Case 1:05-cv-01437-RCL Document 537-1 Filed 09/28/16 Page 1 of 89 USCA Case #18-7004 Document #1732051 Filed: 05/21/2018 Page 275 of 572 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Plaintiffs' Exhibit ) DL, et al., on behalf 1 ) of themselves and all others Civ. No. 05-1437 (RCL) ) similarly situated, ) Plaintiffs, ) Civil Action No. 05-1437 (RCL) ) v. ) ) THE DISTRICT OF COLUMBIA, ) et al., ) Defendants. ) ) AFFIDAVIT OF BRUCE J. TERRIS 1. I am a partner in the Washington, D.C., law firm of Terris, Pravlik & Millian, LLP (hereafter “Terris, Pravlik & Millian” or “TPM”). Since 2005, the firm has served as lead counsel in this class action. 2. I offer this affidavit in support of plaintiffs’ Motion for an Award of Litigation Costs, Including Attorneys’ Fees and Related Expenses, filed contemporaneously with this affidavit. In that motion, plaintiffs request fees and expenses for work up to and including June 22, 2016, and have separated that work into two periods: Period 1 and Period 2. 3. Period 1 refers to work performed through November 16, 2011, the date of the Court’s decision after the first trial (ECF No. 294). On April 30, 2012, plaintiffs filed their Motion for an Award of Litigation Costs, Including Attorneys’ Fees and Related Expenses (ECF No. 325), requesting payment for work performed during Period 1. That motion was fully briefed. On reply, plaintiffs made certain concessions in response to the arguments of defendants (“the District”) and therefore requested a smaller award than they had requested in their initial motion. See Reply Memorandum in Support of Plaintiffs’ Motion for an Award of Litigation Costs, Including Attorneys’ Fees and Related Expenses, dated October 5, 2012 (ECF No. 348), JA 263 Case 1:05-cv-01437-RCL Document 537-1 Filed 09/28/16 Page 79 of 89 USCA Case #18-7004 Document #1732051 Filed: 05/21/2018 Page 353 of 572 (e) Documents and Reference Materials. These were the costs to obtain reference material related to hourly rates in the District. (f) Local Travel. These were the costs of taxi travel in Washington, D.C. (g) Messenger Delivery Fees. These were the costs for local delivery of documents. (h) PACER Court Docket System. These were the fees charged for use of the Court’s PACER docket system. (i) Postage. These were the postage costs. (j) Transcript/Reporting Fees. These were the costs for deposition and trial transcripts. (k) Westlaw. These were the costs for Westlaw computerized legal research. (l) Witness Fees. This was the cost that plaintiffs’ counsel paid defendants, pursuant to F.R.C.P. Rule 26(b)(4)(E)(i), for time by their expert related to her deposition. Having prevailed, plaintiffs are entitled to a refund of that expense. HOURLY RATES 82. As discussed more fully in plaintiffs’ memorandum (Section I), plaintiffs request that this Court award them fees based on the reasonable hourly rates from the Laffey Matrix updated to the present using the Legal Services Index (“LSI”). To obtain hourly rates for the work on this case, plaintiffs applied the following methodology. First, plaintiffs began with the Laffey Matrix, as it was updated through May 31, 1989, in Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988). Second, plaintiffs obtained data for the legal services component (“LSI”) of the Consumer Price Index (“CPI”) produced by the Bureau of Labor Statistics of the United States Department of Labor. Pl. Ex. 22. Third, plaintiffs applied the LSI to the Laffey matrix rates for each experience level in order to produce a current hourly rate for 79 JA 341 Case 1:05-cv-01437-RCL Document 537-1 Filed 09/28/16 Page 80 of 89 USCA Case #18-7004 Document #1732051 Filed: 05/21/2018 Page 354 of 572 each experience level.12 These calculations are set forth in Plaintiffs’ Exhibit 23. This is the same methodology used to produce the LSI Laffey Matrix affirmed in Salazar v. District of Columbia, 809 F.3d 58, 64-65 (D.C. Cir. 2015)(“Salazar V”). Under this methodology, the rates applicable to this application are: Years Out of Law School Hourly Rate 20th + $826 11th-19th $686 8th-10th $608 4th-7th $421 1st-3rd $342 Paralegals/Law Clerks $187 83. Plaintiffs are requesting the hourly rate applicable to the experience level of each attorney at the time that he or she performed the work in question. Plaintiffs’ summaries of time by category (Pl. Exs. 5 and 11) show the lodestar amounts computed on the basis of these hourly rates. 84. Although plaintiffs seek compensation at the hourly rate applicable to the experience level of each attorney at the time the work was performed, they seek compensation based on current hourly rates for the applicable experience level to account for the delay in payment. See Missouri v. Jenkins, 491 U.S. 274, 283-284 (1989). 12 Specifically, the LSI for June of each year, starting with 1989, was divided by the LSI for the preceding June. This results in the adjustment factor. The matrix rates from the preceding year are multiplied by the adjustment factor to get the next year’s rates. See Pl. Ex. 23. For example, the LSI for June 1989 (114.6) is divided by the LSI for June 1988 (107.1). The result (1.070028) is the adjustment factor for updating rates from the year from June 1, 1988, to May 31, 1989, to the year from June 1, 1989, to May 31, 1990. Each rate in the year from June 1, 1988, to May 31, 1989, is multiplied by the adjustment factor to produce the rate for that experience level for the next year. Multiplication of the 20+ experience level rate ($265) by the adjustment factor (1.070028) gives the rate of $284 for the next year. The adjustment factor for each period and the Laffey rates for each year from 1989 to the present are set forth in Plaintiffs’ Exhibit 23. The LSI for each of the years from 1988 to the present is set forth in Plaintiffs’ Exhibit 22. 80 JA 342 Case 1:05-cv-01437-RCL Document 537-1 Filed 09/28/16 Page 81 of 89 USCA Case #18-7004 Document #1732051 Filed: 05/21/2018 Page 355 of 572 85. Our firm bills paralegal and law clerk time to its paying clients in the same manner as attorneys’ time. As a result, we have included such time in the lodestar calculations. See Missouri v. Jenkins, supra, 491 U.S. at 284-288. 86. Plaintiffs’ Memorandum in Support of Plaintiffs’ Motion for an Award of Litigation Costs, Including Attorneys’ Fees and Related Expenses (p. 23, n. 26), references the law firms of Harmon & Weiss, now known as Harmon, Curran, Spielberg & Eisenberg, LLP and Galloway & Greenberg. Both firms are small, public interest law firms. 87. The District informed plaintiffs that it intends to argue that the applicable prevailing market rates are those in the USAO Matrix 2015-2017. Plaintiffs have tried unsuccessfully to obtain both of the rates surveys that underlie the matrix. See Affidavit of Carolyn Smith Pravlik (Pl. Ex. 26). Even though plaintiffs were not able to obtain both surveys or to confirm whether the USAO Matrix 2015-2017 presents rates for complex federal litigation, plaintiffs have incorporated the USAO Matrix 2015-2017 rates in their comparison to market data described below. 88. Under my direction, we collected and analyzed Washington, D.C., market rates data for complex federal litigation for the period from January 1, 2015, to the present.13 These rates are presented in tables as Plaintiffs’ Exhibits 47 to 49, based on data from the following sources: (a) Westlaw Legal Billing Reports. Three times a year, Westlaw compiles a report of fee applications filed in bankruptcy cases by firms located in several regions across the United 13 We attempted to compile data on market rates as close as possible to the filing of plaintiffs’ fee application. As described in paragraph 88(b) below, we searched for fee applications from the time period between January 1, 2015, and August 25, 2016. As described in paragraph 88(c) below, we obtained affidavits from law firm partners setting forth current rates. The affidavit most recently obtained for this purpose is dated September 26, 2016. See Pl. Ex. 68. 81 JA 343 Case 1:05-cv-01437-RCL Document 537-1 Filed 09/28/16 Page 82 of 89 USCA Case #18-7004 Document #1732051 Filed: 05/21/2018 Page 356 of 572 States, including the District of Columbia. See Pl. Exs. 43-45. These reports list, inter alia, the law school graduation year, rate billed for attorneys practicing in Washington, D.C., that are covered by the fee applications, and the time period covered by the fee applications. See ibid. Exhibits 43 to 45 are excerpts of the Westlaw Billing Reports that apply to Washington, D.C., from 2015 through 2016. (i) We reviewed the data underlying the Westlaw Billing Reports for errors in each attorney’s experience level and geographic location by comparing the information listed in the Westlaw Billing Reports with the information listed in the website biography of the attorney’s firm or the attorney’s LinkedIn profile. Under the assumption that these online biographies would contain more accurate information than the Westlaw Billing Reports, we excluded data if an attorney’s biography showed that the attorney was based in a jurisdiction outside of Washington, D.C.14 We categorized the experience level of an attorney based on the graduation date in the attorney’s online biography.15 14 We excluded the billing rate information from the Westlaw Billing Reports based on the location of the following attorneys: a New York-based attorney from Bracewell LLP (John G.