Case No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT. ARTHUR LAVIN, M.D., et al. Plaintiffs-Appellants

Transcription

1 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 1#: Case No IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ARTHUR LAVIN, M.D., et al. Plaintiffs-Appellants v. JON HUSTED, In his Official Capacity as Ohio Secretary of State Defendant-Appellee An appeal from the Judgment in a Civil Case dated June 14, 2013, in the United States District Court for the Northern District of Ohio, Case No. 1:10-CV-1986 (Doc. Nos. 127, 129, and 139) BRIEF FOR PLAINTIFFS-APPELLANTS ARTHUR LAVIN, M.D., ET AL. Subodh Chandra Donald P. Screen Sandhya Gupta Ashlie Case Sletvold The Chandra Law Firm, LLC 1265 W. 6 th Street, Suite 400 Cleveland, OH phone fax Attorneys for Plaintiffs-Appellants, Arthur Lavin, M.D., et al. EXHIBIT 6

2 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 2#: 14217

3 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 3#: Table of Contents Table of Authorities...vi Statement in Support of Oral Argument...xiii Introduction...1 Jurisdictional Statement...4 Statement of the Issues...5 Statement of the Case...8 Statement of Facts...8 I. The physician-plaintiffs, using experienced counsel, fully prevailed on their constitutional claims after multiple rounds of litigation...8 A. The physicians engaged experienced counsel...9 B. The physicians prevailed after multiple rounds of litigation...11 II. As prevailing parties, the physicians sought approximately $658,000 in fees, further discounted to $613,000 before proceeding to the district court...18 III. The magistrate judge recommended awarding over $450,000 in attorneys fees, but the district court reduced that to $129,000, resulting in an 80% cut from the physicians original request...22 Summary of the Argument...24 Argument...29 I. Legal Standards...29 ii

4 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 4#: II. Analysis...31 A. The district court erred in using impermissible considerations to reduce fees Government-payer Plaintiffs supposed financial means Counsel s supposed nefarious intentions and the physicians sincerity Court s negative view of the case s merits even after reversal...37 B. In determining the lodestar reasonable rate, the court erred by disregarding undisputed evidence that counsel s requested rates were prevailing market rates in the community The court disregarded undisputed evidence of the prevailing market rate for Cleveland civil-rights attorneys: prior court orders, counsel s standard billing rates, and area practitioners testimony The court misapplied the OSBA survey, which in any case should be used with caution...45 a. The OSBA survey s rate information should be used with caution, because, for example, it lacks key information required by the Supreme Court standard about similar services and responding lawyers skill, experience, and reputation b. The court misapplied the survey, failing to apply the correct Cleveland rates and wrongly imposing median rates...49 iii

5 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 5#: C. In determining the lodestar reasonable hours, the district court erred by cutting pre-filing work that the Supreme Court has held compensable, and making excessive cuts to discovery and appeal hours The court erred in denying compensation for all work performed before the physicians agreement with counsel was reduced to writing, because the representation had begun months before The court s reductions for discovery and appeal hours, which wrongly reward the Secretary s intransigence, lacked sufficient explanation and justification a. The court paid insufficient heed to the Secretary s role in prolonging the litigation, which increased fees...62 b. The court erroneously deemed the physicians discovery efforts unreasonable simply because this was a facial challenge...64 c. The court failed to provide a reasonably specific explanation of its categorical exclusion from the lodestar of all post-discovery-deadline hours, which included work permitted after that deadline...66 d. The court s appellate reductions which exceed 50% overlook the work required to reverse its own summary judgment, cut hours twice, and lack supporting explanation...70 i. Counsel s appellate hours were justified...70 ii. The court unjustifiably eliminated line items by 100%...71 D. The court abused its discretion in applying, after its lodestar reductions, an additional 35% downward adjustment...75 iv

6 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 6#: The court engaged in impermissible double-counting by basing its downward adjustment on factors already encompassed within the lodestar analysis The court misapplied the Johnson factors in finding that they support a downward adjustment Alleged minor billing errors do not support a downward adjustment...81 E. The court erred in capping the physicians fees for fees at 3% The litigation s length, as well as the Secretary s role in prolonging it, warranted departure from the cap The 3% cap contravenes 1988 and more recent Supreme Court precedent...88 F. This Court should, on remand, reassign this case to a different district judge because of the original judge s unfounded speculations about counsel s integrity and the physicians sincerity, and his difficulty accepting this Court s merits decision Conclusion Combined Certifications...94 Addendum...97 v

7 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 7#: Cases Table of Authorities ABC v. Brunner, Case No. 1:04-cv-750, 2008 U.S. Dist. LEXIS (S.D. Ohio Sept. 30, 2008)...44, 64, 88 Ackerley Comms., Inc. v. Salem, 752 F.2d 1394 (9 th Cir. 1985)...36 Adcock-Ladd v. Secretary of Treasury, 227 F.3d 343 (6 th Cir. 2000)...30, 39 Alexander v. Astrue, 222 Fed. Appx. 767 (10 th Cir. 2007)...89 Am. Booksellers Ass n v. Virginia, 802 F.2d 691 (4 th Cir. 1986), rev d on other grounds, 488 U.S. 905 (1988), attorneys fees later aff d, 792 F.2d 1261 (4 th Cir. 1989)...33 Ashcroft v. Iqbal, 556 U.S. 662 (2009)...60 Auto Alliance Int l v. U.S. Customs Serv., Case No , 155 Fed. Appx. 226 (6 th Cir. Nov. 23, 2005)...46 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...60 B&G Mining, Inc. v. Dir., OWCP, F.3d 657 (6 th Cir. 2008)...40, 42 Baker v. John Morrell & Co., 263 F. Supp. 2d 1161 (N.D. Iowa 2003)...47 Barnes v. City of Cincinnati, 401 F.3d 729 (6 th Cir. 2005)...47 Bendix Commer. Vehicle Sys., LLC v. Haldex Brake Prods. Corp., 2011 U.S. Dist. LEXIS (N.D. Ohio Mar. 1, 2011)...32 Beaumont v. FEC, 539 U.S. 146 (2003)...53, 54 Bivins v. Wrap It Up, 548 F.3d 1348 (11 th Cir. 2008)...77 Blanchard v. Bergeron, 489 U.S. 87 (1989)...34, 40 Blum v. Stenson, 465 U.S. 886 (1984)...passim vi

8 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 8#: Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep t of Health and Human Resources, 532 U.S. 598 (2001)...61, 62, 70 Buckley v. Valeo, 424 U.S. 1 (1976)...54, 55 Burlington v. Dague, 505 U.S. 557 (1992)...77 Boustani v. Blackwell, 460 F. Supp. 2d 822 (N.D. Ohio 2006)...10 Christianburg Garment Co. v. EEOC, 434 U.S. 412 (1978)...62, 81 Citizens United v. FEC, 130 S. Ct. 876 (2010)...54, 55 Collett v. Steigerwald, 2007-Ohio-6261, 2007 Ohio App. LEXIS 5523 (Ohio App. Nov. 21, 2007)...58 Comm r v. Jean, 496 U.S. 154 (1990)...33, 89, 90 Communities for Equity v. Mich. High School Athl. Ass n, Case no. 1:98-cv-479, 2008 U.S. Dist. LEXIS (E.D. Mich. Mar. 31, 2008)...74, 75 Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980)...32, 33 Coulter v. Tennessee, 805 F.2d 146 (6 th Cir. 1988)...passim Cox v. Shelby State Comm. College, 194 Fed. Appx, 267 (6 th Cir. 2006)...59 Culver v. Barnhart, Case No. 07-C-643, 2009 U.S. Dist. LEXIS 7347 (E.D. Wisc. 2009)...89 Cuyahoga County Bar Ass n v. Hardiman, 100 Ohio St. 3d 260 (Ohio 2003)...58 Democratic Party of Wash. State v. Reed, 388 F.3d 1281 (9 th Cir. 2004)...34 Ed. A. Wilson, Inc. v. GSA, 126 F.3d 1406 (Fed. Cir. 1997)...57 vii

9 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 9#: Evans v. Jeff D., 475 U.S. 717 (1986)...57 Fox v. Vice, 131 S. Ct (2011)...34 Geier v. Sundquist, 373 F.3d 784 (6th Cir. 2004)...passim Gekas v. Attorney Regis. and Disc. Comm n, 793 F.2d 846 (7 th Cir. 1986)...36 Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 300 (6 th Cir. 2003)...29 Gonter v. Hunt Valve Co., 510 F.3d 610 (6 th Cir. 2007)...46 Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992)...62 Groeneveld Trans. Efficiency, Inc. v. Lubecore Int l, Inc., 2013 U.S. Dist. LEXIS (N.D. Ohio Feb. 8, 2013)...32 Gross v. Perrysburg, 306 F. Supp. 2d 726 (N.D. Ohio 2004)...86 Gurule v. Wilson, 635 F.2d 782 (10 th Cir. 1980)...55 Hadix v. Johnson, 65 F.3d 532 (6 th Cir. 1995)...41, 42 Hamlin v. Charter Township of Flint, 165 F.3d 426 (6 th Cir. 1999)...80, 84 Harmon v. McGinnis, Inc., 263 Fed. Appx. 465 (6 th Cir. 2008)...40, 42 Hensley v. Eckerhart, 461 U.S. 424 (1983)....passim Hunter v. Hamilton County Bd. of Elec., Case No. 1:10-cv-820, 2013 U.S. Dist. LEXIS (S.D. Ohio Sept. 30, 2013) , 41, 44 Imwalle v. Reliance Medical Prods., 515 F.3d 531 (6 th Cir. 2008)...84, 85 viii

10 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/2013 of 116 PAGEID Page: 10#: In re CF&I Fabricators, 131 B.R. 474 (Bankr. D. Utah, 1991)...89 Irwin v. Astrue, Case No. 3:10-cv-545-HZ, 2012 U.S. Dist. LEXIS John B. v. Goetz, 626 F.3d 356 (6 th Cir. 2010)...92, 94 Johnson v. Mississippi, 606 F.2d 635 (5 th Cir. 1979)......passim Kilroy v. Husted, No , 2012 U.S. App. LEXIS 26920, (6 th Cir. Oct. 1, 2012)...16, 21, 35, 36 King v. Greenblatt, 560 F.2d 1024 (1 st Cir. 1977)...15, 17, 55 Lamar Adver. Co. v. Charter Township of VanBuren, 178 Fed. Appx. 498 (6 th Cir. 2006)...15, 17, 86 Lanci v. Medical Mutual of Ohio, Case No. 1:08-cv-1575, 2011 U.S. Dist. LEXIS (N.D. Ohio, May 10, 2011)...86 Lavin v. Husted, 689 F. 3d 543 (6 th Cir. 2012)...passim Lee v. Javitch, Block & Rathbone, LLP, 568 F. Supp. 2d 870 (S.D. Ohio 2008)...47 Manning v. Int l Union, 466 F.2d 812 (6 th Cir. 1972)...54 McCombs v. Meier, No. C , 2002 U.S. Dist. LEXIS (S.D. Ohio Nov. 22, 2002), aff d, 395 F.3d 346 (6 th Cir. 2005)...passim McConnell v. FEC, 540 U.S. 93 (2003)...65 McCutcheon v. FEC, No (S. Ct., argued Oct. 8, 2013)...55 Missouri v. Jenkins, 491 U.S. 274 (1989)...47 Moore v. Crestwood, 804 F. Supp. 960 (N.D. Ohio 1992)...86 ix

11 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 11#: Moreno v. City of Sacramento, 534 F.3d 1106 (9 th Cir. 2008)...passim Muehler v. Land O Lakes, Inc., 617 F. Supp (D. Minn. 1985)...75 Nadarajah v. Holder, 569 F.3d 906 (9 th Cir. 2009)...74 Nat l Treasury Employees Union v. U.S. Dep t of Treasury, 656 F.2d 848 (D.C. Cir. 1981)...32 New Destiny Treatment Ctr., Inc. v. Wheeler, 129 Ohio St. 3d 39 (Ohio 2011)...58 Nixon v. Shrink Missouri Gov t PAC, 528 U.S. 377 (2000) Northeast Ohio Coalition for the Homeless v. Husted, 2006-cv-00896, 2010 U.S. Dist. LEXIS (S.D. Ohio, Nov. 30, 2010)...10, 41, 45 Northeast Ohio Coalition for the Homeless v. Husted, 652 F. Supp.2d 871 (S.D. Ohio, July 28, 2009)...41, 45 Northeast Ohio Coalition for the Homeless v. Husted, 695 F.3d 563 (6 th Cir. 2012)...41, 90 Pennsylvania v. Delaware Valley Citizens Council, 478 U.S. 546 (1986)...30, 36, 67, 78 Perdue v. Kenny A., 130 S. Ct (2010)...passim Phelan v. Bell, 8 F.3d 369 (6 th Cir. 1993)...67, 74 Rajender v. Univ. of Minn., 546 F. Supp. 158 (D. Minn. 1982), rev d on other grounds, 730 F.2d 1110 (6 th Cir. 1984)...33 Randall v. Sorrell, 548 U.S. 230 (2006)...65 x

12 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 12#: Reid, Johnson, Downes, Andrachik & Webster v. Lansberry, 68 Ohio St. 3d 570 (Ohio 1994)...58 Rist v. Hartford Life & Accident Ins. Co., Case No. 1:05-cv-492, 2011 Dist. LEXIS (S.D. Ohio Nov. 14, 2011) Riverside v. Rivera, 477 U.S. 561 (1986)...15, 17, 34, 63 Roberts v. Nat l Bank of Detroit, 556 F. Supp. 724 (E.D. Mich. 1983)...75 Rodriguez v. Taylor, 569 F.2d 123 (3 rd Cir. 1977)...55, 57 Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848 (1 st Cir. 1998)...63 Solomon v. United States, 467 F.3d 928 (6 th Cir. 2006)...91 United States v. Gapinski, 422 Fed. Appx. 513 (6th Cir. 2011)...37, 91, 92 United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., 89 F.3d 574 (9 th Cir. 1996)...57 Van Horn v. Nationwide Ins. Co., Case No. 1:08-cv-605, 2010 U.S. Dist. LEXIS (N.D. Ohio April 30, 2010)...44 Venegas v. Mitchell, 495 U.S. 82 (1990) Virginia v. Hicks, 539 U.S. 113 (2003)...65 Wasniewski v. Grzelak-Johannsen, 549 F. Supp. 2d 965 (N.D. Ohio 2008)...57, 58 Webb v. Bd. of Educ. of Dyer County, 471 U.S. 234 (1985)...59 West v. AK Steel Corp. Ret. Accum. Pension Plan, 657 F. Supp. 2d 914 (S.D. Ohio 2009)...87 Winkelman v. Parma City School Dist., Case No. 1:08-cv-2135, xi

13 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 13#: U.S. Dist. LEXIS (N.D. Ohio May 22, 2009)...45 Wolfe v. Perry, 412 F.3d 707 (6 th Cir. 2005)...70 Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169 (6 th Cir. 1990)...61, 70 Ohio Statutes Ohio Rev. Code S. Rep. No , p.6 (1976)...56, 94 Federal Rules Fed. R. Civ. P Fed. R. Civ. P Federal Statutes 28 U.S.C U.S.C U.S.C.A. 1983, passim Constitutional Provisions U.S. Amend. I...passim U.S. Amend passim xii

14 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 14#: Statement in Support of Oral Argument The physicians respectfully request oral argument because the record in this case is highly detailed. Oral argument will afford the physicians the opportunity to directly engage and assist the Court in addressing the multiple factual and legal errors in the district court s opinion errors that thwart Congress s dual intentions under 42 U.S.C to reimburse successful civil-rights plaintiffs and hold violators accountable for their misdeeds. xiii

15 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 15#: Introduction After two years of litigation during which the district court twice ruled against them on the merits the physician-plaintiffs obtained from the Sixth Circuit an injunction and declaration that an Ohio statute violated their First- Amendment right to contribute to certain political campaigns. As prevailing parties, they were thus entitled to reasonable attorneys fees under 42 U.S.C Following roadmaps from precedent providing that a reasonable fee was to be calculated by the lodestar i.e., hours reasonably expended multiplied by a reasonable hourly rate the physicians documented their attorneys -fees request with detailed contemporaneous billing records, declarations setting forth counsel s normal billing rates and prior fee awards in comparable cases, and information about counsel s experience and credentials. The fees sought (including for the initial fees motion) totaled approximately $658,000 later discounted to $612,000 after the physicians chose not to contest certain of the magistrate judge s recommended deductions. While this figure is sizable, it reflects counsel s efforts to advocate diligently for their clients over multiple rounds of litigation. It represents the efforts counsel made in contending with both the district court s unfavorable rulings which this Court ultimately reversed and the Secretary s dogged defense of an indefensible 1

16 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 16#: statute, over two years, adding new arguments along the way. Indeed, had the case ended after the magistrate judge recommended a preliminary injunction for the physicians in October 2010, the physicians would have incurred only 30% (approximately $179,000) of the fees they ultimately sought. On attorneys fees, the magistrate judge issued a report that, notwithstanding a major cut in pre-filing fees, recommended the physicians receive approximately $450,000. The physicians contested the pre-filing-cut recommendation as violating Supreme Court precedent, but compromised on other issues, such as the magistrate judge s 25% across-the-board discovery-hours reduction. The district court, however, further slashed the magistrate judge s recommended figure to under $129,000 an 80% reduction from the original request and 70% from the magistrate judge s recommendation. The court s opinion is marred by numerous errors. Contrary to settled law, which focuses on the reasonableness of rates and hours, the court as quoted in the first issue presented below based its drastic reduction on various impermissible considerations, such as the defendant s governmental status, the physicians purported financial means, counsel s purported nefarious intentions, the physicians supposed lack of sincerity, and the court s continuing affection for the statute it had erroneously upheld. 2

17 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 17#: The court also erred in cutting counsel s hourly rates, dramatically reducing fees for hours reasonably invested, applying a further 35% downward adjustment, and applying the Coulter 3% fees for fees rule to preemptively deny any future compensation for work invested recovering fees, despite the Secretary s role in prolonging the litigation including his refusal to settle fees. The combined errors show the district court abused its discretion. This Court should reverse and, to maintain the appearance of fairness given the original court s expressed mistrust of the physicians and their counsel, remand to a different judge. 3

18 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 18#: Jurisdictional Statement The district court had jurisdiction under 28 U.S.C because the physicians claims arise under federal law. This Court has jurisdiction under 28 U.S.C because the district court s June 14, 2013 fees order was a final order 1 and Appellants timely appealed R.139 (Ord.) (PageID# ). R.140 (Not. Appeal on Jul. 12, 2013) (PageID# ). 4

19 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 19#: Statement of the Issues 1. Recovering attorneys fees as prevailing plaintiffs. A. Impermissible considerations. Attorneys -fees requests are to be reviewed for their reasonableness. Contrary to settled law, the district court scrutinized and cut the physicians fee request by considering the following: The fact that the defendant is a governmental entity: it is imperative that this Court review fee requests that will ultimately be borne by the taxpayer with a renewed level of scrutiny ; The physicians supposed financial means: the named Plaintiffs are medical doctors presumably abundantly capable of paying for representation. Counsel s purported nefarious intentions: counsel filed the suit mainly... to garner [overstated] fees, and not to vindicate their clients First-Amendment rights. A substantial part of their discovery efforts led more to the discovery of new potential clients than facts necessary to the litigation of the case. The physicians supposed insincerity: there is no actual evidence that the other Plaintiffs ever sought, or intended to contribute to the campaign. The court s continuing affection for the statute it had erroneously upheld: The need to carefully review the fee request was especially true because Plaintiffs sought to make political monetary contributions barred by a thirty[-]year[-]old law that was enacted to prevent corruption in election campaigns. Did the court err? B. Reasonable hourly rates. A reasonable rate is the prevailing rate in the community for lawyers of comparable skill, experience, and reputation. Yet the district court disregarded the physicians evidence that their counsel s requested rates aligned with 5

20 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/2013 of 116 PAGEID Page: 20#: prior court orders awarding fees to those and other counsel in civilrights cases; counsel s standard rates with fee-paying clients in civil-rights cases; the rates of other Cleveland-based civil-rights lawyers of comparable skill, experience, and reputation; an Ohio bar survey s 95 th percentile for downtown Cleveland. Did the court err in slashing counsel s standard rates? C. Reasonable hours expended. i. Pre-written-agreement hours. Neither 42 U.S.C nor Ohio law requires a written agreement for a representation to begin or a prevailing party to recover fees. The Supreme Court has held that pre-complaint-filing work is compensable under Yet the district court, in determining reasonable hours, denied compensation for all work performed before the physicians fee-shifting understanding with counsel was reduced to writing. The court ignored undisputed evidence that the representation predated the writing, including the fee agreement, client-testimony, and the fact that complaint- and preliminary-injunction-motion drafting were nearly complete. Did the court err? ii. Discovery and appeal hours. The Supreme Court has held that courts should not reduce fee awards because plaintiffs fail to prevail on every contention. Nor may they make a fee determination without giving a reasonably specific explanation of each conclusion. Here: The court failed to explain the scope of its order denying all post-discovery-deadline hours, and denied compensation for work not subject to the deadline. In its appellate-fee reduction, the court double-deducted items already cut in its initial 50% reduction, providing no explanation. 6

21 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 21#: Did the court err? D. Downward adjustment. The lodestar is strongly presumed to represent a reasonable attorneys fee. Adjusting for factors already subsumed in the lodestar analysis amounts to impermissible doublecounting. In its 35% downward adjustment, the district court considered and then misapplied many factors already encompassed in its lodestar analysis. Did the court err? E. Fees litigation. Many courts, including this Court, have departed from the Coulter rule limiting to 3% the number of hours allowed for recovering fees for fees, especially where the defendant bears responsibility for extended litigation. This is true here, yet the district court imposed the 3% cap and preemptively denied future requests. The rule also appears to contradict Supreme Court precedent and has no basis in Did the court err? 2. Reassignment upon remand. Courts reassign cases to a different judge if (a) the original court would be unlikely to relinquish its pre-existing views of the case; (b) the appearance of justice would be compromised; (c) the burden would not outweigh the fairness benefits. Here, the court impugned counsel s integrity, questioned the physicians sincerity, nearly denied fees altogether, and appears to have been influenced by its preexisting views on the merits raising a question about impartiality in subsequent proceedings. Should the case be reassigned? 7

22 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 22#: Statement of the Case In August 2012, this Court reversed the district court on Plaintiff-physicians First-Amendment challenge, ordering the court to enter judgment declaring Ohio Rev. Code unconstitutional and enjoining Ohio s Secretary of State from enforcing that statute. 3 The physicians, as prevailing parties under 42 U.S.C. 1988, moved to recover $657, in attorneys fees, as well as for costs. 4 (By not objecting to certain aspects of the magistrate judge s recommendation, the physicians adjusted that request to $612, ) The magistrate judge recommended a $454, fee award. 6 The district court further cut that to $128, The physicians appealed. 8 Statement of Facts I. The physician-plaintiffs, having engaged experienced counsel, fully prevailed on their constitutional claims after multiple rounds of litigation. The physicians challenged, on First-Amendment grounds, campaign-finance statute Ohio Rev. Code This 1978 statute barred state-attorney-general Lavin v. Husted, 689 F.3d 543 (6 th Cir. 2012); R.92 (Mandate) (PageID# 3331). Accord R.96 (Judgment) (PageID# 3341). R.97 (Mot. Fees) (PageID# ); R.99 (Bill of Costs) (PageID# ). R.132 (Pls. Obj. R&R at 23 & n. 81) (PageID# 4454). R.127 (Fees R&R) (PageID# ). R.139 (Ord.) (PageID# ). R.140 (Not. Appeal) (PageID# ). 8

23 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 23#: and county-prosecutor candidates from accepting campaign contributions from Ohio Medicaid providers, or anyone with an ownership interest in one. The physicians wished to contribute to Ohio attorney-general candidate Richard Cordray, but Cordray s campaign rejected their contributions, citing the statute. 9 A. The physicians engaged experienced counsel. To prosecute their challenge, the physicians engaged counsel seasoned in First-Amendment, civil-rights, election, and healthcare-fraud law. Before founding a boutique civil-rights-litigation firm in downtown Cleveland eight years ago, lead counsel Subodh Chandra, a 1994 Yale Law School graduate, defended, as City of Cleveland law director, numerous 1983 cases, including First-Amendment matters; prosecuted, as an Assistant U.S. Attorney, the healthcare-fraud schemes that the Secretary claimed the challenged criminal statute was enacted to prevent; litigated at top Cleveland and Los Angeles law firms, representing, among others, those cities and their elected officials in high-profile 1983 matters; and 9 See Lavin v. Husted, 689 F.3d 543, 545 (6 th Cir. 2012); R.2-1 (Lavin Decl. 1-8) (PageID# 71 73); R.51-1 (Pls. Interr. Resp.) (PageID# 738, ). See also R.58-2 (Magoulias Decl. 8) (PageID# 2392). 9

24 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 24#: taught appellate practice and professional responsibility at Case Western Reserve University Law School as a distinguished practitioner in residence and full adjunct professor. 10 Chandra has extensive election-litigation experience, 11 and was a 2006 candidate for Ohio attorney general, winning most newspaper endorsements. (The Cincinnati Enquirer editorial board called Chandra one of the most impressive statewide candidates Ohio Democrats have produced in years. 12 ) He has also held various senior leadership positions in Cleveland-area bar associations, including serving as chair of the bar s judicial-selection committee. Donald Screen, 13 a Chandra Law Firm partner, is a seasoned federal-court litigator with civil-rights and substantial appellate experience. He is a 1987 University of Virginia law graduate (where he had previously earned his Ph.D. and taught philosophy), and was a federal law clerk and partner at large Cleveland-area law firms. 10 R.97-1 (Chandra Decl. at 3 7) (PageID# ); R.97-2 (Chandra Bio) (PageID# ). 11 See, e.g., NEOCH v. Husted, No cv-00896, 2010 U.S. Dist. LEXIS , at *21 22 (S.D. Ohio, Nov. 30, 2010); Hunter v. Hamilton County Bd. Elec., No. 1:10-cv-820, 2013 U.S. Dist. LEXIS , at *50-52 (S.D. Ohio Sept. 30, 2013); Boustani v. Blackwell, 460 F. Supp. 2d 822 (N.D. Ohio 2006). 12 R.97-2 (Chandra Bio) (PageID# ). See also 13 R.97-1 (Chandra Decl. 20) (PageID# 3391). 10

25 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 25#: Raymond Vasvari, Jr., a 1991 Case Western Reserve University Law School graduate, is a partner at the downtown-cleveland firm Berkman Gordon Murray & DeVan and was formerly the ACLU of Ohio s legal director. He has extensive First-Amendment litigation experience, including election-law-related cases. He has also taught appellate advocacy. 14 Sandhya Gupta is a 2004 Columbia Law School graduate, where she was a Columbia Law Review Articles Editor. 15 Her civil-rights experience includes work for the New York City-based public-interest law firm Neufeld, Scheck & Brustin (formerly Cochran Neufeld & Scheck). A former federal law clerk, she worked in Arnold & Porter s New York office before joining the Chandra Law Firm s civiland-voting-rights practice. The district court s fee decision did not acknowledge the above experience. 16 B. The physicians prevailed after multiple rounds of litigation. Before ultimately prevailing in this Court, the physicians challenge proceeded through multiple rounds of merits litigation over a two-year period, including two stages where the district court ruled against them on the merits R.97-9 (Vasvari Decl. 4 8, 10 13) (PageID# ). R.97-1 (Chandra Decl. 19) (PageID# 3391). See, e.g., R.139 (Ord. at 12 n.12) (PageID# 4596). 11

26 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 26#: Counsel s extensive work is detailed in the physicians fees motion and contemporaneous billing records. 17 Key aspects include the following: Pre-filing work. Initially, the physicians who attempted to contribute in July 2010 sought to invalidate the statute before the November 2010 election. Counsel thus not only drafted the complaint, but also investigated all aspects of the law, 32-year-old legislative history, and facts (which included days reviewing hard-copy and microfiche materials in Columbus, Youngstown, and Cleveland libraries). 18 Based on this research, and after multiple communications with the physicians, 19 counsel drafted a comprehensive preliminary-injunction motion, 20 filed hours after the physicians September 3 complaint. 21 In early September, the physicians and counsel also executed a written agreement confirming that R.97 (Mot. Fees at 2 21) (PageID # ); R.97-3 (Fees Invoice at 2 121) (PageID# ); R.97-1 (Chandra Decl. 1, 8) (PageID# 3386, 3388) (incorporating by reference motion s factual narrative, and attaching invoice as exhibit). R.97-3 (Fees Invoice at 2 16) (PageID# ) (fees for 7/1/10 to 9/2/10). Id. at 2, 9 (PageID# 3399, 3406) (communications-related entries on July 1, 7, 8, 9, and August 3); R (12/4/12 Lavin Decl. 2,4) (PageID# ) (indicating Plaintiffs awareness of fee-shifting nature of work and of having engaged counsel). R (Gupta Decl. 8 11) (PageID # ). R.2 (Mot. Prelim. Inj.) (PageID# 24 70); R.1 (Compl.) (PageID# 1 17); R and (court filing notifications) (PageID# 4473, 4475). 12

27 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 27#: representation had begun earlier. 22 Yet the district court excluded all this essential work from its fee decision. Preliminary injunction. The district court referred the physicians motion to a magistrate judge, who, after a hearing, recommended an injunction in the physicians favor. 23 After cross-objections and other briefing, 24 however, the district court rejected the magistrate judge s recommendation, leaving the physicians with no remedy before the 2010 election. 25 The court s decision adopted the Secretary s articulations without acknowledging the physicians arguments. 26 Had the Secretary conceded the statute s unconstitutionality after the magistrate judge s recommendation, or had the district court ruled in the physicians favor, the physicians main-case fee request (through the date of the R (engagement agreement with signature pages) (PageID# ). Compare id. (PageID# ) (Kellner signature page) with R.127 (R&R at 2) (PageID# 4352) (although magistrate judge later used a September-2 execution date, Plaintiff Kellner signed on September 1). R.17 (R&R at 1) (PageID# 282). R.13-14, 19-20, (parties proposed findings of fact and conclusions of law, R&R objections, and responses) (PageID# , , ). R.24 (Op. and Ord.) (PageID# ). Compare R.24 (Op. and Ord. at 4 5) (PageID# ) with R.19 (Def. s Obj. to R&R at 3 5, 12) (PageID# , 330) and R.23 (Pls. Resp. to Def. Obj. to R&R at 2 7) (PageID# ). 13

28 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 28#: district court s preliminary-injunction opinion) would have totaled $179,273.50, 27 rather than the $617, it later became. That is, the fees would have been about 70% less than what the physicians ultimately incurred. Discovery and summary judgment. Despite their initial setback, the physicians hoped for a permanent injunction that would vindicate their rights for future elections. 29 Counsel embarked on discovery and additional fact development. This included filling the evidentiary gap the magistrate judge had identified in the physicians overbreadth claim namely, showing how many Medicaid providers were publicly held (and thus how many shareholders who, because of their de minimis ownership interests, were prevented from contributing). 30 Counsel procured records from state agencies, 31 identified potential publicly held providers, and then issued subpoenas for documents and testimony, See R.97-3 (Fees Invoice at 2 24) (PageID# ) (7/1/10-10/27/10 fees); R.97-9 (Vasvari Decl. Ex. A) (PageID# ) (6/7/10 10/27/10 fees) ( hours). See R.97-3 (Fees Invoice at 2 110) (PageID# ); R.97-9 (Vasvari Decl. Ex. A) (PageID# ); R (Mills Decl. Ex. A) (PageID# 3680); R (Hill Decl. Ex. A) (PageID# 3686) (total $657, minus $40, for fees litigation from 8/3/10 to 9/21/10) ( total main-case hours). See, e.g., Lavin v. Husted, 689 F.3d 543, 546 (6 th Cir. 2012) (Court finding exception to mootness because Plaintiffs had made clear that they wish to make the same kinds of contributions in future cycles ). R.17 (R&R at 27) (PageID# 308). E.g., R (provider listing) (PageID# ). 14

29 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 29#: negotiating extensively with those providers to efficiently obtain the required information. 32 The physicians were also required to respond to the Secretary s discovery. 33 And their continuing investigation involved procuring evidence that proved central to their Sixth-Circuit appeal, including declarations from former Ohio attorneys general, which this Court cited in striking down the statute 34 ; the Secretary s Fed. R. Civ. P. 30(b)(6) deposition, which yielded critical admissions 35 ; and voluminous public records from state agencies 36 required to respond to the Secretary s budgetary, corruption, and fraud arguments seeking to justify the statute R.97 (Mot. Fees at 20 21) (PageID# ). See R.97-3 (Fees Invoice at 29 38) (PageID# ); R.97-9 (Vasvari Decl. Ex. A at 8) (PageID# 3673). Lavin v. Husted, 689 F.3d 543, (6 th Cir. 2012). R.53-1 (Mayhew Dep. Tr. at 39:4 42:5, 54:17 55:17, 57:25 64:3, 7:20 8:4) (PageID# , , , ) (acknowledging, among other things, that he was unaware of any corruption, or even perception of corruption); R.57-3 (Dep. Errata Sheet) (PageID# ). See Lavin v. Husted, , Doc. No (Appellants Br. at 41) (Feb. 15, 2012) (citing budget sections in appellate brief); R (OAG Comp. Expend. FY2010, at 150, 159) (PageID# 1784, 1793) (providing expenditures for consumer- and Medicaid-fraud sections); R (PageID# ) (OAG chart with MFCU and consumer-protection codes). 15

30 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 30#: To defuse the Secretary s misguided insistence that the physicians lacked standing to claim overbreadth, 37 counsel also brought a separate suit on behalf of a Target Corp. shareholder. 38 This Court s Lavin decision ultimately rendered that suit moot, 39 and fees for that extensive work are not sought here. Finally, after extensive cross-summary-judgment-motion briefing was complete, new evidence emerged underscoring the statute s overbreadth namely, a finance-disclosure report indicating that Ohio Attorney General Mike DeWine, while a candidate, may have violated the contested statute by accepting a contribution from himself while he owned Medicaid-provider shares. Although the district court quashed the hearing-subpoenas issued to DeWine and his campaign staff, 40 the court permitted the physicians to supplement the record with public records showing DeWine s contributions and ownership interests. 41 In the process, the Secretary, through General DeWine, manufactured a new argument with no See R.97-1 (Chandra Decl. at 9) (PageID# ); R.51 (Def. Mot. Summ. J. at 18) (PageID# 731); R.58 (Pls. Opp. Def. Summ. J. at 17-18) (PageID# ). R.97-1 (Chandra Decl. at 9) (PageID# 3388). Kilroy v. Husted, No , 2012 U.S. App. LEXIS 26920, *1 (6 th Cir. Oct. 1, 2012). R.72 (Ord. Quash. Subpoenas) (PageID# ); R.66, 67, 69 (DeWine, Hadden, and Custodian subpoenas for impending summary-judgment hearing) (PageID# ; ; ). R.74 (Mot. Supp.) (PageID# ); 7/22/11 non-document order granting motion to supplement (no PageID#). 16

31 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 31#: statutory support that the physicians successfully rebutted: that an ownership interest, as used in the statute, really meant a 5% ownership interest in a Medicaid provider. 42 Ultimately, however, the district court ruled against the physicians on summary judgment. 43 As this Court later described, the district court reasoned that the statute was supported by a general interest in preventing corruption and that the court should not second guess the Ohio Legislature s means of furthering that interest. 44 The physicians appealed. Appeal. On appeal, counsel prepared merits briefs and handled various motions, including a successful motion to expedite the argument so that the physicians might receive relief before the November 2012 county-prosecutor election. 45 The physicians counsel also engaged with amicus curiae who could provide this Court with the medical community s perspective regarding the statute s overbroad impact R.76 (Def. Opp. Mot. Supp.) (PageID# ). See R.79 (Summ. Judg. Op.) (PageID# ). Lavin v. Husted, 689 F.3d 543, 546 (6 th Cir. 2012). See Lavin v. Husted, No , Doc. No , at 2-9 (responding to subpoena-recipients motion to intervene) (Jan. 26, 2012); Doc. No at 2-8 (moving to hold case in abeyance) (Oct. 21, 2011); Doc. No , at 2 9 (moving to take judicial notice) (Feb. 15, 2012); Doc. No at 2 (moving to expedite argument) (May 1, 2012). 17

32 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 32#: On the merits, the physicians were forced to address a standing argument the Secretary raised for the first time and that this Court characterized as almost his primary one. 46 (At oral argument, the Secretary finally conceded that his argument that the statute had not harmed the physicians was not serious. 47 ) Rather than recycle summary-judgment briefing, moreover, counsel critiqued numerous problematic aspects of the district court s opinion. To prepare for oral argument, finally, counsel spent time gaining a command of the evidence and law in the two-year-old case. A mock oral argument with First-Amendment scholar Professor Jessie Hill and federal-appeals lawyer David Mills reformed lead counsel s initial approach. 48 The physicians ultimately prevailed before this Court, which reversed the district court s judgment for the Secretary and ordered judgment for the physicians. II. As prevailing parties, the physicians sought approximately $658,000 in fees, further discounted to $613,000 before proceeding to the district court. The physicians moved for attorneys fees, seeking $657, in attorneys fees (including fees for preparing the fees motion) and $7, in expenses. The fees were divided proportionately to work performed between the Chandra Law Lavin, 689 F.3d at 546. Oral Arg. Recording at 17:25 18:00, Lavin v. Husted, 689 F.3d 543 (6 th Cir. 2012) (No ) (argued July 25, 2012). R (12/12/12 Chandra Decl. 11) (PageID# 4082). 18

33 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 33#: Firm and Berkman Gordon Murray & DeVan, as well as for oral-argument consulting attorneys Mills and Hill. Rates. Counsel sought rates consistent with their experience, skill, credentials, and reputation, detailed in Facts Part I.A above 49 : Attorney Hourly rate Years out of law school (in 2012) Chandra (managing $410 (for )/ 18 partner and lead counsel) $425 (for 2012) Screen (partner) $ Vasvari (partner) $ Gupta (of counsel) $300 8 The rates sought for Professor Hill and attorney Mills were similarly consistent with their experience and credentials: for Hill, extensive First- Amendment scholarship, teaching, and practice, 50 and, for Mills, extensive federal appellate practice, including a 9-0 Supreme-Court win. 51 Attorney Hourly rate sought Years out of law school (in 2012) Hill (professor) $ Mills (appellate lawyer) $ Hours. The physicians sought fees for 1,898.6 hours (including hours for preparing the fees motion about 6.9% of the 1,776.7 main-case hours): R.97-1 (Chandra Decl. 2 3, 6, 10 11, 19 20) (PageID# , 3391); R.97-9 (Vasvari Decl. 4, 5, 11, 18) (PageID# ). R (Hill Decl. 7,9,13) (PageID# ). R (Mills Decl. 9 12, 15) (PageID# ). 19

34 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 34#: Chandra Law Berkman (Vasvari) Mills Hill Total Main case 1, ,776.7 Fees litigation Total hours 1, , Again, had the district court issued a preliminary injunction in October 2010, the main-case hours would have totaled closer to instead of 1,776.7 (31% of the later total). 53 follows: Within the Chandra Law Firm, the breakdown of total hours invested was as Chandra Law Timekeeper (Attorney/Paralegal/Law Clerk) Hours billed 54 Hours billed (according to Defendant) 55 Subodh Chandra Donald Screen Sandhya Gupta Jim von der Heydt (law clerk) William DiTirro (paralegal) Suzanne Zaranko (senior See R.97-1 (9/21/12 Chandra Decl. 23) (PageID #3392) (1767 total hours for Chandra Law); R.97-3 (Fees Invoice at ) (PageID# ) (116.4 hours on fee-request preparation); R.97-9 (Vasvari Decl. Ex. A) (PageID# ); R (Mills Decl. Ex. A) (PageID# 3680); R (Hill Decl. Ex. A) (PageID# 3686). See R.97-3 (Fees Invoice at 2 24) (PageID# ) (7/1/10-10/27/10 fees); R.97-9 (Vasvari Decl. Ex. A) (PageID# ) (6/7/10-10/27/10 fees) ( hours). R (Zaranko Decl. 19) (PageID# ). The declaration inadvertently reversed DiTirro s and Zaranko s hours. R.106 (Def. Opp. Fees. at 2 3) (PageID# ). 20

35 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 35#: paralegal) The Secretary s representations to the court (third column above) grossly exaggerated attorney Chandra s billed hours. The physicians protested the inflation, 56 but the magistrate judge and district court both adopted it. 57 The district court also incorrectly chastised counsel for supposedly not submitting a breakdown of hours by attorney, but counsel had provided that calculation. 58 Before the magistrate judge s recommendation, the physicians had already voluntarily discounted well over $16,000 by exercising billing judgment (roughly 40 hours). 59 As shown below, they further discounted $45, by not objecting R.117 (Pls. Reply Mot. Fees at 6) (PageID# 4063). R.127 (R&R at 10) (PageID# 4360); R.139 (Ord. at 14) (PageID# 4598). Compare R.139 (Ord. at 6 n.9) (PageID# 4590) with R (Zaranko Decl. 19) (PageID# ). See R.97-1 (9/21/13 Chandra Decl. 23 (PageID# 3392); R.97-9 (Vasvari Decl. 17) (PageID# 3669); R (3/15/13 Chandra Decl. 4) (PageID# 4556) (Chandra Law s time from April through June 2010 $1,681 (4.1 hours)); R (Chart) (PageID# ) (attorney Chandra s October 2010 hours, including preliminary-injunction hearing $13,735 (33.5 hours)); R.97-3 (Fees invoice at 19, 41 64, 77 84, ) (PageID# 3416, , , ) (at least 20 dates, totaling at least $600 (2 hours, at lowest increment and billing rate) but more likely thousands of dollars, on which one or more attorneys did not bill for internal discussions 9/23/10, 3/7/11, 3/14/11, 3/16/11, 5/2/11, 5/3/11, 5/4/11, 5/12/11, 6/14/11, 12/14/11, 12/19/11, 12/22/11, 12/23/11, 1/25/12, 1/30/12, 8/13/12, 8/20/12, 8/22/12, 8/27/12, 9/5/12). See also R.97-1 (Chandra Decl. 9) (PageID# ) (declining to ask for parallel-case Kilroy s fees); R.97 (Mot. Fees at & nn ) (PageID# ) (citing authorities); R.97-5 (Kilroy Fees Invoice) (PageID# 3529). 21

36 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 36#: to certain aspects of the magistrate judge s recommendation. 60 The total discount before proceeding to the district court was thus $61, (or 9.2%). The Secretary s Response. The Secretary responded to the physicians motion by insisting that, despite being prevailing parties, the physicians should receive no attorneys fees at all. The Secretary contended that the physicians had not executed a formal written engagement with counsel, allegedly in contravention of Ohio Rule of Professional Conduct 1.5(c). 61 That was false. (At the hearing, the Secretary conceded the issue. 62 He maintained, however, that fees incurred before the written agreement s execution should be denied. 63 ) Despite case law warning against fees litigation becoming a second major litigation, the Secretary dug in his heels by refusing to consider settlement at all. 64 III. The magistrate judge recommended awarding over $450,000 in attorneys fees, but the district court further reduced that to $129,000, resulting in an 80% cut from the physicians original request. Following a hearing, the magistrate judge recommended certain reductions, including trimming Screen s standard rate by $25 per hour and reducing by 25% See below n. 67 and accompanying text. R.106 (Def. Opp. Fees at 3 5) (PageID# ). R.126 (Fees-Hearing Tr. at 18:21 19:18) (PageID# ). R. 134 (Def. Opp. Pls. Obj. R&R at 4 5) (PageID# ). See R.108 (Minutes of proceedings) (PageID# 3790) (magistrate judge noting that settlement would not be fruitful). 22

37 Case: 2:06-cv ALM-TPK Case: Document: #: Filed: 12/20/13 Filed: Page: 10/16/ of 116 PAGEID Page: 37#: third-party-discovery and appeal time. 65 In her discovery-hours calculation, the magistrate judge mistakenly included many billing entries either that had nothing to do with discovery or where work such as brief-drafting or editing predominated. 66 Nevertheless, to move the matter to resolution, the physicians chose not to contest the magistrate judge s 25% discovery reduction or Screen s adjusted rate, among other recommendations. 67 In addition to the over $16,000 already voluntarily deducted, therefore, the physicians compromised $45, before coming to the district court. 68 The physicians did object, however, to the magistrate judge s biggest recommended cut a complete denial of all fees incurred before the fee-shifting understanding between the physicians and their counsel was reduced to writing R.127 (Fees R&R at 19, 34, 37) (PageID# 4369, 4384, 4387); R (appeal chart calculating 660 pre-reduction hours) (PageID# ); R (discovery chart calculating 270 pre-reduction hours) (PageID# ). Compare, e.g., R (discovery chart hours for 10/18/10 (Gupta), 10/19/10 (Gupta), 3/14/11 (Screen), 4/19/11 (Gupta), 4/20/11 (Gupta), 4/20/11 (Screen)) with R.97-3 (Fees Invoice at 23, 43, 49) (PageID# 3420, 3440, 3446). R.132 (Pls. Obj. R&R at 23) (PageID# 4454) ($9,000 for corrected-brief hours); R.136 (Pls. Resp. Def. s Obj. at 7) (PageID# 4534) ($10, after adjusting attorney Screen s rates from $465/hr to $440/hr, and $1, for hours on two minor line items). See also id. at 19 (PageID# 4546), and compare R.97 (Mot. Fees at 2) (PageID# 3348) with R.132 (Pls. Obj. R&R at 23) (PageID 4454) (not contesting $ in expense reductions). R.132 (Pls. Obj. R&R at 23 n. 81) (PageID# 4454). 23