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Attorney Awarded $55,976.19 For Limited Success In Class Action Lawsuit

The U.S. District Court for the Southern District of New York awarded
reduced fees and costs of $55,976.19 to an attorney who demonstrated only
modest, individual success in his broad civil rights class action complaint
challenging New York City's anti-vagrancy statute.

In September 1997 attorney Paul Weiss's law firm filed suit against the
City of New York on behalf of two homeless people who were arrested for
sleeping in a public place. The suit, which named then-mayor Rudolph
Giuliani as a defendant, challenged the City's "Quality of Life Initiative"
(section 16-22 of the New York City Administrative Code), a broad
anti-vagrancy statute which the lawsuit claimed "unlawfully punished New
Yorkers for merely existing in public with some of their personal belongings."

In 2000 the district court granted summary judgment to the defendants on 16
of the lawsuit's 17 claims. On the remaining claim, which involved one of
the plaintiffs, Augustine Betancourt, who was unlawfully strip searched
following his arrest, the court granted summary judgment to the plaintiffs.
Betancourt v. Giuliani, 2000 WL 1877071 SD NY 2000). That claim ultimately
settled for $15,000. It was the lawsuit's only success.

Weiss subsequently moved for attorney fees and costs (which by this time
amounted to nearly $1 million) pursuant to 42 U.S.C. §1988. Weiss requested
the fee award be calculated at a rate of $300 per hour and suggested an 80%
reduction of the fees to reflect the lawsuit's limited success.

In ruling on the motion, the court first held that the $300 per hour rate
Weiss's firm normally charged its corporate clients far exceeded the rates
a civil rights attorney would typically charge a paying client. Based on
this, the court concluded the rate should be $200 per hour.

The court next noted that in civil rights litigation "there is frequently
an overlap of efforts relating to" successful and unsuccessful claims. In
the instant case the lawsuit's only success was Betancourt's uncontested
strip search claim. Consequently, the court opined that Weiss's firm likely
spent a nominal amount of time on this claim "as compared to the much more
complex, unsuccessful claims." With this reasoning, the court decided a 90%
reduction of fees and costs was appropriate and awarded Weiss's firm
$55,976.19. See: Betancourt v. Giuliiani, 325 F.Supp.2d (SD NY 2004).

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Related legal case

Betancourt v. Giuliiani

FN5. The billing records indicate that only a negligible amount of the billing pertains to partners, as opposed to associates.


Turning to the actual billing entries, the Court notes initially that the Supreme Court has explicitly approved both general approaches which the parties propose: "The district court may attempt to identify specific hours that should be eliminated" (Defendants' suggestion), "or it may simply reduce the award to account for the limited success" (Betancourt's suggestion). See *334 Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933; see also Green v. Torres, 361 F.3d 96, 99 (2d Cir.2004). The Court adopts the latter approach and will apply an across-the-board reduction of ninety percent.

Defendants' proposal, which the Court rejects, is that the Court excise certain portions of the bills altogether because, according to Defendants, those bills clearly pertain to issues other than the strip search claim. The Court is not convinced that it is advisable, much less possible, to make such a sharp demarcation, especially considering that the billing record, which is approaching its eight-year anniversary, is so extensive. See New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983) ( "[I]t is unrealistic to expect a trial judge to evaluate and rule on every entry in an application."); cf. Hensley, 461 U.S. at 437, 103 S.Ct. 1933 ("A request for attorney's fees should not result in a second major litigation."). For example, Defendants suggest that the hours pertaining to certain depositions, including Betancourt's own deposition, should be eliminated from consideration because the topics discussed did not involve the strip search claim. It would be a tall order for the Court to review all the depositions to try to confirm this assertion, or to otherwise attempt to apportion the depositions' text as between the successful and unsuccessful claims. By way of further example, Defendants suggest that the Court should eliminate all the bills predating the complaint. Again, however, Betancourt's attorneys must have spend some amount of time researching and drafting the portion of the complaint pertaining to the successful strip search claim. The Court's review of the billing entries makes it clear that it would be impossible discern that precise amount of time.

Moreover, the Court emphasizes that Defendants' proposed technical review would unlikely produce a more accurate figure. As explained above, even if the Court were to eliminate certain clearly unrecoverable billing entries ( e.g., "research class cert. brief"), the vast majority of the billing entries would remain, and, as to those entries, the Court would necessarily have to venture into the inexact science of applying an across-the-board percentage reduction to account for Betancourt's limited success. The imprecision inherent in that calculation would render trivial the more technical points Defendants press here. To be sure, the Court has not ignored altogether Defendants' points in this regard. Defendants' arguments serve to underscore the more basic point, which the Court addresses next, that most of the effort in this litigation, and the bulk of the bills Paul Weiss compiled, pertained to its unsuccessful (so far) attempt to invalidate Section 16-122.

Finally, the Court is mindful that in civil rights litigation there is frequently an overlap of efforts relating to successful claims and to claims that ultimately fail. No surgical standards exist by which to neatly and minutely isolate and sever elements of legal services devoted to this division of claims. In fact, courts recognize that the pursuit of successful causes of action often entails and is inexorably intermingled with claims that do not prevail insofar as the claims involve a common core of facts or are based on related legal theories. See Gonzalez v. Bratton, 147 F.Supp.2d 180, 212 (S.D.N.Y.2001) (citing Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir.1996)).

Turning now to the appropriate percentage reduction, the Court must discern the measure of Betancourt's success, which by all accounts is relatively minimal. In simple terms, Betancourt's complaint attempted to initiate an impact litigation against the Giuliani administration, but to date has achieved virtually no success in *335 that regard. The Court has not invalidated Section 16-122, nor certified a class on the issue, nor has Betancourt demonstrated that the City has changed its policies in any way as a direct consequence of this lawsuit.FN6 The City agreed only to do something which it no doubt does in many of the hundreds of ordinary tort cases it faces each year: to write a check to compensate the victim of an official's unlawful conduct.

FN6. In a separate lawsuit, the City paid a substantial settlement to victims of its unconstitutional blanket policy of strip searching persons arrested for minor offenses. See Benjamin Weiser, New York Will Pay $50 Million In 50,000 Illegal Strip-Searches, N.Y. Times, Jan. 10, 2001, at A1 (referring to Tyson v. City of New York, No. 97 Civ. 3762 (filed May 22, 1997)). Judge Martin declined to certify a class in this lawsuit because one had already been certified in Tyson. See Betancourt, 2000 WL 1877071, at *7 ("As to the strip-search claim, a class action has already been certified and there is no need for another one.").

Moreover, the Court notes that the strip search claim involved settled law and essentially uncontested facts. The claim comprised only five sentences and a single case citation in Betancourt's summary judgment briefing. Although Defendants denied the strip search claim in their answer, they did not devote a single sentence in their summary judgment briefing to opposing Betancourt's motion for summary judgment on the strip search claim. In other words, Defendants essentially conceded the issue.FN7

FN7. The Court does not intend to suggest that Betancourt's award should be reduced by the mere fact that his claim was straightforward. See DiFilippo v. Morizio, 759 F.2d 231, 235 (2d Cir.1985) ("[T]he fact that a case is straightforward is not grounds to reduce a lodestar award."). Instead, the Court takes this fact as evidence towards making a proper apportionment of the fee as between the successful and unsuccessful claims.

In light of the simplicity of the issue, the Court concludes that Paul Weiss must have spent a nominal amount of time on the strip search claim, as compared to the much more complex, unsuccessful claims. Accordingly, the Court concludes that the fees requested should be reduced by ninety percent, instead of the eighty percent which Betancourt suggests.


"[A]wards of attorney's fees in civil rights suits under fee-shifting statutes """ normally include those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged fee-paying clients." Reichman v. Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 282 (2d Cir.1987). All of the expenses in Betancourt's application are those which are typically charged to fee-paying clients and, hence, are recoverable. See, e.g., Gucci Am., 315 F.Supp.2d at 526 (awarding expenses for electronic research); Sea Spray Holdings, Ltd. v. Pali Fin. Group, Inc., 277 F.Supp.2d 323, 325 (S.D.N.Y.2003) (awarding fees for non-legal support); Wilder v. Bernstein, 975 F.Supp. 276, 287 (S.D.N.Y.1997) (awarding expenses for transportation costs); Cool v. Police Dep't of City of Yonkers, 620 F.Supp. 954, 957 (S.D.N.Y.1985) (awarding expenses for overtime and duplicating).

Defendants challenge the connection of these costs to the strip search claim. Again, however, the Court will not venture to discern, for example, which photocopies pertain to which of the claims in this lawsuit. Instead, to address Defendants' more fundamental point, the Court will apply the same ninety percent reduction to Betancourt's requests for costs and expenses. This large reduction is also intended to subsume any of Defendants' claims that the costs charged were excessive.


In accordance with the above discussion, the Court makes the § 1988 award as set forth in the chart below.

Hours Bills 2520.8 A
Hours Spent on Dismissed Appeal 259.8 B
Subtotal of Hours (A-B) 2261 C
Hourly Rate $200 D
Total (CxD) $ 452,200 E
Hours Billed 435.3 F
Hours Spent on Dismissed Appeal 89.1 G
Subtotal of Hours (F-G) 346.2 H
Avg. Hourly Rate $ 106.42 I
Total (HxI) $ 36,842.60 J
Expenses for Full Litigation $ 78,086.91 K
Expenses for Dismissed Appeal $ 7,367.64 L
Total of Expenses and Costs (K-L) $ 70,719.27 M
Subtotal of Attorney's Fees, Non-Legal Support Fees, and Expenses and Costs $559,761.87 N
Reduction for Limited Success 90% O
TOTAL (Nx[1-O]) $ 55,976.19


For the reasons stated, it is hereby
ORDERED that the motion of plaintiff Augustine Betancourt ("Betancourt") for attorney's fees and costs under 42 U.S.C. § 1988 is granted and defendant the City of New York is found liable to Betancourt in the amount of $55,976.19.
The Clerk of Court is directed to enter judgment accordingly and to close this case.