$206,500.50 In Fees Agreed To By Plaintiffs And DOJ, But District Judge Found $82,562.50 To Be The Reasonable Amount.
Dimaio v. Wolf, Civil Case No. 20-445 (RJL) (D.D.C.) [Nov. 17, 2020 Memorandum Opn., Dkt. #30] is an interesting decision where U.S. District Judge Richard J. Leon refused to incorporate a settlement agreement containing an unreasonable attorney’s fees award into a final order of dismissal.
What was involved in this case was a challenge by certain New York residents to the U.S. Department of Homeland Security’s refusal to allow them to enroll/re-enroll in certain customs programs such as the Global Entry program based on New York’s “Green Light Law” which allows undocumented immigrants residing in New York to obtain driver’s licenses and bans federal immigration officials from accessing state DMV databases absent a court order. Unfortunately along the way, DOJ—representing the defendants—made some oral and written misrepresentations which likely spurred a settlement by which New York residents were eligible to participate in these customs programs.
Then, plaintiffs, which were represented by the large firm of Arnold & Porter Kaye Scholer, LLP on a pro bono basis, agreed with DOJ as part of the settlement to have defendants (who are funded by public taxpayers) to pay the firm $212,139.90 in attorney’s fees and costs (with $206,500.50 being the fees component). After six months of litigation and negotiations leading to the settlement, both parties wanted the fees agreement incorporated into the final order of dismissal of the case.
District Judge Leon refused to do that. He believed that the DOJ’s misrepresentations may have led to the “insider” fees agreement, but that did not prevent him from refusing to incorporate the fees agreement into the dismissal order or from opining on the reasonableness of the fees, especially when they will be taken from the public fisc.
First of all, the case was overstaffed—eight total attorneys, two partners and six associates, when less would have done—especially where the litigation lasted six months and involved drafting only one substantive motion. Second, the firm’s standard, corporate rates were unreasonable for a case of this sort, with the district judge using the USAO Laffey Matrix rates. When these factors were taken into account, $82,562.20 was deemed a much more reasonable fee award than the one set forth in the settlement agreement.
OUR FAVORITE SENTENCE FROM THE OPINION: Here is our favorite sentence from this decision by District Judge Leon—“Indeed, there was a time earlier in my career when pro bono literally meant pro bono and not a penny would be collected for the time expended by either a law firm or an individual counsel who was providing the services on a pro bono basis.”
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