106 F. Supp.2d 128 (2000) | Cited 0 times | D. Massachusetts | June 28, 2000


On January 10, 2000, the court approved a settlement agreementwhich provided, in applicable part, that Plaintiffs are theprevailing parties in this case and, as such, are entitled toreasonable fees and costs incurred through the date of approval.Because the parties could not agree on those fees and costs,Plaintiffs have moved for an award of fees in the amount of$1,510,8321 and costs of $178,430 pursuant to both theAmericans with Disabilities Act ("ADA") and the Civil RightsAttorney's Fee Awards Act of 1976 ("CRAFAA"). The ADA allows theawarding of reasonable fees and costs to a prevailing party.See 42 U.S.C. § 12205 ("In any action or administrativeproceeding commenced pursuant to [the ADA], the court . . . inits discretion, may allow the prevailing party . . . a reasonableattorney's fee, including litigation expenses and costs."). TheCRAFAA framework for fee awards in civil rights actions applieshere as well. See 42 U.S.C. § 1988(b) ("In any action orproceeding to enforce [a listed civil rights statute], the court,in its discretion, may allow the prevailing party . . . areasonable attorney's fee as part of the costs."). See alsoGuckenberger v. Boston Univ., 8 F. Supp.2d 91, 99 (D.Mass. 1998)(citing cases). Cf. Paris v. U.S. Dep't of Hous. and UrbanDev., 988 F.2d 236, 238 (1st Cir. 1993) (applying baseline §1988 prevailing party inquiry to claim under Equal Access toJustice Act).

Defendants "partially oppose" Plaintiffs' motion on the groundthat the amounts sought are excessive and suggest instead thatPlaintiffs be awarded only $440,000 in fees and $80,000 in costs.For the reasons which follow, the court will award Plaintiffs$986,810 in fees and $125,361 in costs.2


The court need not describe the entire factual and proceduralbackground of this matter, it having done so in prior memoranda.See Rolland v. Cellucci, 191 F.R.D. 3 (D.Mass. 2000); Rollandv. Cellucci, 52 F. Supp.2d 231 (D.Mass. 1999). Suffice it to sayfor purposes here that the settlement agreement recognizes thatPlaintiffs have satisfied the relatively low threshold requiredto qualify for "prevailing party" status, see Farrar v. Hobby,506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); TexasState Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Williams v. HanoverHous. Auth., 113 F.3d 1294, 1299 (1st Cir. 1997), and areentitled to attorneys fees and costs, the calculations of whichwere reserved for another day. That day has now come.

Plaintiffs filed this case on October 28, 1998, after theparties engaged in unsuccessful efforts to resolve all claimsshort of suit. The seven named plaintiffs, who are mentallyretarded or developmentally disabled individuals living inprivate nursing homes, asserted in their complaint thatDefendants improperly failed to provide them with certainspecialized services and to place them in community residences.These individual plaintiffs, together with two organizationalplaintiffs, variously asserted that Defendants had violated theintegration provisions of the ADA, the reasonable promptness,freedom of choice and comparability provisions of federalMedicaid law, and several provisions of the Nursing Home ReformAmendments to the Social Security Act. Defendants deniedPlaintiffs' claims.

By December of 1998, all parties had consented to jurisdictionof this court. See 28 U.S.C. § 636(c). The court approved theparties' proposed scheduling order in January of 1999, certifiedthe class in February, soon thereafter denied Defendants' motionto stay the certification, approved the parties' interimagreement for specialized services in March of 1999 (shortlybefore an evidentiary hearing was scheduled to begin), and setNovember 1, 1999, for trial on all remaining issues. In June of1999, the court denied Defendants' motion to dismiss and, in thefall of 1999 — before requiring Plaintiffs to respond toDefendants' motion for summary judgment — awaited the parties'efforts to mediate their dispute. The mediation resulted in afinal settlement just prior to trial. After conducting a fairnesshearing on December 17, 1999, the court approved the settlementagreement on January 10, 2000.

In the midst of these benchmarks, Plaintiffs propounded twosets of interrogatories to several state agencies, deposedtwenty-two witnesses and obtained and reviewed more than onehundred thousand pages of documents. The parties completedwritten discovery by June 4, 1999, expert tours of variousfacilities were concluded and reports thereon provided by July30, 1999, and depositions were completed by August 31, 1999.


Plaintiffs' fee request arises out of the participation ofattorneys and paralegals from four entities: the Center forPublic Representation ("CPR"), the Disability Law Center ("DLC"),the Mental Health Legal Advisors Committee ("MHLAC"), and the lawfirm of Foley, Hoag & Eliot ("FH & E"). In support of their feerequest, Plaintiffs present two summary tables. Both tables listthe various attorneys and paralegals, the hours claimed to havebeen worked by them and each individual's hourly rate, therebyproducing the total "lodestar" fee.3 Although Plaintiffspresent a lodestar of $1,652,941 in Table I, they point the courtto and ultimately rely upon Table II which claims a somewhatlower lodestar of $1,510,832.

To achieve the approximately $142,000 reduction from Table I toTable II, Plaintiffs first entirely eliminated the following feerequests: Rae Lynn Schwartz, a CPR paralegal ($17,850); ChrisGriffin, a DLCattorney ($16,860); Deborah Swedlow, an FH & E associate($5,684); and Anjanette Warren ($5,402), Timothy Barouch($5,415), Paul Schlaud ($5,358) and Joseph Mueller ($6,023), allof whom were associated with FH & E. Plaintiffs label this"reduction one." Plaintiffs also reduced "by one-third, or atotal of approximately 500 hours," the time spent by theirrepresentatives prior to the filing of suit. (Pls'. Mem. in Supp.of Mot. for Award of Att'ys' Fees and Costs (Docket No. 140)("Pls.' Mem.") at 21.) This "reduction two," Plaintiffs claim, isreflected in a five percent reduction from the Table I lodestarand "is equivalent to a complete elimination of all time by allplaintiffs' counsel from September 1, 1997 — March 1, 1998, whenthey primarily engaged in fact investigation, legal research,organizing a litigation team, and drafting legal memos on thevarious causes of action." (Id. at 22 (emphasis inoriginal).)4

Plaintiffs also claim to have deleted or reduced variousentries even prior to formulating Tables I and II. Thus,Plaintiffs assert, their attorneys completely eliminated timespent on legislative or media-related efforts, court appearanceswhere a particular attorney did not actively participate, andclerical or organizational tasks. In this regard, StevenSchwartz, an attorney with CPR, claims to have eliminated onehundred and forty-five of his hours (see Pls.' Exhibits, Vol.III (Docket No. 143), Ex. 24 ¶¶ 11-13); Cathy Costanzo, anotherCPR attorney, claims to have eliminated one hundred and fiftyhours (see id., Ex. 25 ¶¶ 18-20); Matthew Engel, a DLCattorney, claims to have eliminated fifty hours (see id., Ex.27 ¶ 6); Stacie Siebrecht, another DLC attorney, claims to haveeliminated two hundred and sixty-eight hours (see id., Ex. 28¶¶ 11-13); and Hal Poret, an FH & E associate, claims to haveeliminated twenty-five hours (see id., Ex. 31 ¶¶ 6-7). Somewhatsimilarly, Richard Belin, an FH & E partner, claims to haveeliminated time he expended with an expert who did not submit areport, some publicity-related tasks, certain travel time, aswell as the time of several FH & E lawyers and paralegals whoplayed a limited role in the case, (see id., Ex. 30 ¶¶ 23, 24,27), although he does not specify the total number of hoursthereby eliminated.

In total, Plaintiffs claim that they deleted or reduced overseven hundred and twenty-five additional hours actually spent onthe matter. In addition, Plaintiffs claim to have billed traveltime at half the attorneys' normal hourly rates (by halving thenumber of hours traveled) and to have declined to request anenhancement of the adjusted lodestar despite their right to doso.


A court's analysis of a civil rights fee request is not done ina vacuum. "In applying for judicial approval of a fee award, itis the plaintiff's burden to furnish the evidence required, notthe court's burden to seek it out." Weinberger v. Great N.Nekoosa Corp., 925 F.2d 518, 527 n. 11 (1st Cir. 1991).Likewise, a defendant's objection needs a certain level ofparticularity and specificity. See Domegan v. Ponte,972 F.2d 401, 420 n. 35 (1st Cir. 1992) (defendants' failure to produceevidence of market rates means they cannot prevail on rate-basedobjection to fee award), vacated on other grounds,507 U.S. 956, 113 S.Ct. 1378, 122 L.Ed.2d 754 (1993); Rogers v. Okin,821 F.2d 22, 30 (1st Cir. 1987) (noting that the realities of feeaward reviews "compel objectors" to "select priority targets andmarshall the facts as effectively as possible"); Brewster v.Dukakis, 786 F.2d 16, 18-19 (1st Cir. 1986) (recognizingdefendants' obligation to object with some particularity toplaintiff's fee application).

To determine a proper fee award, a court must necessarily"engage in athoughtful analysis of the number of hours expended and thehourly rates charged to ensure both are reasonable."Guckenberger, 8 F. Supp.2d at 100. See also King v.Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir. 1977). In doing so,the court is obliged "to see whether counsel substantiallyexceeded the bounds of reasonable effort." United States v.Metro. Dist. Comm'n, 847 F.2d 12, 17 (1st Cir. 1988) (citationand internal quotation marks omitted). Typically, a courtcomputes the lodestar "by ascertaining the time counsel actuallyspent on the case `and then subtract[ing] from that figure hourswhich were duplicative, unproductive, excessive, or otherwiseunnecessary.'" Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.1992) (quoting Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950(1st Cir. 1984)). Then the court applies hourly rates to thevarious tasks, considering the prevailing community rates forcomparable attorneys. Id. To say that a trial court mulling afee request must fashion a lodestar, however, "is not to say thatthe court is in thrall to an attorney's time records." Coutin,124 F.3d at 337. The court, in its discretion, "can segregatetime spent on certain unsuccessful claims, eliminate excessive orunproductive hours, and assign more realistic rates to timespent" and, ultimately, "may fashion a lodestar which differssubstantially from the fee requested by the prevailing party."Id. (citations omitted).

In light of these standards, Plaintiffs have presentedextensive memoranda in support of their motion, together withthree volumes of exhibits, which address the factors to beconsidered by the court when sculpting an award. In particular,Plaintiffs discuss the amount of time spent on the case, itsnovelty and complexity, the accelerated pace of litigation, theirneed for multiple attorneys and paralegals, Defendants'opposition and purported resistance to settlement, the extensivediscovery and numerous experts required, and the reasonablenessof the rates claimed. Plaintiffs also describe how they exercisedbilling judgment and explain why the costs requested are bothreasonable and compensable. Finally, Plaintiffs maintain thatthere is no reason to reduce any portion of their request becauseof time spent on unsuccessful or non-meritorious claims:

It is indisputable, that the Settlement Agreement provides virtually all of the relief sought by the Plaintiffs in this case. Every member of the Plaintiffs' class who would benefit from active treatment must receive the specialized services they need by April 30, 2000 and every classmember who would benefit from community living must be placed in an integrated community setting by June 30, 2007.

(Pls.' Mem. at 6.)

Although, in response, Defendants assert what they label a"partial" opposition only, they propose that Plaintiffs beawarded less than thirty percent of the fees sought and less thanfifty percent of their costs. In calling for such a drasticreduction, Defendants claim that (1) several of Plaintiffs'advocates failed to provide contemporaneous time records, (2) thelitigation was overstaffed, (3) an excessive amount of time wasspent on certain tasks, included unwarranted duplication, (4)various attorneys' hourly rates are too high, (5) the courtshould defer awarding fees to the executive director of MHLACgiven state law uncertainty on the propriety of awarding fees tothat state agency, and (6) Plaintiffs' request for over $178,000in costs is excessive.

Unfortunately, Defendants' objections are often too general tobe of significant assistance to the court. Still, many of thearguments underpinning Defendants' opposition are well taken andthe court will center its discussion around those objections.

A. Contemporaneous Time Records

Defendants first claim that at least one of Plaintiffs'attorneys, Mr. Engel, and two CPR paralegals failed to providecontemporaneous time records. As the FirstCircuit explains, "the absence of detailed contemporaneous timerecords, except in extraordinary circumstances, will call for asubstantial reduction in any award or, in egregious cases,disallowance." Grendel's Den, Inc., 749 F.2d at 952.

Plaintiffs concede the point with respect to the twoparalegals, Rae Lynn Schwartz, whose fees they are not seeking torecover in any case, and Kathleen Eddy, for whom Plaintiffs seekfees of over $37,000. Although Ms. Eddy claims to have workedfull-time on the case beginning just prior to the preliminaryinjunction hearing in March of 1999, she failed to keep detailedcontemporaneous time records of her work and only in the contextof this petition has she explained the nature of her effortsduring her six months at CPR and, then, only in two month blocks.Given the lack of detail, the court will reduce Ms. Eddy's timeby fifty percent to 378.6 hours.

Plaintiffs argue, however, that Mr. Engel, the only attorneyspecifically named in this objection, did, in fact, keep detailedcontemporaneous time records. In fact, Defendants' claims withrespect to Mr. Engel and other unnamed individuals are not borneout by the record. Mr. Engel avows that he recorded hisactivities contemporaneously, except for those occasions when hewas working outside the office when he recorded the activitiesimmediately upon his return. Moreover, the affidavits of Mr.Schwartz and Ms. Costanzo, on which Defendants rely in furthersupport of their opposition, do not help their argument. Theaffidavits actually support Plaintiffs' position that these twoattorneys actually spent more time on the case than theyrecorded. (See Pls.' Exhibits, Vol. III: Ex. 24 ¶¶ 9 and 11;Ex. 25 ¶¶ 16 and 18.) Accordingly, other than the problems raisedby Ms. Eddy's and Ms. Schwartz's records, the court is satisfiedthat the exhibits proffered by Plaintiffs "adequately limn thedifferent tasks performed, the nature of the work, the timeconsumed, and the dates when effort was expended." Lipsett, 975F.2d at 938.

B. Staffing

Defendants next claim that the litigation on Plaintiffs' behalfwas overstaffed, that such staffing led to inflated billing, andthat Plaintiffs' retention and use of eight experts causedcounsel to devote excessive time to consultation andcoordination. In support, Defendants claim that the four primaryattorneys who worked on this matter, who have justifiably claimedexpertise in disability law, should not have required theassistance of fourteen other attorneys and paralegals, nor shouldthey have needed to devote a majority of their time to thismatter. Defendants also assert that Plaintiffs' billing records,as well as the use of multiple attorneys and paralegals at eventssuch as meetings and depositions, created unnecessaryduplication, inefficiency, and overstaffing. Unfortunately,Defendants provide little substance to support these conclusoryassertions and fail to specifically address the documentsprovided by Plaintiffs' attorneys or the accommodations they madeprior to asserting their claim for fees.

As Plaintiffs point out, the complexity of a case is afundamental consideration in determining whether its staffing isreasonable. See Lipsett, 975 F.2d at 939 (citing cases). Theuse of multiple attorneys in a significant, lengthy civil rightsaction certainly is understandable. In one particularlyappropriate example, the Second Circuit approved the use ofmultiple attorneys in a challenge to conditions at theWillowbrook Developmental Center in New York. See New York StateAss'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146(2d Cir. 1983). This case, like the Willowbrook matter, involvesa large class of individuals with disabilities and a number ofnovel time-consuming legal claims. If anything, the instant caseis more logistically complex than the Willowbrook class to theextent it is comprised of individuals living in nursingfacilities dispersedthroughout the state, rather than in a single state facility, andinsofar as here there are numerous state agencies sharingresponsibility for class members.

In addition, the legal claims asserted here were complex. Therewere eight distinct causes of action and, at the time this casewas filed, there had not yet been a similar class actionfavorable to mentally retarded or developmentally disabledindividuals anywhere in the country. Nor had any courtadjudicated the rights of nursing facility residents to receivereasonably prompt or comparable community services under theMedicaid Act and the ADA. This complexity made multiple attorneysnecessary to manage both the discovery process and the expertpanel. In particular, the time and effort in coordinating theexperts' tours in various parts of Massachusetts and producingnine expert reports from seven experts in six months was, in thecourt's opinion, herculean.

Moreover, this litigation proceeded expeditiously,necessitating multiple counsel. See Guckenberger, 8 F. Supp.2dat 100-101. Although Defendants make much of the fact that thecase was resolved without a trial in less than one year, it wasan exceptionally busy year for all involved. Within the firstfive months, mandatory disclosures were completed, a class wascertified, Defendants' request to stay the certification wasdenied, Defendants' motion to dismiss was heard by the court, theparties completed expedited discovery on Plaintiffs' motion for apreliminary injunction on specialized services and Plaintiffs'motion for a preliminary injunction was settled provisionally. Ata hearing on March 29, 1999, the court revised the schedulingorder and, declining to isolate the community placement issue,set the matter for trial on all issues on November 1, 1999, justone year after the original complaint was filed. The partiesthereupon completed all written discovery by June 4, 1999, expertreports by July 30, 1999, and depositions by August 31, 1999, allas required. Only when discovery was complete and the triallooming did the parties engage in an intensive period ofmediation which enabled them to settle the matter in the fall of1999. In all, the schedule required both Plaintiffs andDefendants to commit to an extensive legal undertaking in a veryshort time, thereby requiring a larger litigation team than mightotherwise have been necessary.

The litigation was also vigorously contested by Defendants, aswas their right, until discovery was completed and settlementnegotiations commenced. "Since a litigant's staffing needs oftenvary in direct proportion to the ferocity of her adversaries'handling of the case, this factor weighs heavily in the balance."Lipsett, 975 F.2d at 939. See also City of Riverside v.Rivera, 477 U.S. 561, 580 n. 11, 106 S.Ct. 2686, 91 L.Ed.2d 466(1986) ("The government cannot litigate tenaciously and then beheard to complain about the time necessarily spent by theplaintiff in response."); Rodriguez-Hernandez v. Miranda-Velez,132 F.3d 848, 850 (1st Cir. 1998) (citing Lipsett in context of"extreme defense"). Although the court finds overwroughtPlaintiffs' description of Defendants as having "adopted anoppositional and reflexively adversarial posture," (Pls.' Mem. at14), the court did observe a vigorously contested matter, madenecessary not only by the novel issues involved but by thedivergent views of the parties with respect to the propertreatment of the class. This caused ongoing disputes with respectto discovery, the certification of the class, the stay of thatcertification pending appeal, and Defendants' motion to dismissthe case in its entirety. Even after settlement was reached, thecourt needed to resolve issues with respect to notification ofthe class and approval of the parties' agreement.

In the face of the effort expended, Defendants' conclusoryassertion that this litigation "did not require more than fourattorneys of varying experience levels," (Defs.' Partial Opp'n toApplication of Pls.' Counsel for Att'ys Fees and Costs (DocketNo. 145)) ("Defs.' Opp'n"), is simply unhelpful.If anything, the instant litigation was significantly differentfrom Brewster v. Dukakis to which Defendants refer the courtfor comparison. There, Plaintiffs report, all litigation wassuspended within six months of the complaint, there was no formaldiscovery, depositions or experts, and few documents were inissue. Moreover, Plaintiffs assert, no trial was evercontemplated in Brewster nor was there formal mediation asthere was here. At bottom, the court does not believe thatPlaintiffs overstaffed the litigation and no reduction will bemade on the basis of that objection alone.

C. Time on Tasks

Quoting Wilcox v. Stratton Lumber, Inc., 921 F. Supp. 837, 847(D.Me. 1996), Defendants next argue that "Plaintiffs' counselspent `an excessive amount of time' on discrete tasks in thismatter[] and . . . devoted an alarmingly high number of hours' tonon-productive disputes with opposing counsel `on collateral ortangential issues.'" (Defs.' Opp'n at 11.) Perhaps the mostsignificant aspect of Defendants' argument concerns Plaintiffs'decision to seek fees for work commencing well before the lawsuitwas filed in October of 1998, including fees for pre-filingsettlement work. It is to this pre-filing issues, therefore, thatthe court first turns its attention. The court will then addressDefendants' contention that there was an unwarranted duplicationof effort.

1. Pre-filing Efforts

There is little doubt that some of the services performedbefore a lawsuit is formally commenced may be deemed to have beenspent "on the litigation" and therefore included in thecalculation of a lodestar. Webb v. Bd. of Educ. of Dyer County,Tenn., 471 U.S. 234, 243, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985)(quoting Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.1933, 76 L.Ed.2d 40 (1983) (in turn construing section 1988)).The "[m]ost obvious examples are the drafting of the initialpleadings and the work associated with the development of thetheory of the case." Id. However, in this court's estimation,it is not as easy here as it was in Webb — where five years ofwork on prior administrative proceedings was "easily separatedfrom the two years of work thereafter," id. — to find theappropriate starting time. At best, Plaintiffs' pre-filingefforts can be divided into three distinct periods, each of whichwill be described and analyzed before the court discussespre-suit settlement issues.

(a) The Pre-Filing Time Periods

The first time frame concerns activities engaged in byPlaintiffs' counsel prior to September 1, 1997, including theirmaking a formal request for information from the Department ofMental Retardation ("DMR"). Plaintiffs estimate that betweenfifty and one-hundred hours was spent during this period. Thesehours are not reflected in the records provided to the courtbecause Plaintiffs have voluntarily omitted any claim for suchtime from their fee request.

The second time period, September 1, 1997 through February 28,1998, has two components. The first component stretches fromSeptember 1 through November 30, 1997, during which Plaintiffs'representatives claim to have analyzed all available informationabout persons with mental retardation and other developmentaldisabilities in nursing facilities in Massachusetts, to haveresearched various legal claims and to have made an informedprofessional judgment about whether there were meritorious factsand legal claims for federal litigation.

The second component stretches from December 1, 1997, throughFebruary 28, 1998. At the beginning of this period, Plaintiffs'attorneys had a meeting with the DMR Commissioner, at which timePlaintiffs claim to have informed him that they intended to filea lawsuit over the ensuing months against Governor Cellucci, DMRand other state agencies if the issues with respect tospecialized services andcommunity placement were not promptly addressed. Plaintiffs nowassert that at the request of the DMR Commissioner they refrainedfrom initiating any legal action until DMR could conduct a fullreview of this matter and discuss possible remedial action withother state agencies.

The third and final pre-filing time period spans March 1 toOctober 28, 1998, the day the action was filed. Plaintiffs statethat throughout this period they moved forward with their plan tofile a lawsuit, if an acceptable resolution was not achieved, byidentifying potential individual and organizational plaintiffs,drafting a complaint, designing a remedy with the assistance ofcertain experts, and preparing a settlement agreement. Alsoduring this period, DMR scheduled a series of meetings betweenvarious state agencies and Plaintiffs in the hope of reaching anagreement concerning the community placement schedule for certainnursing facility residents, particularly those for whom transfersto community settings had been recommended.

(b) Analysis

Having reviewed the actual time records, the court will utilizeMarch 1, 1998, as the appropriate starting point for its analysisof the particular pre-filing efforts expended by the Plaintiffs"on the litigation." In choosing March 1, 1998, the court rejectsDefendants' argument that the October 28, 1998 filing dateprovides the appropriate demarcation and adopts what appears tobe Plaintiffs' position.5

To be sure, March 1, 1998 was nearly eight months prior tofiling suit and approximately two months prior to April 28, 1998,a date the court itself deemed a significant turning point.(See Docket No. 79 (discovery ruling establishing April 28,1998, as the benchmark for work-product protection).) The courtis now aware, however, that beginning March 1, 1998, Plaintiffsmoved forward with their plan to file a lawsuit if an acceptableresolution was not achieved and began to identify potentialclaimants, to establish links with organizational plaintiffs, todraft the complaint and to design a comprehensive remedy. Theseare the types of activities which the Supreme Court recognized inWebb as meriting fees. While, with hindsight, some hours priorto March 1, 1998, might be attributable to the lawsuit, thesewere, at best, nascent efforts exploring possible legal claims.Such efforts, the court believes, were too attenuated to beconsidered part of the litigation. Only after March 1, 1998, asPlaintiffs themselves describe, did the litigation effort trulycommence.

Before analyzing that effort, the court needs to ensure thatall time prior to March 1, 1998, has in fact been eliminated fromconsideration. In this respect, it is necessary to make twoobservations. First, the court does not believe that Plaintiffs'five percent "reduction two" translates into the approximatelyfive hundred hours prior to March 1, 1998, claimed to have beeneliminated. As set forth in Table II, the five percent reductionwas applied, at least in part, to hours which Plaintiffs alreadyeliminated in "reduction one," namely, the hours of Ms. Schwartz,Ms. Griffin, Ms. Swedlow, Ms. Warren, Mr. Barouch, Mr. Schlaudand Mr. Mueller. The elimination of their hours brought the totalnumber of hours claimedafter "reduction one" to about 9,243. Thus, rather thaneliminating approximately five hundred hours (10,011 less 9,511),as Plaintiffs calculate, they actually reduced only about fourhundred and sixty-two hours (9,243 less 8,781), via "reductiontwo."

Second, the hours claimed to have been eliminated via"reduction two" do not constitute, as alleged, a completeelimination of time spent by counsel prior to March 1, 1998.Having undertaken its own review of the time sheets proffered,the court finds that the total number of hours spent prior toMarch 1, 1998, (less the 8.5 hours expended by Ms. Griffin whichhave been totally eliminated), actually amounts to approximatelyfive hundred and sixty-two hours. Thus, even after reductions"one" and "two," Plaintiffs still seek fees for approximately onehundred hours expended prior to March 1, 1998 (562 less 462).These hours are distributed among Mr. Schwartz, Ms. Costanzo, Ms.Siebrecht, Mr. Laski, Mr. Belin and Ms. Eshgi.

To ensure the elimination of all hours prior to March 1, 1998,the court will deduct the one hundred extra pre-March 1, 1998hours calculated above according to the representatives'proportional time spent on the matter prior thereto: five hoursfrom Mr. Schwartz, forty-eight hours from Ms. Costanzo,forty-three hours from Ms. Siebrecht, one hour from Mr. Belin andthree hours from Ms. Eshgi. Frank Laski's time, both before andafter March 1, 1998, will be considered separately below.

(c) Pre-filing Settlement Efforts

The court's choice of March 1, 1998, as a starting date doesnot mean that all of Plaintiffs' ensuing pre-filing efforts —particularly their settlement negotiations — were sufficientlyrelated to the litigation to warrant fee shifting. As the SupremeCourt has indicated, there are pre-filing services such asdrafting pleadings and developing the theory of a civil rightscase which "advance" the case and may be deemed to have beenspent "on the litigation." Webb, 471 U.S. at 243, 105 S.Ct.1923. In this respect, Justice Brennan, concurring in part inWebb, noted that prevailing parties may recover fees for timespent before the formal commencement of a case on matters such as"attorney-client interviews, investigation of the facts of thecase, research on the viability of potential legal claims,drafting of the complaint and accompanying documents, andpreparation for dealing with expected preliminary motions anddiscovery requests." Id. at 250, 105 S.Ct. 1923 (Brennan, J.,concurring). Justice Brennan's list, together with thesuggestions set forth in Justice Stevens' majority opinion,provides a useful guide.

Conspicuously absent from the discussion of pre-trialproceedings in Webb, however, are settlement negotiations.Nonetheless, Plaintiffs maintain, their pre-filing settlementefforts ought to be counted towards attorneys' fees. Theseefforts, Plaintiffs aver, "not only provided a valuable insightinto the parties' respective positions, but, perhaps moreimportantly, . . . generated substantial information which waseventually used in the litigation and mediation." (Pls.' Mem. at21.) Plaintiffs assert as well that such pre-filing discussions"also revealed the historical conflicts between executiveagencies concerning their responsibility for classmembers, aswell as the considerable but unsuccessful efforts to resolvethese conflicts, particularly for persons with developmentaldisabilities." (Id.). All this, in Plaintiffs' estimation,enabled them to spend considerably less time in discovery andmediation once the lawsuit was filed.

Plaintiffs' assertions to the contrary, neither the majorityopinion in Webb nor any of the other cases cited by Plaintiffssays anything specific about pre-filing settlement discussions.See Pennsylvania v. Del. Valley Citizens' Council for CleanAir, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Cityof Riverside v. Rivera, supra; Woods v. Graphic Communications,925 F.2d 1195 (9th Cir. 1991);Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986); Dowdell v.City of Apopka, Fla., 698 F.2d 1181 (11th Cir. 1983). Granted,Justice Brennan noted in his discussion in Webb that"negotiation with administrative officials may narrow disputesand sharpen issues in the very same way as settlement discussionsheld after the litigation begins." Id., 471 U.S. at 251, 105S.Ct. 1923. However, Justice Brennan's comments arise in thatpart of his opinion which dissents. Moreover, here, the parties'initial efforts at settlement not only predated the filing of thelawsuit, but failed as well.

As the court sees it, Plaintiffs proceeded on two pre-trialtracks. One track — the "settlement" track — sought an acceptableresolution short of suit for those individuals who later becamemembers of the class, a resolution Plaintiffs' representativespursued as part of their on-going responsibilities asorganizational advocates. On this track, as Plaintiffs themselvesdescribe, DMR scheduled numerous meetings between Plaintiffs'representatives and various state agencies in the hope ofreaching an agreement. In contrast, the second track — the"litigation" track — required Plaintiffs to expend significanttime "on the litigation," i.e., identifying claimants, honinglegal theories and drafting pleadings.

Although the court believes that Plaintiffs should be properlycompensated for their efforts on the litigation track, it is notconvinced that their efforts on the settlement track eithersharpened the issues or were cost-effective, Plaintiffs'arguments notwithstanding. Of the two core matters targeted byPlaintiffs in their pre-filing settlement efforts, thespecialized services issue remained unsettled until the eve ofthe preliminary injunction hearing and the community placementissue was not settled until the eve of trial. Moreover, whilepre-filing efforts at settlement may have been somewhatinstructive at times, there is little evidence that they resultedin active litigation-related discovery. As described, Plaintiffsstill had to undertake extensive discovery when the lawsuitcommenced.

With the Supreme Court's decision in Webb as guidance, thecourt has slogged through Plaintiffs' time records and hasdetermined the amount of hours each advocate spent between March1 and October 28, 1998 on both litigation and non-litigation,settlement activities. This, of course, has not been done withprecision. Often, the identification of individuals and theiraffiliations were not readily apparent to the court. On otheroccasions, Plaintiffs' representatives' time sheets meldlitigation and non-litigation activities. Nevertheless, the timerecords sufficiently distinguish litigation activities fromsettlement efforts to enable the court to make the followingcalculations.

Of the approximately one hundred and fifty hours reflected inMr. Schwartz's time records between March 1 and October 28, 1998,about eighty were spent in litigation — as distinct fromsettlement — activities. Mr. Schwartz, it appears, spent agreater percentage of his time on settlement negotiations thanPlaintiffs' other representatives. Accordingly seventy hours willbe eliminated from his time records.

Ms. Costanzo, on the other hand, spent most of herapproximately four hundred hours between March 1 and October 28,1998, on litigation activities. Still, as best the court cancalculate from her time records, at least one hundred and fortyof those hours were spent on settlement activities and willtherefore be deducted from the hours she claims.

Even fewer hours were spent on settlement matters by Ms.Siebrecht during this same period. It appears that the bulk ofher time in this period, totaling approximately three hundredseventy hours, was spent on client contact, investigation anddocument preparation. Unfortunately, her records often fail tospecify the subject matter of her frequent contacts withco-counsel. As best can be determined, thecourt attributes seventy of Ms. Siebrecht's hours towardspre-filing settlement activities and has deducted that amountfrom her claimed total. The few hours spent during this sameperiod by Mr. Engel, Ms. Siebrecht's DLC co-counsel, appear to beentirely litigation-related.

As to the team from FH & E, the court has determined thefollowing hours to be non-litigative during this same timeperiod: forty-four of the approximately eighty-two hours spent byMr. Belin; sixty of the approximately one hundred and eightyspent by Ms. Eshgi; and the thirty transitional hours spent byMr. Poret from September 28 through October 28, 1998.Accordingly, the court will deduct those hours from the award.

2. Duplication

The First Circuit explains that where more than one lawyerrepresents the prevailing party, all attorneys' contributionsmust be taken into consideration and the award should reflect allthose efforts, but only "to the extent that the time reporteddoes not reflect duplication of effort or work that would beperformed by nonlawyers." Reynolds v. Coomey, 567 F.2d 1166,1167 (1st Cir. 1978). See also Lipsett, 975 F.2d at 938 ("Atrial court should ordinarily greet a claim that several lawyerswere required to perform a single set of tasks with healthyskepticism."); Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986) ("the time for two or three lawyers in a courtroom orconference, when one would do, `may obviously be discounted'"quoting King, 560 F.2d at 1027). In this vein, Defendants arguethat, even when considering Plaintiffs' voluntary elimination ofcertain hours, much of the time reported — both prior to andafter October 28, 1998 — was duplicative. Unfortunately, the onlyconcrete example proffered by Defendants is Mr. Belin's avowalthat he consulted on virtually all significant matters of legalstrategy with other members of the core litigation team, editedsections of major briefs and reviewed and edited other sectionsof briefs drafted by his associates or other members of the team.(See Pls.' Exhibits, Vol. III, Ex. 30 ¶ 8.) Since this lonereference is hardly enough to demonstrate inappropriateduplication, the court has had to undertake a more searchingreview on its own.

While the court has found that the number of individualsrepresenting Plaintiffs was appropriate, that same number createdsome inefficiencies, particularly given the attorneys' varyinglevels of experience. For example, it appears that, at times,more than the necessary number of attorneys participated inconferences. At other times, the coordination among Plaintiffs'representatives required excessive consultations. At still othertimes, more time than necessary was spent on research, redraftingand analysis. Accordingly, it is incumbent upon the court to pareredundant hours.

By way of example, Mr. Schwartz spent seven hours revising andediting the fifth and sixth drafts of the complaint on May 6,1998, after Ms. Costanzo spent dozens of hours working on variousdrafts. Ms. Constanzo then spent many more hours — five on June24, 1998, five and one-half on July 10, 1998 — polishing thetext. Other attorneys spent still more time on this same task. Byway of further example, the court points to the work of twoassociates who appear to have conducted extensive research and tohave drafted internal memoranda in areas of law which the fourlead attorneys were no doubt quite knowledgeable. Finally, thetime records are replete with instances of excessive conferencingamong the various advocates.

The court's analysis of the record is not meant to be criticalof Plaintiffs' representatives' efforts. As explained, the casepresented novel issues of law for a large class of heretoforeinvisible people for whom much relief has been achieved. Theproblem, rather, is the nature of the undertaking of publicadvocates and their private allies who, in many ways, are notsubject to the forces of the marketplaceduring the course of litigation when fees might only be availableat its conclusion.

Of course, the very purpose of the CRAFAA is to encourage andaward legal advocacy on behalf of those unable to afford counsel,see Del. Valley Citizens' Council, 483 U.S. at 738, 107 S.Ct.3078 (Blackmun, J., dissenting) (citing legislative history), andthe court's analysis is not designed to discourage such effortsin any way. In addition, "public" attorneys are to be compensatedon the same basis as "private" practitioners. Reynolds, 567F.2d at 1167. Still, as the Supreme Court has explained,"[c]ounsel for the prevailing party should make a good faitheffort to exclude from a fee request hours that are excessive,redundant, or otherwise unnecessary, just as a lawyer in privatepractice ethically is obligated to exclude such hours from hisfee submission." Hensley, 461 U.S. at 434, 103 S.Ct. 1933.Stated another way, billing judgment is as important a componentin the public sector as the private sector such that "[h]oursthat are not properly billed to one's client also are notproperly billed to one's adversary pursuant to statutoryauthority." Id. (citations and internal quotation marksomitted).

Even after considering the hours voluntarily eliminated byPlaintiffs, the court's review of Plaintiffs' representatives'time records convinces it that a ten percent reduction needs tobe made for duplication. Granted, the court's reduction is notbased on an hour-by-hour comparative analysis of Plaintiffs' feerequest. The First Circuit does not require such scrutiny. SeeMetropolitan Dist. Commission, 847 F.2d at 16; Jacobs v.Mancuso, 825 F.2d 559, 562 (1st Cir. 1987). See also New YorkState Ass'n for Retarded Children, Inc., 711 F.2d at 1146(district judge acted "within his discretion where he chose tomake percentage reductions in response to defendants' detailedclaims that the fee application contained excessive andduplicative hours"). Rather, the court believes that a tenpercent across the board reduction adequately eliminates theduplication that it has discovered, examples of which aredescribed above. Such a modest reduction for duplication is wellwithin the court's discretion. See, e.g., Weinberger v. Great N.Nekoosa Corp., 801 F. Supp. 804, 819 (D.Me. 1992) (disallowingeighty percent of duplicative time spend), aff'd sub nom. BTZ,Inc. v. Great N. Nekoosa Corp., 47 F.3d 463 (1st Cir. 1995);Mokover v. Neco Enterprises, Inc., 785 F. Supp. 1083, 1089(D.R.I. 1992) (reducing similar charges by twenty percent). Seealso Copeland v. Marshall, 641 F.2d 880, 903 (D.C.Cir. 1980) (enbanc) (endorsing twenty-two percent cut). If anything thereduction is counterbalanced by the court's decision, explainedbelow, to maintain one hourly rate per advocate for both core andnon-core work.

D. Hourly Rates

In opposition to the hourly rates claimed by Plaintiffs'advocates — ranging from a high of $315 for Mr. Belin, anattorney, to a low of $50 for Ms. Eddy, a paralegal — Defendantsnext make three assertions: (1) that some adjustment should bemade to rates over the two year course of litigation; (2) thatdifferent rates should be applied to core and non-core work; and(3) that each rate sought is excessive.

As to the first assertion, the court is content to award ratesappropriate to the moment of the fee request, rather thancalculating various rates over the course of time. See Ramos,713 F.2d at 555 (awarding current rates approximates periodiccompensation adjusted for inflation). The litigation extendedover a relatively short period and the current rates may well beoffset by some future delay in payment. See Missouri v.Jenkins, 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105 L.Ed.2d 229(1989) (holding that "an appropriate adjustment for delay inpayment — whether by the application of current rather thanhistoric hourly rates or otherwise — is within the contemplationof the statute").

Regarding the issue of differential rates, the First Circuithas made clear that a court has discretion to employ either aunified rate for all legal activities or a differential rate forcore and non-core activities. See Brewster v. Dukakis,3 F.3d 488, 492 (1st Cir. 1993); Maceira v. Pagan, 698 F.2d 38, 40-41(1st Cir. 1983) (citing cases). Here, for several reasons, thecourt will apply unified rates. For one thing, the instantlitigation does not present a clear line between core andnon-core efforts; the effort expended was fairly consistent overthe course of the litigation, more so than had a trial ensued.Moreover, to the extent that certain motion practice, discovery,mediation and other pre-trial activities may have been lessdemanding than trial efforts, the court has addressed thoseissues, at least in part, by reducing the rates claimed. Finally,given the general consistency of effort, the court does not findit necessary to overly scrutinize the time sheets to applyvarying rates.6

Defendants' third assertion, that the hourly rates sought areexcessive, is also flawed. For example, although Defendants referto the rates applied to the work of Mr. Schwartz and Ms. Costanzoby other courts, see, e.g., Brewster, 3 F.3d at 492 (grantingMr. Schwartz $120 per hour for core legal work and Ms. Costanzo$80 per hour for such work), Defendants' objections lack theparticularity and specificity called for by the First Circuit,see Domegan, 972 F.2d at 421 n. 35; Rogers, 821 F.2d at 30.Moreover, Defendants, without explanation, propose non-core rateswhich vary from sixty to sixty-four percent of core ratessuggested for particular attorneys. Defendants also ignore theissue of rates with respect to Mr. Engel, Ms. Eshgi and Mr.Poret, preferring instead to eliminate entirely those advocates'efforts from the equation. Accordingly, the court is left to itsown devices.

The court's selection of hourly rates is based in particular onthe affidavit of Allan G. Rodgers, the executive director of theMassachusetts Law Reform Institute, even though the ratessuggested by him might have since increased. (See Pls.'Exhibits, Vol. III, Ex. 36.) The court has also taken intoaccount the stated experience of each advocate. In addition, thecourt believes that some downward adjustment in the claimed ratesis appropriate given that the bulk of the advocates' efforts wereout-of-court. As a result, the court has applied the followinghourly rates to the following attorneys: $250 for Mr. Schwartz,$180 for Ms. Costanzo, $240 for Mr. Belin, $90 for Mr. Poret and$100 for Ms. Eshgi. In choosing these rates, the court has notentered the fray as to whether "Boston" or "Springfield" ratesapply; the varying "core" rates offered by the parties varyinsignificantly.

With regard to Mr. Engel, the court will apply an hourly rateof $170, not the $210 he requests. To be sure, an organizationalchart recently developed by the DLC reflects a 1999 hourly rateof $210 for him. However, as Mr. Engel acknowledges, this courtallowed him attorney's fees at a requested rate of $170 asrecently as November 19, 1999. See Adam R. v. Chicopee PublicSchools, Civil Action No. 99-30048-KPN (Mem. and Order, Nov. 19,1999). While that rate may be less than what Mr. Engel couldreasonably claim, as he now asserts, it was in fact the raterequested at just about the time the instant matter wasconcluded.

As to Ms. Siebrecht, another DLC attorney, the court believesthat the reduction of Mr. Engel's hourly rate from $210 to $170necessitates a reduction of her hourly rate. Unlike Mr. Engel,who has thirteen years of experience, Ms. Siebrecht has onlythree. Accordingly, Ms. Siebrecht'sclaimed rate of $120 will be reduced to $100 per hour.

Regarding the three non-attorneys, the court is mindful that"[t]he efficient use of paralegals is, by now, an acceptedcost-saving device." Lipsett, 975 F.2d at 939. As to Ms.McLaughlin, an experienced paralegal with FH & E, the court willapply an hourly rate of $100. As to Ms. Eddy, however, herclaimed hourly rate of $50 will be cut in half. Not only did Ms.Eddy fail to keep contemporaneous time records, (see above atIII(A)), it appears that her position as a "paralegal" was asmuch educational as it was employment-related. Ms. Eddy worked atCPR from February until mid-August of 1999 while on a leave ofabsence from Yale College because she was "particularlyinterested in using [her] research and computer skills to obtaina range of diverse experiences in a variety of contexts." (Pls.'Exhibits, Vol. III, Ex. 38 ¶ 1.) The court will apply the same$25 hourly rate to Ms. Stockwell, who is described as a "studentintern" with FH & E with a "billing rate" of $65 per hour.

E. Frank Laski

Defendants suggest that this court defer its ruling withrespect to Mr. Laski, MHLAC's executive director, for whom feesof $90,864 are claimed. The court agrees. As both sidesacknowledge the propriety of awarding fees to MHLAC state agency,is currently under consideration by the Massachusetts SupremeJudicial Court ("SJC"). See Kadlick v. Department of MentalHealth, (SJC No. 08212). Since the court cannot predict theparameters of the SJC's ruling, it defers its own with respect toMr. Laski. Accordingly, Mr. Laski's requested fees have beeneliminated from the court's final calculation.7

F. Fee Calculations

The court's attorney fees calculations can be summarized asfollows:

Advocate (Claimed Hours) Deductions Hours Allowed Hourly Rate Amount Due ----------------------------------------------------------------------------- Mr. Schwartz -5; -70; then -10% 1058.3 $250 $264,575 (1250.9)

Ms. Costanzo -48; -140; then -10% 1561.1 180 280,998 (1922.5)

Ms. Eddy -378.6; then -10% 340.7 25 8,518 (757.2)

Ms. Siebrecht -43; -70; then -10% 1644.2 100 164,420 (1939.9)

Mr. Engel -10% 331.9 170 56,423 (368.8)

Mr. Belin -1; -44; then -10% 467.2 240 112,128 (564.1)

Ms. Eshgi -3; -60; then -10% 125.9 100 12,590 (202.9)

Advocate (Claimed Hours) Deductions Hours Allowed Hourly Rate Amount Due ----------------------------------------------------------------------------- Mr. Poret -30; then - 10% 464.5 90 41,805 (546.1)

Ms. McLaughlin -10% 331.7 100 33,170 (368.5)

Ms. Stockwell -10% 487.3 25 12,183 (541.4) Total Fees $986,810

G. Costs and Expenses

Finally, Defendants assert that Plaintiffs' request for$178,430 in costs and expenses is excessive and suggest that only$80,000 be awarded. Defendants, however, provide no specifics asto how that amount has been calculated.

After poring over Plaintiffs' request, the court finds thatthey are entitled to costs and expenses of $125,361. In reachingthis figure, the court has eliminated $43,935 from the requestfor the following expenses which it believes are part of anorganization's overhead: document assembly ($84); telephone calls($2,398); travel, transportation and parking ($9,467); supplies($1,692); postage and mail delivery ($4,341); facsimile use($5,470); computerized research ($1,138); meals and conferences($1,748); and inhouse copying ($17,597). In addition, the courthas studied the supporting documentation regarding CPR's expertexpenses, (see Ex. 21 (experts)), and found that the properfigure is $6,672, not the $15,807 which Plaintiffs claim.

The court finds all other expenses, including expert fees,reasonable and payable in full. In this regard, Defendants'conclusory claim that Plaintiffs' "use of eight experts wasunnecessary, duplicative, and excessive for a matter that wasmarked down for a two-week trial," (Defs.' Opp'n at 10), isunhelpful. Defendants offer no evidence, other than speculation,as to how many experts might have been appropriate. In contrast,Plaintiffs convincingly demonstrate that they had to assemble, onshort notice, a sufficient panel of experts to assess astatistically significant sample of class members, nearly sixty,to meet their burden of proof. These experts had to be qualifiedto give reports about the ability of various class members tolive safely and to benefit from active treatment and communityliving as well as the ability of the existing system to servethem appropriately. In addition, it appears to have beennecessary to include a doctor and several nurses, as well asdisability community specialists in light of the medicalnecessity standards of the Medicaid program. In short, the uniquefacts of this case demonstrate that fewer experts would notnecessarily have been more efficient, more productive or lesstime consuming.

As with Plaintiffs' use of experts, the court believes that themany depositions were neither duplicative nor excessive. Lessthoroughly prepared lawyers would not have been as successful asPlaintiffs' advocates were here. See Dowdell, 698 F.2d at 1191("Attorneys' fees and expenses are awarded not only to make itpossible for non-affluent litigants to obtain legalrepresentation, but to reward attorneys whose services hasbenefitted thepublic interest."). Defendants' arguments to the contrary, thecentral issues in this case went well beyond the interpretationof statutes and regulations.

In light of these findings, the costs and expenses payablebreak down among the three litigating entities as follows: CPR:$60,078 ($92,694 claimed less $23,481 attributable to overheadand $9,135 attributable to the mistaken expert expenses); DLC:$63,506 ($67,083 claimed less $3,577 attributable to overhead);and FH & E: $1,777 ($18,654 less $16,877 attributable tooverhead); for a total of $125,361.


For the foregoing reasons, Plaintiffs are entitled to attorneysfees in the amount of $986,810 (of which $440,000 is apparentlyin the process of being paid (see n. 2 supra)) and costs in theamount of $125,361 (of which $80,000 is apparently in the processof being paid (see n. 2 supra)). A separate order shall issueindicated that all fees and costs should be paid forthwith. Thatpart of Plaintiffs' motion which seeks fees for Mr. Laski isdeferred and Plaintiffs will have thirty days from the SJC'sruling in Kadlick to file a notice with this court as towhether an agreement has been reached with respect to his fees orwhether Plaintiffs still seek the court's ruling on Mr. Laski'srequest.

1. Unless otherwise indicated all figures in this memorandumare rounded to the nearest dollar.

2. In light of Defendants' suggestion that Plaintiffs areentitled to at least $440,000 in fees and $80,000 in costs, thecourt proposed, and the parties agreed to stipulate to, partialjudgment in Plaintiffs' favor for $520,000. The court endorsedthe parties' joint stipulation on May 17, 2000, and understandsthat $520,000 is presently in the process of being paid. (DocketNo. 149.)

3. A lodestar is the product of the number of hours reasonablyexpended multiplied by reasonable hourly rates. As the FirstCircuit explains, "[t]he lodestar method is the stronglypreferred method by which district courts should determine whatfees to award prevailing parties in actions that fall within theambit of section 1988." Coutin v. Young & Rubicam Puerto Rico,Inc., 124 F.3d 331, 337 (1st Cir. 1997).

4. Although Plaintiffs describe the five percent reduction as"proposed," (Pls.' Mem. at 21), it is clear from their papersthat, in fact, they seek the amount of fees calculated after theapplication of both reductions "one" and "two."

5. As explained, Plaintiffs have eliminated from the court'sconsideration any time expended prior to September 1, 1997. Inaddition, Plaintiffs have attempted to voluntarily eliminate alltime prior to March 1, 1998. In this regard, Plaintiffs assertthat the five percent across the board reduction in Table II, the"reduction two" described earlier, eliminated approximately fivehundred hours which they claim is "a complete elimination ofall time by all Plaintiffs' counsel from September 1, 1997 —March 1, 1998, when they primarily engaged in fact investigation,legal research, organizing a litigation team, and drafting legalmemos on the various causes of action." (Pls.' Mem. at 22(emphasis in original).) Thus, from Plaintiffs' point of view,they have already eliminated all time expended during the firsttwo pre-filing time periods described above and seek fees onlyfrom March 1, 1998, onward.

6. Interestingly, Defendants have not undertaken such scrutinyeither. They simply suggest, without support or furtherexplanation, even-numbered divisions between core and non-corehours of only four attorneys and one paralegal.

7. Of course, if the SJC rules that attorneys fees are payableto MHLAC, the parties to the case at bar may be able to agreeupon the amount payable, in light of this opinion, beforereturning, if appropriate, for further consideration.

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