Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 1 of 28 PAGEID #: 7663

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1 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 1 of 28 PAGEID #: 7663 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 1 of 28 PAGEID #: 2464 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., : CASE NO. 2:13-cv : Plaintiffs, : : JUDGE MICHAEL H. WATSON vs. : : MAGISTRATE JUDGE KEMP JON A. HUSTED, : OHIO SECRETARY OF STATE, et al. : : Defendants. : INTERVENING PLAINTIFFS REPLY IN SUPPORT OF THEIR MOTION FOR ATTORNEYS FEES AND COSTS Intervening Plaintiffs Robert M. Hart, Robert Fitrakis on behalf of the Green Party of Ohio, Max Russell Erwin, and Don Shrader on behalf of the Constitution Party of Ohio (collectively GPO & CPO ) reply in support of their Motion for Attorneys Fees and Costs (the Petition ) as follows: I. The Attorneys Fee Petition Submitted by GPO & CPO Is Reasonable. GPO & CPO s Petition was not submitted as an opening salvo to stake out a bargaining position for the sake of arriving at some lesser, fair award. Rather, the Petition consists of a restrained and careful documentation of the nature and value of the necessary work that GPO & CPO s attorneys performed in order to prevail in this litigation. The Petition is founded upon a moderate lodestar computation based on the average billing rates in the relevant market, and it requests compensation for a reasonable number of hours for an efficient performance. On top of the modest computation, it requests a reasonable enhancement to reflect the unique circumstances of the representation. 1

2 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 2 of 28 PAGEID #: 7664 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 2 of 28 PAGEID #: 2465 It is natural for any respondent to want to resist a fee request, but Defendants radical opposition to this moderate Petition is wildly inapt, and, with regard to certain arguments, even frivolous. Defendants commence their case for reduction with a citation to the extreme case of Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 557 (2010), in which an attorney s billing rate, as enhanced by the district court, was over $866 dollars per hour. (Defs. Mem. Opp n 1.) The Perdue case does not stand for the proposition that attorneys cannot be awarded their reasonable fees. Rather, it found that applying an enhancement of 175% that results in an attorney receiving over $866 an hour was excessive. Id. at The case at hand is manifestly not such a case. (GPO & CPO s attorneys top billing rate is $300, and if enhanced by the requested factor of 1.4, it would be $420.) A. GPO & CPO s Attorneys Rates Are Reasonable in the Prevailing Market. 1. The Prevailing Market Rate Is That of Columbus, Ohio. It is beyond cavil that reasonable attorneys fees are determined with reference to the relevant market. But Defendants propound the far-fetched argument that the prevailing market is not the city of Columbus, Ohio, and instead consists of the entire Southern District of Ohio. (Defs. Mem. Opp n 5, 7.) Their suggestion that reasonable attorneys fee rates in this case should reflect those charged by suburban and rural, (Defs. Mem. Opp n 7), attorneys is absurd. One doesn t need to search any further than the cases already collected by Defendants in their memorandum to see that the relevant rate as logic would dictate is the rate that prevails in the city in which the court is located. (In Defendants own chosen cases, the relevant markets are, quoting the various courts: Detroit, 1 the Cleveland area, 2 Nashville, 3 the Kansas City 1 Hadix v. Johnson, 65 F.3d 532, 534, 536 (6th Cir. 1995). 2 Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp. 1017, 1024 (N.D. Ohio 1997). 2

3 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 3 of 28 PAGEID #: 7665 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 3 of 28 PAGEID #: 2466 market rate, 4 the Atlanta metropolitan area versus New York, 5 Cleveland versus New York, Washington, and Boston, 6 Ann Arbor and Detroit, 7 and the Cleveland area. 8 ) In no case was the relevant market considered to be the entire geographical venue of the court. In every case, the relevant market was the city in which the court was located. 2. GPO & CPO s Attorneys Rates Are Reasonable. (a) Attorneys Levenson and Hardiman s Rates Are Reasonable. As set forth in the Petition, Attorneys Freda Levenson and James Hardiman s reasonable billing rates are $300 per hour. Although Defendants have asserted that these experienced litigators rates should instead be $250, (Defs. Mem. Opp n 8), the rates must be measured by the prevailing rate for attorneys with similar experience in the Columbus market. Not only does the Petition establish that $300 was a low-average rate in 2012 for downtown Columbus attorneys with the experience of Levenson and Hardiman based on the Ohio State Bar Association s publication, The Economics of Law Practice in Ohio in 2013, (the Report ) (Petition 4-5), but such a rate falls modestly below the $350 state-wide average for all Ohio civil rights attorneys. Report at 40. In addition, as displayed in the chart below listing fee awards granted in the last seven years by U.S. District Courts in the Southern District of Ohio, Eastern Division in 1983 cases for attorneys of similar experience, the Defendants suggested rate of $250 per hour has not been utilized for work performed after Fee awards for legal services performed after 2011 have consistently been based upon a rate of at least $300 and sometimes substantially more. 3 Coulter v. State of Tennessee, 805 F.2d 146, 149 (6th Cir. 1986). 4 Missouri v. Jenkins by Agyei, 491 U.S. 274, 277 (1989). 5 Am. Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, (11th Cir. 1999). 6 Harkless v. Husted, No. 1:06-cv-02284, 2011 WL , at *13-17 (N.D. Ohio 2011). 7 Lamar Adver. Co. v. Charter Twp. of Van Buren, 178 Fed.Appx. 498, 502 (6th Cir. 2006). 8 Lavin v. Husted, No. 1:10-cv-1986, 2013 WL , at *4-6 (N.D. Ohio June 13, 2013). 3

4 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 4 of 28 PAGEID #: 7666 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 4 of 28 PAGEID #: 2467 Case Name Rate of Award Year of Award When the Work Was Performed Libertarian Party of $ Ohio v. Brunner (2007 WL ) Ne. Coal. for $400, $ Homeless v. Brunner (2010 WL ) Moore v. Brunner $ (2010 WL ) Ohio Right to Life $ Soc y, Inc. v. Ohio Elections Comm n (2013 WL ) Georgia-Pacific LLC $ v. Am. Int l Specialty Lines Ins. Co. (278 F.R.D. 187) Gunasekera v Irwin $350, $ (774 F.Supp.2d 882) Libertarian Party of $ Ohio v. Husted (2013 WL ) Williamson v. Recovery Ltd. P ship (731 F.3d 608) $ Judge Rubin s 1983 committee s determination of reasonable attorney fee rates for the Southern District of Ohio provides additional support for GPO & CPO s attorneys rates. 10 Courts in the Southern District still use Rubin rates, adjusting them for the cost of living at 4% per year. See Hunter v. Hamilton Cnty. Bd. of Elections, No. 1:10-cv-820, 2013 WL , at *17 n.9 (S.D. Ohio Sept. 30, 2013) (citing West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F.Supp.2d 914, 932 n.4 (S.D. Ohio 2009)); Georgia-Pacific LLC v. Am. Int l Specialty 9 The Court applied a multiplier of 1.25 to the $250 rate, making it effectively $ The Rubin rates in 1983 were: Paralegals $37.91/hour; Law Clerks $23.96/hour; Young Associates (2 years of experience or less) $61.77/hour; Intermediate Associates (2 to 4 years of experience) $71.62/hour; Senior Associates (4 to 5 years of experience) $82.81/hour; Young Partners (6 to 10 years of experience) $96.39/hour; Intermediate Partners (11 to 20 years of experience) $113.43/hour; and Senior Partners (21 or more years of experience) $128.34/hour. Hunter v. Hamilton Cnty. Bd. of Elections, No. 1:10-cv-820, 2013 WL , at *17 n.9 (S.D. Ohio Sept. 30, 2013) (citing West v. AK Steel Corp. Ret. Accumulation Pension Plan, 657 F.Supp.2d 914, 932 n.4 (S.D. Ohio 2009)). 4

5 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 5 of 28 PAGEID #: 7667 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 5 of 28 PAGEID #: 2468 Lines Ins. Co., 278 F.R.D. 187, 192 (S.D. Ohio 2010); Fredericks v. Potter, Case No. 1:06-CV- 113, Doc. 123 (S.D. Ohio 2009); Lee v. Javitch, Block & Rathbone, LLP, 568 F.Supp.2d 870, 876 (S.D. Ohio 2008) (C.J. Beckwith) (merits decision later reversed). 2 Years of Experience or Fewer 2-4 Years of Experience 2013 Rubin Rate $200.34/hr $232.29/hr $416.26/hr 2014 Rubin Rate $208.36/hr $241.58/hr $432.91/hr 21 or More Years of Experience In light of the applicable Rubin rates of $ to $ per hour, $300 is moderate for attorneys Levenson and Hardiman. (b) Attorney Awan s Rate Is Reasonable. Attorney Naila Awan s rate is also properly based on the rates prevailing in Columbus, rather than throughout the Southern District of the State as Defendants contend. The Report makes it clear that an attorney of Ms. Awan s experience (nearly 3 years) practicing in downtown Columbus is compensated at a median rate of $ per hour. Report at 39. The moderation of Ms. Awan s rate is apparent when contrasted with Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 Fed.Appx. 496, (6th Cir. 2011), in which the Sixth Circuit affirmed a District Court s determination that a reasonable rate for just a first year associate was $250 per hour, and that the rate should be adjusted upward by a multiplier of 1.2, resulting in an effective rate of $300 per hour. Additionally, Ms. Awan s Rubin rate would be $ to $ per hour. (See, chart above.) (c) Attorney Harvey s Rate Is Reasonable. Defendants assertion that the Report does not contain any data regarding attorneys with less than one year of experience, (Defs. Mem. Opp n 8), is patently false. As Plaintiffs clearly stated in their Petition, Mr. Harvey s rate is based on the Report s Exhibit 49, (Petition 5), which 5

6 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 6 of 28 PAGEID #: 7668 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 6 of 28 PAGEID #: 2469 specifically lists greater Columbus billing rates for associates with no experience. (emphasis added). As such, Mr. Harvey s rate of $155 per hour, a rate that is slightly below the median rate charged by greater Columbus attorneys with no experience, is a reasonable rate for an attorney with 6 months of experience. Mr. Harvey s rate is particularly modest, given that it also absorbs the overhead costs of computerized Westlaw research. See Supplemental Declaration of Andrew K. Harvey, attached as Exhibit B. The $100 per hour rate suggested by Defendants for Mr. Harvey s work, (Defs. Mem. Opp n 8), is not only ludicrous, but even insulting. The Southern District of Ohio awards to paralegals rates of $100 per hour or more. See, e.g., Brown v. Halsted Financial Services, LLC, No. 3:12-cv-308, 2013 WL , at *2 (S.D. Ohio Feb. 26, 2013) ($100 per hour); Gunasekera v. Irwin, 774 F.Supp.2d 882, (S.D. Ohio 2011) ($110 per hour). Mr. Harvey has graduated from law school and passed the Ohio bar examination, and is fully authorized to practice law. Mr. Harvey s work in the instant litigation should be billed at $155 per hour to accurately reflect the median rate charged for first-year Columbus attorneys and Mr. Harvey s training and experience. B. GPO & CPO s Attorneys Displayed Efficiency and Economy in Billing Only for Work That Was Reasonable and Necessary. 1. GPO & CPO s Attorneys Exercised Billing Judgment. Defendants point out that where multiple attorneys work together on a case, there could be a possibility that work will be duplicated; and they vaguely suggest that this might be the case here. (Defs. Mem. Opp n 9-10.) Defendants cite a reported case in which duplication occurred, with the implication that such abuse happened on the part of GPO & CPO s attorneys. However Defendants have failed to point to any redundancy in the work performed by GPO & CPO s attorneys (which is not surprising because there was none). (Defs. Mem. Opp n 10.) 6

7 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 7 of 28 PAGEID #: 7669 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 7 of 28 PAGEID #: 2470 Additionally, Defendants supposedly illustrative case is completely off base: In Kentucky Rest. v. City of Louisville, 117 Fed.Appx 415, 419 (6th Cir. 2004), four law firms represented two sets of plaintiffs. (Versus here, where only one firm, the ACLU of Ohio, represented four plaintiffs.) 2. GPO & CPO s Legal Research Was Reasonable. Defendants cite Lavin v. Husted, No. 1:10-cv-1986, 2013 WL , at *9 (N.D. Ohio June 13, 2013) for the proposition that the Civil Rights fee-shifting statue was not meant to pass... excesses on as costs to a losing Defendant, and they point to the 53.9 hours of research performed by GPO & CPO s attorneys as alleged excesses. (Defs. Mem. Opp n ) But Lavin v. Husted, far from holding that attorneys should not do a workmanlike job of performing legal research, instead condemned an outrageous, grossly exaggerated and absurd request, that included overbilling in at least the hundreds of dollars range, and likely reaching into the thousands, calculating errors, a plethora of billing errors and inconsistencies, the repetitive nature of... various filings, an excessive amount of editing and re-drafting, and numerous re-filings as a result of inattention to court rules or orders. Lavin, 2013 WL , at * (The case actually seems to suggest that the attorneys should have researched more carefully so they could avoid these costly mistakes.) The other case that Defendants cite as support of their contention that GPO & CPO s attorneys performed too much research is Ohio Right to Life Soc y, Inc. v. Ohio Elections Comm n, No. 2:08-cv-492, 2013 WL (S.D. Ohio Oct. 22, 2013). (Defs. Mem. Opp n ) The case does articulate the indisputable fact that [h]ours that are excessive, redundant, or otherwise unnecessary are properly excluded from a fee petition, Ohio Right to Life Soc y, Inc., 2013 WL , at *8 (internal quotation marks and citations omitted), but in that case, the Court did not deduct simply for unnecessary billing, but instead made an across-the-board 7

8 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 8 of 28 PAGEID #: 7670 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 8 of 28 PAGEID #: 2471 reduction to the petition for a myriad of reasons, including that it was unable to analyze the attorney s insufficiently documented, vague time entries that appeared unreasonable in light of the partial success plaintiffs achieved. In the instant case, in the context of litigation challenging the constitutionality of a complicated new statute, where substantive issues as well as procedural issues relating to intervention, appellate rules, and the availability of attorneys fees needed to be analyzed, 53.9 hours, approximately ¼ of the total 11 hours expended, is an economical amount of research. 3. The Time Expended by GPO & CPO s Attorneys Preparing Pleadings Was Reasonable. Defendants rely on the same two cases, Ohio Right to Life Soc y and Lavin v. Husted, in an attempt to construct an argument that GPO & CPO s attorneys spent too much time preparing pleadings and motions. (Defs. Mem. Opp n 12.) Again, these cases do not stand for the proposition that attorneys should not perform reasonably careful work and in fact they suggest that attorneys should perform careful work. The cases stipulate only that the work must not be excessive, redundant, or unnecessary. Defendants complain that for GPO & CPO s attorneys to spend 16.2 hours to research and draft their Complaint is unreasonable. (Defs. Mem. Opp n ) But quite to the contrary, billing a mere 16.2 hours to perform background research and draft a 17-page complaint is a demonstration of economy and restraint. Obviously, if GPO & CPO s attorneys had been drafting the initial pleading in the litigation, the task would have taken significantly longer. But because GPO & CPO were interveners in an ongoing dispute, some of the drafting, particularly with respect to the relief requested, could be, and was, performed relatively quickly. 11 The total number of hours billed was If the unbilled hours of the expert consultants were added, the total was

9 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 9 of 28 PAGEID #: 7671 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 9 of 28 PAGEID #: 2472 Prior to drafting, of course, before GPO & CPO s attorneys could determine that they would accept any of the Original Plaintiffs theories, independent research and analysis had to be performed. The result was that GPO & CPO s Complaint, based on different political parties experiences, and alleging different ramifications as the result of S.B. 193, was different in many respects from the original Plaintiffs Complaint, although there were some opportunities for economy. Defendants make a similar argument about GPO & CPO s Motion for a Preliminary Injunction that it took too long to draft, given that it asked for much of the same relief as the Original Plaintiffs Motion. (Defs. Mem. Opp n 13.) Again, as with the Complaint, GPO & CPO s attorneys were entitled to, and in fact were obligated to, perform their own research on behalf of their own clients to formulate their theories and draft their own pleadings accordingly. The fact that GPO & CPO were interveners did not require them to automatically adopt the Original Plaintiffs pleadings and simply say us too. 4. GPO & CPO s Attorneys Were Appropriately Deployed. Defendants claim that 5.65 hours of GPO & CPO s attorneys time should be compensated at lower rates because those hours were spent on tasks that non-attorneys could have performed. (Defs. Mem. Opp n ) However, courts have declined to decrease an attorney's rate, even where the attorney performed tasks that could have been completed by a lower-level associate or paralegal, where the attorney was not employed by a large enough law firm to make such delegation possible. See, e.g., Roberts v. Nat'l Bank of Detroit, 556 F.Supp. 724, 728 n.1 (E.D. Mich. 1983) (finding that experienced attorneys who complete routine work themselves should not be penalized for failing to delegate to lower-level associates if they are in smaller law practices without such associates). 9

10 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 10 of 28 PAGEID #: 7672 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 10 of 28 PAGEID #: 2473 GPO & CPO s attorneys are employed by the ACLU of Ohio (the ACLU ), which has no paralegals or secretaries. ACLU attorneys routinely prepare their own appearances, research rules, review dockets, call court clerks, file disclosure statements, and cite-check and edit filings. (These are the clerical tasks complained of in Defendants Response to the Petition.) At the ACLU, there is no one to whom such delegation is possible. See Supplemental Declaration of Freda J. Levenson, attached as Exhibit A. Not only would such delegation not be possible, but even if it had been, decisions concerning which tasks an attorney performs and involving the allocation of personnel toward the efficient and effective completion of tasks will be left to the discretion of the professional unless the allocation is egregious. In re Seneca Oil Co., 65 B.R. 902, 911 (Bankr. W.D. Okla. 1986) (citation omitted); see also Muehler v. Land O'Lakes, Inc., 617 F.Supp. 1370, 1379 (D. Minn. 1985). Any allocation in the instant case was not egregious; 5.65 hours are di minimus. 5. GPO & CPO s Attorneys Conferred Appropriately and Productively. Defendants complain that GPO & CPO s attorneys engaged in an unreasonable level of conferencing, (Defs. Mem. Opp n 15), and in an attempt to rationalize their claim, cite four cases, none of which have bearing on this case. Defendants shamelessly mischaracterize the case of Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp (N.D. Ohio 1997). In that case, the Court noted that, before the complaint was filed, there were no less than thirty intra-office conferences between attorneys. Id. at 1021 (emphasis added). Defendants cite this case for the proposition that the court found simply the number of intra-office conferences excessive. But Defendants deceptively fail to mention the actual basis for the court s complaint: that the conferences were all held before the complaint was even filed. 10

11 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 11 of 28 PAGEID #: 7673 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 11 of 28 PAGEID #: 2474 Of course, in contrast, the instant case involves only a handful of conferences, all of which were conducted after the litigation was well under way. Defendants suggestion that Harkless v. Brunner, No. 1:06-cv-2284, 2011 WL (N.D. Ohio Mar. 31, 2011) provides guidance is similarly misleading. Defendants cite Harkless for the proposition that GPO & CPO s attorneys spent too much time conferencing, (Defs. Mem. Opp n 15), but they disingenuously ignore the fact that in Harkless, the magistrate found, Simple calculations reveal that the time meeting and conferring represents about 22% of the fees billed.... Harkless, 2011 WL , at *21. GPO & CPO s attorneys, in strong contradistinction, billed less than 3% of their time for conferencing. Harkless is further distinguishable because there, the plaintiffs claimed fees for 21 attorneys plus 4 paralegals and law students. Id. at *4. Their billed hours included, sending senior lawyers to Cleveland [from New York] to file the complaint, holding a press conference, soliciting clients[,]... billing to send a lawyer to a seminar, Harkless v. Husted, No. 1:06-cv- 2284, 2011 WL , at *1 (N.D. Ohio May 31, 2011), charging for overdue fines on books, and other extreme improprieties. Harkless, 2011 WL , at *11. Defendants citation of the case of Clapper v. Clark Dev. Inc., No. 5:09-cv-0569, 2010 WL (N.D. Ohio Feb. 17, 2010), (Defs. Mem. Opp n 15), is also frivolous. The case did not even concern an award of attorneys fees to a prevailing plaintiff. The issue was the propriety of fees charged for receivership management of a small condominium complex of 10 units. Clapper, 2010 WL , at *1-3. Improper charges by three attorneys to constantly confer with each other just to manage some property speaks not at all to the instant situation. Riley v. City of Jackson, Miss., 99 F.3d 757 (5th Cir. 1996) is also not relevant. The Appellate Court noted there that the District Court had found that some intraoffice conferences 11

12 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 12 of 28 PAGEID #: 7674 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 12 of 28 PAGEID #: 2475 indicated a duplication of attorney time. Id. at 760. In the case at hand, GPO & CPO s attorneys did not bill for any intra-office conferences. Instead, the billing was for conference calls between the billing attorneys (located in Cleveland and Columbus) for consultations with the non-billing professors who were in Dayton. Moreover, cases aside and focusing on the facts, Defendants assertion that GPO & CPO s attorneys expended 6.4 hours in conferences with co-counsel, (Defs. Mem. Opp n 15), is a meaningless metric. Adding together, perhaps, all of the time that every attorney spent in conferring may have totaled 6.4 hours. But no one attorney spent anywhere near that much time in conferences. In fact, the attorney who spent the most time in conferences was Professor Richard Saphire who conferenced for a total of 4.2 hours and the Petition does not charge for the Professor s hours. (Professor Saphire, along with Professor Paul Moke (who conferenced a total of 2.7 hours), served as expert consultants who did not bill for their time, and thus only served to enhance the efficiency and value of the attorneys who did bill.) The most highly compensated attorneys who did bill for their work, attorneys Hardiman and Levenson, billed only for conferences totaling 1 hour and 1.8 hours, respectively. Obviously, attorneys working together must sometimes confer. Conferring is necessary to plan and coordinate and avoid duplication. The number of hours expended by GPO & CPO s attorneys in conference was only appropriate. C. GPO & CPO Achieved a Favorable Outcome in the Litigation. Defendants claim that GPO & CPO seek payment for claims upon which GPO & CPO did not prevail. (Defs. Mem. Opp n ) But the law is clear that a fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (emphasis added). Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court s... failure to reach certain 12

13 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 13 of 28 PAGEID #: 7675 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 13 of 28 PAGEID #: 2476 grounds is not a sufficient reason for reducing a fee. The result is what matters. Id. (emphasis added). GPO & CPO seek recovery of attorneys fees for the completely successful result that they obtained: a preliminary injunction permitting them access to the 2014 ballot. That the Court has not yet reached certain grounds, i.e., the issue of the constitutionality of S.B. 193 in succeeding years is not a sufficient reason to reduce the fee for the complete success attained to date. Id. GPO & CPO propounded claims, based only on one set of facts, that S.B. 193 was unconstitutional both as applied and on its face. These claims were based on a common core of facts, so for the purpose of calculating attorneys fees they should not be treated as distinct claims and the cost of litigating the related claims should not be reduced. Imwalle v. Reliance Med. Prods., 515 F. 3d 531, 554 (6th Cir. 2008) (internal quotation marks and citations omitted). The cases cited by defendants for the supposed proposition that GPO & CPO have not fully prevailed are highly distinguishable from the instant case. Ohio Right to Life Soc y, Inc. v. Ohio Elections Comm n, No. 2:08-cv-492, 2013 WL (S.D. Ohio Oct. 22, 2013) involved a plaintiff who asserted a 7-count complaint, one count of which was immediately conceded by the defendant and never briefed by either party. Id. at *1. The plaintiff was unsuccessful on every single contested claim. Id. at *2. For its meager success, the plaintiff was granted limited attorneys fees. Id. at * Even so, the reduction was not premised upon the consideration of Plaintiff s limited success alone, but equally because Plaintiff s counsel failed to properly exercise billing judgment and adequately document time expended.... Id. at *16. 13

14 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 14 of 28 PAGEID #: 7676 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 14 of 28 PAGEID #: 2477 Farrar v. Hobby, 506 U.S. 103 (1992), also cited by Defendants, (Defs. Mem. Opp n 16), is bizarrely inapposite. As Justice O Connor stated in her concurrence, [i]f ever there was a plaintiff who deserved no attorney s fees at all, that plaintiff is Joseph Farrar. He filed a lawsuit demanding 17 million dollars from six defendants. After 10 years of litigation and two trips to the Court of Appeals, he got one dollar from one defendant. As the Court holds today, that is simply not the type of victory that merits an award of attorney s fees. Farrar, 506 U.S. at 116. It is not necessary to point out the distinction between that case and this one. Fox v. Vice, 131 S.Ct (2011) is also importantly distinguishable because it involved a mix of frivolous and non frivolous claims. In such a case, the Court held, fees could be granted to the defendant for costs incurred in defending only the frivolous claims. Id. at In the present case, there is no allegation of any frivolous claim, or of any fees recoverable by defendants. The Binta case is also distinguishable because there, the plaintiffs sought fees for work performed in a completely separate case, with two different case numbers, two different judges, and a different group of plaintiffs. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, (6th Cir. 2013). Additionally, the Binta plaintiffs were denied fees for their unsuccessful work to obtain a preliminary injunction. Id. at Not only was their work unsuccessful, but the injunction was deemed not necessary to enforce the consent decree that they had obtained. Id. Moreover, the Court pointed out that, normally, attorneys fees incurred in interim defeats en route to a successful conclusion are compensable because... such skirmishes are indispensable inputs into a successful conclusion of litigation. Id. at 634 (internal quotation marks and citations omitted) (emphasis added). Binta is thus manifestly different from the situation at hand because here, GPO & CPO suffered no interim defeat, but in fact won their preliminary 14

15 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 15 of 28 PAGEID #: 7677 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 15 of 28 PAGEID #: 2478 injunction. Moreover, Binta, to the extent that its dicta is applicable, only gives support to the instant fee award. D. An Enhancement to the Lodestar Is Appropriate in this Case. The Petition sets forth five Johnson factors that militate strongly towards an enhancement to the lodestar fee award. Defendants do not even purport to contest the applicability of four of the factors: (1) Due to the contingent nature of the representation, whether GPO & CPO s attorneys would ever be paid for their work was entirely contingent upon their success. The assumption of risk justifies a premium. (2) This litigation imposed severe time exigencies. Defendants passing legislation at the 11 th hour subjected GPO and CPO to imminent harm, necessitating urgent relief. (3) Undertaking this litigation precluded GPO & CPO s attorneys from other employment. (4) The difficulty and complexity of this litigation required high quality representation. GPO & CPO s attorneys had a high level of expertise and, on top of this, made use of expert consultants for whom Defendants are not charged. Defendants do not dispute that these experts added quality, efficiency and value to the representation. The existence of any Johnson factor, much the coincidence of so many of them, is sufficient justification for a court to apply a multiplier. For example, exceptional success alone was sufficient to justify a multiplier of 1.25 in Moore v. Brunner, 2:08-cv-224, and also in Libertarian Party of Ohio v. Brunner, 2:08-cv-555. Moore v. Brunner, Nos. 2:08-cv-224, 2:08- cv-555, 2010 WL , at *3 (S.D. Ohio Jan. 25, 2010). Similarly, in Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F.Appx. 496 (6th Cir. 2011), reviewing an attorneys fees award in a class action, the Sixth Circuit approved a District 15

16 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 16 of 28 PAGEID #: 7678 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 16 of 28 PAGEID #: 2479 Court s award of a multiplier on the basis of only two factors having been met, where several other factors were unequivocally not met. Id. at 500. Specifically, the Sixth Circuit noted that the District Court had found the Johnson factor of benefit rendered was not met because the class members [had not] received an especially good benefit... and... Class Counsel agreed to a settlement mechanism which yielded a low claims rate. Id. But, (n)evertheless the court determined that a multiplier was appropriate given the contingent nature of the case and the complexity of a class action. Id. Still, [w]ith regard to complexity, however, the district court noted that the case was not one based on a novel legal theory or unproven grounds for recovery but was only a breach of contract claim. Id. Thus, having ruled out all the other factors, and really based only on the existence of just one factor the contingent nature of the case the Sixth Circuit affirmed the District Court s award of a multiplier of 1.2. Id. The only factor that is disputed by Defendants in the instant case is that Exceptional success has been attained. (Defs. Mem. Opp n 18.) Clearly, however, in addition to the factors conceded by the Defendants, the factor of exceptional success has been met in the instant case. In Moore v. Brunner, 2:08-cv-224, Libertarian Party of Ohio v. Brunner, 2:08-cv-555 and Moore v. Brunner, 2010 WL , where, as here, a minor political party and its candidates prevailed on a motion for a preliminary injunction, resulting in a Court order to be placed on Ohio s general election ballot, the success was considered exceptional, and a multiplier of 1.25 awarded. GPO & CPO s attorneys achieved at least the same degree of success, securing the right for GPO & CPO and their candidates to appear on the primary and general election ballots. Defendants do not only resist applying a multiplier to the lodestar, but they brazenly argue to reduce it. The arguments made by Defendants to reduce the loadstar are frivolous, and the cases they cite as if to support an across-the-board fee reduction are completely inapplicable. 16

17 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 17 of 28 PAGEID #: 7679 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 17 of 28 PAGEID #: 2480 Saint-Gobain Autover USA, Inc. v. Xinyi Glass N. Am., Inc., 707 F.Supp.2d 737 (N.D. Ohio 2010) was a patent case where attorneys fees are only awarded in exceptional circumstances. Id. at 744. Nevertheless, nearly four million dollars of attorneys fees were requested. Id. at 762. The Court found, however, that the plaintiffs were unwilling[] to support their fee petition. Id. Instead, the plaintiffs supplied only statements consisting of nothing more than the attorney s initials, the amount of time billed, and the date on which the unknown activity took place. Missing from the billing statements [was] the description of the work performed. Plaintiffs indicate[d] that they... omitted this vital information in an effort to protect the attorney-client privilege and their counsel s work product. Id. The only hint the plaintiffs would supply as to work performed was a one-line, monthly summary. Id. In frustration, the court reduced the nearly $4,000,000 in fees to just under two million dollars. Id. at 765. Auto Alliance Int l, Inc. v. U.S. Customs Serv., 155 Fed.Appx. 226 (6th Cir. 2005) was, according to the Court, an unexceptional case of no complexity. It was a FOIA request in which, any complexity... was due to the large volume of documents sought.... Id. at 228. Thus the billing, which exceeded the median award for all FOIA cases for the previous 4 years was excessive. Id. The Court reduced the award to keep it in line with other simple FOIA request cases. Id. Coulter v. State of Tenn., 805 F.2d 146 (6th Cir. 1986) was not a case of Johnson-factor across-the-board-reduction. Instead, the trial judge found that hours billed for certain activities were excessive specifically, those for preparing some pre-trial materials and attending the trial. Id. at 152. Those hours were accordingly reduced from 62 to 31. Id. However, the hours billed for preparing the summary judgment motion were awarded at 100%. Id. at

18 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 18 of 28 PAGEID #: 7680 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 18 of 28 PAGEID #: 2481 E. GPO & CPO s Attorneys Fees Incurred in Preparing the Petition Are Appropriate. Defendants argue that Mr. Harvey s fees incurred in preparing the Petition should be limited to 3% of the total hours billed. (Defs. Mem. Opp n 20.) In support of this assertion, Defendants refer to a holding, often observed in the breach, that [i]n the absence of unusual circumstances, the hours allowed for preparing and litigating the attorney fee case should not exceed 3% of the hours in the main case when the issue is submitted on the papers.... Ne. Ohio Coal. for Homeless v. Sec y of Ohio, 695 F.3d 563, (6th Cir. 2012) (internal quotations omitted). In doing so, Defendants ignore the contradiction with the more fundamental Sixth Circuit rule, that a lawyer should receive a fee for preparing and successfully litigating the attorney fee case after the original case is over. Libertarian Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL , at *4 (S.D. Ohio Sept. 11, 2013) (quoting Coulter v. State of Tenn., 805 F.2d 146, 150 (6th Cir. 1986)). While the Southern District has, on occasion, applied this 3% rule (or 5% if a case goes to trial) to fees for fees requests, such cases have all involved protracted litigation that generated a large enough fee award that 3% or 5% would yield a sensible result. See Ne. Ohio Coal. for Homeless, 695 F.3d at 569 n.3 (awarding 3% of the main case fee award of $504,414.47, or more than $15,000 for fees-for-fees ); Bank One, N.A. v. Echo Acceptance Corp., No. 04-cv-318, 2009 WL , at *2 (S.D. Ohio Apr. 10, 2009) (awarding 5% of $965,533.28, or nearly $50,000 for fees-for-fees. ) In fact, Coulter, the very case that first articulated the 3% rule, explained that the 3% rule is necessary to insure that the compensation from the attorney fee case will not be out of proportion to the main case and encourage protracted litigation. Coulter, 805 F.2d at

19 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 19 of 28 PAGEID #: 7681 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 19 of 28 PAGEID #: 2482 Accordingly, district courts within the Sixth Circuit do not apply the 3% rule mechanically or in situations where its application would frustrate the purpose of its existence. See Rist v. Hartford Life and Acc. Ins. Co., No. 1:05-cv-492, 2011 WL , at *8 (S.D. Ohio Nov. 14, 2011) (recognizing that the 3% rule should not be applied in cases that are particularly complex, that involve a defendant whose actions have increased fee litigation, or that entail pre-trial administrative work). Specifically, in a situation remarkably parallel to this litigation, the Southern District of Ohio expressly declined to apply the 3% rule to a voting rights challenge where [p]rotracted litigation was never a possibility due to the expedited nature of the case, early settlement was not an option, and judicial intervention was needed. Mooneyhan v. Husted, No. 3:12-cv-379, 2013 WL , at *3 (S.D. Ohio Mar. 29, 2013). The Southern District noted that application of the 3% cap for fees for fees serves no useful purpose and, in fact, unfairly penalizes Plaintiff, whose attorneys had a very limited amount of time to work on the case. Id. Thus, because [a]ny disproportionality between the time spent preparing the fee application and the time spent on the main case is attributable solely to the tight timeline of this litigation, the Court ruled that the Plaintiff was entitled to the full amount of fees related to preparation of the fee application. Id. Like Mooneyhan, due to Defendants last-minute expediting of S.B. 193 through the Ohio General Assembly, the instant litigation imposed a tight timeline. Plaintiffs had a very limited amount of time to prepare their case and [a]ny disproportionality between the time spent preparing the fee application and the time spent on the main case is attributable solely to the tight timeline of this litigation. The 3% rule serves no useful purpose in this case and should not be applied to Mr. Harvey s fees for fees hours. 19

20 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 20 of 28 PAGEID #: 7682 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 20 of 28 PAGEID #: 2483 II. GPO & CPO Supplement Their Petition: Fees Incurred in Responding to Defendants Opposition. As stated in the Petition, GPO & CPO reserve(d) the right to move for any additional fees that may be incurred... if they are required to expend additional time responding to any objection that Defendants may pose. (Petition 9). As detailed above, Defendants have interposed 21 pages of largely frivolous and illogical objections that rely on cases that are often mischaracterized and/or inapplicable to the present case. GPO & CPO s attorneys have had to respond to all of this. The attached Supplemental Declarations of Freda J. Levenson, Exhibit A, and Andrew K. Harvey, Exhibit B, itemize GPO & CPO s Attorneys fees incurred in replying to Defendants objections. It should be noted that no Johnson factor multipliers were applied to these figures. III. GPO & CPO s Costs Are $557. The Defendants have not disputed the Petition s request for $ in costs. IV. Conclusion. GPO & CPO respectfully request fees in the amount of $76, (consisting of the $61, in fees itemized in the Petition, plus $14, in fees itemized in the two Supplemental Declarations attached hereto) plus costs in the amount of $ Respectfully submitted, s/ Freda J. Levenson Richard Saphire ( ) Freda J. Levenson ( ) sapphire@udayton.edu flevenson@acluohio.org University of Dayton, School of Law Drew Dennis ( ) 300 College Park ddennis@acluohio.org Dayton, Ohio ACLU of Ohio Foundation Paul Moke ( ) 4056 Chester Ave. Paul.moke@gmail.com Cleveland, Ohio Wilmington College (216) Tyler Center Wilmington, Ohio (937)

21 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 21 of 28 PAGEID #: 7683 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 21 of 28 PAGEID #: 2484 CERTIFICATE OF SERVICE I hereby certify that on April 22, 2014, a true and accurate copy of the foregoing Intervening Plaintiffs Reply in Support of Their Motion for Attorneys Fees and Costs was filed electronically with the Clerk of Court using the CM/ECF system, which will send notice of such filing to all counsel of record. Respectfully submitted, /s/ Freda J. Levenson Freda J. Levenson 21

22 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 22 of 28 PAGEID #: 7684 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 22 of 28 PAGEID #: 2485 EXHIBIT A IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., : CASE NO. 2:13-cv : Plaintiffs, : : JUDGE MICHAEL H. WATSON vs. : : MAGISTRATE JUDGE KEMP JON A. HUSTED, : OHIO SECRETARY OF STATE, et al. : : Defendants. : SUPPLEMENTAL DECLARATION OF FREDA J. LEVENSON (pursuant to 28 U.S.C. 1746) I, Freda J. Levenson, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief: 1. While preparing Intervening Plaintiffs Reply in Support of Their Motion for Attorneys Fees and Costs ( Reply ), I invested an additional 30.3 hours in representing Intervening Plaintiffs in the above-styled case. 2. I kept contemporaneous time records in the above-styled case in six-minute increments. 3. I exercised billing judgment to exclude time that was not reasonably related to the preparation of the Reply and to exclude time for small tasks that did not total at least six minutes. 4. My contemporaneous time records for tasks performed in the above-styled case are as follows: 22

23 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 23 of 28 PAGEID #: 7685 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 23 of 28 PAGEID #: 2486 DATE SERVICES HOURS 4/10/14 Conference with Andrew Harvey.20 4/12/14 Conducted research re: Intervening Plaintiffs Reply /14/14 Conducted research re: Intervening Plaintiffs Reply /17/14 Reviewed Defendants Response /17/14 Conducted research re: Defendants Response reviewed Defendants cases /18/14 Conducted research re: Intervening Plaintiffs Reply reviewed Defendants cases, researched Defendants Response /18/14 Prepared Intervening Plaintiffs Reply /19/14 Prepared Intervening Plaintiffs Reply and researched Defendants Response /20/14 Prepared Intervening Plaintiffs Reply /21/14 Prepared Intervening Plaintiffs Reply /22/14 Prepared Intervening Plaintiffs Reply /22/14 Filed Intervening Plaintiffs Reply N/C 5. My reasonable hourly rate for 1983 litigation is $ per hour. 6. The lodestar figure for my services, determined by multiplying my reasonable hours (30.3) by my reasonable rate ($300.00), comes to $9, I utilized Westlaw to conduct research, which aided my preparation of the Reply. Charges for Westlaw are not included in this statement. 8. The American Civil Liberties Union of Ohio does not employ paralegals or secretaries. 23

24 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 24 of 28 PAGEID #: 7686 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 24 of 28 PAGEID #: 2487 I declare under penalty of perjury that the foregoing is true and correct. Executed on April 22, /s/ Freda J. Levenson Freda J. Levenson 24

25 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 25 of 28 PAGEID #: 7687 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 25 of 28 PAGEID #: 2488 EXHIBIT B IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION LIBERTARIAN PARTY OF OHIO, et al., : CASE NO. 2:13-cv : Plaintiffs, : : JUDGE MICHAEL H. WATSON vs. : : MAGISTRATE JUDGE KEMP JON A. HUSTED, : OHIO SECRETARY OF STATE, et al. : : Defendants. : SUPPLEMENTAL DECLARATION OF ANDREW K. HARVEY (pursuant to 28 U.S.C. 1746) I, Andrew K. Harvey, hereby declare under penalty of perjury that the following is true and correct to the best of my knowledge and belief: 1. While preparing Intervening Plaintiffs Reply in Support of Their Motion for Attorneys Fees and Costs ( Reply ), I invested an additional 33.2 hours in representing Intervening Plaintiffs in the above-styled case. 2. I kept contemporaneous time records in the above-styled case in six-minute increments. 3. I exercised billing judgment to exclude time that was not reasonably related to the successful prosecution of the case and to exclude time for small tasks that did not total at least six minutes. 4. My contemporaneous time records for tasks performed in the above-styled case are as follows: 25

26 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 26 of 28 PAGEID #: 7688 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 26 of 28 PAGEID #: 2489 DATE SERVICES HOURS 4/10/14 Conference with Freda Levenson.20 4/11/14 Reviewed Defendants Response and organized research to conduct.70 4/11/14 Conducted research re: Intervening Plaintiffs Reply (prevailing market rate) /14/14 Conducted research re: Intervening Plaintiffs Reply (prevailing market rate) /14/14 Conducted research re: Intervening Plaintiffs Reply ( fees for fees 3% rule).50 4/15/14 Conducted research re: Intervening Plaintiffs Reply ( fees for fees 3% rule) /15/14 Conducted research re: Intervening Plaintiffs Reply (duplicative work) /15/14 Conducted research re: Intervening Plaintiffs Reply (prevailing market rate).50 4/16/14 Conducted research re: Intervening Plaintiffs Reply (prevailing market rate).70 4/16/14 Conducted research for and created chart re: Intervening Plaintiffs Reply (prevailing market rate) /16/14 Conducted research re: Intervening Plaintiffs Reply (reasonable billing rates)

27 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 27 of 28 PAGEID #: 7689 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 27 of 28 PAGEID #: /16/14 Conducted research re: Intervening Plaintiffs Reply (Johnson multiplier factors).90 4/17/14 Conducted research re: Intervening Plaintiffs Reply (Johnson multiplier factors) /18/14 Conducted research re: Intervening Plaintiffs Reply ( fees for fees 3% rule).70 4/18/14 Conducted research re: Intervening Plaintiffs Reply (Rubin Committee rates) /18/14 Conducted research re: Intervening Plaintiffs Reply (reduction of fees for partial success) /18/14 Prepared Intervening Plaintiffs Reply /18/14 Conducted research re: Intervening Plaintiffs Reply (Rubin Committee rates) /18/14 Prepared Intervening Plaintiffs Reply.30 4/21/14 Prepared Intervening Plaintiffs Reply /21/14 Prepared and drafted supplemental fee declarations N/C 4/22/14 Cite-checked and formatted Plaintiffs Reply N/C 5. My reasonable hourly rate for 1983 litigation is $ per hour. 6. The lodestar figure for my services, determined by multiplying my reasonable hours (33.2) by my reasonable rate ($155.00), comes to $5, I utilized Westlaw to conduct research, which aided my preparation of the Reply. Charges for Westlaw are not included in this statement. I declare under penalty of perjury that the foregoing is true and correct. 27

28 Case: 2:13-cv MHW-TPK Doc #: Filed: 03/30/15 Page: 28 of 28 PAGEID #: 7690 Case: 2:13-cv MHW-TPK Doc #: 103 Filed: 04/22/14 Page: 28 of 28 PAGEID #: 2491 Executed on April 22, /s/ Andrew K. Harvey Andrew K. Harvey 28