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UNITED STATES DISTRICT COURT FORTHE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF, et al.,

Plaintiffs,

vs. Case No.: 14-cv-64-BBC

SCOTT WALKER, et al.,

Defendants.

REPLY BRIEF IN SUPPORT OF PLAINTIFFS’ MOTIONFOR ATTORNEYS’ FEES, COSTS AND EXPENSES

After reasserting the argument that this Court should delay ruling on fees

rejected by the Court on February 3 (Dkt No. 183), Defendants propose extensive cuts to

the fees sought by Plaintiffs. They focus their challenge on the hourly rates of the Mayer

Brown attorneys and support staff, Larry Dupuis, and James Esseks. However, they

also challenge some of the hours spent by attorneys and support staff and request an

across-the-board one-percent cut. None of their challenges justifies the reductions they

seek.

ARGUMENT

I. PLAINTIFFS’ LITIGATION OF THIS CASE WAS REASONABLE.

Defendants make a blanket attack on the fee request based on its size, the

number of hours and attorneys who worked on the case, and the number of offices

where these attorneys practice. (Def. Br. 2, 15.) However, “[t]he amount of the fee . . .

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must be determined on the facts of each case.” Hensley v. Eckerhart, 461 U.S. 424, 429

(1983). Here, four attorneys did the great bulk of the work, but in any event the use of

multiple lawyers in a case is an accepted practice “because it often results in a more

efficient distribution of work.” Gautreaux v. Chi. Hous. Auth., 491 F.3d 649, 661 (7th Cir.

2007). The practice “allows more experienced, accomplished, and expensive attorneys to

handle more complicated matters and less experienced, accomplished, and expensive

counsel to handle less complicated ones.” Id. Defendants fail to explain why having

attorneys from more than one office work on a case makes a fee petition unreasonable.

The hours in this case were determined by the course of litigation, including the

Defendants’ strategy to seek discovery and file multiple motions to dismiss or stay the

case.

To suggest the hours and fees sought here are unreasonable, Defendants rely

heavily on the fee petitions and award in Latta v. Otter , No. 13-cv-00482-CWD (D. Idaho,

filed Nov. 8, 2013) (Def. Br. 12-13 & n. 5, 6). The Latta fee petitions for 1936.9 hours only

include the hours spent through the Ninth Circuit appeal and contemplate a subsequent

fee petition for work in the Supreme Court.1 In addition, there are several differences

1 The first fee award compensated plaintiffs for 1,101 hours of attorney time, Latta v. Otter , No. 13-cv-00482-CWD, 2014 WL 7245631, at *10 (D. Idaho Dec. 19, 2014), while the supplemental fee petition claims

an additional 835.9 hours for “work completed in the Ninth Circuit Court of Appeals.” Plaintiffs’ Mem. inSupp. of Supplemental Mot. for Attorneys’ Fees and Expenses at 3, available athttp://www.scribd.com/doc/255047308/1-13-cv-00482-147; see also id. at 3, n. 1 (stating that plaintiffs“intend to seek, at a later date, additional fees and costs for work completed in the Supreme Court.”).Moreover, the Latta plaintiffs chose to write off all the time they spent opposing the Governor’s motionfor a stay filed in the U.S. Supreme Court. Id. at 9. Defendants are wrong, therefore, when they claim thatthe supplemental motion was “for appeal to the Ninth Circuit and two petitions for a writ of certiorari tothe U.S. Supreme Court.” (Def. Br. 13, n. 5.)


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between the course of litigation in Latta as compared to Wolf.2 The course of litigation in

every marriage case has been different, as shown by the fees paid through a settlement

in Whitewood v. Wolf , No. 12-1861-JEJ (M.D. Pa.), where plaintiffs’ legal team included

eleven attorneys and the defendants paid $1,500,000 in fees for a case in which extensive

discovery took place, but there was never an appeal. (Decl. of Leslie Cooper ¶ 4.)

“Lawyers do not come from cookie cutters.” Gusman v. Unisys Corp., 986 F.2d

1146, 1150 (7th Cir. 1993). Neither do a lawyer’s litigation strategies or approaches. So

long as an attorney’s approach is “reasonable” she should be compensated for the time

reasonably spent pursuing it. A “court’s focus . . . should be upon whether [an

attorney’s] actions were reasonable.” People Who Care v. Rockford Bd. of Educ., 90 F.3d

1307, 1314 (7th Cir. 1996); see also Jaffe v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998)

(“touchstone is . . . whether [a lawyer’s argument] was reasonable.”). “It must also be

kept in mind that lawyers are not likely to spend unnecessary time on contingency fee

cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result

and the amount of the fee. It would therefore be the highly atypical civil rights case

where plaintiff’s lawyer engages in churning. By and large, the court should defer to the

winning lawyer’s professional judgment as to how much time he was required to spend

2 For example, there were only four Plaintiff couples in Latta and no discovery was conducted, seePlaintiffs’ reply in support of their first fee petition, at 7, available athttps://www.scribd.com/doc/250672576/1-13-cv-00482-122, whereas the time spent responding toDefendants’ discovery in Wolf was significant (including more than 165 hours of lawyer time). Inaddition, the Wolf Plaintiffs moved for a preliminary injunction to protect the interests of their clients whowere concerned about securing their parental rights and their risk of prosecution under Wisconsin’smarriage evasion statute. They were also required to submit briefing not once, but twice, in the SeventhCircuit because of the Defendants’ efforts to seek an emergency stay there before this Court had entered afinal judgment.


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on the case; after all, he won, and might not have, had he been more of a slacker.”

Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

II. PLAINTIFFS’ CLAIMED RATES ARE REASONABLE.

A. Out-of-District Rates Are Reasonable Under the Circumstances.

Defendants assert that the rates for Plaintiffs’ attorneys should be set based on

rates in the Western District (Def. Br. 10-15), even though the Seventh Circuit has stated

that, in general, “district courts should defer to the out-of-town attorney’s rate when

calculating the lodestar amount.” Mathur v. Bd. of Trustees of S. Ill. Univ., 317 F.3d 738,

743-44 (7th Cir. 2003). The district court may refuse to award out-of-district rates if the

court determines that “local attorneys could do as well, and there is no other reason to

have them performed by the [out-of-district attorneys].” Id. at 744 (citing Chrapliwy v.

Uniroyal, Inc., 670 F.2d 760, 768 (7th Cir. 1982)). The Defendants’ argument in response

to these cases is in essence that Plaintiffs should have tried harder to find local counsel

since Wisconsin lawyers have been willing to work on other civil rights litigation and

plaintiffs in a marriage case in Idaho were able to find local counsel and won their case.

Plaintiffs made reasonable efforts to find Wisconsin counsel, as shown by

Laurence Dupuis’ declaration. (Dkt No. 166-2, Ex. B.) Mr. Dupuis called two large

Wisconsin firms after being told by two others that they could not work on lawsuits

seeking relationship recognition – such as marriage – for same-sex couples. Defendants’

proof that Plaintiffs did not look hard enough is that neither Dupuis nor John Knight

“say more” about their efforts to recruit counsel, and Dupuis’ billing records are


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allegedly “silent“ regarding those efforts, while Knight’s time records reflect only one-

half hour trying to locate counsel. (Def. Br. 12.)

Although the names of the lawyers are redacted, Dupuis’ records include five

time entries for calls to recruit Wisconsin firms on December 23, 2013, January 2, 2014,

and January 3, 2014. (Dkt No. 166-2, Ex. B, p.1 (calls to and from “JF” and “MG,” with

code “Recruit Vol” or “Volun Atty”).) The submitted time records did not reflect some

additional contacts between Dupuis and these two lawyers by email or telephone.

(Dupuis Reply Decl. ¶ 26 (describing emails with MG on Dec. 19, 2013 to schedule call;

call from MG after Dec. 23, 2013, in which MG declined on behalf of firm; emails on Jan.

2, 2014, with JF to schedule call.) Defendants do not say why Plaintiffs should be

required to elaborate more on their efforts.

Moreover, Dupuis has nearly 12 years of experience working with volunteer

lawyers in Wisconsin and has learned which firms have direct or subject-matter

conflicts and which have the capacity and willingness to take on pro bono constitutional

litigation. He has learned, for example, that nearly all Wisconsin lawyers engaged

primarily or exclusively in civil rights litigation are in solo or small firm practice and

that such civil rights firms generally cannot afford to take on time-consuming and

complex constitutional cases on a pro bono basis. (Dupuis Reply Decl. ¶ 15.) He has also

learned that some large Wisconsin firms, which have undergone significant

consolidation over time, are increasingly unable or unwilling to engage in civil rights

litigation against certain defendants or on behalf of certain plaintiffs because of direct or

subject-matter conflicts or to avoid “controversial” issues they believe may impair client


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relations or development. (Dupuis Reply Decl. ¶ 16; Chrapliwy, 670 F.2d at 768 (“[T]here

are undoubtedly services which a local attorney may not be willing or able to

perform.”).)

As in Mathur, where plaintiff “was rebuffed by every lawyer he approached in

the area around SIU who he felt was experienced enough to handle his case,” Mathur ,

317 F.3d at 741, Plaintiffs here tried to find Wisconsin counsel who would not have

conflicts and would have the time and resources to work on a marriage case that

promised to be complex, time-consuming and litigated on an expedited schedule. Such

proof was not required to justify the out-of-district rates, Jeffboat, LLC v. Dir., Office of

Workers' Comp. Programs, 553 F.3d 487, 490 (7th Cir. 2009), but is compelling evidence

that out-of-district rates are proper in this case. Mathur , 317 F.3d at 744 (vacating award

based on southern Illinois rates to Chicago attorney where plaintiff made “a good-faith

effort to find local counsel” and was unsuccessful).This Court may reject the out-of-

district rates submitted by Plaintiffs where “there is reason to believe that services of

equal quality were readily available at a lower charge or rate in the area where the

services were to be rendered.” Chrapliwy, 670 F.2d at 769 (emphasis added). But here,

after making reasonable efforts to recruit local counsel, Plaintiffs reasonably concluded

that such services were not readily available in Wisconsin.

Defendants further contend that out-of-town counsel was unnecessary, since

local counsel was available to bring marriage litigation in Boise, Idaho and “the Idaho

plaintiffs still prevailed,” even though no “out-of-town big firms were involved.” (Def.

Br. 13.) The logic behind this assertion is flawed, since the availability and willingness


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of a local firm in Idaho to take on a marriage case provides no evidence at all that a local

firm was available in the Western District of Wisconsin to take on a marriage case.

Defendants speculate that Wisconsin lawyers should have been available for this

case, since local counsel participated in litigation involving “2001 Wis. Act 10 and the

protests in the Wisconsin State Capital following Act 10, as well as voter photo ID and

abortion legislation.” (Def. Br. 14.) However, Mr. Dupuis’ involvement in the cases cited

by Defendants illustrates just the opposite. (Dupuis Reply Decl. ¶¶ 17-23.) The fact that

local civil rights lawyers were engaged in multiple civil rights cases in state and federal

courts in Wisconsin made them less available to work on other pro bono civil rights

work, including this litigation. For example, Dupuis attempted to recruit Wisconsin law

firms to represent the plaintiffs in Frank v. Walker , No. 11CV1128 (E.D. Wis. Filed Dec.

13, 2011), a federal court challenge to the voter photo ID law. Two likely firms were

already engaged in state court litigation challenging the ID law and so were not

available to represent the plaintiffs in Frank. Another civil rights firm declined because

it could not afford to take on such a complex case pro bono. The Wisconsin office of a

large national firm declined because of time constraints in the Wisconsin office. As a

result, the Frank plaintiffs recruited a national firm, Dechert LLP, to work pro bono on

the federal voter ID litigation. Dechert lawyers from its New York, District of Columbia,

and Chicago offices have worked on the litigation. Moreover, lawyers from Arnold &

Porter’s offices in Los Angeles, the District of Columbia, and Denver represented the

plaintiffs in the related federal voter ID case, LULAC v. Barland, which was tried


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together with Frank and consolidated for purposes of oral argument in the Seventh

Circuit.3

In sum, Defendants have failed to offer any evidence or argument to show that

local attorneys were “readily available at a lower charge,” Chrapliwy, 670 F.2d at 769, to

do the same work and achieve the same result for the Plaintiffs as the non-Wisconsin

attorneys did.

B. Mayer Brown’s Regular Billing Rates Are the Appropriate Measure ofthe Reasonable Rate for their Time.

Although Defendants concede that the rate for an attorney with paying clients is

established by “the rate the attorney actually charges his paying clients,” they challenge

Mayer Brown’s rates by asserting that they are not the prevailing market rate for civil

rights litigation. (Def. Br. 25.)

The Seventh Circuit has established that the reasonable rates for attorneys with

fee-paying clients is set by the market, since a reasonable rate is determined by “what

the lawyer would receive if he were selling his services in the market rather than being

paid by court order.” Matter of Cont'l Ill. Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992). The

rate represents “the opportunity cost of that time, the income foregone by representing

3 Dupuis was able to recruit a local civil rights lawyer for Kissick v. Huebsch, No. 13CV99 (W.D. Wis.), aFirst Amendment challenge to a permit requirement for expressive activity in the State Capitol, because

the case was not likely to be as complex and time consuming as the voter ID and marriage cases, and thuswas manageable for the lawyer on a pro bono basis. (Dupuis Reply Decl. ¶ 18.) Local counsel in the caseof Planned Parenthood v. Van Hollen, No. 13CV465 (W.D. Wis. filed July 5, 2013), was recruited andretained by Planned Parenthood. Dupuis and lawyers from the ACLU’s Reproductive Freedom Projectrepresented co-plaintiff Affiliated Medical Services and did not recruit separate cooperating counsel.(Dupuis Reply Decl. ¶ 22.) The ACLU of Wisconsin Foundation was not involved in the litigation againstAct 10 or redistricting mentioned by Defendants, but Dupuis is aware that many Wisconsin civil rightslawyers were involved in those cases, reducing even further the likelihood of their availability for themarriage litigation. (Dupuis Reply Decl. ¶ 23.)


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this plaintiff.” Barrow v. Falck, 977 F.2d 1100, 1105 (7th Cir. 1992). This analysis is

premised on the Congressional intent behind 42 U.S.C. 1988 that “the amount of fees

awarded under [§ 1988] be governed by the same standards which prevail in other

types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced

because the rights involved may be nonpecuniary in nature.” Blum v. Stenson, 465 U.S.

886, 893 (1984).

In Cooper v. Casey, 97 F.3d 914, 920-21 (7th Cir. 1996), the Seventh Circuit reversed

a fee award in a prison litigation matter because the district court valued the private

firm attorneys’ time at the rate they charge private clients and failed to consider

“evidence presented by the defendants that a competent civil rights lawyer could have

been hired to represent the plaintiffs at a lower rate.” Id. The court further noted the

lack of evidence that the lawyers’ skills in their work for paying clients is transferable to

the civil rights work for which they are seeking compensation, or that they had

previous experience with civil rights work, that the lawyers were more efficient than

cheaper counsel performing civil rights work, or that counsel were able to obtain a

better result for their clients. Id. Cooper was a damages case for prisoners who were

deliberately denied medical care – a case in which the legal principles were well-

established.

Where, in contrast, the case involves issues of greater legal complexity than the

prison litigation in Cooper as well as “a far greater overall breadth of skills (and a high

quality of litigation skills generally),” Johnny's IceHouse, Inc. v. Amateur Hockey Ass'n of


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Ill., No. 00 C 7363, 2001 WL 893840, at *5 (N.D. Ill. Aug. 7, 2001), a district court may

award pro bono attorneys the rates they charge to paying clients. Id.4

Here, the evidence Defendants offer to challenge Plaintiffs’ presumptive rates

includes declarations establishing the rates of a handful of Wisconsin attorneys as well

as an expert report opining on the rates civil rights attorneys at the Loevy firm should be

awarded. Defendants also point to court decisions setting the rates of civil rights

lawyers.

Defendants’ argument that evidence of the rates of civil rights attorneys may

overcome the presumptive rates set by the market ignores the Seventh Circuit case law

establishing two different ways to establish the hourly rates for awards under fee-

shifting statutes: the method for lawyers with an established market for their services

set by the rates paying clients willingly pay, and a second method for attorneys who do

not have fee-paying clients. Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999).

The argument also conflicts with the reasoning of Blum v. Stenson, 465 U.S. 886 (1984).

As the Seventh Circuit put it in Barrow v. Falck, 977 F.2d 1100 (7th Cir.1992),

“Blum v. Stenson, 465 U.S. 886 (1984), holds that lawyers who donate their services at

4 Defendants assert that a comparison of the billing and results in this case to Latta shows that the MayerBrown attorneys failed to show billing efficiency or a better outcome. (Def. Br. 10, n.2.) But such a

comparison is illogical since it is based on the false premises that the legal issues, course of litigation, andchances of and recipe for success are the same regardless of where the case is filed. As explained inSection I, the Latta plaintiffs have not yet filed their final fee petition for proceedings in the SupremeCourt. Further, each marriage case is different, involving different facts, law, and litigation tactics.Additionally, Latta was filed in a different federal circuit where one marriage case had already beensuccessfully litigated, see Perry v. Schwarzenegger , 704 F. Supp. 2d 921 (N.D. Cal. 2010), appeal dismissed subnom. Perry v. Brown, 725 F.3d 1140 (9th Cir. 2013), and a heightened level of scrutiny for sexual orientationclassifications was established soon after the case was filed, see SmithKline Beecham Corp. v. Abbott Labs,740 F.3d 471 (9th Cir. 2014).


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bargain rates to legal aid organizations may collect under § 1988 the fees they could

obtain if the charitable element were removed.” Id. at 1105. Where the great majority of

lawyers’ time is billed to paying clients, then their billing rate to paying clients is the

presumptive rate. Gusman, 986 F.2d at 1149. To suggest, as Defendants do, that the

presumptive rate for lawyers with fee-paying clients may be overcome by referencing

fee awards and an expert declaration regarding the rates of civil rights attorneys

obscures the difference between the two methods and renders the presumption close to,

if not entirely, meaningless. See Blum, 465 U.S. at 895 (“It is in the interest of the public

that such law firms be awarded reasonable attorneys’ fees to be computed in the

traditional manner when its counsel perform legal services otherwise entitling them to

the award of attorneys’ fees.”) (quoting Davis v. County of Los Angeles, 8 E.P.D. ¶ 9444, at

5048-59 (C.D. Cal. 1974)).

Allowing Defendants to overcome the presumption by pointing solely to the

rates set for civil rights attorneys conflicts with Congress’ intention that fee awards “not

be reduced because the rights involved may be non-pecuniary in nature.” Blanchard v.

Bergeron, 489 U.S. 87, 95 (1989) (citing S. Rep. No. 94-1011, at 6, U.S. Code Cong. &

Admin. News 1976, p. 5913). “The purpose of § 1988 is to ensure ‘effective access to the

judicial process’ for persons with civil rights grievances.” Hensley, 461 U.S. at 429

(quoting H.R. Rep. No. 94-1558, at 1 (1976)). Although Defendants have shown that

competent civil rights attorneys have been awarded lower rates in a handful of other

cases than the rates set by the market for Mayer Brown attorneys, they have not shown

that any of those attorneys “could have been hired to represent the plaintiffs,” Cooper ,


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97 F.3d at 920-21, or could do so as quickly and competently as the Mayer Brown

attorneys.

C. Plaintiffs’ Attorneys Have Justified their Rates with Sufficient

Evidence.

Plaintiffs bear the initial burden to establish the reasonableness of their rates.

McNabola v. Chi. Transit Auth., 10 F.3d 501, 518 (7th Cir. 1993). For a lawyer with private

paying clients, proof of the rate the lawyer actually charges and is paid is generally

sufficient to carry this burden. In Gusman, the Court held that such an attorney’s actual

hourly billing rate is the presumptive basis for an award. There, defense attorneys

contested the plaintiffs’ lawyers’ affidavits showing the rates their paying clients

actually paid by submitting evidence tending to support a lower average rate for civil

rights litigation in the Madison area. 986 F.2d at 1148-49. The Seventh Circuit rejected

this average-rate approach, holding that, for lawyers other than those who do all or

most of their work on contingency or work for public interest organizations, “[t]here is

no broader principle of averaging. . . . [L]awyers who fetch above average rates are

presumptively entitled to them, rather than to some rate devised by the court.” Id. at

1149-50. The Court concluded:

[T]he best measure of the cost of an attorney’s time is what that attorney couldearn from paying clients. For a busy attorney, this is the standard hourly rate.If he were not representing this plaintiff in this case, the lawyer could sell the

same time to someone else. That other person’s willingness to pay establishesthe market’s valuation of the attorney’s services.

Id. at 1150. Or, as the Seventh Circuit put it in Balcor Real Estate Holdings, Inc. v.

Walentas Phoenix Corp.: “Courts award fees at the market rate, and the best


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evidence of the market value of legal services is what people pay for it. Indeed,

this is not ‘evidence’ about market value; it is market value.” 73 F.3d 150, 153 (7th

Cir. 1996) (emphasis in original).

In contrast, a lawyer who does not have paying clients, and thus cannot present

evidence of what rate the private market has actually set for her services, must

“produce satisfactory evidence – in addition to the attorney’s own affidavits – that the

requested rates are in line with those prevailing in the community for similar services

by lawyers of reasonably comparable skill, experience and reputation.” Blum, 465 U.S.at

895 n. 11 (emphasis added). A petitioning lawyer’s “self-serving affidavit” about the

market may not be sufficient. But the burden is satisfied by affidavits from other lawyers

practicing in the community about the rates they and other area lawyers charge for

similar services. See, e.g., Pickett v. Sheridan Health Care Center , 664 F.3d 632, 640 (7th Cir.

2011) (for attorneys without paying clients, Court has “indicated a preference for third

party affidavits that attest to the billing rates of comparable attorneys”); McNabola, 10

F.3d at 519 (affirming rates that “were supported by affidavits of other attorneys in the

area attesting to the experience of McNabola’s attorneys and to the reasonableness of

their rates for this type of civil rights litigation”).

1. The Mayer Brown Rates Are Justified.

Marc Kadish’s declaration establishes that the rates for the Mayer Brown

attorneys are the rates that “[c]lients regularly and willingly pay . . . for the work of

these lawyers.” (Dkt No. 170 ¶ 5.) His supplemental declaration clarifies that “Mayer

Brown attorneys, including those who worked on this case, typically devote the bulk of


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their time to work for paying clients.” (Kadish Supp. Decl. ¶ 7.) Kadish’s original and

supplemental declarations support an award based on the market fee rate for the Mayer

Brown attorneys’ work on complex litigation of the sort this case required. To establish

that rate, Plaintiffs were not required to offer evidence that clients have “paid these

rates for these attorneys in civil rights cases,” as Defendants contend. (Def. Br. 25.)

Plaintiffs’ evidence is sufficient to establish the Mayer Brown attorneys’ market rate,

and Defendants have failed to overcome that presumptive rate with “evidence . . . that a

competent civil rights lawyer could have been hired to represent the plaintiffs at a

lower rate.” Id.

Kadish’s supplemental declaration shows that the skills of the Mayer Brown

attorneys developed in other forms of complex trial court and appellate litigation are

transferable to their work on this complex case. (Kadish Supp. Decl. ¶¶ 6, 8-15.) In

addition, almost all of the Mayer Brown attorneys who worked on this case have

experience in civil rights and constitutional litigation. (Id.) Those who performed the

bulk of the work – Frank Dickerson and Gretchen Helfrich – have a great deal of such

experience. (Kadish Supp. Decl. ¶¶ 10, 12.) Helfrich, for example, billed 480 hours on

the Illinois marriage litigation case, while Kristin Silverman billed 119 hours on that

case. Both performed key roles as part of the Illinois marriage litigation team – drafting


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portions of substantive and procedural briefs and much more.5 (Kadish Supp. Decl. ¶¶

10-11.)

Marc Kadish’s own rate is justified by his 44 years as a lawyer and experience

working on civil rights cases since the 1970s, including his work with and supervision

of Mayer Brown lawyers on civil rights matters since 1999. (Kadish Supp. Decl. ¶ 5.)

The rates sought for the Mayer Brown attorneys are high in comparison to the

rates set for civil right attorneys. However, some attorneys have been awarded

comparable rates in civil rights cases pending in district courts in this circuit. See, e.g.,

NRA v. Village of Oak Park, 871 F. Supp. 2d 781, 788 (N.D. Ill. 2012) (awarding $1020 to

Paul Clement of King & Spalding and $800 to Stephen Ross of Goodwin Procter in

Section 1983 case asserting Second Amendment claims); Entertainment Software Assn. v.

Blagojevich, 2006 WL 3694851, at *2, 12 (N.D. Ill. 2006) (awarding $585 to Paul Smith,

$494 to David Sanders, and $450 to Katherine Fallow in Section 1983 case asserting First

Amendment claims).

2. Larry Dupuis’ Rate Is Justified.

Defendants’ principal objection to Larry Dupuis’ claimed rate of $450 per hour is

the fact that he has not previously claimed a rate of more than $300 in litigation against

State of Wisconsin defendants. (Def. Br. at 21.) Defendants cite no authority for the

proposition that an attorney may not increase his rate over time. They also fail to note

5 Defendants correctly note that a factor that may support out-of-district rates is the attorney’s specializedskills in the practice area involved, but suggest that the Mayer Brown attorneys had no such expertise,since the Kadish Declaration fails to claim such expertise. (Def. Br. 11, n. 3.) The assertion is disingenuous,since Knight’s declaration addresses the experience of Mayer Brown attorneys in assisting with marriagelitigation in Illinois. (Dkt No. 171 ¶ 9.)


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that all of the previous cases in which Dupuis has sought fees from state defendants

were cases in which either the rates were capped by the Prison Litigation Reform Act at

well below $300 per hour or where the rate was claimed as part of settlement proposal,

rather than in litigation of the rate.

Moreover, in January 2010, he claimed a rate of $325 in Christensen v. Sullivan,

96CV1835 (Milw. Co. Cir. Ct.), a jail conditions case in which fees were not capped.

(Dupuis Reply Decl. ¶ 8 & Ex. B (Aff. of Laurence J. Dupuis in support of Class

Counsel’s Petition for Supplemental Award of Attorneys’ Fees.) The parties ultimately

settled plaintiffs’ fee claims in that case. He has not updated his rate since 2010, largely

because he has been successful at settling fee claims since then without having to file a

fee petition. Unfortunately, settlement efforts failed in this case, so he has been forced to

determine the current appropriate market rate for his services by investigating the rates

established for other civil rights lawyers with similar years of experience and

qualifications and securing declarations from other civil rights practitioners in the area

to opine on his hourly rate.

Defendants also incorrectly assert that “Dupuis claims no expertise in LGBT

litigation.” (Def. Br. at 21.) While it is true that he does not specialize in such litigation

to the extent that Knight and Esseks do, his original declaration identified other LGBT

rights litigation – including litigation seeking relationship protections for same-sex

couples under the State constitution’s equal protection clause – in which he has been

counsel. (Dkt No. 166 ¶ 10; see also Dupuis Reply Decl. ¶ 5 (providing additional detail


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on Dupuis’ experience with LGBT litigation and continuing legal education and public

education presentations on LGBT topics).)

Finally, the Laffey Matrix, which Defendants cite as authority for reducing the

rates for some of Plaintiffs’ counsel (Def. Br. at 46-48; Kawski Decl. Ex. B, Dkt 185-2

(Laffey Matrix)), supports a rate of at least $460 for attorneys with 11-19 years of

experience as an attorney. Dupuis has been practicing law since 1997 – nearly 18 years –

near the top end of the range of experience that warrants that rate. Defendants should

not be permitted to cherry-pick rates from the Laffey Matrix, arguing for reductions of

Plaintiffs’ rates that exceed the matrix’s average rates, but ignoring those average rates

when they support Plaintiffs’ rates.6

3. James Esseks’ Rate Is Justified.

Although Defendants do not challenge Esseks’ expertise, they challenge Esseks’

rate as inconsistent with the “rate for civil rights attorney in the Western District of

Wisconsin or the Seventh Circuit and inconsistent with the evidence presented by

Plaintiffs.” (Def. Br. 22.) But as shown in Section II.A, supra., Plaintiffs may seek out-of-

district rates for the lawyers who worked on this case. Defendants have failed to cite

any case law supporting a limit on such out-of-district rates to those prevailing in the

Seventh Circuit. Another reason supporting compensating Esseks’ time based on New

York rates is his specialized expertise in litigating cases involving LGBT rights and, in

6 Similarly, Defendants cite to an affidavit of Pamela McGillivray as evidence that Plaintiffs’ rates in thiscase are “stratospheric” (Def. Br. at 42-43), but fail to acknowledge that Ms. McGillivray, who has twofewer years of experience than Dupuis, was awarded $415/hour for comparable litigation in the WesternDistrict of Wisconsin in 2013, an award that would tend to support Dupuis’ claimed rate of $450/hour.


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particular, the rights of same-sex couples to marry. (Dkt 167 ¶¶ 7-10.) The Seventh

Circuit has recognized that out-of-district rates may be justified where the “subject

matter of the litigation is one where the attorneys practicing it are highly specialized.”

Jeffboat, 553 F.3d at 490.

As shown in Plaintiffs’ opening fee brief at 21, n. 4, partners at civil rights firms

who have similar experience to Esseks have been awarded rates similar to or higher

than the $650 sought for his time. See, e.g., Vilkhu v. City of New York, No. 06-CV-2095

CPS (JO), 2009 WL 1851019, at *5 (E.D.N.Y. June 26, 2009), reversed on other grounds, 372

F. App’x 222 (2d Cir. 2010) (describing declaration of partner at civil rights firm whose

hourly rate 11 years out of law school was $550 in 2009 and where hourly rates at his

firm ranged from $450 to $900 for partners).

Anne Clarke’s declaration (Dkt 165) offers additional support for Esseks’ rate.

Defendants challenge it as “speculative” and “lack[ing] in foundation,” but with the

exception of actual fee awards, it is difficult to envision better evidence of a civil rights

attorney’s rate than the declaration from a civil rights lawyer at the firm where Esseks

was previously a partner, since she has both first-hand knowledge of the quality of his

work and knowledge of the rates for the attorneys at the firm who have comparable

experience and expertise to Esseks’. Her knowledge about the rates clients are willing to

pay for the time of attorneys similar to Esseks and the rates the firm has obtained

through fee awards provides her a foundation for opining on a reasonably hourly rate

for Esseks. Finally, it is inconsequential that Clark has not reviewed Esseks’ actual work

in this case, since as a civil rights attorney she has the general experience and


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knowledge of the complexities of constitutional litigation to opine regarding a

reasonable rate for Esseks’ work in this case.

4. The Laffey Matrix Does Not Cap Fees.

Although the Seventh Circuit has left it to the discretion of the district courts

whether to rely on the Laffey Matrix where there is no established billing rate for an

attorney, Pickett v. Sheridan Health Care Ctr ., 664 F.3d 632, 648 (7th Cir. 2011), “[e]ven the

D.C. Circuit has referred to the Matrix as ‘crude’” and has recommended that plaintiffs

provide other evidence to enable the district court to refine the Matrix for the particular

attorney. Id. at 650 (citing Covington v. District of Columbia, 57 F.3d 1101, 1109 (D.C. Cir.

1995)). And although one district court stated that “numerous judges in this district

have considered the Laffey Matrix as at least one factor,” Hadnott v. City of Chicago, 2010

WL 1499473, at *7 (N.D. Ill. Apr. 12, 2010), the Seventh Circuit was more circumspect

about how often it is used. Pickett, 664 F.3d at 650 (“District courts in this Circuit have

occasionally considered the Laffey Matrix when considering the reasonableness of hourly

rates.”) (emphasis added).

Defendants argue that the Laffey Matrix “sets an upper limit for a prevailing

plaintiff’s attorneys’ rates for purposes of 42 U.S.C. § 1988 analysis,” (Def. Br. 47), but

the cases they cite fail to support that argument.7 First, in none of the cited cases are

counsel’s fee rates premised on the rate they bill and are paid by clients. Second,

although Defendants cite Elusta v. City of Chicago, 760 F. Supp. 2d 792 (N.D. Ill. 2010), for

7 In Johll v. Colvin, 2014 WL 6607463, at *2 (W.D. Wis. Nov. 19, 2014), it was the plaintiff, not the court,who suggested adjusting the Laffey Matrix rate to a lower “Minn/WI” rate.


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the proposition that those “rates should be adjusted downward for the lower cost of

living in Chicago” as compared to D.C., (Def. Br. 47), the Seventh Circuit concluded that

“the Elusta court provided only minimal support for this assertion” and cited another

decision concluding that “the high cost of living in Chicago necessitates an upward

adjustment to the Matrix.” Pickett, 664 F.3d at 650 (citing Schultz v. City of Burbank, No.

06 C 5646, 2007 WL 1099479, at *2 (N.D. Ill. Apr. 10, 2007).

Although this Court may consider the Laffey Matrix as one factor in analyzing

the reasonableness of the attorney hourly rates, the Matrix does not set an arbitrary cap

on rates nor does it provide a basis for rejecting the evidence Plaintiffs have offered

supporting their rates.

D. Defendants’ Evidence Does Not Justify Reducing Plaintiffs’ Rates.

Defendants attempt to undermine Plaintiffs’ claimed rates by presenting a

declaration from Richard Esenberg, the general counsel for the Wisconsin Institute for

Law & Liberty, attesting to his rate and that of other WILL lawyers, and fee declarations

submitted by Wisconsin lawyers in a small number of other cases.8 (Def. Br. at 35-44.)

At best, this evidence establishes that a court could come up with average in-district

market rates that differ from the rates claimed by Plaintiffs here. However, the Seventh

Circuit has condemned precisely this sort of “averaging.” A court “must have some

reason other than the ability to identify a different average rate in the community” to

8 Defendants do not claim that the declarations it has chosen are representative. Although it involvesimportant First Amendment issues, the Breckenridge case is not even a section 1983 action, but a forfeiturecase (i.e., a citation) in state court.


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justify a departure from claimed rates that are adequately supported by other evidence.

Gusman, 986 F.2d at 1151.

Moreover, Defendants place far more weight on the Esenberg declaration than it

can bear. Defendants suggest that the rates for WILL lawyers set forth in the declaration

should be used to determine the appropriate rates for attorneys Dupuis, Helfrich and

Dickerson. (Def. Br. at 38-39.) But Esenberg nowhere opines specifically about Dupuis’

claimed rate. And while he opines that the hourly rates sought “in particular by the

Chicago Mayer Brown attorneys . . . are much higher than rates that would be

expected” in the Wisconsin legal market (Dkt No. 186 ¶ 23), he nowhere discusses the

rates of Helfrich or Dickerson in particular. This is perhaps unsurprising, as he claims

no knowledge of the qualifications, skill or experience of any of the Plaintiffs’ lawyers in

this case. Nor does he claim to have reviewed any of the pleadings filed by Plaintiffs’

lawyers (or the Defendants’ lawyers for that matter) in this case. Indeed, he disclaims

any official WILL “position on the issues raised in this case . . . and has declined

requests to become involved in litigation involving the constitutionality of laws limiting

marriage to opposite sex couples.” (Dkt No. 186 ¶ 8.) Given his apparent lack of

familiarity with the lawyers or their work in this case or even the legal issues presented,

it is difficult to see how Esenberg’s generic opinion about rates for Wisconsin civil rights

litigation could have any bearing on the specific rates of the specific lawyers who did

the work in this case.

Defendants also rely on a report by Attorney Bruce Meckler submitted in 2012 in

a prisoner medical treatment case litigated in the Northern District of Illinois. (Def. Br.


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at 44-46; Kawski Decl. Ex. C (Dkt No. 185-3).)9 As with the Laffey Matrix, this report

addresses reasonable market rates for civil rights attorneys (this time in Chicago) who

do not have regular fee-paying clients, so it has no bearing on the rates of Mayer Brown

attorneys, who do have regular fee-paying clients. It also says nothing about the

appropriate rate for Esseks, because his specialized expertise entitles him to an out-of-

town rate that is established by the Declaration of Anne Clark. Moreover, the Meckler

report supports the rate claimed by Dupuis. (Dkt No. 185-3 at 10 ($550 rate for “lead”

attorneys with 16-20 years of experience; $450 rate for “support” attorneys with 16-20

years of experience).)

III. DEFENDANTS’ PROPOSED TIME REDUCTIONS SHOULD BE REJECTED.

A. Time for Marc Kadish, Paralegal & Support Staff.

Defendants argue this Court “should not award Plaintiffs anything” for Attorney

Marc Kadish’s services, based on an assertion that his involvement in the litigation

“was purely administrative.” (Def. Br. at 25.) However, the sorts of “administrative

tasks” that are not compensable at an attorney’s customary rate are only those that “are

easily delegable to non-professional assistance” or “easily could have been performed

by a full-time secretary” and thus “contribute little if anything toward furthering [the

plaintiff’s] interest . . . .” Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 553 (7th Cir.

1999). In contrast to the sort of simple calendaring, organizing of file folders, and

9 This report relies heavily upon data from the Survey of Law Firm Economics, but Defendants have notprovided the Plaintiffs or the Court with a copy of that Survey. Therefore the report should not beconsidered in setting rates in this case. Cf. Pickett, 664 F.3d at 648 (reversing district court fee reductionsbased on Laffey Matrix where plaintiff did not have notice that Matrix would be considered or anopportunity to respond to the court’s decision to use it).


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photocopying tasks Spegon indicated were not appropriately done by an attorney, id.,

Kadish was the first lawyer at Mayer Brown to communicate with Plaintiffs’ ACLU

attorneys about the substance of the planned litigation and was instrumental in

launching Mayer Brown’s involvement in the case. He needed to understand the likely

substantive and procedural issues raised by the case in order to assess how to staff it.

(Kadish Supp. Decl. ¶ 4.) To do so, he participated in substantive discussions – on the

telephone, by email and in person – about the case with both the ACLU attorneys and

Mayer Brown lawyers. (See, e.g., Dkt No. 170-2 at [ECF page] 3 (Jan. 8, 2014 entry for

conferring with Chip Dickerson, Gretchen Helfrich, Tim Bishop & Harvey Grossman

regarding the case).) He assembled the Mayer Brown litigation team and worked with

ACLU lawyers to prepare retainer and co-counsel agreements that legal ethics and

prudent legal practice demand. None of these tasks could have been performed by a

secretary. In fact, Kadish’s time entries demonstrate that he delegated paraprofessional

and secretarial tasks to the appropriate staff. (See, e.g., Dkt No. 170-2 at [ECF page] 6

(Jan. 23, 2014 entry “go over retainer letter with Helene”).) Although Kadish’s

involvement decreased as the case progressed, the legal ground work he laid was

crucial to “furthering” the Wolf Plaintiffs’ “interest” in the litigation.

It is well established that prevailing litigants in civil rights actions may recover

fees for paralegal time under 42 U.S.C. § 1988. See Missouri v. Jenkins, 491 U.S. 274, 285

(1989); Richlin Sec. Serv. Co. v. Chertoff , 553 U.S. 571, 580 (2008). Nonetheless, Defendants

argue that this Court “should disallow all of Plaintiffs’ claimed paralegal and

administrative support time,” because it is allegedly “impossible to determine from the


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evidence what work was sufficiently complex to justify paralegal work.” (Def. Br. at 34.)

Defendants misrepresent the time records submitted by Mayer Brown. Paralegals and

support staff clearly documented time spent on: legal research (e.g., Dkt No. 170-2 at

[ECF page] 4 (Jan. 17, 2014 entry for document clerk Darryl Owens “Research History of

marriage laws in Wisconsin”), id. at 9 (Feb. 5, 2014 entry for reference/research assistant

Zanete Serzante “pull legislative history WI Marriage evasion statute”)); cite-checking

briefs (e.g., id. at 13 (Feb. 20, 2014 entry for paralegal Joyce Westphal “cite check of

motion for preliminary injunction”), id. at 20 (March 21 & 24, 2014 entries for Westphal

“cite check of motion for summary judgment)); and electronic filing of pleadings (e.g.,

id. at 32 (July 21, 2014 entry for docket clerk Robert Silverman for electronic filing of

response to Defendants’ motion for initial hearing en banc)). This is precisely the sort of

work that lawyers delegate to paralegals and other support staff in the normal course of

practice and should accordingly be compensable. Defendants complain, in particular,

regarding the time entries for a summer associate, Joshua Lobert. (Def. Br. 33.) In

contrast to the time of paralegal and support staff, Plaintiffs agree that compensation for

this summer attorney time should be written off.

Defendants also complain about the rates for Mayer Brown’s paralegals and

support staff and suggest they should be subject to an across the board reduction to

$150 per hour, the average rate for such staff in the Laffey Matrix. (Def. Br. at 34.)10

10 The rates for all Mayer Brown staff who billed on this case were filed previously at Dkt No. 170-1. Theexhibit to the Kadish Supplemental Declaration filed today identifies the job titles for these paralegals andother support staff and their years of experience.


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However, as with lawyers, there is no general “principal of averaging” for rates of

paralegals and courts in the Seventh Circuit have approved paralegal rates higher than

$150 per hour. See, e.g., NFTC, Inc. v. Giannoulias, 2007 WL 2688454, *3 (N.D. Ill. 2007)

(approving hourly rate of $175 for paralegal).

B. Attorney Time Should Not Be Reduced for Long Hours or Alleged“Block Billing.”

Defendants request reductions because two of the Mayer Brown attorneys

devoted from ten to fourteen hours to the case on nine days. They argue that such

billing is “objectively unreasonable and unreliable,” in reliance on Diamond Waste, Inc. v.

Monroe Cnty., 908 F. Supp. 974, 977 (M.D. Ga. 1995), a case in which the court had

“given the fee applicants two opportunities to correct the ambiguity in the time records

submitted by them,” id. at 976, and found the time records “wholly insufficient as an

evidentiary basis upon which to determine the number of hours reasonably expended,”

id. at 977, because they were vague, ambiguous and indefinite. In contrast, the billing

records Defendants attacked are clear and reliable evidence of the work these attorneys

performed. As one district court notes, “[a]ttorneys frequently bill for long days when

battling a deadline.” Medcom Holding Co. v. Baxter Travenol Labs., Inc., No. 87 C 9853,

1999 WL 35351, at *4 (N.D. Ill. Jan. 13, 1999) (rejecting Magistrate’s limitation on

compensable hours to eighteen per day), order corrected, No. 87 C 9853, 1999 WL 160360

(N.D. Ill. Mar. 17, 1999) vacated on other grounds, 200 F.3d 518 (7th Cir. 1999); see also

Truck Components Inc. v. Beatrice Co., No. 94 C 3228, 1996 WL 124443, at *5 (N.D. Ill. Mar.

19, 1996) (approving award for 23.25 hours in one day). Mayer Brown attorneys put in


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long hours on occasion, under the pressure of litigation deadlines, and billing clients

pay for such hours. (Kadish Supp. Decl. ¶ 3).

Defendants also object to “block billing” in these nine billing entries. “Although

‘block billing’ does not provide the best possible description of attorneys’ fees, it is not a

prohibited practice.” Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 569 (7th

Cir. 2006); see also Cintas Corp. v. Perry, 517 F.3d 459, 469 (7th Cir. 2008) (district court

did not abuse her discretion by rejecting argument that “counsel had engaged in

impermissible ‘block billing.’”).

“The appropriate question, then, is whether the entries are detailed enough to

allow the opposing party and the court to determine that the time billed accurately

reflects the time spent on the case.” Dupuy v. McEwen, 648 F. Supp. 2d 1007, 1029 (N.D.

Ill. 2009).

Defendants have failed to show that counsel did not perform the hours of work

recorded on these nine days and have failed to connect their objections to the hours of

work on those days to their argument that this court should reduce all fees by one

percent across the board.

C. Attorney Time Devoted to Research on Evasion Statute Should Not beReduced.

Defendants argue that “Plaintiffs are not entitled to recover attorneys’ fees

relating to their claims challenging Wis. Stat. § 765.30(1) (the so-called ‘Evasion Statute’)

because they did not prevail on them.” (Def. Br. at 50-51.)


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Defendants are correct that a plaintiff is not entitled to attorneys’ fees for discrete

and severable work on claims on which the plaintiff does not prevail. However,

Plaintiffs’ arguments regarding the evasion statute were not a separate “claim” or “cause

of action,” but a response to a consequence of the marriage ban’s equal protection and

due process infirmities. The Plaintiffs’ complaint did not assert a separate count

regarding the evasion statute. See Dkt No. 26, Amend. Compl. ¶¶ 126-150 (setting forth

four “counts” or claims alleging that the marriage ban violates due process and equal

protection, none mentioning evasion statute).11 The Plaintiffs did not contend that the

evasion statute was unconstitutional independent of the constitutional defects of the

underlying marriage ban, but argued that prosecution under the evasion statute was a

particularly egregious consequence of that ban for people who married in other states.12

“[C]ourts may award fees for time reasonably spent on an unsuccessful argument in

support of a successful claim. . . . [T]he touchstone in such a case is not whether a

particular argument was successful, but rather whether it was reasonable.” Jaffe, 142

F.3d at 414.

Defendants incorrectly suggest that Plaintiffs should be denied fees because

Defendants’ motion to dismiss was partially granted as to the District Attorney

defendants. First, the dismissal cannot reasonably be characterized as a loss. Second,

11 Defendants acknowledge that this Court’s opinion and order granting summary judgment for Plaintiffs(Dkt No. 118) and its final judgment (Dkt No. 136) do not expressly rule upon or dispose of Plaintiffs’purported “claims arising out of the Evasion Statute.” (Def. Br. at 52.) This should come as no surprise, asno such “claims” were made in Plaintiffs’ complaint for this Court to rule upon.12 It was nonetheless incumbent upon Plaintiffs’ counsel to seek preliminary relief to protect their clientswho married outside of Wisconsin from criminal prosecution under the evasion statute.


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even if characterized as a loss, “the fact that a party does not prevail on every

individual motion . . . during the course of litigation is not dispositive for purposes of

awarding fees under § 1988. Indeed, a ‘court’s focus should not be limited to the

success/failure of each of the attorney’s actions. Rather it should be upon whether those

actions were reasonable.’” Frami v. Ponto, 2003 WL 23120023 (W.D. Wis. July 7, 2003)

(quoting People Who Care, 90 F.3d at 1314). Where “plaintiffs succeeded eventually in

obtaining all the relief they sought in this case,” a failure on the way to success is

“entirely reasonable.” Id.

In this case, the Plaintiffs “succeeded eventually in obtaining all the relief they

sought,” so the dismissal of the district attorney defendants does not warrant a

reduction in fees. The dismissal was not opposed once Plaintiffs had secured a

stipulation that they would not prosecute the Plaintiffs who had married in Minnesota

under Wisconsin’s criminal “marriage evasion” statute. Thus, Plaintiffs achieved their

immediate need to protect their clients from prosecution as well as their principal goal

of invalidating the marriage ban.

CONCLUSION

For the reasons set forth above and in Plaintiffs’ initial brief in support of their

motion for fees and costs, Plaintiffs’ motion should be granted and they should be

awarded $1,279,512.33.13

13 The figure of $1,279,512.33 is calculated from Plaintiffs’ initial request ($1,243,804.83) minus MayerBrown’s summer associate, Joshua Lobert’s time (24 hours x $285/hr = $6,840.00) (see supra., p. 24), whichPlaintiffs are writing off, plus fees for attorneys Laurence Dupuis’ and John Knight’s work on the casefrom the date of the first fee petition forward (94.55 hours x $450/hr = $42,547.50) ( see Dupuis Reply Decl.Ex. A; Supp. Knight Decl. Ex. A).


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Dated this 19th day of February, 2015.

/s John A. Knight

JOHN A. KNIGHT

American Civil Liberties UnionFoundation

Lesbian Gay Bisexual TransgenderProject180 North Michigan Ave., Ste. 2300Chicago, IL 60601(312) 201-9740 [email protected]

LAURENCE J. DUPUIS

American Civil Liberties Union ofWisconsin Foundation

207 E. Buffalo St., Ste. 325Milwaukee, WI 53202(414) [email protected]

JAMES D. ESSEKS

American Civil Liberties UnionFoundation

Lesbian Gay Bisexual TransgenderProject125 Broad StreetNew York, NY 10004(212) 549-2623 [email protected]

HANS J. GERMANN

FRANK DICKERSONMayer Brown LLP71 S. Wacker Dr.Chicago, IL 60606(312) [email protected]@mayerbrown.com

Gretchen HelfrichLoevy & Loevy

312 North May StreetChicago, IL [email protected]

Attorneys for Plaintiffs


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