MONTONE v. CITY OF JERSEY CITY

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

VALERIE MONTONE,

Plaintiff, Hon. Stanley R. Chesler

Civil Action No.: 2:06-cv-280 (SRC/CLW)

Vv.

CITY OF JERSEY CITY, et al.,

Defendants,

JOHN ASTRIAB, CLYDE BANKS,

JAMES BUCKLEY, WILLIAM Hon. Stanley R. Chesler

CULLINANE, RICHARD Civil Action No.: 2-06-cv-3790 (SRC)

DESTEFANO, DAVID LABRUNO,

EZIO SCERBO, JOHN WHALEN, Special Master’s Opinion On

Motions For Awards Of Attorneys’

Plaintiffs,

Fees And Costs

v.

CITY OF JERSEY CITY, et al.,

Defendants.

INTRODUCTION

By order dated July 21, 2020, the undersigned was appointed Special Master in these two

matters to resolve two applications for awards of attorneys’ fees and costs filed by plaintiffs in the

captioned matters. Montone, ECF No. 401; Astriab, ECF No. 247.

In Montone v. Jersey City, two law firms representing the plaintiff, Manshel Law, LLC and

Green Savits, LLC, seek an award of fees and costs. Manshel Law seeks an award of

$3,001,811.03 in fees (including enhancement) and $121,642.94 in costs. Green Savits seeks an

award of $649,901.78 in fees (including enhancement) and $3,134.91 in costs.’ In Astriab v. City

of Jersey City, plaintiffs’ counsel, Breuninger & Fellman, seek an award of $1,433,704.71 in fees

(including enhancement) and $114,448.41 in costs. All applications are inclusive of services

rendered and costs incurred through the submission of the firms’ respective reply submissions on

their fee applications.

BACKGROUND

L. The Matters

A, Montone v. City of Jersey City, et al.

This litigation began nearly 15 years ago, when Valerie Montone filed a complaint in the

New Jersey Superior Court against the City of Jersey City, the Jersey City Police Department,

Mayor Jerramiah Healy, and Police Chief Robert Troy. The gravamen of Ms. Montone’s

complaint was that she was wrongfully denied promotion from sergeant to lieutenant and suffered

other untoward actions in retaliation for her making complaints about sexual harassment in the

police department and for her support of Mayor Healy’s political rival. Ms. Montone’s complaint

alleged the following ten counts: 1) gender discrimination in violation of the New Jersey Law

Against Discrimination, N.J.S.A. 10:5-1 et seq. (LAD); 2) unlawful retaliation for protected

conduct under the LAD; 3) unlawful retaliation in violation of the New Jersey Conscientious

Employee Protection Act, N.J.S.A. 34:19-1 et seg. (CEPA); 4) unlawful retaliation for protected

speech in violation of 42 U.S.C. §1983; 5) unlawful retaliation for political affiliation in violation

of §1983; 6) unlawful denial of Ms. Montone’s equal protection rights in violation of 1983; 7)

unlawful retaliation for protected speech in violation of the New Jersey Civil Rights Act, N.J.S.A.

This includes a voluntary two-and-a-half hour reduction in the lodestar of the Green Savits firm noted in the firm’s

reply submission. See Reply Declaration of Jon W. Green in Further Support of Plaintiff Valerie Montone’s Motion

for Attorney’s Fees and Non-taxed Costs.

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10:6-1 (“NJCRA”); 8) unlawful retaliation for political affiliation in violation of the NJCRA; 9)

hostile work environment in violation of the NJLAD; and 10) intentional infliction of emotional

distress.

The Complaint was removed to the District of New Jersey based on federal question subject

matter jurisdiction. On October 22, 2010, after years of discovery, the defendants moved for

summary judgment. On June 27, 2011, the court granted the motion insofar as it related to the

federal causes of action, dismissed those counts, and remanded the remaining state law claims to

the Superior Court’s Law Division. Ms. Montone appealed the decision to the Third Circuit.

While the appeal to the Third Circuit was pending, the state law claims were litigated in

the Law Division, and, on February 3, 2012, summary judgment was granted in favor of the

defendants on the remaining state law claims, based on the collateral estoppel effect of the District

Court’s summary judgment. On March 8, 2013, the Third Circuit reversed and vacated the District

Court’s summary judgment. And on December 24, 2013, the Superior Court’s Appellate Division

also reversed and remanded the summary judgment granted by the Law Division.

B. Astriab et al v. City of Jersey City et al.

On August 14, 2006, nearly nine months after Ms. Montone had commenced her lawsuit,

eight current or former sergeants in the Jersey City Police Department filed a lawsuit in the District

of New Jersey. The claims of the eight Astriab plaintiffs were derivative of Ms. Montone’s claims.

In particular, they alleged that, in order to effectuate their plan to retaliate against Ms. Montone by

not promoting her to lieutenant, the defendants refused to promote anyone to lieutenant, thus

denying the eight Astriab plaintiffs of their rightful promotions to lieutenant. The Astriab plaintiffs

alleged the following claims: 1) gender discrimination in violation of the LAD, 2) unlawful

retaliation under the LAD; 3) unlawful retaliation for protected activity in violation of §1983; and

4) denial of equal protection rights in violation of §1983.

° 2853384.1 116597-103871

As it did in Montone, on August 16, 2011, the District Court granted summary judgment

in favor of the defendants on the two federal causes of action and declined to exercise jurisdiction

over the two state law claims and dismissed them without prejudice. The Astriab plaintiffs

appealed and the Third Circuit reversed and vacated the summary judgment.

Also as in Montone, on remand to the Superior Court’s Law Division the court granted

summary judgment to the defendants on the remaining state law claims. That summary judgment

was appealed and ultimately reversed by the Appellate Division.

Cc. Consolidated Trial of Montone and Astriab Matters

After the Montone and Astriab federal matters were remanded to the District Court, the

District Court consolidated both matters for trial purposes only. The Court also granted leave to

Ms. Montone to file an Amended Complaint in the District Court, restoring her state law claims to

the federal action, and the Court entered an order reasserting supplemental jurisdiction over the

Astriab plaintiffs’ state law claims.

On December 21, 2017, Jon W. Green of Green Savits, entered an appearance on behalf of

Ms. Montone to serve as Ms. Montone’s trial counsel with Lisa Manshel of Manshel Law

continuing to serve as Ms. Montone’s counsel, but providing trial support services outside the

courtroom.

Jury selection began on April 12, 2018, and a verdict was reached on May 2, 2018. The

jury found that the defendants wrongfully denied Ms. Montone a promotion because of her

political affiliations, her engaging in conduct protected by the LAD, and her expressive conduct

about a matter of public concern. The jury no-caused Ms. Montone on her claim of a hostile work

environment. The jury awarded Ms. Montone $276,834.00 in economic damages and $0 in

emotional distress damages. The jury did not award punitive damages.

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The jury also found in favor of the Astriab plaintiffs on their retaliatory failure-to-promote

claims. The jury awarded each Astriab plaintiff economic damages but declined to award any

emotional distress or punitive damages. The total amount awarded to the eight Astriab plaintiffs

was $1,891,608, for an average award of $236,451.

HH: The Fee Applications

A. Manshel Law, LLC

As mentioned, Manshel Law is seeking an award of $3,001,811.03 in fees and $121,642.94

in costs. Manshel Law arrived at this number by calculating its lodestar and then applying a 55%

enhancement on its pre-verdict lodestar. Manshel Law is basing its lodestar on approximately

4,055 hours of attorney time, all of which was performed by attorney Lisa Manshel, Esq. It should

be noted that in calculating its lodestar, Manshel Law did not include time for various types of

services that it rendered during the course of the litigation. In particular, because Ms. Montone

did not prevail on her hostile-work-environment, CEPA, equal-protection, and gender-

discrimination claims or on her claims for emotional-distress and punitive damages, Manshel Law

did not include 524 hours of time that it devoted solely to those claims.

Manshel Law then multiplied the number of hours for which it is seeking compensation by

Attorney Manshel’s hourly rate of $500/hr. The reasonableness of Manshel Law’s hourly rate was

supported by sworn statements from six different attorneys. Multiplying the hours spent by a rate

of $500 per hour yields a lodestar of $2,027,624.49.

As mentioned, Manshel Law seeks an enhancement of its lodestar to account for the risk it

undertook in prosecuting the case. In particular, Manshel Law seeks a 55% enhancement for the

time it devoted on the matter until a verdict was rendered on May 2, 2018. Manshel Law devoted

approximately 3542.5 hours until that time, resulting in a pre-verdict lodestar of $1,771,248.25.

2853384.1 116597-10387]

Fifty-five per cent of that amount is $974,186.54, which when added to the overall lodestar results

in Manshel Law’s total fee request of $3,001,811.03.

In addition, as mentioned, Manshel Law is seeking reimbursement of costs in the amount

of $121,642.94

B. Green Savits, LLC

The Green Savits appeared for Ms. Montone on the eve of trial and served as Ms.

Montone’s trial counsel. As mentioned, the firm seeks an award of $649,901.78 in fees (including

enhancement) and $3,134.91 in costs. Green Savits’s fee request is based on the work of three of

its attorneys: Jon Green, Glen Savits, and Laura LoGiudice. As Manshel law did, the Green Savits

did not include time for services rendered solely in support of unsuccessful claims. The firm’s

lodestar for the entire case through the submission of its reply in support of its fee award is

$476,412.80, calculated follows:

ee

SE

The Green Savits firm also seeks an enhancement of 50% on its pre-verdict lodestar.

Attorneys Green and LoGiudice devoted 503.69 and 207.85 hours, respectively, to Ms. Montone’s

case before a verdict was announced, yielding a pre-verdict lodestar of $346,977.95. Fifty per cent

of the pre-verdict lodestar is $173,488.98, resulting in a total fee award of $649,901.78.

C. Breuninger & Fellman

2853384.1 116597-10387]

Counsel for the Astriab plaintiffs, Breuninger & Fellman, are seeking an award of

$1,433,704.71 in fees (including enhancement) and $97,001.37 in costs. The fee award is based

on a lodestar of $1,094,271.80 plus a 35% enhancement for pre-verdict.

Five Breuninger & Fellman worked on the matter. The firm’s lodestar was calculated as

follows:

ee

paralegal services)

oo

Breuninger & Fellman seek a 35% enhancement of its pre-verdict lodestar, which it

represents is $969,808.30, resulting in an enhancement of $339,432.91 and a total fee request of

$1,433,704.71.

D. City of Jersey City’s Opposition

Jersey City concedes that the plaintiffs are prevailing parties and entitled to an award of

reasonable attorneys’ fees and costs. Defendants’ Brief in Opposition to Plaintiffs’ Motion for

Attorney’s Fees and Costs (“Opp. Brf.”) at 1. Jersey City also acknowledges that Rendine v.

Panizer, 141 N.J. 292 (1995) supplies the applicable standard for assessing the plaintiffs’ fee

applications. Opp. Brf. at 4.

2853384.1 116597-103871

Jersey City challenges several aspects of the plaintiffs’ fee applications. First, Jersey City

contends that the plaintiffs’ attorneys have failed to meet their burden of showing that the hourly

rates used in the calculation of their respective lodestars are reasonable. In this regard, Jersey City

claims that certifications of other employment counsel do not support the fees sought by the

petitioning attorneys because the attorneys whose certifications were offered had more experience

than the petitioning attorneys and also because there was no evidence that courts had approved the

rates stated in the attorneys’ certification. Notably, Jersey City did not offer any certifications of

its own or any other evidence to show that the rates sought by the petitioning attorneys exceed

what is commonly commanded in the market; nor did Jersey City proffer an alternative rate or

rates that it contends should be used to calculate the petitioning attorneys’ respective lodestars.”

Jersey City also challenges some of the time entries underlying the petitioning attorneys’

lodestar calculations. The challenged entries can be grouped into the following categories:

1. Redundant Work Created by Appearance of New Trial Counsel on Eve of

Trial.

Jersey City argues that, because Attorney Manshel is an experienced and qualified trial

attorney, it was unnecessary for Ms. Montone to retain the Green Savits firm as trial counsel on

the eve of trial and therefore that time devoted by Attorney Green “for reviewing deposition

transcripts, motion papers, and exhibits and drafting deposition digests” should be removed from

the lodestar calculation because Attorney Manshel had already performed those tasks earlier in the

litigation. Jersey City also claims that time spent by Attorney Manshel for “catching up” Attorney

Green on the case should also be excluded from the calculation. Based on this contention, Jersey

* In fact, in calculating an alternative fee award for each set of plaintiffs’ counsel, Jersey City used the same hourly

rates used by the petitioning attorneys themselves, not so implicitly conceding the reasonableness of the rates used

by the petitioning attorneys. See Opp. Brf. at 58-59.

° 2853384.1 116597-103871

City claims that $54,181.90 (102.23 hours) should be cut from the Green Savits fee application

and that $20,083.83 (40.17 hours) should be cut from Manshel Law’s application.

2. Redundant Work Performed by Breuninger & Fellman Associates

Jersey City contends that 7.2 hours of time for worked performed by a Breuninger &

Fellman associate should be cut from the firm’s lodestar because the same work allegedly had been

performed by the another firm associate months earlier.

3. Multiple Attorneys Appearing at Same Event

Jersey City seeks a reduction of the petitioning attorneys’ fee applications for time when

more than one attorney appears at trial, court conferences, motions, witness preparation sessions,

and similar events. On this basis, Jersey City seeks to reduce the Green Savits lodestar by $13,860

(36 hours) and the Breuninger & Fellman lodestar by $90,423.50 (253.3 hours).

4. Astriab’s Counsel’s Off-the-Record Attendance at Depositions.

Astriab counsel, Attorney Breuninger, attended and observed, but did not formally appear

at, nine depositions in the Montone matter. While Jersey City acknowledges that the depositions

were relevant to the claims in Astriab, Jersey City contends that Attorney Breuninger could have

simply read the transcripts of the depositions rather than traveling to and attending them in person.

Jersey City therefore seeks a reduction of $33,862.50 (64.5 hours) from the Breuninger & Fellman

lodestar.

5. Time Spent on Unnecessary Depositions

Jersey City contends that three depositions taken across the two litigations were

unnecessary and that the petitioning attorneys’ lodestars should be reduced by the number of hours

devoted to those depositions.

2853384.1 116597-103871

Specifically, Jersey City contends that the depositions of City Council President Mariano

Vega and City Councilman Peter Brennan were unnecessary in proving Ms. Montone’s retaliation

case because the City Council had no role in making promotions within the police department or

in appointing the Police Chief. Jersey City therefore contends that Manshel Law’s lodestar should

be reduced by 10.4 hours ($5,333.34) for time that Attorney Manshel devoted to preparing for and

attending those depositions.

Similarly, Jersey City contends that the deposition in the Astriab matter of Robert

Kakoleski, Jersey City’s assistant business administrator, was unnecessary because the same

relevant testimony could have been obtained from a witness who also served as an assistant

business administrator and was deposed the previous day. Jersey City therefore seeks a reduction

of 7.5 hours ($2,887.50) from the Breuninger & Fellman lodestar for time devoted to the

preparation for and attendance at that deposition.

6. Basic Legal Research Performed by Senior Attorneys

Jersey City objects to time spent by senior attorneys, specifically attorneys Manshel, Green,

and Breuninger, performing “basic legal research” on the ground that the higher rates that they are

charging reflect a knowledge of the pertinent area of the law and thus that such “basic” research

should not have been necessary. On this basis, Jersey City seeks a reduction of approximately

29.92 hours ($14,275.00) from Manshel Law’s lodestar, 5.22 hours ($2,766.60) from the Green

Savits lodestar, and .6 hours ($315) from the Breuninger & Fellman lodestar

7. Attorneys Performing Administrative Tasks

Jersey City objects to numerous time entries for tasks that it characterizes as

“administrative.” Most of the purportedly “administrative” tasks identified by Jersey City are for

drafting of cover letters and other simple documents. In addition, Jersey City identified several

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instances where Attorney Manshel billed time for electronically filing documents with the Court.

For these allegedly administrative tasks, Jersey City seeks reductions in the petitioning attorneys’

fee applications as follows: Manshel Law -- 36.58 hours ($18,292.30); Green Savits -- .5 hours

($265); and Breuninger & Fellman -- 45.42 hours ($18,971.20).

8. Block Billing

Jersey City objects to the petitioning attorneys’ use of block billing and contends that their

lodestars should be reduced by the amount of time for block-billed entries. On this basis, Jersey

City seeks the following reductions from the petitioning firm’s lodestars: Manshel Law -- 34.17

hours ($17,085) and Breuninger & Fellman -- 42.3 hours ($16,320).

9. Excessive Inter- and Intra-Office Communications.

Jersey City contends that the petitioning attorneys engaged in excessive inter- and intra-

office communications. On this basis Jersey City seeks the following reductions in the petitioning

firm’s lodestars: Green Savits — 56.43 hours ($29,907.90) and Breuninger & Fellman — 116.48

hours ($50,160.80).

10. Vague Time Entries

Jersey City contends that several of the petitioning attorneys’ time entries are so vague that

it is impossible to determine whether the amount of time devoted was reasonable or whether the

service was productive or redundant. On this ground, Jersey City asks that several of the entries

for Attorneys Green (13.2 hours), Manshel (22.83 hours), Fellman (4 hours), and Ramalho (5

hours) be reduced by a percentage that I find appropriate.

11. Excessive Time on Specific Tasks

Jersey City challenges several hours of Attorney Manshel’s time on various tasks, claiming

that she spent too much time on these tasks. Specifically, Jersey City contends that the time spent

by Attorney Manshel’s on the following tasks was excessive and should be reduced:

2853384.1 116597-103871

Preparing Ms. Montone for deposition 23.83 $11,916.68

Preparing for Third Circuit argument 35.23 $17,625.00

Preparing for Appellate Division argument 42.08 $21,041.68

Razzoli matter’ $291.68

Jersey City also argues that reductions should be made to reflect the plaintiffs’ limited

success. Specifically, Jersey City contends that because the plaintiffs did not prevail on their

claims against three individual defendants,’ they should not be compensated for services relating

solely to those claims. On this basis, Jersey City seeks a reduction of $1,060 (2 hours) from the

Green Savits firm’s fee lodestar and $36,065 (80.9 hours) from the Breuninger & Fellman lodestar.

Jersey City also argues that the fee request sought by Ms. Montone’s attorneys is

disproportionate to the ultimate relief won on behalf of Ms. Montone, noting that Ms. Montone’s

attorneys collectively seek more than $3.5 million in fees when they won a verdict of just

$276,834.00. Recognizing that courts are not supposed to maintain any specific ratio between the

fee award and the relief obtained, Jersey City does not propose a specific reduction, but urges that

the disproportionality be considered when assessing Ms. Montone’s attorneys’ fee applications.

Jersey City does not contend that the Breuninger & Fellman fee application is disproportionate to

the success achieved by that firm.

* The record indicates that the Razzoli matter was another political-retaliation case against Jersey City. Attorney

Manshel devoted a de minimis amount of time to communicating with counsel in that case, reviewing the pleadings,

and preparing an affidavit for Ms. Montone for use in the Razzo/i matter.

‘ The three individual defendants are Jerramiah Healy, Robert Troy, and Brian O’Reilly. The plaintiffs dismissed

their claims against O’Reilly prior to trial. Because the jury’s verdict was indecisive as to Healy and Troy, a new

trial was granted as to them.

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2853384.1 116597-103871

Regarding the petitioning attorneys’ claims for a contingency enhancement, Jersey City

contends that no more than a 35% enhancement is appropriate. Jersey City thus does not oppose

the enhancement sought by Breuninger & Fellman, but seeks to limit the enhancements to the

Manshel Law and Green Savits fee applications to just 35% of the pre-verdict lodestar.

Finally, Jersey City challenges petitioning attorneys’ requests for reimbursement of

expenses largely because some of the descriptions of the expenses were inadequate. Jersey City

also objects to expenses related to services that were not appropriate in the first place, such as

second-chair counsel’s travel expenses to and from the courthouse.

ANALYSIS

When considering a fee application, the court typically is obliged to “go line, by line, by

line through the billing records supporting the fee request.” Interfaith Cmty. Org. v. Honeywell

Inc., 426 F.3d 694, 713 (3d Cir. 2005). During oral argument on the fee application, counsel

for Jersey City advised the Special Master that such a comprehensive review was not desired in

this matter and that the Special Master’s review should be limited to the issues raised in Jersey

City’s opposition. Thus, this opinion will address only the objections raised in Jersey City’s

opposition.

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-27.1, the New Jersey Civil

Rights Act, N.J.S.A. 10:6-2f, and the federal Civil Rights Act of 1981, 42 U.S.C. §1988(b), each

allow the court to award a “reasonable attorney’s fee” to the “‘prevailing party.” Jersey City

concedes that all the plaintiffs are “prevailing” parties and that they are entitled to a “reasonable”

attorney’s fee. Opp. Brf. at 1. Thus, the issue for resolution is what amount of fees are reasonable

in the complicated circumstances of these matters.

I. Enhancement

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2853384.1 116597-103871

As mentioned above, the three petitioning law firms seek varying enhancements of their

pre-verdict lodestars to account for the risk that each of them undertook in prosecuting the claims

of their respective clients. Manshel Law seeks an enhancement of 55% of its pre-verdict lodestar;

Green Savits a 50% enhancement; and Breuninger & Fellman a 35% enhancement. Jersey City

contends that the enhancement should be 35% for all firms.

In Rendine, the New Jersey Supreme Court, seeking to “sharply discourage[e] collateral

litigation of ‘reasonable fee’ issues,” 141 N.J. at 317, established standards for determining

appropriate fee awards in fee-shifting cases. Regarding the degree of enhancement, the Rendine

Court offered the following, particularly specific and instructive, guidance: ‘contingency

enhancements in fee-shifting cases ordinarily should range between five and fifty [50%] percent

of the lodestar fee with the enhancement in typical contingency cases ranging between twenty and

thirty-five percent of the lodestar.” Jd. at 343.

Manshel Law is thus seeking an enhancement outside the “ordinary” range and well beyond

what is “typical.” Manshel Law seeks to justify the extraordinary enhancement by identifying

certain heightened risks with Montone’s case. Attorney Manshel contends that “public entities are

notoriously difficult opponents in civil rights litigation” because they are not as likely as private

litigants to settle. Declaration of Lisa Manshel in Support of Plaintiff Valerie Montone’s Motion

for Attorney’s Fees, Costs, and Post-Judgment Interest (““Manshel Decl.”) at 932. She also

contends that ‘‘[e]mployment and civil rights cases present a true and serious risk of outright loss

and total nonpayment,” Manshel Decl. 935, and that there was “a likelihood of low damages

recovery.” Manshel Decl. 944.

None of these supposed enhanced risks justify the extraordinary enhancement sought by

Manshel Law. The fact that Jersey City, as a public entity, was not interested in settling is of no

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moment; since, as Manshel Law acknowledges in its Reply Brief, the risk that animates and

justifies a contingency enhancement is “the risk of losing,” not the risk that a plaintiff will be

unable to avoid a trial with an early settlement. The fact that employment and civil rights cases

may pose a risk of “outright loss and total nonpayment” is to say nothing beyond what Jersey City

has already acknowledged: that some enhancement to account for that risk is appropriate. All

cases have the risk of “outright loss and total nonpayment.” In fact, Rendine was an employment

case, and the New Jersey Supreme Court awarded an enhancement of just 33%. Thus, the

suggestion implicit in Manshel Law’s argument—that all employment and civil rights cases are

entitled to enhancements in the upper range (or beyond) of what is mentioned in Rendine— is

belied by Rendine itself. Finally, the fact that Montone’s ultimate damages are limited is not

especially significant since a prevailing party becomes entitled to a reasonable attorney’s fees upon

prevailing, regardless of the size of the award.

Notwithstanding the foregoing, the extraordinarily complicated pretrial procedural

maneuverings in Montone, involving two separate summary judgment motions in two separate

trial courts and two separate appeals in two separate appellate courts to reverse them, required

Manshel Law to devote an equally extraordinary amount of time to vindicate Ms. Montone’s

rights. To invest so much time into a case when a favorable outcome was not guaranteed creates

a level of risk that does not exist in the typical case. And none of the procedural complexity was

of Ms. Montone’s doing. Therefore an enhancement of 40%, which is in the upper range

sanctioned by Rendine, is appropriate for Manshel Law’s fee application.

As for the Green Savits firm, it did not appear for Ms. Montone until trial was imminent.

It therefore did not have to invest more than a decade of work into the case, as Manshel Law did.

Consequently, the Green Savits firm did not take on a level risk beyond what is seen in a typical

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2853384.1 116597-10387]

employment/civil rights case. Therefore an enhancement of 35%, which Jersey City acknowledges

is appropriate, shall be applied to the Green Savits firm’s pre-verdict lodestar.

As already mentioned, Breuninger & Fellman requested a 35% enhancement, which was

not opposed by Jersey City. Therefore a 35% enhancement will be applied to the Breuninger &

Fellman pre-verdict lodestar.

Il. Reasonable Rates

Under Rendine, when calculating an attorney’s lodestar, a “reasonable” rate reflecting the

“prevailing market rates in the relevant community’” must be used. 141 N.J. at 337 (quoting Rode

v. Dellaciprete, 892 F.2d 1177, 1183 (3d Cir. 1990)). While a court is obliged to satisfy itself that

the petitioning attorneys’ proposed rates are ‘‘fair, realistic, and accurate,’’ Rendine also instructs

courts not to engage in an “unnecessarily complex or protracted” process to determine what is a

reasonable rate. Rendine, 141 N.J. at 337.

The petitioning parties bear the burden of “‘submit[ting] evidence supporting the . . . rates

claimed.’” Seigelstein v. Shrewsbury Motors, Inc., _ N.J. Super. _, A-3801-18T2, 2020 WL

4342772 at *6 (App. Div. July 29, 2020) (quoting Rode, 892 F.3d at 1183). Once such evidence

is submitted by the petitioning attorney, the opposing party must “challenge, by affidavit or brief

with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee.”

Seigelstein, 2020 WL 4342772 at *6 (quoting Rode 892 F.3d at 1183).

The rates sought for each of the petitioning attorneys, as well as each attorney’s experience

level, are as follows:

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To meet their burdens, each of the petitioning attorneys submitted sworn statements from

numerous New Jersey attorneys, each with decades of experience, to establish that the petitioning

attorneys proposed rates reflect prevailing market rates. In particular, Manshel Law and Green

Savits submitted declarations and certifications from six different New Jersey attorneys,’ and

Breuninger & Fellman submitted declarations from four New Jersey attorneys.°

Jersey City did not offer any opposing sworn statements from other counsel to show that

the rates sought by the petitioning attorneys are unreasonable. Instead, Jersey City argued that the

attorneys providing the supporting statements had more experience than the petitioning attorneys.

But that is not true in all instances and when it was the case the petitioning attorney’s requested

rate was generally less than the rate of the more senior attorney. Jersey City also argues that the

rates of the petitioning attorneys and those of the supporting attorneys had never been approved

by the court. Again, that is not true in all instances, but it is also not especially probative since the

5 See Declarations of Patricia A. Barasch, Esq; Thaddeus P. Mikulski, Esq.; Richard J. Murray, Esq; and Alan H.

Schorr, Esq.; and Certifications of Bruce Atkins, Esq. and Christopher Lenzo, Esq.

® See Declarations of Gary Roth, Esq,; Claudia Reis, Esq.; Alan Schorr, Esq.; and Elizabeth Zuckerman, Esq.

2853384.1 116597-103871

fact that there may not be a recent decision approving an attorney’s current rate is not telling of

whether the rate reflects the prevailing rate in the relevant market at the time of the petition.

Based on the foregoing, the preponderance of the evidence supports the rates requested by

the petitioning attorneys. Those rates are therefore approved.

II. Reasonable Hours

Rendine requires that hours that “‘are not reasonably expended,’” because “‘they are

excessive, redundant, or otherwise unnecessary’” be excluded from the calculation of the lodestar.

141 N.J. at 335 (quoting Rode, 892 F.2d at 1183). As mentioned above, Jersey City has identified

several categories of time entries that it contends are unreasonable and thus should be excluded

entirely or reduced. Each category will be discussed.

1. Redundant Work Created by Appearance of New Trial Counsel on Eve of Trial.

It is not per se unreasonable to retain two firms to represent a litigant. Chaaban v. Criscito,

Case No. 08-1567 (SDW), 2013 WL 1737689 at *14 (D.N.J. Apr. 3, 2013) (declining to reject

time of second law firm in determining fee award). Moreover, because “‘careful preparation often

requires collaboration and rehearsal,’” it is often reasonable for different attorneys to engage in

“similar tasks.” Planned Parenthood v. Attorney General, 297 F.3d 253, 272 (3d Cir. 2002)

(internal quotations omitted). That said, time of multiple attorneys representing the same litigants

that is ultimately “wasteful” should be excluded. /d.

Jersey City objects to Attorney Green’s time reviewing deposition transcripts and similar

documents in preparation for trial. As trial counsel, reviewing those materials was unquestionably

necessary and is therefore properly included in the Green Savits lodestar. Jersey City also seeks

to exclude Attorney Manshel’s time for bringing Attorney Green up to speed, but that work is the

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typical type of “collaboration” that is required between co-counsel. Therefore no reduction is

appropriate because of Attorney Green’s late appearance in the case.

2. Redundant Work Performed by Breuninger & Fellman Associates

Jersey City contends that two Breuninger & Fellman associates, Attorneys Ramalho and

Chow, billed for doing the same work, but the time entries do not support that claim. The entries

indicate that Attorney Ramalho, who is more senior than Attorney Chow, reviewed and edited

work product, a summary of a deposition of witness in Montone, created by Attorney Chow and

that a year later Attorney Ramalho prepared another summary of the a deposition of the same

witness in Astriab. The challenged entries are therefore reasonable, and no reduction will be made.

3. Multiple Attorneys Appearing at Same Event

Jersey City argues that the time for Attorney LoGiudice’s attendance at four days of trial

should be excluded because she did not directly participate in any of the proceedings on those

days. There is nothing unreasonable with having an associate-level attorney assist as a “second

chair” at trial. Lanni v. New Jersey, 259 F.3d 146, 151 (2001) (“it would not have been

unreasonable to expect [trial counsel] to conduct the trial... .with the help ofan associate”). Indeed,

it happens regularly. Importantly, Attorney LoGiudice did not attend every day of the trial; instead

she attended only when important events were occurring such as jury selection, opening

statements, and the examinations of Ms. Montone. Attorney LoGiudice’s attendance at trial was

therefore reasonable, and her time will not be excluded from her firm’s lodestar.

Jersey City also seeks to exclude the time of Attorney Ramalho for attending numerous

events throughout the course of the litigation—court conferences, mediations, witness preparations

and trial—that were also attended by Attorney Fellman, arguing that Attorney Ramalho’s

attendance at those events was duplicative and unnecessary. As already mentioned, it is not

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unreasonable for lead trial counsel to be supported by an associate-level attorney. Moreover,

Attorney Fellman explains in her declaration that Attorney Ramalho, who prepared numerous

briefs, motions, pre-trial orders, and other documents, developed intimate and deep knowledge of

the facts of the case and that her participation at these events was therefore necessary and

productive. Attorney Ramalho’s attendance at the noted events was therefore reasonable, and none

of her time will be excluded.

Finally, Jersey City objects to Attorney Chow’s attendance at four days of trial after the

close of evidence when the charge conference, summations, and jury deliberations were conducted.

The record indicates that Attorney Chow throughout the trial assisted with exhibits and performed

other administrative duties, including during the charge conference and summations. He was

present during jury deliberations to address any issues that might arise, including preparing

portions of trial transcript for the jury’s consideration. Importantly, given the nature of the services

that Attorney Chow performed during these days of the trial, Breuninger & Fellman are seeking

compensation at a paralegal rate of $150 per hour. While the attendance of three attorneys at trial

would often be unreasonable, Attorney Chow was essentially performing a paralegal function and

his firm is seeking compensation as such. His attendance during the last days of the trial was

therefore reasonable.

4. Astriab’s Counsel’s Off-the-Record Attendance at Depositions.

Breuninger & Fellman justify the off-the-record presence of Attorney Breuninger at nine

depositions in the Montone matter by claiming that her presence was necessary to protect the

interests of the firm’s clients, i.e. the Astriab plaintiffs, and that her attendance allowed her to

assess the demeanors of the witnesses, which allowed her firm to avoid re-deposing some of the

witnesses in the Astriab matter.

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These explanations do not fully justify Attorney Breuninger’s attendance at these

depositions. Because Attorney Breuninger was not “on the record,” it is unclear what she could

have done in real time during the depositions to protect her clients’ interests. Also, while assessing

a witness’s demeanor is of course an important and valuable exercise, it was not necessary for

Attorney Breuninger to attend a full day of each deposition, some of which lasted nine hours, to

make such an assessment. Observing for a portion of the depositions would have sufficed.

Therefore half of Attorney Breuninger’s time for attending the Montone depositions (32.25

hours) will be excluded from the Breuninger & Fellman lodestar calculation.

5. Time Spent on Unnecessary Depositions

Attorney Manshel has provided a valid justification for deposing City Council President

Vega and City Councilman Brennan, namely that many “witnesses attested to material

conversations with Vega and Brennan.” Thus, it seems to have been a reasonable decision at the

time to take the depositions. The fact that the testimony was not used later in the proceedings does

not mean that counsel should not be compensated for the time devoted to the depositions. Blum v.

Witco Chem. Corp., 829 F.2d 367, 378 (3d Cir. 1987) (‘‘failure to use depositions is insufficient to

warrant a fee reduction”). Moreover, Attorney Manshel in fact used the deposition testimony in

opposition to summary judgment and on appeal. Thus, there is no reason to reduce Attorney

Manshel’s time for attending the depositions.

Similarly, there is no basis for excluding the time of Attorney Nugent for deposing Mr.

Kakoleski because the same relevant testimony could have been obtained from a witness who was

deposed the previous day. It is not reasonable to expect an adverse party to know precisely what

information a witness will testify about or will have personal knowledge of; so the fact that another

witness was able to testify about the same information is not a valid basis for excluding time from

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a lodestar calculation. Indeed, in most litigations there are several witnesses who have personal

knowledge of the same events. That does not mean that it is unnecessary or unproductive to depose

more than one of them. Indeed, deposing more than one such witnesses may develop

inconsistencies in their testimonies which can be used later in the case. Also, Jersey City listed

Mr. Kakoleski as a witness in its Pre Trial Order; thus, it cannot complain that the Astriab plaintiffs

took his deposition.

6. Basic Legal Research Performed by Senior Attorneys

There is nothing inherently unreasonable with a senior attorney performing legal research.

Sometimes the need for an immediate answer requires that the senior attorney conduct the research

rather than taking the time to delegate the assignment to a more junior attorney, and sometimes,

when the research is not particularly complex, it is most efficient for the senior attorney to conduct

the research herself. Therefore, the relatively modest amount of research performed by Attorneys

Breuninger and Green (.6 and 5.22 hours, respectively) is reasonable.

Attorney Manshel’s 29.92 hours of research requires more consideration. Some of her time

entries reflect lengthy research efforts on basic areas of the law. For instance, on November 2,

2010, Attorney Manshel spent 3.5 hours researching “summary judgment, section 1983 cases on

qualified immunity, establishing clear case law on the various 1* and 14" [Amendments’] rights

asserted by [Plaintiff], and drafting memo to file,” and on July 19, 2011 she spent 3.25 hours

“collecting and initial broad-based review of Fed. R. Appellate Procedures, Local Rules App.

Procedure, Third Circuit website and all forms.” Such research is the type that should be delegated

to junior attorneys who bill at a lower rate. While Attorney Manshel is a solo practitioner and thus

does not have a junior attorney to delegate such tasks to, she should not be compensated at a senior

attorney’s rate for performing such work. /n re Fine Paper Antitrust Litig., 751 F.2d 562, 583 (3d

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Cir. 1984) (“the court may find that the reasonable rate of compensation differs for different

activities”) (internal quotations omitted). The undersigned will therefore apply a rate of $300 to

15 hours of Attorney Manshel’s lodestar.

7. Attorneys Performing Administrative Tasks

Much of the time that Jersey City characterizes as “administrative” appears to be more

substantial. Much of the supposedly “administrative” time involved drafting letters to the court

and engaging on conferences with court personnel. It is reasonable for an attorney to engage in

such activities. Also, it is important to note that most such time entries are very short, usually .1

or .2 hours, so the tasks were performed highly efficiently, probably due to the fact that they were

being performed by experienced attorneys. Therefore, with one exception, the so-called

“administrative” activities are reasonable and will not be excluded when calculating the petitioning

attorneys’ lodestars.

The exception relates to Attorney Manshel’s considerable time for e-filing documents. It

appears that Attorney Manshel personally e-filed most if not all of her court submissions.

Sometimes it took her several hours to complete the task. For instance, on December 17, 2010 she

billed three hours for “E-Filing (into 12/18)” and on January 20, 2012 she devoted 2.25 hours to

“E-Filing and emailing copies to defense counsel, appellate papers.” While it may have been

necessary for Attorney Manshel, as a solo practitioner, to perform these tasks, for reasons already

discussed in connection with her legal research time, it does not follow that she should be

compensated for those services at the rate of a senior attorney. The record reflects that at least 12

hours of Attorney Manshel’s time was devoted to e-filing documents. When calculating her

lodestar, a rate of $150 per hour will be applied for that time.

8. Block Billing

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Jersey City acknowledges that there is nothing inherently wrong with block billing and that

it is only a concern when it results in an unacceptable level of vagueness. Opp. Brf. at 29-30. The

time entries that Jersey City has identified as improper block billing, however, are generally rather

precise and detailed (if lengthy) descriptions of the services performed. Therefore, no reductions

will be made for block billing.

9. Excessive Inter- and Intra-office Communications.

As mentioned above, collaboration among counsel representing the same litigants or

litigants with similar interests is not unreasonable. Indeed, Jersey City acknowledges as much and

argues that communications among attorneys can be excessive only when it is “constant.” Opp.

Brf. at 34. The attorney conferences identified by Jersey City in its opposition cannot be

characterized as “constant.” Except when important events were occurring, the conferences ere

typically few and far between. And, while some attorneys engaged in a large number of inter-

office conferences throughout the course of the litigations, the total number cannot be considered

excessive given that the litigation has endured for nearly 15 years.

Jersey City in particular challenges the conferences between Attorneys Green and Manshel,

which were in service of Attorney’s Green’s preparation for trial. For reasons already discussed,

such getting-up-to-speed time is not unreasonable. Indeed, as Attorney Green notes in his

Declaration, it was more efficient to confer with Attorney Manshel than to read all the pleadings,

deposition transcripts, etc. as he prepared for trial. Reply Declaration of Jon W. Green in Further

Support of Plaintiff Valerie Montone’s Motion for Attorney’s Fees and Non-taxed Costs at 9925-

28.

No reductions will be made for conferences among plaintiffs’ counsel.

10. Vague Time Entries

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Rendine does not require extreme precision when a petitioning attorney describes the

activities for which the attorney is seeking compensation: 141 N.J. at 337 (“It is not necessary to

know . . . the precise activity to which each hour was devoted”) (internal quotations omitted).

What is required is “some fairly definite information as to the hours devoted to various general

activities, e.g. pretrial discovery, settlement negotiations. ..”” /d. Virtually all of the time entries

that Jersey City contends are too vague provide enough information to ascertain what general

litigation-related category of service they fall into. There are a few exceptions, such as, for

instance, an entry that reads “review document, fax.” But the number of such vague entries and

the amount of time they correspond to are de minimis. So no reduction will be made for vague

time entries.

11. Excessive Time Specific Tasks

Attorney Manshel’s nearly 24 hours preparing Ms. Montone for her deposition is not

unreasonably excessive. As Jersey City acknowledges the deposition spanned three days and there

was nearly a year gap between sessions. Under those circumstances Attorney Manshel’s

preparation time is not excessive.

Regarding Jersey City’s challenge to the number of hours Attorney Manshel devoted to her

preparation for the argument before the Third Circuit Court of Appeals (35.25 hours) and the New

Jersey Appellate Division (42.1 hours), the Third Circuit has indicated that 24 hours preparing for

appellate argument on a “single issue” is reasonable. Reviewing the opinions of the Third Circuit

and Appellate Division, it is clear that neither involved simply a “single issue.” Thus, while

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Attorney Manshel’s time preparing for the appeals is considerable, it is not unreasonably

excessive, Thus, no reduction will be made to her firm’s lodestar calculation.’

IV. Proportionality

Finally, as to the fee application by Montone’s attorneys, Jersey City notes the disparity

between the judgment obtained in the amount of $276,834 and the fees sought, which collectively

exceed $3.6 million. While the disparity is troubling, it is clear that Montone’s counsel bears little

responsibility for the high fees. As discussed above, because of the dismissal of the federal causes

of action and the remanding of the state-law causes of action, summary judgments that were

ultimately reversed, Montone’s attorneys were required to litigate in two separate courts and

successfully prosecute two appeals in two separate courts, all before conducting a jury trial. Given

the procedural complexity of the case, running up a large lodestar was unavoidable. To reduce

Ms. Montone’s attorneys’ award under these circumstances would unfairly punish them for having

the resolve to appeal their client’s cause and ensure justice was done.

IV. Costs

The undersigned has reviewed the costs for which each set of attorneys is seeking

reimbursement. Those costs are properly documented and were reasonable and necessary for the

counsel to perform their tasks. The petitioning attorney’s application for reimbursement of costs

are therefore granted in full.

7 As mentioned above, Jersey City 35 minutes of Attorney Manshel’s time in connection with the Razzo/i matter,

There is a sufficient connection between Montone’s claims and those in Razzoli to justify Attorney Manshel’s

including a de minimis amount of time relating to the Razzoli matter in her lodestar calculation.

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CONCLUSION

Manshel Law

The lodestar calculation of Manshel Law will be adjusted as follows: a rate of $300/hr will

applied to 15 hours of Attorney Manshel’s time and a rate of $150/hr will be applied to another 12

hours of her time. A 40% enhancement will be applied to Manshel Law’s pre-verdict lodestar.

This results in a fee award of $2,726,046.24, calculated as follows

Reduced pre-verdict lodestar: $1,764,050

Pre-verdict lodestar with enhancement of 40%: $2,469,670

Post-verdict lodestar: $256,376.24

Total enhanced fee award: $2,726,046.24

Manshel Law’s application for costs is approved in its entirety in the amount of

$121,642.94.

Green Savits

There are no adjustments to the Green Savits lodestar calculation, but its pre-verdict

lodestar will be enhanced by 35%, rather than the 50% enhancement it sought. This results in a

fee award of $597,855.08, calculated as follows:

Pre-verdict lodestar: $346,977.95

Pre-verdict lodestar with enhancement of 35%: $468,420.23

Post-verdict lodestar: $129,434.85

Total enhanced fee award: $597,855.08

Green Savits’s application for costs is approved in its entirety in the amount of $3,134.91.

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Breuninger & Fellman

$16,931.25, representing 32.25 hours of Attorney Breuninger’s time billed at $525 per

hour, will be deducted from Breuninger & Fellman’s pre-verdict lodestar, which Breuninger &

Fellman represented was $969,808.30. An enhancement of 35% will be applied to its reduced pre-

verdict lodestar. This results in a fee award of $1,410,847.52, calculated as follows:

Reduced pre-verdict lodestar: 952,877.05

Pre-verdict lodestar with eiimaoanent of 35%: $1,286,384.02

Post-verdict lodestar: $124,463.50

Total enhanced fee award: $1,410,847.52

Breuninger & Fellman’s application for cost is approved in its entirety in the amount of

$114,448.41.

a 3

Jdmes R. Zazzaht

Special Master

Dated: October 1, 2020

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