Davis et al v. Perry et al, Docket No. 5:11-cv (W.D. Tex. Sept 22, 2011), Court Docket

Transcription

1 Davis et al v. Perry et al, Docket No. 5:11-cv (W.D. Tex. Sept 22, 2011), Court Docket Multiple Documents Part Description 1 23 pages 2 Exhibit Brister Affidavit 3 Exhibit Brister Expert Report 4 Exhibit Coding Designations 5 Exhibit Jenner & Block and Angle Strategies Timesheets 2013 Bloomberg Finance L.P. All rights reserved. Terms of Service // PAGE 1

2 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS OPPOSED MOTION FOR INTERIM AWARD OF ATTORNEY S FEES AND EXPENSES Defendants Rick Perry, in his official capacity as Governor, John Steen, in his official capacity as Secretary of State, and the State of Texas (collectively Defendants ) file this Response to the Davis Plaintiffs Opposed Motion for Interim Award of Attorney s Fees and Expenses. INTRODUCTION The Davis Plaintiffs challenged only one of the thirty-one Texas Senate Districts, and trial in this matter lasted less than two days, yet they seek an award more than $600, in attorney s fees and costs. See Davis Plaintiffs Opposed DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 1

3 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 2 of 23 Motion for Interim Award of Attorney s Fees and Expenses at 1 (Doc. 193) ( Davis Plaintiffs Motion ). 1 The Davis Plaintiffs are not entitled to recover any attorney s fees or costs. To the extent the Court awards them fees and costs, the award should be reduced substantially because (1) they are not prevailing parties; (2) they seek fees for work related to claims under Section 5 of the Voting Rights Act (VRA), which cannot be constitutionally assessed against Texas under Shelby County v. Holder; (3) they seek fees for time spent on an interim map redistricting plan that was rejected unanimously by the Supreme Court; (4) their time entries reflect only limited billing judgment; (5) they seek fees at excessive hourly rates; (6) they seek fees for non-compensable consulting and clerical work; and (7) they seek unrecoverable expenses. ARGUMENT I. Plaintiffs Are Not the Prevailing Parties. Plaintiffs should recover nothing because they are not prevailing part[ies] under 42 U.S.C. 1973l(e). The Davis Plaintiffs never received a judgment on the merits of any of their claims. Under binding precedent, that alone means they are not prevailing parties. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep t of Health & Human Res., 532 U.S. 598, 605 (2001); LULAC v. Texas Democratic Party, 428 F. App x 460, (5th Cir. 2011) (per curiam). Defendants have appealed this Court s contrary conclusion, see Final Judgment (Doc. 190); Notice of Appeal (Doc. 197), and urge this Court to reconsider this decision. The balance of this 1 The title of the Davis Plaintiffs motion indicates that they seek interim attorney s fees. Because they do not address the standard for interim attorney s fees, and final judgment has been entered in this case, Defendants do not address whether interim fees are appropriate. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 2

4 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 3 of 23 Response, however, assumes that the Court will not reconsider its prevailing-party ruling. II. Merely Qualifying as a Prevailing Party Does Not Entitle a Plaintiff to Any or All of Its Requested Fees and Expenses; Prevailing Parties are Entitled Only to Reasonable Fees. In its Final Judgment entered on September 4, 2013, this Court found that the Davis and LULAC Plaintiffs were prevailing parties entitled to reasonable attorney s fees and costs. Final Judgment at 2 (Doc. 190). The Davis Plaintiffs must prove that their request for fees is reasonable. The Fifth Circuit follows a twostep process in making this determination. First, the Court calculates the lodestar amount by multiplying the number of hours reasonably expended on the litigation by a reasonable hourly rate. Rutherford v. Harris Cnty, Tex., 197 F.3d 173, 192 (5th Cir. 1999). Second, the Court considers whether the lodestar should be adjusted upward or downward, depending on the circumstances of the case, and the factors set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). 2 Prevailing plaintiffs are entitled to recover fees only for reasonable time spent advancing successful claims. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). 3 2 The Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the question presented; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. See Johnson, 488 F.2d at The lodestar amount should not be adjusted due to one of the Johnson factors if that factor was considered in calculating the lodestar amount. See Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006) (per curiam). 3 There is a strong presumption against enhancing the award because the lodestar method yields a fee that is presumptively sufficient to achieve the objective of induc[ing] a capable attorney to undertake the representation of a meritorious civil rights case. See Fabela v. City of Farmers Branch, Tex., No. 3:10-CV-1425-D, 2013 WL , at *2 (N.D. Tex. June 13, 2013)(quoting DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 3

5 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 4 of 23 The party seeking an award of attorney s fees pursuant to the lodestar method bears the burden of justifying any fee award. See Saizan, 448 F.3d at 799. A. A Fee Award Must Be Proportional to the Plaintiff s Level of Success in the Litigation. The most critical factor in determining the reasonableness of a fee award in civil rights litigation is the degree of success obtained. Farrar v. Hobby, 506 U.S. 103, 114 (1992); Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). Thus, a fee award must be proportional to the plaintiff s success. Garcia v. City of Houston, 201 F.3d 672, 679 (5th Cir. 2000). A plaintiff may not be entitled to a fee award even though it technically prevailed in some part of the litigation. See Farrar, 506 U.S. at (plaintiff who recovers nominal damages in civil rights lawsuit technically qualifies as prevailing party but is not entitled to fee award). In other circumstances, a fee award may be reduced if the relief obtained, no matter how significant it may be, is limited in comparison to the scope of the litigation as a whole. Hensley, 461 U.S. at 440. In any event, the relevant inquiry is the success achieved and the reasonableness of time expended in relation to that success. See Albright v. Good Shepherd Hosp., 901 F.2d 438, 440 (5th Cir. 1990) (per curiam). When a plaintiff has achieved partial or limited success, the lodestar figure may be excessive even if the plaintiff s claims are interrelated, nonfrivolous, and raised in good faith. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, (5th Cir. 1998); see also Tex. State Teachers Ass n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 Perdue v. Kenny A. ex rel. Winn, 130 S.Ct. 1662, (2010) (alteration in original) (internal quotation marks omitted)); see also Perdue, 130 S.Ct. at 1674 (citation and quotation marks omitted) (enhancement to lodestar is appropriate only in rare and exceptional cases, requiring specific evidence that the lodestar fee would not have been adequate to attract competent counsel ). DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 4

6 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 5 of 23 (1989) (recognizing that where the plaintiff s claims involve common facts and related legal theories, the achievement of prevailing party status alone may say little about whether the expenditure of counsel s time was reasonable in relation to the success achieved (quoting Hensley, 461 U.S. at 436)). B. The Court Must Reject Duplicative or Excessive Hours. Additionally, the Court must review fee requests for the possibility of duplication of effort and eliminate any excessive or duplicative time that was not already eliminated by the requesting party (as it is required to do). Johnson, 488 F.2d at 717; see Saizan, 448 F.3d at 799 ( Billing judgment requires documentation of the hours charged and of the hours written off as unproductive, excessive, or redundant. ) Hours which, though actually expended, nevertheless are excessive, redundant, or otherwise unnecessary, or which result from the case being overstaffed, are not hours reasonably expended and are to be excluded from a fee award. Leroy v. City of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990) (citation and internal quotation marks omitted). Similarly, the Court must exclude from an attorney s fee award any hours spent in the passive role of an observer while other attorneys performed. Flowers v. Wiley, 675 F.2d 704, 705 (5th Cir. 1982). This is true whether the duplication occurs among multiple parties or within attorneys representing one party. See, e.g., LULAC v. Perry, No. 2:03-CV-354, 2007 WL , at *5 (E.D. Tex. Mar. 28, 2007) (rejecting an award of attorney s fees to one set of plaintiffs in part because any contribution to the record was cumulative of the efforts of other parties ); Donnell v. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 5

7 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 6 of 23 United States, 682 F.2d 240, 248 (D.C. Cir. 1982) (private parties seeking to recover fees under section 1988 when a governmental entity litigated on their side must demonstrate that their counsel actively participated throughout in the prosecution of the case and did not merely play[] a passive role in the litigation or contribute[] little or nothing of substance to the successful outcome (citations and internal quotation marks omitted)); In re Mid-State Fertilizer Co., 83 B.R. 555, 557 (Bankr. S.D. Ill. 1988) (attorney s fee award should be adjusted to reflect duplicative services rendered by attorneys representing other parties with a common interest in the case (citation and internal quotation marks omitted)). C. Parties Seeking Fee Awards Must Establish that the Requested Hours Were Reasonably Expended. In support of a fee request, the plaintiffs attorneys must detail the work performed with enough specificity to allow a court to determine the reasonableness of the hours claimed. See Hensley, 461 U.S. at 433; Ragan v. Comm r, 135 F.3d 329, 335 (5th Cir. 1998) (counsel seeking fee award cannot merely submit a broad summary of work performed and the hours logged, but rather must present adequate evidence of the hours spent on the case and that those hours were reasonably expended ). The Court must exclude vague, excessive, or inadequately documented time entries from an attorney s fee award. See League of United Latin American Citizens No (LULAC) v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1233 (5th Cir. 1997); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 327 (5th Cir. 1995) ( Litigants take their chances when submitting [vague] fee applications, as they provide little information from which to determine the reasonableness of the DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 6

8 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 7 of 23 hours expended on tasks vaguely referred to as pleadings, documents, or correspondence without stating what was done with greater precision. ); Leroy, 906 F.2d at 1080 (eliminating hours where the task descriptions are not illuminating as to the subject matter or are vague as to precisely what was done ). Similarly, a fee award cannot extend to block-billed time entries where attorneys group several different tasks into one time entry because it prevents the court from accurately determining the time spent on any particular task, thus impairing the court s evaluation of whether the hours were reasonably expended. See Fabela v. City of Farmers Branch, Tex., No. 3:10-CV-1425-D, 2013 WL , at *7 n.14 (N.D. Tex. June 13, 2013) (disallowing certain claimed hours partly because of the attorneys block-billed entries). Only those hours that survive this vetting process are considered hours reasonably expended on the litigation and subject to a fee award. Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993). D. Fee Awards Must Reflect Market Rates for Legal Services. The party seeking an attorney s fee award also bears the burden of justifying the reasonableness of its requested hourly rate. See Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984). In a case such as this, rates are to be computed according to the prevailing market rates in the relevant legal market, not the rates that lions at the bar may command. Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000) (quoting Leroy, 906 F.2d at 1079). The prevailing market rate is the rate charged for similar services by lawyers of reasonably comparable skill, experience, and reputation. Blum, 465 U.S. at 895 n.11. To reach this rate, the Court should DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 7

9 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 8 of 23 consider the type of representation involved and the subject matter of the litigation. See Fabela v. City of Farmers Branch, Tex., No. 3:10-CV-1425-D, 2013 WL , at *3 (N.D. Tex. June 13, 2013) ( Commercial litigation involves a different market for legal representation than does voting rights or civil rights litigation. ). The relevant legal market is generally the community where the district court sits, even if a party utilizes counsel from outside the district. Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000); McClain v. Lufkin Indus., 649 F.3d 374, (5th Cir. 2011). III. The Davis Plaintiffs Seek an Unreasonable Award of Attorney s Fees, Expenses, and Costs that Must Be Rejected or Substantially Reduced, Even if They Are Prevailing Parties. The Davis Plaintiffs request for $616, in fees and expenses should be denied because it does not reflect the limited nature of their purported success in the case, it includes fees and costs related to unsuccessful claims, it reflects limited billing judgment and excessive hourly rates, and it includes travel expenses, consulting work, clerical tasks, and other non-compensable items. A. The Davis Plaintiffs Did Not Succeed on Section 5 Claims. The Davis Plaintiffs pursued Section 5 claims throughout this litigation. See, e.g., Complaint at 2, 22-23, 29, and 6 of the Prayer (Doc. 1); Plaintiffs Submission of Proposed Remedial State Senate Plan at 1-2, 4, 7 (Doc. 29). The Court relied on the plaintiffs Section 5 claims to order an interim Senate redistricting plan, stating: As of this date, Section 5 preclearance of the State s enacted senate plan has not been obtained, and it is DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 8

10 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 9 of 23 undisputed that the state senate districts (Plan S100) established during the last decennial redistricting cycle are unconstitutionally malapportioned [T]his Court has concluded that certain aspects of the State s enacted senate plan stand a reasonable probability of failing to gain 5 preclearance and that the Section 5 challenge to those aspects of the plan is not insubstantial. Imposition of an interim plan is therefore appropriate This Court has independently reviewed Plan S172 and finds that it reflects changes to the legislatively enacted Texas Senate plan that are appropriately designed to address Plaintiffs not insubstantial claim that SD 10 reflects a prohibited purpose under Section 5 of the Voting Rights Act; S172 also remedies the unconstitutional malapportionment of the state senate districts. See March 19, 2012 Order at 2 (Doc. 147) (internal citations omitted). The Davis Plaintiffs purported success on their Section 5 claims cannot support an award of attorneys fees because the imposition of Section 5 s preclearance regime on the State violated the Constitution. See Shelby County. The statute that subjected Texas to Section 5 is void, and any claim or remedy based on Section 5 is illegitimate. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (recognizing the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument ); see also Norton v. Shelby Co., Tenn. 118 U.S. 425, 442 (1886) ( [A]n unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. ). The same goes for the Plaintiffs malapportionment claim. Without the unconstitutional DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 9

11 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 10 of 23 preclearance requirement, the 2011 Senate plan would have cured any existing malapportionment as soon as it was enacted. Texas cannot be compelled to pay attorneys fees incurred in pursuit of an unconstitutional claim that should not have existed in the first place. Because the Davis Plaintiffs fee request ignores their lack of success on their Section 5 and malapportionment claims, the Court should reduce any fee award to reflect the fact that the Davis Plaintiffs did not succeed on all of their claims. See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (the extent of a plaintiff s success at all stages of the litigation is a crucial factor in determining the proper amount of an award of attorney s fees under the lodestar method.); see also, Tex. State Teachers Ass n, 489 U.S. at 789 ( [T]he achievement of prevailing party status alone may say little about whether the expenditure of counsel s time was reasonable in relation to the success achieved. ) (quoting Hensley, 461 U.S. at 436). B. The Davis Plaintiffs Pursued a Failed Legal Theory During the First Phase of Interim Map Proceedings. The Court should exclude any fees related to the first interim-remedy phase because the Davis Plaintiffs pursued a legal theory that was foreclosed by Supreme Court precedent and quickly rejected by a unanimous ruling in Perry v. Perez, 132 S. Ct. 934 (2012) (per curiam). During this phase, the Davis Plaintiffs argued that this Court s interim redistricting plan could not give any weight to the legislatively enacted Senate plan because the enacted plan had not been precleared. See, e.g., Plaintiffs Response to State of Texas Proposed Interim Remedial Plan at 3 (Doc. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 10

12 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 11 of 23 44) ( Because unprecleared plans have no effect as law unless and until precleared, there is no duty on this Court to defer to the legislative enacted plans. ). While the Davis Plaintiffs did initially succeed in obtaining an interim plan under this standard, that plan was vacated when the Supreme Court unanimously rejected their legal theory in Perry v. Perez, 132 S. Ct. 934 (2012) (per curiam). Indeed, the Supreme Court instructed as it had before that a State s enacted plan is the starting point for an interim plan, even if the plan has not been precleared. Perez, 132 S. Ct. at 941 (relying on Abrams v. Johnson, 521 U.S. 74, 79 (1997); Upham v. Seamon, 456 U.S. 37, (1982) (per curiam); White v. Weiser, 412 US. 783, (1973); and Whitcomb v. Chavis, 403 U.S. 124, (1971)). Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). A court should use its equitable discretion to arrive at a reasonable fee award, either by attempting to identify specific hours that should be eliminated or by simply reducing the award to account for the limited success of the plaintiff. Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 418 (5th Cir. 2007) (footnotes omitted) (quoting Hensley, 461 U.S. at 440)). Because their legal argument was rejected, the Davis Plaintiffs are not entitled to recover attorney s fees for any work related to interim redistricting plans before January 20, For the same reason, the Court should reject any fee request based on the Supreme Court appeal in Perry v. Perez. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 11

13 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 12 of 23 C. The Davis Plaintiffs Fee Request Is Unreasonable Because It Reflects Inadequate Billing Judgment. In order to obtain attorney s fees from the Defendants, the Davis Plaintiffs must meet their burden of justifying their fee award, and proving that they exercised billing judgment. See Saizan, 448 F.3d at 799. The Davis Plaintiffs fee request demonstrates that they failed to exercise adequate billing judgment. 1. Billing issues in Mr. Hebert s fees Because the Jenner & Block attorneys developed the pre-litigation strategy, Mr. Hebert states that he did not bill for any of the work he performed (precomplaint) in preparing the case. See Declaration of J. Gerald Hebert at 14 (Doc ). However, Mr. Hebert s time sheets do not reflect the exclusion of these hours. In accordance with Mr. Hebert s stated intent, the Court should exclude all time billed by Mr. Hebert before September 22, 2011, the date the Complaint was filed. See Time Sheets for J. Gerald Hebert at 1-2 (Doc ). Mr. Hebert also stated that he excluded nearly all of his communications with the client group except those when time was of the essence and involved possible settlement of the lawsuit. See Declaration of J. Gerald Hebert at 8 (Doc ). The Davis Plaintiffs themselves state that they do not request compensation for activity that, although necessary for client relations, did not directly contribute to the litigation itself, such as numerous telephone calls with clients to discuss the status of the case. See Davis Brief at 10 (Doc ). However, Mr. Hebert billed for approximately 33 hours of client communication and only excluded 8.4 hours of that time (roughly 25%). See Declaration of J. Gerald DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 12

14 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 13 of 23 Hebert at 16 (Doc ). Because Mr. Hebert has not demonstrated that this time was related to communications made when time was of the essence and/or possible settlement, he has not carried his burden to prove that his request is reasonable, and it should be rejected. Mr. Hebert s declaration also fails to indicate what efforts were made to segregate his time on this case from the time claimed for work on the Perez case. The Davis Plaintiffs billing records include Mr. Hebert s entries for briefing, and attendance at joint hearings, that were also included in his clients fee request in the Perez case (No. 5:11-cv-00360, Doc. 851). The following entries provide a few examples of potentially duplicative fee requests: For the hearings on February 14 and 15, 2012, Mr. Hebert billed approximately 27.3 hours for preparation and attendance in this case, and 8 hours for preparation and attendance in the Perez case. For the hearing pm May 29, 2013, Mr. Hebert billed 5.5 hours for preparation and attendance in this case and 3 hours for preparation and attendance in the Perez case. For the status conference on July 1, 2013, Mr. Hebert billed 4.7 hours for preparation and attendance in this case and 3 hours for preparation and attendance in the Perez case. The Davis Plaintiffs and Mr. Hebert s clients in the Perez case filed similar briefs in response to Defendants remedial plans. Mr. Hebert assessed 5.4 hours of his time to the Davis Plaintiffs, and.8 hours of his time to his clients in the Perez case, despite the fact that the brief in the Perez case included additional argument. See Plaintiffs Response to State of Texas Proposed Interim Remedial Plan (Doc. 44); Quesada Plaintiffs Response to State of Texas Proposed Interim Remedial Plan and Plans Offered by Other Plaintiffs, No. 5:11-cv (Doc. 467). J. Gerald Hebert s time records at 10 (Doc ) (entries on October 23 and October 23, 2011); J. Gerald Hebert s Time Records at 15, No. 5:11-cv (Doc ) (entries on October 22 and October 24, 2011). DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 13

15 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 14 of 23 In addition to their similarity with billing records in Perez, the time entries in the Davis Plaintiffs fee request do not always correlate to events in the Davis litigation. To the extent the Davis Plaintiffs request includes time entries from Perez, they should be excluded. Not only is Perez a different case; the Court has not determined that Mr. Hebert s clients in Perez are prevailing parties. To the extent the time entries reflect work that may be attributed equally to both cases, any fee award should be reduced by half. In no case should the Court award fees in this case for work in Perez. 2. Billing issues in Jenner & Block s fees The requested fees for the Jenner & Block attorneys are unreasonable because they do not reflect adequate billing judgment. The Davis Complaint was filed on September 22, Yet prior to that date there are Jenner & Block billing entries for an amended complaint, discovery responses, expert reports, and a variety of legal work that could only be performed after filing a complaint. See Exhibit D (State s summary of objectionable entries), and, Exhibit C (coding designations for objectionable entries). The Jenner & Block attorneys also included time for appellate work on the Section 5 preclearance litigation (Texas v. United States, No. 1:11-cv-1303 (D.D.C)). See Exhibit D (specifically the Jenner & Block entries from November 7, 2012 to June 27, 2013). Although the Jenner & Block attorneys may have performed some pre-litigation work, the Court should reduce any fee award to eliminate inaccurate pre-filing entries and improper entries related to the preclearance litigation. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 14

16 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 15 of 23 In addition, Jenner & Block has failed to exercise appropriate billing judgment for appellate work related to the Davis Plaintiffs unsuccessful pursuit of the legal theory that was rejected in Perry v. Perez, 132 S. Ct. 934 (2012) (per curiam). None of the time entries for appellate work performed by attorneys Paul Smith, Caroline Lopez, Jessica Amunson, or Neal Ubriani have been excluded. 4 This is despite the fact that Jenner & Block attorneys performed virtually all of the appellate work in the United States Supreme Court, and the Supreme Court ruled unanimously in favor of the Defendants. See Davis Brief at 8 (Doc ) 5 ; see also January 20, 2012 Supreme Court Order (Doc. 104). Because the Davis Plaintiffs may recover fees for time spent on advancing successful claims, they are not entitled to fees for Jenner & Block s appellate work. See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). Even if the Court were to award fees for work performed by Jenner & Block, any award should be reduced because their records include duplicative and blockbilled entries. See Exhibit D ; See Leroy, 906 F.2d at 1080 (1990) (eliminating hours where the task descriptions are not illuminating as to the subject matter or are vague as to precisely what was done ); see also, Johnson, 488 F.2d at 717. Any award for work done by the Jenner & Block attorneys must also be reduced because the Jenner & Block attorneys billed in quarter-hour increments. See Cambridge Toxicology Group, Inc. v. Exnicios, 495 F.3d 169, 182 (5th Cir. 2007) (affirming reduction in fees for quarter-hour billing); see also Brown v. Astrue, 2011 WL 4 Paul Smith s declaration does not reflect exclusion of any time for these attorneys. 5 As discussed below, the Jenner & Block fees are also unreasonable because the hourly rate requested is much higher than the prevailing market rate in San Antonio for voting rights cases. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 15

17 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 16 of , *3 (M.D. La. 2011) ( [Q]uarter-hour billing does not accurately reflect the number of hours spent on each task and is very likely to inflate the time Plaintiff s attorney devoted to this case. ). D. The Hourly Rates Requested by the Davis Plaintiffs Are Excessive. The Davis Plaintiffs fail to carry their burden of establishing the reasonableness of the proposed hourly rates for their counsel or support staff. See Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984) ( The party seeking an attorney s fee award also bears the burden of justifying the reasonableness of its requested hourly rate.). The Davis Plaintiffs do not explain why a billable rate of $ per hour for secretarial work performed by AngleStrategies is reasonable. Likewise, no justification is given to support the rate of $160 per hour for a project assistant or up to $310 per hour for paralegals employed by Jenner & Block. See Davis Brief at 16 (Doc ). The Davis Plaintiffs request also seeks an award of attorneys fees based on the inapplicable and exorbitant D.C. hourly rates. The San Antonio market rate applies when determining any fee award for the Davis Plaintiffs. See Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000). The Davis Plaintiffs cite to McClain v. Lufkin Industries, 649 F.3d 374, 383 (5th Cir. 2011), and argue that their rates are reasonable because no local counsel was available. See Davis Brief at 7, 12 (Doc ). This claim is unfounded. Unlike McClain, where no local counsel could assist, the Davis Plaintiffs have retained local counsel who claims to be an expert on DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 16

18 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 17 of 23 voting rights and there are dozens of Texas attorneys involved the redistricting cases. See Declaration of David Richards at 3 (Doc. 2). 6 Two of the Davis Plaintiffs attempt to justify their attorney s hourly rates by stating that there were no Texas attorneys who were competent, or had the requisite experience, to take this case. See Pat Pangburn Declaration at 2 (193-14); Roy Brooks declaration at 2 (193-15). Both Mr. Brooks and Ms. Pangburn state that they left it to Senator Wendy Davis and Representative Marc Veasey to find legal counsel for the group. Id. Notably, Senator Davis and Representative Veasey have not provided declarations stating that there were no Texas attorneys competent to represent the Davis Plaintiffs. Nor should the Court credit the declarations of Bruce Spiva and Stephen Pershing, which purport to justify the requested billable rate of Mr. Hebert, but fail to indicate that the declarants are familiar with the billing rates for voting rights cases in the San Antonio area. The unreasonableness of the Davis Plaintiffs attorneys requested billable rates is even more apparent considering that in March, Richard Gray, an attorney in the ongoing Perez case, provided a sworn declaration stating that the highest award of which he is aware for a Voting Rights case is $ per hour. Fabela v. City of Farmers Branch, 2013 WL , *4 (emphasis added). The attached affidavit and report of former Texas Supreme Court Justice Brister provides an assessment of hourly rates in the San Antonio area. See Exhibit A (Affidavit of Justice Brister) and, Exhibit B (Report of Justice Brister). Justice Brister s report 6 The hourly rate for David Richards is also well above the usual and customary rate for redistricting cases in the San Antonio market. See Exhibit B (Report of Justice Brister). DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 17

19 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 18 of 23 notes the usual and customary fee for redistricting cases in the San Antonio market generally falls in the range of $200 to $350 per hour. If the Court awards any fees, it should apply hourly rates for all that are consistent with the San Antonio market rates. 7 E. The Davis Plaintiffs Cannot Recover Fees for Consulting and Clerical Work. The Court should deny, or reduce, any award for work performed by AngleStrategies, Allison Crowe, and Cheryl Olson because their work was clerical in nature, block-billed and billed at excessive hourly rates. No evidence is provided to establish that employees of AngleStrategies are trained or certified paralegals who perform legal work or work similar to that provided by attorneys. See AngleStrategies is a political consulting firm and has served as a political advisor to Marc Veasey and Wendy Davis. The Voting Rights Act contains no provision that would require the State of Texas to compensate a political consulting firm for services performed on behalf of a candidate. Even if its work was recoverable, which it is not, the time records from AngleStrategies are replete with entries evidencing the clerical nature of its work, such as preparing notebooks and exhibit books. Clerical work such as this is not 7 In establishing a reasonable hourly rate, the Court can consider state bar surveys of average attorney hourly rates. See Miller v. Raytheon Co., 716 F.3d 138, 149 (5th Cir. 2013). The State Bar of Texas s most recent hourly-rate survey reflects that the proposed rates for the Davis Plaintiffs attorneys are higher than the average rates for attorneys in San Antonio with similar experience. See State Bar of Texas Department of Research & Analysis 2011 Hourly Fact Sheet (average hourly rate for attorney in San Antonio area with over 25 years of experience is $228.) available at Economic_Trends&Template=/CM/ContentDisplay.cfm&ContentID=20499 DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 18

20 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 19 of 23 recoverable as an award of attorney s fees. See Burnley v. City of San Antonio, 2004 WL , *4 (W.D. Tex. Sept. 15, 2004), aff d as to attorney s fees, 470 F.3d 189, 200 (5th Cir. 2006) (holding that the court must not award fees for clerical or secretarial tasks, regardless of whether they are performed by an attorney, paralegal, or secretary); see also Allen v. U.S. Steel Corp., 665 F.2d 689, 697 (5th Cir. 1982) (paralegal tasks are recoverable only to the extent that the duties performed were similar to those typically performed by an attorney); see also In re Witts, 180 B.R. 171, 173 (E.D. Tex. 1995) (disallowing recovery of paralegal time for proofreading and revising documents). If the Court determines that some of this time is recoverable, reduction is still warranted because AngleStrategies used blockbilling practices. See, e.g., Davis Brief Exhibit D at 2 (Doc ) (21 hours blockbilled to gather cases and prepare notebooks on June 28 and June 29, 2013); see also, Leroy, 906 F.2d at 1080 (1990). The Davis Plaintiffs also seek an award for clerical work performed by the Jenner & Block firm. Allison Crowe, a project assistant for Jenner & Block, primarily handled non-compensable clerical tasks. See Paul Smith Declaration at 12 (Doc ). Cheryl Olson, a paralegal for Jenner & Block (who billed at rates up to $310 per hour), also performed some clerical tasks which are not recoverable. See, e.g., Paul Smith Declaration at 17, 30 (Doc ) (Cheryl Olson entries from September 20, 2011 and June 27, 2013). Even if some of Cheryl Olson s time is recoverable, this Court should reduce the award because many of Cheryl Olson s DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 19

21 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 20 of 23 entries are block-billed, and there is no support for her unreasonable hourly rates. See Exhibit D. F. The Davis Plaintiffs Fee Request Includes Travel Expenses and Other Costs that Should Be Disallowed. The Davis Plaintiffs request recovery of travel-related expenses, electronic legal research, and printing costs for their Supreme Court brief. None of these costs are recoverable from the State. AngleStrategies claims to have incurred $5, in travel-related expenses, but the Davis Plaintiffs have not produced documentation to support these alleged costs. See Davis Brief Exhibit D at 3 (Doc ). Mr. Hebert incurred travel related expenses totaling $1, See Davis Exhibit C at 33 (Doc ). However, the travel expenses for AngleStrategies and Mr. Hebert should not be awarded because the Davis Plaintiffs had local counsel. See generally Int l Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1276 (8th Cir. 1980). Even if such expenses were recoverable, the expenses of AngleStrategies should not be awarded because there is no supporting documentation included with these requests. See Curtis v. Bill Hanna Ford, Inc., 822 F.2d 549, 553 (5th Cir. 1987) (affirming trial court's decision to review requested expenses item-by-item and disallow expenses that were unnecessary). Some of Mr. Hebert s travel expenses are similarly unrecoverable: Hotel charge for $ on February 21, No receipt was provided and there is no correlating time entry in this case showing in-person work in Texas on that date. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 20

22 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 21 of 23 Hotel charge for $ on February 14, No receipt was provided. A possible receipt for this stay was provided in the Perez case (to support a request for reimbursement in that case), but that receipt shows an expense of $ See Exhibit attached to declaration of J. Gerald Hebert, Perez v. Perry, No. 5:11-cv (Doc at 8). The Jenner & Block report also contains errors. It includes printing charges and costs related to the Supreme Court briefing despite the fact that the Supreme Court awarded such costs to the State. See Jan. 20, 2012 Supreme Court Order at 2 (Doc. 104); see also Paul Smith Declaration at (Doc ). The Davis Plaintiffs seek reimbursement of electronic legal research costs; but such costs are unrecoverable. See Channel v. Eichelberger, 2008 WL , *3 (N.D. Miss. Oct. 22, 2008); see also Giner v. Estate of Higgins, 2012 WL , *5 (W.D. Tex. 2012). Reimbursement is also requested for three taxi rides from the Jenner & Block offices to the Supreme Court. None of these costs are recoverable and the Court should reduce the Davis Plaintiffs award accordingly. Finally, at least $6, of the Davis Plaintiffs expert witness fees is unrecoverable. Dr. Allan Lichtman s February 2, 2012 invoice indicates that his work was for redistricting Section 5 litigation. See Davis Exhibit C at 15 (Doc ). The Davis Plaintiffs cannot recover expert fees related to their unsuccessful Section 5 claims. See supra, Part II.A. CONCLUSION For the reasons stated above, the Davis Plaintiffs are not entitled to recover attorney s fees or costs, but any award should be significantly reduced to reflect only reasonable rates for legal work related to successful claims in this lawsuit. DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 21

23 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 22 of 23 Dated: October 4, 2013 Respectfully Submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General DAVID C. MATTAX Deputy Attorney General for Defense Litigation J. REED CLAY, JR. Special Assistant and Senior Counsel to the Attorney General _/s/patrick K. Sweeten PATRICK K. SWEETEN Division Chief, Special Litigation Division ANGELA COLMENERO Assistant Attorney General JENNIFER S. JACKSON Assistant Attorney General P.O. Box 12548, Capitol Station Austin, TX (512) (512) (fax) ATTORNEYS FOR THE STATE OF TEXAS, RICK PERRY, AND JOHN STEEN DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 22

24 Case 5:11-cv OLG-JES-XR Document 208 Filed 10/04/13 Page 23 of 23 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this filing was sent via the Court s electronic notification system to the following counsel of record on October 4, 2013: David Richards Richards, Rodriguez and Skeith 816 Congress Avenue, Suite 1200 Austin, TX davidr@rrsfirm.com Attorney for Davis Plaintiffs Donna García Davidson Attorney at Law P.O. Box Austin, TX Donna@dgdlawfirm.com Attorney for Defendant Steve Munisteri Chad Dunn Brazil & Dunn 4201 FM 160 West, Suite 530 Houston, Texas chad@brazilanddunn.com Attorney for Defendant Boyd Richie J. Gerald Hebert Attorney at Law 191 Somervelle Street, #405 Alexandria, VA Hebert@voterlaw.com Attorney for Davis Plaintiffs Eric Opiela Attorney at Law 1122 Colorado, Suite 2301 Austin, TX eopiela@ericopiela.com Attorney for Defendant Steve Munisteri Luis Vera 1325 Riverview Towers 111 Soledad San Antonio, Texas Lrvlaw@sbcglobal.net Attorney for LULAC Plaintiffs _/s/patrick K. Sweeten PATRICK K. SWEETEN Division Chief, Special Litigation Division DEFENDANTS RESPONSE TO DAVIS PLAINTIFFS MOTION FOR ATTORNEY S FEES PAGE 23

25 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. EXHIBIT A

26 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 2 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION Wendy Davis, et al. v. C.A. NO. 5:11-CV-788 (consolidated case) Rick Perry, et al. AFFIDAVIT OF SCOTT BRISTER My name is Scott Brister. I am over the age of 18 and I am fully competent to testify to the following: 1. I am a partner in the law firm of Andrews Kurth LLP, and have been licensed to practice law in Texas since I am Board Certified in Civil Trial Law, Civil Appellate Law, and Personal Injury Law by the Texas Board of Legal Specialization. I served as a state judge in Texas for 20 years, and have written several legal articles and court opinions on recovery of attorney's fees. 2. I was engaged by the Office of the Attorney General of the State of Texas to render opinions as an expert witness in this case regarding reasonable and necessary attorney's fees and expenses claimed by the Plaintiffs under federal law. See 42 U.S. C. 1973l(e) & Attached to this affidavit as "Exhibit A" is a true and accurate copy of my report. The attached report contains opinions and conclusions AUS:

27 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 3 of 4 I have formed in this case following a review of the motions requesting fees, selected pleadings, and other documents. 4. As set out in detail in my Report, if and to the extent interim fees are awarded by the Court, in my opinion they should be substantially adjusted on at least the following grounds: hourly rates that exceed local practice, improper inclusion of certain billing periods; improper inclusion of certain matters that are not subject to an award of attorney's fees in this case; duplication of effort; and maintenance of inexact billing records. 5. Based on recent awards in other cases, a recent survey by The Texas Lawyer, and my own experience, it is my opinion that a reasonable and appropriate rate in Bexar County for small firms like most of those involved in the underlying litigation falls in the range from $200 to $350 per hour for attorneys and no more than $150 per hour for paralegals or other legal assistants. 6. The attached report contains additional opinions and analysis I hold to a reasonable degree of certainty after review of this matter related to the fee and expenses billings submitted in this case. AUS:

28 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 4 of 4 SUBSCRIBED and SWORN to before me by Scott A. Brister, on this 4th day of October, 2013, to certify which witness my hand and official seal.,,, ~~'W" '.. RUTH A. PALACIO,''o<-1'(,,.,.~?;.. t~.':..a;;;\ \ Notary Public, State of Texas ~ * :... J~ * My Commission Expires... } \~;.. ~ ~~'o/ DECEMBER 28, 2013 Notary Public in and for the State of Texas AUS:

29 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. EXHIBIT B

30 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 2 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al. v. C.A. NO. 5:11-CV-788 (consolidated cases) STATE OF TEXAS, et al. EXPERT REPORT OF SCOTT BRISTER I. QUALIFICATIONS I am a partner in the law firm of Andrews Kurth LLP, a law firm of about 400 lawyers founded in Houston in I am the attorney in charge of the firm s appellate section, but I practice in both trial and appellate courts. I am Board Certified in Civil Trial Law, Civil Appellate Law, and Personal Injury Law by the Texas Board of Legal Specialization. I have been licensed to practice law in Texas since 1980, and have been admitted to practice before all state and federal courts in Texas and the United States Supreme Court. I served as a state judge in Texas for 20 years, beginning in 1989 as Judge of the 234th District Court of Harris County, Texas. In my 11 years as a trial judge, I presided over 670 trials to verdict, including 454 jury verdicts. During part of that time I also served as the Administrative Judge for the 25 Harris County Civil District Courts. AUS:

31 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 3 of 20 In 2000, I was elected to serve as a Justice on the First Court of Appeals. Six months later, I was appointed as Chief Justice of the Fourteenth Courts of Appeals. Both of these courts possess intermediate appellate jurisdiction of civil and criminal appeals in ten counties including and surrounding Houston. During my three years on these courts, I authored 442 opinions, including 194 signed majority opinions. In 2003, I was appointed as a Justice of the Supreme Court of Texas, where I served for six years. In addition to serving as the court of last resort in all civil matters, the Supreme Court has sole authority for licensing attorneys, is responsible for the lawyer discipline system in the state, and promulgates various professional rules including the Texas Disciplinary Rules of Professional Conduct. During my six years on the Supreme Court, I authored 122 opinions for the Court, as well as 16 concurring and 21 dissenting opinions. With respect to recovery of attorney s fees, I have published two articles in legal journals or periodicals: Proof of Attorney s Fees in Texas, 24 ST. MARY S L.J. 313 (1993), and Proving Up Attorney s Fees at Trial, 28 HOUSTON LAWYER 29 (1990). I have also authored opinions on the issue, including the opinion of the Texas Supreme Court in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006), which addresses segregation of attorney s fees. I have published numerous articles and editorials in legal journals and newspapers urging reforms to make litigation in Texas more efficient and less AUS:

32 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 4 of 20 expensive, including: The Decline in Jury Trials: What Would Wal-Mart Do?, 47 SOUTH TEX. L.R. 191 (2005); Lonesome Docket: Using the Texas Rules to Shorten Trials and Delay, 46 BAYLOR L.R. 525 (1994); The O.J. Trial: What We Learned, THE HOUSTON CHRONICLE (February 9, 1997); Speed Up Pace of Texas Justice, THE HOUSTON CHRONICLE (July 23, 1995); and Living With Shorter Trials, THE TEXAS LAWYER (October 11, 1993). II. SCOPE OF REVIEW I was engaged by the Office of the Attorney General of the State of Texas to render opinions as an expert witness in this case regarding reasonable and necessary attorney s fees claimed by certain Plaintiffs under federal law. See 42 U.S.C. 1973(e) & I was not asked to assess or address whether the claimants were prevailing parties, but only the amount of a reasonable and necessary fee award should the Court decide they were. I have reviewed the motions requesting fees, selected pleadings in the case, the opinions and orders by this Court granting interim relief in February and March of 2012, and the Final Judgment dated September 4, III. ANALYSIS APPLICABLE TO ALL FEE CLAIMS Section 1973l(e) of the Voting Rights Act and Section 1988 of the Civil Rights Attorney s Fees Award Act afford a district court discretion to award reasonable attorney s fees to prevailing parties in redistricting and votingrights cases. In calculating attorney s fees, the district court first calculates the lodestar, multiplying the number of hours reasonably expended on the AUS:

33 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 5 of 20 litigation by a reasonable hourly rate in the local community. 1 Next, the district court must consider the factors articulated in Johnson v. Georgia Highway Express, Inc. 2 A. Lodestar: Reasonable Rates in San Antonio, Texas The motions here assert hourly rates for attorneys up to $985. In my opinion, reasonable market rates for voting-rights cases in San Antonio are lower than most of those claimed, and rarely exceed $350 per hour. The relevant hourly rates here are those for voting-rights cases in San Antonio, the community in which the Court sits. 3 Although other markets may have higher rates, those rates are not the starting point for the lodestar without proof that hiring a non-local attorney was a necessity. 4 The most recent survey by The Texas Lawyer of hourly billing rates in Texas found that average hourly rates in San Antonio run from $200 to $353 per hour (see Tab A-1) 5 : 1 McClain v. Lufkin Indus., Inc., 649 F.3d 374, (5th Cir. 2011) F.2d 714, (5th Cir. 1974). 3 McClain, 649 F.3d at Id. at 382. The affidavits of Davis plaintiffs Pat Pangburn and Roy Brooks are inadequate to constitute proof that competent local counsel were not available. Both merely aver that they left picking an attorney to Sen. Wendy Davis and Rep. Marc Veasey. See Exhibits 14, 15 to Davis Plaintiffs motion [Dkt. # , ]. But neither Sen. Davis nor Rep. Veasey provides any explanation as to why competent Texas counsel could not be located. These plaintiffs were free to choose Washington D.C. counsel, but that does not mean that Texas taxpayers should have to pay Washington D.C. rates when there are an abundance of experienced voting-rights attorneys in this state Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at AUS:

34 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 6 of 20 City Partners Associates equity nonequity 7th year 4th year 1st year Austin/San Antonio $353 $355 $295 $245 $200 Dallas/Fort Worth $499 $405 $345 $295 $230 Houston $388 $348 $300 $260 $200 Other $299 $224 $175 $203 $160 The same survey also shows that rates are substantially higher at large firms than they are at smaller ones, with average rates at firms with fewer than 30 attorneys again falling in the $200 to $350 per hour range: 6 Firm Size Partners Associates equity nonequity 7th year 4th year 1st year 100+ $558 $463 $392 $337 $ $430 $340 $325 $245 $ $370 $353 $241 $251 $175 < 30 $350 $325 $225 $225 $175 Hourly rates charged by major law firms often reflect items like prime lease space, recruiting, marketing, charitable contributions, employee pensions, or malpractice rates that small firms may not have to match. As all of the law firms involved here except Jenner & Block (an out-of-state firm) are much smaller than 30 lawyers, their hourly rates should fall in the same $200 to $350 range. A range of $200 to $350 is also consistent with recent awards by federal courts in Texas voting-rights cases. In 2010, a three-judge panel of this Court Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at AUS:

35 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 7 of 20 found $250 a reasonable hourly rate for such cases in this community. 7 And in June 2013, Judge Fitzwater found $200 to $350 per hour a reasonable fee in such cases for lawyers affiliated with the litigation boutique Bickel & Brewer. 8 Redistricting litigation is important and often complex, but as this case shows there are many attorneys and firms eager to participate. Such cases necessarily involve politics, the public interest, and a lot of publicity in a large state like Texas. Those factors multiply the pool of lawyers who are willing to take them, even at lower rates. They also attract political parties, public interest groups, and legal aid attorneys who generally charge or accept lower rates due to the public-service nature of their work. For example, Paul Clement, one of the most heralded advocates in the country, represented the State in its appeal to the United States Supreme Court in this case at an hourly rate of $ Just as judges or lawyers for the State accept lower salaries due to the importance of their work, the importance of this litigation is in part the very reason that hourly rates are typically low. One of the fee claimants cites an affidavit I signed in LULAC V. City of Boerne, Civ. Action # 96-cv-808, which quoted reasonable hourly rates of $750 7 See Lulac of Texas v. Texas, No. SA 08 CA 389, 2010 WL , *2 (W.D. Tex. April 7, 2010). 8 See Fabela v. City of Farmers Branch, Tex., No. 3:10 CV 1425 D, 2013 WL , *5 (N.D. Tex. June 13, 2013). 9 See Tab A-2 to Rios Declaration [Dkt. #845-1]; see also texas-redistricting/redistricting/abbott-elections-should-use-legislatures-maps/ ( Abbott hired Paul Clement, a noted Supreme Court advocate, to help his office with the case (at a rate of $520 an hour, which he called a steep discount ). ); diary/11585/abbott-hires-520-per-hour-lawyer-asks-supreme-court-to-block-interim-maps ( Abbott Hires $520 per Hour Lawyer, Asks Supreme Court to Block Interim Maps ). AUS:

36 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 8 of 20 for the late Greg Coleman (noted advocate and former Solicitor General of Texas), and $360 to $550 for other attorneys at his firm, Yetter Coleman, LLP (see Tab A-2). But I was asked in that case only for an affidavit relating to fees generally charged by such firms; I was not retained as an expert and reviewed none of the files, so my opinion was not intended to address voting-rights fees specifically. 10 As the Court awarded no fees in that case, 11 it does not change my opinions stated above. Certainly, reasonable clients could agree to pay hourly rates higher than $200 to $ But the question here is customary fees in the area; a defendant is required to pay a reasonable and necessary rate, not a premium rate the plaintiff may choose to pay for an attorney much in demand. Moreover, aw with any other service, market rates are not governed by measures of intrinsic value; they are governed by the laws of supply and demand. As there is a large supply of attorneys willing to appear in redistricting cases at or below customary rates, it is my opinion that the customary and reasonable rates for attorneys in the San Antonio area for cases like this generally fall in the range from $200 to $350 per hour. 10 See, e.g., Fabela, 2013 WL , *4 ( [T]his court does distinguish between civil rights cases and complex commercial litigation ). 11 See Civil Action No. SA-96-CV-808-XR [Dkt. #93]. 12 See Pugach v. M & T Mortg. Corp., 564 F.Supp.2d 153, 157 (E.D.N.Y. 2008) ( [C]ourts have acknowledged that a judicial determination of what is reasonable for purposes of a fee award to be paid by the losing party to the prevailing party in a litigation is not the same as the reasonableness of a bill that a law firm might present to its own paying client. ). AUS:

37 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 9 of 20 B. Lodestar: Reasonable Hours Expended 1. Lack of success on appeal to U.S. Supreme Court While I have not tried to determine generally whether the Plaintiffs here prevailed, in any case they are not entitled to recover fees for claims on which they clearly did not prevail. 13 Both claimants seek fee awards for work performed opposing the State s appeal of the Court s order of November 23, 2011 implementing an interim map. The State prevailed on the appeal, the interim map championed by claimants was vacated, and the Supreme Court awarded costs against these claimants. Because neither was a prevailing party with respect to the U.S. Supreme Court appeal, fees for this work are not recoverable. 2. Fees for work before the Legislature acted Both fee applications seek fees for periods before the Governor signed the new Texas Senate district map (on June 17, 2011). Until the new maps were adopted, any litigation about them was premature. Research, negotiations, and lobbying as part of the legislative proceedings were not part of the judicial proceedings that followed. The Plaintiffs cannot shift the cost of legislative research and activity to the State, as those are not recoverable. Accordingly, it is my opinion that fees are not recoverable for work done before the new plans were adopted and there was something to litigate about U.S.C. 1973l(e); Wilson v. Mayor & Bd. of Alderman of St. Francisville, 135 F.3d 996, 998 (5th Cir. 1998). AUS:

38 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 10 of Fees for work after this Court acted The Court held plaintiffs were prevailing parties based on the interim relief granted by this Court regarding the 2012 elections, and that all other claims were moot. The interim order was entered on or before March 19, Accordingly, it is my opinion that any fees incurred thereafter are not recoverable because they occurred after the only relief on which the claimants prevailed, and thus could not have contributed to it. 4. Fees for work on other matters Both claimants seek fees for work performed on other cases. Such fees should be sought in the case in which the work was performed (to the extent claimants prevail there) and are not recoverable here. 5. Duplication This case primarily concerns a single state-senate district. The motions seek fees for 8 attorneys from 4 different law firms plus an additional consulting firm. 14 In the private sector, economic forces naturally limit this kind of overstaffing: clients will not pay for 8 lawyers when 1 or 2 will do. But in public-interest litigation like this, where attorneys count on court-ordered fees for part or all of their recovery, the absence of an independent client who is paying all the bills removes some of the disincentives to duplicate work. 14 The number of attorneys included in each fee claim are: Davis (7) and LULAC (1). AngleStrategies, which claims fees of nearly $40,000, is an outside consulting firm that was retained by J. Gerald Hebert. AUS:

39 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 11 of 20 In calculating the number of hours reasonably expended, the Court must eliminate excessive or duplicative time. 15 It is natural that advocacy groups and officeholders want their own attorneys in a redistricting case, but the number of people interested and affected by redistricting in Texas is limited (if at all) only by the entire population. Even if several attorneys agree to work cooperatively on a redistricting case, that does not make it reasonable and necessary for the defendant to pay for all of them when all of the claims made by the independent parties they represent are the same. The Voting Rights Act does not require that a governmental entity pay for multiple attorneys to file similar motions or appear at hearings when less would do. The fees claimed should be reduced accordingly. C. Analysis of remaining Johnson factors There is a strong presumption that the lodestar method yields a reasonable fee. 16 But before making any fee award, courts also consider the following factors from Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, (5th Cir. 1974). 1. time and labor required. My opinions on this factor are set out in part III(B) above and in the individual analyses of each claim in part IV below. 2. novelty and difficulty of the questions. While the redistricting process for the entire state was complex, this case was limited to challenging a single 15 LULAC No v. Roscoe Indep. Sch. Dist., 119 F.3d 1228, 1231 (5th Cir. 1997). 16 See Perdue v. Kenny A., 559 U.S. 542, 130 S. Ct. 1662, , 176 L.Ed.2d 494 (2010). AUS:

40 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 12 of 20 district in north Texas. And as all those demographics and voting patterns were thoroughly researched and analyzed in the legislative proceedings, that should have simplified them for the judicial proceedings. 3. skill requisite to perform the legal service properly. The skill needed by a single attorney or firm to handle every aspect of this case was substantial. But the skill needed by additional attorneys to adopt pleadings, motions, or claims made by others was minimal. 4. preclusion of other employment. Merely spending hours on this case rather than some other is not preclusion of other employment, as that would merely duplicate the time-and-labor-expended factor customary fee. My opinions on this factor are set out in part III(A) above. 6. fixed or contingent fee. A contingent fee may be higher than a fixed fee because of the risk of non-recovery. But reasonable fee awards are common if a party prevails in redistricting or voting-rights cases. And for the reasons stated in part III(A) above, many attorneys appear to be willing to bring suits like this despite the risk and the lower hourly rates because of the political and public-interest implications involved in the result. 7. time limitations imposed by the client or circumstances. Like most redistricting cases, this one had to be handled on an expedited basis. New 17 See Shipes v. Trinity Indus., 987 F.2d 311, (5th Cir. 1993) ( If, for example, [plaintiff] s attorney worked on nothing but this case, then this potential loss of income in refusing other employment is compensated for in the number of hours she billed in the instant case. ). AUS:

41 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 13 of 20 districts drawn by the Texas Legislature are generally effective for the next election, which is rarely more than a few months away. In my opinion, the fees here should be no higher than in other redistricting cases, as the exigencies are usually the same. 8. results obtained. My opinions on this factor are set out in part III(B) above, and in the individual analyses of each claim in part IV below. 9. experience, reputation, and ability of the attorneys. Some of the attorneys included here are very experienced and well-known counsel involved in redistricting and voting-rights cases, both in Texas and beyond. Yet as indicated by the rate charged by Paul Clement, 18 it does not appear that exceptional experience, reputation, and ability translate into anything like the fees that would be expected in other types of cases. 10. undesirability of the case. Given the politics, publicity, and profile of redistricting cases, redistricting cases do not appear to be undesirable to anybody except, perhaps the defendants. 11. nature of the professional relationship. A few of the attorneys and law firms in this case serve regularly as counsel for politicians, interest groups, or community groups like those they represent here. Accordingly, they are in some respects similar to the captive law firms often used by insurers, which bill at reduced rates in return for a steady flow of business. 19 These 18 See part III(A), supra. 19 See, e.g., Unauthorized Practice of Law Committee v. Am. Home Assur. Co., 261 S.W.3d 24, 27 (Tex. 2008). AUS:

42 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 14 of 20 long-term relationships would probably not exist if these attorneys did not charge rates equal to or lower than other firms of comparable ability. 12. awards in similar cases. My opinions on this factor are set out in part III(A) & (B) above. IV. ANALYSIS OF INDIVIDUAL FEE CLAIMS A. Davis The Davis plaintiffs seek fees and expenses of $616, For a number of reasons that claim should be reduced. First, the Davis attorneys claim hourly rates from $340 to $985 per hour. As indicated in part III(A) above, those are not the customary rates for redistricting or voting-rights cases in Bexar County. Even assuming every hour all seven attorneys billed was reasonable and necessary, reasonable rates would reduce the Davis plaintiffs claim by $253, Claim Reas. Rate Hours Reduced Claim Savings Rate G. Herbert $650 $ $154,350 $132,300 P. Smith (2011) $875 $ $16, $25, P. Smith (2012) $950 $ $3,675 $6,300 P. Smith (2013) $985 $ $ $1, J. Amunson (2011) $555 $ $28, $25,025 J. Amunson (2012) $575 $ $8, $5, J. Amunson (2013) $625 $ $3, $2, C. Lopez (2011) $435 $ $39,560 $35,260 C. Lopez (2012) $490 $ $7, $7, N. Ubriani (2012) $340 $ $7,500 $5,250 N. Ubriana (2013) $355 $ $2, $1,890 M. Garber $470 $ $3,450 $3,600 D. Richards $550 $ $3,500 $2,000 TOTAL $253, It appears that Ms. Amunson was a seventh-year associate at the time the litigation began in Ms. Lopez was a third-year associate at this time. Mr. Ubriani was a first-year when he AUS:

43 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 15 of 20 Second, various consultants, paralegals, and legal assistants employed by the Davis plaintiffs claim excessive hourly rates, ranging as high as $310. According to the above referenced Texas Lawyer billing survey, the average rate for a Senior Legal Assistant in San Antonio is $150 per hour. 21 Even assuming that all of the non-attorney staff qualify for this title, and that all of the work they performed was reasonable, imposing a top hourly rate of $150 would reduce the Davis plaintiffs claim by $14, Further, the evidence does not establish that these non-attorney staffers qualify as senior legal assistants. For example, it appears that the entity claiming the most fees, AngleStrategies, is a political consulting firm. 23 The Court should consider whether Texas taxpayers should be required to pay nearly $40,000 to a partisan political consultant in a redistricting case. Third, the Davis plaintiffs claim fees of $16,250 for time expended before the Legislature acted. They also seek $100, in fees and $9, started work on the case in 2012, and Mr. Garber was a third-year when he performed worked on the fee application in Salary & Billing Survey, THE TEXAS LAWYER, July 29, 2013, at Claim Rate Reas. Rate Hours Reduced Claim Savings AngleStrategies $175 $ $33,045 $5, K. Esparza $95 $ No change $0 C. Olson (2011) $280 $ $5, $4, C. Olson (2012) $295 $ $2, $2, C. Olson (2013) $310 $ $1, $1,320 A. Crowe $160 $ $2,400 $160 TOTAL $14, See AUS:

44 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 16 of 20 in costs for periods after this Court s March 19, 2012 orders. For the reasons stated in part III(B)(2) and (3) above, these are unrecoverable. Fourth, the Davis plaintiffs claim $135, for time relating to the appeal to the United States Supreme Court in this case. They did not prevail in that appeal. Fifth, the Davis plaintiffs attorneys claim fees for work performed on other redistricting cases. In particular, the Jenner & Block attorneys claim extensive fees for work performed well in advance of the filing of this lawsuit that was clearly not for this case. For example, the Davis plaintiffs request fees for work in early August 2011 more than a month before the original complaint was filed in this case for work performed by Jenner attorneys on matters such as reviewing a draft motion to postpone trial, coordinating the filing of an expert report, reviewing discovery, and researching and drafting supplemental briefing re staying case. 24 None of this had anything to do with this case. All told, it appears that the Davis plaintiffs seek $55, for work performed on other cases, none of which is recoverable here. Sixth, the Jenner attorneys used block-billing that makes it impossible to tell how much time they spent on a listed task. Further, many of the entries are vague and incomplete. For example, an entry for Caroline Lopez recites Reviewed orders; phone call with G. Hebert in W.D. Tex. litigation. 25 Given 24 Declaration of Paul Smith [Dkt. # ], Ex. B at By comparison, Jenner & Block s bills specifically note that some entries were for the Senate Map Litigation. Id. at Id. at 16. AUS:

45 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 17 of 20 that the Jenner attorneys performed work on more than one redistricting case in the Western District, this description is inadequate for the Court to tell which case she was working on, what she did, or whether the work she performed was related to claims the Davis plaintiffs actually asserted and on which they prevailed. For this reason, the Court should consider that the Davis plaintiffs appear to be seeking fees for work performed in other cases in an even higher amount than discussed in the preceding paragraph. Finally, though the Davis plaintiffs did not bill for travel time, they do seek costs associated with J. Gerald Hebert s and AngleStrategies s travel from Washington D.C. to San Antonio in the amount of $7, As there has been no showing that hiring Washington D.C. lawyers and support staff was a necessity, 26 those fees and costs should not be included for the reasons stated in part III(A) above. B. LULAC LULAC seeks fees and expenses of $99,815. Its lead counsel, Luis Roberto Vera, Jr., claims an hourly rate of $400 per hour. As indicated in part III(A) above, that is above the customary rates for redistricting and votingrights cases in Bexar County. Again, assuming every hour billed was reasonable and necessary, a top hourly rate of $350 would reduce this claim by $9, See supra note 4. AUS:

46 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 18 of 20 Although LULAC contends that it played an active role in this case, LULAC s filings and Mr. Vera s billing records make clear that the Davis plaintiffs carried the laboring oar in this litigation. In several instances, LULAC s pleadings recited the Davis pleadings verbatim. The most apparent example of this is in the original complaints the paragraphs of LULAC s complaint differ from the paragraphs of the Davis complaint only when plugging in LULAC-specific information in place of Davis-specific information, such as party names. The majority of LULAC s subsequent filings were jointly filed with the Davis plaintiffs; and when LULAC filed an individual pleading (such as its fee application), LULAC made sure to expressly incorporate everything already asserted by the Davis plaintiffs. LULAC s pattern of taking the lead from the Davis plaintiffs is likewise observable in Mr. Vera s billing records. Out of the hours submitted by Mr. Vera for reimbursement, of those were spent conferring or working with Mr. Hebert and the Davis plaintiffs in some capacity. Over one-third of Mr. Vera s claimed hours came from just conferring about the case with Davis representatives. To some degree, these billings reflect mere duplication of effort stemming from having more attorneys involved than necessary. The amount of fees sought should be reduced accordingly. In addition, LULAC s claim includes $2,200 for fees related to the parallel Perez litigation and also seeks $500 for fees related to the appeal in AUS:

47 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 19 of 20 this case to the United States Supreme Court. Those sums are unrecoverable for the reasons stated in part III(B)(2) above. The LULAC claim also includes $1,900 for fees incurred before the Legislature adopted any maps for the 2012 elections, and $10,840 for fees incurred after this Court adopted the interim maps that governed the 2012 elections. For the reasons stated in part III(B)(2) & (3) above, those amounts are unrecoverable. Finally, in addition to seeking changes to Senate District 10, LULAC also asserted challenges to districts in central Texas. Those claims were unsuccessful, and LULAC s fee request should be reduced accordingly. CONCLUSION The fee claims here seek over $700,000 in reimbursement for 8 attorneys working at 4 different firms for a case primarily concerning a single state-senate district. Under the law, the prevailing parties are entitled only to: fees, costs, and expenses in litigation, as opposed to the legislative arena; limiting the claims to amounts incurred after the Legislature adopted the first maps in June 2011 requires reductions of $18,150; fees, costs, and expenses that led to the interim orders on which they partially prevailed; limiting the claims to amounts incurred before this Court issued the March 19, 2012 interim order requires reductions of $121,314.89; fees, costs, and expenses related to the claims on which they partially prevailed; eliminating such amounts related to the Supreme Court appeal requires reductions of $135,930.38; eliminating such amounts related to work performed on other cases requires reductions of $55,241.25; AUS:

48 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 20 of 20 Costs incurred by out-of-state counsel whose hiring was a necessity; absent such a showing, eliminating items related to out-of-state counsel requires reductions of $7,312.27; hourly rates customary in the district where the Court sits; after applying the above reductions to hours billed for excluded periods and work, adjusting rates for the remaining hours billed requires further monetary reductions of $125, The figures above are best estimates of the reductions that should be applied without double-counting any. For example, when a party charged abovemarket hourly rates for work done before the Legislature acted in June 2011, the fees should be eliminated if they relate to lobbying, and in the alternative reduced to local customary rates. Dated: October 4, 2013 Scott A. Brister AUS:

49 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. EXHIBIT C

50 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 2 of 2 EXHIBIT C CODING DESIGNATIONS CODE B V D C T S SC Block billing DESIGNATION Vague, lacks sufficient description Duplicative with internal and/or external counsel Clerical, administrative Travel Senate Supreme Court DDC Section 5 E N/A Perez O Exclude 9/30/11 through 1/23/12 (first interim map development) Prior to Legislative enactment, filing of Complaint or Intervention, case development or unrelated to Davis case Duplicative of time billed in Perez v. Perry, 5:11-cv Time spent on other litigation (possibly No. 5:11-cv-360 or No. 1:11-cv-1303)

51 Case 5:11-cv OLG-JES-XR Document Filed 10/04/13 Page 1 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION WENDY DAVIS, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-788-OLG-JES-XR [Lead Case] RICK PERRY, et al., Defendants. LEAGUE OF UNITED LATIN AMERICAN CITIZENS (LULAC), DOMINGO GARCIA, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-855-OLG-JES-XR [Consolidated Case] RICK PERRY, et al., Defendants. EXHIBIT D

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