Opinion
16-cv-00236-WHO
04-23-2024
PLANNED PARENTHOOD FEDERATION OF AMERICA, INC., et al., Plaintiffs, v. CENTER FOR MEDICAL PROGRESS, et al., Defendants.
ORDER ON MOTION FOR SUPPLEMENTAL ATTORNEY FEES RE: DKT. NO. 1224
William H. Orrick United States District Judge
The Judgment in this case was entered in April 2020, after a jury trial and post-trial proceedings. See Dkt. Nos. 1016, 1073, 1074. That Judgment was affirmed by the Ninth Circuit and petitions seeking review of that Judgment were denied by the United States Supreme Court. Defendants' more recent motion for relief from that Judgment was denied on December 5, 2023. Dkt. No. 1211.
In December 2020, I granted plaintiffs' motion for attorney fees and costs for time and costs through September 4, 2020. Dkt. No. 1150. Based on reductions I required plaintiffs to make, in January 2021 I set the final amount of attorney fees and costs awarded to plaintiffs in the amount of $12,782,891.25 and non-statutory costs in the amount of $998,119.17. Dkt. No. 1154 (collectively “2021 Attorney Fees and Costs Award”).
Plaintiffs now seek a supplemental award of $1,502,400 in attorney fees for additional time incurred in district court and appellate proceedings between September 5, 2020 and December 18, 2023. Dkt. Nos. 1224, 1224-3. The time and tasks justifying the requested fees breakdown as follows:
Planned Parenthood Federation of America (“PPFA”), Planned Parenthood: Shasta-Diablo dba Planned Parenthood Northern California (“PPNorCal”), Planned Parenthood Mar Monte (“PPMM”), Planned Parenthood of the Pacific Southwest (“PPPSW”), Planned Parenthood Los Angeles (“PPLA”), Planned Parenthood/Orange and San Bernardino Counties (“PPOSBC”), Planned Parenthood Central Coast California (“PPCCC”), Planned Parenthood Pasadena and San Gabriel Valley (“PPPSGV”), Planned Parenthood of the Rocky Mountains (“PPRM”), Planned Parenthood Gulf Coast (“PPGC”), and Planned Parenthood Center for Choice's (“PPCFC”), (collectively “plaintiffs”).
(i) Phase 1: 355.8 hours billed from September 5, 2020 through February 26, 2021 (the date defendants filed their opening appellate briefs) for work on the prior motion for attorney fees, opposing defendants' motion to compel production of individual attorney time records, and litigation over the bond amount. Plaintiffs calculate their lodestar using the billing rates that I approved in the 2021 Attorney Fees and Costs Award and then apply a 25% discount to that lodestar in order to account for any duplication or inefficient work. After that deduction, plaintiffs seek $220,521.00 for Phase 1. Declaration of Steven L. Mayer, Dkt. No. 1224-1, Ex. B.
(ii) Phase 2: 1092.1 hours billed for time reviewing and responding to defendants' four separate appellate opening briefs raising dozens of issues in one consolidated answering brief, that was over three times longer than a typical answering brief. After the 25% voluntary reduction, plaintiffs seek $773,031.75 for Phase 2. Id.
(iii) Phase 3: 224.1 hours billed for time preparing for oral argument at the Ninth Circuit. After the 25% voluntary reduction, totaling $173,159.63. Id.
(iv) Phase 4: 67.3 hours billed for reviewing and preparing the consolidated response to defendants' four petitions for rehearing and/or rehearing en banc requested in the Ninth Circuit. After the 25% voluntary reduction, totaling $51,869.25. Id.
(v) Phase 5: 158.8 hours billed for reviewing and filing oppositions to defendants' four separate petitions for certiorari at the Supreme Court. After the 25% voluntary reduction, totaling $141,178.50. Id.
(vi) Phase 6: 181 hours billed for time opposing defendants' Rule 60 motion for relief from the Judgment and preparing and filing this motion for supplemental attorney fees. After the 25% voluntary reduction, totaling $142,639.88. Id.
The requests are supported by declarations from each of the timekeepers whose time is sought, explaining the work they did in each phase, how they kept contemporaneous time records, and what time was not included or discounted.
Dkt. Nos. 1224-1 (Declaration of Steven Mayer), 1224-5 (Declaration of William Perdue), 12247 (Declaration of Meghan Martin), 1224-8 (Declaration of Liam O'Connor), 1224-9 (Declaration of Rhonda Trotter), 1224-10 (Declaration of Diana Sterk), 1224-11 (Declaration of Jeremy Kamras), 1224-12 (Declaration of Sharon Mayo), 1224-13 (Declaration of Matthew Diton), 122414 (Declaration of Oscar Ramallo).
Defendants oppose the request, relying first on an argument I rejected in connection with the 2021 Attorney Fees and Costs Award. Defendants argue that plaintiffs cannot prove the reasonableness of the time billed without producing the underlying timesheets given the “massive” size of the fees request and because without timesheets defendants cannot assess plaintiffs' exercise of billing judgment (the across the board reduction of 25% of the time and decisions not to charge certain time) or the reasonableness of the tasks each biller performed. Oppo. at 1-5. Without the underlying timesheets, defendants complain that they cannot attack reasonableness and I cannot determine reasonableness of the hours claimed. Id.
In connection with the 2021 Attorney Fees and Costs Award, I denied defendants' motion to compel production of plaintiffs' counsels' timesheets. After reviewing the detailed declarations (and after I disallowed a number of hours sought), I found the hours that I awarded to be reasonable. As I explained, while plaintiffs did not produce their counsels' timesheets, the “highly detailed declarations and Chart provided sufficient information to allow me to determine and defendants to contest the reasonableness of plaintiffs' fee request.” Dkt. No. 1150; see also Dkt. No. 1139. The declarations and charts submitted in support of the current motion are likewise highly detailed and explain who worked on what filings at what stages of this case and why the various levels of effort were required at each stage. Individual counsel also described how each tracked their time and when and whether they personally exercised billing judgment. See, e.g., Perdue Decl. ¶ 5; O'Connor Decl. ¶ 5. Lead counsel then explained that in addition to the individual billing judgment, further time was excluded. Specifically, plaintiffs seek time for only 8 of 30 attorneys and only 2 of 6 legal assistants who billed time on this matter during the relevant timeframes; plaintiffs are not seeking time for any biller whose time did not exceed $25,000 in a particular phase. Mayer Decl. ¶¶ 11, 23 & Ex. B. And finally, to account for any remaining inefficiencies for the billers whose time is sought, plaintiffs take a further 25% across the board discount for their final request. Id. ¶ 11.
As noted in the Order Denying the Motion to Compel, plaintiffs objected to producing contemporaneous timesheets because of the undue burden of having to redact hundreds of pages of timesheets for privileged and otherwise protected information (e.g., references to individuals whose identities had not been disclosed at trial and work product/attorney client information) which was a significant concern given the security issues at the heart of this case. Dkt. Nos. 1139, 1150. The legal and factual analysis in those prior orders continue to apply and that analysis is fully incorporated herein.
As a result, plaintiffs' counsel are seeking only 55% of the lodestar they incurred. Mayer Decl. ¶ 11.
Defendants argue that they cannot assess the reasonableness of hours for which plaintiffs seek compensation because although the hours spent by each biller on tasks in each phase are identified, they cannot see where there might be block billing or inefficiencies. However, the reductions described above - particularly the 25% across the board reduction - alleviate the potential impact of any possible block billing and inefficiencies. Defendants also argue that other than for Phase 1 and Phase 6 time (time billed on district court proceedings), I cannot assess the reasonableness of the time spent on the Ninth Circuit and Supreme Court phases because I do not have personal knowledge or understanding of the time it would be reasonable for plaintiffs' counsel to have spent on the work in those phases. Oppo. at 2-3. That is incorrect. The declarations explain in detail the work completed during those phases, e.g.: responding to four opening briefs and amicus briefs that did not overlap much; responding to four petitions for certiorari that likewise raised different issues with respect to the different sets of defendants; and how substantial additional procedural and legal research and original writing was required at the different stages, although efficiencies were achieved, often by assigning different issues to the attorneys who handled them at trial. See, e.g., Mayer Decl. ¶¶ 18-21; Perdue Decl. ¶¶ 12, 14.
Defendants do not suggest how much time their counsel spent on any of the Phases or tasks identified by plaintiffs as a basis for unreasonableness in plaintiffs' counsels' hours by task or phase. Nor do defendants identify any particular biller or task to which they object, except for one. Defendants attack the 130 hours Perdue spent on Phase 5, opposing the petitions for certiorari. Oppo. at 3-4. They argue that time was unreasonable given that the petitions raised “almost exclusively” the same issues Perdue had briefed and argued in the Ninth Circuit. Id. However, plaintiffs' counsel had to respond to eight separate questions presented, rebut the asserted grounds for certiorari, rebut the asserted grounds for summary reversal, and address the arguments that were specific to the different sets of defendants. See Mayer Decl. ¶ 24; Perdue Decl. ¶ 14. The time spent was reasonable, and any potential inefficiencies addressed by the reductions described above.
I have already rejected defendants' reiterated arguments that the hourly rates sought by billers at Arnold & Porter are excessive. See Dkt. No. 1150 at 2-5. That analysis is adopted and incorporated herein. Based on rates approved for similar complex work in the San Francisco Bay Area, I again approve the reasonableness of the rates requested. See Reply at 11-12 (citing Northern District of California cases approving comparable rates).
Defendants make one substantive “entitlement” argument for one category of time claimed by plaintiffs; the time spent on appeal defending the injunctive relief plaintiffs secured. Oppo. at 6-7. Defendants argue that time is not compensable because injunctive relief was granted under California's Unfair Competition Law (“UCL,” Cal. Bus. & Prof. Code § 17200 et seq.) and the UCL does not provide a basis for attorney fees. However, injunctive relief was awarded based on the violation of the Florida recording statute as well as the UCL. Dkt. No. 1073 (“Order Resolving Unfair Competition Claim and Entering Judgment”) at 38. The time plaintiffs' counsel spent defending the injunctive relief on appeal is also justified because of the overlap and relatedness between the evidence and legal bases justifying injunctive relief under both Florida law and the UCL. See Dkt. No. 1150 (“The legal theories and evidence relevant to the claims providing for attorney fees broadly overlapped with the legal theories and evidence relevant to the claims on which plaintiffs were successful but do not independently provide for fees.”).
After reviewing plaintiffs' detailed submissions, I find there is only one category of time in Phase 1 that should not be compensated; the time plaintiffs incurred responding to and accounting for the deductions I mandated in the 2020 Order on Motion for Attorney Fees and Costs. See Diton Decl. ¶ 5; see also Dkt. No.1150 at 8-9. That time should be excluded.
Other than the one small deduction identified, plaintiffs' motion for an award of supplemental attorney fees is GRANTED. Within ten days of the date of this Order, plaintiffs shall submit a revised Proposed Order accounting for the required Phase 1 deductions.
IT IS SO ORDERED.