UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF...

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -----------------------------------------------------------x

ANNE POPE, et al.,

Plaintiffs,

-against-

COUNTY OF ALBANY, et al.,

Defendants.

::::::::::

No. 11-cv-0736 (LEK) (CFH)

-----------------------------------------------------------x

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR APPLICATION FOR ATTORNEYS’ FEES AND COSTS

GIBSON, DUNN & CRUTCHER LLP Mitchell A. Karlan [email protected] 200 Park Avenue New York, New York 10166-0193 Telephone: 212.351.4000 Fax: 212.351.4035 Bar Roll No. 511874

DEROHANNESIAN & DEROHANNESIAN Paul DerOhannesian II [email protected] 677 Broadway, Suite 707 Albany, New York 12207-2985 Telephone: 518.465.6420 Fax: 518.427.0614 Bar Roll No. 104792 Attorneys for Plaintiffs

May 5, 2015

Case 1:11-cv-00736-LEK-CFH Document 439 Filed 05/06/15 of 24

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TABLE OF CONTENTS

Page

INTRODUCTION .......................................................................................................................... 1

ARGUMENT .................................................................................................................................. 4

I. The Fees Incurred By Plaintiffs’ Counsel In Prosecuting This Hard-Fought Litigation Are Reasonable ............................................................................. 4

A. Gibson Dunn Is Entitled To Its Standard Rates, Which Are Reasonable Under The Circumstances Of This Litigation ............................ 6

B. DerOhannesian & DerOhannesian Are Entitled To Their Standard Rates, Which Are Reasonable For The Northern District Of New York..................................................................................... 9

C. Counsel’s Hours Spent On This Case Are Reasonable ............................... 10

D. Plaintiffs Are Entitled To Reasonable Fees For The Entirety Of This Litigation Regardless Of Any Interlocutory Decisions ....................... 14

II. The Litigation Costs Incurred By Plaintiffs’ Counsel In Prosecuting This Hard-Fought Litigation Are Reasonable .......................................................... 17

CONCLUSION ............................................................................................................................. 18


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TABLE OF AUTHORITIES

Page(s)

Cases

A.R. ex rel. R.V. v. New York City Dep’t of Educ., 407 F.3d 65 (2d Cir. 2005) ......................................................................................................... 9

Aquent, LLC v. Atl. Energy Servs., Inc., No. 1:09-CV-0524, 2012 WL 1005082 (N.D.N.Y. Mar. 23, 2012) ......................................... 10

Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d 182 (2d Cir. 2008) ......................................................................................... 5, 6, 7, 10

Banks v. City of Albany, 95-cv-761 (N.D.N.Y.) ................................................................................................................. 8

Berkshire Bank v. Tedeschi, No. 11-CV-0767, 2015 WL 235848 (N.D.N.Y. Jan. 16, 2015) ............................................ 6, 10

Bosket v. NCO Fin. Sys., Inc., No. 11-CV-00678, 2012 WL 4093023 (N.D.N.Y. Sept. 17, 2012) .......................................... 10

Ctr. Cadillac, Inc. v. Bank Leumi Trust Co. of New York, 878 F. Supp. 626 (S.D.N.Y.), aff’d, 99 F.3d 401 (2d Cir. 1995) .............................................. 12

Gollomp v. Spitzer, No. 06-CV-802, 2007 WL 433361 (N.D.N.Y. Feb. 5, 2007) ................................................... 14

Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992) ................................................................................................. 15, 16

Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048(GEL), 2007 WL 1373118 (S.D.N.Y. May 8, 2007) .................................. 4, 7

Hensley v. Eckerhart, 461 U.S. 424 (1983) .............................................................................................. 3, 5, 14, 15, 16

Kuzma v. Internal Revenue Service, 821 F.2d 930 (2d Cir.1987) ...................................................................................................... 18

LeBlanc-Sternberg v. Fletcher, 143 F.3d 748 (2d Cir. 1998) ............................................................................................... 15, 18

Legends Are Forever, Inc. v. Nike, Inc., No. 3:12-CV-1495 LEK/DEP, 2013 WL 6086461 (N.D.N.Y. Nov. 18, 2013) ......................... 9


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Lilly v. County of Orange, 910 F. Supp. 945 (S.D.N.Y. 1996) ............................................................................................. 6

Luessenhop v. Clinton Cnty., N.Y., 558 F. Supp. 2d 247 (N.D.N.Y. 2008) aff’d, 324 F. App’x 125 (2d Cir. 2009) ....................... 18

Lunday v. City of Albany, 42 F.3d 131 (2d Cir. 1994) ......................................................................................................... 5

Miroglio S.P.A. v. Conway Stores, Inc., 29 F. Supp. 2d 307 (S.D.N.Y. 2009) .......................................................................................... 5

Osterweil v. Bartlett, No. 09-CV-825, 2015 WL 1066404 (N.D.N.Y. Mar. 11, 2015) ............................................ 6, 7

Page v. Grandview Mktg., No. 09-cv-1150, 2010 WL 4923485 (D. Nev. Nov. 29, 2010) ................................................. 13

Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986) .................................................................................................................... 5

Pope, et al. v. County of Albany, et al., 687 F.3d 565 (2d Cir. 2012) ..................................................................................................... 16

S.M. v. Taconic Hills Cent. Sch. Dist., No. 09-CV-1238, 2013 WL 1181581 (N.D.N.Y. Mar. 20, 2013) ............................................ 10

Salvin v. Am. Nat’l Ins. Co., 281 F. App’x 222 (4th Cir. 2008) ............................................................................................. 13

Simmons v. N.Y. City Transit Auth., 575 F.3d 170 (2d Cir. 2009) ....................................................................................................... 8

Trudeau v. Bockstein, 05-CV-1019, 2008 WL 3413903 (N.D.N.Y. Aug.8, 2008) ...................................................... 10

United States Football League v. National Football League, 887 F.2d 408 (2d Cir.1989) ...................................................................................................... 18

United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338 (2d Cir. 1991) ................................................................................................... 13

Wash. Mut. Bank v. Forgue, No. 07-MC-6027, 2008 WL 282201 (W.D.N.Y. Jan.30, 2008) ................................................. 8

Williams v. New York City Hous. Auth., 975 F. Supp. 317 (S.D.N.Y. 1997) ..................................................................................... 15, 16


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Willingham, et al. v. County of Albany, et al., No. 04 Civ. 04-369 (N.D.N.Y.) .................................................................................................. 8

Wise v. Kelly, 620 F. Supp. 2d 435 (S.D.N.Y. 2008) ........................................................................................ 7

Xstrata Canada Corp. v. Mauriello, No. 09-cv-1250, 2014 WL 4900068 (N.D.N.Y. Sept. 30, 2014) .............................................. 12

Statutes

2006 U.S.C.C.A.N. 618 ........................................................................................................ 2, 7, 18

2006 U.S.C.C.A.N. 665 ........................................................................................................ 2, 7, 18

28 U.S.C. § 1927 ........................................................................................................................... 11

42 U.S.C. § 1988 ......................................................................................................................... 1, 4

52 U.S.C. § 10310 ......................................................................................................... 1, 4, 5, 7, 18

Other Authorities

H.R. Rep. No. 109-478 (2006) .............................................................................................. 2, 7, 18


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INTRODUCTION

This Court has already granted Plaintiffs their attorneys’ fees. What follows below is a

summation of the reasonableness of the fees already awarded. But the award of fees is more than

a decree by a federal court—although, it is of course that. The award is also more than a

mandate of Congress—although, it is of course that. More important than these are the public

goods that animate the judicial and congressional determinations to award fees in cases where

Plaintiffs vindicate successfully their rights under the Voting Rights Act. Here, Plaintiffs Anne

Pope, Wanda Willingham, Geraldine Bell, Samuel Coleman, Lee Pinckney, Vicente Alfonso,

and Elaine Frazier (the “Plaintiffs”) did exactly that in successfully challenging the County of

Albany’s (the “County”) illegal redistricting plan for violating the Voting Rights Act.

The fee award serves the public good. It encourages those, such as Plaintiffs here, that

otherwise might not dare to pursue the realization of their most fundamental of Constitutionally

guaranteed rights—the right to meaningfully exercise their franchise to police those entrusted

with the power to police their community. These formidable rights demand vindication. But

substantial risk adheres to the long, meandering path to justice that most Voting Rights Act cases

must traverse and creates a formidable bar to such vindication. Thus, to encourage lawyers to

heed the public interest and take on important voting rights cases like this one, it allowed

prevailing parties—like Plaintiffs here—to recover attorneys’ fees and costs incurred to vindicate

the voting rights of minorities. 52 U.S.C. § 10310(e); see also 42 U.S.C. § 1988(b)–(c).

Incentive in the form of a fee award is a critical component of the Act. For example,

taking on this complicated voting rights case involved substantial risk for Plaintiffs’ counsel,

Gibson, Dunn & Crutcher LLP (“Gibson Dunn”) and DerOhannesian & DerOhannesian

(“D&D”). No other lawyers were willing to take the case—not even the national public interest

organizations that supported the prior voting rights lawsuit against Albany County. Had


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Plaintiffs lost, counsel would recover nothing for the thousands of attorney hours and out-of-

pocket expenses the two firms incurred in championing fundamental rights where no others

would. The three years of intense and sustained litigation saw Plaintiffs through a full

preliminary injunction hearing, an expedited appeal to the U.S. Court of Appeals for the Second

Circuit, the full discovery cycle, a successful motion for summary judgment, and an 11-day trial.

In the end, Plaintiffs prevailed and this Court ruled that the County’s legislative map violated the

Voting Rights Act.

These are exactly the circumstances that warrant a fee award. As the Voting Rights Act’s

legislative history makes plain, Congress provided the fee award “to ensure that those minority

voters who have been victimized by continued acts of discrimination are made whole.” H.R.

Rep. No. 109-478, at 64–65 (2006), reprinted in 2006 U.S.C.C.A.N. 618, 665. The “continued

acts of discrimination” extant here truly warrant a fee award. One violation of the Voting Rights

Act is unacceptable. A second violation is unconscionable. Yet Albany County has achieved the

trifecta; they are three for three. A fourth violation cannot be permitted, and a fee award may

well deter a violation based on the approaching 2020 census.

Defendants will doubtlessly challenge Plaintiffs application in both the court and in the

public forum. But Defendants cannot escape the inarguable reality that each and every dollar of

any fee award to Plaintiffs’ counsel is a product of Defendants’ recalcitrance. Defendants are

the sole source of this application. But for their illegal violation of the Voting Rights Act, no fee

award would exist. Not content to simply violate the law, Defendants vexatiously multiplied and

extended the instant litigation thereby unreasonably increasing Plaintiffs’ attorney’s fees and

costs. Indeed, Plaintiffs hoped this litigation would be resolved quickly and amicably, far in

advance of the 2011 County legislative elections. Plaintiffs tried to settle this action from the


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outset and, as this Court is well aware, tried again and again and again along the way to achieve

a final settlement. But Defendants repeatedly rebuffed settlement efforts, and twice failed to

effectuate a settlement because of political bickering among themselves. Defendants opted

instead to challenge Plaintiffs’ claims all the way through trial—even after both the County

Executive and the Legislature conceded that the County had violated the Voting Rights Act by

not including five MMDs.

Plaintiffs’ counsel’s request here is reasonable. Although Plaintiffs’ counsel is entitled to

all of its fees and expenses in litigating this lengthy and hard fought case,1 Gibson Dunn has

voluntarily chosen not to seek the full fee award to which it is entitled. First, Gibson Dunn has

significantly reduced the hours for which it seeks fees by excluding all time for 48 timekeepers,

including those who spent less than 100 hours in the aggregate on the case, and excluding all

non-lawyer time that would ordinarily be chargeable. Second, after excluding these timekeepers

and categories of time, Gibson Dunn has also reduced its overall fee request by 20%. Third,

Gibson Dunn has also promised to donate $100,000 of its fee award above the out-of-pocket

costs it incurred to the Albany Chapter of the NAACP and to Centro Cívico. These voluntary

reductions amount to more than $2 million. Subtracting that significant reduction, Gibson Dunn

requests an award of $6,295,935.00 in legal fees, based on 12,648.73 hours worked, and

$115,060.74 in expert fees and other out-of-pocket costs. Plaintiffs’ counsel at Gibson Dunn

requests that this Court award its fees based on its standard hourly rates, which are market rates

paid by clients across the country. It was reasonable for Plaintiffs to engage out-of-town counsel

1 Importantly, Congress did not specify or limit the amount of fees and expenses that are

recoverable in a successful Voting Rights Act case. Instead, Congress allowed Plaintiffs to prosecute their cases knowing that, if they won, they could recover whatever reasonable fees and expenses were reasonably incurred along the way. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).


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in this case in view of Gibson Dunn’s expertise and prior experience litigating voting rights cases

in Albany as well as the politically controversial nature of this case. Indeed, absent the resources

of a firm such as Gibson Dunn, this litigation would likely never have proceeded. See, e.g.,

Heng Chan v. Sung Yue Tung Corp., No. 03 Civ. 6048, 2007 WL 1373118, at *3 (S.D.N.Y. May

8, 2007) (“The institutional resources of a large firm such as Skadden, with the higher overhead

and other costs that go with them . . . were in all likelihood a necessary condition for the

successful prosecution of this multi-year action involving a host of witnesses and parties,

numerous boxes of documents, and depositions and investigations conducted in four languages.

It would have been difficult, if not impossible, for most small civil rights firms or nonprofit

organizations to take on the case at all[.]” (internal citation omitted)). Even with such resources,

Gibson Dunn sought to defray costs by contacting the NAACP, the NAACP Legal Defense

Fund, the New York Civil Liberties Union, and the Lawyers’ Committee for Civil Rights;

however, none of them invested money or attorney time in this case.

Plaintiffs also seek $522,612.50 in legal fees and $29,858.75 in costs to D&D, which

were reasonably incurred during the course of this contested litigation and should be awarded in

full. Simply put, the knowledge and expertise of D&D as local counsel was indispensable to this

litigation.

ARGUMENT

I. The Fees Incurred By Plaintiffs’ Counsel In Prosecuting This Hard-Fought Litigation Are Reasonable

In a Voting Rights Act action, “the court, in its discretion, may allow the prevailing party

. . . a reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation expenses

as part of the costs.” 52 U.S.C. § 10310(e); see also 42 U.S.C. § 1988(b)–(c) (providing for

attorney’s fees and expert fees to the prevailing party in proceedings in vindication of civil


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rights). Here, Plaintiffs are prevailing parties pursuant to the Court’s Order “award[ing]

attorney’s fees to Plaintiffs.” Dkt. 427 at 80; see 52 U.S.C. § 10310(e); 42 U.S.C. § 1988.

Courts first determine the award of a reasonable attorney’s fee by calculating the

“number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”

Hensley, 461 U.S. at 433; Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany

& Albany Cnty. Bd. of Elections, 522 F.3d 182, 186 (2d Cir. 2008). There is a “strong

presumption” that the resulting amount, known as either the “lodestar figure” or the

“presumptively reasonable fee,” represents a reasonable attorney’s fee. Pennsylvania v. Del.

Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565 (1986); Arbor Hill, 522 F.3d at 190.

Plaintiffs’ retention of Gibson Dunn and D&D was a necessary step in bringing this

litigation, and paying each firm’s regular hourly rates is warranted in this case. Further,

Plaintiffs’ counsel has expended a reasonable amount of hours in their prosecution of this

important litigation. See Miroglio S.P.A. v. Conway Stores, Inc., 629 F. Supp. 2d 307, 312

(S.D.N.Y. 2009) (“The critical inquiry is whether, at the time the work was performed, a

reasonable attorney would have engaged in similar time expenditures.” (internal quotation marks

omitted)); Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (finding district court

should not “second guess experienced counsel in deciding whether the hours devoted to research

[and] drafting . . . were necessary [or] substitute [its] after-the-fact judgment for that of counsel

who engaged in whatever research and other activities they felt necessary”). This Court should

also award Plaintiffs the costs and disbursements necessarily incurred as part of this litigation.

See 52 U.S.C. § 10310.


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A. Gibson Dunn Is Entitled To Its Standard Rates, Which Are Reasonable Under The Circumstances Of This Litigation

Gibson Dunn seeks hourly rates in this petition that are eminently reasonable. See

Declaration of Mitchell Karlan dated May 5, 2015 (“Karlan Decl.”) ¶¶ 26–46 (listing average

hourly rates). While the prevailing hourly rates of the forum in which the Court sits are

presumptively reasonable, the Court has “discretion to determine . . . what constitutes a

reasonable fee.” Berkshire Bank v. Tedeschi, No. 11-CV-0767, 2015 WL 235848, at *2–3

(N.D.N.Y. Jan. 16, 2015) (Kahn, J.). Further, an attorney’s hourly rate is presumptively

reasonable where a reasonable paying client is willing to pay those rates. Arbor Hill, 522 F.3d at

191. Additional relevant factors the court may consider in determining a reasonable rate include:

(i) “the complexity and difficulty of the case”; (ii) “the available expertise and capacity of the

client’s other counsel”; (iii) “the resources required to prosecute the case effectively”; and (iv)

“the timing demands of the case.” Osterweil v. Bartlett, No. 09-CV-825, 2015 WL 1066404, at

*5 (N.D.N.Y. Mar. 11, 2015). Application of those factors here demonstrates that Gibson

Dunn’s standard rates are reasonable, even if higher than the prevailing rates in this District.

The rates sought here are consistent with the prevailing market in New York City.2 See

Karlan Decl. ¶¶ 47–51, Exs. 3–4. Clients all over the country in fact pay the undiscounted rate

for the full amount of Gibson Dunn’s services. Id. ¶ 51.3 Here, a reasonable, paying client

2 Although the majority of the attorneys providing legal services on this matter practice in

New York, certain associates practice in Gibson Dunn’s Washington, D.C. office and charges rates commensurate with that market. See Karlan Decl. ¶ 47 n.2.

3 See Arbor Hill, 522 F.3d at 191 (“[A] district court may use an out-of-district hourly rate . . . if it is clear that a reasonable, paying client would have paid those higher rates.”); Lilly v. County of Orange, 910 F. Supp. 945, 949 (S.D.N.Y. 1996) (“The actual rate that counsel can command in the market place is evidence of the prevailing market rate.”).


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would pay Gibson Dunn’s rates because of Gibson Dunn’s skill and ability to take this case

through more than three years of litigation and trial.

Indeed, Plaintiffs acted reasonably in retaining Gibson Dunn as out-of-district counsel. A

litigant may overcome the presumption of applying in-district rates if she can “establish that a

reasonable client would have selected out-of-district counsel because doing so would likely (not

just possibly) produce a substantially better net result.” Osterweil, 2015 WL 1066404, at *5.4

Plaintiffs’ decision to retain out-of-district counsel was unquestionably reasonable here, because

prosecuting this action required:

1. A law firm with significant financial resources, as the case entailed substantial out-of-pocket expenses that no smaller firm could absorb, including fees for necessary expert witnesses that Gibson Dunn had to be able to pay at the risk of never receiving reimbursement.5 Declaration of Paul DerOhannesian II dated May 5, 2015 (“DerOhannesian Decl.”) ¶¶ 4–5.

2. A law firm with significant employee resources, for in addition to expert and normal case costs, this litigation lasted for nearly four years and required an enormous investment of attorney and staff time, countless personnel hours that similarly would

4 In conducting this inquiry in a pro bono matter undertaken by a law firm similar to

Gibson Dunn, New York courts find it “appropriate to award a relatively high hourly rate that reflects the institutional resources that made it possible for these attorneys to take on the case.” Heng Chan, 2007 WL 1373118, at *3; see also Wise v. Kelly, 620 F. Supp. 2d 435, 446 (S.D.N.Y. 2008) (stating that Skadden, Arps, Slate, Meagher & Flom, litigating a civil rights case as pro bono counsel, was entitled to higher rates than a small civil rights firm by virtue of its lawyers’ “skills and experience”). “The reasonableness of a fee award does not depend on whether the attorney works at a private law firm or a public interest organization.” Arbor Hill, 522 F.3d at 184 n.2, amending 493 F.3d 110 (2d Cir. 2007).

5 Congress amended the Voting Right Act in 2006 to allow for the recovery of reasonable expert fees. 52 U.S.C. § 10310. In discussing the amendment, the House Report noted that “much of the burden associated with either proving or defending a Section 2 vote dilution claim is established by information that only an expert can prepare. In harmonizing the [VRA] with other Federal civil rights laws, the Committee also seeks to ensure that those minority voters who have been victimized by continued acts of discrimination are made whole.” H.R. Rep. No. 109-478, at 64–65 (2006), reprinted in 2006 U.S.C.C.A.N. 618, 665.


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have been untenable for a smaller firm, and indeed did place a substantial burden on Gibson Dunn’s local co-counsel, D&D.

3. A law firm unfettered by the concerns and influences local politics place on local counsel, as Section 2 cases are inevitably politically charged, deterring local counsel from representing Plaintiffs—facts to which Carolyn McLaughlin, Aaron Mair, and Anne Pope attest. See Declaration of Carolyn McLaughlin dated May 4, 2015 ¶¶ 3–4; Declaration of Aaron Mair dated May 4, 2015 (“Mair Decl.”) ¶¶ 4–10; Declaration of Anne Pope dated May 5, 2015 ¶¶ 3–6; Karlan Decl., Ex. 8, Trial Tr. 1162:4–7 (“[I]t was hard to get any other attorneys within the Albany area” to serve as counsel in a similarly divisive action to enforce the consent decree in Banks v. City of Albany, 95-cv-761 (N.D.N.Y.), which involved remedial measures to address racial discrimination in Albany’s Fire Department’s hiring practices.); DerOhannesian Decl. ¶ 6.

4. A law firm with significant expertise in litigation causes under the Voting Rights Act, requirements Gibson Dunn more than competently fulfills6 as evidenced by its leadership in litigating (i) the successful challenge to the County’s redistricting plan in the Arbor Hill litigation, and (ii) a successful challenge against the County’s practices with absentee ballots. See Karlan Decl. ¶ 24; Trial Ex. P-26, Willingham, et al. v. County of Albany, et al., No. 04 Civ. 04-369 (N.D.N.Y.).

It was thus reasonable for Plaintiffs here to choose Gibson Dunn based on its size,

resources, and prior relevant experience, and Gibson Dunn was able to “produce a substantially

better net result” based at least in part on this prior experience. Simmons v. N.Y. City Transit

Auth., 575 F.3d 170, 175–76 (2d Cir. 2009); see also Wash. Mut. Bank v. Forgue, No. 07-MC-

6027, 2008 WL 282201, at *1 (W.D.N.Y. Jan.30, 2008) (awarding Southern District rates in a

case litigated in the Western District of New York where “[p]etitioner would have retained [his

counsel] for this matter in the Western District . . . since [the same counsel] has been

representing [p]etitioner throughout these proceedings and is familiar with ancillary proceedings

6 Long-time Gibson Dunn Partner Mitchell Karlan, in particular, is qualified to serve as

lead counsel, in light of his extensive experience litigating civil rights matters. See Karlan Decl. ¶¶ 24–25; DerOhannesian Decl. ¶¶ 6–7. When experienced attorneys are involved, courts have awarded fees at relatively high rates in similar redistricting cases. Favors v. Cuomo, 39 F. Supp. 3d 276, 302 (E.D.N.Y. 2014) (“When experienced attorneys are involved, courts have awarded fees at relatively high rates in redistricting cases.”). Paul DerOhannesian has similarly deep experience in Voting Rights Act litigation. DerOhannesian Decl. ¶¶ 6–8.


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by other parties against [p]etitioner”). Indeed, had Plaintiffs been discouraged from retaining

out-of-town counsel, this case might not have been possible at all—which would have plainly

ended the possibility of a “better net result.” See DerOhannesian Decl. ¶¶ 9–10. Gibson Dunn

reached out to major civil rights organizations, including the NAACP and the Lawyers’

Committee for Civil Rights, during the course of this litigation in order to ask for assistance;

these national organizations were unable to provide monetary assistance or lawyer time in this

litigation. Karlan Decl. ¶ 5; see also Mair Decl. ¶¶ 4–5. Accordingly, there is little doubt that

local or regional organizations or law firms would have had the capacity to take on this

important matter. “There is good reason for a district court not be wed to the rates in its own

community. If they are lower than those in another district, skilled lawyers from such other

district will be dissuaded from taking meritorious cases in the district with lower rates.” A.R. ex

rel. R.V. v. New York City Dep’t of Educ., 407 F.3d 65, at 81 & n.17 (2d Cir. 2005).

B. DerOhannesian & DerOhannesian Are Entitled To Their Standard Rates, Which Are Reasonable For The Northern District Of New York

Reasonable paying clients are willing to—and do—pay D&D’s standard hourly rates for

legal services in cases of less complexity and duration. D&D’s regular rates are currently $375

per hour for Paul DerOhannesian as a partner, and $215 per hour for associates. DerOhannesian

Decl. ¶ 57. These are the rates charged by D&D for services performed in Albany and elsewhere

and thus reflect the actual market rate. Id. ¶ 59.

These rates are within the reasonable range of attorneys’ fees granted by this Court in

prior cases. See id. ¶ 58. In Legends, the Court granted attorneys’ fees of $350 per hour for

partners and $275 per hour for associates. Legends Are Forever, Inc. v. Nike, Inc., No. 12-CV-

1495, 2013 WL 6086461, at *4 (N.D.N.Y. Nov. 18, 2013) (Kahn, J.) (also noting that prevailing

rate has risen in recent years). Additionally, a Court has discretion to choose either “some rate in


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between the out-of-district rate sought and the rates charged by local attorneys . . . if it is clear

that a reasonable, paying client would have paid those higher rates.” Arbor Hill, 522 F.2d at 191

(2d Cir. 2008).

Recent cases establish that prevailing rates in Albany are up to $345.00 per hour for

partners and up to $250 for associates. Fees for D&D are consistent with these prevailing rates.

S.M. v. Taconic Hills Cent. Sch. Dist., No. 09-CV-1238, 2013 WL 1181581, at *2 (N.D.N.Y.

Mar. 20, 2013) (Kahn, J.); Aquent, LLC v. Atl. Energy Servs., Inc., No. 09-CV-0524, 2012 WL

1005082, at *3 (N.D.N.Y. Mar. 23, 2012) (awarding fees in the amount of $345 per hour for

senior partner work); Trudeau v. Bockstein, 05-CV-1019, 2008 WL 3413903, at *5–6 (N.D.N.Y.

Aug.8, 2008) (Kahn, J.) (awarding attorneys’ fees for local counsel with hourly rates of $345,

$275, $250, and $190); Bosket v. NCO Fin. Sys., Inc., No. 11-CV-00678, 2012 WL 4093023, at

*3 (N.D.N.Y. Sept. 17, 2012) (Kahn, J.) (awarding fees at a rate of $335 per hour for partners

and $250 per hour for associates); Berkshire Bank v. Tedeschi, No. 11-CV-0767, 2015 WL

235848, at *2–3 (N.D.N.Y. Jan. 16, 2015) (Kahn, J.) (“Recent cases in the Northern District have

upheld hourly rates between $250 and $345 for partners; between $165 and $200 for

associates”); DerOhannesian Decl. ¶ 59. D&D’s legal services were integral to success of this

case, and D&D is entitled to reasonable attorneys’ fees at its normal rates.

C. Counsel’s Hours Spent On This Case Are Reasonable

Plaintiffs’ counsel seek fees based on 12,648.73 Gibson Dunn hours and 1892.5 D&D

hours spent prosecuting this action, both in this Court and on appeal. Gibson Dunn has

voluntarily excluded from this calculation of hours the time spent by any attorney whose

aggregate time spent working on the case totaled fewer than 100 hours, as well as hours spent by

summer associates, paralegals, and other non-lawyer personnel. Karlan Decl. ¶ 56. Although

Gibson Dunn would be fully entitled to an award for these fees, in all, Gibson Dunn has


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excluded time spent by 48 timekeepers, who together would have charged $860,339.40 in fees.

Id.

This case involved significant motion practice, deposition preparation, and trial

preparation. See Karlan Decl. ¶¶ 7–21. The legal services provided by Plaintiffs’ counsel

included: briefing the motion for a preliminary injunction and the resulting two day hearing; an

expedited Second Circuit appeal and oral argument; dozens of document productions from the

parties; twenty-three fact witness depositions; preparing ten expert reports from Plaintiffs’ three

experts, and analyzing the conclusions of Dr. Gaddie and Defendants’ proffered-expert Dr.

Monogan; four expert depositions; multiple discovery disputes; briefing the motion for discovery

sanctions as a result of Defendants’ destruction of documents, an appeal of the Magistrate

Judge’s decision, and a related motion to compel additional discovery; briefing a motion to

compel the deposition of Thomas Marcelle, and related briefing on Defendants’ motion to quash

the trial subpoena issued to Thomas Marcelle; briefing a motion for partial summary judgment;

briefing a motion for leave to file a second amended complaint; defeating Defendants’ motion

for summary judgment; briefing Defendants’ multiple attempts to replace their expert; extensive

pre- and post-trial briefing; preparing for eleven days of trial testimony, and actually trying the

case before Your Honor. Id.; DerOhannesian Decl.¶¶ 12–51. In order to avoid doubt regarding

whether the amount of time expended on this litigation was reasonable, Gibson Dunn is

voluntarily excluding 20% of its fees, resulting in Plaintiffs’ request for $6,295,935.00 in

attorneys’ fees awarded to Gibson Dunn. Karlan Decl. ¶¶ 2, 57.

A significant portion of the legal services provided by Gibson Dunn and D&D was

necessitated by Defendants’ own conduct. Indeed, Defendants needlessly, unreasonably, and

vexatiously multiplied the proceedings in this litigation in bad faith. See 28 U.S.C. § 1927; Ctr.


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Cadillac, Inc. v. Bank Leumi Trust Co. of New York, 878 F. Supp. 626, 628 (S.D.N.Y.), aff’d, 99

F.3d 401 (2d Cir. 1995); Xstrata Canada Corp. v. Mauriello, No. 09-cv-1250, 2014 WL

4900068, at *3 (N.D.N.Y. Sept. 30, 2014) (Kahn, J.).

First, Defendants misled Plaintiffs, Plaintiffs’ experts, the Court, and the public, by

repeatedly failing to disclose that their analysis was based on the restrictive single-race black

definition of minority for the determination of whether a fifth MMD was possible under the first

Gingles precondition. This not only may have altered the outcome of the preliminary injunction

motion and led to an early settlement, but it ultimately required extensive additional work by

Plaintiffs’ counsel and their experts to unpack and uncover what Defendants’ alleged attempts at

creating a fifth MMD entailed and what definition Defendants’ expert Dr. Gaddie was relying

upon in which pieces of his analysis. DerOhannesian Decl. ¶ 24. Indeed, this discovery resulted

in (i) additional expert reports rebutting Dr. Gaddie’s findings on the first Gingles precondition

(see Dkt.212-8); (ii) extensive attorney and expert time after Dr. Gaddie revised his original

deposition testimony in an errata sheet to indicate his statistical analyses on the second and third

Gingles preconditions were based on a non-Hispanic DOJ Black definition (see Dkt. 154); and

(iii) an additional deposition of Dr. Gaddie to investigate and confirm the errata sheet’s radical

change. See Dkts. 156, 186.

Second, Plaintiffs were forced to respond to Defendants’ repeated motions to substitute

their expert Dr. Gaddie and, after those motions were denied, to take his trial testimony by some

other means, requests that were also denied after Plaintiffs opposed them. See, e.g., Dkts. 267,

272, 286, 297, 325; DerOhannesian Decl. ¶¶ 31–42. Defendants ultimately offered no expert

testimony on summary judgment, or at trial.


13

Third, Defendants were provided with multiple opportunities to settle this case but failed

to do so, which required additional work by Plaintiffs’ counsel and experts. These settlement

efforts included, among other things, preparing written mediation submissions, creating proposed

settlement maps amongst Plaintiffs and their expert, and attending multiple mediation

conferences. Karlan Decl. ¶ 17; DerOhannesian Decl. ¶¶ 28–29, 46. Even when Defendants

themselves initiated mediation before Magistrate Judge Hummel after losing their motion for

summary judgment, they failed to meaningfully engage in the mediation process until the very

end, backtracking on settlement terms already agreed upon. Defendants later failed to comply

with their own agreements regarding two Court-approved settlements that were negotiated in the

midst of trial by failing even to bring the proposals to a vote in the Legislature, even though all

public statements indicated that the individual legislators and County leadership wanted the relief

Plaintiffs ultimately achieved: a fifth MMD. See Dkts. 265, 279, 360, 374; Karlan Decl. ¶¶ 18–

21; DerOhannesian Decl. ¶ 30. Indeed, testimony at trial established that no legislators objected

to the creation of a fifth MMD.

Defendants’ unnecessary prolongation of this litigation was arguably sanctionable in its

own right, and certainly the work Plaintiffs’ counsel was forced to undertake to combat it is fully

compensable under the fee shifting provision of the VRA. Cf. United States v. Int’l Bhd. of

Teamsters, 948 F.2d 1338, 1344–45 (2d Cir. 1991) (holding that § 1927 “imposes an obligation

on attorneys throughout the entire litigation to avoid dilatory tactics” (citation omitted)); Page v.

Grandview Mktg., No. 09-cv-1150, 2010 WL 4923485, at *3 (D. Nev. Nov. 29, 2010) (imposing

sanctions after counsel continued litigation despite party informing attorney they did not wish to

pursue the action); Salvin v. Am. Nat’l Ins. Co., 281 F. App’x 222, 223 (4th Cir. 2008)

(upholding the district court’s § 1927 sanctions against counsel for unreasonably and vexatiously


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continuing to litigate the case despite his awareness that the claims lacked merit); Gollomp v.

Spitzer, No. 06-CV-802, 2007 WL 433361, at *8–9 (N.D.N.Y. Feb. 5, 2007) (imposing § 1927

sanctions when counsel continued to litigate meritless and legally deficient claims).

The time spent was necessary in order to successfully prosecute this action. Voting

Rights Act litigation is complex, time-consuming, and expensive, especially when the case

proceeds to trial.7 Plaintiffs’ claims required the development and presentation of statistical and

other expert testimony, as well as extensive testimony regarding the County’s minority

community and redistricting process. The billing partners on this matter have affirmed under

oath that all hours and costs claimed in connection with this motion were reasonable and

necessary to the successful prosecution of Plaintiffs’ claims. Karlan Decl. ¶ 52; DerOhannesian

Decl. ¶¶ 10, 56.

D. Plaintiffs Are Entitled To Reasonable Fees For The Entirety Of This Litigation Regardless Of Any Interlocutory Decisions

Plaintiffs seek reasonable fees for the entirety of the instant litigation. Fees should not be

reduced based on whether Plaintiffs won or lost any particular claims or interlocutory decisions.

In Hensley, 461 U.S. 424, the Supreme Court held that “[w]here a lawsuit consists of related

claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced

simply because the district court did not adopt each contention raised.” Id. at 440. The Second

Circuit has held that “if the plaintiff won substantial relief, and all of his claims for relief

‘involve[d] a common core of facts’ or were ‘based on related legal theories,’ so that ‘[m]uch of

counsel’s time w[as] devoted generally to the litigation as a whole, making it difficult to divide 7 For example, in a Section 2 litigation in Washington State that was also recently resolved

in plaintiffs’ favor, the plaintiffs filed an application seeking $2.2 million in attorney’s fees. See Karlan Decl., Ex. 5. Notably, plaintiffs in that case prevailed after the court ruled in their favor on summary judgment, and did not involve the significant expense of trial.


15

the hours expended on a claim-by-claim basis,’ there should be a fee award for all time

reasonably expended.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 762 (2d Cir. 1998) (citing

Hensley, 461 U.S. at 435).

Courts have found that where a party’s claims stem from a common core of facts, they

may be considered “related” for the purpose of satisfying the Hensley standard. LeBlanc-

Sternberg, 143 F.3d at 762–63 (finding that plaintiffs were entitled to attorney’s fees on most of

their claims because they were “based on the same core of facts and law,” noting for example,

that “plaintiffs’ legal and equitable claims against the Village were clearly based on the same

conduct and the same FHA and First Amendment principles”); Grant v. Martinez, 973 F.2d 96,

101 (2d Cir. 1992) (finding that “[i]n the present case, all of appellees’ claims were based on a

common core of facts, thus there were no unrelated claims to which step one of the Hensley

analysis might be applied”); Williams v. New York City Hous. Auth., 975 F. Supp. 317, 320

(S.D.N.Y. 1997) (finding that “[h]ere, because all of plaintiffs’ claims were based on a common

core of facts, there were no unrelated claims for which plaintiffs' attorney's hours should be

excluded”). Plaintiffs’ claims in the instant lawsuit were clearly based on a common core of

facts—Defendants’ unlawful redistricting in 2011, as well as a common core of law—the

standards set forth under Section 2. Because all of Plaintiffs’ claims stem from a common core

of facts and law, Plaintiffs satisfy the first prong of the Hensley test.

Plaintiffs also satisfy the second prong of the Hensley test. Plaintiffs filed this action

seeking relief under Section 2 of the Voting Rights Act. In its March 24, 2015 decision, “[a]fter

an exhaustive inquiry into the facts and circumstances of this case, the Court f[ound] that

Plaintiffs have satisfied the three Gingles preconditions, and that the totality of the

circumstances—in particular the persistent presence of racial bloc voting, the continued low


16

levels of minority-preferred candidate success, the lingering effects of past discrimination that

continue to inhibit minority participation in the electoral process, and the questionable manner in

which the County conducted its redistricting process—demonstrate that Local Law C dilutes the

voting strength of black voters in the County.” Dkt. 427 at 79. Plaintiffs thus won substantial

relief in the outcome of the litigation, as opposed to only achieving limited success. Regarding

this standard, the Hensley court elaborated: “Where a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee. Normally this will encompass all hours

reasonably expended on the litigation, and indeed in some cases of exceptional success an

enhanced award may be justified.” Hensley, 461 U.S. at 435; see also Favors, 39 F. Supp. 3d at

291. However, the fact that a party does not prevail on every contention or receive all relief

requested does not indicate that the party only achieved limited success. See Grant, 973 F.2d at

101–02 (finding that a downward adjustment of attorney’s fees for alleged “limited success” was

not warranted, even though the parties settled for only $60,000 and did not receive all relief

requested, because “a plaintiff who failed to recover damages but obtained injunctive relief, or

vice versa, may recover a fee award based on all hours reasonably expended if the relief obtained

justified that expenditure of attorney time”); Williams, 975 F. Supp. at 320–21 (declining to

adjust attorney’s fees downward even though the relief provided differed in some respects from

the relief originally requested because plaintiffs “succeeded in achieving due process protections

equivalent to those originally envisioned”).

Contrary to the public assertions made by Defendants, the Second Circuit’s affirmance of

this Court’s denial of Plaintiffs’ preliminary injunction motion was not a victory for Defendants.

Pope, et al. v. County of Albany, et al., 687 F.3d 565 (2d Cir. 2012). The Second Circuit adopted

Plaintiffs’ argument that the first Gingles precondition did not require a “supermajority,” and


17

could instead be a simple majority. Id. at 573–74. In addition, the Second Circuit provided

support for the argument that anecdotal evidence can establish a finding of political cohesion.

See id. at 572 n.5 (“Courts must rely on other factors to determine” cohesion). These findings—

which were new developments to the case law—allowed for Plaintiffs to successfully bring their

motion for partial summary judgment, defeat Defendants’ motion for summary judgment, and

ultimately prevail at trial. DerOhannesian Decl. ¶ 16.

In the instant case, Plaintiffs obtained substantial relief in the outcome of their litigation.

The final judgment and decision awarded Plaintiffs the relief that they sought—an order that

Albany County immediately create a remedial redistricting plan with a fifth majority-minority

district in order to provide minority voters with a real opportunity to elect candidates of their

choice. See Dkt. 427 at 80. Because Plaintiffs successfully obtained substantial relief in their

litigation, Plaintiffs’ fees should not be reduced based on any lost claims or interlocutory

decisions. Plaintiffs are entitled to reasonable fees for the entirety of the litigation.

II. The Litigation Costs Incurred By Plaintiffs’ Counsel In Prosecuting This Hard-Fought Litigation Are Reasonable

Plaintiffs also seek the reimbursement of the out-of-pocket costs incurred by Gibson

Dunn and D&D in prosecuting this action, including a total of $56,726.45 in expert fees covered

by Gibson Dunn and $58,334.29 in Gibson Dunn costs and disbursements; and a total of

$29,858.75 in D&D costs and disbursements.8 The Voting Rights Act attorney’s fees statute

provides that the Court may allow the prevailing party “reasonable expert fees, and other

8 Karlan Decl. ¶¶ 62–66, Exs. 6–7 (noting that plaintiffs seek $35,950.00 for Dr. Baodong

Liu’s expert fees and $20,776.45 for Mr. William Cooper’s expert fees); Karlan Decl. ¶¶ 67 (totaling Gibson Dunn’s costs and disbursements); DerOhannesian Decl. ¶¶ 66–67 (totaling DerOhannesian & DerOhannesian’s costs).


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reasonable litigation expenses as part of the costs.” 52 U.S.C. § 10310(e); see also H.R. Rep.

No. 109-478, at 64 (2006), reprinted in 2006 U.S.C.C.A.N. 618, 665.

And Courts do routinely award expert fees and costs, as well as costs and disbursements,

under 52 U.S.C. § 10310(e) and 42 U.S.C. § 1988. See, e.g., Favors, 39 F. Supp. 3d at 310

(awarding expert fees in a Voting Rights Act case). The expert fees for which reimbursement is

sought here are reasonable.9 This Court’s own extensive findings of fact regarding Plaintiffs’

expert testimony makes plain that experts are an undeniable essential to any VRA litigation. See

Dkt. 427 at 21–31, 45–60; see also supra n. 5. In addition, the costs and disbursements that

Plaintiffs seek are reasonable—they merely request reimbursement for costs that were actually

incurred and paid out-of-pocket, and those costs are properly recoverable as part of this Court’s

award.10 Karlan Decl. ¶¶ 60–61; DerOhannesian Decl. ¶ 60.

CONCLUSION

For all these reasons, Plaintiffs respectfully request that the Court award to Gibson Dunn

attorney’s fees of $6,295,935.00 and costs of $115,060.74, award to D&D attorney’s fees of

9 Plaintiffs’ expert fees are reasonable in part because Plaintiffs’ experts charged lower

rates than Defendants’ experts. Plaintiffs’ two paid experts charged a rate of $100 per hour. Defendants’ retained experts charged a rate of $300 per hour. See Dkt. 295-1 at 1, 18.

10 See, e.g., LeBlanc, 143 F.3d at 763 (“[A]ttorney’s fees awards include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” (internal quotation marks omitted) (quoting United States Football League v. National Football League, 887 F.2d 408, 416 (2d Cir.1989)); Kuzma v. Internal Revenue Service, 821 F.2d 930, 933–34 (2d Cir.1987) (“[I]dentifiable, out-of-pocket disbursements for items such as photocopying, travel, and telephone costs are generally taxable under § 1988 and are often distinguished from nonrecoverable routine office overhead, which must normally be absorbed within the attorney's hourly rate.”); Luessenhop v. Clinton Cnty., N.Y., 558 F. Supp. 2d 247, 271–72 (N.D.N.Y. 2008) aff’d, 324 F. App’x 125 (2d Cir. 2009) (noting that “[t]he cost of travel is allowable” and awarding plaintiff travel-related costs as well as a “liability expert fee” under 42 U.S.C. § 1988).


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$522,612.50 and costs of $29,858.75, and grant such other relief as the Court deems just and

proper.

Dated: May 5, 2015 Respectfully submitted,

GIBSON, DUNN & CRUTCHER LLP By: /s/ Mitchell A. Karlan Mitchell A. Karlan

[email protected] 200 Park Avenue New York, New York 10166-0193 Telephone: 212.351.4000 Fax: 212.351.4035 Bar Roll No. 511874

DEROHANNESIAN & DEROHANNESIAN Paul DerOhannesian II [email protected] 677 Broadway, Suite 707 Albany, New York 12207-2985 Telephone: 518.465.6420 Fax: 518.427.0614 Bar Roll No. 104792 Attorneys for Plaintiffs


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