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Choike v. Slippery Rock University of Pennsylvania of the State System of Higher Education

October 22, 2007

ELIZABETH LAURA CHOIKE, ET AL., ON BEHALF OF THEMSELVES AND ALL SIMILARLY SITUATED INDIVIDUALS, PLAINTIFFS,
v.
SLIPPERY ROCK UNIVERSITY OF PENNSYLVANIA OF THE STATE SYSTEM OF HIGHER EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT

SYNOPSIS

Students who prevailed in a Title IX action against their University seek an award of attorneys fees under 42 U.S.C. § 1988, 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54. While I find that the requested hourly rates are reasonable, I find that the number of hours requested must be adjusted.

Plaintiffs, student-athletes at Defendant Slippery Rock University ("SRU"), have submitted a Motion for Attorneys' Fees and Costs. See Docket No. [113]. They contend that, as the prevailing party in the underlying litigation, they are entitled to reasonable fees and costs of $496,367.75 pursuant to 42 U.S.C. § 1988, 28 U.S.C. § 1920 and Federal Rule of Civil Procedure 54. Although SRU does not disagree that the Plaintiffs are entitled to fees and costs, SRU counters that the hourly rates requested are not reasonable, that certain of the time is not compensable and that the costs are inflated. Accordingly, SRU suggests a reasonable award of fees and costs in the amount of $205,515,70. For the following reasons, the Motion will be granted in part and denied in part.

I. BACKGROUND

On January 30, 2006, SRU announced that, for budgetary reasons, it would eliminate eight varsity sports. Those sports consisted of men's and women's swimming, men's and women's water polo, women's field hockey, men's golf, men's wrestling, and men's tennis. Thereafter, Plaintiffs immediately began their attempts to have the women's teams reinstated. They secured representation by the Women's Law Project ("WLP") and Flaster/Greenberg, P.C. Although attempts were made to resolve the dispute without court intervention, the attempts failed and the Plaintiffs initiated this litigation. They filed a class action suit under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88 ("Title IX") for the violation of Title IX's equal participation requirement and equal treatment requirement.

Following briefing, a hearing and post-hearing submissions by the parties, I granted Plaintiffs' request for a preliminary injunction on the participation claims.

Specifically, I enjoined SRU from eliminating the women's varsity swimming and water polo teams (field hockey had been reinstated in the interim) for the 2006-2007 school year and required it to reinstate those teams, with appropriate funding and staffing, in the event those teams had already been eliminated.

The parties then largely focused their efforts on mediation. Resolution of this complicated case could not have occurred without the dedicated efforts of Magistrate Judge Lenihan, Robert Smith, President of SRU, and counsel. They are to be commended for reaching a resolution that serves the best interests of the Plaintiffs and SRU. SRU is now poised to achieve Title IX compliance for the first time since the passage of the statute thirty-five years ago.

The settlement was reached in two phases. The "participation claims" were settled in principle on September 13, 2006. The essential terms of the September 13th agreement require SRU to:

- retain women's swimming and water polo as varsity teams for one full academic year after SRU has achieved compliance with the proportionality requirement of Title IX within two percentage points; - accord women's swimming and water polo teams funding, staffing, and all other benefits commensurate with their status as intercollegiate teams; and - allocate an additional amount of money to women's varsity athletics for the academic year following any year during which the participation of SRU female varsity athletes is not within two percentage points of the proportion of full-time female undergraduates.

Following additional mediation sessions with Judge Lenihan, the equal treatment claims were settled in principle on April 6, 2007. The settlement aims at achieving parity by investing in women's sports programs, by establishing gender-equitable policies and instituting prospective budgeting of all athletic expenditures. SRU agreed to create a $300,000 fund to be spent over three years on women's athletics in order to eradicate the historical treatment of women's athletics. SRU also agreed to make substantial improvements to the softball field and pool; improve women's locker rooms; make medical and training personnel and facilities equally available to women athletes; provide equitable compensation to coaches of women's teams and adopt policies setting forth gender equitable treatment regarding uniform, travel, equipment, publicity, trainers, and access to cars for recruitment by coaches.

Following notice to the class and a hearing, I approved the settlement as fair, reasonable and adequate under the criteria articulated in Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir. 1975). Plaintiffs then submitted the pending Motion, which is ripe for disposition.

II. ANALYSIS

The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, permits a district court to award reasonable attorney's fees to prevailing parties in civil rights litigation. Because the purpose of such an award is to "ensure 'effective access to the judicial process' for persons with civil rights grievances ... a prevailing plaintiff' should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Hensley v. Eckhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937 (1983), quoting, H.R. Rep. No. 94-1558, p. 1 (1976) and S. Rep. No. 94-1011, p. 4 (1976).

Here, there can be no doubt that Plaintiffs are a "prevailing party." The Plaintiffs succeeded on every significant issue in this litigation. Hensley, 461 U.S. at 433 (stating that "'plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit.'") (citations omitted). Indeed, SRU does not dispute that the Plaintiffs are prevailing parties.

The question remains, however, what fee is "reasonable." As another court recently observed in considering a fee petition in a Title IX case:

[i]n asserting the reasonableness of attorney's fees, courts apply the "lodestar" formula, which multiplies "the number of hours reasonably expended by a reasonable hourly rate." Maldonado v. Houston, 256 F.3d 181, 184 (3d Cir. 2001). "When the applicant for fee has carried his burden of showing that the claimed rates and number of hours are reasonable, the resulting product is presumed to be the reasonable fee to which counsel is entitled." Id. ...

Barrett v. West Chester University, Civ. No. 3-4978, 2006 WL 85974 at * 3 (E.D. Pa. March 31, 2006) (citations omitted).*fn1

A. REASONABLE HOURLY RATES

First, I must determine what constitutes a "reasonable market rate for the essential character and complexity of the legal services rendered... ." Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir. 2001). I do this by "'assessing the experience and skill of the prevailing party's attorneys and compare the rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.'" Loughner v. University of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The starting point is the hourly rate usually charged by the attorney, but this is not dispositive. Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995). Plaintiff bears the burden of establishing the reasonable current market rate. Public Interest, 51 F.3d at 1185. The current market rate is measured at the time the fee petition is submitted, rather than at the time the services were performed. Lanni, 259 F.3d at 149 (citations omitted).

Plaintiffs seek fees for services performed by attorneys and paralegals from the Flaster/Greenberg law firm and by attorneys from the WLP. The requested hourly rates are as follows:

Flaster/Greenberg:P Abbe Fletman$385 Lizanne Hackett$245 Tara Parvey$225 Rachel Wolfe$190 Julie Assis$175 Danielle Newsome$105 Christine Buchanan$160 Angela Atkinson$125

WLP:  Terry Fromson$350 Susan Frietsche$275 David Cohen$245 Amal Bass$130

I find that the Plaintiffs have sustained their prima facie burden of establishing that the rates requested above are reasonable, given the experience, skill and reputation of the attorneys involved, the complex matter of this litigation, and the prevailing market rates. For instance, Plaintiffs have proffered evidence that the hourly rates requested which relate to the Flaster/Greenberg attorneys and paralegals are, in fact, the rates charged to clients. See Docket No. [114-5]. Understandably, Plaintiffs were unable to produce such evidence with respect to the WLP, as the WLP does not charge fees to its clients.

Plaintiffs have also submitted evidence concerning the skill, experience and reputation of the attorneys who performed work on this case.*fn2 For instance, my review of the submissions makes clear that Abbe Fletman has an excellent reputation in the legal community and is an accomplished advocate. She heads Flaster/Greenberg's Litigation Section of the Intellectual Property Practice Group, she was voted by members of the Pennsylvania Bar as a Pennsylvania Super Lawyer in 2004 and 2006, and is a fellow at the Academy of Advocacy of Temple University Beasley School of Law, where she serves as an instructor for the LLM in trial advocacy. Id. Fletman is also the immediate past co-chair of the American Bar Association Litigation Section's task force on civil justice initiatives and a past chair of the Federal Courts Committee of the Philadelphia Bar Association. Id.

Terry Fromson and Susan Frietsche of the WLP similarly have excellent reputations, have extensive civil rights litigation experience and have participated in several noteworthy cases, some of which were litigated under Title IX. See Docket No. [114-14]. In addition, Susan Frietsche is a member of the adjunct faculty at the University of Pittsburgh School of Law and has been a lecturer-at-law at the University of Pennsylvania School of Law. Id. She has also won numerous awards. Id.

David Cohen of the WLP is a 1997 graduate of Columbia Law School, has both state and federal clerking experience, and has participated in several high-impact sex discrimination lawsuits. Id. He has served as a lecturer-at-law at the University of Pennsylvania School of Law from 2002 through 2006 and taught undergraduate courses on sex discrimination and constitutional law at the University of Pennsylvania School of Arts and Sciences and Long Island University. Id.

Lizanne Hackett of Flaster/Greenberg is a member of the Litigation and Labor and Employment practice groups. She graduated cum laude from Harvard Law School in 2002. She practices in both state and federal court and has previously been involved in discrimination cases.

Tara Parvey of Flaster/Greenberg is a member of the Litigation and Real Estate practice groups, and represents plaintiffs and defendants in state and federal court in business disputes. She has previous clerking experience and graduated with honors from Rutgers School of Law - Camden in 2003. She has been a member of the adjunct faculty there since 2005. See Docket No. 114-5. Rachel Wolfe and Julie Assis of Flaster/Greenberg are presumably junior associates. No information is provided regarding their skills, reputation or experience. Id. As stated above, I do not find this unusual given the relatively short time during which they have practiced as attorneys.

Amal Bass, of the WLP, is a 2006 cum laude graduate of Harvard Law School. See Docket No. 114-14.

In addition to providing information regarding the skills, experience and reputation of the attorneys, Plaintiffs have submitted affidavits from attorneys who practice in the Western District of Pennsylvania who attest to the fact that the requested fees are reasonable and within the prevailing market rate. Having reviewed the affidavits and declaration, I find that the Plaintiffs have sustained their burden of demonstrating that Abbe Fletman's requested hourly rate of $385 is fair and reasonable and lies within the range of fees charged by attorneys of similar skill performing similar work in this market. See Doyle Affidavit and Stein Affidavit, Docket Nos. 114-9 and 114-10. I also find that Plaintiffs have sustained their burden of demonstrating that Lizanne Hackett's requested hourly rate of $245 and Tara Parvey's requested hourly rate of $225 are fair and reasonable and lie within the range of fees charged by attorneys of similar experience in this market. See Weissman Affidavit, Doyle Affidavit, Stein Affidavit and Lamberton Affidavit, Docket Nos. 114-13, 114-9, 114-10 and 114-11. Plaintiffs have also submitted sufficient evidence to convince me that the requested rates of $190 and $175 per hour for Rachel Wolfe and Julie Assis, respectively, are fair and reasonable for first year litigation associates performing similar work in this market. See Weissman Affidavit, Doyle Affidavit and Stein Affidavit, Docket Nos. 114-13, 114-9 and 114-10.

With respect to the fees from the WLP, the Plaintiffs have sustained their burden of demonstrating that Susan Frietsche's requested hourly fee of $275 is fair and reasonable given her skills, experience and reputation, and the prevailing rates charged by others of comparable skill in this market. See Hubley Affidavit and Stember Affidavit, Docket Nos. 114-23 and 114-24. I also find that the Plaintiffs have proffered prima facie evidence that Terry Fromson's requested hourly fee of $350 is fair and reasonable considering the rates charged by other attorneys of commensurate skill and experience doing similar work in this market. See Stember Affidavit, Docket No. 114-24. Similarly, I find the record contains evidence establishing that David Cohen's and Amal Bass's hourly rates of $245 and $130 are reasonable and within the range of rates for attorneys of their caliber and / or experience doing the same type of work in this market. See Stember Affidavit and Hubley Affidavit, Docket Nos. 114-24 and 114-23.

As to the work performed by paralegals employed by Flaster/Greenberg, I find that Plaintiffs have submitted sufficient evidence to establish that the requested rates ($105 for Danielle Newsome, $160 for Christine Buchanan and $125 for Angela Atkinson) are reasonable. Stanley Stein, who is an attorney in the Western District of Pennsylvania and who has handled complex litigation, opined that rates between $105 and $170 per hour are reasonable and consistent with the Pittsburgh market rates for complex litigation paralegal work. See Stein Affidavit, Docket No. 114-10.

SRU does not contest Plaintiffs' request that the hourly rate accorded Terry Fromson be $350. See Docket No. 117, p.4. SRU does, however, urge that the other requested rates are unreasonable. Neither party has requested that I hold a hearing on the matter of the reasonableness of the fees. I recognize that Third Circuit case law exists which stands for the proposition that "if 'hourly rates are disputed, the district court must conduct a hearing to determine the reasonable market rates.'" Planned Parenthood of Central New Jersey v. The Attorney General of the State of New Jersey, 297 F.3d 253, 265 n. 5 (3d Cir. 2002), quoting, Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997) and Lanni v. State of New Jersey, 259 F.3d 146, 149 (3d Cir. 2001). Yet a case predating Smith holds that a "failure to conduct an evidentiary hearing ... is not reversible error... . A hearing must be held only where the court cannot fairly decide disputed questions of fact without it." Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir. 1987). Further, "[i]t is well established that in a conflict between decisions on different panels, the oldest one controls." Drelles v. Metropolitan Life Ins. Co., 90 Fed. Appx. 587, 591 (3d Cir. 2004), citing, Ryan v. Johnson, 115 F.3d 193, 198 (3d Cir. 1997)(finding that a failure to hold an evidentiary hearing was not reversible error).

Based upon the evidence submitted by SRU, an evidentiary hearing is not necessary. SRU has not submitted any affidavits stating that the fees requested by Flaster/Greenberg and / or the WLP are unfair or unreasonable or not in accord with the prevailing market rates. Instead, SRU cites to my decision in Huu Nam Tran v. Metropolitan Life Insurance Co., Civ. No. 1-262, 2006 WL 2623230 at * 3 (W.D. Pa. Sept. 12, 2006), in support of the notion that the maximum rate awarded for civil rights and other complex litigation cases is $250 per hour. See Docket No. 117, p. 4. However I reject SRU's application of the Tran decision to the facts at bar. The plaintiff in Tran failed to satisfy his prima facie burden of establishing a reasonable hourly rate. As such, I had to look to past awards, some of which were several years old, in an effort to establish some sort of benchmark. Here, Plaintiffs have satisfied their burden of proffering prima facie evidence that the requested hourly fees are reasonable.

SRU also relies upon affidavits and declarations submitted in conjunction with other cases in support of its proposition that the current market rate for the most experienced counsel in this type of case is $350 per hour. See Docket No. 116-5 and Docket No. 116-6. While I find those submissions persuasive on the issues of whether fees sought by Ogg, Cordes, Murphy & Ignelzi*fn3 and John Stember and Stephen Pincus were fair and reasonable and within the range for attorneys of comparable skill, experience and reputation, such submissions do not disprove the reasonableness of the hourly fees requested here. None of those affidavits set a limit on the range of the hourly fee. Instead, each affiant or declarant merely states that the hourly fee requested is "within the range" of fees charged in the market.

Because Plaintiffs have satisfied their burden of establishing the reasonableness of the requested hourly fees, and because SRU has offered no convincing argument or evidence in opposition thereto, I find that the following hourly fees should be awarded:

Flaster/Greenberg:  Abbe Fletman$385 Lizanne Hackett$245 Tara Parvey$225 Rachel Wolfe$190 Julie Assis$175 Danielle Newsome$105 Christine Buchanan$160 Angela Atkinson$125

WLP:  Terry Fromson$350 Susan Frietsche$275 David Cohen$245 Amal Bass$130

B. HOURS EXPENDED

The "lodestar" formula requires me to next determine the number of hours reasonably expended on this litigation. The Supreme Court has cautioned that, in determining whether hours were reasonably expended, courts should "review the time charged, decide whether the hours set out were reasonably expended for each of the particular purposes described and then exclude those that are excessive, redundant, or otherwise unnecessary." Maldonado v. Houston, 256 F.3d 181, 184 (3d Cir. 2001) (citations omitted). "Hours that would not generally be billed to one's own client are not properly billed to an adversary." Public Int. Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995).

SRU has classified the hours expended by Plaintiffs' counsel in this case into thirty-one different categories for purposes of raising its objections. For ease of discussion, I will adopt SRU's classification system. Much of SRU's objections focus upon duplication of effort and redundancy. I must say that I agree in principle that Plaintiffs overstaffed this case. That they obtained excellent results is unquestionable. Nevertheless, at every appearance in my courtroom as well as at each mediation, at least three attorneys attended where surely one would have sufficed. Plaintiffs are requesting high hourly rates for their attorneys, particularly for Abbe Fletman and Terry Fromson. Individuals commanding such rates can fairly be expected to handle complex litigation without the aid, in court (or in mediations, conferences or the like), of several other attorneys.

1. Background / Research

SRU agrees that 51.19 hours of work related to miscellaneous "background investigation" and "legal research" were appropriately expended, but contends that the demand of $13,002.50 for such work must be adjusted in light of reduced hourly rates. SRU contends that the request for fees be reduced by $2,309,75 ($13.002.50-$10,692.75). See SRU's Exhibit 3A. Because I find that the hourly fees requested were appropriate, I decline to adjust the fee in this regard.

2. Demand Letter

Prior to the commencement of this litigation, the Plaintiffs' counsel sent SRU a demand letter. According to SRU's Summary of Fees (Ex. 2 at Docket No. 116-3), four attorneys worked 2.92 hours (Terry Fromson for 1.25; David Cohen for .67 ; Abbe Fletman for.80; and Lizanne Hackett for .20 hours) on drafting the letter, for a total requested cost of $931.65. SRU concedes that the 1.25 hours expended by Terry Fromson was reasonable*fn4 but objects to all other work as redundant.

I agree with SRU. From the hours recorded, it appears that Fromson was the main drafter of the demand letter. Certainly someone with Fromson's experience does not need to have a demand letter reviewed by David Cohen or Lizanne Hackett - both of whom were junior to her. Additionally, Abbe Fletman's time sheets indicate that her contribution to the demand letter was also merely "review and revise." Again, when Terry Fromson is charging the rate of $350 per hour, that rate is commensurate with the skills, education and experience of someone who does not need her work reviewed by another. Accordingly, the requested fees will be reduced by: .67 hours at David Cohen's rate of $245; .80 hours at Abbe Fletman's rate of $385; and .20 hours at Lizanne Hackett's rate of $245 per hour.

3. April 20, 2006 Meeting at SRU

According to SRU, the Plaintiffs also request compensation for 26.34 hours worked by five different attorneys, at a total cost of $6,930.60, in connection with an April 20, 2006 meeting at SRU (.83 for Susan Frietsche; 6.08 for Terry Fromson; 1.70 for Abbe Fletman; 6.83 for David Cohen; and 10.90 for Lizanne Hackett). See SRU's Ex. 2C. SRU urges that 2.53 hours would be appropriate , with ...


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