Case Nos. 14-4083/14-4084/14-4132/14-4133/15-3295/15-3296/15-3380/15-3381

IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

NORTHEAST OHIO COALITION, et al,

Plaintiffs-Appellees/Cross Appellants v.

JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee

And

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 1, et al,

Plaintiffs-Appellees/Cross Appellants v.

JON HUSTED, SECRETARY OF STATE Defendant-Appellant/Cross-Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO; CASE NOS. 2:06CV00896/2:12CV00562

FIRST BRIEF OF DEFENDANT-APPELLANT/CROSS-APPELLEE

JON HUSTED, SECRETARY OF STATE AND STATE OF OHIO

MICHAEL DEWINE Ohio Attorney General

ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 zachery.keller@ohioattorneygeneral.gov ryan.richardson@ohioattorneygeneral.gov Counsel for Defendant-Appellant/Cross-Appellee

Jon Husted, Secretary of State and State of Ohio

Counsel for Plaintiffs-Appellees/Cross Appellants: STEPHEN P. BERZON BARBARA J. CHISHOLM STACEY M. LEYTON DANIELLE LEONARD Altshuler Berzon, LLP 177 Post Street, Suite 300 San Francisco CA 94108 Tel: 415-421-7151 sberzon@altber.com bchisholm@altber.com sleyton@altber.com dleonard@altber.com CATHRINE J. HARSHMAN MICHAEL J. HUNTER Hunter, Carnahan, Shoub, Byard & Harshman 3360 Tremont Road, Suite 230 Columbus OH 43221 Tel: 614-442-5626 charshman@hcands.com mhunter@hcands.com Counsel for Service Employees International Union Local 1 SUBODH CHANDRA SANDHYA GUPTA The Chandra Law Firm 1265 West 6th Street, Suite 400 Cleveland OH 44113 Tel: 216-578-1700 subodh.chandra@chandralaw.com sandhya.gupta@chandralaw.com Counsel for Northeast Ohio Coalition for the Homeless and Service Employees International Union Local 1

CAROLINE H. GENTRY Porter Wright Morris & Arthur, LLP One South Main Street, Suite 1600 Dayton OH 45402 Tel: 937-449-6748 cgentry@porterwright.com Counsel for Northeast Ohio Coalition for the Homeless and Columbus Coalition for the Homeless DONALD J. MCTIGUE MARK A. MCGINNIS J. COREY COLOMBO McTigue McGinnis & Colombo, LLC 545 East Town Street Columbus OH 43215 Tel: 614-263-7000 dmctigue@electionlawgroup.com mmcginnis@electionlawgroup.com ccolombo@electionlawgroup.com Counsel for Ohio Democratic Party

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ..................................................................................... v

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 1

INTRODUCTION ..................................................................................................... 2

STATEMENT OF THE CASE AND FACTS .......................................................... 5

I. The 2012-2013 litigation ................................................................................. 5

A. NEOCH pre-appeal................................................................................ 5

B. SEIU pre-appeal .................................................................................... 7

C. NEOCH/SEIU Appeals ......................................................................... 8

D. NEOCH post-appeal .............................................................................. 9

E. SEIU post-appeal ................................................................................... 9

II. Plaintiffs’ fee motions and the State’s opposition ......................................... 10

III. The district court’s fee award ........................................................................ 11

SUMMARY OF ARGUMENT ............................................................................... 13

ARGUMENT ........................................................................................................... 16

I. The district court abused its discretion by awarding 6,000+ hours. .............................................................................................................. 17

A. A reasonable hour total must exclude hours not reasonably expended: courts should exclude hours for lack of billing judgment; overstaffing; and insufficient documentation. .................................................................................... 17

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B. Counsel requested, and received, excessive hours. ............................. 22

1. Counsel billed for unreasonably high attendance at, and travel to, court proceedings. .......................................... 23

2. Counsel spent unreasonable time conferencing with one another. ....................................................................... 30

3. Counsel billed for unreasonable levels of research. ................. 33

4. Counsel overbill for drafting and editing filings. ..................... 36

5. Counsel should not charge the State ~150 hours for an unfiled proposal. ................................................................... 41

6. Counsel billed for unnecessarily cumulative discovery. .................................................................................. 42

7. Counsel billed unreasonable time for the NEOCH Consent Decree extension. ........................................................ 45

8. SEIU attorneys spent unreasonable time on post-appeal activities, including obtaining unopposed relief. ......................................................................................... 47

9. Counsel overbill for trying to hold nonparty relators in contempt. .................................................................. 49

10. Counsel should not bill the State 100+ hours for their abandoned attempt to certify a class of separate defendants. .................................................................. 50

11. The NEOCH motion to modify was duplicative of, and subsumed by, the SEIU preliminary injunction motion. ...................................................................................... 52

C. This Court should mandate an across-the-board hour reduction; at a minimum, a more thorough review and a better explanation are necessary. ......................................................... 55

iv

II. The district court abused its discretion by awarding too high of rates to too many lawyers. ............................................................................. 57

A. A reasonable rate is a rate sufficient to encourage capable representation in the local market; it is not what a precise attorney might charge a well-to-do client. .......................................... 59

B. The rates awarded exceed what was necessary to attract capable counsel in Southern Ohio. ...................................................... 61

1. The district court’s award is inconsistent with prior awards in Ohio election-related cases. ...................................... 61

2. Other evidence demonstrates these rates are unreasonable. ............................................................................. 65

CONCLUSION ........................................................................................................ 70

CERTIFICATE OF COMPLIANCE ....................................................................... 72

DESIGNATION OF DISTRICT COURT RECORD ............................................. 73

v

TABLE OF AUTHORITIES

Cases Page(s)

ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999) .....................................................................passim

Amedisys, Inc. v. Nat’l Century Fin. Enterprises, Inc., No. 2:04-CV-493, 2006 WL 1209372 (S.D. Ohio May 2, 2006) ....................... 20

Auto Alliance Intern., Inc. v. U.S. Customs Serv., 155 F.App’x 226 (6th Cir. 2005) ........................................................................ 55

Bonner v. Coughlin, 657 F.2d 931 (7th Cir. 1981) .............................................................................. 34

Buffington v. Baltimore Cnty., Md., 913 F.2d 113 (4th Cir. 1990) ........................................................................ 34, 35

Cashman Equipment Corp. v. Rozel Operating Co., 569 F.App’x 283 (5th Cir. 2014) ........................................................................ 21

Ceres Env’l Servs., Inc. v. Col. McCrary Trucking, LLC, 476 F.App’x 198 (11th Cir. 2012) ...................................................................... 21

Cleveland Area Bd. of Realtors v. City of Euclid, 965 F.Supp. 1017 (N.D. Ohio 1997) .................................................................. 31

Coulter v. State of Tenn., 805 F.2d 146 (6th Cir. 1986) ............................................................ 19, 34, 55, 60

In re Donovan, 877 F.2d 982 (D.C. Cir. 1989) ............................................................................ 20

Evans v. Port Authority of New York & New Jersey, 273 F.3d 346 (3rd Cir. 2001) .............................................................................. 68

Flowers v. Wiley, 675 F.2d 704 (5th Cir. 1982) .............................................................................. 23

Gonter v. Hunt Valve Co., Inc., 510 F.3d 610 (6th Cir. 2007) .......................................................................passim

vi

Cases Page(s)

Hadix v. Johnson, 65 F.3d 532 (6th Cir. 1995) .......................................................................... 29, 59

Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939 (3rd Cir. 1995) .......................................................................... 20, 23

Harkless v. Brunner, No. 1:06 CV 2284, 2011 WL 2149138 (N.D. Ohio May, 31, 2011) ..........passim

Harkless v. Husted, No. 1:06-cv-02284, 2011 WL 2149179 (N.D. Ohio Mar. 31, 2011) (adopted with modification by 2011 WL 2149138) ............................... 31, 32, 62

Hensley v. Eckerhart, 461 U.S. 424 (1983) ................................................................................ 17, 18, 20

Hunter v. Hamilton Cnty. B.O.E., 850 F.Supp.2d 795 (S.D. Ohio 2012) ..................................................... 36, 64, 68

Hunter v. Hamilton Cnty. BOE, No. 1:10cv820, 2013 WL 5467751 (S.D. Ohio Sept. 30, 2013) .................. 62, 64

Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531 (6th Cir. 2008) ........................................................................ 20, 21

Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) .............................................................................. 23

Kentucky Restaurant Concepts Inc. v. City of Louisville, 117 F.App’x 415 (6th Cir. 2004) .................................................................. 19, 61

Lamar Advertising Co. v. Charter Tp. of Van Buren, 178 F.App’x 498 (6th Cir. 2006) ........................................................................ 59

Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991) ............................................................................... 55

Lib. Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL 4833033 (S.D. Ohio Sept. 11, 2013).......... 62, 64, 68

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Cases Page(s)

Martinez v. Hernando Cnty Sheriff's Office, 579 F.App’x 710 (11th Cir. 2014) ................................................................ 29, 30

Moon v. Unum Provident Corp., 461 F.3d 639 (6th Cir. 2006) .............................................................................. 16

Mooneyhan v. Husted, No. 3:12–cv–379, 2013 WL 1326506 (S.D. Ohio Mar. 29, 2013) ..................... 62

Moore v. Brunner, Nos. 2:08-cv-224, 2:08-cv-555, 2010 WL 317017 (S.D. Ohio Jan. 25, 2010) ....................................................................................................... 63, 64

NEOCH v. Brunner, 652 F.Supp.2d 871 (S.D. Ohio 2009) ................................................................. 63

NEOCH v. Brunner, No. 2:06–CV–896, 2010 WL 4939946 (S.D. Ohio Nov. 30, 2010) ................... 62

NEOCH v. Husted, 696 F.3d 580 (6th Cir. 2012) .......................................................................passim

Oakley v. City of Memphis, 566 F.App’x 425 (6th Cir. 2014) ........................................................................ 60

Ohio Right to Life v. OEC, No. 2:08-cv-492, 2013 WL 5728255 (S.D. Ohio Oct. 23, 2013) ................. 62, 64

In re Olson, 884 F.2d 1415 (D.C. Cir. 1989) .......................................................................... 31

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010) .....................................................................................passim

Precision Concrete v. N.L.R.B., 362 F.3d 847 (D.C. Cir. 2004) ............................................................................ 22

Project Vote v. Blackwell, No. 1:06–CV–1628, 2009 WL 917737 (N.D. Ohio Mar. 31, 2009) ...... 63, 65, 68

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Cases Page(s)

Ray v. Franklin Cnty. BOE, No. 2:08–CV–1086, 2009 WL 1542737 (S.D. Ohio June 2, 2009) ................... 63

Riley v. City of Jackson, Miss., 99 F.3d 757 (5th Cir. 1996) ................................................................................ 30

Robinson v. Elida Local Sch. Dist., Bd. of Educ., 99 F.3d 1139, 1996 WL 593535 (6th Cir. Oct. 15, 1996) .................................. 29

Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608 (6th Cir. 2013) ............................................................ 13, 16, 50, 51

Schlacher v. Law Offices of Phillip J. Rotche & Assoc., P.C., 574 F.3d 852 (7th Cir. 2009) .............................................................................. 18

Segocia v. Montgomery Cnty., Tenn., 593 F.App’x 488 (6th Cir. 2014) ........................................................................ 17

SEIU v. Husted, 698 F.3d 341 (6th Cir. 2012) .......................................................................passim

U.S. Tile & Composition v. G&M Roofing, 732 F.2d 495 (6th Cir. 1984) .............................................................................. 21

Van Horn v. Nationwide Prop. & Cas. Ins. Co., 436 F.App’x 496 (6th Cir. 2011) ........................................................................ 60

Welch v. Metro. Life Ins. Co., 480 F.3d 942 (9th Cir. 2007) .............................................................................. 21

Statutes Page(s)

42 U.S.C. § 1988 ...............................................................................................passim

O.R.C. § 149.43(B)(7) ....................................................................................... 43, 44

O.R.C. § 3501.05(B) ................................................................................................ 51

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Other Authorities Page(s)

Ohio Civ. R. 82.1 ..................................................................................................... 59

1

1BSTATEMENT REGARDING ORAL ARGUMENT

The State requests oral argument. Given the many hours and rates at stake,

the State believes argument will assist the Court in reaching its determination.

2BJURISDICTIONAL STATEMENT

The district court granted Plaintiffs’ fee motions on September 29, 2014.

NEOCH-Doc.426/SEIU-Doc.140, PageID#7458-88.0F

1 The State filed notices of

appeal on October 28, 2014. NEOCH-Doc.427/SEIU-Doc.141. The district court

accepted Plaintiffs’ bill of costs on February 17, 2015. NEOCH-Doc.444/SEIU-

Doc.147, PageID#7687-96. The State filed supplemental notices of appeal on

March 19, 2015. NEOCH-Doc.445/SEIU-Doc.148. This Court has jurisdiction

pursuant to 28 U.S.C. § 1291.

3BSTATEMENT OF THE ISSUES

1. Whether the district court abused its discretion in awarding Plaintiffs

legal teams over 6,000 hours in these cases?

2. Whether the district court abused its discretion in awarding rates

averaging $378/hour—twenty-one rates of $300/hour or more, ten rates of

$425/hour or more, one $600/hour rate—to twenty-five attorneys?

1 For combined NEOCH/SEIU documents, the State cites the SEIU PageID#.

2

4BINTRODUCTION

The goal of attorney fees under 42 U.S.C. § 1988 is to aid civil rights, not

lawyers. Section 1988 does not promise all the legal luxury money can buy. It

does not promise litigants two dozen lawyers charging upper-end rates. Nor does

it promise lawyers the latitude to bill as many hours as they desire on every aspect

of litigation. Instead, it allows for a reasonable fee; one sufficient to encourage

capable representation in the local market, not a windfall to a full roster of high-

priced attorneys.

Fee-seeking lawyers are supposed to exercise billing judgment. And fee-

paying defendants are supposed to receive the same treatment as reasonable

clients. These things did not happen here. In awarding a collection of twenty-five

attorneys over $2 million in these cases, for primarily six months of work, the

district court lost sight of the goal of attorney fees. The fee award is a model of

extravagance, not reasonableness, as to both hours and rates.

Counsel’s hours demonstrate pervasive unreasonable billing practices. A

few examples:

x thirteen attorneys billing for a single conference;

x thirteen attorneys billing for drafting/editing a single brief;

x fifteen attorneys independently billing for research in NEOCH, eight in SEIU;

x an attorney billing 19.4 and 19.9 hour days;

3

x billing 13+ hours for a related-case letter;

x submitting ~150 hours for an unfiled “findings of fact and conclusions of law” proposal;

x charging 100+ hours for an abandoned attempt to certify a separate defendant class;

x out-of-state attorneys billing full time and expenses for five round trips from San Francisco to Columbus; and

x spending 100 hours to obtain an unopposed permanent injunction (regarding already litigated issues).

While examples abound, counsel’s overall billing style breaks down to a simple

equation: overstaffing + overlawyering = overbilling. The ultimate sum of such

practices was 6100+ hours in these two interrelated cases. Over 5400 hours, took

place within a six-month window between April and October 2012.

The district court left these thousands of hours unchecked (cutting less than

40 main-case hours). Despite the fees at stake, the court performed minimal

analysis of counsel’s hours. Perhaps most disappointingly, the court failed to fairly

characterize or consider several arguments raised below.

The awarded rates are similarly over-the-top. Multiple federal courts

(including this one) have recently found that $250-$300/hour is enough to attract

experienced attorneys to Ohio election-related cases. A 2013 bar survey reported

an average billing rate of $233/hour for ~1000 Ohio attorneys. Departing

drastically from these benchmarks, the district court awarded twenty-three NEOCH

attorneys rates averaging $384/hour. Twelve SEIU attorneys (most also NEOCH

4

attorneys) received rates averaging $400/hour. The many $400+ rates (the

majority to San Francisco lawyers), are particularly inconsistent with the prevailing

market. In total, ten different lawyers received $425/hour or above, with one out-

of-state lawyer receiving $600/hour. These rates far surpass rates in previous Ohio

election-related cases, including those on which the district court relied. Compared

to the local market (Midwest not West Coast) the awarded rates are too high.

Although the State does not dispute that Plaintiffs are prevailing parties

entitled to attorney fees, attorney fees must be reasonable. In its lodestar

calculation (hours * rates), the district court abused its discretion by (1) failing to

check consistent overbilling, and (2) awarding a bevy of lawyers unreasonably

high rates. The result was a runaway fee award.

The Court should correct this abuse of discretion. The goal of attorney fees

is to attract capable representation to civil rights cases, not to make lawyers rich,

and not to punish the State for defending a case. The district court’s award, in

excess of $2 million, far surpassed the amount reasonably necessary in Southern

Ohio to attract capable lawyers. The State was not billed as a client; it was billed

as an adversary. If this Court allows the award to stand it will incentivize

inappropriate practices in future attorney-fee matters. The Court should reverse

and remand the district court’s award; and it should mandate significant reductions

of hours and rates.

5

5BSTATEMENT OF THE CASE AND FACTS

This appeal involves three fee motions in NEOCH v. Husted and SEIU v.

Husted. Plaintiffs seek fees from the State of Ohio and Secretary of State Jon

Husted (collectively “the State”) for 2012-2013 litigation.

I. 11BThe 2012-2013 litigation

A. 16BNEOCH pre-appeal

In 2006, organizations including the Northeast Ohio Coalition for the

Homeless (“NEOCH Plaintiffs”) challenged Ohio voting laws. In April 2010, the

parties agreed to a Consent Decree. NEOCH-Doc.210, PageID#4970-82. The

Decree provided conditions for counting provisional ballots of Ohioans without

identification other than social security numbers (“SSN-4 voters”). It required

Boards of Elections to accept SSN-4 ballots cast “in the wrong precinct, but in the

correct polling place, for reasons attributable to poll worker error”. Id.,

PageID#4973. Plaintiffs already received fees for work prior to the Decree,

NEOCH-Doc.203, and for negotiating the Decree, NEOCH-Doc.234.

In April 2012, two Ohio legislators, both nonparties, filed a separate

mandamus action in the Supreme Court of Ohio against the Secretary.

Mand.Compl., NEOCH-Doc.246-1, PageID#5637-51. They maintained that the

Consent Decree was inconsistent with Ohio law and that the former Secretary

exceeded her authority by agreeing to it.

6

NEOCH Plaintiffs moved the district court to enjoin the mandamus action on

May 8, 2012. Mot.Enj., NEOCH-Doc.246, PageID#5612-36. Plaintiffs also

requested show-cause contempt proceedings against the legislators/relators. Id.,

PageID#5628-34. The Court held a telephone conference on May 9. Tr.5/9/12,

NEOCH-Doc.285, PageID#6850-72. The State took no position. Id.,

PageID#6858-60.

The district court held another telephone conference on May 10, at which it

orally granted the injunction. Tr.5/10/12, NEOCH-Doc.286, PageID#6873-6902.

It issued a written decision the next day. NEOCH-Doc.261, PageID#5801-17. It

ordered relators to dismiss their action, but denied show-cause proceedings. Id.,

PageID#5817. Relators dismissed their action, and no party appealed.

The court held a scheduling conference on May 16 to discuss further

litigation of the Consent Decree’s validity. Tr.5/16/12, NEOCH-Doc.433,

PageID#15522-41. The parties filed simultaneous briefs on May 30 (Plaintiffs

arguing validity, the State arguing invalidity), and simultaneous responses on June

6. NEOCH-Docs.269-71, 279-81. The court held argument on June 27, and issued

a decision in July denying the State’s request to vacate the Decree. NEOCH-

Doc.307, PageID#10382-10418.

7

NEOCH Plaintiffs moved separately to modify the Decree on June 20.

Mot.Modify, NEOCH-Doc.288, PageID#6906-59. That motion sought to alter the

Decree based on alleged equal protection and substantive due process violations.

B. 17BSEIU pre-appeal

On June 22, 2012, a different Plaintiffs’ group including Service Employees

International Union Local 1 (“SEIU Plaintiffs”), represented by mostly NEOCH

attorneys, filed a new case against the Secretary. SEIU Plaintiffs moved for

preliminary relief for voters who cast provisional ballots in the wrong precinct due

to poll worker error and voters who failed to properly sign ballot affirmations.

Mot.Prel.Inj., SEIU-Doc.4, PageID#47-107.

SEIU Plaintiffs also moved to certify a defendant class consisting of all

members of Ohio’s eighty-eight Boards of Elections. Mot.Cert., SEIU-Doc.25,

PageID#3525-43. Potential class members opposed certification. SEIU-Docs.31,

39, 46, 47. The Secretary took no position. SEIU-Docs.30, 50.

Plaintiffs ultimately abandoned class certification, moving to amend their

complaint in July. Mot.Amend., SEIU-Doc.57, PageID#5655-5668. Although

amendment was unopposed, Plaintiffs also filed a reply brief regarding

certification. SEIU-Doc.58, PageID#5707-26. The district court granted leave to

amend, mooting the certification motion. SEIU-Doc.62, PageID#5735-36.

8

The court held a hearing on the SEIU preliminary injunction motion, and the

NEOCH motion to modify, on July 30. Tr.7/30/12, NEOCH-Doc.330,

PagedID#12267-12361. The court granted the SEIU injunction on August 27.

SEIU-Doc.67, PageID#5828-88. The injunction required Boards to count

provisional ballots cast in the correct polling place/wrong precinct unless poll

workers met certain conditions. Id., PageID#5886-87. It also enjoined Boards

from rejecting provisional ballots due to affirmation deficiencies (absent certain

conditions). Id., PageID#5887.

Given SEIU relief, the court indefinitely stayed the NEOCH motion to

modify. Id., PageID#5887-88. The court recognized the overlap between the

motions, stating that the motion to modify requested “determinations of the merits

of the same constitutional violations” and “the same equitable relief”. Id.

C. 18BNEOCH/SEIU Appeals

The State appealed the NEOCH decision regarding Consent Decree validity

and the SEIU preliminary injunction.1F

2

This Court held a telephone argument for both cases on October 1, 2012.

Ten days later, the Court (1) affirmed the district court’s ruling as to the NEOCH

Consent Decree; (2) affirmed the SEIU correct polling place/wrong precinct

injunction, but found that the injunction was limited to correct polling place

2 Following preliminary injunction, the State of Ohio moved to intervene in SEIU.

9

ballots; and (3) reversed the SEIU ballot affirmation injunction. NEOCH v.

Husted, 696 F.3d 580 (6th Cir. 2012).

D. 19BNEOCH post-appeal

With the Consent Decree set to expire on June 30, 2013, NEOCH Plaintiffs

moved to extend the Decree indefinitely. The State opposed. The district court

held argument on July 12. Tr.7/12/13, NEOCH-Doc.382, PageID#13629-61. The

court partially granted the motion, extending the Decree until December 31, 2016.

NEOCH-Doc.383, PageID#13662-82. No party appealed.

E. 20BSEIU post-appeal

Upon remand in SEIU, the parties litigated remaining issues including wrong

location ballots. See, e.g., SEIU v. Husted, 698 F.3d 341 (6th Cir. 2012) (staying

relief as to wrong location ballots). The parties also engaged in mediation.

In July 2013, SEIU Plaintiffs sought a permanent injunction for correct

location/wrong precinct ballots. Although the State did not oppose a permanent

injunction on this previously-litigated issue, Plaintiffs filed a thirty-five page

motion. Mot.Perm.Inj., SEIU-Doc.107, PageID#6491-6525. In a four-page order,

incorporating prior decisions, the district court granted the injunction. SEIU-

Doc.112, PageID#6718-21.

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II. 12BPlaintiffs’ fee motions and the State’s opposition

In December 2013, Plaintiffs filed fee motions in NEOCH (NEOCH-

Doc.393) and SEIU (SEIU-Doc.120) for 2012-2013 litigation. NEOCH Plaintiffs

billed 2,357.85 hours. NEOCH-Doc.393, PagedID#13819. The twenty-three

NEOCH attorneys requested rates ranging from $215-$750/hour. Id.,

PageID#13825. They requested $967,593.25 in fees and $21,081.30 in expenses.

Id., PageID#13819, 13828.

SEIU Plaintiffs billed 3,641.13 hours for obtaining injunctive relief as to

correct location/wrong precinct ballots. SEIU-Doc.120, PageID#6783. The twelve

SEIU attorneys requested rates ranging from $300-$750/hour. Id., PageID#6786

(Ms. Trice was omitted from this chart). They requested $1,383,436.75 in fees and

$52,237.09 in expenses. Id., PageID#6783, 6789.

The State filed a combined response opposing both motions. NEOCH-

Doc.407/SEIU-Doc.131, PageID#7010-99. The State agreed that Plaintiffs were

prevailing parties, but challenged the reasonableness of the fee requests. The State

argued that (1) counsel’s hours exceeded the amount reasonably necessary for

relevant work; (2) counsel included hours for unnecessary/unsuccessful tasks; and

(3) counsel requested unreasonably high rates. In support, the State submitted

~eighty pages of briefing (PageID#7020-98), and twenty-three exhibits, most of

11

which categorized billing entries (NEOCH-Doc.407-2–407-24/SEIU-Doc.131-2–

131-24).

The State asked the court to eliminate non-compensable hours, reduce

remaining hours by 50%, and award rates consistent with 2013 bar survey results.

NEOCH-Doc.407/SEIU-Doc.131, PageID#7095-97. As a rate alternative, the State

proposed a $300/hour cap for less experienced attorneys (admitted post-2000) and

a $400/hour cap for more experienced attorneys. Id.

NEOCH Plaintiffs submitted a separate fee motion for the 2013 Consent

Decree extension. NEOCH-Doc.388, PageID#13692-13721. Plaintiffs billed ~340

hours, requesting ~$120,000, for this isolated issue. Id., PageID#13719. The State

opposed the request as unreasonably high. SEIU-Doc.390, PageID#13779-97.

III. 13BThe district court’s fee award

On September 29, 2014, the district court granted Plaintiffs’ three fee

motions with only slight modifications. NEOCH-Doc.436/SEIU-Doc.140,

PageID#7458-88.

The court offered limited analysis addressing the State’s first challenge

(excessive hours for necessary work), stating that it reviewed counsel’s

billing/declarations and found “no unnecessary duplication and that the time spent

was reasonable.” Id., PageID#7463-66. The court accused the State of

“invoke[ing] a phantom specter”, implying that the State’s hour challenges

12

consisted of “conclusory allegations”. Id., PageID#7466. The court then

addressed the State’s second challenge (hours for unnecessary/unsuccessful work).

Id., PageID#7467-76.

Of the thousands of hours submitted, the court cut fewer than forty main-

case hours (re: third-party intervention).2F

3 See id., PageID#7475-76. Consistent

with binding precedent, the court limited “fees for fees” hours (time obtaining

attorney fees) to 3% of time on the main cases. Id., PageID#7469-70.

The court made minor reductions to requested hourly rates, awarding rates

ranging from $215-$600/hour. Id., PageID#7485. The twenty-five rates average

$378/hour.3F

4 Twenty-one attorneys received $300/hour or above, with ten of these

twenty-one receiving $425/hour or above.

Plaintiffs submitted a bill calculating the award. NEOCH-Doc.428/SEIU-

Doc.142, PageID#7491-97. It was for 6,147 total hours. Id. The court approved

Plaintiffs’ bill on February 17, 2015, awarding $2,227,179.90 in fees and costs.

NEOCH-Doc.444/SEIU-Doc.147, PageID#7687-96.

3 In reply, Plaintiffs also withdrew ~80 hours initially submitted. 4 Although excluded from the initial decision, Ms. Trice received $240/hour. NEOCH-Doc.444/SEIU-Doc.147, PageID#7694-95.

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6BSUMMARY OF ARGUMENT

There are “two sides to these attorney-fee debates,” both of which the Court

must honor. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 612 (6th Cir. 2013).

On one side, Ҥ 1988 plays a critical role in ensur[ing] that federal rights are

adequately enforced, and attorneys have every right to be compensated for any fees

and expenses they reasonably incur.” Id. (internal quotations omitted). But, on the

other side, “§ 1988 occasionally is misunderstood and misused”; “these cases can

all too easily become a way of life for the attorneys involved, and consequently

over time it can become increasingly unclear, for both the attorneys and the courts,

precisely what work falls within the ambit of § 1988.” Id. What both the Supreme

Court and this Court have made “abundantly clear” is that “the aim of [§ 1988] is

not for the purpose of aiding lawyers. The purpose of th[e] bill is to aid civil

rights.” Id. (internal quotations omitted); Perdue v. Kenny A. ex rel. Winn, 559

U.S. 542, 552 (2010) (the statute’s aim is “not to provide a form of economic relief

to improve the financial lot of attorneys”) (internal quotations omitted).

The fee award goes against this aim. It is markedly unreasonable as to both

lodestar factors.

First, the thousands of hours far exceed reasonableness. Counsel could have

performed the tasks necessary in these cases, at a high level, in far less time.

Billing entries reveal that counsel overstaffed and overlawyered this litigation.

14

And while counsel’s rates suggest considerable experience, their hours do not

reflect corresponding efficiency.

Many elements contributed to overbilling. The sheer volume of attorneys

naturally resulted in duplication. Counsel staffed these cases with a combined

twenty-five attorneys (and teams of paralegals/law clerks), using six to thirteen

lawyers on most projects. A closer review of the 6,000+ hour total uncovers

several unreasonable practices:

1. unduly high attendance at, and travel to, court proceedings;

2. inordinate time conferencing among co-counsel;

3. unreasonably high/duplicative research hours;

4. unreasonable time drafting/editing/reviewing filings;

5. unnecessary time drafting an unfiled law/fact proposal;

6. unnecessarily cumulative discovery;

7. unreasonable time obtaining the Consent Decree extension;

8. unreasonable time obtaining an unopposed permanent injunction;

9. unreasonable time trying to hold nonparty relators in contempt;

10. billing for an unnecessary attempt to certify a separate defendant class; and

11. billing for a NEOCH motion to modify that was duplicative of, and subsumed by, the SEIU motion for preliminary injunction.

15

Counsel did not meet their burden of justifying this billing. And, given detailed

challenges and the many hours at stake, the court’s minimal hours analysis was

insufficient.

Second, the district court awarded rates too high to too many lawyers. In

assigning reasonable rates, the question is not what rates these precise lawyers

might be able to charge some well-to-do client willing to spare no expense. The

controlling question is what rates are sufficient to attract capable representation in

the local market. The awarded rates (especially the many $425+ rates) go well

beyond the rates necessary to incentivize capable counsel in Southern Ohio. The

significant gap between the awarded rates and previous Ohio awards makes the

court’s error plain. And the court’s error is exacerbated by the fact that it did not

just award high rates to a few lawyers, it awarded high rates to more than twenty.

Based on these problems, the district court abused its discretion; this Court

should reverse and remand for a substantial decrease of the award.

16

7BARGUMENT

Section 1988 permits “reasonable attorney’s fee[s]” to prevailing parties. 42

U.S.C. § 1988(b). Reasonable fees strike the balance of (1) being “adequately

compensatory to attract competent counsel”, but not (2) “producing a windfall for

lawyers.” Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 616 (6th Cir. 2007)

(emphasis omitted).

This Court reviews fee awards for abuse of discretion. Binta, 710 F.3d at

618. “A district court abuses its discretion when it relies upon clearly erroneous

factual findings, applies the law improperly, or uses an erroneous legal standard.”

Id. (internal quotations omitted). An abuse exists when the court has “a definite

and firm conviction that the trial court committed a clear error of judgment”.

Moon v. Unum Provident Corp., 461 F.3d 639, 642 (6th Cir. 2006) (internal

quotations omitted).

But “discretion is not unlimited.” Perdue, 559 U.S. at 558. “It is essential

that the judge provide a reasonably specific explanation for all aspects of a fee

determination”. Id. “Unless such an explanation is given, adequate appellate

review is not feasible, and without such review, widely disparate awards may be

made, and awards may be influenced (or at least, may appear to be influenced) by a

judge’s subjective opinion regarding particular attorneys or the importance of the

case.” Id.

17

The lodestar method is the standard approach for calculating reasonable fees.

Id. at 551-53. The lodestar is “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 party seeking fees “has the burden of proving the basic

time/rate elements”. Segocia v. Montgomery Cnty., Tenn., 593 F.App’x 488, 491

(6th Cir. 2014). “[T]he lodestar calculation is objective” and “cabins the discretion

of trial judges, permits meaningful judicial review, and produces reasonably

predictable results.” Perdue, 559 U.S. at 552 (internal quotations omitted).

Here, the district court abused its discretion in determining both lodestar

factors.

I. 14BThe district court abused its discretion by awarding 6,000+ hours.

A. 21BA reasonable hour total must exclude hours not reasonably expended: courts should exclude hours for lack of billing judgment; overstaffing; and insufficient documentation.

In determining hours, a court must “exclude from this initial fee calculation

hours that were not ‘reasonably expended.’” Hensley, 461 U.S. at 434 (quoting

legislative history). A few considerations are especially relevant.

Billing Judgment. Like private attorneys, attorneys seeking statutory fees

must exercise billing judgment as to their hours. Id. (“In the private sector, billing

judgment is an important component in fee setting. It is no less important here.”)

(internal quotations omitted). “Counsel for the prevailing party should make a

18

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.” Id.

Inherent in billing judgment is the commonsense notion that lawyers should

bill fee-paying defendants in the same manner as reasonable clients. Id. “Hours

that are not properly billed to one’s client also are not properly billed to one’s

adversary pursuant to statutory authority.” Id. (internal quotations omitted,

emphasis in original).

Overstaffing. Of importance here, courts must account for overstaffing

when calculating hours. Hensley, 461 U.S. at 434. “There is nothing inherently

unreasonable about a client having multiple attorneys”, but groups of attorneys

cannot charge for “unreasonably doing the same work” and must demonstrate “the

distinct contribution of each lawyer”. ACLU of Georgia v. Barnes, 168 F.3d 423,

432 (11th Cir. 1999) (emphasis added, internal quotations omitted); cf. Schlacher

v. Law Offices of Phillip J. Rotche & Assoc., P.C., 574 F.3d 852, 858 (7th Cir.

2009) (“[O]verstaffing cases inefficiently is common, and district courts are

therefore encouraged to scrutinize fee petitions for duplicative billing when

multiple lawyers seek fees.”).

It is not fee-paying defendants’ job to prove overstaffing. Rather, fee-

seeking plaintiffs bear the “burden of showing that the time spent by those

19

attorneys reflects the distinct contribution of each lawyer to the case”. Barnes, 168

F.3d at 432. “[T]he fee applicant has the burden of showing that, and where there

is an objection raising the point, it is not a make-believe burden.” Id.

This Court’s decision in Kentucky Restaurant Concepts Inc. v. City of

Louisville, 117 F.App’x 415, 419 (6th Cir. 2004) provides guidance. The case

involved a First Amendment claim that went to trial. Id. at 416-17. The district

court reduced the fees of five attorneys (compared to twenty-five) who represented

two plaintiffs’ groups, due to duplication. Id. at 418. This Court affirmed the

conclusions that “multiple attorneys spent considerable time doing very similar

work” and that “plaintiffs hired too many attorneys” for fee purposes. Id. at 419.

This Court positively quoted, as “both concise and clear”, the district court’s

explanation: “Plaintiffs are not entitled to have any number of well-qualified

attorneys reimbursed for their efforts, when fewer attorneys could have

accomplished the job.” Id. (emphasis added).

Like Kentucky Restaurant Concepts, many courts have expressed concerns

about aggressive case staffing. See, e.g., Coulter v. State of Tenn., 805 F.2d 146,

152 (6th Cir. 1986) (with “multiple representation” there is “the danger of

duplication, a waste of resources which is difficult to measure”); Harkless v.

Brunner, No. 1:06 CV 2284, 2011 WL 2149138, at *2 (N.D. Ohio May, 31, 2011)

(holding that “multiple senior lawyers” working on a voting-rights case resulted in

20

“extensive duplication”); Amedisys, Inc. v. Nat’l Century Fin. Enterprises, Inc.,

No. 2:04-CV-493, 2006 WL 1209372, at *3 (S.D. Ohio May 2, 2006) (“[H]aving

eight attorneys working on the appeal resulted in duplication and an unreasonable

number of hours billed.”).

Although plaintiffs are certainly free to staff cases as heavily as they like

(and are willing to pay for), they cannot impose such luxuries on opponents. See

Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 943 (3rd

Cir. 1995) (“The fact that a private client may accede to the practice and pay the

additional fees does not necessarily make them reasonable nor necessary when

they are to be paid by the other party to the proceedings.”); In re Donovan, 877

F.2d 982, 996 (D.C. Cir. 1989) (“Counsel is not free, however, to exercise its

judgment in a fashion that unnecessarily inflates the losing party’s fee liability, e.g.

by injecting an additional layer of attorneys into the case.”) (internal quotations

omitted).

Documentation. Fee-seeking attorneys must adequately document their

hours. Hensley, 434 U.S. at 433. The Court does not require attorneys to “record

in great detail” every minute, but “the general subject matter should be identified.”

Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 553 (6th Cir. 2008) (internal

quotations omitted). Documentation “must be of sufficient detail and probative

value to enable the court to determine with a high degree of certainty that such

21

hours were actually and reasonably expended”. U.S. Tile & Composition v. G&M

Roofing, 732 F.2d 495, 502 n.2 (6th Cir. 1984); see also Cashman Equipment

Corp. v. Rozel Operating Co., 569 F.App’x 283, 289 (5th Cir. 2014) (reduction is

proper “when the supporting documentation is too vague to permit meaningful

review”) (internal quotations omitted).

Block billing is an important factor when assessing documentation. See

Imwalle, 515 F.3d at 553 (recognizing courts have reduced fees “where billing

records ‘lumped’ together time entries under one total so that it was impossible to

determine the amount of time spent on each task”) (internal quotations omitted).

Although block billing is not always unreasonable, the practice results in

“imprecision in an attorney’s records,” Ceres Env’l Servs., Inc. v. Col. McCrary

Trucking, LLC, 476 F.App’x 198, 203 (11th Cir. 2012), and “makes it more

difficult to determine how much time was spent on particular activities.” Welch v.

Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). These are “problem[s] for

which the opponent should not be penalized”. Ceres Env’l Servs., 476 F.App’x at

203. Rather, billing attorneys should bear adverse results from their imprecision.

See id. at 203-04 (holding block billing justified across-the-board reduction).

22

B. Counsel requested, and received, excessive hours.

Plaintiffs’ attorneys submitted numerous hours not reasonably expended.

Counsel failed to demonstrate their hours were reasonable, and the district court

abused its discretion by awarding virtually all of these hours.

The court permitted 6,147 hours in these cases. More than 5,400 hours

occurred in ~six months. Such totals are difficult to conceptualize. To provide

some context, 5,400 hours is enough time for (1) five separate people (2) to submit

40 billable hours (3) each week (4) for six months (5) while still having a couple

hundred hours left over. Compare, Precision Concrete v. N.L.R.B., 362 F.3d 847,

853 (D.C. Cir. 2004) (holding that 500 hours on appellate work was excessive:

“We see nothing in this case that warranted the expenditure of over twelve and a

half weeks at forty hours per week of professional time”). Or, broken down

differently, 5,400 hours amounts to ~30 billable hours, every day (including

weekends), for an entire half-year.

In assessing hours, the Court should remember the procedural nature of

these cases. Although expedited, neither case involved an evidentiary hearing or

trial. Rather, the cases consisted of briefing, paper discovery, and oral arguments

(often repeating subjects).

Whether viewed on a large or small scale, counsel’s hours are unreasonable.

The State offers several examples of unreasonable billing below (examples the

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May 9, 2012. The May 9 telephone conference—addressing the NEOCH

motion to enjoin—lasted thirty-eight minutes. See Tr.5/9/12, NEOCH-Doc.285,

PageID#6850-72. Four attorneys spoke on behalf of Plaintiffs (other than

appearances), with Ms. Gentry taking lead. See id.

Thirteen attorneys billed for attendance. NEOCH-Doc407-2/SEIU-Doc.131-

2, PageID#7102. Although block billing makes precision impossible, May 9

entries referencing conference preparation and attendance total ~43 hours. Id.

Four billing attorneys (Reddy, Cincotta, Leonard, Hughes) did not even enter

appearances. Tr.5/9/12, PageID#6850-53. Two attorneys (Leonard, Reddy) billed

one hour each referencing only the thirty-eight minute conference. NEOCH-

Doc.393-3, PageID#13896-97.

May 10, 2012. The court held a follow-up telephone conference the next

day. Tr.5/10/12, NEOCH-Doc.286, PageID#6873-6902. Outside of appearances,

only Ms. Gentry and Mr. Berzon spoke for Plaintiffs. Id.

At least eleven attorneys billed for attendance. NEOCH-Doc407-2/SEIU-

Doc.131-2, PageID#7103. Mr. Chandra also attended, although it is unclear

whether his page-long block bill for that day includes the conference. NEOCH-

Doc.393-15, PageID#14046. Excluding Mr. Chandra, May 10 conference-related

entries total ~35 hours. NEOCH-Doc407-2/SEIU-Doc.131-2, PageID#7103.

25

Three attorneys billing attendance (Cincotta, Reddy, Leonard) never entered

appearances. Tr.5/10/12, NEOCH-Doc.286, PageID#6873-75.

May 16, 2012. The district court held another telephone conference on May

16 for scheduling. Tr.5/16/12, NEOCH-Doc.433, PageID#15522-41; NEOCH-

Doc.259, PageID#5797 (providing notice as to the conference’s purpose). Despite

the nature of proceedings, counsel charged for seven attorneys. NEOCH-Doc407-

2/SEIU-Doc.131-2, PageID#7103. Only Ms. Gentry and Mr. Berzon spoke.

Tr.5/16/12, NEOCH-Doc.433, PageID#15522-41.

June 27, 2012. The district court held argument on June 27 concerning

Consent Decree validity. Tr.6/27/12, NEOCH-Doc.329, PageID#12188-12266. It

also addressed SEIU scheduling. Three Plaintiffs’ attorneys handled proceedings.

Ms. Leonard (and, limitedly, Ms. Gentry) argued the merits. Ms. Chisholm spoke

concerning SEIU logistics.

Counsel charged for eight attorneys to participate. NEOCH-Doc407-

2/SEIU-Doc.131-2, PageID#7104. These eight attorneys collectively billed ~90

hours for argument-related travel, preparation, and attendance for June 26-27

alone. Id. They billed over 70 hours on the day of the argument. Id. At least four

attorneys billed travel. Id.

Entries from Ms. Leonard and Ms. Chisholm stand out. Both attorneys

billed unreduced hours for cross-country trips from San Francisco. Between the

26

two cases, Ms. Leonard billed 32.5 hours (19.4 hours on June 27) for the two days.

NEOCH-Doc.393-3, PageID#13907; SEIU-Doc.120-3, PageID#6870-71. Ms.

Chisholm—who only spoke concerning SEIU case management—billed 27.25

hours for the two days. NEOCH-Doc.393-3, PageID#13903; SEIU-Doc.120-3,

PageID#6859.

July 30, 2012. The next argument concerned the SEIU preliminary

injunction motion and NEOCH motion to modify. Tr.7/30/12, NEOCH-Doc.330,

PagedID#12267-12361. Ms. Chisholm spoke concerning potential third-party

intervention in SEIU. Ms. Leonard argued on the injunction/modification motions.

Plaintiffs charged for ten attorneys’ attendance. NEOCH-Doc407-2/SEIU-

Doc.131-2, PageID#7104. For the dates of July 29-30, these attorneys billed 100+

hours for hearing-related activities, with ~80 hours solely for June 30. Id. The

billing appears to include ~50 travel hours. Id. Beyond travel for Ohio attorneys,

counsel billed hours for (1) three San Francisco trips for Altschuler-Berzon

attorneys and (2) the travel of Ms. Judge from New Jersey.

Mr. Berzon’s attendance is a prime example of duplication. He had minimal

involvement with the relevant motions. See NEOCH-Doc.393-3, PageID#13919;

SEIU-Doc.120-3, PageID#6911-12. Ms. Leonard, not Mr. Berzon, argued for

Plaintiffs; and she spent significant time preparing, including ~40 hours from July

25-28. SEIU-Doc.120-3, PageID#6872. Nevertheless, Mr. Berzon billed 24.5

27

hours on July 29-30 for hearing-related time. Id., PageID#6912. At the $600 rate

awarded, the State is paying $14,700 so that an out-of-state founding partner could

travel from San Francisco to passively attend a hearing with nine other attorneys.

This does not include expenses. And this is just one example of over-attendance.

October 1, 2012. This Court held argument (telephone) on October 1, with

fifteen minutes per side in each case. Ms. Leonard argued.

Six attorneys billed for participation, five from Alschuler-Berzon. NEOCH-

Doc407-2/SEIU-Doc.131-2, PageID#7105. Although Ms. Leonard argued the

same matters before the district court (and spent incredible time on appellate

briefing), she still billed ~60 hours of argument preparation from September 25-30.

SEIU-Doc.120-3, PageID#6874. On top of Ms. Leonard’s considerable efforts,

Mr. Berzon billed ~21 hours referencing argument-related activities from

September 24-30. Id., PageID#6913.

July 12, 2013. The district court held argument regarding the Consent

Decree extension in 2013. Tr.7/12/13, NEOCH-Doc.382, PageID#13629-61. Mr.

Chandra argued. Counsel charged for four attorneys to attend (travel for three),

and a total of 80+ argument-related hours (excluding motion practice). NEOCH-

Doc.388-3, PageID#13743-45; NEOCH-Doc 388-4, PageID#13757; NEOCH-

Doc.388-6, PageID#13762. Although she did not argue, Ms. Gupta billed ~45

28

hours for argument preparation/travel, including a 14 hour block bill the day before

argument. NEOCH-Docs.388-3, PageID#13743-45.

* * *

In summary, counsel billed the following attendance:

Proceeding # of Attorneys Arguing # of Attorneys Billing 5/9/12 4 (mainly 1) 13

5/10/12 2 11 or 12 (Chandra?)

5/16/12 2 7

6/27/12 3 8

7/30/12 2 10

10/1/12 1 6

7/12/13 1 4

Counsel did not and cannot demonstrate these attorneys were offering

distinct contributions worthy of full compensation. Although the sheer numbers

are jarring, the Court should remember these attorneys’ characteristics. These are

not fees for tag-along attendance of a few junior associates. Counsel consistently

ask the State to pay for senior attorneys (e.g., Berzon, McTigue, Leyton, Hunter,

all $450+/hour) to sit fourth, fifth, or even ninth/tenth chair at proceedings. This is

extravagance, not reasonableness; the district court was wrong to allow it.

29

Although the State identified these excesses below, NEOCH-

Doc.407/SEIUDoc.131, PageID#7040-45, the district court spent little time

discussing the issue. The court repeated the standard for having multiple attorneys,

NEOCH-Doc.426/SEIU-Doc.140, PageID#7465-66, but made no attempt to

explain how counsel showed that as many as thirteen attorneys at a conference

offered distinct contributions justifying full fees.

Relatedly, counsel billed excessive travel. The State does not dispute that

some level of local travel is reimbursable, but the travel charges detailed above,

particularly out-of-state travel, went beyond what is permissible.

One “important virtue[]” of the lodestar method is that it places fees within

the “prevailing market”. Perdue, 559 U.S. at 551. Accordingly, any award of

travel time must be consistent with “local practice”. Robinson v. Elida Local Sch.

Dist., Bd. of Educ., 99 F.3d 1139 (table), 1996 WL 593535, at *3 (6th Cir. Oct. 15,

1996). And when plaintiffs seek extra fees caused by hiring out-of-town counsel,

they face the burden of showing that “hiring the out-of-town specialist was

reasonable in the first instance”. Hadix v. Johnson, 65 F.3d 532, 535 (6th Cir.

1995); Martinez v. Hernando Cnty Sheriff's Office, 579 F.App’x 710, 714 (11th

Cir. 2014) (“[A]lthough there are no precise rules with respect to travel time, a fee

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757, 760 (5th Cir. 1996) (concluding “intraoffice conferences” resulted in

“duplication of attorneys’ time charges”); Cleveland Area Bd. of Realtors v. City of

Euclid, 965 F.Supp. 1017, 1021 (N.D. Ohio 1997) (finding thirty pre-complaint

conferences to be excessive “especially when many are described simply as

‘regarding status.’”); Harkless v. Husted, No. 1:06-cv-02284, 2011 WL 2149179,

at *21 (N.D. Ohio Mar. 31, 2011) (“Plaintiffs’ counsel spent an incredible amount

of time emailing, conferencing, meeting, consulting and developing strategy.”)

(adopted with modification by 2011 WL 2149138).

In re Olson, 884 F.2d 1415 (D.C. Cir. 1989) is instructive. That court

reduced fees by ten percent based on insufficient documentation and over-

conferencing. Id. at 219. The court concluded that frequent conferencing among

experienced attorneys resulted in significant redundancy and inefficiency:

The attorneys also engaged in a plethora of conferences, most often denoted simply as “strategy” conferences, consuming the time of several attorneys who bill at very high rates. The hourly rates charged are of such magnitude as to indicate that the attorneys should have been able to decide on the proper strategy without the great number of strategy conferences attended by numerous firm lawyers. . . . We recognize that the case was very important, protracted, unique and was very ably handled, but we find that the number of conferences among the twenty-one attorneys who did some work on the matter were excessive.

Id. (emphases added, internal citation omitted).

As in In re Olsen, these cases involve unreasonable amounts of

conferencing. Even quick review of billing entries reveals many “strategy

32

conferences” among counsel and staff. See NEOCH-Doc.393-3; SEIU-Doc.120-3.

On closer inspection, 1,190 entries—659 in SEIU, 531 in NEOCH—include some

form of internal conference. NEOCH-Doc.407-4; SEIU-Doc.131-3. These

conferences often involved three or more attorneys, and many lasted an hour or

longer. See id. The entries describe conferences on virtually every subject,

including narrow topics such as “related case notice”; “privity”; “cite check”;

“harm standards”; “indexing Hunter transcript”; “county pleadings”; and “potential

amicus brief”. Id.

Routine block billing makes it impossible to tell how much time is billed

just for conferencing. But the total is quite large. Even conservative estimates,

completely omitting ~250 block bills of 2+ hours, suggest the legal teams are

charging for 650+ conferencing hours (~300 in NEOCH, ~370 in SEIU). See id.

This estimate is more than a tenth of the awarded hours.

Counsel also seek many hours for emailing. See Harkless, 2011 WL

2149179, at *21 (rebuking attorneys for an “incredible amount of time emailing”).

The problem with frequent email billing is that it allows many attorneys—copied

on emails—to bill for emails regardless of their actual involvement.

Mr. McTigue’s billing demonstrates this problem. His entries reflect a

limited role in NEOCH. See NEOCH-Doc.393-12. So his billing centers on

emails. Of his 137 billing entries (~108 hours) for the primary NEOCH fee

motion,

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34

paying anyway, counsel is induced to read every case, depose every witness, examine fully every tactic, leave no stone unturned.

Bonner v. Coughlin, 657 F.2d 931, 935 (7th Cir. 1981) (emphasis added, citation

omitted). “[L]awyer[s] may have strong economic incentives to spend too many

hours on a piece of work or to exaggerate the number of hours spent or the

necessity or importance of the work.” Coulter, 805 F.2d at 150.

Furthermore, normal legal tasks, e.g., research, should be performed with

efficiency matching attorney rates. Buffington v. Baltimore Cnty., Md., 913 F.2d

113, 130 (4th Cir. 1990) (“[T]he primary justification for awarding high-end

hourly rates for experienced counsel in § 1983 litigation is that their very

experience and skill will result in economies of time because of their lack of need

for extensive background legal research.”) (emphasis added).

Counsel billed for excessive research and review of pleadings. Although

block billing makes precision difficult, NEOCH/SEIU legal teams apparently billed

at least 750 hours devoted to research activities. See NEOCH-Doc.407-21; SEIU-

Doc.131-22. Specifically, omitting research block billed with drafting, the SEIU

team billed ~400 hours for research-related activities. SEIU-Doc.131-22.

Applying the same method, the NEOCH team billed ~370 hours. NEOCH-

Doc.407-21. Billing entries report long chunks of research, including ~50 billing

entries of five hours or longer consisting primarily, or solely, of research.

NEOCH-Doc.407-21; SEIU-Doc.131-22.

35

Some highlights:

x Fifteen NEOCH attorneys billed their own research;

x Eight SEIU attorneys billed their own research;

x On April 17, 2012, four different attorneys billed between 2-5 hours with the same billing descriptions, “Review and analyze Niehaus complaint; confer with co-counsel”, NEOCH-Doc.393-8, PageID#13959;

x Ms. Reddy billed 20+ hours researching “expansion of consent decree” in just two days, NEOCH-Doc.393-3, PageID#13918;

x Ms. Reddy charged 30+ hours researching civil contempt, id., PageID#13896-97;

x Mr. Thoreen spent 28.1 hours ($12,645 at $450/hour) from July 20-26, 2012 drafting a jurisdictional memo, id., PageID# 13919.

In addition to attorney research, these figures include an unreasonable

number of law-clerk hours. The Alschuler-Berzon firm billed for hundreds of law

clerk hours. See NEOCH-Doc.393-3; SEIU-Doc.120-3. Law clerks (awarded

$150/hour) spent most of this time researching and drafting memos. They billed

many long blocks:

x 9.8 hours researching constitutional issues;

x 8 hours researching (un-litigated) HAVA claims;

x 9.4 hours researching “1983 injunction”;

x 7.8 hours researching “deliberate indifference”;

x 11.8 hours for an evidentiary standards memo.

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37

its discretion by failing to exclude hours for five attorneys drafting briefs). The

Harkless court, for example, criticized having “multiple senior attorneys review[]

every pleading and document filed in this case and in the Sixth Circuit”. 2011 WL

2149138, at *2 (internal quotations omitted). It found “extensive duplication

occurred because other attorneys were reviewing and approving work already

reviewed and edited by lead counsel”. Id.

Billing entries reflect excessive time (involving teams of attorneys) drafting,

editing, reviewing, and revising nearly every filing.

The initial SEIU filings display counsel’s approach to motion practice. Even

omitting extensive hours for evidentiary declarations and preliminary research, the

SEIU team charged ~300 hours for drafting/editing the complaint and preliminary

injunction motion. SEIU-Doc.131-12. From June 7-21 alone, Ms. Leonard billed

120+ hours for work on the preliminary injunction motion. SEIU-Doc.120-3,

PageID#6869-70. Beyond Ms. Leonard’s (lead counsel) extensive billing, five

other attorneys billed for drafting and editing that motion. SEIU-Doc.131-12. For

example, from May 25-26, Ms. Reddy and Ms. Leyton billed a combined 22.1

hours described as “Research and draft substantive due process argument”. SEIU-

Doc.120-3, PageID#6876, 6903. Why two attorneys were drafting the same

argument on the same day (May 26) is unclear.

38

The SEIU team charged an additional ~130 hours, involving six attorneys,

for drafting and editing their twenty-page reply. SEIU-Doc.131-13; see SEIU-

Doc.33 (reply).

NEOCH billing is no different. By their own breakdown, NEOCH Plaintiffs

charged ~532 hours for the motion to enjoin phase (no appeal). NEOCH-Doc.393,

PageID13819. Excluding large amounts of research and conferencing, billing

entries still include ~150 hours, from eleven attorneys, for drafting and editing the

initial motion. See NEOCH-Doc.407-14. This motion is less than twenty-five

pages. NEOCH-Doc.246, PageID#5612-36.

The May 10 reply (NEOCH-Doc.257) demonstrates complete disregard for

surrounding circumstances. At Plaintiffs’ request, the district court handled the

May 8 motion to enjoin on an urgent schedule. On May 9, the court stated it

would “provide an answer by close of business tomorrow.” Tr.5/9/12, NEOCH-

Doc.285, PageID#6869. It gave relators a noon deadline for response, and stated

“plaintiffs have given me sufficient information that they can stand on, as far as

jurisdiction is concerned and my power to enjoin both the Ohio Supreme Court and

the relators.” Id., PageID#6869-70. Disregarding these instructions, counsel spent

~40 hours (52.7 block billed) on May 9-10 for a reply, with billing from nine

attorneys. NEOCH-Doc.407-15. They filed this reply only 30 minutes before the

39

court announced its decision. Tr.5/10/12, NEOCH-Doc.286, PageID#6876. This

filing, and billing, was unwarranted.

Counsel’s practices continued throughout both cases. The NEOCH team

billed ~190 hours, from thirteen attorneys, referencing drafting, editing, and/or

reviewing the May 30 brief concerning Consent Decree validity. See NEOCH-

Doc.407-16. This figure does not include extensive time planning, researching,

and coordinating evidence. Although receiving help from twelve attorneys, Ms.

Leonard reported five days of 14+ billable hours from May 23-28. NEOCH-

Doc.393-3, PageID#13906. She submitted 85.4 hours referencing drafting during

this period. Id.

Given the trial level hours, one might expect hours to subside for appellate

briefs, regarding the same subjects, drafted a few months later. Not so. NEOCH

Plaintiffs billed ~215 hours between August 21 and September 4 referencing

appellate brief work. See NEOCH-Doc.407-17. Ten different attorneys billed for

outlining, drafting, editing, revising, and/or reviewing the brief. Id.

Maybe the most aggressive billing was for the SEIU appellate brief. SEIU

Plaintiffs submitted 375+ hours (including six attorneys) describing drafting and

editing the brief. SEIU-Doc.131-18. Despite her work on earlier briefing (and

help from five attorneys), Ms. Leonard billed 130+ hours, including a 19.9

billable-hour day. SEIU-Doc.120-3, PageID#6873-74. The charge for this

40

workday is $8,955 (at $450/hour). Billing entries reflect that Mr. Berzon had little

role in the writing process, but that did not prevent him from billing 13.8 hours

($8,280) on September 20, block billing his work as “Review amicus briefs in

early voting cases; edit appeal brief; strategy conference re: reorganization and

revisions”. SEIU-Doc.120-3, PageID#6913.

The many long days on the SEIU brief, from many different attorneys, is

striking. In total (1) five different attorneys (2) billed fourteen different entries

(3) of 10+ billable hours: Berzon; Reddy; Cincotta (two); Chisholm (three);

Leonard (seven). SEIU-Doc.131-18.

Added to hundreds of hours on every motion and brief, counsel also spent

excessive time on minor filings. SEIU counsel, for instance, billed at least 8 hours

(three attorneys) to provide notice to the district court that SEIU was related to

NEOCH/Hunter.4F

5 SEIU-Doc.120-3, PageID#6858-59, 6870, 6877. SEIU counsel

billed ~13 hours (four attorneys) for a related-case letter to this Court. Id.,

PageID#6862, 6873, 6878, 6908. NEOCH counsel billed ~10 hours (five

attorneys) for appellate filings regarding the State’s purported misstatements in its

reply briefing. NEOCH-Doc.393-3, PageID#13905-16; NEOCH-Doc.393-12,

PageID#13999.

* * * 5 This does not include a 12.6 hour entry from Ms. Leonard referencing the related-case notice. SEIU-Doc.120-3, PageID#6870.

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State estimates 1300+ hours for coordinating discovery, organizing evidence, and

filing declarations/exhibits.

The universe of discovery counsel chose was overbroad for fee purposes.

Rather than conducting discovery on sample counties, counsel conducted

discovery—via public-record requests/subpoenas—on all eighty-eight Boards of

Elections. In Harkless, the Northern District of Ohio criticized a similar choice.

2011 WL 2149138, at *2. The court held that “conducting discovery in all 88 Ohio

counties was excessive”, resulted in “significant and unnecessary fees for

document review and cataloguing”, and led to “duplicative and unnecessary

expenses.” Id. (internal quotations omitted).

Counsel’s decision to conduct discovery on every Ohio County resulted in

unreasonable hour totals. Counsel’s 2012 bills are full of entries for coordinating

and cataloguing discovery. For instance, from May 24-25 staff charged ~30 hours

to travel to counties and pick-up/inspect documents. NEOCH-Doc.393-8,

PageID#13962-63; but see R.C. 149.43(B)(7) (allowing public records to be sent

by mail or other means). Mr. Klaus submitted repeated entries referencing what

appear to be clerical discovery tasks, e.g., cataloguing emails and compiling

records. NEOCH-Doc.393-8, PageID#13963-65. Over just two days in June, he

billed 15+ hours for such activities, including “creating spreadsheet showing status

of public record requests to each county”. Id., PageID#13964.

44

More senior attorneys also benefitted from extensive discovery billing. For

example, Ms. Harshman ($300/hour) block billed 12 hours for “Preparation of

BOE subpoenas; request for production” on June 29; Mr. Hunter ($450/hour) block

billed another 6 hours that same day with an identical billing description. SEIU-

Doc.120-7, PageID#6941. Between July 2-11, Ms. Harshman reported ~60 hours

of document review and conferencing with Boards. Id.

Counsel also filed an unnecessary number of declarations. NEOCH

Plaintiffs, for instance, submitted seventeen declarations (eight reply declarations)

with their motion to modify. NEOCH-Docs.289-97, 311-18. SEIU Plaintiffs

similarly filed many declarations, reply declarations, and supplemental reply

declarations regarding their preliminary injunction motion. SEIU-Docs.4-1–4-7, 7-

13, 24, 34-35, 37-38, 41, 44-45, 48, 53, 55. These declarations often came from

the same individuals and involved highly-similar evidence.

The constant filing/re-filing of declarations led to redundant hours. The

legal teams submit numerous hours drafting, editing, reviewing, analyzing,

redacting, discussing, fact-checking, compiling exhibits for, finalizing, and filing

these declarations. In SEIU, seven different attorneys just from Alschuler-Berzon

billed for drafting, editing, and/or reviewing declarations. SEIU-Doc.120-3. From

June 13-17, Ms. Reddy billed 44.3 hours for reviewing documents and drafting

declarations. Id., PageID#6877. During the same period, Ms. Cincotta spent ~25

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46

Consent Decree, counsel billed ~335 hours.5F

6 NEOCH-Doc.428, PageID#15256.

Review of billing reflects ~150 hours regarding deciding to file; researching;

drafting; editing; and talking about their motion to extend. See NEOCH-Docs.388-

3, 388-4, 388-6. Excluding tables of contents/authorities, the motion is ~twenty-

five pages. NEOCH-Doc.362, PageID#12925-54. As one example of this

“extension” billing, on April 5, Ms. Gupta billed 2.9 hours solely referencing

discussions with Mr. Chandra and Mr. McTigue. NEOCH-Docs.388-3,

PageID#13736. These two attorneys, however, each only billed an hour for these

discussions. Id.; NEOCH-Doc.388-4, PageID#13755.

Counsel submitted ~65 more hours for reply-related activities. See

NEOCH-Docs.388-3, 388-4, 388-6. They also included ~28 hours of billing

entries referencing 2013 mediation (also concerning other issues/appeals).

NEOCH-Docs.388-3, PageID#13732-42. Finally, counsel charged ~80 hours for

argument preparation, attendance, and travel. NEOCH-Docs.388-3, 388-4, 388-6.

Billing ~335 hours for the extension (not appealed) was unreasonable.

When counsel performed this work, they were already familiar with NEOCH.

They should have been able to address this limited topic in significantly less time.

Over $115,000 for ~fifty pages of briefing and an hour-long argument is excessive.

6 Because NEOCH Plaintiffs moved separately for these hours (NEOCH-Doc.388), they are not included within above hour totals for conferencing and researching.

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d ~30 hours

88-91. Th

ecinct bal

orneys cha

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0 hours (en

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ior SEIU e

47

spent unrng obtainin

ilarly refle

merits of

opposition

motion, eig

sed order

ours for 20

2013 work

lace/wrong

s for 2013

his mediat

llots (e.g.,

rged ~50

egy memo”

ntries from

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experience,

reasonableng unoppo

ects lack

f correct

n (based

ght additio

seeking e

013 post-a

within the

g precinct

mediation

tion focus

, wrong

hours for

” and revie

m seven att

85-88. In

, counsel d

e time onosed relief

of judgm

location/w

on prelim

onal exhibi

expedited

appeal acti

e scope of

t permane

n, with entr

sed on issu

location/w

assorted 2

ewing NEO

torneys) re

nstead of

delegated d

n post-apf.

ment. De

wrong prec

minary rulin

its, a prop

considera

ivities. SE

f the SEIU

ent injunc

ries from se

ues other

wrong prec

2013 activ

OCH litiga

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spite

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their

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Ms.

48

Trice, who had no SEIU experience. She spent ~69 hours on permanent-injunction

activities. SEIU-Doc.120-3, PageID#6882-83.

The many hours on this stage of litigation were inappropriate. The State did

not oppose a correct location/wrong precinct permanent injunction following

appeal. SEIU-Doc.110, PageID#6709 (“As Defendants previously represented to

the Court, Defendants fully expected to be able to agree to convert the preliminary

injunction into a permanent injunction.”). The State’s failure to agree to the

precise language of Plaintiffs’ proposed filing did not justify re-litigation.

Consistent with the State’s position, the district court only felt a four-page order,

incorporating preliminary rulings, was necessary. SEIU-Doc.112, PageID#6718-

21.

The district court erred in allowing unreduced post-appeal billing. The

merits of the correct location/wrong precinct challenges were fully litigated at the

preliminary stage, and the State did not oppose permanent relief. Consequently,

there was no reason to think anything more than a short, unopposed motion for

permanent relief, incorporating past decisions, was necessary. After summarizing

the parties’ positions, the court stated that it was satisfied with counsel’s billing.

NEOCH-Doc.426/SEIU-Doc.140, PageID#7471-72. The court did not adequately

explain, however, why it was reasonable to bill ~100 hours for already-litigated,

unoppo

SEIU bi

T

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constitu

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giving

NEOCH

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illing.

These billin

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H-Doc.261

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r own calc

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H-Doc.393

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approve of

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avily billed

culation, th

H-Doc.393

nce contem

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lled the St

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, PageID#

court did n

es are troub

f piling on

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overbillpt.

unsuccessf

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5817.

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hey spent 5

3, PageID#

mpt. NEO

urs focus

ate ~90 ho

mus action

13819.

49

not address

bling not o

permanen

the State no

for tryin

ful contem

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ply with t

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532 hours o

#13819. A

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of all me

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quest was

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this subjec

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holding, in

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discretion b

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ontempt re

74. The c

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not bill tpt to certif

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CH-Doc.26

equest was

court did n

on this issu

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of injunctio

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involved b

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in why it

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51

took no position). Cf. Binta, 710 F.3d at 635. SEIU Plaintiffs voluntarily

withdrew their certification attempt, moving to amend their complaint. Yet,

counsel billed ~115 hours for their failed attempt to certify a separate defendant

class, and their ultimate decision to amend. SEIU-Doc.131-6.

Counsel’s time was completely unnecessary. As early as June 27, 2012, the

district court questioned why—given time constraints and the Secretary’s

participation—such a class was necessary. Tr.6/27/12, NEOCH-Doc.329,

PageID#12259-12263; see, e.g., id., PageID#12262 (Q: “Aren’t [Board members]

duty-bound by state law to follow the directives of the secretary?”, A:“They are

duty-bound.”). Ohio law confirms that the Secretary has authority over Board

members. See, e.g., R.C. 3501.05(B) (detailing Secretary’s authority to direct

Board members). Nevertheless, SEIU Plaintiffs filed the motion to certify (two

days after the court’s questioning). And even though they eventually sought

(unopposed) to withdraw class pleadings, they took the time (during the same

period) to draft a separate reply brief. See SEIU-Doc.131-6.

Counsel’s certification attempt was wasted time, and the State should not be

charged for it. In holding that counsel’s hours were “not unreasonable”, the court

rested on a confusing comparison between Board members and the two legislators

that brought the Supreme Court mandamus action. See NEOCH-Doc.426/SEIU-

Doc.140, PageID#7472-73 (emphasis in original). This is apples and oranges.

Pursuan

making

superflu

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Consent

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Doc.288

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36BThe NEsubsume

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to modify.

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has direc

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53

The district court granted the SEIU injunction (ultimately affirmed in part,

reversed in part). SEIU-Doc.67, PageID#5886-88. In light of SEIU relief, the

court indefinitely stayed the motion to modify. Id. Although counsel charged the

State hundreds of hours for researching and drafting the SEIU motion (see, e.g.,

SEIU-Doc.131-12, 131-22), they billed an additional 305.3 hours for the motion to

modify. NEOCH-Doc.393, PageID#13819. Notably, Alschuler-Berzon, the

primary SEIU firm, billed 212.6 hours for the motion to modify. NEOCH-

Doc.393-3, PageID#13919.

The overlap of the two motions is undeniable. As the district court

recognized, “the requested relief in the Motion to Modify is encompassed with the

Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction” and “the

basis for relief in the Motion to Modify depends on the determination of the

constitutional violations at issue in the SEIU case.” SEIU-Doc.67, PageID#5831;

see also Tr.7/30/12, NEOCH-Doc.330, PagedID#12287 (Court: “They’re almost

one in the same.”). NEOCH Plaintiffs admitted that the motions sought “the same

injunctive relief” and requested that “these motions be heard together, so that the

constitutionality or unconstitutionality of Ohio’s provisional ballot system may be

adjudicated”. NEOCH-Doc.288, PageID#6910.

Given the SEIU preliminary injunction motion, the NEOCH motion to

modify was entirely unnecessary. Compared to the SEIU motion, the NEOCH

54

motion (1) sought the same relief, (2) was based on the same constitutional

theories, and (3) applied to a narrower class. The result of the SEIU motion was

inevitably going to determine the NEOCH motion. If, as happened, the court

granted the SEIU motion—seeking the same relief, applied to a broader universe—

the NEOCH motion would automatically be moot. If the SEIU motion failed, the

NEOCH motion—relying on the same constitutional challenges—would also fail.

There was no reason to file both.

Allowing complete recovery for 300+ hours on the NEOCH motion was

abuse of discretion. The district court held that NEOCH Plaintiffs did not have to

be fully successful on the motion (rendered moot) and that the work was

“reasonably undertaken” at the time performed. NEOCH-Doc.426/SEIU-Doc.140,

PageID#7473-74. This is incorrect. At the time these attorneys performed this

work, they knew they would be filing an SEIU motion that would subsume the

NEOCH motion. Cf. NEOCH-Doc.288, PageID#6910 (recognizing motions

requested same relief and should be heard together). Reasonable attorneys would

understand that filing the narrower NEOCH motion would be unnecessary given

the broader SEIU motion.

Seeking fees for both motions is a subtle form of double billing. It was

redundant, and objectively unreasonable, for the same attorneys to be working and

billing, during the same period, on the two overlapping motions.

55

C. 23BThis Court should mandate an across-the-board hour reduction; at a minimum, a more thorough review and a better explanation are necessary.

These hours are too much; counsel’s billing practices are facially

unreasonable and require reduction.

“This Court has recognized the propriety of an across the board reduction

based on excessive or duplicative hours.” Auto Alliance Intern., Inc. v. U.S.

Customs Serv., 155 F.App’x 226, 228 (6th Cir. 2005). As the Court has explained,

duplication “is difficult to measure.” Coulter, 805 F.2d at 152. Accordingly,

“[w]here duplication of effort is a serious problem, as in this case, the District

Court may have to make across the board reductions by reducing certain items by a

percentage figure”. Id. Other appellate courts have even supported complete

denials of awards based on “inexcusable reaching for fees”. Lewis v. Kendrick,

944 F.2d 949, 958 (1st Cir. 1991) (“[T]here must come a point where what is

sought is plainly improper.”).

Even under abuse of discretion, counsel’s hours necessitate across-the-board

reduction. See Coulter, 805 F.2d at 152 (indicating that, at times, courts will “have

to make across the board reductions”) (emphasis added); Barnes, 168 F.3d at 431

(“Although we sometimes remand fee determination issues to the district court for

further consideration, we have discretion to decide such issues at the appellate

level.”). Although counsel seek rates of experienced attorneys, their hours do not

56

reflect this experience. Instead, billing demonstrates that counsel consistently

overstaffed and overlawyered litigation. Counsel’s continuous practices of

overbilling (and block billing) make it impossible to separate the wheat from the

chaff. This Court, therefore, should mandate significant across-the-board

reduction. The State requested 50% reduction below and it continues to maintain

such reduction is necessary. The State also requests corresponding reduction of

expenses (including for out-of-state travel).

At the very least, the Court should remand for more thorough review and

better explanation. Although fee awards are discretionary, “[i]t is essential that the

judge provide a reasonably specific explanation for all aspects of a fee

determination”. Perdue, 559 U.S. at 558 (emphasis added); see also Barnes 168

F.3d at 428 (“While the court may rely on affidavits and its own knowledge and

expertise, where specific objections are made a court’s order should consist of

more than conclusory statements”).

The district court failed to adequately explain its hour award, especially as to

overall hours for litigation tasks. It would be difficult to tell, solely from reading

the decision, exactly what the State argued below. Significant categories—e.g.,

hours billed for attendance, conferencing, researching, drafting, and discovery—

received cursory attention. See NEOCH-Doc.426/SEIU-Doc.140, PageID#7466-

67. Other topics—e.g., billing five San Francisco trips, ~150 hours for an unfiled

57

proposal—received no attention. The State presented well-developed challenges to

counsel’s hours. These challenges should not have been reduced to a string of

adjectives, and cast aside as “invok[ing] a phantom specter.” Id., PageID#7466.

And the court’s suggestion that the State raised only “conclusory allegations” of

excessive hours, id., was clear error of judgment.

It was counsel’s burden to demonstrate their 6000+ hours were reasonable.

The total hours and attorney numbers should have sparked healthy skepticism.

Counsel should not have been able to rest on self-serving declarations of

reasonableness and billing judgment. See Barnes, 168 F.3d at 430 (“[G]iving

weight to sworn statements of fee applicants does not mean accepting those

statements as gospel. Courts should not delegate their duty to examine and judge

the reasonableness of fee applications to the applicants.”). Given the many hours

at stake, the district court’s formulaic review of counsel’s declarations and billing,

NEOCH-Doc.426/SEIU-Doc.140, PageID#7464-65, without specific analysis of

hours, warrants reversal.

II. 15BThe district court abused its discretion by awarding too high of rates to too many lawyers.

Unfortunately, hours were not the only excess the court allowed. The State

is being hit on two fronts. The court awarded the following rates:

Firm Attorney Rate Alshuler-Berzon Berzon $600

58

Firm Attorney Rate Weissglass $550 Leyton $475 Leonard $450 Thoreen $450 Chisholm $450 Cincotta $320 Reddy $305 Murray $290 Trice $240 Law Clerks $150 Paralegals $135 Chandra Chandra $425 Sletvold $350 Gupta $300 Paralegals $125 McTigue-McGinnis McTigue $450 Columbo $360 McGinnis $360 Porter-Wright Trafford $445 Gentry $350 Hughes $335 Gallon $335 Miller $275 Klaus $215 Law Clerks $125 Paralegals $125 Hunter-Harshman Hunter $450 Harshman $300 Advancement Pro. Judge $375

NEOCH-Doc.426/SEIU-Doc.140, PageID#7485.

Crunching the numbers, the average rate awarded to the twenty-five

attorneys was $378/hour. These rates are an abuse of discretion.

59

A. 24BA reasonable rate is a rate sufficient to encourage capable representation in the local market; it is not what a precise attorney might charge a well-to-do client.

The governing standard is not complicated: “[i]n short, a reasonable hourly

rate should be sufficient to encourage competent lawyers in the relevant

community to undertake legal representation.” Lamar Advertising Co. v. Charter

Tp. of Van Buren, 178 F.App’x 498, 501-02 (6th Cir. 2006). The relevant

community is “the venue of the court of record.” Gonter, 510 F.3d at 618 (internal

quotations omitted); see also S.D. Ohio Civ. R. 82.1 (listing Southern Ohio

counties).

This standard contains an inherent limit. “Hourly rates should not exceed

what is necessary to encourage competent lawyers within the relevant community

to undertake legal representation.” Hadix v. Johnson, 65 F.3d 532, 535-36 (6th

Cir. 1995) (emphasis added). The Hadix Court held that a district court abused its

discretion—in its rate to out-of-town counsel—by violating this tenet. Id.

Although the Court acknowledged the case “present[ed] unusually complex legal

and factual issues”, it still found that local counsel would have been available at “a

significantly lower rate” than the court assigned. Id. It concluded that “a rate

which apparently falls toward the high end of rates charged by partners in large

Detroit law firms” was improper. Id.

60

In determining rates, courts look to many factors including “part[ies’]

submissions, awards in analogous cases, state bar association guidelines, and its

own knowledge and experience in handling similar fee requests.” Van Horn v.

Nationwide Prop. & Cas. Ins. Co., 436 F.App’x 496, 499 (6th Cir. 2011).

“[C]ourt[s] should consider the hourly rates prevailing in the community for

similar services by lawyers of reasonably comparable skill, experience, and

reputation.” Oakley v. City of Memphis, 566 F.App’x 425, 432 (6th Cir. 2014)

(internal quotations omitted). But the ultimate standard does not change; the

controlling question remains what rates are necessary to attract competent counsel,

not the exact counsel involved. “The appropriate rate, therefore, is not necessarily

the exact value sought by a particular firm, but is rather the market rate in the

venue sufficient to encourage competent representation.” Gonter, 510 F.3d at 618.

Coulter is helpful. It cogently explained that reasonable rates “are different

from the prices charged to well-to-do clients by the most noted lawyers and

renowned firms in a region.” 805 F.2d at 149. Accordingly, “a renowned lawyer

who customarily receives $250 an hour in a field in which competent and

experienced lawyers in the region normally receive $85 an hour should be

compensated at the lower rate.” Id. (emphasis added).

B

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62

But from a review of prior Ohio election-related awards, it would have been

hard, if not impossible, to predict what happened here. Review of recent election-

related awards shows that the current award is not like the rest:

Case # Attorneys Mean Rate7F

8 # 300+ Rates

# 400+ Rates

Current award (combined) 25 $378 21 10 Current NEOCH award 23 $384 20 10 Current SEIU award 12 $400 10 6 Ohio Right to Life v. OEC, No. 2:08-cv-492, 2013 WL 5728255, at *6-7 (S.D. Ohio Oct. 23, 2013) adopted by 2014 WL 234677 (S.D. Ohio Jan. 22, 2014) vacated by 590 F.App’x 597 (6th Cir. 2014) (affirming rates) (“ORTL”)

2 $250 0 0

Hunter v. Hamilton Cnty. BOE, No. 1:10cv820, 2013 WL 5467751, at *17 (S.D. Ohio Sept. 30, 2013)

13 $317 8 3

Lib. Party of Ohio v. Husted, No. 2:11-cv-722, 2013 WL 4833033, at *5 (S.D. Ohio Sept. 11, 2013) (“LPO”)

1 $300 1 0

Mooneyhan v. Husted, No. 3:12–cv–379, 2013 WL 1326506 (S.D. Ohio Mar. 29, 2013) 8F

9

4 $228 0 0

Harkless v. Husted, No. 1:06-cv-2284, 2011 WL 2149179, at *20 (N.D. Ohio Mar. 31, 2011) adopted by 2011 WL 2149138 (N.D. Ohio May 31, 2011)

21 $193 6 0

NEOCH v. Brunner, No. 2:06–CV–896, 2010 WL 4939946, at *7 (S.D. Ohio

6 $273 2 1

8 In some of the following awards, a single attorney was awarded multiple rates. In such cases the State used the highest rate to that attorney in calculating the mean. 9 Mooneyhan does not detail the precise awarded rates. Information on rates requested/awarded was gathered from Mooneyhan-Doc.19-1–19-4, PageID#120-31.

63

Case # Attorneys Mean Rate7F

8 # 300+ Rates

# 400+ Rates

Nov. 30, 2010) (NEOCH-Doc. 234); NEOCH-Doc.213-15 (detailing all rates requested/awarded) Moore v. Brunner, Nos. 2:08-cv-224, 2:08-cv-555, 2010 WL 317017, at *3 (S.D. Ohio Jan. 25, 2010)

2 $250 0 0

NEOCH v. Brunner, 652 F.Supp.2d 871, 885 (S.D. Ohio 2009) (NEOCH-Doc. 203); NEOCH-Docs.96-1–96-3, 177-82 (detailing all rates requested/awarded)

26 $217 3 0

Ray v. Franklin Cnty. BOE, No. 2:08–CV–1086, 2009 WL 1542737, at *5 (S.D. Ohio June 2, 2009) 9F

10

7 $247 1 0

Project Vote v. Blackwell, No. 1:06–CV–1628, 2009 WL 917737, at *17 (N.D. Ohio Mar. 31, 2009)

13 $250 5 3

As the chart displays, prior awards show present rates are excessive. Indeed,

recent cases reflect a reasonable rate for experienced attorneys in Ohio election

cases is somewhere between $250-$300/hour. In Moore, the Southern District

rejected $400/$450 rates for attorneys with over twenty years of experience. 2010

WL 317017, at *3. Because these rates exceeded competent representation in the

local market, the court concluded that “the obligation to pay such rates may not be

shifted to Defendant.” Id. The court instead held that “an hourly rate of $250 is

adequate to attract competent counsel within this Court’s venue while avoiding

producing a windfall for attorneys.” Id.

10 These Ray figures presume that a $138/hour rate was for a non-attorney.

64

In 2013, the Southern District again rejected rates of ~$450/hour concluding

that $250/hour was reasonable. ORTL, 2013 WL 5728255, at *6 (adopted with

modification by 2014 WL 234677). The Magistrate Judge recommended that

“$250 was the prevailing market rate within this jurisdiction during the relevant

time frame for experienced attorneys litigating election-law actions.” Id.

(emphasis added). This Court ultimately affirmed $250/hour rates, crediting

reliance on “the thorough analysis set forth in Moore”. 590 F.App’x at 602.

Also in 2013, the same district court involved here, reduced the rate of an

attorney (with over twenty years of experience) from $350 to $300 (for 2011

work). LPO, 2013 WL 4833033, at *5. The court noted that the case involved

“inherently complex” voting litigation and the “skill and standing of counsel” was

“substantial”. Id. The court, however, reduced the requested rate to $300/hour:

“A rate of $300 appears to be sufficient to motivate skillful attorneys to undertake

representation in § 1983 cases, but not excessive so that it would constitute a

windfall.” Id. (emphasis added).

Even looking to other “attorney team” cases, past election-related awards

pale in comparison. In Hunter—an award at the top of the spectrum on which the

district court heavily relied—the average rate was still $67/hour below NEOCH

and $83/hour below SEIU. See 2013 WL 5467751, at *16-18. Only three Hunter

attorneys received $400/hour, and no attorney received above $410/hour, id.; the

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competent counsel in this market. Ms. Gentry is a perfect example. By any

definition, she represents “competent” counsel. She graduated from Yale Law

School in 1995, was a federal clerk, and is a partner at a prominent Columbus firm.

NEOCH-Doc.393-7, PageID#13951-52. She asked for, and received, a rate of

$350/hour, which was her actual rate in 2012. Id., PageID#13954.

Despite Ms. Gentry’s clear qualifications, reflective of competent lead

counsel, the award turns her into a middling attorney. Her rate is $28/hour below

average, with thirteen attorneys receiving greater rates. NEOCH-Doc.426/SEIU-

Doc.140, PageID#7485. Notably, Ms. Sletvold—ten less years of experience—

received the same rate. The court permitted seven attorneys with less experience

to bill higher rates than Ms. Gentry. It awarded four such attorneys (Leyton,

Leonard, Chisholm, Thoreen) $100/hour more than Ms. Gentry. Mr. Weisglass—

one more year of experience—received $200/hour more.

These comparisons show unreasonableness. If $350/hour was enough to

entice Ms. Gentry, it was more than enough to entice capable representation; the

court committed reversible error in awarding so many (a baker’s dozen) higher

rates.

A 2013 Ohio State Bar Association survey also indicates the awarded rates

are too high. See Gonter, 510 F.3d at 619 (approving use of bar survey for

paralegal rates). This survey set forth billing rates of ~1000 Ohio private

67

practitioners. NEOCH-Doc.394-10, PageID#14380. Although the survey did not

purport to provide exact averages for Ohio billing rates, its objective was to

provide “useful and usable information” including “[p]revailing hourly billing rates

for attorneys”. Id., PageID#14345.

Survey results were substantially below awarded rates. The average rate for

~1000 lawyers was $233/hour. Id., PageID#14380. Every Plaintiffs’ attorney

except for Mr. Klaus (2011 graduate) exceeded this rate. The survey also provided

billing rates by years in practice. Id. All of the twenty-five attorneys were

awarded rates above the 75th percentile by their years in practice. Id.; see also

NEOCH-Doc.407/SEIU-Doc.131, PageID#7086-88 (chart comparison of rate

requests and survey data). Eight attorneys (Berzon, Weisglass, Leyton, Leonard,

Chisholm, Thoreen, Sletvold, Murray) were awarded rates above the 95th

percentile by their years in practice.

Contrary to the district court’s suggestion, survey results for civil-rights

lawyers also reflect that the awarded rates went beyond what was necessary. The

record specifically contained results—although for a much smaller thirty-lawyer

sample—for attorneys identifying civil rights as their first, second, or third field.

NEOCH-Doc.349-9, PageID#14341. The average hourly rate of these attorneys

was $331, and the median rate was $305. Id. In these cases, the average rates

68

(NEOCH: $384, SEIU: $400) and median rates (NEOCH: $360, SEIU: $413) are

much higher.

* * *

Given rates in prior cases, as well as other benchmarks, the district court

abused its discretion by awarding so many attorneys such high rates. Although the

court purported to rely on past decisions like Hunter and LPO (NEOCH-

Doc.426/SEIU-Doc.140, PageID#7484-85), its awarded rates are considerably

more. These rates suggest that the court focused too much on what these specific

attorneys might be able to charge a well-to-do private client, and not enough on

what was necessary to attract capable representation in the locality.

Two final points. First, the rates for these twenty-five attorneys should

reflect appropriate staffing. When cases are this heavily staffed, not everyone gets

to bill like a partner; some attorneys (even if overqualified) should take on the

roles, and rates, of junior lawyers. See Evans v. Port Authority of New York &

New Jersey, 273 F.3d 346, 362 (3rd Cir. 2001) (suggesting for tasks requiring two

attorneys, one should receive an associate rate). In legal-team cases like Hunter,

Harkless, and Project Vote, many attorneys received rates of $250/hour or below;

in Harkless and Project Vote, many received below $200/hour.

But in these cases, staffing, and billing, is partner heavy:

x Thirteen attorneys submit 100+ hours (Berzon, Leyton, Reddy, Leonard, Cincotta, Chisholm, Chandra, Sletvold, McTigue,

69

Harshman, Hunter, Gupta, Gentry), NEOCH-Doc.428-1–428-2/SEIU-Doc.142-1–142-2;

x Billing declarations describe nine of the thirteen (Berzon, Leyton, Leonard, Chisholm, Chandra, McTigue, Harshman, Hunter, Gentry) as partners;

x Four (Berzon, Chandra, McTigue, Hunter) are founding/managing partners;

x Seven of the nine partners received rates of $425/hour or more.

To the extent such large teams of attorneys were actually necessary, counsel used a

disproportionate number of senior attorneys; they should not receive so many

partner-esque rates.

Second, the rates for Alschuler-Berzon attorneys are particularly extreme.

Plaintiffs did not demonstrate that San Francisco attorneys were necessary, and

they should not be able to place extra fees (via out-of-town rates) on the State. The

two markets are obviously different. For example, U.S. Census Bureau data

estimates that 2008-2012 median earning for legal occupations in Columbus was

$50,667. NEOCH-Doc.407-23/SEIU-Doc.131-23, PageID#7207. The San

Francisco estimate was $105,007. NEOCH-Doc.407-24/SEIU-Doc.131-24,

PageID#7211.

The district court’s limited reduction of these lawyers’ rates was not enough.

Even with reduction, the court allowed the nine Alschuler-Berzon attorneys to bill

an average of $432/hour. Mr. Berzon was the highest at $600/hour. But rates to

Ms. Leonard and Ms. Chisholm might be the biggest problem. These two

70

attorneys—both 2001 graduates, and the two heaviest billers—received $450/hour

rates far above their ~10 years of experience at the relevant time.

In sum, the rates for these twenty-five attorneys exceeded what was

necessary to attract competent counsel in Southern Ohio. Given staffing, all rates

should receive dramatic cuts. See NEOCH-Doc.407/SEIU-Doc.131,

PageID#7095-97 (submitting reasonable alternatives). At a minimum, rates for

less experienced attorneys (post-2000 graduates) should be capped at $300/hour,

and more experienced attorneys at $400/hour.

8BCONCLUSION

For the above reasons, the Court should reverse the district court’s fee award

and mandate substantial reductions of hours and rates. Given the fees at stake, and

everyone’s interests in avoiding further fee litigation, the State respectfully

requests that the Court offer detailed guidance as to reductions.

In the alternative, the State requests that the Court reverse and remand for

more thorough review and better explanation.

71

Respectfully submitted, MICHAEL DEWINE Ohio Attorney General s/ Zachery P. Keller ZACHERY P. KELLER (0086930) RYAN L. RICHARDSON (0090382) Assistant Attorneys General Constitutional Offices Section 30 E. Broad Street, 16th Floor Columbus, Ohio 43215 Tel: (614) 466-2872; Fax: (614) 728-7592 zachery.keller@ohioattorneygeneral.gov ryan.richardson@ohioattorneygeneral.gov Counsel for Defendant-Appellant/Cross-Appellee Jon Husted, Secretary of State and State of Ohio

72

9BCERTIFICATE OF COMPLIANCE

I hereby certify that this brief contains 13,941 words, as determined by the

word processing program used to generate this document. This count includes

headings, footnotes and quotations but does not include table of contents, table of

citations, statement regarding oral argument, addendums or certifications of

counsel. Fed. R. App. Pro. 32(a)(7).

s/ Zachery P. Keller ZACHERY P. KELLER (0086930)

CERTIFICATE OF SERVICE

I hereby certify that on July 15, 2015, the foregoing was filed electronically.

Notice of this filing will be sent to all parties for whom counsel has entered an

appearance by operation of the Court’s electronic filing system. Parties may

access this filing through the Court’s system. I further certify that a copy of the

foregoing has been served by e-mail or facsimile upon all parties for whom counsel

has not yet entered an appearance and upon all counsel who have not entered their

appearance via the electronic system.

s/Zachery P. Keller ZACHERY P. KELLER (0086930) Assistant Attorney General

73

10BDESIGNATION OF DISTRICT COURT RECORD

Defendants-Appellees, pursuant to Sixth Circuit Rule 30(g), designate the

following filings from the district court’s electronic records:

NEOCH v. Husted, 2:06-cv-896

Date Filed Doc.No.; PageID# Document Description

10/24/06 2; 2-53 Complaint

1/4/08 96–96-3; 1652-1700 Pls.’ Mot. Att’y Fees & Related Docs.

1/20/09 176–78; 4664-4711 Pls.’ Supp. Fee Br. & Related Docs.

1/20/09 179–82; 4712-4840 Pls.’ 2nd Mot. Att’y Fees & Related Docs.

7/28/09 203; 4930-4952 Opinion & Order, re: fees

4/19/10 210; 4970-82 Consent Decree

6/3/10 212–15; 4986-5064 Pls.’ 3rd Mot. Att’y Fees & Related Docs.

11/30/10 234; 5219-35 Opinion & Order, re: fees

5/8/12 246–246-4; 5612-58 Pls.’ Mot. Enjoin & Related Docs.

5/10/12 257;5750-66 Pls.’ Reply Mot. Enjoin

5/11/12 258; 5791-95 Relators’ Notice of Compliance

5/11/12 261; 5801-17 Opinion & Order, re: Mot. Enjoin

5/15/12 262; 5818 Order Setting Tel. Status Conf.

5/30/12 269; 5832-42 SOS’s Memo Consent Decree validity

5/30/12 270; 5843-54 Ohio’s Br. Consent Decree validity

5/30/12 271–272-23, 274–277-12; 5855-6028, 6136-6769

Pls.’ Memo Consent Decree validity & Related Decls./Docs.

6/6/12 279; 6794-6805 Ohio’s Reply Consent Decree validity

6/6/12 280; 6806-13 SOS’s Reply Consent Decree validity

74

NEOCH v. Husted, 2:06-cv-896

Date Filed Doc.No.; PageID# Document Description

6/6/12 281; 6814-31 Pls.’ Reply Consent Decree validity

6/18/12 285; 6850-72 Tr. 5/9/12 Proceeding

6/18/12 286; 6873-6902 Tr. 5/10/12 Proceeding

6/20/12 288–297-30; 6906-10329

Pls.’ Mot. Modify Consent Decree & Related Decls./Docs.

6/26/12 300; 10337-42 Pls.’ Not. Related Case

6/26/12 301; 10343-48 Pls.’ Am. Not. Related Case

7/6/12 306; 10359-74 State’s Joint Opp’n Mot. Modify Consent Decree

7/9/12 307; 10382-10418 Opinion & Order, re: Consent Decree validity

7/13/12 310–318-48; 10423-12081,

Pls.’ Reply Mot. Modify & Related Decls./Docs.

7/20/12 320–322-15; 12083-12171

Pls.’ Notice Filing Supp. Decls., re: Mot. Modify & Related Decls./Docs.

7/27/12 325–328; 12179-87 Pls.’ Notice Filing Add’tl Decls., re: Mot. Modify & Related Decls./Docs.

8/7/12 329; 12188-12266 Tr. 6/27/12 Proceeding

8/14/12 330; 12267-12361 Tr. 7/30/12 Proceeding

6/10/13 362–362-4; 12925-76 Pls.’ Mot. Extend Consent Decree & Related Decl./Docs.

6/24/13 371–371-2; 13481-13506

State’s Mem. Contra Mot. Extend Consent Decree and Related Docs.

6/28/13 373–373-3; 13551-80 Pls.’ Reply Mot. Extend Consent Decree & Related Docs./Decl.

7/11/13 378–378-4;13611-21 Notice of Filing Decls./Exs. re: Mot. Extend Consent Decree & Related Decl./Docs.

75

NEOCH v. Husted, 2:06-cv-896

Date Filed Doc.No.; PageID# Document Description

7/26/13 382; 13629-61 Tr. 7/12/13 Proceeding

8/5/13 383; 13662-82 Opinion & Order, re: Consent Decree extension

10/21/13 388–388-11; 13692-13776

Pls.’ Mot. Att’y Fees (2013 Consent Decree Extension) & Related Decls./Docs.

11/26/13 390; 13779-97 State’s Mem. Opp’n Mot. Att’y Fees (2013 Consent Decree Extension)

12/12/13 393–393-19; 13802-14094

Pls.’ Mot. Att’y Fees (2012 litigation) & Related Decls./Docs.

12/20/13 394–394-25; 14095-14639

Pls.’ Reply Mot. Att’y Fees (2013 Consent Decree Extension) & Related Decls./Docs.

2/10/14 407–407-24; 14677-14881

State’s Combined Memo Opp’n Mot. Att’y Fees (2012 litigation) & Related Exs.

3/10/14 409–417-2; 14886-15183

Pls.’ Joint Reply Mot. Att’y Fees (2012 litigation) & Related Decls./Docs.

9/29/14 426, 15220-50 Opinion & Order re: Att’y Fees (current appeal)

10/28/14 427, 15251-52 State’s Notice of Appeal

10/29/14 428–428-2; 15253-68 Pls.’ Bill of Costs & Related Docs.

11/7/14 430; 15323-26 Pls.’ Notice of Cross Appeal

11/25/14 433; 15522-41 Tr. 5/16/12 Proceeding

2/17/15 444; 15738-47 Order re: Bill of Costs

3/19/15 445; 15748-49 State’s Supp. Notice of Appeal

3/31/15 446; 15750-52 Pls.’ Supp. Notice of Cross Appeal

76

SEIU v. Husted, 2:12-cv-562

Date Filed Doc.No., PageID# Document

6/22/12 1; 1-37 Complaint

6/22/12 2; 39-44 Pls.’ Notice of Related Cases

6/22/12 4–4-7, 7–13; 47-156, 170-2208

Pls.’ Mot. Prel. Inj. & Related Decls./Docs.

6/29/12 24; 3243-3329 Decl. re: Mot. Prel. Inj.

6/29/12 25; 3525-48 Pls.’ Mot. Cert. Def. Class

7/6/12 28; 3683-3711 SOS’s Memo. Opp’n Mot. Prel. Inj.

7/13/12 30, 50; 3714-16, 5549-51

SOS’s Resp. Mot. Cert. Def. Class

7/13/12 31, 39, 46-47; 3717-25, 4225-27, 5457-5496

BOE Members’ Opp’n Mot. Cert. Def. Class

7/13/12 33–35, 37–38-48, 41–41-48, 44–45-1, 48–48-3; 3768-3832, 3835-4224, 4230-5433, 5438-5456, 5498-5544

Pls.’ Reply Mot. Prel. Inj. & Related Decls./Docs.

7/20/12 52–53-4, 55–55-15; 5553-91, 5594-5643

Notice Filing Supp. Decls. & Related Decl./Docs.

7/20/12 56–56-1; 5644-54 Pls.’ Notice Filing Revised Proposed Order & Related Doc.

7/20/12 57–57-2, 5655-5706 Pls.’ Mot. 2nd Am. Compl. & Related Docs.

7/20/12 58; 5707-26 Pls. Reply re: Mot. Cert. Def. Class

7/23/12 62; 5735-36 Order, re: 2nd Am. Compl.

8/27/12 67; 5828-88 Opinion & Order, re: Pre. Inj.

7/1/13 107–108-1; 6491- Pls.’ Mot. Perm. Inj. & Related Decl./Docs.

77

SEIU v. Husted, 2:12-cv-562

Date Filed Doc.No., PageID# Document

6704

7/3/13 110–110-1; 6708-12 State’s Resp. Mot. Perm. Inj. & Related Doc.

7/5/13 111; 6713-17 Pls.’ Reply Mot. Perm. Inj.

7/9/13 112; 6718-21 Order, re: Perm. Inj.

12/12/13 120–120-14; 6771-6979

Pls.’ Mot. Att’y Fees & Related Decls./Docs.

2/10/14 131–131-24; 7010-7214

State’s Combined Memo Opp’n Mot. Att’y Fees & Related Exs.

3/11/14 132–138-2; 7215-7452

Pls.’ Joint Reply Mot. Att’y Fees & Related Decls./Docs.

9/29/14 140; 7458-88 Opinion & Order re: Att’y Fees (current appeal)

10/28/14 141; 7489-90 State’s Notice of Appeal

10/29/14 142–142-2; 7491-7506

Pls.’ Bill of Costs & Related Docs.

11/7/14 143; 7507-10 Pls.’ Notice of Cross Appeal

2/17/15 147; 7687-96 Order re: Bill of Costs

3/19/15 148; 7697-98 State’s Supp. Notice of Appeal

3/31/15 149; 7699-7702 Pls.’ Supp. Notice of Cross Appeal

s/Zachery P. Keller ZACHERY P. KELLER (0086930) Assistant Attorney General

General Information

Court United States Court of Appeals for the Sixth Circuit; UnitedStates Court of Appeals for the Sixth Circuit

Federal Nature of Suit Civil Rights - Voting[3441]

Docket Number 15-03380

The Northeast Ohio Coalition, et al v. Jon Husted, et al, Docket No. 15-03380 (6th Cir. Apr 09, 2015), Court Docket

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 88