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Taucher v. Rainer

November 24, 2003

FRANK TAUCHER, ET AL., PLAINTIFFS,
v.
WILLIAM J. RAINER, ET AL., DEFENDANTS.



MEMORANDUM OPINION

Introduction

Plaintiffs are commodity advisory publishers and their subscribers. Defendants are the Commodity Futures Trading Commission ("CFTC") and its commissioners.

Plaintiffs prevailed in their constitutional challenge to a CFTC regulation that required the publishers to register with the agency before publishing information on commodity trading. Taucher v. Born, 53 F.Supp.2d 464 (D.D.C. 1999)(Urbina, J). The defendants' appeal was voluntarily dismissed and plaintiffs seek attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)*fn1("EAJA").

Prior Opinions

In my first opinion in this case, I concluded that the non-profit, tax-exempt public interest law firm that represented the plaintiffs, the Institute for Justice, was not a prevailing party entitled to make an application for fees under EAJA. Therefore, only clients of the Institute for Justice could be prevailing parties, and, in order to qualify, they had to file certificates establishing their eligibility under EAJA by showing that they each had a net worth less than $2,000,000. 28 U.S.C. § 2412(2)(B). See Taucher v. Rainer, 150 F.Supp.2d 24, 26 (D.D.C. 2001).

In a second opinion, I concluded that the defendants' position was not substantially justified and that there were no special circumstances that made an award of fees under EAJA unjust. Defendants also claimed, for reasons I will explain later, that none of the subscribers were prevailing parties. Since there were only three surviving publishers of the ten original plaintiffs, defendants insisted that plaintiffs should not receive more than 30% of the fees sought. I rejected this demand and indicated that I would make my decision based on the reasonableness of the fee request rather than reducing the fees by any strict percentage. Taucher v. Rainer, 237 F.Supp.2d 7, 16 (D.D.C. 2002).

The Fee Petition

Plaintiffs have filed a now-amended fee petition in which the attorneys who worked on the case have each filed affidavits, attesting that attached to their affidavits is"an itemized, contemporaneously recorded statement of the hours and description of the services rendered" by each attorney. Affidavit of Dana Berliner, Plaintiffs' Reply to Defendants' Memorandum in Opposition to Plaintiffs' Amended Application for Fees under the Equal Access to Justice Act, Exhibit A.*fn2

The statement of hours is a spreadsheet in the following format:

Date Hours Worked Description of Activity *fn3

Plaintiffs then take the total hours worked by all the attorneys, 1,451 hours, and multiply them by $125 to arrive, after certain adjustments, to the hourly fee they seek, $190,581.80. That includes $9,377.50 due an expert witness for his fees and disbursements. Reply at 3 and attached Expert Witness Documentation.

Defendants' Objections

Defendants advance the following objections to the petition:

1. Since the subscribers are not prevailing parties, all services done for the subscribers are not compensable.

2. Fees incurred opposing defendants' appeal are not compensable because plaintiffs did not prevail on appeal.

3. Fees pertaining to amici curiae (hereafter" amici") are not compensable because Judge Urbina's opinion made no mention of any argument made by amici.

4. The amount sought for 110 hours of trial time for the 6 lawyers who participated in the bench trial is excessive. Only the trial time of lead counsel, Scott Bullock, should be compensated.

2. Defendants' Memorandum in Opposition to Plaintiffs' Amended Application for Fees under the Equal Access to Justice Act"Opp."

3. Plaintiffs' Reply to Defendants' Memorandum in Opposition to Plaintiffs' Amended Application for Fees under the Equal Access to Justice Act"Reply"

5. The time spent briefing the issues resolved by my decision of December 18, 2002, Taucher, 237 F.Supp.2d at 7, was excessive and should be reduced.

6. Plaintiffs' counsel should not be compensated at the EAJA rate of $125 per hour until they first identify their usual billing rates.

7. The time spent by plaintiff's expert witness other than for the day before and the day of his attendance at trial should not be compensated due to the lack of documentation identifying the services he provided.

8. The time spent by plaintiffs' counsel advancing an argument that was rejected should not be compensated.

Finally, defendants make one additional objection that requires more explanation. When the case began, Bruce Babcock, a publisher, was ill. He subsequently died, and his case was dismissed on January 14, 1999. His estate never filed the required net worth statement. Neither did publisher, Frank Taucher, nor subscriber, Romer McPhee. Thus, two of the four prevailing publishers, Babcock and Taucher, and one of the five prevailing subscribers, McPhee, are not personally eligible for fees under EAJA because they never established a net worth of less than $2,000,000. See 28 U.S.C. § 2412 (d)(2)(B).

The eligibility of the plaintiffs is explained by the following chart that appeared in my opinion of December 19, 2002:

Plaintiff Receipt of Declaration Net Worth Less than $2M

1. Frank Taucher No n/a

2. Stephen Briese Yes Yes

3. Frederick J. Kastead*fn4 (replacing B. A. Thunman) n/a (Yes) n/a (Yes)

4. Bruce Babcock (Deceased) No n/a

5. Robert Miner Yes Yes

6. Galen Cawley Yes Yes

7. Arthur Hayner Yes Yes

8. Edward Hearne, III ...


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