A recent Law 360 story by Ryan Boysen, “Gibson Dunn Fees Halved in NY Eviction Law Dispute”, reports that attorneys from Gibson Dunn & Crutcher LLP can recover $385,000 in fees for successfully blocking a pandemic-era anti-eviction law on behalf of New York landlords, after a federal judge rejected arguments that they should not be paid at all, but found their initial request of $735,000 "unreasonably excessive."

In a 26-page ruling, U.S. District Judge Gary R. Brown said the Gibson Dunn team in question deserves credit for four months of frenzied work that finally led the U.S. Supreme Court to enjoin New York's COVID-19 Emergency Eviction and Foreclosure Prevention Act, or CEEFPA, in August 2021 — even though a new, nearly identical law was then passed shortly thereafter.

Judge Brown slashed the initial $735,000 fee request nearly in half after finding the 10-attorney team was too big, too "top-heavy" and billed too many hours, some of them at too-high hourly rates.  That decision came even though the Gibson Dunn attorneys had argued the $735,000 figure already reflected "significantly discounted" rates and some pro bono hours for which they did not bill at all.  "Upon review of the billing records, the court … finds that the number of hours expended by Gibson Dunn on this litigation to be unreasonably excessive for several reasons," Judge Brown said.

In civil rights cases the "prevailing party" is able to seek legal fees from their opponent, on the grounds that when a plaintiff "succeeds in remedying a civil rights violation," the benefits of doing so inure to the rest of society as well, according to the ruling.  Judge Marks, the defendant in the landlords' initial lawsuit, had argued that the Gibson Dunn team should not receive any fees because its efforts only resulted in enjoining a law that had been set to lapse just days later.

"The stark truth is that plaintiffs failed to recover a judgment against [Marks] at all, rendering this fee application null," Judge Marks said in a brief opposing Gibson Dunn's fee request.  Judge Brown said that analysis was not quite on the money, however.  Even if a party receives only a stay or preliminary injunction, and never obtains a final judgment in its favor, it can still be considered a "prevailing party" if the court ruled in its favor on the merits, the ruling said.

"Moreover, 'a party prevails under [Section 1988 of the Federal Rules of Civil Procedure] where it obtains a preliminary injunction against enforcement of a law that is later amended or repealed,'" Judge Brown said, quoting the 2021 ruling in HomeAway.com Inc. v. City of New York.  Nonetheless, Judge Brown declined to award the Gibson Dunn team the entirety of the fees it asked for.

His reductions began with the hourly rates sought by the Gibson Dunn team.  Randy M. Mastro and Akiva Shapiro billed $550 each per hour; senior associates Jessica C, Benvenisty and William J. Moccia billed $375; midlevel associates Erich A. Bruhn, Lauren K. Myers and Seton Hartnett O'Brien $287.50; and junior associates Lavi M. Ben Dor, Bina Nayee and Maxwell A. Peck $200.  These are the rates Gibson Dunn said had already been "significantly discounted" from the firm's "customary rates," the ruling said.

Judge Brown gave Mastro his $550 an hour rate given his widely acknowledged status as a towering figure of the New York Bar and his extensive experience with civil rights litigation, but reduced Shapiro's rate to $450 an hour.  Judge Brown also reduced the senior associates' rates to $325 an hour, the midlevel associates' rates to $250 an hour, and the junior associates' rates to $150 an hour.  Most of the reduction in the overall dollar amount received by the Gibson Dunn team came in the form of hours, however.

The attorneys claimed they spent nearly 2,000 hours on the CEEFPA case, but Judge Brown said that after he reviewed their billing records it seemed to him that Mastro, Shapiro and the senior associates spent too much time doing work that could have been done by lower-level associates, too much time in meetings, and too much time on "vague and block-billed" entries.

The entries with which he took issue included items such as "conference with team," "various correspondence with team members," "participate in team strategy call," "work on various issues going forward," "emails regarding status," and "work on various issues."  "In sum … the court finds that an across-the-board reduction of 50% of the hours billed by plaintiffs' counsel is appropriate," Judge Brown wrote.

A recent Law 360 story by Ali Sullivan, “Ariz. Tribes Say The Are ‘Prevailing Party’ In Mine Win”, reports that Native American tribes that successfully sued the federal government to stop construction on a copper mine in Arizona implored a federal judge to find the tribal nations prevailed under a federal historic preservation law, telling the court that their win requires the U.S. government to reimburse the tribes' legal costs.

The Tohono O'odham Nation, Pascua Yaqui Tribe and Hopi Tribe slammed the U.S. Forest Service for refusing to acknowledge their "resounding success" in the copper mine challenge.  The tribes, alongside environmental groups, obtained a court order in July 2019 blocking Rosemont Copper Co.'s proposed mine and vacating the Forest Service's decision approving the project, a ruling upheld by a divided Ninth Circuit panel last year.  Those results, the tribes argued, prove the Arizona-based tribal nations are the "prevailing parties" under the National Historic Preservation Act's waiver of sovereign immunity and therefore entitled to attorney fees and costs under the law's fee-shifting provision.

Although the federal and appellate courts did not rule on the tribes' NHPA claim, the rulings still rescued cultural resources from destruction and fulfilled the purpose of the law, the tribes argued.  "The NHPA authorizes the recovery of attorneys' fees and costs for 'any interested person' that 'substantially prevails' in 'any civil action brought' to enforce the Act," the tribes said.  "The tribes readily satisfy this fee-shifting provision because they succeeded on the 'dispositive issues' at the core of their lawsuit, including their NHPA claim."

A divided Ninth Circuit panel in May 2022 found that U.S. District Judge James A. Soto was correct to find that the Forest Service had inappropriately approved Rosemont's mining plan of operations, which included authorizations to permanently dump waste rock on 2,447 acres of national forest land to which the company does not hold valid mining rights.

Even though the tribes won "at all levels of the litigation," they haven't reached an agreement with the federal government over whether they are entitled to attorney fees and costs under the NHPA, the tribes told the court in June.  Instead, the court will decide the "threshold issue" to move along a potential fee settlement between the parties.  "We hope to be in a position to settle fees with the government, once the court rules on the prevailing-party issue," Stuart Gillespie, an Earthjustice attorney representing the tribes, said in an email to Law360.

The federal government contended last month that the tribes can't obtain fees under the NHPA because they did not win any relief based on that specific claim.  The Equal Access to Justice Act details certain size limitations for winning plaintiffs looking to obtain attorney fees from the U.S. government, federal officials said, capping entities' net worth at $7 million and their number of employees at 500.

The tribes — which do not meet that size limitation — can't "sidestep" the EAJA's maximums by asserting they prevailed under their NHPA cause of action, the government said.  That outcome would incentivize plaintiffs to tack doomed NPHA claims onto their lawsuits to qualify for attorney fees for which they would otherwise be ineligible, the government contended.

"If adopted, the tribes' theory of eligibility for fees under the NHPA's narrow waiver of sovereign immunity would virtually nullify the size limitations on EAJA's waiver of sovereign immunity,'' federal officials said.  The tribes countered that federal officials' "strawman arguments ... are sorely misplaced," arguing that, unlike the government's hypothetical, the court's ruling cut to the root of their NHPA claim.

"The tribes prevailed on the 'dispositive issue' that was 'closely connected' — indeed the crux of — their NHPA claim," the tribes said.  "Accordingly, they seek fees under the NHPA, not EAJA's fall-back provision — the very approach instructed by Congress, the courts, and the government's own fee-shifting policy."

A recent Bloomberg Law story by Bernie Pazanowski, “’Fitzpatrick Matrix Adopted for Setting DC Attorneys’ Fees Awards”, reports that a government employee in Washington, who settled a discrimination lawsuit against the federal agency for which she worked, is entitled to an award of $526,101 in attorneys’ fees, a federal court in Washington said.

The correct method for establishing prevailing market rates for attorneys’ fees in the Washington area is the Fitzpatrick Matrix, which lays out a “finely tuned rate schedule that lists a different market rate for each additional year of experience a lawyer brings instead of bundling experience levels into bands,” Judge James E. Boasberg of the US District Court for the District of Columbia said.

Cindy Brackett, who worked for the Federal Emergency Management Agency, said that the court should use the Legal Services Index Matrix to compute the fees, which is a general schedule of hourly fees based on years of attorney experience.  But Boasberg rejected that method, saying that there were problems with the age of the data it used, with the sample of federal litigators it used, and the way it groups attorneys into just five experience bands.

• District precedent established that the Fitzpatrick Matrix was more reliable than the LSI Matrix because it’s limited to the Washington market, Boasberg said
• Fitzpatrick also employed lessons from an economics rather than a legal textbook to blend data from the cases he reviewed into a linear model that reflects common economic practice, he said
• Computing the rates here, Boasberg noted that both parties caused delays in the case that started in 2017 and said that using the 2022 version of the Fitzpatrick Matrix was proper
• The final award included fees for the time Brackett’s attorneys spent litigating the fee dispute

A recent Law.com story by Avalon Zoppo, “Federal Appeals Cour Lifts Attorney Fees Limitation in Civil Rights Cases”, reports that, in a win for plaintiffs, the full U.S. Court of Appeals for the Fourth Circuit lifted its decades-old rule that barred litigants who win a preliminary injunction in subsequently moot civil rights cases from being considered a prevailing party and entitled to attorney fees.  The Richmond, Virginia-based appeals court said its bright-line rule had become “a complete outlier,” with other circuits holding that preliminary injunctions can confer prevailing party status.

The judges put forward a new rule: If a party in a civil rights case wins a preliminary injunction that provides “concrete, irreversible relief on the merits,” they may be entitled to attorney fees even if the case later becomes moot.

“Although many preliminary injunctions represent only ‘a transient victory at the threshold of an action,’ some provide enduring, merits-based relief that satisfies all the requisites of the prevailing party standard,” wrote Judge Pamela Harris, joined by Chief Judge Albert Diaz and Judges Paul Niemeyer, Robert King, Roger Gregory, James Wynn and Stephanie Thacker.

“Our sister circuits have carefully and thoughtfully engaged with this question … and the Supreme Court, we note, has not intervened, except to flag the question as one it has left open,” Harris continued.

Precedent Overturned

In its 7-4 decision, the en banc court said attorney fees are available for the low-income Virginians who brought a class action over a now-repealed state law that required the automatic suspension of their driver’s licenses for unpaid court fines.  A lower court blocked the law from being enforced against the plaintiffs, finding it likely violated due process rights under the Constitution’s 14th Amendment.  But the state legislature later repealed the law, and a judge dismissed the case as moot.

A Fourth Circuit panel last year denied the plaintiffs’ bid to be recognized as the prevailing party, finding that the circuit’s precedent in Smyth v. Rivero foreclosed such recognition.  But the majority said developments in the years since 1992—such as the Supreme Court establishing more stringent merits requirements for issuing preliminary injunctions—meant the Fourth Circuit should revisit its rule.

The majority also worried that Smyth could allow government defendants to avoid paying fees by litigating a case through the preliminary injunction phase and then ending their potentially illegal conduct if the court sides with plaintiffs early on.  Here, the majority said the plaintiffs fit the Supreme Court’s definition of a prevailing party— one who gets concrete benefit on the merits of their claim.  As part of the preliminary injunction order, the court told the state’s Department of Motor Vehicles commissioner to reinstate the driver’s licenses.

“No matter what happened at the conclusion of the litigation, this injunction, for the time it remained in effect, allowed the plaintiffs to again drive to their jobs and personal engagements, providing concrete, irreversible economic and non-economic benefits that the plaintiffs sought in bringing suit,” Harris wrote, noting that not all preliminary injunctions satisfy that standard.

Dissenting, four Republican-appointed judges said a preliminary injunction isn’t enough to make a party prevail.  They pointed, in part, to the definition of “prevailing party” in Black’s Law Dictionary.  Based on that definition, the dissenters said a party must achieve final success and not only the “likely success” acknowledged by preliminary injunctions.  “A court must resolve at least one issue once and for all on the merits, not merely predict how issues are likely to be resolved,” wrote Judge A. Marvin Quattlebaum Jr., joined by Judges G. Steven Agee, Julius Richardson and Allison Rushing.

Quattlebaum used a sports reference to drive home his point.  “If anyone doubts that there is a difference between actually prevailing and having a likelihood of success, just ask the Atlanta Falcons—or better yet, their fans. Mid-way through the third quarter of the 2017 Super Bowl, the Falcons had achieved a great deal of success. … By any measure, the Falcons were likely to succeed.  But they had not prevailed,” he wrote.  “The Patriots came back to win 34-28, the largest comeback in Super Bowl history.  Likelihood of success is just not the same thing as prevailing.”

The plaintiffs were represented by McGuireWoods attorneys Jonathan T. Blank and John J. Woolard, Smithfield Foods attorney Tennille J. Checkovich and the Legal Aid Justice Center.  “We are gratified by the Court’s decision, which overturned the outlier rule in Smyth and adopted the rule we were seeking.  This decision upholds our clients’ rights and will benefit other civil rights plaintiffs in the future,” said Pat Levy-Lavelle, senior intake attorney at Legal Aid Justice Center.

The Fourth Circuit’s ruling represents a major win for civil rights plaintiffs.  University of Virginia School of Law professor Daniel Ortiz previously told Law.com that the circuit’s precedent has long been used to stifle civil rights litigation and made it less likely individuals would challenge potentially unconstitutional policies in the first place.

And several civil rights organizations acting as amici, including the American Civil Liberties Union of Virginia, Center for Civil Justice and Equal Justice Under Law, argued in papers filed with the Fourth Circuit that the court’s past precedent undermined the benefit of preliminary injunctions as a way to get quick resolution of civil rights actions.

In a statement, the ACLU of Virginia’s Legal Director Eden Heilman said the Fourth Circuit’s ruling helps ensure civil rights claimants have access to the courts.  “Even if the case doesn’t move forward, it is critical to the financial viability of public interest and nonprofit civil rights organizations to be able to seek attorneys’ fee awards and costs in civil rights cases where the plaintiff has achieved a successful outcome at the preliminary injunction phase of the case,” Heilman said.  “We’re working for equal access to justice under the law for every person in this country, but until we achieve that, the unfortunate reality for too many plaintiffs is that they can’t access the courts without meaningful resources. This ruling is part of how we ensure they’ll get them.”

A recent Law 360 story by Carolyn Muyskens, “Mich. Justices Say Pro Bono Status Can’t Affect Fee Awards”, reports that pro bono representation should not be a factor in determining a reasonable attorney fee award, the Michigan Supreme Court said, finding a judge wrongly slashed Honigman LLP's fee award when it represented a pair of journalists for free in a public records case.  In a majority opinion written by Justice Kyra H. Bolden, the state's high court, considering the issue for the first time, held that whether a client is represented pro bono "is never an appropriate factor for a court to consider in determining the reasonableness of an attorney fee," and ordered the trial judge to reconsider Honigman's fee request.

Dan Korobkin, legal director of the American Civil Liberties Union of Michigan, called the ruling a "major victory" for Michigan's pro bono community in a statement.  "For the ACLU of Michigan and other nonprofit organizations like it, as well as private sector law firms that provide pro bono legal counsel to support important public interest work, it is vital that attorneys' fees be recoverable in cases involving civil rights, civil liberties, and government transparency," Korobkin said.

Honigman attorneys and Korobkin partnered to represent freelance journalists Spencer Woodman and George Joseph in litigation seeking the release of video footage of a fatal fight in a Michigan state prison after their Freedom of Information Act requests were denied.  After Woodman and Joseph secured the release of redacted versions of the video, Honigman and the ACLU each requested attorney fees under the Michigan FOIA law's fee-shifting provision.

The ACLU was awarded 100% of its request, but the judge awarded Honigman $19,000 of its $190,000 fee request because the firm represented the journalists for free.  While judges can consider a range of factors to adjust fee awards up or down, whether a client is paying for his or her representation is not one of them, the state Supreme Court said.

Factors such as the difficulty of the case, time limitations, and experience of the attorneys can help a judge analyze the reasonableness of attorney fees, but pro bono representation is "not relevant" to such an analysis, the majority said, in line with the principle that a reasonable fee award is not based on the actual dollars a client has paid to his or her lawyer.  "When an attorney agrees to represent a client pro bono, the pro bono nature of the representation should not have any effect on the quality of representation provided or the time spent on the case," Justice Bolden wrote.

In an email to Law360, Robert M. Riley of Honigman LLP, who represented Woodman and Joseph, said the ruling "puts Michigan in accord with every other state and federal court that has considered the issue."  "Attorneys willing to donate their time and energy rightly deserve to be treated the same as their paid counterparts.  We're grateful to the ACLU of Michigan for the opportunity to work together, and to the organizations who filed briefs in support of our position.  It's a historic moment for the Michigan pro bono community and we're honored to have played a role in this significant milestone," Riley said.

The majority said its conclusion aligns with the purpose of the fee-shifting provision in Michigan's FOIA law, which is to encourage government agencies to comply with the law and allow plaintiffs to pursue FOIA litigation they otherwise would not be able to afford.  "This case is a prime illustration of the 'private attorneys general' model working to vindicate the private rights of the litigants and the right of the public to access its government's information.  As recognized by other jurisdictions, a contrary ruling could have a chilling effect on the willingness of private attorneys to represent indigent litigants," the majority said.

Justice Brian Zahra, in a dissent joined by Justice David F. Viviano, disagreed that the majority should have taken up the issue of pro bono representation, calling it "premature" to review it because the Court of Appeals had declined to address the issue and had remanded the issue for reconsideration by the trial judge.  The majority was wrong to tie courts' hands and bar them from weighing pro bono status as a factor when it could be relevant to a fee award, Justice Zahra said.

Additionally, the majority's ruling "creates a strong, and seemingly perverse, incentive for lawyers and law firms to focus their pro bono activities in areas where they can expect to recover attorney fees rather than in the many diverse areas of the law where pro bono services are desperately needed," the dissenting justices said.

Although Justice Zahra did not reprise the suggestion he made during oral arguments that law firms could be required to donate their pro bono attorney fee awards to the state bar, he was concerned that the majority's opinion distorts the purpose of pro bono representation and pushed back on the majority's point that attorney fee awards help incentivize pro bono work.  "Let's not be afraid to acknowledge the elephant in the room.  If a lawyer or firm will not take a 'pro bono' case unless there is an opportunity to make money at the end, is it truly pro bono?" Justice Zahra wrote.

The majority also found Woodman and Joseph prevailed in full on their FOIA claims, which entitled them to a mandatory award of attorney fees instead of a discretionary award, which is available to plaintiffs who partially prevail.  Even though the freelance journalists received only redacted video with the faces of the prison staff blurred to protect their identities, the majority said the video was still "everything the plaintiffs initially sought" because the FOIA requests did not specify that the records must be unredacted and the journalists chose not to fight the redactions.  The dissenting justices also disagreed with that conclusion, saying it "defies common sense."

The journalists' FOIA requests can be assumed to have been requests for unredacted video because that is the default under FOIA and their complaint in the litigation specified they were seeking "complete, unredacted" footage.  "Perhaps redaction was not ultimately a major sticking point for plaintiffs, but it was an issue that they contested and lost," Justice Zahra wrote.  The dissenting justices said the majority's conclusion will allow FOIA litigants to manipulate the fee-shifting statute and win attorney fee awards by accepting less than the records they initially sought and using that concession to argue they fully prevailed and are entitled to attorney fees.

McDermott Will & Emery LLP partner Elizabeth Lewis, president of the Association for Pro Bono Counsel, told Law360 in a statement that APBCo was pleased the state supreme court "recognized the importance of ensuring that counsel who work on matters pro bono are still entitled to statutorily mandated fees."

"Pro bono counsel's eligibility for and receipt of fee awards are crucial in promoting equal access to justice — they ensure that pro bono and private representation are equally effective and support the work of legal services organizations — and the near-universal practice is to donate such fees to those legal services organizations and other charities to further facilitate these goals," Lewis said. APBCo filed an amicus brief in Woodman and Joseph's case.

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