Agudath Israel of America v. Hochul

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AGUDATH ISRAEL OF AMERICA, AGUDATH :

ISRAEL OF KEW GARDEN HILLS, :

AGUDATH ISRAEL OF MADISON, AGUDATH :

ISRAEL OF BAYSWATER, RABBI YISROEL :

REISMAN, RABBI MENACHEM FEIFER, : MEMORANDUM AND ORDER

STEVEN SAPHIRSTEIN, :

: No. 20-cv-04834 (KAM)(RML)

Plaintiffs, :

:

-against- :

:

KATHY HOCHUL, Governor of the :

State of New York in her official :

capacity, x

Defendant.

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MATSUMOTO, United States District Judge:

Plaintiffs Agudath Israel of America, Agudath Israel of

Kew Garden Hills, Agudath Israel of Madison, Agudath Israel of

Bayswater, Rabbi Yisroel Reisman, Rabbi Menachem Feifer, and

Steven Saphirstein (together, “Plaintiffs”) move, pursuant to 42

U.S.C. § 1988, to recover attorneys’ fees in the amount of

$921,862.50 and costs in the amount of $13,420.70 to compensate

their attorneys for the efforts and costs expended from the

inception of this litigation on October 6, 2020 through July 16,

2021, the date on which Plaintiffs’ application for fees was fully-

briefed. For the reasons set below, the Court grants in part and

denies in part Plaintiffs’ application, awarding fees in the amount

of $368,839.44 for Troutman Pepper Hamilton Sanders LLP and

$77,682.50 for the Becket Fund for Religious Liberty. The Court

denies the costs claimed by Plaintiffs without prejudice for lack

of documentation.

BACKGROUND

I. Procedural History

On October 8, 2020, Plaintiffs commenced this § 1983

action challenging Defendant’s Executive Order No. 202.68 (“EO

202.68” or the “Order”), issued on October 6, 2020, that placed

certain fixed and percentage capacity restrictions on houses of

worship in the areas of the State that were deemed “red” and

“yellow” zones based on the severity of COVID-19 cluster outbreaks

in Kings, Queens, Broome, Orange, and Rockland Counties.1 (ECF

No. 1, Complaint.) That same day, Plaintiffs also moved for a

temporary restraining order and a preliminary injunction against

the enforcement of the Order, noting the commencement of a Jewish

holiday at sundown the following day. (ECF No. 2, Emergency Motion

for Order to Show Cause for Temporary Restraining Order and

Preliminary Injunction.) The Court ordered Defendant respond by

11:00 A.M. on October 9, and Plaintiffs to file any reply two hours

thereafter. (ECF No. 6, Order to Show Cause.) On the afternoon

of October 9, 2020, the Court held a hearing during which it denied

the motion for injunctive relief based on, inter alia, Plaintiffs’

1 In red zones, gatherings in houses of worship were limited to 10 people or

25% of maximum capacity, whichever was lower. (ECF No. 56, Defendant’s

Memorandum of Law in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and

Costs (“Def. Opp.”), at 4.) In orange zones, gatherings in houses of worship

were limited to 25 people or 33% of maximum capacity, whichever was lower. Id.

failure to show a likelihood of success on their claim. (Minute

Order entered October 9, 2020.)

On October 19, 2020, Plaintiffs appealed the denial of

their motion for a preliminary injunction to the Second Circuit

and moved, two days later, for an emergency injunction pending

appeal and to expedite the appeal. (ECF No. 16, Notice of Appeal;

ECF No. 52, Plaintiffs’ Memorandum of Law in Support of Motion for

Attorneys’ Fees (“Pls. Br.”), at 5.) On November 9, the Second

Circuit granted the motion to expedite but denied the motion for

an emergency injunction because Plaintiffs had not first sought

that relief from this Court. Agudath Israel of Am. v. Cuomo,

979 F.3d 177 (2d Cir. 2020).

On November 16, 2020, Plaintiffs filed an emergency

application for writ of injunction with Justice Breyer of the

United States Supreme Court, pursuant to 28 U.S.C. § 1651(a), to

enjoin Defendant from enforcing EO 202.68’s capacity restrictions

on houses of worship pending the disposition of the appeal in the

Second Circuit. (Pls. Br. at 5.)

On November 25, 2020, the Supreme Court addressed

Plaintiffs’ application in tandem with Roman Catholic Diocese of

Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), another § 1983 action

filed in this District challenging only the fixed capacity

restrictions of EO 202.68, noting that the two cases “present[ed]

the same issue.” Id. at 65. The Supreme Court enjoined the

enforcement of the fixed capacity limits pending the Second Circuit

appeals, having found that “[t]he applicants have clearly

established their entitlement to relief” by showing that “their

First Amendment claims are likely to prevail,” “denying them relief

would lead to irreparable injury,” and “granting relief would not

harm the public interest.” Id. at 66.

In discussing the merits of the First Amendment claims

in the two cases, the Supreme Court held that the fixed occupancy

restrictions must satisfy strict scrutiny, as they “single out

houses of worship for especially harsh treatment” and therefore

are not regulations of general applicability. Id. The Supreme

Court found that “[s]temming the spread of COVID-19 is

unquestionably a compelling interest,” but the restrictions were

not narrowly tailored, as there had been no evidence that the

plaintiffs in Agudath and Diocese contributed to the spread of

COVID-19 and “there are many other less restrictive rules that

could [have been] adopted to minimize the risk to those attending

religious services.” Id. at 67.

On December 28, 2020, the Second Circuit issued a joint

decision in Agudath and Diocese, reversing in part and vacating in

part the respective district court decisions that denied

plaintiffs’ motions for a preliminary injunction. Agudath Israel

of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020). As to the fixed

capacity limitations, the Second Circuit reversed and remanded

both cases to the district courts “with directions to grant a

preliminary injunction against enforcement of those limits.” Id.

at 637. As to the percentage capacity limitations, which were

challenged only by the Agudath plaintiffs in this action, the

Circuit Court vacated “to the extent that [the Court’s decision]

denied a preliminary injunction against [their] enforcement . . .

on houses of worship” and remanded, directing the Court to apply

strict scrutiny in the analysis of likelihood of success on the

merits. Id.

On remand, this Court entered a preliminary injunction

against the fixed capacity limits. (Order entered January 19,

2021.) On January 26, 2021, the Court scheduled an evidentiary

hearing for February 8 on Plaintiffs’ motion to enjoin the

percentage capacity limits and directed the parties to submit

witness lists, exhibit lists, and pre-hearing memoranda by

February 4. (Minute Order entered January 26, 2021.)

On February 2, 2021, Defendant filed a letter motion

requesting that the Court cancel the February 8 hearing because

Defendant did not oppose the entry of a preliminary injunction

against the enforcement of EO 202.68’s percentage capacity limits

in red and orange zones which “obviates the need for the . . .

hearing.” (ECF No. 31, Defendant’s Motion to Cancel Preliminary

Injunction Hearing and Related Briefing.) That same day, the Court

denied Defendant’s motion to cancel the February 8 hearing on the

ground that the terms of Defendant’s consented injunction were

ambiguous. (Order entered February 2, 2021.) In that same Order,

the Court directed the parties to file a joint proposed order

granting a preliminary or permanent injunction. Id.

On February 4, 2021, Plaintiffs filed their witness

list, exhibit list, and pre-hearing memorandum, as ordered by the

Court during the January 26, 2021 status conference. (ECF No. 35,

Plaintiffs’ Pre-Hearing Memorandum of Law; ECF No. 36, Plaintiffs’

Witness List; ECF No. 37, Plaintiffs’ Exhibit List.) Defendant

did not file any of the ordered documents. Instead, Defendant

filed a letter motion for reconsideration of the Court’s denial of

his request to cancel the hearing and laid out the terms of his

proposed preliminary injunction in the letter motion. (ECF No.

34, Defendant’s Motion for Reconsideration of Motion to Cancel

Preliminary Injunction Hearing and Related Briefing.) The Court

held a status conference on February 5, 2021 to discuss Defendant’s

proposed injunction, during which it notified the parties that the

February 8 evidentiary hearing was adjourned and that instead a

further status conference would be held to discuss the parties’

proposed injunction. (Minute Order entered February 5, 2021.)

The parties were directed to submit a joint proposed order granting

an injunction later that day. Id.

Between the February 5 and February 8 status

conferences, there were several letter motions filed by the parties

related to their disagreement over the terms of a joint proposed

order. (ECF Nos. 39, 41, and 43, Letters; ECF No. 39-1 Proposed

Order.) During the February 8, 2021 status conference, the Court

sought the parties’ views regarding a permanent injunction

enjoining Defendant from enforcing EO 202.68’s fixed and

percentage capacity limits on houses of worship. Pls. Br. at 9.

Plaintiffs favored a permanent injunction, but Defendant did not.

Id.

On February 9, the Court entered a permanent injunction

enjoining Defendant from enforcing the Order’s fixed and

percentage capacity restrictions on houses of worship in red and

orange zones in New York State and ordered that the injunction

“shall apply to Defendant and all officers, agents, or employees

responsible for enforcing Executive Order 202.68.” (Minute Order

entered February 9, 2021.) After the Court entered the permanent

injunction, the parties engaged in negotiations over Plaintiffs’

fees and costs, but despite several months of negotiations, the

parties were not able to reach an agreement. (Def. Opp. at 7.)

II. Amounts Sought

On June 25, 2021, Plaintiffs’ attorneys filed the

instant motion for attorneys’ fees. (ECF No. 51, Plaintiffs’

Motion for Attorneys’ Fees.) Plaintiffs seek a fee award of

$921,862.50, of which $748,732.50 relates to work performed by

Troutman Pepper Hamilton Sanders LLP (“Troutman”), and $173,130.00

relates to work performed by the Becket Fund for Religious Liberty

(“Becket”). (ECF No. 58, Supplemental Declaration of Avi Schick

(“Schick Supp. Decl.”) ¶ 4.) Troutman’s $748,732.50 fee request

reflects 1069.4 hours worked on this case, at requested hourly

billing rates for partners of $995 and $815, and for associates of

between $595 and $460. (Schick Supp. Decl. at 2.) The paralegal

who worked on the case seeks $275 per hour. Id. The requested

rates for Plaintiffs’ counsel are reflected in the chart below:

Attorney Rate

Avi Schick (Partner) $995

Misha Tseytlin (Partner) $815

Alex W. Smith (Associate) $595

Mary Grace W. Metcalfe (Associate) $595

Sean T. H. Dutton (Associate) $540

Kevin M. LeRoy (Associate) $540

Christopher J. Kelleher (Associate) $460

Sarah Harris-Finkel (Paralegal) $275

Id.

Becket’s $173,130.00 fee request reflects 152.2 hours

worked on this case, at requested hourly billing rates for

attorneys of between $1200 and $860. (ECF No. 55-1, Exhibit A to

Declaration of Mark L. Rienzi (“Rienzi Decl.”); ECF No. 55-2,

Exhibit B to Rienzi Decl.) Becket’s requested rates are reflected

in the chart below:

Attorney Rate

Mark Rienzi (President & CEO) $1200

Eric Rassbach (VP & Senior Counsel) $1200

Luke Goodrich (VP & Senior Counsel) $1000

Lori Windham (Senior Counsel) $1000

Daniel Blomberg (Senior Counsel) $860

Id.

Plaintiffs also seek an award of costs in the amount of

$13,420.70, “including expenses relating to court reporters,

filings, research, and printing, incurred in connection with this

action.” (ECF No. 54, Declaration of Avi Schick (“Schick Decl.”)

¶ 8.)

DISCUSSION

I. Plaintiffs are Entitled to Attorneys’ Fees and Costs

The Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988,2 authorized district courts to award reasonable

attorneys’ fees to prevailing parties in civil rights litigation.

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). “To qualify as a

prevailing party, a plaintiff must obtain at least some relief on

the merits of his claim.” Chabad Lubavitch of Litchfield Cnty.,

Inc. v. Litchfield Historic Dist. Comm’n, 934 F.3d 238, 243 (2d

Cir. 2019) (citing Farrar v. Hobby, 506 U.S. 103, 111 (1992))

(internal quotation mark omitted). There is no dispute that

Plaintiffs are prevailing parties within the meaning of Section

1988 and are thus entitled to a reasonable fee award. Plaintiffs,

who were granted the relief sought in its entirety, a permanent

injunction against the enforcement of EO 202.68’s capacity limits—

2 42 U.S.C. 1988(b) states, “In any action or proceeding to enforce a provision

of section[ ] . . . 1983 . . . the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable attorney’s fee as

part of the costs . . . .”

both fixed and percentage—on houses of worship in areas deemed red

and orange zones in New York State, are indisputably the prevailing

parties, a point not contested by Defendant. (See Def. Opp. at 1

(“Governor Cuomo does not dispute that Plaintiffs are prevailing

parties in this case and are therefore entitled to recover a

reasonable attorney’s fee pursuant to 42 U.S.C. § 1988(b).”).)

II. Reasonable Attorneys’ Fees

Once a district court determines that a party has

prevailed, it must determine and calculate a reasonable attorney’s

fee. District courts are given “considerable discretion in

determining what constitutes reasonable attorney’s fees in a given

case.” Barfield v. N.Y.C. Health and Hosp. Corp., 537 F.3d 132,

151 (2d Cir. 2008).

District courts in this Circuit use what is commonly

referred to as the “lodestar” method to calculate a presumptively

reasonable fee, which involves multiplying the number of hours

reasonably expended on the litigation by a reasonable hourly rate.

Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany

& Albany Cnty. Bd. of Elections, 522 F.3d 182, 183 (2d Cir. 2008).

“[A] district court may, in extraordinary circumstances, adjust

the presumptively reasonable fee when it ‘does not adequately take

into account a factor that may properly be considered in

determining a reasonable fee.’” Lilly v. City of N.Y., 934 F.3d

222, 230 (2d Cir. 2019) (citing Millea v. Metro-North R.R. Co.,

658 F.3d 154, 167 (2d Cir. 2011)).

A. Reasonable Hourly Rates

A reasonable hourly rate is “the rate a paying client

would be willing to pay,” “bear[ing] in mind that a reasonable

paying client wishes to spend the minimum necessary to litigate

the case effectively.” Arbor Hill, 522 F.3d at 190. “This rate

should be based on rates prevailing in the community for similar

services of lawyers of reasonably comparable skill, experience,

and reputation.” Lawton v. Success Acad. of Fort Greene, No. 15-

cv-7058(FB), 2021 WL 1394372, at *7 (E.D.N.Y. Jan. 3, 2021), report

and recommendation adopted, 2021 WL 911981 (E.D.N.Y. Mar. 10, 2021)

(citations omitted) (internal quotation marks omitted). “The

‘community’ is generally considered the district where the

district court sits.” Id. (citations omitted). In addition to

the prevailing district rates, the Second Circuit has advised

courts to consider the case-specific factors enumerated in Arbor

Hill and Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th

Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron,

489 U.S. 87, 92‒93 (1989).3 HomeAway.com, Inc. v. City of N.Y.,

3 The twelve Johnson factors are: (1) the time and labor required; (2) the

novelty and difficulty of the questions; (3) the level of skill required to

perform the legal service properly; (4) the preclusion of other employment by

the attorney due to acceptance of the case; (5) the attorney’s customary hourly

rate; (6) whether the fee is fixed or contingent; (7) time limitations imposed

by the client or the circumstances; (8) the amount involved in the case and the

results obtained; (9) the experience, reputation, and ability of the attorneys;

(10) the “undesirability” of the case; (11) the nature and length of the

523 F. Supp. 3d 573, 595 (S.D.N.Y. 2021). The Arbor Hill factors

are:

[T]he complexity and difficulty of the case, the

available expertise and capacity of the client’s other

counsel (if any), the resources required to prosecute

the case effectively (taking account of the resources

being marshaled on the other side but not endorsing

scorched earth tactics), the timing demands of the case,

whether an attorney might have interest (independent of

that of his client) in achieving the ends of the

litigation or might initiate the representation himself,

whether an attorney might have initially acted pro bono

(such that a client might be aware that the attorney

expected low or non-existent renumeration), and other

returns (such as reputation, etc.) that an attorney

might expect from the representation.

522 F.3d at 184.

“In recent § 1983 cases, courts in this District have

set reasonable hourly rates at approximately $300-$450 for

partners, $200-$325 for senior associates, $100-$200 for junior

associates, and $60-$100 for paralegals,” Anania v. United States,

No. 16-cv-3542(SJF), 2021 WL 76837, at *4 (E.D.N.Y. Jan. 8, 2021),

and “fees in complex cases . . . have ranged between $400-$600 per

hour for partners, $200-$400 per hour for associates and $75-100

per hour for paralegals.” Lawton, 2021 WL 1394372, at *8. “The

highest rates in this district are reserved for expert trial

professional relationship with the client; and (12) awards in similar cases.

Johnson, 488 F.2d at 717‒19.

attorneys with extensive experience before the federal bar, who

specialize in the practice of civil rights law and are recognized

by their peers as leaders and experts in their fields.” Scharff

v. Cnty. of Nassau, No. 10-cv-4208(DRH), 2016 WL 3166848, at *5

(E.D.N.Y. May 20, 2016) (citation omitted), report and

recommendation adopted, 2016 WL 3172798 (E.D.N.Y. June 6, 2016).

See, e.g., Centro de la Comunidad Hispana de Locust Valley v. Town

of Oyster Bay, No. 10-cv-2262(DRH), 2019 WL 2870721, at *10

(E.D.N.Y. June 18, 2019) (awarding $600 hourly rates to two

experienced civil rights attorneys with more than fifty years of

experience, who had litigated other First Amendment cases and

worked as law school professors), report and recommendation

adopted, 2019 WL 2869150 (E.D.N.Y. July 3, 2019).

The rates that Troutman seeks, $995 and $815 per hour

for the partners, $595, $540, and $460 per hour for the associates,

and $275 per hour for the paralegal, significantly exceed those

usually awarded in this District. Becket’s claimed hourly rates

for its attorneys, $1200, $1000, and $860, deviate even further

from this District’s prevailing rates for civil rights actions.4

Avi Schick, a partner at Troutman, describes his and the rest of

4 In fact, the rates awarded in the recent complex civil rights cases in this

District that Plaintiffs cite to as support for higher rates are nowhere near

the rates claimed by Plaintiffs’ counsel. See, e.g., Centro, 2019 WL 2870721,

at *10‒*11 (awarding $600 and $500 hourly rates); Lawton, 2021 WL 1394372, at

*8‒*10 (awarding hourly rates between $500 to $600 for senior attorneys and

between $300 to $350 for mid-level attorneys).

his team’s legal experience in a sworn declaration and provides

time sheets generally describing the work performed and time

expended by Troutman attorneys on this matter. (Schick Decl. ¶

13; ECF No. 54-1, Exhibit A to Schick Decl.; ECF No. 58-1, Exhibit

A to Schick Supp. Decl.) Likewise, Becket’s President and Chief

Executive Officer, Mark Rienzi, submitted a sworn declaration

describing his and the other Becket attorneys’ qualifications and

expertise. (Rienzi Decl. ¶¶ 11‒19). He also submitted the resumes

of the Becket attorneys as exhibits to his declaration. (ECF Nos.

55-4‒55-14, Exhibits D‒N to Rienzi Decl.) Mr. Rienzi, like Mr.

Schick, submitted time sheets describing the work performed and

time spent by the Becket attorneys on this matter. (ECF Nos. 55-

1‒55-3, Exhibits A‒C to Rienzi Decl.)

Defendant contends that these hourly rates are not

reasonable and argues that the Court should award rates no greater

than $450 for Troutman partners Schick and Tseytlin, and Becket

attorneys Rienzi and Rassbach; $325 for Troutman senior associates

Smith, Dutton, Metcalfe, and LeRoy, and Becket attorneys Goodrich,

Windham, and Blomberg; $200 for Troutman junior associate

Kelleher; and $100 for Troutman paralegal, Harris Finkel. (Def.

Opp. at 10.)

Although Plaintiffs’ counsel fail to provide the fee

agreement with their clients, Troutman counsel assert that their

requested hourly rates are their “customary hourly rates for

complex work.” (Pls. Br. at 21.) (See also Schick Decl. ¶ 5 (“The

fees requested in this motion are based on Troutman Pepper’s rates

charged to Plaintiffs in this matter, which are materially

identical to the rates Troutman Pepper customarily charges its

clients in relation to substantially similar matters in terms of

novelty and complexity.”).) Becket counsel similarly fail to

provide a fee agreement, however, Mr. Rienzi states in his

declaration that the hourly rates claimed by Becket are less than

the typical rates of experienced Supreme Court practitioners but

above the rates that are set forth in the “LSI Laffey Matrix.”

(Rienzi Decl. ¶ 44.) According to Mr. Rienzi, “Becket proposes

rates that are approximately 20% lower than what would be

reasonabl[e] for Supreme Court experts.” (Rienzi Decl. ¶ 46.)

Plaintiffs argue that counsel’s rates are reasonable,

“[c]onsidering the complete victory in this watershed case for

religious freedom that counsel delivered while operating under

immense time pressure and addressing complex, novel questions of

constitutional law during a national emergency.” (Pls. Br. at

21.) Plaintiffs correctly note that the case was “of national

importance,” entailed “emergency briefing and argument schedules,”

precluded some of its attorneys from working on other billable

matters, and was litigated against “vigorous opposition of

Defendant.” (Pls. Br. at 16, 18.) Additionally, Plaintiffs assert

that the novelty and complexity of the issues demanded counsel

highly experienced both in complex litigation and in “Free Exercise

and COVID-19 related challenges” and that Plaintiffs’ counsel

overcame “unfavorable case law” and pursued “what many considered

to be an ‘undesirab[le]’ position at the time.” Id. at 11, 18‒19

(citation omitted).

Here, the Johnson and Arbor factors cut both favorably

for and against Plaintiffs’ counsel. The Court agrees with

Plaintiffs that this was not a “garden variety” civil rights case

and, therefore, a relatively higher fee award is arguably

warranted. See Centro, 2019 WL 2870721, *6 (“[T]he complexity of

a matter will support an award at the high end of the district

spectrum”). Cf. Walker v. City of N.Y., No. 11-cv-314(CBA), 2015

WL 4568305, at *4 (E.D.N.Y. July 28, 2015) (“The straightforward

legal nature of the claims asserted here weighs in favor of an

award on the lowerend of the range.”). Other factors such as the

results obtained and their national impact, the demands of the

case, both in terms of time and resources, and the experience,

reputation, and ability of the attorneys, also weigh in Plaintiffs’

favor. See Barfield, 537 F.3d at 152 (“‘[T]he most critical

factor’ in a district court’s determination of what constitutes

reasonable attorney’s fees in a given case ‘is the degree of

success obtained’ by the plaintiff.”) (citing Farrar, 506 U.S. at

114); Heng Chan v. Sung Yue Tung Corp., No. 03-cv-6048(GEL), 2007

WL 1373118, at *3 (S.D.N.Y. May 8, 2007) (“it is appropriate to

award a relatively high hourly rate that reflects the institutional

resources that made it possible for these attorneys to take on the

case”).

Simultaneously, however, some factors militate against

fee rates greater than those typically awarded to civil rights

attorneys in this District of comparable experience and

reputation. First, some courts have observed that “a discount in

fees is appropriate insofar as the market rate for civil rights

litigation services is lower than the market rate for services

provided to high-profile corporate clients.” Heng Chan, 2007 WL

1373118, at *3. See also Pastre v. Weber, 800 F. Supp. 1120, 1125

(S.D.N.Y. 1991) (“we think there is force in defendant’s argument

that he should not be required to pay for legal services at the

rate Hughes Hubbard would charge to, say, General Motors or IBM

(should they be among its clients), but should be required to

compensate plaintiff only for what would have been charged by a

competent attorney specializing in civil rights litigation.”).

Additionally, it would be remiss of the Court to ignore

the non-monetary benefits, such as reputational enhancement, that

counsel may derive from its representation in this action. See

HomeAway.com, Inc., 523 F. Supp. 3d at 597 (“in a high-profile

case in which a firm’s victory may easily and profitably be

marketed to existing and potential clients, a client ‘might be

able to negotiate with [its] attorneys, using their desire to

obtain the reputational benefits that might accrue from being

associated with the case’”) (quoting Arbor Hill, 522 F.3d at 190);

Schwartz v. United States Drug Enf’t Admin., No. 13-cv-5004(CBA),

2019 WL 1299192, at *8 (E.D.N.Y. Mar. 1, 2019) (holding that the

defendant should not have to pay the rates the firm’s corporate

clients would pay, in part, because the case gave its young

associates opportunities like “participat[ing] in a Second Circuit

oral argument” that would “undoubtedly enable[ ] the firm to

attract associates of a caliber that might not otherwise be

available to it.’”) (citing Pastre, 800 F. Supp. at 1125), report

and recommendation adopted, 2019 WL 1299660 (E.D.N.Y. Mar. 20,

2019). As noted repeatedly throughout Plaintiffs’ papers, the

plaintiffs in both this and the Diocese cases achieved a “watershed

victory,”5 and the exigent nature of the cases allowed counsel to

litigate in three different federal courts, including our Nation’s

highest court, in five months’ time. Having these factors in mind,

the Court considers the hourly rates of Troutman and Becket in

turn.

5 Plaintiffs also assert that the Court should apply “an upward adjustment” to

the lodestar amount “because this litigation presents ‘extraordinary

circumstances’ in which the factors underlying the presumptively reasonable fee

determination do not adequately account for the success achieved.” (Pls. Br.

at 27.) “[A]n enhancement may not be awarded based on a factor that is subsumed

in the lodestar calculation.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

553 (2010). In support of their argument that the instant case presented

extraordinary circumstances, Plaintiffs cite the results obtained, difficulty

of the case, and the undesirability of the case, which are fully reflected in

the lodestar calculation and, therefore, cannot be used as grounds for an

enhancement.

Finally, counsel in this case, in tandem with

plaintiff’s counsel in the Diocese case, raised similar arguments

before the appellate courts. Counsel in Diocese accepted fees of

$400,000.00 for virtually the same work.

Troutman’s Rates

Mr. Schick, a 1994 graduate of Columbia Law School, has

more than twenty-five years of experience and was a former Deputy

Attorney General of the State of New York. (Pls. Br. at 19; Schick

Decl. ¶ 13(a).) Although Mr. Schick has extensive complex and

appellate litigation experience, including arguing before the

Second Circuit, his practice focuses on government enforcement

actions and investigations. Additionally, the Court finds it

difficult to assess the depth of Mr. Schick’s experience litigating

Free Exercise cases based on the terse statement in his declaration

that “he has devoted a substantial portion of his practice to

pursuing Free Exercise claims.” (Schick Decl. ¶ 13(a).) Mindful

that the highest rates in this District for § 1983 claims are

reserved for attorneys “who specialize in the practice of civil

rights law and are recognized by their peers as leaders and experts

in their fields,” Scharff, 2016 WL 3166848, at *5, the Court finds

that $550 is an appropriate hourly rate for Mr. Schick. See

Lawton, 2021 WL 1394372, at *8‒*9 (awarding “a slightly lower rate

of $500 per hour,” to a senior attorney with “a long and

distinguished career as a litigator” because he, inter alia, “[did]

not seem to have specialized in education and disability to the

same extent as” the other senior attorneys who were awarded $600

per hour).

Misha Tseytlin, a partner and head of the Appellate and

Supreme Court practice at Troutman, has been practicing for

approximately fifteen years. (Schick Decl. ¶ 13(b).) Prior to

joining Troutman, Mr. Tseytlin served as the Solicitor General for

the State of Wisconsin, as well as the General Counsel and Deputy

Solicitor General of the Office of the West Virginia Attorney

General. Id. He was a law clerk for the Honorable Anthony Kennedy

of the United States Supreme Court, the Honorable Janice Rogers

Brown of the D.C. Circuit, and the Honorable Alex Kozinski of the

Ninth Circuit. Id. Although Mr. Tseytlin “has pursued Free

Exercise claims in prior cases,” he, like Mr. Schick, does not

specialize in civil rights litigation. Id. Mr. Tseytlin has not

practiced as long as Mr. Schick has, but in consideration of his

significant appellate litigation experience and qualifications,

the Court finds that his reasonable rate is $500 per hour.

The Court finds reasonable a rate of $375 per hour for

W. Alex Smith and Mary Grace W. Metcalfe, and $350 per hour for

Sean Dutton and Kevin M. LeRoy, which are slightly above the range

of presumptively reasonable hourly rates between $200 and $325 for

senior associates in this District. These four associates, who

have practiced for about six to eight years, are entitled to rates

at the high end of the spectrum for senior associates, in light of

the favorable case-specific factors discussed above. (Schick

Decl. ¶¶ 13(c)‒(f).)

Troutman junior associate Christopher J. Kelleher has

practiced for approximately two years and does not have experience

litigating Free Exercise claims other than the instant action.

(Schick Decl. ¶ 13(g).) The Court finds that $200 per hour, which

is the highest presumptively reasonable rate for junior associates

in this District, is appropriate. Finally, the “[p]revailing

hourly rates for paralegals in this District are typically between

$75.00 and $100.00.” Thomas v. City of N.Y., No. 14-cv-7513(ENV),

2017 WL 6033532, at *6 (E.D.N.Y. Dec. 1, 2017). The Court finds

that Troutman paralegal Sarah Harris-Finkel is entitled to an

hourly rate of $100, given that she has over twenty years of

experience as a litigation paralegal. (Schick Decl. ¶ 13(h).)

In sum, the Court finds the below hourly billing rates

for Troutman attorneys and paralegal reasonable.

Attorney Rate

Avi Schick (Partner) $550

Misha Tseytlin (Partner) $500

Alex W. Smith (Associate) $375

Mary Grace W. Metcalfe (Associate) $375

Sean T. H. Dutton (Associate) $350

Kevin M. LeRoy (Associate) $350

Christopher J. Kelleher (Associate) $200

Sarah Harris-Finkel (Paralegal) $100

Becket‘s Rates

As noted above, the hourly rates claimed by Becket

diverge even further from the prevailing rates for this District.

Mr. Rienzi states in his declaration that Plaintiffs retained

Becket to serve “a very particular need”—to provide guidance on

their application to the Supreme Court for an All Writs Act

injunction. (Rienzi Decl. ¶¶ 20, 23.) Mr. Rienzi supports the

Becket attorneys’ hourly rates by citing to declarations submitted

by other Supreme Court practitioners in cases filed and litigated

in other federal districts. (Rienzi Decl. ¶¶ 37‒40.)6 According

to Mr. Rienzi, successful Supreme Court practitioners “earn

between $1,000 and $1,800 per hour.” (Rienzi Decl. ¶ 17.) This

Court recognizes Becket’s experience in religious liberty law and

extensive Supreme Court practice pursuing religious liberty

claims, including winning two prior emergency All Writs Act

injunctions. (Rienzi Decl. ¶¶ 4‒7.) Additionally, the Court

acknowledges that some clients choose to hire specialized Supreme

Court counsel to handle their cases before the Supreme Court. The

Second Circuit has noted, however, that “the touchstone . . . for

6 Mr. Rienzi’s declaration informs the Court of various rates that other Supreme

Court practitioners sought but does not shed light on the fees that they were

awarded. (See, e.g., Rienzi ¶ 17 (“For instance, in 2015, Thomas C. Goldstein

of Goldstein & Russell, P.C., sought fees based on a rate of $1,100 per hour

for his work on a Fourth Amendment case before the [Supreme] Court.”) (emphasis

added).) In fact, in Bourke v. Beshear, No. 13-cv-750(CRS), 2016 WL 164626,

*5‒*6 (W.D. Ky. Jan. 13, 2016), which Mr. Rienzi cites for the proposition that

Supreme Court practitioners “earn between $1,000 and $1,800 per hour,” the

district court awarded $750, $700, $400, and $425 per hour to the Supreme Court

practitioners.

awarding attorneys’ fees in civil rights cases is that district

courts should award fees just high enough to attract competent

counsel,” Restivo v. Hessemann, 846 F.3d 547, 590 (2d Cir. 2017)

(citation omitted) (internal quotation marks omitted), not fees

that would allow litigants to hire the purported Rolls-Royce of

counsel.7 A reasonable hourly rate is “the rate a paying client

would be willing to pay,” and “a reasonable paying client wishes

to spend the minimum necessary to litigate the case effectively.”

Arbor Hill, 522 F.3d at 190. The Court finds that a reasonable

upward adjustment, albeit not to the extent sought by Plaintiffs,

to the District’s presumptively reasonable hourly rates are

appropriate to account for the Becket attorneys’ notable expertise

in religious liberty law and in pursuing All Writs Act injunctions.

7 Plaintiffs’ argument that the rates are reasonable because “if Becket were

charging its clients, it would be able to charge Supreme Court expert rates” is

also not availing. (Rienzi ¶ 43.) In a similar vein, David Zwiebel, Executive

Vice President of Agudath Israel of America, submitted a sworn declaration, in

which he, noting his “familiar[ity] with the ordinary and customary rates

charged by first-rate litigators in New York and Washington, D.C.,” opines that

“the rates sought by Troutman Pepper and the Becket Fund fall comfortably within

those rates.” (ECF No. 53, Declaration of David Zwiebel ¶ 14.) “On a fee-

shifting application, however, the governing test of reasonableness is

objective; it is not dictated by a particular client’s subjective desires or

tolerance for spending.” Beastie Boys v. Monster Energy Co., 112 F. Supp. 3d

31, 52 (S.D.N.Y. 2015). See also Gurung v. Malhotra, 851 F. Supp. 2d 583, 596–

97 (S.D.N.Y. 2012) (“The issue thus is not what well-heeled clients might be

willing to pay, but the ‘hourly rate at which a client who wished to pay no

more than necessary would be willing to compensate his attorney’”) (citing Arbor

Hill, 522 F.3d at 191).

Mr. Rienzi, the President and Chief Executive Officer of

Becket, has been practicing law for about twenty-one years.

(Rienzi Decl. ¶ 4; ECF No. 55-4, Exhibit D to Rienzi Decl. (“Becket

Exhibit D”).) He joined Becket in 2011 and has been litigating

exclusively religious liberty cases since. (Becket Exhibit D.)

Mr. Rienzi is a professor of law at the Catholic University of

America, Columbus School of Law, and his academic work focuses on

religious liberty and First Amendment issues. (Rienzi Decl. ¶¶

10, 12.) From 2017 to 2019, he also taught religious liberty and

supervised a religious liberty externship clinic as a visiting

professor at Harvard Law School. (Rienzi Decl. ¶ 11.) Weighing

the relevant case-specific factors and Mr. Rienzi’s knowledge and

expertise in Free Exercise litigation and All Writs Act injunction

application, the Court finds that Mr. Rienzi is entitled to an

hourly rate of $600.

Eric Rassbach is Vice President and Senior Counsel at

Becket. (Rienzi Decl. ¶ 16.) He has been practicing for

approximately twenty-two years and has been litigating exclusively

Free Exercise cases at Becket since 2003. (Id.; ECF No. 54-5,

Exhibit E to Rienzi Decl. (“Becket Exhibit E”).) Mr. Rassbach has

won seven merits cases and two other All Writs Act injunctions at

the Supreme Court and argued six telephonic oral argument to the

Supreme Court. (Becket Exhibit E.) Like Mr. Rienzi, an hourly

rate of $600 is appropriate for Mr. Rassbach.

Luke Goodrich, Vice President and Senior Counsel at

Becket, has been practicing for approximately seventeen years,

litigating exclusively religious liberty cases since 2008.

(Rienzi Decl. ¶ 17.) Mr. Goodrich, like Mr. Rassbach, has won

seven cases and two other All Writs Act injunctions at the Supreme

Court. (ECF No. 54-6, Exhibit F to Rienzi Decl. (“Becket Exhibit

F”).) From 2013 to 2021, Mr. Goodrich taught courses on law and

religion as an adjunct professor of law at the University of Utah,

S.J. Quinney College of Law. (Becket Exhibit F.) Considering

that Mr. Goodrich has not practiced as long as Mr. Rienzi and Mr.

Rassbach have, the Court finds $525 per hour is appropriate for

Mr. Goodrich.

Lori Windham is Senior Counsel at Becket, where she has

litigated religious liberty cases since graduating from law school

in 2005. (Rienzi Decl. ¶ 18.) Ms. Windham testified as an expert

on First Amendment and religious freedom law before the U.S. House

Judiciary Committee and the U.S. Civil Rights Commission. (ECF

No. 54-7, Exhibit G to Rienzi Decl.) An hourly rate of $500 is

also appropriate for Ms. Windham.

Daniel Blomberg is Senior Counsel at Becket. (Rienzi

Decl. ¶ 19.) He has been practicing law for about thirteen years

and has been litigating exclusively religious liberty disputes at

Becket since 2013. (ECF No. 54-8, Exhibit H to Rienzi Decl.) The

Court finds that Mr. Blomberg is entitled to an hourly rate of

$450.

In sum, the reasonable hourly rates for Becket attorneys

are below.

Attorney Rate

Mark Rienzi (President & CEO) $600

Eric Rassbach (VP & Senior Counsel) $600

Luke Goodrich (VP & Senior Counsel) $525

Lori Windham (Senior Counsel) $500

Daniel Blomberg (Senior Counsel) $450

B. Reasonable Number of Hours Expended

The Court next considers the reasonableness of counsel’s

claimed number of hours.8 The party seeking attorney’s fees must

submit contemporaneously created time records in support of its

fee application, and the trial court has discretion to reduce the

claimed hours “where proposed billing schedules are unsupported by

evidence or objectively unreasonable.” Martinez v. City of N.Y.,

330 F.R.D. 60, 71‒72 (E.D.N.Y. 2019). See Schwartz, 2019 WL

1299192, at *10 (“When reviewing an application for attorneys’

fees, the Court should exclude ‘excessive, redundant or otherwise

unnecessary’ hours.”) (citing Hensley, 461 U.S. at 434). “Where

8 District courts have the authority to award fees incurred on appeal. See

Dague v. City of Burlington, 976 F.2d 801 (2d Cir. 1991) (holding that, “barring

unusual circumstances, when questions are presented such as the amount of

recovery, the extent to which a plaintiff is a prevailing party, and what if

any adjustment is to be given for delay in payment, determination of a reasonable

attorney's fee under the fee-shifting statutes should normally be decided by

the district court in the first instance.”). This Court, however, in assessing

the reasonableness of the hours claimed by Plaintiffs’ counsel for appellate

proceedings, notes the difficulty in doing so, given the lack of firsthand

observation of the services rendered by Plaintiffs’ counsel before the Second

Circuit and the United States Supreme Court.

entries on a time sheet are vague or duplicative or otherwise

insufficient, a court need not itemize individual entries as

excessive; rather, it may make an ‘across-the-board reduction, or

percentage cut, in the amount of hours.’” Martinez, 330 F.R.D. at

72 (citation omitted). See also Fox v. Vice, 563 U.S. 826, 838

(2011) (“[T]rial courts need not, and indeed should not, become

green-eyeshade accountants. The essential goal in shifting fees

(to either party) is to do rough justice, not to achieve auditing

perfection.”).

Defendant argues that the hours expended by Plaintiffs’

counsel are excessive for the following reasons: (1)

disproportionate billing by partners or partner-level attorneys

with high hourly rates, (2) duplication of work, (3) block billing,

(4) billing attorney rates for paralegal tasks such as cite

checking, proofreading, and collating fees, (5) inclusion of the

hours spent on Plaintiffs’ motion for an injunction pending appeal

in the Second Circuit, which was denied for procedural reasons,

(6) inclusion of the hours spent on tasks that did not lead to any

outcome, and (7) excessive and duplicative billing for work related

to the fee application. (Def. Opp. at 16‒24.)

Block Billing

At the outset, Troutman’s fee award should be reduced by

5% to account for block billing. The time entries submitted by

Troutman are fairly specific and note the tasks completed, but the

entries fail to delineate the time spent on each discrete task,

thus hindering the Court’s ability to determine whether the hours

are reasonable, particularly where the number of hours blocked

together is high and covers time spent on multiple tasks. Although

block billing is not an automatic bar to recovery, the block-

billed time entries submitted by Troutman are similar to entries

found deficient and therefore warranting reductions by courts in

this Circuit. See, e.g., Benihana, Inc. v. Benihana of Tokyo,

LLC, No. 15-cv-7428(PAE), 2017 WL 6551198, at *6 (S.D.N.Y. Dec.

22, 2017) (“For example, [one] entry for January 9, 2017 reports

seven hours worked on ‘review and revisions of motion for

sanctions; editing and organization of exhibits; interoffice

conferences, telephone conferences, e-mails regarding status and

strategy.’”); Walpert v. Jaffrey, No. 13-cv-5006(PGG), 2016 WL

11271873, at *16 (S.D.N.Y. Aug. 17, 2016) (“For example,

Pasternak’s April 14, 2013 time entry indicates she spent 3.6 hours

on four separate tasks, Woldenberg’s August 15, 2013 time entry

indicates Woldenberg spent 4 hours on three separate tasks,

Pasternak’s January 13, 2014 time entry indicates she spent 8.3

hours on eight separate tasks and Pasternak’s January 14, 2014

time entry indicates she spent 4.1 hours on seven separate tasks”),

report and recommendation adopted, 2017 WL 1063461 (S.D.N.Y. Mar.

21, 2017).9

As for Becket’s time entries, there are some instances

of block billing, as Defendant points out, but they are not so

deficient to warrant an across-the-board reduction.

Top-Heavy Staffing and Paralegal Tasks

Defendant asserts that a 5% reduction should be applied

for counsel’s top-heavy billing, meaning that partners were

utilized to accomplish tasks that could have been adequately

completed by an associate. (Def. Opp. at 16‒17.) The Court agrees

with Plaintiffs that Defendant, other than comparing the hours

billed by the four partner-level attorneys to those billed by the

rest of their respective teams, does not point to any specific

examples showing that partner-level attorneys took on associate-

level tasks. (ECF No. 57, Reply Brief in Support of Plaintiffs’

Motion for Attorneys’ Fees and Costs (“Pls. Reply”), at 16‒17.)

Additionally, in asserting that the relative number of hours billed

9 Some of the more egregious examples of block billing and duplication by

Troutman are an October 7, 2020 time entry by Mr. Smith for 19.9 hours that

states, “Draft memorandum of law in support of motion for temporary restraining

order and preliminary injunction, motion, declarations of plaintiffs and other

witnesses and attorneys, show cause order and declaration; prepare order to

show cause and TRO; research relating to free exercise clause claims; conference

with Avi Schick and Misha Tseytlin regarding strategy, and follow up calls and

emails,” and a November 12, 2020 time entry by Mr. Schick for 7.5 hours that

states, “Call with Todd Speigelman; confer with Alex Smith re request for

injunction, and review and revise letter re same; call with clients re Supreme

Court application; numerous client calls re application for emergency relief

from Supreme Court; review and revise draft application; calls and emails with

Misha, Alex, Becket and others re same.” (Exhibit A to Schick Decl.)

by Mr. Rienzi and Mr. Rassbach is high, Defendant does not account

for the forty-five hours billed by Becket’s junior attorneys that

were voluntarily written off by Becket in an exercise of billing

judgment. Upon review of Troutman’s time records, the Court finds

that most of the hours billed by Mr. Schick and Mr. Tseytlin were

spent strategizing, outlining briefs, reviewing and editing draft

filings, preparing for and participating in oral argument,

communicating internally or with Becket, clients, or opposing

counsel, and conducting settlement negotiations. (Exhibit A to

Schick Decl.) As for Becket, the Court finds that the three-hour

task of finalizing a brief for filing that Mr. Rienzi completed on

November 16, 2020 could have been delegated to a more junior

attorney, such as Mr. Blomberg. (Exhibit C to Rienzi Decl.) The

Court therefore reduces the hourly rate for those 3 hours from Mr.

Rienzi’s rate of $600 to Mr. Blomberg’s rate of $450, which results

in a deduction of Becket’s requested fees by $450.

The courts in this Circuit are split on whether

proofreading, cite checking, and preparing exhibits are reasonable

attorney tasks. Compare Can. Dry Del. Valley Bottling Co. v.

Hornell Brewing Co., Inc., No. 11-cv-4308(PGG), 2013 WL 6171660,

at *6 (S.D.N.Y. Nov. 25, 2013) (“It is not unreasonable for an

attorney filing a motion to be involved in preparing the substance

of the motion papers, including supporting declarations and

exhibits, and cite-checking the finished brief."), with Putnam

Leasing Co., Inc. v. Fields, No. 05-cv-141(RJD), 2007 WL 2230160,

at *5 (“Paralegal work generally includes preparation of trial

exhibits, factual investigation, assistance with depositions,

researching and cite checking.”). As for the 35.9 hours Troutman

spent on proofreading and cite checking, even if they were

reasonable attorney tasks, because they generally would be

accomplished by a junior-level attorney, the Court applies an

hourly rate of $150, the rate between the $100 per hour rate

awarded to Ms. Harris-Finkel and the $200 per hour rate awarded to

Mr. Kelleher. Therefore, Troutman’s fees should be reduced by

$6,790.00.10

The hours counsel billed for compiling appendices11 and

“collating fees,” on the other hand, should be billed at the

10 This includes: 2.15 hours, or one-quarter of the 8.6 hours Mr. Dutton spent

on October 8, 2020 completing four tasks, including proofreading documents for

filing (a $430 reduction); 0.7 hours Mr. LeRoy spent proofreading filings on

October 8, 2020 (a $140 reduction); 3.45 hours, or one-half of the 6.9 hours

Mr. Dutton spent on October 9, 2020 competing two tasks, including proofreading

and finalizing documents for filing (a $690 reduction); 0.8 hours Mr. Kelleher

spent cite checking on November 5, 2020 (an $40 reduction); 2.3 hours Ms.

Metcalfe spent cite checking on November 15, 2020 (a $517.50 reduction); 4.5

hours Mr. Dutton spent proofreading and finalizing papers for filing on November

16, 2020 (a $900 reduction); 10.5 hours Mr. Dutton spent cite checking,

proofreading, and finalizing filings on November 17, 2020 (a $2100 reduction);

1.7 hours Mr. LeRoy spent cite checking on November 21, 2020 (a $340 reduction);

2.3 hours Ms. Metcalfe spent cite checking on November 21, 2020 (a $517.50

reduction); 1.4 hours Ms. Metcalfe spent proofreading on November 22, 2020 (a

$315 reduction); 3.3 hours Mr. Dutton spent proofreading and cite checking on

December 14, 2020 (a $660 reduction); 2.8 hours Mr. Kelleher spent cite checking

on June 25, 2021 (a $140 reduction). (Exhibit A to Schick Decl.; Exhibit A to

Schick Supp. Decl.)

11 That compiling appendices for filing is a task that can be adequately

completed by a paralegal is demonstrated by Ms. Harris-Finkel’s November 17,

2020 time entry, which includes “[c]ompil[ing] and organiz[ing] documents in

paralegal rate of $100 per hour. (Exhibit A to Schick Decl.;

Exhibit C to Rienzi Decl.) Therefore, Troutman’s fees should be

reduced by $750.00.12 As for Becket, the 4.5 hours Mr. Rassbach

spent on “collating fees” should billed at $100 per hour, resulting

in a reduction of its fees by $2,250.

Duplication of Work

Additionally, Defendant requests that the Court deduct

the “time incurred by Becket to prepare Troutman’s attorneys for

proceedings in the Second Circuit and in this Court, in which

Becket’s attorneys did not appear as counsel” and “time incurred

by Becket in preparing the motion for fees” as duplicative. (Def.

Opp. at 17 n.9.)

First, though Becket counsel should have noted their

appearance on this Court’s docket, the Court finds that, given

Becket’s expertise pursuing religious liberty claims in federal

court, including at the district and appellate levels, it was

reasonable for Becket to remain involved in the remanded

proceedings that followed the Supreme Court’s issuance of an All

Writs Act injunction.

For the hours billed by Becket for its work on the fee

application, the Court acknowledges Becket’s need to prepare and

connection with finalizing brief and appendix in the Second Circuit.” (Exhibit

A to Schick Decl.)

12 This includes 3.0 hours, or one-quarter of the 12.1 hours Mr. Dutton spent

on November 15, 2020 completing four tasks, including compiling an appendix for

a filing (a $750 reduction).

submit a separate contemporaneously created time record,

declarations describing the circumstances of its engagement and

supporting the reasonableness of the fees claimed, and the resumes

of the attorneys who worked on this matter. Even so, the Court

finds 26.4 hours13 excessive, especially because Troutman appears

to have done most of the heavy lifting on the briefing for the

motion. For this reason, the Court applies a 50% reduction to

Becket’s hours expended on the fee application.

Unsuccessful Motion and “Tasks Without Results”

Finally, Defendant contends that the Court should apply

a 10% reduction to Troutman’s fees to account for the hours spent

on the motion for a preliminary injunction pending appeal in the

Second Circuit. (Def. Opp. at 21.) “As the Second Circuit has

noted, the standard for determining whether a party may recover

fees for a motion is not whether the motion was unsuccessful, but

whether it was frivolous.” Etna Products Co., Inc. v. Q Marketing

Group, Ltd., No. 03-cv-3803(FM), 2005 WL 2254465, at *8 (S.D.N.Y.

June 6, 2005) (citing Seigal v. Merrick, 619 F.2d 160, 164‒65 (2d

Cir. 1980)). The Court, though declining to rule on whether

Plaintiffs’ flawed motion denied by the Second Circuit on

procedural grounds is frivolous, nonetheless applies the 10%

reduction sought by Defendant based on Plaintiffs’ noncompliance

13 The Court does not include the 4.5 hours Mr. Rassbach spent “collating fees,”

which was already addressed supra.

with Fed. R. App. P. 8(a)(1)(C). Agudath Israel of Am., 980 F.3d

at 2235.

Defendant also requests that the Court deduct by half

the time counsel spent on tasks that “did not lead to any outcome.”

(Def. Opp. at 22.) The Court grants a fifty percent reduction for

the 9.7 hours14 that Mr. Smith block billed for tasks that included

preparing discovery requests because Plaintiffs determined the

course of the litigation by seeking appeals and injunctive relief

in lieu of seeking discovery. The Court also grants Plaintiffs’

request for a fifty percent reduction of the 7.0 hours15 Mr. Smith

block billed for tasks that included drafting a letter to this

Court on Plaintiffs’ motion for injunctive relief pending appeal,

which was never filed. Therefore, half of 16.7 hours, or 8.35

hours, billed by Mr. Smith should be removed, resulting in a

reduction of Troutman’s fees by $3,131.25.

14 This includes: 3.3 hours Mr. Smith spent on tasks including “draft[ing]

discovery requests” on October 12, 2020; 3.7 hours Mr. Smith spent on tasks

including “draft[ing] requests for production of documents to Defendant” on

October 13, 2020; and 2.7 hours Mr. Smith spent on tasks including “[d]raft[ing]

Plaintiffs’ First Set of Requests for Production of Documents to Defendant” on

October 14, 2020. (Exhibit A to Schick Decl.)

15 This includes: 4.9 hours Mr. Smith spent on tasks including “draft[ing] letter

motion for injunctive relief pending appeal to district court” on October 19,

2020; and 2.1 hours Mr. Smith spent on tasks including “draft[ing] letter to

district court” on October 20, 2020. (Exhibit A to Schick Decl.)

III. Fee Award Calculation

The Court’s fee award calculations for Troutman and

Becket, having factored in the reduced rates and the deductions

discussed supra, are set forth below.

Troutman’s Fee Award

Name Rate Hours Total

Avi Schick (Partner) $550 286.6 $157,630.00

Misha Tseytlin (Partner) $500 77.7 $38,850.00

Alex W. Smith (Associate) $375 521.5 $195,562.50

Mary Grace W. Metcalfe (Associate) $375 15.3 $5,737.50

Sean T. H. Dutton (Associate) $350 101.5 $35,525.00

Kevin M. LeRoy (Associate) $350 14.5 $5,075.00

Christopher J. Kelleher $200 9.9 $1,980.00

(Associate)

Sarah Harris-Finkel (Paralegal) $100 42.4 $4,240.00

$444,600.00

Deduction on Hours Spent Proofreading and Cite -6,790.00

Checking

Deduction on Hours Spent Preparing Appendices -$750.00

Deduction for Tasks Without Results -$3,131.25

Percentage Cuts for (1) Block Billing and (2) -15%

noncompliance with Fed. R. App. P.

TOTAL FEE AWARD $368,839.44

Becket’s Fee Award

Attorney Rate Hours Total

Requested Fees on the Merits

Mark Rienzi (President & CEO) $600 34.3 $20,580.00

Eric Rassbach (VP & Senior Counsel) $600 54.1 $32,460.00

Luke Goodrich (VP & Senior Counsel) $525 12.9 $6,772.50

Lori Windham (Senior Counsel) $500 10 $5,000.00

Daniel Blomberg (Senior Counsel) $450 14.5 $6,525.00

Deduction for Top-Heavy Billing -$450.00

$70,887.50

Requested Fees on Fee Application

Mark Rienzi $600 13.1 $7,860.00

Eric Rassbach $600 13.3 $7,980.00

Deduction on Hours Spent Collating Fees -$2,250.00

Percentage Reduction for Overbilling -50%

$6,795.00

TOTAL FEE AWARD ($70,565.00 + $6,795.00) $77,682.50

IV. Reasonable Costs

Finally, Plaintiffs’ attorneys have sought

reimbursements for $13,420.70 in costs, “including expenses

relating to court reporters, filings, research, and printing,

incurred in connection with this action.” (Schick Decl. ¶ 8.)

Defendant does not challenge Plaintiffs’ calculation or

documentation of costs.

“Reasonable and identifiable out-of-pocket

disbursements ordinarily charged to clients are recoverable.”

Centro, 2019 WL 2870721, at *13. “Recoverable disbursements

include such items as legal research, photocopying, postage,

transportation, and filing fees.” HomeAway.com, Inc., 523 F. Supp.

3d at 589. However, the “fee applicant bears the burden of

adequately documenting and itemizing the costs requested.” First

Keystone Consultants, Inc. v. Schlesinger Elec. Contractors, Inc.,

No. 10-CV-696(KAM), 2013 WL 950573, at *10 (E.D.N.Y. Mar. 12, 2013)

(citation omitted). Under Local Rule 54.1(a), the “bill of costs

shall include an affidavit that the costs claimed are allowable by

law, are correctly stated and were necessarily incurred. Bills for

the costs claimed shall be attached as exhibits.” Local Rule

54.1(a).

Here, no documentation beyond an itemized list was

provided. (Exhibit A to Schick Decl.) The Court therefore denies,

without prejudice, the costs claimed by Plaintiffs for lack of

documentation. If Plaintiffs choose to renew their motion for

costs, they shall, by no later than December 13, 2021, file with

this Court an affidavit that the costs claimed are allowable by

law, are correctly stated, and were necessarily incurred, and shall

attach bills for the costs claimed as exhibits pursuant to Local

Rule 54.1(a).

CONCLUSION

The court concludes that Plaintiffs’ attorneys are

entitled to $446,521.94 in fees, which includes $368,839.44 for

Troutman and $77,682.50 for Becket. Plaintiffs’ application for

costs is denied without prejudice.

SO ORDERED

/s/

Kiyo A. Matsumoto

United States District Judge

DATED: Brooklyn, New York

December 6, 2021