Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 1 of 19 PageID #: 14726

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1 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 1 of 19 PageID #: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK X MARK A. FAVORS, HOWARD LEIB, LILLIE H. GALAN, EDWARD A. MULRAINE, WARREN SCHREIBER, and WEYMAN A. CAREY, Plaintiffs, DONNA KAYE DRAYTON, EDWIN ELLIS, AIDA FORREST, GENE A. JOHNSON, JOY WOOLLEY, SHEILA WRIGHT, LINDA LEE, SHING CHOR CHUNG, JULIA YANG, JUNG HO HONG, JUAN RAMOS, NICK CHAVARRIA, GRACIELE HEYMANN, SANDRA MARTINEZ, EDWIN ROLDAN, MANOLIN TIRADO, LINDA ROSE, EVERET MILLS, ANTHONY HOFFMAN. KIM THOMPSON-WEREKOH, CARLOTTA BISHOP, CAROL RINZLER, GEORGE STAMATIADES, JOSEPHINE RODRIGUEZ, SCOTT AUSTER, MELVIN BOONE, GRISSELLE GONZALEZ DENNIS O. JONES, REGIS THOMPSON LAWRENCE, and AUBREY PHILLIPS, Intervenor Plaintiffs, v. ANDREW M. CUOMO, as Governor of the State of New York, ERIC T. SCHNEIDERMAN, as Attorney General of the State of New York, ROBERT J. DUFFY, as President of the Senate of the State of New York, DEAN G. SKELOS, as Majority Leader and President Pro Tempore of the Senate of the State of New York, SHELDON SILVER, as Speaker of the Assembly of the State of New York, JOHN L. SAMPSON, as Minority Leader of the Senate of the State of New York, BRIAN M. KOLB, as Minority Leader of the Assembly of the State of New York, the NEW YORK STATE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT ( LATFOR ), JOHN J. McENENY, as Member of LATFOR, ROBERT OAKS, as Member of LATFOR, ROMAN HEDGES, as Member of LATFOR, MICHAEL F. NOZZOLIO, as Member of LATFOR, MARTIN MALAVE DILAN, as Member of LATFOR, and WELQUIS R. LOPEZ, as Member of LATFOR, Defendants X 11 Civ (RR) (GEL) DLI) (RLM) MEMORANDUM OF LAW IN SUPPORT OF INTERVENOR- PLAINTIFFS MOTION FOR ATTORNEYS FEES AND COSTS

2 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 2 of 19 PageID #: TABLE OF CONTENTS Page I. II. Factual Background... 1 Argument... 4 A. B. The Lee Intervenors Are Prevailing Parties in This Action and Entitled to Award of Attorney s Fees Under Section The Attorney s Fees Sought by the Lee Intervenors Are Reasonable Counsel for the Lee Intervenors Worked a Reasonable Number of Hours and Exercised Appropriate Billing Judgment The Lee Intervenors Seek a Reasonable Hourly Rate III. Conclusion i

3 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 3 of 19 PageID #: TABLE OF AUTHORITIES CASES Page(s) Adorno v. Port Auth. of New York & New Jersey, 685 F. Supp. 2d 507 (S.D.N.Y. 2010) on reconsideration in part, 06 CIV. 593 (DC), 2010 WL (S.D.N.Y. Mar. 2, 2010)...10 Adusumelli v. Steiner, 08 CIV JMF, 2013 WL (S.D.N.Y. Mar. 28, 2013)...5 Arbor Hill Concerned Citizens Neighborhood Ass n v. Cnty. of Albany, 369 F.3d 91 (2d Cir. 2004)...5, 10 Bliven v. Hunt, 579 F.3d 204 (2d Cir.2009)...8 Brown v. Giuliani, 98 Civ (S.D.N.Y.)...14 Davis v. City of New Rochelle, N.Y., 156 F.R.D. 549 (2d Cir. 1994)...5 Farrar v. Hobby, 506 U.S. 103 (1992)...5 Finch v. New York State Office of Children & Family Servs., 861 F. Supp. 2d 145 (S.D.N.Y. 2012)...7, 9 G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415 (S.D.N.Y. 2012)...10 Greene v. City of New York, 12 CIV SAS, 2013 WL (S.D.N.Y. Oct. 25, 2013)...7 Hastert v. State Bd. of Elections, 794 F. Supp. 254 (N.D. Ill. 1992) aff d in part, rev d in part sub nom. Hastert v. Illinois State Bd. of Election Comm rs, 28 F.3d 1430 (7th Cir. 1993)...6 Hensley v. Eckerhart, 461 U.S. 424 (1983)...7, 8 Hugee v. Kimso Apartments, LLC, 852 F. Supp. 2d 281 (E.D.N.Y. 2012)...10 Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974)...10 ii

4 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 4 of 19 PageID #: Page(s) Konits v. Karahalis, 409 F. App x 418 (2d Cir. 2011)...10 Lefemine v. Wideman, 133 S. Ct. 9 (2012)...5 Millea v. Metro-N. R. Co., 658 F.3d 154 (2d Cir. 2011)...8 New Jersey v. E.P.A., 663 F.3d 1279 (D.C. Cir. 2011)...5, 6 Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)...7 Perez v. Westchester Cnty. Dep t of Corr., 587 F.3d 143 (2d Cir. 2009)...5 Rozell v. Ross-Holst, 576 F. Supp. 2d 527 (S.D.N.Y. 2008)...10 Scott v. City of New York, 66 F.3d 130 (2 nd Cir. 2010)...9 Shaw v. Hunt, 154 F.3d 161 (4th Cir. 1998)...6 Spencer v. City of New York, 06 CIV KMW, 2013 WL (S.D.N.Y. Nov. 13, 2013)...5 Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992)...4, 5, 6 STATUTES 28 U.S.C U.S.C U.S.C , 4, 5, 6 42 U.S.C.A (West)...4 Fed. R. Civ. P Section 203 of the Voting Rights Act...11, 12 iii

5 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 5 of 19 PageID #: Pursuant to 42 U.S.C and Fed. R. Civ. P. 54, Linda Lee, Shing Chor Chung, Julia Yang, Jung Ho Hong (collectively the Lee Intervenors ) respectfully submit this Memorandum of Law in Support of their application for reasonable attorneys fees and other discretionary costs. On March 19, 2012, this Court granted Counts II and III of the Lee Intervenors complaint. Under the new congressional map, as adopted by the Court, District 6 and District 7 correspond to the Lee Intervenors proposed map by retaining the unity of Asian American communities in Queens and Manhattan; notably, new District 6 has an Asian Voting Age Population ( VAP ) of 37.9%. The new map retains the integrity of Asian American communities in other areas of the city as well. The Lee Intervenors are prevailing parties in this action and thereby entitled to reasonable attorneys fees. I. Factual Background This action was initiated on November 17, 2011 by six registered voters in the State of New York against the Governor of New York, as well as members of the legislative and executive branches. On December 28, 2011, the Lee Intervenors filed a motion to intervene, along with a complaint in intervention. This motion was granted on February 14, Dkt. Entry Feb. 14, The plaintiffs alleged that the defendants failure to adjust New York s legislative and congressional districts in accordance with the results of the 2010 census data violated their rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, pursuant to 42 U.S.C (Count I), the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution, pursuant to 42 U.S.C (Count II), Article I, Section 2 of the U.S. Constitution, pursuant to 42 U.S.C (Count III), and the New York Constitution (Count IV). The plaintiffs sought a judgment declaring that their rights had been violated, declaring the current state and congressional districts invalid, appointing a

6 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 6 of 19 PageID #: Special Master to draw new districts in compliance with the law, ordering the redrawing of the district map, and awarding attorneys fees. Dkt. Entry No. 316 at 19. On February 14, 2012, Chief Judge Dennis Jacobs designated a three-judge panel to preside over the matter, pursuant to 28 U.S.C Dkt. Entry No. 74. On February 21, 2012, the Panel denied the Defendant s motion to dismiss the Plaintiff s complaint for failure to state a claim. On the same day, this Panel referred the creation of a report and recommendation for a redistricting plan, and all related matters, to Hon. Roanne L. Mann, U.S. Magistrate Judge. Dkt. Entry Feb. 21, 2012; Order of Referral, Dkt. Entry No The Panel limited Judge Mann s task to redistricting the State s congressional districts, reserving for later the question of whether the Court must intervene to reapportion the State Senate and Assembly Districts. Dkt. Entry No. 133 at 2. In preparing the redistricting plan, the Panel instructed Judge Mann to consider any proposals, plans, and comment either already submitted or to be submitted by all parties and intervenors in the action. Dkt. Entry No. 133 at 4. Judge Mann was authorized to either recommend a new plan or to incorporate all or parts of extant or newly proposed plans submitted by either the parties or interested members of the public. Id. On February 27, 2013, the Panel held a hearing setting forth procedures and powers of the magistrate judge. At this hearing the Panel directed Judge Mann to appoint Dr. Nathaniel Persily, a Professor of Law at Columbia University, to assist in preparing the redistricting plan. See Minute Entry (Feb. 27, 2012). At a proceeding immediately following the Panel hearing, the Magistrate Judge set forth a schedule for the parties to file their proposed redistricting plans and then file responses or objections to all other filed proposals. Dkt. Entry. No 129. The Lee Intervenors submitted their proposed redistricting plans on February 29, Affidavit of Professor Nathaniel Persily, J.D. PhD 61 (March 12, 2012), Dkt. Entry No. 223, Attachment _9.docx 2

7 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 7 of 19 PageID #: ( Persily Aff. ). Non parties submitted proposals on or before March 2, Parties and nonparties also filed comments to the proposed plans on March 2, A four-hour public hearing was convened before Judge Mann on March 5, 2012 where counsel for the Lee Intervenors advocated for their proposed redistricting plan. See Minute Entry (March 5, 2012), Dkt. Entry No Judge Mann issued a Report and Recommendation and Proposed Redistricting map for congressional districts of New York State on March 12, Dkt. Entry Nos. 222, 223. District 6 under the new congressional map corresponds to the Lee Intervenor s proposed Unity Map by retaining within one district the Asian American community in Flushing/Bayside, Elmhurst and Briarwood/Jamaica Hills, Queens. See Persily Aff. 82, , 139 compare with Dkt. Entry No 138, Attachment 3 (attached as Exhibit C to Declaration of Jerry G. Vattamala, December 18, 2013 ( Vattamala Declaration ). Likewise, District 7 also adheres to the unity map by keeping within one district the community of interest in Manhattan s Chinatown and Brooklyn s Sunset Park. See Persily Aff. 121 and compare with Dkt. No. 138, Attachment 4 (attached as Exhibit D to Vattamala Declaration). District 14 retains within one district the Asian American community of interest in Jackson Heights and Woodside, Queens. See Persily Aff. 79, Dkt. Entry No (describes Jackson Heights COI). District 5 retains within one district the Asian American community of interest in Richmond Hill/South Ozone Park. See Persily Aff. 80; Dkt. Entry No 167 at 11 (describes Richmond Hill/South Ozone Park COI). On March 19, 2012, the three-judge panel adopted Judge Mann s Report and Recommendation and issued a written opinion and order. Order and Opinion, 43 (March 19, 2012), Dkt. Entry No As the Lee Intervenors requested in their complaint, the Court found _9.docx 3

8 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 8 of 19 PageID #: that New York had failed to draw new congressional districts as required by the U.S. Constitution and adopted new congressional districts for the 2012 election. Final judgment was entered on November 5, 2013, in favor of the Lee Intervenors on Count II (as to the congressional redistricting claims only) and Count III of their Original Complaint (Dkt. Entry No. 38-5). Dkt. Entry No. 639 at 2. Throughout the entire litigation, the Lee Intervenors have been represented by the Asian American Legal Defense and Education Fund ( AALDEF ) and Kaye Scholer LLP. See Vattamala Declaration; Declaration of Glenn D Magpantay, December 18, 2013 ( Magpantay Declaration ); Affidavit of James D. Herschlein, December 19, 2013( Herschlein Declaration ). Both AALDEF and Kaye Scholer are seeking fees for work done prior to March 21, The Lee Intervenors are seeking $27,825 in legal fee reimbursement for hours worked by AALDEF in this matter. The Lee Intervenors are also seeking $89, in legal fee reimbursement for hours worked by Kaye Scholer in this matter. II. Argument A. The Lee Intervenors Are Prevailing Parties in This Action and Entitled to Award of Attorney s Fees Under Section A prevailing party in a civil rights action should ordinarily recover [its] attorney s fees unless special circumstances would render such an award unjust. Wilder v. Bernstein, 965 F.2d 1196, 1202 (2d Cir. 1992) (citing S. Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Admin. News 5908, 5912 (Senate Report); 42 U.S.C.A (West). While the language of 1988 is permissive, this Circuit has interpreted it to create a strong preference in favor of the prevailing party s right to fee shifting. Wilder, 965 F.2d at The legislative history of this action in its entirety stands as a singular lucid pronouncement that the award of attorney fees made under 1988 should be interpreted broadly so as to avoid _9.docx 4

9 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 9 of 19 PageID #: frustrating enforcement of fundamental laws. Id. at 1203; Adusumelli v. Steiner, 08 CIV JMF, 2013 WL , at *1-2 (S.D.N.Y. Mar. 28, 2013). A plaintiff or intervenor prevails for the purposes of section 1988 when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant s behavior in a way that directly benefits the plaintiff. Farrar v. Hobby, 506 U.S. 103, (1992); see Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012); Perez v. Westchester Cnty. Dep t of Corr., 587 F.3d 143, 149 (2d Cir. 2009). To qualify as a prevailing party, however, a civil rights plaintiff or intervenor does not need to have prevailed on all aspects of his or her complaint; it is sufficient that the party can point to at least some relief on the merits of the claim either through a judgment, a consent decree or a settlement. Davis v. City of New Rochelle, N.Y., 156 F.R.D. 549, 554 (2d Cir. 1994) (citing Farrar v. Hobby, 506 U.S. 103 (1992)): Spencer v. City of New York, 06 CIV KMW, 2013 WL , at *1 (S.D.N.Y. Nov. 13, 2013), Arbor Hill Concerned Citizens Neighborhood Ass n v. Cnty. of Albany, 369 F.3d 91, 95 (2d Cir. 2004). For the purposes of fee recovery under section 1988, intervenors are treated the same as other parties to the action and when prevailing are likewise entitled to the award of attorney s fees. Wilder, 965 F.2d at The legislative history of 1988 specifically contemplates that an intervener may be a prevailing party. Id. [I]ntervention furthers the goals of efficiency and uniformity in litigation. Id.; see New Jersey v. E.P.A., 663 F.3d 1279, 1282 (D.C. Cir. 2011). In drafting the civil rights laws, Congress recognized that inadequate resources of the enforcement division of the executive branch prevented it from eradicating all civil rights abuses solely through the government s efforts and therefore encourag[ed] litigants to act as private attorneys general. Wilder, 965 F.2d at Reading section 1988 to limit the award of _9.docx 5

10 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 10 of 19 PageID #: attorney s fees to those who prevail in vindicating their own civil rights... is not found in the Act and such a reading of 1988 does not comport with its plain and ordinary meaning. Id. at The Lee Intervenors are prevailing parties entitled to a fee award. This Court entered a final judgment order on November 5, 2013 in favor of the Lee Intervenors on Count II (as to the congressional redistricting claims only) and Count III of their Original Complaint. Dkt. Entry No. 639 at 2. In its March 19, 2012 Opinion and Order, the Court found that the plaintiffs and intervenors rights had been violated by the defendants and therefore judicially ordered the adoption of a congressional redistricting plan. Dkt. Entry No. 242 at The Lee Intervenors requests have been granted. This clearly constitutes some relief on the merits of the Lee Intervenor s claims as the order had the effect of modifying the defendants behavior and materially altered the relationship between the parties. Moreover, not only were the Lee Intervenors awarded the relief they sought, they clearly played a critical role in the overall litigation as their participation contributed substantially to the outcome and did not duplicate the efforts of the other parties. See New Jersey v. E.P.A., 663 F.3d at 1284; Shaw v. Hunt, 154 F.3d 161, 162 (4th Cir. 1998). First, the Lee Intervenor s filed their complaint and motion for intervention prior to the appointment of the three judge panel which ultimately decided the matter. Complaint-In-Intervention (Dec. 27, 2012), Dkt. Entry No. 38. Consequently, they have participated at all material stages of the litigation; unlike intervenors in other cases who have had fee requests denied, the Lee Intervenors cannot be said to have had only tangential involvement or duplicated the efforts of other parties. See e.g. Hastert v. State Bd. of Elections, 794 F. Supp. 254, 257 (N.D. Ill. 1992) aff d in part, rev d in part sub _9.docx 6

11 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 11 of 19 PageID #: nom. Hastert v. Illinois State Bd. of Election Comm rs, 28 F.3d 1430 (7th Cir. 1993) (holding intervention a week prior to trial for limited purpose failed to entitle them to attorney s fees). After their request to intervene was granted, the Lee Intervenors submitted a partial redistricting plan to the Court on February 29, Dkt. Entry No The Lee Intervenors likewise reviewed the proposals submitted by the other parties in the action and provided the court with detailed comments and critique on these proposals. Dkt. Entry No Counsel for the Lee Intervenors also participated at hearings before the Court regarding the redrawing of New York s congressional maps. Dkt. Entry No. 129 (February 27, 2012); Dkt Entry No. 221 (March 5, 2012). While the Court ultimately fashioned its own redistricting plan, the Lee Intervenor s plan and comments were reviewed and considered by the Court in conjunction with the redistricting process and ultimately helped inform the final plan. Persily Aff at 64; Dkt. Entry No. 223 at 11. The final plan reflected many aspects of the Lee Intervenor s unity map as it retained the integrity of Asian American communities in congressional districts in Queens, Brooklyn and Manhattan. For all of these reasons, the Lee Intervenors clearly are prevailing parties in this matter. B. The Attorney s Fees Sought by the Lee Intervenors Are Reasonable. [A] reasonable fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case. Finch v. New York State Office of Children & Family Servs., 861 F. Supp. 2d 145, 151 (S.D.N.Y. 2012) (citing Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010)). This fee is determined using the lodestar method wherein the court multipl[ies] a reasonable hourly rate by the number of reasonably expended hours. Greene v. City of New York, 12 CIV SAS, 2013 WL , at *2-3 (S.D.N.Y. Oct. 25, 2013) (citing Hensley v Eckerhart, 461 U.S. 424, 436 (1983). The court may adjust this figure by reducing the fee for hours that it views as excessive, redundant, or otherwise _9.docx 7

12 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 12 of 19 PageID #: unnecessary. Id. (citing Bliven v. Hunt, 579 F.3d 204, 213 (2d Cir.2009)). The court can also adjust the fee based upon the degree of success: [h]ours spent on unsuccessful fee-shifting claims, like those spent on claims wholly ineligible for fee-shifting, must be excluded from the reasonable hours spent on the case when calculating the lodestar. Id. at *3 (S.D.N.Y. Oct. 25, 2013) (citing Millea v. Metro-N. R. Co., 658 F.3d 154, 168 (2d Cir. 2011). 1. Counsel for the Lee Intervenors Worked a Reasonable Number of Hours and Exercised Appropriate Billing Judgment. The complexity of this matter and the speed with which it was resolved cannot be over emphasized. See Opinion and Order 8 (March 19, 2012), Dkt. Entry No. 242 (characterizing the undertaking as herculean. ). Like all redistricting cases, this was a multifaceted and expansive project that required a significant investment of time. Lengthy and detailed proposals were prepared by the various parties and subsequently reviewed and commented on by the parties. Ultimately, the Court and the parties were able to accomplish something in a month that the state legislature was unable to accomplish in over a year. See Opinion and Order, Dkt. Entry No. 242 at 8. The result was a redistricting plan that conformed with the mandate of the Constitution and ensured the rights of the plaintiffs and intervenors alike. Given the complexity and the excellent outcome of this matter, the number of hours worked by counsel for the Lee Intervenors is reasonable. The attached declarations of Jerry G. Vattamala, Glenn D. Magpantay, and James D. Herschlein support this conclusion. Billing statements for the hours worked on this project by AALDEF and Kaye Scholer attorneys are included as exhibits to these declarations. These billing statements are organized chronologically by each individual activity. Each individual entry lists the attorney s name, the date, the hours worked and a short description of the activity or project. The declarations certify that the hours identified in the attached billing statements _9.docx 8

13 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 13 of 19 PageID #: were actually worked on the topics identified and that all attorney s identified on the billing statements maintained detailed, contemporaneous and accurate records of their time throughout the entire course of this representation. See Scott v. City of New York, 66 F.3d 130, 132 (2 nd Cir. 2010). The attached declarations certify that the AALDEF and Kaye Scholer attorneys working on this matter were efficient in the litigation of this case, notwithstanding its complexity. The declarations further certify that the hours worked were devoted to necessary litigation tasks and, to the extent possible, the attorneys sought to avoid undertaking tasks which duplicated the work done by other parties. In addition, given the highly time-sensitive nature of this litigation, counsel for the Lee Intervenors were required to put aside certain other work to focus on this matter. The Court s March 19, 2012 opinion and order was limited to adoption of a congressional redistricting plan. The Lee Intervenors claims unrelated to the congressional redistricting remain pending. Therefore, the AALDEF and Kaye Scholer fee request is limited to fees charged in conjunction with the Lee Intervenors congressional redistricting claims only. In addition, as stated in the Herschlein Declaration, and reflected in Exhibit A thereto, while a number of individuals at Kaye Scholer worked on this matter, Kaye Scholer is only seeking fees for work performed by James Herschlein and Noah Peters. 2. The Lee Intervenors Seek a Reasonable Hourly Rate. The reasonable hourly rate is the rate a paying client would be willing to pay. Finch, 861 F. Supp. 2d at 152. In determining this rate, a court should consider the market rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation. Id. In addition, it is well-established that civil rights attorneys not working for profit are entitled to fees that are comparable to those awarded to private attorneys _9.docx 9

14 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 14 of 19 PageID #: with fee-paying clients. G.B. ex rel. N.B. v. Tuxedo Union Free Sch. Dist., 894 F. Supp. 2d 415, 435 (S.D.N.Y. 2012). In the Second Circuit, courts must bear in mind all the case-specific variables that [the Second Circuit] and other courts have identified as relevant to the reasonableness of attorney s fees in setting a reasonable hourly rate. Arbor Hill, 522 F.3d at 190. These factors include: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney s customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Arbor Hill, 522 F.3d at 187 (citing Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 716 (5th Cir. 1974). In light of such factors, [r]ecent opinions from the Eastern District of New York have determined that reasonable hourly rates in this district are approximately $300 $450 per hour for partners, $200 $300 per hour for senior associates, and $100 $200 per hour for junior associates. Hugee v. Kimso Apartments, LLC, 852 F. Supp. 2d 281, (E.D.N.Y. 2012); see Konits v. Karahalis, 409 F. App x 418, 422 (2d Cir. 2011) (recognizing courts in the E.D.N.Y. have granted rates ranging from $200 to $400 per hour for partners). Courts in the Southern District apply slightly higher rates. See also Adorno v. Port Auth. of New York & New Jersey, 685 F. Supp. 2d 507, 514 (S.D.N.Y. 2010) on reconsideration in part, 06 CIV. 593 (DC), 2010 WL (S.D.N.Y. Mar. 2, 2010) (listing cases); Rozell v. Ross-Holst, 576 F. Supp. 2d 527, 546 (S.D.N.Y. 2008) (applying hourly rates of $600 for partners, $350 for senior associates, $250 for junior associates, $175 for law clerks, and $125 for paralegals). Because Kaye Scholer is located in Manhattan, the Lee Intervenors respectfully request that this Court grant the Kaye Scholer attorneys prevailing attorneys fees at the rates applicable _9.docx 10

15 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 15 of 19 PageID #: to the Southern District of New York, i.e., $600 per hour for Mr. Herschlein s time and $350 per hour for Mr. Peters time. The Lee Intervenors also request that the Court grant payment for the time of Mr. Vattamala and Mr. Magpantay of AALDEF at the rates of $300 and $350 per hour, respectively. a. The AALDEF Attorneys The Lee Intervenors were represented by two experienced attorneys working at the Asian American Legal Defense and Education Fund ( AALDEF ), a national nonprofit advocacy and legal aid organization that protects and promotes the civil rights of Asian Americans. Lead attorney, Jerry Vattamala, is a staff attorney at AALDEF and has been a leader in the New York Asian American community on the issue of redistricting and voters rights. Mr. Vattamala litigates cases concerning violations of Section 203 of the Voting Rights Act. He has been involved in collaborating with voting rights experts from the African American and Latino communities to create the Unity Map for proposed redistricting. He has also testified at numerous hearings on redistricting throughout the Northeast and has participated in voting rights speakers panels, including at Harvard Law School and the National Asian Pacific American Bar Association Convention. He has submitted numerous briefings to the Supreme Court on behalf of the Asian American community relating to voting rights issues. Prior to joining AALDEF two and a half years ago, Mr. Vattamala was a commercial litigation associate at Proskauer Rose. Given his extensive litigation experience in the area of civil rights law and redistricting issues, a hourly rate of $300 for Mr. Vattamala s work on this matter is reasonable and in accordance with market rates. In addition to Mr. Vattamala, Glenn D. Magpantay, the Director of the Democracy Program at AALDEF also worked on this matter. Mr. Magpantay has been working for _9.docx 11

16 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 16 of 19 PageID #: AALDEF for 15 years and is a recognized authority on minority voting rights and political participation and he has counseled numerous community groups and elected officials on the legal requirement of redistricting. He has extensive litigation experience, which includes serving as co-counsel in the following voting rights related matters. Chinatown Voter Education Alliance v. Ravitz: a successful action under the language assistance provisions (Section 203) of the Voting Rights Act for Chinese and Korean ballots and interpreters; U.S. v. Boston: an intervention into the U.S. Department of Justice s lawsuit under the non-discrimination provisions (Section 2) of the VRA to protect Chinese and Vietnamese voters; Rodriguez v. Pataki: a challenge to NY s malapportioned state senate districts after the 2000 census; U.S. v. NYS Board of Elections: an intervention into HAVA implementation lawsuit requiring new voting machines. Chen v. Hawaii: a 2010 lawsuit claiming that the state s preparations for November s mail-in election violated Section 203 of the VRA. Mr. Magpantay has also co-authored amicus briefs in several U.S. Supreme Court voting rights cases. These include Crawford v. Marion County Election Board, a state voter ID law case, and Northwest Austin Municipal Utility Dist. No. 1 v. Holder, where the Court upheld the reauthorized Voting Rights Act. Mr. Magpantay has worked directly with redistricting experts, political scientists and lay witnesses in redistricting and its impact on Asian American and minority voters. He oversees AALDEF s Asian American Election Protection efforts in fifteen states. He has testified before _9.docx 12

17 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 17 of 19 PageID #: Congress on the issue of Asian American voter disenfranchisement. He has also published scholarly legal articles on the subject and teaches Race & the Law at Brooklyn Law School and Asian American Civil Rights at Hunter College/CUNY. Given Mr. Magpantay s extensive experience in this area, an hourly rate of $350 for Mr. Magpantay s work on this matter is reasonable and in accordance with market rates. 1 b. The Kaye Scholer Attorneys Attorney Noah Peters, an associate at Kaye Scholer, also contributed significantly to the excellent outcome for the Lee Intervenors. Mr. Peters, a 2009 graduate University of Virginia School of Law, has experience in numerous aspects of complex commercial litigation. He recently co-authored an amicus curiae brief submitted to the U.S. Supreme Court in a Voting Rights Act redistricting case from Texas. Mr. Peters also has experience counseling clients with regards to employment and labor relations and antitrust practice issues. Mr. Peter s billing rate from 2011/2012 was $320 and $425, respectively. (Herschlein Dec. 13.). As a midlevel associate with litigation experience generally and civil rights litigation experience specifically, an hourly rate of $350 for Mr. Peter s work on this matter is reasonable and in accordance with market rates. Mr. Peters work on this matter was supervised by James Herschlein, a partner at Kaye Scholer and the firm s Co-Chair of its Complex Commercial Litigation department. Mr. Herschlein has over 25 years of experience in the areas of commercial litigation, and has tried numerous cases throughout the United States on issues ranging from securities and derivatives to intellectual property, product liability and bankruptcy claims. Mr. Herschlein s 1 Ken Kimerling, AALDEF s Legal Director, also participated in a meeting related to this action and attended one of the hearings before the Court. The Lee Intervenors are not seeking reimbursement for that time _9.docx 13

18 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 18 of 19 PageID #: legal experience includes serving as co-counsel for the plaintiff class in Brown v. Giuliani, 98 Civ (S.D.N.Y.), in which plaintiffs sought compensatory and injunctive relief as a result of defendants conduct in transferring plaintiffs from the Neponsit (Queens) Health Care Facility. Through several years of hard-fought litigation, the Court certified a class of approximately 280 residents, enjoined the City from taking certain conduct, and ultimately approved a January 2003 Stipulation and Order of Settlement that granted monetary compensation to each class member and directed defendants to take certain future actions. For his work on that matter, Mr. Herschlein was awarded the Legal Aid Society s 2001 Pro Bono Publico Award. In addition, Mr. Herschlein also served as counsel for a death row inmate in a federal habeas appeal, for which he received the New York City Bar Association s Thurgood Marshall Award in 1998, and he is currently a member of the Legal Aid Society s Board of Directors. (Herschlein Dec. 15). Mr. Herschlein s billing rate from 2011/2012 was $860 and $885, respectively. (Herschlein Dec. 12.) Given his litigation and civil rights experience, and given his billing rate, an hourly rate of $600 for his work on this matter is reasonable _9.docx 14

19 Case 1:11-cv DLI-RR-GEL Document 660 Filed 12/19/13 Page 19 of 19 PageID #: III. Conclusion For the reasons set forth above and supported by the accompanying declaration and exhibits thereto, the Lee Intervenors respectively request that this Court approve attorney s fees and expenses in the total amount of $27,825 for work by AALDEF attorneys and $89,031 for work by Kaye Scholer attorneys. Dated: December 19, 2013 Respectfully, /s/ James D. Herschlein James D. Herschlein Noah Peters KAYE SCHOLER LLP 425 Park Avenue New York, New York james.herschlein@kayescholer.com Jerry G. Vattamala Glenn D. Magpantay Kenneth Kimerling ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 99 Hudson Street, 12th floor New York, New York Attorneys for Lee Intervenors _9.docx 15