5735-36 Order, re: 2nd Am. Compl.
8/27/12 67; 5828-88 Opinion & Order, re: Pre. Inj.
7/1/13 107–108-1; 6491- Pls.’ Mot. Perm. Inj. & Related Decl./Docs.
77
SEIU v. Husted, 2:12-cv-562
Date Filed Doc.No., PageID# Document
6704
7/3/13 110–110-1; 6708-12 State’s Resp. Mot. Perm. Inj. & Related Doc.
7/5/13 111; 6713-17 Pls.’ Reply Mot. Perm. Inj.
7/9/13 112; 6718-21 Order, re: Perm. Inj.
12/12/13 120–120-14; 6771-6979
Pls.’ Mot. Att’y Fees & Related Decls./Docs.
2/10/14 131–131-24; 7010-7214
State’s Combined Memo Opp’n Mot. Att’y Fees & Related Exs.
3/11/14 132–138-2; 7215-7452
Pls.’ Joint Reply Mot. Att’y Fees & Related Decls./Docs.
9/29/14 140; 7458-88 Opinion & Order re: Att’y Fees (current appeal)
10/28/14 141; 7489-90 State’s Notice of Appeal
10/29/14 142–142-2; 7491-7506
Pls.’ Bill of Costs & Related Docs.
11/7/14 143; 7507-10 Pls.’ Notice of Cross Appeal
2/17/15 147; 7687-96 Order re: Bill of Costs
3/19/15 148; 7697-98 State’s Supp. Notice of Appeal
3/31/15 149; 7699-7702 Pls.’ Supp. Notice of Cross Appeal
s/Zachery P. Keller ZACHERY P. KELLER (0086930) Assistant Attorney General
General Information
Court United States Court of Appeals for the Sixth Circuit; UnitedStates Court of Appeals for the Sixth Circuit
Federal Nature of Suit Civil Rights - Voting[3441]
Docket Number 15-03380
The Northeast Ohio Coalition, et al v. Jon Husted, et al, Docket No. 15-03380 (6th Cir. Apr 09, 2015), Court Docket
© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 88