In Toussie , the issue turned on a lawyer's duties and responsibilities when entering and recording time charges, and how will courts assess the reasonableness of legal fee requests. This decision from Judge Joanna Seybert of the U.S. District Court for the Eastern District of New York, assessing the entitlement to attorney fees pursuant to 42 U.S.C. §1988, was the final chapter in a decade-long litigation saga arising out of a series of alleged constitutional and tort violations by defendant Suffolk County.
The plaintiffs alleged that their constitutional rights were violated when the county repeatedly denied them the opportunity to purchase parcels of real estate at county surplus auctions. The plaintiffs sought an order of specific performance directing the county to convey the real estate parcels and an award of damages totaling more than $35 million. After a two-week trialwhich followed years of discovery-related litigation, protracted and unsuccessful settlement negotiations, and dispositive motion practicethe jury gave the plaintiffs a Pyrrhic victory, in the form of a $12,500 verdict.
After trial, the plaintiffs moved for attorney fees pursuant to 42 U.S.C. §1988(b) in the amount of $2.8 million. In support of the fee claim, the plaintiffs argued that they satisfied the criterion for reimbursement of attorney fees as they were a "prevailing party" in the litigation. In response, the county argued that any award of attorney fees would be unreasonable and unjust because: (1) the plaintiff's recovery was de minimis; and (2) the request for fees was "so unreasonable and gross[ly] excessive" that it could not have been made in good faith.
As an initial matter, the court acknowledged that the county's de minimis recovery argument presented a close question. However, since the plaintiffs recovered more than mere nominal damages, and the jury verdict would likely deter similar due process violations by the county in the future, the plaintiffs' success was not so trivial that the only reasonable fee would be no fee at all.
Notwithstanding this threshold determination, the court flatly rejected the plaintiffs' request for attorney fees, on the ground that the application was so outrageously excessive and unreasonable that it could not possibly have been made in good faith. In so holding, the court identified seven egregious shortcomings in the lawyers' fee requests that justified the outright denial of any fee award.
First, the court observed that the plaintiffs' lawyers sought attorney fees for claims on which the plaintiffs did not prevail. The court said that these fee requests "shock[ed] the conscience," given that counsel affirmatively represented that unrelated fees could be excluded. The court found that the fee claims for unsuccessful services could not have been included by mistake.
Second, the court found that the plaintiffs' lawyers failed to maintain billing records in a manner that would enable the court to distinguish among their claims. The court noted that the lawyers' bills were replete with vague and generic entries (such as "research," "summary judgment briefing," and "trial prep"), which prevented the court from being able to differentiate and identify the claims that were being worked on in each time entry.
Third, the court held that the plaintiffs' lawyers failed to segregate their hours spent traveling. More egregiously, the lawyers sought full compensation for all travel expenses, despite the fact that the court had previously ordered that only half of travel time would be recoverable. Again, the court found that the lawyers' request for complete travel reimbursement appeared to have been purposeful and in bad faith.
Fourth, the court determined that the plaintiffs' lawyers sought reimbursement of attorney fees at rates that were excessive and unreasonable, and disproportionate to the rates being awarded in the jurisdiction. Specifically, while the lawyers sought an award of fees based on hourly rates ranging from $375 to $905 for counsel and $250 for a paralegal, the range of reimbursement for attorney fees in the jurisdiction was generally between $250 and $450 per hour. The court noted that the lawyers failed to provide the requisite evidence that their rates were in line with those prevailing in the community for similar services by lawyers with reasonably comparable skill, experience and reputation.
Fifth, the court observed that the plaintiffs' lawyers sought full reimbursement for billing entries that contained tasks that were redacted and excluded as unrelated to the due process claims. In other words, the lawyers redacted certain unrelated tasks from block billing entries, and yet they sought complete reimbursement for the full amount of time corresponding to the entries.