1998 because the case was proceeding on three tracks simultaneously.
First, Plaintiffs were monitoring compliance with the Amended Remedial
Order. That task required analysis of complex reports, meetings with
Defendants' staff people, nagging of Defendants to obtain data and
reports which they rarely, if ever, produced on time, aiding class
members with reimbursement claims, and preparation for, and attendance
at, regularly scheduled lengthy status conferences.
Second, Plaintiffs briefed Defendants' appeal and their own
cross-appeal in the Court of Appeals. While settlement negotiations
were taking place during this same time frame, they could not be
completed before undertaking the appellate briefing because of delay
necessitated by Defendants' need to consult extensively with other
government officials who were often too busy to reach. Moreover,
Defendants refused to agree to an additional extension of the appellate
briefing schedule which, if consented to, would have obviated the need
for the expenditure of many hours.
Third, a great many hours were spent in the actual negotiations and
drafting which produced the parties' agreement and the final Settlement
Order. While Defendants complain about the hours billed by Ms. Millian,
who worked on this task in addition to Mr. Terris, the fact of the
matter is that Defendants themselves had numerous attorneys
participating in the early phases of the settlement discussions before
the parties agreed to limit themselves to Mr. Tens and Mr. Ferren. Even
at that point, it was essential that Mr. Terris consult with Ms. Millian
about the substance of those meetings, about the strategies to be
followed, and about what concessions could be legitimately made without
abandoning the relief that had been won for members of the Plaintiff
class. Finally, it was Mr. Ferren himself, as Corporation Counsel who
negotiated the agreement with Mr. Tens, who specifically requested that
Ms. Millian redraft the Amended Remedial Order to conform to the
parties' agreement. Numerous drafts were prepared and exchanged, and
even after it was believed that a final settlement had been reached, the
District of Columbia did not agree to it and there were significant
hours spent in further negotiations and redrafting.
Defendants do not seriously dispute any of these facts. Consequently,
the Court concludes, subject to the one instance discussed below, that
the case was not overstaffed, that appropriate billing judgment was
exercised by Plaintiffs as they state in their Declarations, and that,
overall, the number of hours billed by Plaintiffs' counsel was
reasonable and necessary.
Defendants further complain that Plaintiffs' counsels' time records
are not detailed enough and that they cannot justify all the hours for
which compensation is sought. The Court has carefully examined these
records (which are explained, summarized, and categorized at great
length in Plaintiffs' papers), and concludes that there is simply no
merit to Defendants' position. This is the very kind of "nit-picking"
which our Court of Appeals has discouraged and criticized.
Defendants have also objected to the 44 hours spent by Clifford Rohde
in researching and drafting an internal legal memorandum on the catalyst
theory of attorneys' fees recovery. The Court has already ruled that his
billing rate shall be set at $75.00 per hour. In addition, the number of
hours spent on this memorandum, which would amount to at least one
week's worth of work, is excessive. Consequently, that number will be
reduced by 50%, and Plaintiffs may be compensated for only 22 of the 44
hours Mr. Rohde spent on this project.
V. What Are Reasonable Litigation Expenses?
Plaintiffs have requested an award of $8,787.38 in out-of-pocket
litigation expenses for postage, photocopying, telephone calls,
messengers, local travel, Westlaw, transcripts, medical records and
miscellaneous ($1.50). Defendants make no serious challenge to either
the categories of expense nor the amounts, both of which the Court finds
to be eminently reasonable in light of the extensive legal services
For the reasons stated above, Plaintiffs' Motion for an Award of
Attorneys' Fees and Out-of-Pocket Expenses, for 1998 [# 689] is granted
in part and denied in part.
An Order will accompany this Opinion.