Opinion
Civil Action 99-0824-RV-S
April 6, 2001
REPORT AND RECOMMENDATION
This matter is before the undersigned on the plaintiffs' amended petition for attorneys' fees and expenses. (Doc. 92). The District Court has referred the plaintiffs' petition to the undersigned for report and recommendation. (Doc. 95). The plaintiffs have filed memoranda and evidentiary materials in support of their position, (Docs. 93-94, 102-03), to which the defendants have responded. (Docs. 99, 104). After careful consideration of the foregoing materials and of the parties' arguments expressed at oral argument on March 30, 2001, the undersigned respectfully recommends that the plaintiffs be awarded reasonable attorneys' fees and costs in the amount of $71,414.57.
BACKGROUND
The plaintiffs, Christian Coalition of Alabama ("CCA") and David and Margie Richey ("the Richeys") filed the present action on September 8, 1999, challenging several aspects of Alabama's Fair Campaign Practices Act ("FCPA"). (Doc. 1). On September 16, 1999, the District Court heard oral argument of the plaintiffs' motions for immediate injunctive relief prior to an October 12, 1999 state lottery referendum as to which CCA desired to distribute voter guides urging defeat of the measure. At the conclusion of the hearing, the Court orally announced its denial of the motions, a ruling embodied in the Court's September 20, 1999 written order. (Doc. 21).
The plaintiffs filed a notice of appeal the next day, along with a motion for injunction pending appeal. (Docs. 22, 26). The District Court determined it lacked jurisdiction to rule on the motion. (Doc. 28). On October 5, 1999, the Eleventh Circuit denied the plaintiffs' emergency motions for injunction pending appeal and to expedite the appeal. (Doc. 32). After it was largely mooted by the holding of the referendum, the plaintiffs voluntarily dismissed their appeal on or before October 26, 1999. (Doc. 35).
On June 8, 2000, the parties filed competing motions for summary judgment. (Docs. 53, 57). On September 5, 2000, the District Court heard oral argument of these motions. On November 13, 2000, the District Court entered an order granting in part and denying in part the plaintiffs' motion for summary judgment. (Doc. 82). The plaintiffs' original petition for fees and expenses was filed November 28, 2000. (Doc. 84).
CONTENTIONS AND RULING
As noted by the District Court, the FCPA defines a "political committee" to include "[a]ny . . . association . . . or other group of one or more persons which receives or anticipates receiving contributions or makes or anticipates making expenditures to or on behalf of any proposition . . . ." Ala. Code § 17-22A-2(a)(10). A "contribution" or an "expenditure" includes, with certain exceptions, "anything of value . . . made for the purpose of influencing the result of an election." Id. § 17-22A-2(a)(2)a, -2(a)(4)a.
Any organization constituting a "political committee" is thereafter required to comply with certain registration, organizational, recordkeeping and reporting requirements. In brief, a political committee must file a statement of organization, Ala. Code § 17-22A-5; open a bank account and appoint a treasurer to keep an account of contributions, expenditures, contributors and recipients, id. §§ 17-22A-3, -6; and file periodic reports, open for public inspection, that disclose the identity of each person making contributions or receiving expenditures of over $100 within the calendar year. Id. §§ 17-22A-10 (a), -11(2). (Doc. 82 at 3-4).
Some or all of these requirements are contingent upon the political committee anticipating the receipt of contributions or the making of expenditures in excess of $1,000 during a calendar year.
CCA's president has declared, under penalty of perjury, that CCA's mission is to inform and mobilize Christians about important public issues. CCA desires to spend more than $1,000 in a calendar year to produce and distribute voter guides that expressly advocate the passage or defeat of various ballot measures. However, CCA will not do so unless the FCPA's requirements are held inapplicable to CCA. (Doc. 54, Exhibit A). The purpose of the instant lawsuit was to obtain relief from certain provisions of the FCPA so as to allow CCA to create and distribute such voter guides unimpeded.
The plaintiffs challenged each of the previously cited aspects of the FCPA, namely: (1) that political committees must register with the state; (2) that political committees must (a) appoint a treasurer, (b) maintain and use a bank account, and (c) create and maintain records of contributions and contributors, expenditures and recipients; (3) that political committees must periodically file reports disclosing the identity of donors and recipients of over $100; and (4) independent of any affirmative obligations, that the label "political committee" attaches to organizations engaging in certain activity as set forth in the statutory definition. (Doc. 82 at 10-11).
The District Court held that, as long as CCA's major purpose is not to engage in election activity, CCA cannot be required to comply with the registration, organizational and recordkeeping requirements of the FCPA. (Doc. 82 at 36). The Court further held that CCA is subject to the label of "political committee" if it meets the statutory definition, ( id. at 50-54), and that CCA thereafter is required to comply with the disclosure provisions of the FCPA. ( Id. at 36-50).
PLAINTIFFS' REQUEST
The amended petition sought attorneys' fees of $97,150.00 and costs of $10,549.41 for lead counsel, (Doc. 92), representing work through December 7, 2000. (Doc. 94, Exhibit C at 77). Following oral argument, lead counsel submitted an amended pre-bill worksheet reflecting fees and costs through March 20, 2001 of $105,268.75 and $12,798.32, respectively. (Doc. 103 at 85).
The original petition also sought fees and costs totaling $13,500.00 for present and former local counsel. (Doc. 84). The amended petition contains no figures with respect to local counsel. (Doc. 92). Nor have the plaintiffs, who bear the burden of proof, presented any evidentiary support for the award of costs or fees to local counsel. This deficiency was brought to counsel's attention by the undersigned but has not been corrected. Accordingly, any request for fees and costs with respect to local counsel is due to be denied.
The plaintiffs' initial brief suggests that proof of local counsel's time has been provided, (Doc. 93 at 7), but it has not.
ANALYSIS
The plaintiffs brought this action pursuant to 42 U.S.C. § 1983. (Doc. 1 at 3). The award of attorneys' fees and costs to a successful Section 1983 plaintiff is governed by 42 U.S.C. § 1988.
I. Prevailing Party.
Only a "prevailing party" may be awarded attorneys' fees. 42 U.S.C. § 1988 (b). "[A] plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); accord Dillard v. City of Greensboro, 213 F.3d 1347, 1353-54 (11th Cir. 2000). There is no doubt that the plaintiffs are prevailing parties under this standard.
II. Lodestar.
The Court first determines a lodestar amount of fees, based on "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The burden rests on the plaintiffs to establish these elements. Id.
A. Hours Reasonably Expended.
The amended pre-bill worksheet seeks compensation for a total of 809.00 hours. (Doc. 103 at 85-86). of the total hours, approximately 687 hours were spent in prosecuting the merits of the case, up until the District Court's order and final judgment of November 13, 2000. This figure appears high, given that very little discovery was conducted and that the issues presented were almost totally legal in nature. On the other hand, out of 60 pages of time entries made prior to the District Court's order and judgment, almost half were made in pursuing immediate injunctive relief in the District Court and the Eleventh Circuit, (Doc. 103 at 1-27), so that barely half of the entries concerning the merits were then expended in preparing the case for final resolution. Viewed in this fashion the hours expended, though approaching the outer bounds of reasonableness, cannot be said to exceed them.
The file reflects only a single, short set of interrogatories and requests for production, served by the plaintiffs, and a single deposition, taken by the plaintiffs. See Local Rule 5.5(d) (requiring notice to the clerk of all tendered discovery).
Each of approximately 1,000 time entries on the amended pre-bill worksheet is billed in 15-minute increments. Thus, for example, each of several hundred entries for telephone calls and conferences has been billed at a 15-minute minimum, regardless of the actual time involved. The majority of courts addressing this issue have reduced the fee request to redress billing inflation inherent in this practice. E.g., Ramsay v. State Public Service Commission, 2000 WL 426187 (M.D. Ala. 2000) (reducing each entry by 7.5 minutes); Inman v. Apfel, 2000 WL 1221858 (M.D. Fla. 2000) (same). However, because the defendants have not objected to this questionable billing practice, it is not addressed herein.
The requested hours up to entry of final judgment exclude approximately 30 hours changed to "no charge" entries pursuant to attorney billing discretion. (Doc. 94 at 2; Doc. 103 at 85-86). With isolated exceptions too small and infrequent to require correction by the Court, these deletions satisfy counsel's obligation to make a "good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. at 434.
See, e.g., Doc. 103 at 40, 62 ("fax letter"); id. at 55 ("organized file").
After the District Court's order and judgment, an understandable flurry of telephone conversations with clients and the media followed. (Doc. 103 at 61-62). Counsel also crafted one or more "advice letters" to CCA, "explaining the outcome of the lawsuit." ( Id. at 67). The plaintiffs have made no showing that these post-final judgment communications played any role in obtaining or protecting the relief they secured. Absent such a showing, these hours cannot be deemed "reasonably expended." See Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986) (cited by the plaintiffs) (client conferences are not compensable without some showing by the prevailing party as to how they may have aided the client's case). As the plaintiffs recognize, (Doc. 93 at 4), the Court has an independent obligation to exclude hours not reasonably expended even if not excluded by the prevailing party. The 11.25 hours billed for these activities therefore must be excluded. This reduces the lodestar amount by $1,202.50.
In contrast, time spent responding to the defendants' motion to alter or amend the judgment, (Doc. 85), plainly was expended to preserve the favorable aspects of the District Court's ruling.
Two excluded hours were billed at $120, nine hours at $100, and .50 hour at $175.
A prevailing party is entitled to reasonable compensation for time reasonably spent in litigating the fee petition. E.g., Martin v. University of South Alabama, 911 F.2d 604, 610 (11th Cir. 1990); Jonas v. Stack, 758 F.2d 567, 568 (11th Cir. 1985). The plaintiffs' amended pre-bill worksheet reflects a total of 83.75 hours expressly or patently attributable to the fee petition. (Doc. 103 at 61-70). The plaintiffs have offered no explanation why such a large number of hours, representing more than 10% of the total hours claimed, was required to present their fee petition. The petition is accompanied only by routine and easily created documents — computer-generated billing records, affidavits of counsel, and Martindale-Hubbell listings. (Doc. 94). While the defendants raised several objections to the fee petition, none of these issues is complex, either legally or factually, and the plaintiffs were able to make all their points in 14 pages of brief. (Docs. 93, 102). The undersigned concludes that no more than 24 hours was reasonably expended in support of the fee petition, plus 12 hours travel time to and from Terre Haute, Indiana for oral argument before the undersigned. This reduces the lodestar amount by $4,475.
In contrast, the plaintiffs' briefing on motion for summary judgment consumed over 100 pages. (Docs. 54, 62, 63, 66, 68, 76). Moreover, the plaintiffs apparently borrowed from prior fee petitions in preparing the present one. ( See Doc. 93 at 5 (arguing that the plaintiffs prevailed as to all disputed aspects of "Vermont Election Law.")).
The recommendation excludes 47.75 hours billed at $100 per hour.
In summary, the plaintiffs seek compensation for 809.00 hours. Eliminating hours spent in post-judgment communications with clients and the media, and eliminating hours not reasonably expended in support of the fee petition, the total number of hours reasonably expended in the litigation is 750.00.
B. Reasonable Hourly Rate.
"The hourly rate must be determined with reference to prevailing market rates in the relevant community for `lawyers of reasonably comparable skill, experience, and reputation.'" Davis v. Locke, 936 F.2d 1208, 1215 (11th Cir. 1991) (quoting Blum v. Stenson, 465 U.S. 886, 895 n. 11 (1984)). The plaintiffs bear the burden of proving the claimed hourly rate is justified. Id.
Mr. James Bopp served as lead counsel for the plaintiffs. His extensive experience and substantial reputation are reflected in the curriculum vita attached to his declaration. (Doc. 94, Exhibit A). This history, as well as his representation of plaintiffs in connection with numerous published opinions exploring the relationship between various campaign finance laws and the First Amendment, is ample proof that his requested rate of $200 per hour is reasonable.
Following entry of final judgment, Mr. Bopp billed 1.25 hours at $175 per hour. (Doc. 103 at 65. 67-68). of this amount, .50 hour has been excluded from compensation as discussed in Part II.A.
Most of the work on this case was billed by Mr. Bopp's associates. The plaintiffs seek compensation for all associates at a rate of $120 per hour for work performed through December 19, 2000 and $100 per hour thereafter. (Doc. 103 at 85-86).
One associate, Mr. Chad Bungard, performed most of the work at the associate level. The plaintiffs seek compensation for Mr. Bungard's efforts at the rate of $120 per hour for 535.75 hours and $100 per hour for 8.75 hours. (Doc. 103 at 85). To support this request, the plaintiffs rely on the affidavit of Mark Ulmer, a local attorney. Mr. Ulmer states that, based on his experience and awareness of local customary billing practices, "[a] rate of $125.00 per hour is within the range of reasonable market rates for associates engaging in complex litigation." (Doc. 94, Exhibit D.)
As discussed in Part II.A, 2.0 hours of Mr. Bungard's time billed at $120, and 8.0 hours of his time billed at $100, have been excluded from compensation as not reasonably expended.
While Mr. Ulmer's affidavit discusses an hourly rate of $125, the plaintiffs seek compensation at $120 per hour.
Mr. Ulmer's affidavit fails to carry the plaintiffs' burden of proof concerning an appropriate hourly rate for Mr. Bungard. As a threshold matter, the plaintiffs have not established that this case fits within any reasonable definition of "complex litigation." The Manual for Complex Litigation, for example, while not defining the term, devotes its attention to such classes of cases as antitrust, patents, mass disasters, securities litigation, takeover litigation, superfund litigation, RICO and class actions. Manual for Complex Litigation (Third) § 33 (1995). The present case certainly presented a complex legal issue, but it did not involve large numbers of parties, documents or motions — all hallmarks of complex litigation.
Mr. Bungard's duties were primarily research and writing. That he billed for such things as organizing the file, telefaxing letters and conversing with travel agents and court reporters, (Doc. 103 at 40, 47, 55, 60), simply underscores that he was not performing "complex litigation" work.
More importantly, Mr. Ulmer's affidavit fails to establish that a local area associate of Mr. Bungard's "skill, experience, and reputation" could command $120 per hour for his services, in complex litigation or otherwise. Mr. Bungard graduated from law school in the spring of 1999 and began work on this case August 25, 1999, presumably just after completing the bar examination. (Doc. 94, Exhibit B at 2; Doc. 103 at 1). Whether or not an associate in the local area seasoned with several years experience could bill and collect $120 per hour, the plaintiffs have offered no evidence that Mr. Bungard's skill, experience and reputation are such that he, as a first-year associate, could command such a rate.
As the plaintiffs have failed to meet their burden of proving an appropriate rate for Mr. Bungard's services, the Court must "reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. at 433. Because the defendants have failed to identify or establish any alternative reasonable hourly rate, the undersigned recommends an hourly rate of $100 for Mr. Bungard. While such a rate almost certainly still exceeds the maximum reasonable rate, this reduction at least eliminates the worst excesses of the plaintiffs' request. Had the defendants properly challenged Mr. Bungard's rate, a significantly lower rate likely would have been determined.
C. Summary.
It is recommended that the plaintiffs' proposed lodestar amount be reduced as follows:
Plaintiffs' proposal: $105,268.75
Post-judgment contact with clients and media: (1,202.50)
Hours not reasonably expended on fee petition: (4,775.00)
Reduced hourly rate for Mr. Bungard: (10,675.00) ____________
Revised lodestar amount: $88,616.25
III. Adjustments to Lodestar.
The lodestar amount may be adjusted up or down. E.g., Dillard v. City of Greensboro, 213 F.3d at 1353. The plaintiffs seek no upward adjustment, but the defendants seek a downward adjustment on the grounds that the plaintiffs achieved limited success. (Doc. 99 at 2-3).
Because "[t]he result is what matters, `the Supreme Court has held that' [w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." Hensley v. Eckerhart, 461 U.S. at 435. Thus, when the plaintiff receives the result sought, the lodestar cannot be adjusted downward simply because the plaintiff did not prevail on every theory advanced to support that result or did not prevail on every tactical maneuver attempted to obtain the result. E.g., Perry v. Bartlett, 231 F.3d 155, 162-63 (4th Cir. 2000) (no abuse of discretion in awarding attorneys' fees to a prevailing party for an earlier, unsuccessful interlocutory appeal), cert. denied, 121 S.Ct. 1229 (2001); Davis v. Locke, 936 F.2d at 1014 (no abuse of discretion not to reduce attorneys' fee award when the plaintiff presented five legal theories of liability arising from his arrest following escape but prevailed on only one of them).
On the other hand, a downward adjustment is appropriate if "the plaintiff fail[ed] to prevail on claims that were unrelated to the claims on which he succeeded" or if "the plaintiff [did not] achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award." Hensley v. Eckerhart, 461 U.S. at 434.
The defendants argue for a downward adjustment based on three areas of limited success: (1) the plaintiffs' failed attempt to secure immediate injunctive relief from the District Court; (2) the plaintiffs' abandoned appeal to the Eleventh Circuit; and (3) the relief ultimately achieved on the merits. (Doc. 99 at 2-3).
The first justification for a downward adjustment identified by the Hensley Court is not implicated by the defendants' challenges. While the defendants' objections address three different phases of the litigation, each phase concerned the same core issues concerning the enforceability of various aspects of the FCPA. All claims were asserted at each level, and each was closely related to the others. The second exception, however, which requires the Court to "focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation," Hensley v. Eckerhart, 461 U.S. at 435, is applicable.
That the District Court and Eleventh Circuit denied immediate injunctive relief furnishes no grounds for a downward adjustment because these were mere "temporary setback[s]" partially vindicated by the plaintiffs' ultimate, albeit partial, success on the merits. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-53 (9th Cir. 1991).
As noted, the District Court's ruling allows CCA to distribute its voter guides in connection with various ballot initiatives without having to file a statement of organization, open a bank account, appoint a treasurer, or keep detailed records of contributions and expenditures. However, the District Court's ruling also leaves CCA subject to the FCPA's disclosure requirements, obligating CCA, if it chooses to distribute its voter guides, to file periodic reports identifying contributors and expenditure recipients of over $100. Moreover, the District Court's ruling also leaves CCA subject to the "political committee" label that attaches to organizations engaging in the activity in which CCA wishes to engage.
The plaintiffs do not attempt merely to minimize the significance of these defeats but rather deny their existence altogether, insisting that they were "completely successful." (Doc. 102 at 1, 2). The plaintiffs' brave face, however, cannot mask either the reality or the significance of their substantial failures to prevail on the merits. A review of the plaintiffs' filings makes it unquestionably clear that, while they challenged several other aspects of the FCPA, those aspects most threatening to CCA were the disclosure requirements and the "political committee" label, which challenges the plaintiffs lost.
With respect to the FCPA's disclosure requirements, CCA's president declared that "many" of CCA's contributors would be discouraged from contributing more than $100 should the disclosure requirements be upheld, for fear their association with CCA would be revealed. (Doc. 54, Exhibit A). Several contributor declarants confirmed they would no longer contribute over $100 to CCA if the disclosure requirement were upheld. ( Id., Exhibits O-T). The plaintiffs' briefs state repeatedly that "many" contributors will not contribute over $100 a year if the disclosure requirements are upheld.
With respect to the "political committee" label, CCA's president declared that the past and future "primary" means of distributing CCA's voter guides is as inserts in church bulletins. The president predicted that "most" churches will not distribute the voter guides if CCA is deemed to be a "political committee," because the churches fear adverse repercussions concerning their tax-exempt status if they associate with a "political committee." (Doc. 54, Exhibit A). Several pastors filed declarations confirming they would no longer distribute voter guides if CCA is deemed to be within the definition of a "political committee." ( Id., Exhibits I- M). Similarly, CCA's president declared that being labeled a "political committee" would cause "many" of CCA's contributors to be discouraged from making any contribution of any amount "because they do not give to `political committees' as a matter of personal choice." ( Id., Exhibit A). Again, the plaintiffs' briefs repeatedly state that "many" of CCA's contributors will not contribute to CCA at all should the "political committee" label be upheld.
The plaintiffs' briefs describe these negative results — all of which flow exclusively from those portions of the FCPA that the District Court upheld — in dramatic terms. The disclosure requirements and "political committee" label impose "major adverse consequences," "severely burden" CCA's relations with its contributors, and "stymie" CCA's ability to "mount up resources," all of which restricts CCA's ability to fulfill its mission. (Doc. 54 at 8-9, 46-48). Being deemed a "political committee" carries "severe adverse consequences" for CCA's mission due to the resultant loss of churches as distributors, which would "severely restrict [CCA's] ability to communicate with the very people it exists to inform and to mobilize"; such a loss would be "extremely critical." ( Id. at 46-48). Combined, the disclosure requirements and "political committee" label "shake the very foundation of [sic] which CCA was organized." ( Id. at 49; Doc. 62 at 12). The president's declaration echoes these themes.
The plaintiffs make no effort to explain away these numerous representations as to the severe adverse effects of the FCPA's disclosure requirements and "political committee" label. Indeed, they ignore the latter aspect of the District Court's ruling altogether. With respect to the disclosure requirements, they suggest that the District Court held that the disclosure requirements apply "only with respect to expenditures actually made for express advocacy, and to contributions which are expressly earmarked for that purpose." (Doc. 102 at 3). The plaintiffs deny having sought any further restriction on the disclosure requirements. ( Id.)
In fact, the District Court did not "hold" that the contribution disclosure requirement is so limited. In rejecting the plaintiffs' facial vagueness/overbreadth challenge, the Court did conclude that the Alabama courts would most likely construe the FCPA to require disclosure only of contributions (and expenditures) "for the purpose of express advocacy." (Doc. 82 at 39). The District Court then rejected the plaintiffs' assertion that the "for the purpose of express advocacy" standard is itself so vague and/or overbroad as to be unconstitutional. ( Id. at 39-42). In what it plainly flagged as dictum, the District Court then identified contributions expressly earmarked for express advocacy as an example of a contribution presumably satisfying the "for the purpose of express advocacy" threshold for disclosure. ( Id. at 42 n. 25). The Court identified two additional examples of contributions presumably subject to disclosure (contributions received in response to an express advocacy solicitation and contributions from persons or entities obviously interested in express advocacy), without purporting to establish the examples, even in dictum, as an exclusive set. ( Id.) On the contrary, the Court suggested that the only minimum qualification for satisfying the "for the purpose of express advocacy" standard would presumably turn out to be some "indicat[ion]," however discerned, of a desire by the contributor to use the contribution for express advocacy. ( Id.)
Moreover, the plaintiffs in brief repeatedly requested the District Court to strike down the disclosure requirements in toto, without any indication they desired only a limiting construction of their scope. Nor do their evidentiary materials or briefs support any suggestion that CCA's coffers, and the fulfillment of its mission, would be inimpeded by a disclosure requirement applicable only to contributions "expressly earmarked" for express advocacy. Even if such a conclusion could be gleaned from the plaintiffs' filings, the devastating impact of the FCPA's "political committee" label, on both contributions and distribution of voter guides, remain intact.
Although the plaintiffs failed to achieve a major portion of that which they sought, they may nevertheless avoid downward adjustment of the lodestar amount if the success they did achieve, of itself, justifies an award of the entire lodestar amount. Hensley v. Eckerhart, 461 U.S. at 435 (a plaintiff that fails to recover damages but obtains injunctive relief "may recover a fee award based on all hours reasonably expended if the relief obtained justified that expenditure of attorney time"). The plaintiffs' limited success with respect to the FCPA's registration, organizational and recordkeeping provisions, however, do not justify the plaintiffs' entire expenditure of time because these provisions impose on a political committee requirements only modestly in excess of those such an organization would ordinarily undertake on its own.
The statement of organization requires only basic, readily available information, in particular, name, address, related organizations, purposes, candidates and/or ballot initiatives being supported or opposed, expected dissolution date and disposition of residual funds, and the identity of officers and other key persons. Ala. Code § 17-22A-5 (b). That the statement must be updated as appropriate, id. § 17-22A-5(c), is at most a minor inconvenience.
The only organizational requirements imposed by the FCPA are to appoint a treasurer and maintain a bank account into which all contributions are deposited and from which most expenditures are paid. Ala. Code §§ 17-22A-3(c)(1), -6. The plaintiffs have not stated whether CCA already has a treasurer or a bank account, but it is not an extraordinary requirement for an organization receiving contributions of over $133,000 in a two-year period and spending in excess of $228,000 in the same period. (Doc. 54, Exhibit D).
The recordkeeping requirements imposed by the FCPA are the most significant aspect of the plaintiffs' limited success. Political committees subject to these requirements must keep a "detailed, exact account" of all contributions of any amount. Similar records must be kept of all expenditures, including the date and amount of each expenditure, the identity of the recipient, the election the expenditure is intended to influence and, with respect to recipients of over $100 in a year, receipted bills or canceled checks. All such records must be kept for two years. Ala. Code § 17-22A-3(c), (d).
While these recordkeeping requirements may be inconvenient, they are not onerous. As a threshold matter, the statutory definition of "contributions" and "expenditures" limits the recordkeeping requirement to contributions and expenditures made "for the purpose of influencing an election"; records of other income and expenses need not be maintained. Moreover, a reasonably prudent organization of CCA's size may reasonably be expected to maintain records concerning the identity of its contributors and the amounts of their contributions. Similarly, the recordkeeping required for expenditures rises scarcely above that which a reasonably prudent organization would maintain independently of the FCPA; indeed, an ordinary check register and bank statement would contain most of the required information. The plaintiffs have not established, or even suggested, that they maintain no such records.
Notably, the plaintiffs' filings before the District Court do not support any suggestion that the FCPA's registration, organizational and recordkeeping requirements could have a significant adverse effect on CCA if upheld. The plaintiffs' evidentiary materials are completely silent, and their briefs simply state, repeatedly but without amplification, that compliance would be "burdensome." (Doc. 54 at 1; Doc. 66 at 7). In light of the facially unimposing character of the FCPA's registration, organizational and recordkeeping requirements, the plaintiffs's ipse dixit that compliance would be "burdensome" is insufficient to show that these provisions formed the heart of their lawsuit.
In summary, the plaintiffs' modest success in comparison to their large attorneys' fees request compels a downward departure from the lodestar amount. The Court has discretion to "simply reduce the award to account for the limited success." Hensley v. Eckerhart, 461 U.S. at
436-37. At oral argument, the defendants proposed a $30,000 reduction to account for the plaintiffs' limited success. In view of the above analysis, such a reduced recovery is appropriate if not generous.
IV. Costs.
The defendants object to the separate billing of computerized legal research. They rely on a case holding that computerized legal research expenses are not recoverable under 28 U.S.C. § 1920. Duckworth v. Whisenant, 97 F.3d 1393 (11th Cir. 1996). Section 1920 sets forth a specific, exclusive list of costs recoverable under that statute. Because the plaintiffs seek to recover costs under Section 1988, not Section 1920, Duckworth is irrelevant.
The defendants originally objected as well to the plaintiffs' telecopying charges. (Doc. 99 at 3). At oral argument, they conceded this was a "de minimis" issue, effectively withdrawing their objection.
There is no prophylactic rule in the Eleventh Circuit barring the recovery of computerized legal research expenses. On the contrary, the Court has noted that, "in our experience, they are often billed separately as expenses by reputable lawyers and law firms," such that "[w]e doubt, therefore, that they can be held to be `overhead' in some invariable, absolute legal sense." In re: Hillsborough Holdings Corp., 127 F.3d 1398, 1400, 1404 (11th Cir. 1997). Thus, "[a] panel of this court has already determined that reasonable costs of computerized research may be recoverable." Terry Properties, Inc. v. Standard Oil Co., 799 F.2d 1523, 1540 (11th Cir. 1986) (citing Johnson v. University of Alabama in Birmingham, 706 F.2d 1205, 1209 (11th Cir.) (a Section 1988 case), cert. denied, 464 U.S. 994 (1983)).
CONCLUSION
For the reasons set forth, it is recommended that the plaintiffs be awarded reasonable attorneys' fees in the amount of $58,616.25 and reasonable costs in the amount of $12,798.32.
The attached sheet contains important information regarding objections to this report and recommendation.