Protective Order on Confidentiality



UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Western Division

______________________________________________

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ROSIE D., et al., )

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Plaintiffs )

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v. ) Civil Action No.

) 01-30199-MAP

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DEVAL PATRICK, et al., )

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Defendants )

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______________________________________________ )

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF THEIR MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS

I. Introduction

After five years of litigation, six weeks of trial, and the presentation of evidence by the plaintiffs that the Court characterized as “prodigious,” the Court concluded that the defendants violated two provisions of the federal Medicaid Act, 42 U.S.C. § 1396a(a)(8) [reasonable promptness] and § 1396a(a)(43), § 1396d(a)(4) and § 1396d(r)(5) [EPSDT], by denying children with Serious Emotional Disturbance (SED) medically necessary home-based services. Rosie D. v. Romney, 410 F. Supp.2d 18, 29 (D. Mass. 2006). “Short of bringing to court a parent or guardian for every one of the thousands of class members, and offering testimony by an expert clinician for each child, it is hard to imagine how a more meticulously constructed case could have been offered on behalf of the plaintiff class.” Id. at 30. As a result, consistent with 42 U.S.C. § 1988, the plaintiffs are entitled their attorney’s fees and costs for prevailing in this federal civil rights case brought under 42 U.S.C. § 1983.

On July 16, 2007, the Court issued its Final Judgment in this matter. Rosie D. v. Patrick, 497 F. Supp.2d 76 (D. Mass. 2007). The plaintiffs then filed an assented-to motion, and then a second motion, to extend the time for filing a fee petition, in the event that efforts to resolve their fee request were unsuccessful.[1] Consistent with that schedule, the plaintiffs have filed a Motion for An Award of Attorneys’ Fees and Costs, plus extensive exhibits.[2] This Memorandum in submitted in support of that Motion.

II. Overview of the Litigation

Since the Court is quite familiar with the history of this litigation, only a brief summary of the proceedings is set forth below.

A. The Complaint and Claims

After an extensive investigation of the children’s mental health system in Massachusetts, meetings with children’s mental health providers and professionals, consultation with the families and family organizations, review of medical records for more than a dozen potential plaintiffs, and detailed legal research of relevant legal claims, the plaintiffs sent a demand letter to the Secretary of the Executive Office of Health and Human Services in January 2001 seeking the creation of a program of home-based services, in order to avoid the necessity of this litigation. Following six months of unsuccessful negotiations, the plaintiffs filed this lawsuit on October 31, 2001.[3] The lawsuit alleged several violations of the Medicaid Act, although it primarily focused on the EPSDT provisions of the Act, 42 U.S.C. §§ 1396a(a)(10) and (43); § 1396d(a)(4) and (r)(5).

B. Motions

During the next four months, the parties agreed upon an ambitious scheduling order, exchanged disclosures, filed dispositive motions, and served initial discovery. On March 29, 2002, the Court certified a class and denied the defendants’ motion to dismiss on numerous grounds. The defendants appealed the district court’s sovereign immunity holding, and stayed all proceedings and discovery for the next eight months. The First Circuit affirmed this Court’s decision on the motion in all respects. 310 F.3d 230 (1st Cir. 2002).

In 2005, the defendants filed a lengthy and comprehensive motion for summary judgment that was denied in toto.

C. Fact Discovery

The plaintiffs propounded their initial set of interrogatories and document requests in February 2002, although the responses were stayed until February 2003. Thereafter, because the defendants refused to produce much of the requested information, the plaintiffs had to file substantive motions to compel with respect to access to class members’ records, the role of state agencies, and the duty of MassHealth to obtain documents and information from its managed care organizations. The plaintiffs substantially prevailed on these motions. See Rosie D. v. Romney, 256 F. Supp.2d 115 (D.Mass. 2003). Over the next eighteen months., additional motions to compel were filed concerning documents, interrogatories, data, and experts – all of which were allowed, at least in part.

The discovery resulted in the production of over 200,000 pages of documents from the defendants and their state agencies, the production of almost 30,000 pages of medical records from the plaintiffs, the deposition of over thirty fact witnesses and twenty experts, hundreds of deposition exhibits, and the identification of over 2,500 “high priority” documents for trial. Special legal, medical, and data consultants were retained to assist in the analysis of all of this information and the identification of weaknesses or deficiencies in the defendants’ case.

D. Experts

As with all disability cases, experts played a prominent role in this litigation. This was particularly true since the plaintiffs had to prove that home-based services were medically necessary and that these services were covered by the Medicaid Act, were clinically and cost-effective in treating the child’s condition, and were lacking in Massachusetts.

The former challenge required a team of five experts to evaluate fifty individual children, as part of the client review. A statistically significant sample had to be drawn by another expert, in order that the findings of the client review would translate into reliable evidence of the needs of the entire class. Each clinical expert reviewed thousands of pages of medical records, met with the child and family, and spoke with relevant providers.

The latter set of tasks were accomplished through a fiscal review, a Massachusetts program review, a national review of other States’ Medicaid programs, and a literature review. Each of these reviews was conducted by one or two additional experts and was critical in proving each element of the plaintiffs’ case.

E. The Trial

Prior to the trial, the plaintiffs had to respond to seven motions in limine, prepare thirty witnesses, comb through the 2,500 “high priority” documents to identify a manageable list of trial exhibits, and review over 5,000 pages of deposition transcripts and five expert reports to prepare their cross examination of the defendants’ witnesses. The trial, which extended over seven weeks, included over twenty-five witnesses for the plaintiffs and fifteen for the defendants. There were almost five hundred plaintiffs’ exhibits and one hundred defendants’ exhibits that were ultimately admitted, drawn from proposed lists that exceeded twelve hundred documents.

Each party submitted seventy pages of proposed findings and conclusions, drawn from over 20,000 pages of trial transcripts.

F. The Remedy

At the direction of the Court, the plaintiffs spent eight months negotiating a remedial plan with the defendants. Meetings were held at least bi-weekly for most of this period, with the plaintiffs generating the initial draft of each section of the plan. The plan included nine discrete substantive components along the pathway to home-based services (education and informing, screening, assessment, care coordination, treatment teams and treatment planning, covered services, delivery system, evaluation, and reporting and monitoring), as well as a introductory section that described the principles of the new system and a concluding section with a timetable for its implementation. There were at least three, and usually five, drafts of each component, plus numerous appendices and model documents. Three retained consultants and nine advisors assisted the plaintiffs throughout this process.

When the parties failed to reach agreement and submitted their respective plans, as ordered by the Court, the plaintiffs retained ten experts to review both plans. Each expert prepared an affidavit that addressed a discrete component of the plans, critiquing the defendants’ approach and commenting on the plaintiffs’ proposal. The plaintiffs drafted a comprehensive legal memorandum that analyzed the relevant law on remedies and summarized the views of the experts on the competing plans.

III. There Is No Dispute That the Plaintiffs Have Prevailed and Are Entitled to An Award of Attorneys’ Fees and Costs.

The United States Supreme Court has set forth the approach to follow in evaluating fee requests under 42 U.S.C. § 1988. To be entitled to an award of fees, the plaintiffs must have prevailed on some significant issue in the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782, 791-92 (1989). Once the fee entitlement threshold has been crossed, the prevailing plaintiffs’ fee award is based upon the familiar lodestar method: “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.” Hensley, 461 U.S. at 435.

Here, there is no dispute that the plaintiffs have prevailed. The Court’s January 26, 2006 Memorandum Decision succinctly concludes “that Plaintiffs have proved, by far more than a fair preponderance of the evidence, that Defendants have failed to comply with the EPSDT and “reasonable promptness” provisions of the Medicaid Act. Plaintiffs are therefore entitled to judgment with regard to liability on Counts I and II of the complaint.” Rosie D., 410 F. Supp.2d at 23. Consistent with federal fee-shifting statutes, and Supreme Court decisions applying these statutes, the plaintiffs are entitled to recover their attorneys’ fees and costs for all time reasonably expended on this case, as well as all expenses reasonably incurred.

IV. The Time Spent by the Plaintiffs’ Attorneys Is Reasonable and Fully Compensable.

A. The Plaintiffs Have Exercised Billing Judgment And Have Substantially Reduced both the Number of Attorneys and Number of Hours for Which Fees Are Requested.

Perhaps the most central consideration in determining the amount of compensable time is the determination of whether the plaintiffs have demonstrated billing judgment with respect to their fee application. “Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission…. ‘Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.’” Hensley, 461 U.S. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.D.C. 1980) (en banc).

It is important to keep in mind that the standard is what could and would be properly billed to a paying client. There is no public interest discount. As Congress noted in passing § 1988:

It is intended that the amount of fees awarded … be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases[,] and not be reduced because the rights involved may be nonpecuniary in nature.

S.Rep. No. 94-1011 at 6, reprinted in 1976 U.S. Code Cong. & Admin. News 5908, 5913. As more fully described below, the plaintiffs have eliminated thousands of hours in the exercise of billing judgment, which is well beyond what is commonplace in private commercial litigation and requested far less than would be billed to a paying client.

Consistent with the directives of the First Circuit Court of Appeals in Grendel's Den v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984), the plaintiffs have submitted detailed, contemporaneously-recorded time records which describe with particularity the date, activity, and time spent on each litigation task over an almost seven year period. See Time records of Steven Schwartz, Cathy Costanzo, Kathryn Rucker, Marcia Boundy, Frank Laski, and Consolidated Time Records of WilmerHale Attorneys, attached as Exs. 13-18.[4] Each entry was recorded daily, as a percentage of an hour, in a computerized time keeping program. See Affidavit of Steven Schwartz, (( 11-12, attached as Ex. 4; Affidavit of James Burling, ¶ 9, attached as Ex. 5; Affidavit of Frank Laski, ¶ 20, attached as Ex. 6; Affidavit of Cathy Costanzo, ¶¶ 16-17, attached as Ex. 7; Affidavit of Kathryn Rucker, (( 4-5, attached as Ex. 8; Affidavit of Marcia Boundy, ¶¶ 6-7, attached as Ex. 9. These detailed records easily satisfy the First Circuit's and Supreme Court's documentation directive. See Hensley, 424 U.S. at 433.

Based upon a careful review of these records, each attorney then exercised billing judgment to delete or reduce various entries. Hensley, 424 U.S. at 434 (good faith effort to exclude hours that are "excessive, redundant, or otherwise unnecessary"). See Affs. of Schwartz, (( 13-14; Costanzo, (( 18-19; Laski ( 21; Burling (( 39-43. They completely eliminated all time spent on legislative or media related tasks, consulting with experts who ultimately did not submit a report, court appearances where they did not actively participate, and clerical or organizational tasks. Id. They substantially reduced time on co-counsel conferences, travel, and the drafting of certain pleadings such as the complaint and the requests for production of documents. Id. They also omitted or deleted extensive time spent communicating with individual plaintiffs and relevant family and provider organizations, conducting factual and legal research, reviewing state agency documents and administrative decisions, conferring with other legal experts, and collaborating with legal and support staff in their offices. Id.

Most importantly, each firm eliminated all time spent by a large number of attorneys who significantly contributed to, but did not continuously participate in, the litigation and its success. WilmerHale voluntarily eliminated over eighty attorneys who spent over 5,000 hours on the case. Burling Aff., ¶ ¶ 39-43. CPR voluntarily eliminated three attorneys who spent over two hundred hours on the lawsuit. Schwartz Aff., ¶ 15. Taken together, they eliminated, deleted, or reduced almost 6,000 hours actually spent on this litigation, in the exercise of billing judgment. Given these substantial reductions, the plaintiffs' lodestar fairly represents the reasonable time expended by each attorney, paralegal, and law student in this case.

B. The Novelty and Complexity of This Litigation Required Multiple Attorneys With Discrete Responsibilities and Expertise.

An additional factor to be considered when evaluating the reasonableness of the time expended is the novelty and complexity of the case. As the Supreme Court noted in City of Burlington v. Dague, 505 U.S. 557, 562 (1992), the difficulty of a case “is ordinarily reflected in the lodestar – either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced to do so.” The First Circuit has also specifically noted that the “retaining of multiple attorneys in a significant, lengthy discrimination case...is understandable and not a ground for reducing the hours claimed." Lipsett v. Blanco, 975 F.2d 934, 939 (1st Cir. 1992) (citing Johnson v. University College of the University of Ala., 706 F.2d 1205, 1208 (11th Cir. 1983) cert. denied, 464 U.S. 994, 104 S.Ct. 489 (1983)). See also Arthur D. Little International, Inc.v. Dooyand Corp., 995 F. Supp. 217, 225 (D. Mass. 1998); Bailey v. Dart Container Corp., 980 F. Supp. 584, 593 (D. Mass. 1997); Rini v. United Van Lines, 903 F.Supp. 234, 238 (D. Mass. 1995) rev’d on other grounds 104 F.3d 502 (1st Cir. 1997).

The legal and factual complexity of this case is unique, both for the attorneys involved and in terms of the relief obtained. See Schwartz Aff., ¶ 17 (“In my thirty years of litigating institutional reforms class actions, this was the most complex and challenging case that I have ever participated in…”); Burling Aff., ¶ 10 (this case “was of similar scope and intensity as any major business class action litigation undertaken or defended by WilmerHale”).

As the Supreme Court has noted, the Medicaid Act “is among the most intricate ever drafted by Congress. Its Byzantine construction, as Judge Friendly has observed, makes the Act “almost unintelligible to the uninitiated.” Friedman v. Berger, 547 F.2d 724, 727, n. 7 (2d Cir. 1976), cert. denied, 430 U.S. 984, 97 S.Ct. 1681, 52 L.Ed.2d 378 (1977).” Schweiker v. Gray Panthers, 453 U.S. 34, 43 (1981). The statute has become even more complex with time and the widespread utilization of waivers which permit further permutations and deviations from this already intricate statutory and regulatory scheme. The Commonwealth relied heavily upon such waivers and used the complexity of this statutory exception to Medicaid requirements to complicate and confuse claims under EPSDT. See Affidavit of Ira Burnim, ¶¶ 6-7, attached as Ex. 10.

In addition to the legal complexity, the factual complexity of the case posed unique challenges. Burling Aff., ¶¶ 12-13. The class of Medicaid-eligible children with SED is served by a confusing network of providers, including several different managed care organizations, primary care clinician plans, fee-for-service providers and clinical specialists, all with their own rules, protocols and coverage requirements. Schwartz Aff. ¶ 17; Burnim Aff. ¶ 6. In addition to these providers, SED children are also served by a host of different state and local agencies, many of which have conflicting or inconsistent eligibility criteria, service models, catchment areas and legal obligations. Id. An array of experts were needed to identify the appropriate treatments and services for SED children, the deficiencies in the current service delivery system, and effective methods to correct those deficiencies. See Schwartz Aff., ¶¶ 28, 30; Burling Aff., ¶ 15-16; Burnim Aff., ¶ 10. The defendants’ claim that home-based services were not effective or medically necessary, and their contradictory claim that they provide these services, required a sophisticated analysis of Medicaid utilization data, national outcome data, professional research, and competing expert views. See Burnim Aff., ¶ 9; Burling Aff., ¶ 16. Finally, the number of defendants, state agencies, and managed care organizations, each with their own counsel and litigation strategy, imposed additional challenges to the litigation of this case. Burnim Aff., ¶ 8. Simply put, it would have been irresponsible to undertake this case without a team of experienced attorneys, each with his or her own expertise, to address the many disparate and discrete issues in this case. See Burnim Aff., ¶ 11; Schwartz Aff., ¶¶ 18-19; Burling Aff., ¶ 17.

Although this litigation was grounded in well-established precedents concerning the federal right of Medicaid-eligible children to all medically necessary treatment, the case was one of the first to seek a specific set of home-based mental health services for the most needy Medicaid children – those with SED. See Burnim Aff., ¶¶ 9-10. Unlike other similar cases that have been brought only against the single state Medicaid agency, this lawsuit included a range of state officials, numerous state agencies, and multiple managed care organizations. Id., ¶ 8. It had to describe an integrated treatment that is comprised of multiple interventions and services, using an array of national experts, researchers, and program directors. Id., ¶ 10. It had to demonstrate that this treatment was medically necessary, through a host of clinicians who conducted an in-depth review of a large sample of class members. Id. And it had to prove that this treatment was both effective yet unavailable in Massachusetts, countering an avalanche of evidence of the different services currently provided through Massachusetts’ complicated 1115 Demonstration waiver. The complexity and the novelty of this litigation, on a national as well as local level, were truly unique. Id., ¶ 9. Given this complexity, it is entirely appropriate and necessary that this case was litigated by multiple attorneys from private and public interest firms. Id. ¶ 11.

Multiple attorneys with varied expertise commonly are used in Medicaid and other system reform cases for persons with disabilities. Id., ¶ 11. For instance, at least seven attorneys from four firms are involved in a related case involving the right to home-based services under EPSDT in California. Id. Similarly, in another case before this Court, the Magistrate Judge determined that it was reasonable for eight attorneys and two paralegals from the Center for Public Representation, the Disability Law Center, the Mental Health Legal Advisors Committee, and the private firm of Foley Hoag to litigate a complex class action suit on behalf of nursing facility residents with developmental disabilities. Rolland v. Cellucci, 106 F. Supp.2d 128, 135-137 (D. Mass. 2000) (holding that the complexity, novelty, and pace of the case, as well as its vigorous defense, made multiple attorneys necessary and appropriate).

Numerous steps were taken to ensure that the attorneys’ work was efficient, effective, and not duplicative. First, pursuant to a litigation plan developed by one of the lead counsel, a senior attorney, occasionally paired with a junior attorney, was assigned to each claim, defendant, and relevant state agency or managed care organization. See Schwartz Aff.,¶ 21; Burling Aff., ¶¶ 19-20. This attorney was responsible for all discovery, trial preparation, and witnesses related to his/her assigned claim and party. This attorney reviewed all documents, conducted most depositions, presented or cross-examined witnesses, undertook relevant research, and drafted findings of fact related to that claim or party. See Schwartz Aff., ¶¶ 23-24, 34, 37; Burling Aff., ¶¶ 20, 34-35. For example, Steven Schwartz was assigned to MassHealth (formerly the Division of Medical Assistance), Cathy Costanzo undertook all work related to the Departments of Mental Health and Mental Retardation, and Frank Laski focused on the Department of Social Services. Where the complexity of task did not require a senior attorney, a paralegal or junior attorney, supervised by a more senor lawyer, was assigned to that issue. See Schwartz Aff., ¶ 22; Burling Aff., ¶ 20. For instance, Marcia Boundy of CPR was responsible for the five plaintiffs from western Massachusetts, supervised by Cathy Costanzo, while Kathryn Rucker worked with the four plaintiffs from eastern Massachusetts.

There was a similar allocation of senior attorneys to each expert review and expert area. See Schwartz Aff., ¶¶ 31-33. Cathy Costanzo, with considerable support from Marcia Boundy, was responsible for the client review that included five experts, while Steven Schwartz coordinated the program review of existing services with two experts and the EPSDT expert. Id. James Burling oversaw the experts on the effectiveness of home-based services, while James Prendergast coordinated the statistical and research experts. See Burling Aff., ¶ 18 (Burling), ¶ 23 (Prendergast), ¶ 32 (WilmerHale’s responsibilities).

Initial discovery requests were drafted by Cathy Costanzo, with assistance from Kathryn Rucker, of CPR. See Schwartz Aff., ¶ 25. Initial research on the complaint, class certification and opposition to dismissal briefs and the First Circuit appeal was provided by Sara Shanahan of WilmerHale. See Burling Aff., ¶ 24. Most discovery, pre-trial, and trial motions were drafted by two attorneys from WilmerHale, John Rhee and Christopher Zimmerman, who also provided considerable assistance on all dispositive motions, like class certification, dismissal and the appeal, summary judgment, and the post-trial conclusions of law. See Burling Aff., ¶ 25 (Rhee), ¶ 26 (Zimmerman); ¶ 31 (WilmerHale’s responsibilities); Schwartz Aff., ¶¶ 25, 37.

All document management, document production, and trial exhibits were assigned to a senior paralegal, Janet Rountree at WilmerHale, while the massive task of obtaining, organizing, recording, assembling, and presenting medical records from sixty class members was assigned to a senior paralegal at CPR See Burling Aff., ¶ 27 (Rountree), ¶ 28 (Gulino), ¶ 31 (WilmerHale’s responsibilities); Schwartz Aff., ¶¶ 26-27.

Finally, the remedial phase of the case primarily was undertaken by Steven Schwartz, given his extensive experience in negotiating system reform remedies, who also had a primary role in developing legal strategies and coordinating most litigation activities. See Schwartz Aff., ¶ 38. Cathy Costanzo and Frank Laski, each of whom has decades of experience in designing system reform remedies, also participated in these negotiations, and assisted in commenting on each component of the remedial plan. Id.

This careful allocation of responsibilities avoided multiple lawyers being involved in overlapping activities, promoted efficient and effective lawyering, and ensured there was no duplication or excessive time spent on any single activity or the case as a whole. Moreover, WilmerHale voluntarily eliminated all time from the vast majority of attorneys who worked on this case, including many who spent hundreds of hours on tasks that did not involve the core legal team. Burling Aff., ¶¶ 40, 42-43. CPR deleted all time for three of its attorneys. Schwartz Aff., ¶ 15. Together, this constitutes more than a 20% reduction in the time actually spent by the lawyers who participated in this litigation. Thus, to extent a percentage reduction for duplication is appropriate in large class actions involving multiple attorneys, the plaintiffs have voluntarily applied one that substantially exceeds the upper limit of what courts have applied in similar cases.[5] See Rolland v. Cellucci, 106 F.Supp.2d 128, 141-42 (D. Mass. 2001) (10% reduction for duplication).

C. The Amount of Time Was Reasonable in Light of the Defendants’ Steadfast Refusal to Negotiate a Resolution of This Case, and Their Determined Opposition At Virtually Every Stage of the Litigation.

Another important factor to consider when evaluating the reasonableness of the time expended by plaintiffs is the manner in which the defendants’ approached the case. As the Supreme Court has noted: "The government cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response." City of Riverside, 477 U.S. at 580 n. 11 (quoting Copeland v. Marshall, 641 F.2d at 904).

The First Circuit has similarly recognized that the manner in which the defendants approach the case is a significant consideration in evaluating the time and resources expended by the plaintiffs. Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 298 (1st Cir. 2001); Lipsett, 975 F.2d at 938-39. The court in both Gay Officers and Lipsett found that the appellants had mounted a "Stalingrad defense", resisting the plaintiffs at each juncture. After “battling from rock to rock and tree to tree,… it seems disingenuous for the Commonwealth to castigate the plaintiffs for putting too many troops into the field.” Gay Officers, 247 F.3d at 298. "Since a litigant's staffing needs often vary in direct proportion to the ferocity of her adversaries' handling of the case, this factor weighs heavily in the balance." Lipsett, 975 F.2d at 939; see also, Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1998) ("...the record reveals that the defense was indeed extreme"); Guckenberger v. Boston University, 8 F. Supp.2d 91, 100-101 (D. Mass. 1998); Arthur D. Little International, Inc., 995 F. Supp. at 225; Bailey, 980 F. Supp. at 593; Rini, 903 F. Supp. at 238 (concluding that "steep" fee request was "justified" due to the "extensive" pretrial proceedings, "contentious and protracted" discovery, and "complicated" issues involved in an eight day trial).

As the Court is well aware, this case was intensely litigated, aggressively defended, and extensively briefed at virtually every stage of the proceedings, with no willingness on the part of the defendants to enter into meaningful discussions to resolve this matter, even when the plaintiffs suggested mediation at various points throughout this litigation. The defendants opposed class certification; sought to dismiss the case on numerous grounds; appealed the denial of the dismissal on novel Eleventh Amendment grounds that stayed the litigation for almost a year; refused to respond in a timely and acceptable manner to most discovery requests, necessitating a litany of successful motions to compel; refused for over two years to produce the names and medical records of class members; sought numerous continuances and extensions of scheduling deadlines; filed multiple motions in limine to restrict the trial, almost all of which were denied; attempted to alter the legal and factual issues before the Court in its communications with CMS; sought to discredit their own pilot programs that they had created, praised, and favorably evaluated; challenged providers of their most successful programs and even the honesty of some who testified as witnesses; and steadfastly refused to discuss any resolution of the litigation, even when the Court offered to come to Boston to meet with the parties to explore settlement. This determined and protracted resistance to respecting the federal rights of vulnerable children appropriately required a cadre of attorneys who were forced to devote thousands of hours in order to respond to the defendants’ “Stalingrad defense.” See Schwartz Aff., ¶ 19; Burling Aff., ¶ 13.

D. The Plaintiffs Have Obtained An Exceptional Result and Are Entitled to Fees for All Time Reasonably Spent on This Civil Rights Case.

This case established the right of all Medicaid-eligible children in the Commonwealth with SED to receive a comprehensive package of in-home behavioral support services. Rosie D., 410 F. Supp.2d at 23. The plaintiffs’ success was exceptional, realizing virtually all of the relief they were seeking. Where, as here, the plaintiffs “ha[ve] obtained excellent results”, they “should recover a fully compensable award.” Hensley, 461 U.S. at 435. The starting point for the calculation of “a fully compensable award” is the amount of time reasonably expended on the litigation.

The Court itself acknowledged both the critical impact of home-based services on the lives of vulnerable children with SED, the critical impact of this case in securing these services, and the critical presentation of the evidence that demonstrated the need for and right to these services. Rosie D., 410 F. Supp.2d at 23-24. By the Court’s own description, this case is likely to transform the children’s mental health system in Massachusetts. Rosie D. 474 F. Supp.2d 238, 239-40 (“the [remedial ]plan will represent a new day for this population of underserved, disabled children”). By the Court’s own estimate, this transformation is likely to result in over $450,000,000 in new mental health services for SED children in the Commonwealth. Id. at 239. By this and any other measure, the lawsuit has produced an exceptional result for class members. And the Court’s decision has been cited by the Ninth Circuit in a related case as a paradigm of clarity and judicial restraint. Katie A. v. Bonta, 481 F. 3d 1150, 1160 (9th Cir. 2007).

The success of this litigation has also been heralded nationally. Burnim Aff. ¶ 12. Medicaid attorneys have cited the decision repeatedly, and have urged other district courts to follow its rulings on the scope of children’s entitlement under EPSDT, its holding that decisions of treating professionals constitute a determination of medical necessity, and, perhaps most importantly, that States must provide children with SED with comprehensive assessments, care coordination, mobile crisis intervention, and a range of home-based services. Id. ¶¶ 12-14. State Medicaid, mental health, and child welfare officials, as well as providers, professionals, and family organizations, discuss this case on national webcasts, at training conferences, in professional journals, and special alerts because of its significant potential to alter the provision of children’s mental health services in other States. Id. at ¶ 13. Like the Katie A. decisions in California and the J.K. v. Eden settlement in Arizona, Rosie D. is now providing a blueprint for States to reform their mental health system for vulnerable children with SED. Id. ¶ 14.

V. The Plaintiffs’ Hourly Rates Are Reasonable and Fully Compensable.

A. Plaintiffs Are Entitled to Hourly Rates That Reflect Each Attorney’s Experience and Expertise, Consistent With the Private Market for Similarly Qualified Lawyers.

In Blum v. Stenson, 465 U.S. at 893-95, the Supreme Court made clear that fee awards under 42 U.S.C. § 1988 should “be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel. In support of this conclusion, the Blum court pointed to the legislative history where Congress explained that fee awards under § 1988 should “be governed by the same standards which prevail in other types of equally complex Federal litigation, such as antitrust cases….” S.Rep. No. 94-1011 at 6, 1976 U.S. Code Cong. & Admin. News at 5913. Where private counsel are involved, “the best evidence [of their reasonable hourly rate] is the hourly rate customarily charged by counsel….” Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir.1986); accord, Rakestraw v. Corporation for Community Housing, 2005 WL 2030868 at *2 (N.D. Ind., Aug. 18, 2005). While the attorneys’ own affidavits, standing alone, are insufficient to establish that their billing rates fit within the prevailing rates in the relevant community for lawyers of similar skill and experience, Bordanaro v. McLeod, 871 F.2d 1151, 1168 (1st Cir.1989), if additional documentation confirms that their rates conform to the market, those rates should be utilized in the lodestar calculation.

For public interest counsel who do not regularly bill for their services or do so at below market rates, documentation in the form or affidavits from practitioners with knowledge of the market, analyses of fees charged in the market, or other data evidencing the market rate for counsel of comparable skill and experience should form the basis for the rate utilized in the fee calculation. Blum, 465 U.S. at 895 n. 11; Change the Climate v. MBTA, 2005 WL 3735100 at *4 (D. Mass., June 8, 2005).

Courts have differed over how to define the “relevant” community for purposes of establishing reasonable hourly rates. Many use the entire federal district in which the court sits. Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir.1997); Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1187-88 (3rd Cir.1995); Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 260-62 (1986). Where the case involves state officials, is brought on behalf of a statewide class, and has a statewide impact, this statewide approach, and specifically the market rates where the government defendants are located, usually apply. See Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983); Copeland v. Marshall, 641 F.2d at 892.

Finally, since civil rights litigation can be lengthy, as this case has been, and since any fee recovery is often many years after the lawsuit is commenced, the Supreme Court has determined that an attorney’s current market rate should normally be applied retroactively, to account for the delay in payment and the lost value of money. See Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989).

This principle, widely applied by the federal courts, is particularly applicable here, where the plaintiffs have had to expend hundreds of thousands of dollars in litigation costs, and have had to wait almost eight years to seek a fee recovery.

B. The Rates Requested Are Reasonable and Consistent with Comparably Experienced Private Attorneys.

The determination of reasonable rates in this case is greatly simplified since several of the attorneys have established market rates which, pursuant to the Supreme Court’s holding in Blum, is determinative of a reasonable rate. For the lawyers from WilmerHale, their regular billing rates are $685/hour for James Burling, $625/hour for James Prendergast, $470/hour for John Rhee, $420/hour for Christopher Zimmerman. Burling Aff., ¶¶ 44-45. For the WilmerHale paralegals, their regular billing rates are $190/hour for Janet Rountree and $225/hour for Anita Galino. See Burling Aff., Ex. H. Moreover, given their expertise, area of specialization, accomplishments, and years of experience, these rates are clearly what Blum deems reasonable, since they are the rates charged to the firm’s paying clients. See Affidavit of Stephen H. Hanlon, ¶ 10, attached as Ex. 11.[6] That WilmerHale is seeking only 62% of their market rates is neither necessary nor entirely consistent with Blum, but represents “a truly noteworthy concession.” Id. ¶ 11.

As provided in Blum, these rates establish the benchmark for similarly qualified public interest attorneys. Particularly in light of their unique expertise in the issues in this litigation, including Medicaid law, children’s mental health services, disability experts, and state services systems, reasonable rates for the CPR and MHLAC lawyers should be comparable to their counterparts from WilmerHale. Hanlon Aff., ¶ 14. Therefore, the market rate for Steven Schwartz and Frank Laski would mirror that of James Burling, the rate for Cathy Costanzo would be similar to that of James Prendergast, the rate for Kathryn Rucker would be consistent with that for John Rhee, and the rate for Marcia Boundy would be comparable to that for Janet Rountree. Hanlon Aff., ¶¶ 13-14. Moreover, based upon his personal knowledge of Mssrs. Schwartz, Costanzo, and Boundy, Mr. Hanlon considers these rates to be independently reasonable, if not modest, based upon their national reputations as “distinguished” and “gifted” advocates. Id., ¶12 (noting that Mr. Schwartz is one of the most distinguished, if not the most distinguished, lawyer engaging in disability institutional reform litigation”). They are also more reasonable and more consistent with the prevailing interpretation of reasonableness than historical rates. See Dilliard v. City of Greensboro, 213 F.3d 1347, 1355 (11th Cir. 2000) (“Prior awards are not direct evidence of behavior; the court is not a legal souk”). [7]

Given the nature of this case, and its commitment to public interest litigation, WilmerHale has agreed to reduce its normal billing rate by 38%. Burling Aff., ¶¶ 5-8, 44. This proposal is neither required by relevant law nor necessary to satisfy the relevant standard of reasonable rates. Hanlon Aff., ¶ 11. In fact, under relevant Supreme Court decisions, such rates are not necessarily reasonable, since they discount their value and importance of vindicating civil rights. But they certainly are modest, even very modest, given the relevant market, the complexity of this case, and the exceptional success obtained. Id. ¶ 6-8. Applying this voluntary reduction to their actual market rates, the requested rates for the WilmerHale attorneys are: James Burling – $425/hour; James Prendergast – $400/hour; John Rhee – $290/hour; Christopher Zimmerman – $265/hour; Anita Galino – $145/hour; Janet Rountree – $125/hour. A similar reduction is applied to the rates for CPR and MHLAC attorneys and paralegals, and result in the following requested rates for these individuals: Steven Schwartz – $425/hour; Cathy Costano – $375/hour; Kathryn Rucker – $300/hour; and Marcia Boundy – $125/hour; and Frank Laski – $425/hour. These rates are plainly reasonable for attorneys with similar qualifications and experience. Hanlon Aff. ¶¶ 16-20.

The reduced, requested rates are also consistent with the rates awarded public interest attorneys in similarly complex cases in this and other districts. For instance, in the ADA access case involving the Massachusetts Bay Transportation Authority, Greater Boston Legal Services received fees for its litigation director that reflected rates of approximately $400/hour. See Affidavit of Daniel Manning, ¶ 3, attached as Ex. 12. Massachusetts federal courts have awarded rates in the $400-425/hour range for experienced attorneys in other civil rights cases. See Bogan v. City of Boston, 423 F. Supp.2d 222 (D. Mass. 2006) ($425/hour for senior attorney); Stokes v. Saga International Holidays, Ltd., 376 F. Supp.2d 86 (D. Mass. 2005) ($445/hour for lead attorney, $395 for second attorney). The rates requested here are reasonable in light of the experience of these attorneys, the complexity of this litigation, the excellence of the results obtained, and the Boston market for similarly experienced attorneys. Id. ¶¶ 5-10.

In the District of Columbia, where Cathy Costanzo is lead counsel in a case involving persons with mental retardation and where Steven Schwartz is of counsel in the same case, the federal courts apply a standard rate structure compiled by the United States Attorney’s Office for the District of Columbia. Hanlon Aff., ¶ 18. Named after the Court of Appeals decision in Laffey v. Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), the “Laffey Matrix” or the “United States’ Attorney’s Office Matrix” establishes $425/hour as the reasonable rate for lawyers with similar qualifications and experience as attorneys Burling, Schwartz, and Laski; $375/hour as the reasonable rate for lawyers with qualifications and experience as attorneys Prendergast and Costanzo; and $305/hour for lawyers with the experience of attorneys Rhee and Rucker. Id.; Burling Aff., ¶ 45; See Divisions/Civil_Division/ Laffey_ Matrix_6.html. Ms. Costanzo is actually paid at this rate for her work in the D.C. mental retardation case, Evans v. Fenty. See Costanzo Aff. ¶ 27. Thus, under the federal government’s own determination of reasonable rates in fee shifting cases litigated in large metropolitan areas, the requested rates are clearly reasonable and should be allowed.

VI. The Plaintiffs’ Lodestar Is Reasonable and Fully Compensable.

"The lodestar method is the strongly preferred method by which district courts should determine what fees to award prevailing parties in actions that fall within the ambit of section 1988." Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331 (1st Cir. 1997). The lodestar is the product of the number of hours reasonably expended multiplied by a reasonable hourly rate. When a plaintiff substantially achieves the relief sought, the beginning and end of the calculation of reasonable attorney's fees is the lodestar.

After exercising billing judgment, the plaintiffs' total lodestar in this case, as set forth in Exhibit 1, is $10,164,797.50. See also Summary of Fees of CPR and MHLAC, attached as Exhibit 2, Table 1 and of WilmerHale, attached as Exhibit 2, Table 2. This amount represents the reasonable time that all attorneys who worked on this case spent achieving the significant results for class members, multiplied by a reasonable hourly rate which reflects the relevant market in Massachusetts for lawyers of similar experience and special expertise.

Although Hensley would suggest that the plaintiffs are entitled to this full amount, they have proposed a significant reduction in the lodestar to dramatically limit the number of lawyers who should be compensated for their work and substantially reduce the actual market rate. See Burling Aff., ¶¶ 40-43; Schwartz Aff., ¶ 15. These voluntary reductions result in an adjusted lodestar of $6,964,652.50, as more fully delineated in Ex. 1.[8]

The 30% reduction in the lodestar reflects: (1) the elimination of the vast majority of lawyers who contributed to this case, resulting in a fee request that is limited to the nine attorneys and paralegals who worked continuously on this litigation for its seven year history (2000-2006), see Burling Aff., ¶¶ 42-43; and (2) a 38% reduction in the actual rates normally charged by WilmerHale attorneys and paralegals. Id. ¶¶ 44. This voluntary reduction is substantial and, especially when considered in light of the huge costs that were incurred but are not being requested, is more than reasonable. Id. ¶ 46. Although there is no request for an enhancement of this adjusted lodestar, there should not be any decrease in the final requested amount either, particularly given the complexity of this case and its extraordinary success.

VII. The Costs Incurred In This Case Are Reasonable and Fully Compensable.

A. Plaintiffs Are Entitled to All Litigation Costs and Expenses, Provided that They Are Reasonable.

Plaintiffs are entitled to all reasonable expenses incurred in the litigation of this action. Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983). In Palmigiano, the First Circuit affirmed an award of out-of-pocket costs for items such as “transportation, lodging, parking, food and telephone expenses” in a § 1983 action, noting the “unanimous federal circuit court authority that the attorneys' reasonable and necessary costs and expenses may be awarded to a prevailing party pursuant to 42 U.S.C. § 1988.” Palmigiano, 707 F.2d at 637; see also Attrezzi, LLC v. Maytag Corp., 436 F.3d 32, 43 (1st Cir. 2006) (citing Palmigiano with approval); Brown v. Gray, 227 F.3d 1278, 1297 (10th Cir. 2000). As the Brown court explained: ‘[i]tems that are normally itemized and billed in addition to the hourly rate should be included in fee allowances in civil rights cases if reasonable in amount.’ [citations omitted]. In other words, reasonable out-of-pocket expenses not normally absorbed as part of law firm overhead should be reimbursed as attorney's fees under section 1988.” Brown, 227 F.3d at 1297 (quoting Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir.1983).

The one exception to this general rule is the cost of experts, which are generally not considered a permissible cost under § 1988. See West Virginia University Hospitals v. Casey, 499 U.S. 83 (1991). All other litigation expenses are normally compensable. These expenses include stenographic transcripts of depositions; daily trial transcripts; witness fees including necessary travel, meals and lodging; copying costs; constable fees for service of subpoenas; computer assisted legal research; attorney travel including parking, meals and lodging; telephone expenses; and more. See, United States v. Davis, 87 F. Supp.2d 82, 87-89 (D. R.I. 2000); Palmigiano, 707 F.2d at 637; Attrezzi, 436 F.3d at 43. As long as the cost is reasonable and it is the type of expense that is routinely billed to private clients in the relevant market, it is recoverable.

The starting point in determining whether a particular cost item is properly charged to the defendants or should be absorbed in the plaintiff's counsel's overhead is whether the item was expended in direct pursuant of the litigation. Wheeler v. Durham City Board of Education, 555 F.2d 618, 623 (4th Cir. 1978) (holding that, consistent with 20 U.S.C. ( 1617, various costs like copying, attorney travel, and telephone integrally related to the litigation are compensable); Newberg, ATTORNEY FEE AWARDS, (( 4.43-44 and 2.19 (1986) (hereafter Newberg). As the Eleventh Circuit explained in Dowdell v. City of Apopka, 698 F.2d 1181, 1191 (11th Cir. 1983):

[W]ith the exception of routine office overhead normally absorbed by the practicing attorney, all reasonable expenses incurred in case preparation, during the course of the litigation, or as an aspect of settlement of the case may be taxed as costs under section 1988. As is true in other applications of section 1988, the standard of reasonableness is to be given a liberal interpretation.

The second factor in the analysis is whether a particular cost is customarily charged separately to billing clients. Daly v. Hill, 790 F.2d 1071, 1082-83 (4th Cir. 1986) (reversing a lower court's holding that copying, postage, telephone and attorney travel costs expended solely as part of the litigation are part of an attorney's overhead). Clearly not every expense is regularly charged to a client.[9] But many are, and those that are, are properly included in costs and expenses in a fee motion. Of course, the amount of the cost must be reasonable and not excessive. Based upon the customary practice of private firms in the Commonwealth, the documented, case-related costs incurred for attorney travel, copying of litigation documents, and computerized research should be allowed as part of reasonable fees and costs. Newberg, (( 4.44 and 2.19 (listing cases approving allowance of travel, copying, postage, long distance telephone, and computerized legal research as reimbursable litigation costs under both fee shifting statutes and common fund lawsuits).

B. The Costs and Expenses Requested Are Reasonable in Light of the Complexity of This Litigation.

The litigation of this case cost the plaintiffs $685,481.41. See Ex. 1. Nevertheless, the plaintiffs are only requesting $221,305.82 in recoverable costs. Id. As more fully described below, almost all expenses for fifteen experts, overnight mail, telephone, fax expenses, and computerized research have been omitted from this request. See Summary of Costs of CPR, attached as Exhibit 3, Table 1, and Summary of Costs of WilmerHale, attached as Exhibit 3, Table 2.[10] See Burling Aff., ¶¶ 47-50. Thus, a substantial portion of the actual expenses incurred are either not recoverable or not included in this Motion.

The pure magnitude of the resources needed to litigate this type of case is perhaps the best indication of why civil rights cases of this scope are undesirable for most attorneys, and why a fully compensable fee is appropriate. It also reflects the staggering amount of unrecoverable out-of pocket expenses. Since any fee recovery must first be applied to offset this “loss” incurred by CPR and WilmerHale, it further justifies an award of all requested fees.

1. Litigation costs

The most straightforward of compensable costs are those that are part of the judicial process, such as filing fees, subpoenas, and process servers; deposition, hearing, and trial transcripts; trial exhibits and related expenses; and depositions of witnesses taken by the opposing party. Each of these items, as listed in Exhibit 3, is clearly compensable and reasonable in light of the complexity and novelty of this case.

In addition to trial experts, the plaintiffs retained numerous trial consultants to assist them in analyzing the factual and legal issues. For instance, Medicaid experts advised plaintiffs’ counsel on the intricacies of waivers, and responses to the defendants’ efforts to engage CMS in their claim that home-based services were not a covered Medicaid service. Similarly, a major accounting firm was needed to conduct an analysis of hundreds of thousands of Medicaid claims to determine the actual duration (days) and intensity (hours) that alleged home-based programs like Family Stabilization Teams were actually provided to children with SED. Most of these consultant costs have been omitted from this request, although all are compensable.

2. Discovery expenses

As noted in section II(C) supra, discovery in this case was voluminous. Documents produced by the defendants, their state agencies, and managed care organizations exceeded 200,000 pages. Medical records of individual plaintiffs and members of the class exceeded 30,000 pages. Electronic claims and service utilization data, as well as outcome evaluation data, exceeded hundreds of thousands of records. All of this information had to be logged, bate stamped, copied (usually twice), organized, and entered into a database.

Several representatives from each of the defendants, their state agencies, and managed care organizations had to be deposed, as did the defendants’ five experts. In total, the plaintiffs took thirty depositions and defended more than twenty.

3. Experts

As a result of the Supreme Court’s decision in West Virginia University Hospital, CPR, which paid all of the experts costs, cannot recover $318,475 that it expended for the fifteen experts that presented the plaintiffs’ case at trial.[11]

4. Attorney Travel

The First Circuit long ago declared that travel expenses incurred by counsel to attend hearings, meet with clients or opposing counsel, or attend negotiation or mediation sessions are compensable under fee shifting statutes. Grendel's Den v. Larkin, 749 F.2d 945, 956 (1st Cir. 1984)(agreeing that travel and mailing costs are reimbursable); Ackerley v. City of Somerville, 901 F.2d 170 (1st Cir. 1990)(allowing reimbursement for travel, computerized research, and photocopying but reducing the amount claimed due to excessiveness). This rule has been followed by most other circuit courts. See Redding v. Fairman, 717 F.2d 1105, 1119 (7th Cir. 1983); NEWBERG, ( 2.19, n. 201. It should be applied here, both because there are considerable travel expenses associated with representing a geographically dispersed class throughout the state[12] and because many meetings and mediation sessions are scheduled in Boston, to accommodate the defendants, rather than in western Massachusetts.[13] Neither CPR's nor WilmerHale’s overhead contemplates the extensive travel costs related to either of these frequent and necessary activities.

5. Copying of Litigation Documents

Most courts have also awarded prevailing plaintiffs the reasonable costs of copying documents, whether done in their offices or at a professional copying establishment. Ackerley, 901 F.2d at 170; Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983); Daly, 790 F.2d at 1083; Newberg, ( 2.19 n.200. Since duplication bills paid to an independent copy center are clearly reimbursable yet more expensive than in-house copying, there is little logic to awarding reimbursement for the former but not for the latter under an overhead theory. Moreover, in cases such as this one which involve a large number of documents and medical records that must be copied for both the expert's and attorney's review, paying children’s mental health providers over a $1.00 a page to duplicate these records when a law firm can do so for a fraction of that cost is simply not cost-effective. Given the volume of such copying as well as its necessity, particularly when enforcement motions are required as they have been this past year, the actual cost of copying should not be considered as part of a firm's overhead and, therefore, should be reimbursed as a cost of the litigation.

VIII. Conclusion

For the reasons set forth above, the Court should award the plaintiffs their requested fees and costs in the amount of $7,185,956.32. This request, while significant, represents an almost 30% voluntary reduction from their actual lodestar and a 75% reduction in incurred litigation costs. It reflects the unusual novelty and complexity of the case, the extraordinary success achieved, and the reasonable cost of undertaking and prevailing in litigation of this scope and impact. It is approximately 1.5% of the annual cost of the increased resources and new benefits for children with SED that the Court estimates will be expended to implement its Final Judgment. From this perspective, as well as that of controlling First Circuit decisions on the award of attorneys’ fees and costs in civil rights litigation, the plaintiffs’ request is reasonable and should be allowed in full.

RESPECTFULLY SUBMITTED,

PLAINTIFFS AND CLASS MEMBERS, BY THEIR ATTORNEYS,

/Steven J. Schwartz Steven J. Schwartz (BBO#448440) Cathy E. Costanzo (BBO#553813) Center for Public Representation

22 Green Street Northampton, MA 01060 (413) 586-6024

James C. Burling (BBO#065960)

James W. Prendergast (BBO#553073)

John S. Rhee (BBO#650139)

Wilmer Cutler Pickering Hale and Dorr, LLP

60 State Street

Boston, MA 02109

(617) 526-6000

Frank Laski (BBO#287560)

Mental Health Legal Advisors Committee

294 Washington Street

Boston, MA 01208

(617) 338-2345

December 19, 2007

-----------------------

[1] The parties agreed that the defendants would respond to the plaintiffs’ fee request, submitted on July 3, 2007, by September 14, 2007; that the parties would have until October 5, 2007 to attempt to settle the request; and that the plaintiffs would file their fee motion by November 2, 2007. Doc. # 369, ¶¶ 2-4. The parties further agreed that these time lines were reasonable. Id. at ¶ 5. Despite these agreements, the defendants did not respond to the July 3rd fee proposal nor suggest any firm date on which they intended to do so.

Although the plaintiffs were prepared to file their motion by November 2, 2007, as ordered, they sought an additional six week extension to ensure that every effort was made to avoid judicial intervention. On November 30, 2007, the defendants finally responded to the plaintiffs’ fee request, but only with a list of concerns and not with any specific counter-offer or concrete settlement proposal. After a lengthy telephone conference to discuss these concerns, the defendants indicated in an email that settlement was not possible.

Thus, five months and two extensions after receiving the plaintiffs’ fee request, the defendants have never indicated what they believe is a reasonable amount in fees and costs for the plaintiffs in this litigation. As a result, the plaintiffs now have no alternative but to file this Motion with the Court, although they remain willing to respond to any reasonable and firm settlement offer.

[2] The plaintiffs have attached twenty exhibits to their Motion, including summaries of fees and costs (Exs. 1-3), twelve affidavits from plaintiffs’ counsel and fee experts (Exs. 4-12), the detailed time and cost records of all professionals who are seeking fees in this case (Exs. 13-18), and an itemized list of costs (Exs. 19-20). Exhibits 12-18 are being filed manually because of their length.

[3] By agreement of the parties, all time spent attempting to resolve this dispute prior to the filing the lawsuit is excluded from this request. This exclusion includes hundreds of hours by five of the attorneys who are seeking fees in this Motion.

[4] Because these time records are voluminous, and too large to file electronically, they have been provided to the Court manually.

[5] The percentage reduction approach is usually employed by courts in lieu of, and not in addition to, reductions for itemized activities or categories of activities. It is primarily a matter of convenience that saves the court the time of pouring through volumes of time records and reducing time on multiple entries.

[6] Mr. Hanlon is a national expert on attorney’s fees and the director a one of the most prestigious private firm pro bono programs in the country. See Hanlon Aff., ¶¶ 1-4.

[7] While the historical rates for public interest attorneys may be one measure of reasonable, they are neither controlling nor the best measure, since they do not necessarily conform to instruction in Blum that public interest attorneys should be compensated at market rates charged by lawyers with comparable skills and experience. See Hanlon Aff., ¶ 15.

[8] The total number of hours at the end of each attorney's time records, as set forth in Exs. 13-18, incorporates all time actually spent on the case, prior to any voluntary reduction. The number of hours requested for each attorney in Ex. 2, Tables 1 and 2 excludes time for various activities, such as pre-fling settlement meetings or an appearance at a Court hearing where the attorney did not participate. Consequently, these numbers are not identical. The Court should use as its reference for the calculation of a reasonable fee the adjusted lodestar as set forth in Exs. 1 and 2.

[9] For instance, regular postage, local and even some long distance telephone calls, local travel, incoming faxes, equipment rental, and secretarial costs are usually absorbed in a firm's overhead.

[10] Invoices for every requested expense in this case are too voluminous to file electronically, but can be provided in hard copy if the Court would like to examine them. For convenience, an itemized list of all expenses of CPR is attached as Exhibit 19. An itemized list of all expenses of CPR is attached as Exhibit 20.

[11] Since depositions of the opposing party are properly taxable as costs, expenses related to the preparation and participation of experts in their depositions are allowable and are included as recoverable costs under § 1988.

[12] The necessity and unique nature of this expense is particularly compelling, and unavoidable, when plaintiffs' attorneys assisted experts on tours of children and children’s mental health programs from the lower Cape to Lowell, from Peabody to Pittsfield. These tours are required to prove that children are not receiving medically necessary services and that needed services are not available. These unique costs not easily absorbed in, nor ever calculated as part of, the overhead of a public interest or private firm.

[13] Given the location of the defendants’ agencies, most meetings, discovery, and document production occurred in Boston, requiring most CPR attorneys to travel over 200 miles for a deposition. Conversely, court hearings and the trial was in Springfield, requiring WilmerHale and MHLAC attorneys to be in western Massachusetts, often for weeks.

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