Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 1 of 6 PageID# 1352

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1 Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 1 of 6 PageID# 1352 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION TIMOTHY B. BOSTIC, TONY C. LONDON, CAROL SCHALL, and MARY TOWNLEY, Plaintiffs, v. CASE NO. 2:13-cv-395 JANET M. RAINEY, in her official capacity as State Registrar of Vital Records, and GEORGE E. SCHAEFER, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court, Defendants. MICHÈLE B. MCQUIGG, in her official capacity as the Prince William County Clerk of Circuit Court, Intervenor-Defendant. JOINT NOTICE OF SETTLEMENT REGARDING ATTORNEY S FEES AND COSTS On December 11, 2014, the parties advised the Court that Plaintiffs Timothy B. Bostic, Tony C. London, Carol Schall, and Mary Townley ( Bostic Plaintiffs ) had reached an agreement in principle with Defendant Janet M. Rainey, in her official capacity as State Registrar of Vital Records, to resolve the Bostic Plaintiffs claims for attorney s fees and costs. Dkt The parties have since finalized the terms and language of the Settlement Agreement and have

2 Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 2 of 6 PageID# 1353 received all of the necessary governmental approvals. Accordingly, pursuant to the Settlement Agreement between the Bostic Plaintiffs and Defendant Rainey (attached as Exhibit 1), the parties hereby jointly stipulate that all potential claims by the Bostic Plaintiffs for attorney s fees and costs in this matter have been resolved. Dated: January 28, 2015 Respectfully submitted, /s/ Charles B. Lustig Thomas B. Shuttleworth, VSB # tshuttleworth@srgslaw.com Robert E. Ruloff, VSB # rruloff@srgslaw.com Charles B. Lustig, VSB # clustig@srgslaw.com Andrew M. Hendrick, VSB # ahendrick@srgslaw.com Erik C. Porcaro, VSB # eporcaro@srgslaw.com SHUTTLEWORTH, RULOFF, SWAIN, HADDAD & MORECOCK, P.C South Blvd., Suite 300 Virginia Beach, VA Telephone: (757) Facsimile: (757)

3 Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 3 of 6 PageID# 1354 David Boies, admitted pro hac vice dboies@bsfllp.com BOIES, SCHILLER & FLEXNER LLP 333 Main St. Armonk, NY Telephone: (914) Facsimile: (914) Robert B. Silver, admitted pro hac vice rsilver@bsfllp.com Joshua I. Schiller, admitted pro hac vice jischiller@bsfllp.com BOIES, SCHILLER & FLEXNER LLP 575 Lexington Avenue New York, NY Telephone: (212) Facsimile: (914) William A. Isaacson, admitted pro hac vice wisaacson@bsfllp.com BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202) Theodore B. Olson, admitted pro hac vice tolson@gibsondunn.com Matthew D. McGill, admitted pro hac vice mmcgill@gibsondunn.com Amir C. Tayrani, admitted pro hac vice atayrani@gibsondunn.com Chantale Fiebig, admitted pro hac vice cfiebig@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C Telephone: (202) Facsimile: (202) Theodore J. Boutrous, Jr., admitted pro hac vice tboutrous@gibsondunn.com Joshua S. Lipshutz, admitted pro hac vice jlipshutz@gibsondunn.com GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA Telephone: (213) Facsimile: (213) Jeremy M. Goldman, admitted pro hac vice jgoldman@bsfllp.com BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA Telephone: (510) Facsimile: (510) Counsel for Plaintiffs (counsel listing continued on next page) 3

4 Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 4 of 6 PageID# 1355 Rebecca K. Glenberg AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. 701 E. Franklin Street, Suite 1412 Richmond, VA Telephone: (804) Facsimile: (804) rglenberg@acluva.org Gregory R. Nevins Tara L. Borelli LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 730 Peachtree Street, NE, Suite 1070 Atlanta, GA Telephone: (404) Facsimile: (404) gnevins@lambdalegal.org tborelli@lambdalegal.org James D. Esseks Joshua A. Block AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY Telephone: (212) Facsimile: (212) jesseks@aclu.org jblock@aclu.org Paul M. Smith Luke C. Platzer Mark P. Gaber JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, D.C Telephone: (202) Facsimile: (202) psmith@jenner.com lplatzer@jenner.com mgaber@jenner.com Counsel for Harris Intervenors Stuart A. Raphael Solicitor General of Virginia 900 East Main Street Richmond, Virginia Telephone: (804) Facsimile: (804) sraphael@oag.state.va.us Trevor S. Cox Deputy Solicitor General tcox@oag.state.va.us Mark R. Herring Attorney General of Virginia Cynthia E. Hudson Chief Deputy Attorney General Allyson K. Tysinger Senior Assistant Attorney General Chief, Health, Education & Social Services atysinger@oag.state.va.us Rhodes B. Ritenour Deputy Attorney General rritenour@oag.state.va.us Counsel for Janet M. Rainey, in her official capacity as State Registrar of Vital Records (counsel listing continued on next page) 4

5 Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 5 of 6 PageID# 1356 Jeffrey Franklin Brooke POOLE MAHONEY, PC 4705 Columbus Street Suite 100 Virginia Beach, VA Telephone: (757) jbrooke@poolemahoney.com David Brandt Oakley POOLE MAHONEY, PC 860 Greenbrier Circle Suite 401 Chesapeake, VA Telephone: (757) doakley@poolemahoney.com Counsel for George E. Schaefer, III, in his official capacity as Clerk of the Court for Norfolk Circuit Court David Austin R. Nimocks Alliance Defending Freedom 801 G Street N.W., Suite 509 Washington, D.C Telephone: (202) Facsimile: (480) animocks@alliancedefendingfreedom.org Byron J. Babione Kenneth J. Connelly J. Caleb Dalton Alliance Defending Freedom N. 90th Street Scottsdale, AZ Telephone: (480) Facsimile: (480) bbabione@alliancedefendingfreedom.org kconnelly@alliancedefendingfreedom.org cdalton@alliancedefendingfreedom.org Counsel for Michèle B. McQuigg, in her official capacity as Prince William County Clerk of Circuit Court 5

6 Case 2:13-cv AWA-LRL Document 167 Filed 01/28/15 Page 6 of 6 PageID# 1357 CERTIFICATE OF SERVICE I hereby certify that on the 28th day of January, 2015, I filed a true and correct copy of the foregoing Joint Notice of Settlement Regarding Attorney s Fees and Costs with the Clerk of the Court for the United States District Court for the Eastern District of Virginia via the Court s CM/ECF system. Service was accomplished on all parties through the Court s CM/ECF system. /s/ Charles Lustig Charles Lustig

7 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 1 of 7 PageID# 1358 EXHIBIT 1

8 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 2 of 7 PageID# 1359 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION TIMOTHY B. BOSTIC, eta!., ) ) Plaintiffs, ) ) v. ) ) Civil Action No. 2: 13-cv A W A-LRL JANET M. RAINEY, in her official capacity as ) State Registrar ofvital Records, ) ) GEORGE E. SCHAEFER, III, in his official ) capacity as Clerk of the Circuit Court of the City of ) Norfolk, ) ) Defendants, ) ) MICHELE B. MCQUIGG, in her official capacity ) as the Clerk of the Circuit Court of Prince William ) County, ) ) Intervenor-Defendant. ) SETTLEMENT AGREEMENT This Settlement Agreement is entered into by Plaintiffs in the above-captioned matter- Timothy B. Bostic, Tony C. London, Carol Schall, and Mary Townley- and Defendant Janet M. Rainey, in her official capacity as State Registrar ofvital Records, in full and final resolution of any claims Plaintiffs may have against any party for attorney's fees or costs in this action. BACKGROUND 1. In July 2013, Plaintiffs Bostic and London filed a complaint in the United States District Court for the Eastern District of Virginia, Norfolk Division (the "Court") challenging the validity of Virginia's laws denying marriage rights to same-sex couples, including Article I, 15-A, of the Constitution of Virginia, and Virginia Code and The suit named as defendants Governor Robert M. McDonnell, Attorney General Kenneth T. Cuccinelli, II, and George E. Schaefer, III, the Clerk of the Circuit Court ofthe City of Norfolk. By

9 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 3 of 7 PageID# 1360 agreement of the parties, Plaintiffs filed an amended complaint adding Plaintiffs Schall and Townley. Plaintiffs dismissed the Governor and Attorney General and added as a defendant Janet M. Rainey, the State Registrar of Vital Records. The parties agreed that the State Registrar was the proper State defendant. Rainey and Schaefer answered the amended complaint, defending Virginia's same-sex-marriage ban, and all parties moved for summary judgment. 2. On December 20, 2013, Michele B. McQuigg, in her official capacity as the Clerk of the Prince William County Circuit Court, moved to intervene to defend Virginia's ban. Judge Arenda L. Wright Allen permitted her intervention as a party to the proceedings. On January 23, 2014, newly-inaugurated Attorney General Mark Herring filed, on behalf of Rainey, a notice of change in the Commonwealth's legal position, which set forth the legal analysis that led him to conclude that Virginia's same-sex-marriage ban violated the Fourteenth Amendment. 3. Following oral argument on the cross-motions for summary judgment, the Court issued a ruling on February 13, 2014 (amended February 14) and entered a judgment on February 24 (the "Judgment") declaring that Virginia's marriage laws are facially unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution to the extent such laws deny the rights of marriage to same-sex couples or prohibit recognition of lawful marriages between same-sex couples that are validly entered into in other jurisdictions. The Judgment enjoined Rainey, and Clerk Schaefer and Clerk McQuigg (also in their official capacities), and their respective officers, agents and employees, from enforcing Virginia's marriage laws if and to the extent they deny to same-sex couples the rights and privileges of marriage that are afforded to opposite-sex couples. The Court stayed the effect of the Judgment pending appeal and severed Plaintiffs' claims for attorney's fees and costs for consideration after the final disposition of the appeal. Notices of 2

10 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 4 of 7 PageID# 1361 appeal to the United States Court of Appeals for the Fourth Circuit were filed by Rainey, Schaefer, and McQuigg. 4. On March 10, 2014, the United States Court of Appeals for the Fourth Circuit granted a motion to intervene on the side of the Plaintiffs-Appellees filed by the class of plaintiffs certified in Harris v. Rainey, No.5: 13cv077 (W.D. Va.), a case involving identical legal challenges to Virginia's same-sex-marriage prohibition. Plaintiffs, as well as the other parties, opposed the proposed intervention by the Harris Class. 5. On July 28, 2014, following full briefing and oral argument, the Fourth Circuit affirmed the judgment ofthis Court. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014). On August 20, 2014, the Supreme Court stayed the Fourth Circuit's mandate pending the timely filing and disposition of a petition for a writ of certiorari. McQuigg v. Bostic, 189 L. Ed. 2d 884 (2014). 6. Between August 8 and August 29, 2014, three petitions for writs of certiorari were filed with the Supreme Court by Rainey, Clerk Schaefer and Clerk McQuigg, to which the parties responded or filed papers indicating they waived responses. All parties urged the Court to hear the case. On October 6, 2014, the Supreme Court denied all three petitions for certiorari. Rainey v. Bostic, 190 L. Ed. 2d 140 (2014); Schaefer v. Bostic, 190 L. Ed. 2d 140 (2014); McQuigg v. Bostic, 190 L. Ed. 2d 140 (2014). The Fourth Circuit's mandate issued at 1:00 p.m. on October 6, 2014, at which time the Fourth Circuit's judgment took effect. 7. On October 21, 2014, this Court entered a consent order providing that any prevailing party wishing to file an application for attorney's fees and costs under 42 U.S.C must file such application by November 21. The Court subsequently extended this deadline to December 12. On December 11, Plaintiffs filed a joint motion to suspend their 3

11 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 5 of 7 PageID# 1362 deadline for petitioning the Court for attorney' s fees for an additional45 days in order to allow the parties to finalize a settlement Plaintiffs and Rainey have conferred in a good-faith effort to settle any claims for attorney's fees or costs to which Plaintiffs may be entitled under 42 U.S.C as prevailing parties. For settlement purposes, Plaintiffs provided counsel for Rainey with detailed time records kept by their attorneys at Gibson, Dunn, & Crutcher LLP ("Gibson Dunn") and Shuttleworth, Ruloff, Swain, Haddad & Morecock ("Shuttleworth"). Those records documented the firms' cumulative expenditure of2,372 hours, resulting in $1,738,645 in attorney's fees and $5,422 in costs, arising from their legal work in this matter. Counsel for Plaintiffs represented that that figure already reflected the firms' voluntary reduction of fees for time written off and did not include other significant costs incurred in the course of the litigation. The figure also reflected, however, the firms' fees calculated at billing rates substantially higher than prevailing rates in the Norfolk legal market. 9. To determine Plaintiffs' reasonable attorney's fees, counsel for Plaintiffs and Rainey agreed to the following methodology to facilitate their settlement negotiations: limit the hours claimed to those expended by members of the core Gibson Dunn and Shuttleworth legal teams, as identified by Gibson Dunn; reduce the hourly rates of those core team members to rates within the range of rates approved by the U.S. District Court for the Eastern District of Virginia, Norfolk Division, for partners, associates, and paralegals, respectively; eliminate certain categories of billed time, including time incurred for travel or for work in support oflegal positions that did not prevail (e.g., Plaintiffs' opposition to intervention by the Harris Class); The Harris Class has reached an independent resolution with Defendants for any claims the Harris Class may have for attorney's fees and costs. The settlement agreement between Defendants and the Harris Class is unrelated to the Settlement Agreement between Plaintiffs and Rainey, and any fees and costs paid by the Commonwealth of Virginia to the Harris Class will in no way affect the settlement amount to be paid to the Plaintiffs under the terms of this Settlement Agreement. 4

12 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 6 of 7 PageID# 1363 apply a reduction of20% to hours that were block-billed (meaning the time spent on different tasks combined in a single time entry could not be determined); and eliminate entries by Shuttleworth timekeepers that were duplicative of work performed by Gibson Dunn timekeepers. 10. This methodology resulted in blended hourly rates across the two firms of $506 for partners, $274 for associates, and $145 for paralegals. After applying the adjusted rates, and reducing the number of hours for the reasons described above, the firms' demand was reduced to $523,500. Counsel for Plaintiffs accepted Rainey's settlement offer in the amount of$520,000, with $459,000 allocated to Gibson Dunn and $61,000 to Shuttleworth. 11. The parties to this Settlement Agreement continue to dispute the billing rates and charges to which Plaintiffs are entitled. But the parties acknowledge the uncertainty and risks to each party associated with litigating a fee petition submitted by Plaintiffs, and the range of possible outcomes with regard to the quantum of fees sought. Acknowledging further the legal costs and expense associated with litigating these issues, Rainey and Plaintiffs have agreed to resolve their differences through this Settlement Agreement, each term of which is material to the parties' willingness to enter into it. AGREEMENT 1. The Commonwealth of Virginia shall make payment in the amount of$520,000- $459,000 to Gibson Dunn and $61,000 to Shuttleworth-in full satisfaction of all of Plaintiffs' claims for attorney's fees and costs. That payment shall be made by check payable to Gibson Dunn & Crutcher LLP and sent to Matthew D. McGill within 45 (forty-five) days after approval ofthis Settlement Agreement by the Governor of Virginia, as provided in paragraph In consideration for this payment, and upon notification that the Governor has approved the settlement as provided in paragraph 3, Plaintiffs release Defendants from any and all claims for attorney's fees and costs that Plaintiffs may have that arise out of this action. 5

13 Case 2:13-cv AWA-LRL Document Filed 01/28/15 Page 7 of 7 PageID# 1364 Plaintirts \'.ill seck no furth~. r rdid' against mt) pnrty in this cusc unless necessary to do :>o to cntorcc: th~ Court's Judgmcnl. 3. The: pnrtic:s to this Scttkmcnt r\gre~mcnt acknowkdgc that it is subjc:ct to approval hy the Governor of Virginia and thut iris not ct'fc~. th c unkss anj until the Go\ cmor upprovcs it. Counsel f~>r Rainey\\ ill prompt!~ ad\ i sc Oihs\lll Dunn once the Go\'e-mor approws this settlement. Promptl) ti.jiio"' ing such m>tilicutiou. the parth:s "' illjointl) uj\isc the: Court that the fee dispute has been rcsoh ed. In the c\'cnt that th~. Go\ l'rnor Jo~s not appro\\! the S.c:ttkmem Agret:m~. nt. Plaintiffs.:.xprcssl) rescn call rights as thi.!' pr~. n1iling ptuth:s in thb litigation to tile an applkution in thl' Court lor attomcy's t~cs and costs. ln witness to this Scitk mc-nl Agreement. thc- parties ttl it lkt\ c sigm:j it llll thl' dates indkat...'tl hdm'l: TIMOTHY B. BOSTIC. TONY C'. LONDON. CAROL SCHALL. unj r<.1ary TOW!\I.FY DATE: \ I q /15".. BY~:f!_;JJ rhcotkm~ B. OIS\)11 Mntthe\\ D. McGill Amir (. rayruni t'hnntale Fi~big UIBSON. Dli~"N & l'ru I CHLR l.l.p lo:io Connlldicut.-\\'cnu~. N.W. Wu-shington. D.C. :!0036 Thonub El. Shurti~\Hlrlh l VSR II ljjjol Robert F::. Ruloff ( VSB ) Churl~:s B. Lustig t VSB # ~t).. t.t:~) Afldnm M. I hmdrid.. t VSB # 42852) Lrik <:. Por\!ttn) (\'SB # 8..J.7t>3) Slit 1 'frj.lwor th. lwloff. SWAIN. HADDAD & MORH 'Ot 'h., P.C South BIYd., Suite 300 Virginiu Bea~h. VI\ Jr\Nt: [' ~vl. RAl\ J Y. in h~tr oi'tidul cnp;1dt~ us Statv R!!gbtntr of Vital' Rt:~ords 4Z)J Di\ II:: _ 5. BY:~ _.t _-1~ M:trk R. Herring Attt,mcy General l'f Y itg.inia Stunn A. Ruphad (VI.)~ 11JO~~Ol S\llh.:illlr <..1uncral l'f \' irginia l'l\.'\\11' S. CO\.l \'SB #783%) Dcptlly Solicitor Genural Rh\ldcs B. Ritcnouq\'SO ::71 -HJ'tl) Deputy Atllll'llc) 01.'nl..'ral l'i\ il Litigation Di\ isillll OI FICF OF rih.. \ I'IOR:-.l Y <..ie~i'rai. l)qu E. Main!\tl'l:.:l Rkhmond, VA 2 '~ 19