D. Conn.: P.J., et al. v.... | Special Education Law

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

P.J., et al., :

Plaintiffs, :

v. : CASE NO. 2:91cv180(RNC)

STATE OF CONNECTICUT, et al., :

Defendants. :

RECOMMENDED RULING ON PLAINTIFFS' MOTIONS FOR ATTORNEYS' FEES AND COSTS

The plaintiffs commenced this litigation in 1991 against the

Connecticut State Board of Education and certain local school

districts alleging violation of the Individuals with Disabilities

Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. In 2002, the

parties entered into a settlement agreement resolving this complex

and contentious class action. In the final chapter of this

protracted litigation, the plaintiffs move for attorneys' fees and

costs. (Doc. ##758, 786, 793.) The plaintiffs seek $1,474,097.66

in fees and costs plus prejudgment interest.1 (Doc. #793 at 3.)

The bulk of the fees and expenses requested are for time spent on

activities plaintiffs describe as post-judgment monitoring and

1 The plaintiffs' fee request consists of three motions: (1) plaintiffs' motion for attorneys' fees which seeks fees and costs incurred from November 29, 2000 to April 22, 2013 (doc. #758); (2) plaintiffs' "motion to supplement," which seeks fees and costs from April 23, 2013 to November 4, 2013 (doc. #786); and (3) plaintiffs' "second motion to supplement," which seeks fees and costs from November 5, 2013 to January 31, 2014. (Doc. #793.) The defendants filed briefs in opposition (doc. ##773, 790, 797) to which the plaintiffs replied. (Doc. ##781, 792.)

enforcement of the settlement agreement. Defendants contend that

plaintiffs' requested fees are unreasonable and should be reduced

substantially. For the reasons set forth below, the court

recommends2 that the plaintiffs' motions be granted in part and

plaintiffs awarded attorneys' fees and costs of $325,152.57.

I. Background of Case

This case has a tortuous history. The following background,

although lengthy, is relevant to the plaintiffs' fee request.

This class action was filed in 1991 by school-aged children

with intellectual disabilities and their families against the

Connecticut State Board of Education and certain local school

districts. The complaint alleged violation of the IDEA's least

restrictive environment requirement. In 2000, the court (Chatigny,

J.) conducted a bench trial. Following trial but before the court

made findings on liability, the parties entered into settlement

negotiations. I was extensively involved with the negotiations and

held numerous conferences.3 In March 2002, the parties executed a

2 U.S. District Judge Robert N. Chatigny referred the motions to me for a recommended ruling. (Doc. ##759, 787, 794.) See Fed. R. Civ. P. 54(d)(2)(D) (the court "may refer a motion for attorney's fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.") 3 Conferences were held on 3/2/00 (doc. #400); 5/22/00 (doc. #413); 9/12/00 (doc. #414); 9/26/00 (doc. #415); 10/2/00 (doc. #416); 10/12/00 (doc. #417); 10/20/00 (doc. #418); 11/13/00 (doc. #419); 12/20/00 (doc. #423); 2/13/01 (doc. #424); 3/20/01 (doc. #425); 5/14/01 (doc. #426); 5/18/01 (doc. #427); 7/12/01 (doc. #428); 8/16/01 (doc. #429); 9/12/01 (doc. #430); 11/30/01 (doc. #447); 1/25/02 (doc. #451); 2/8/02 (doc. #452); and 3/20/02 (doc.

settlement agreement.4 Judge Chatigny approved the agreement in

May 2002 after a fairness hearing. (Doc. #462.)

A. Terms of the Settlement Agreement

The Settlement Agreement was intended "to protect the rights

and enforce the obligations established by 20 U.S.C.

§ 1412(a)(5)(A)." (Doc. #706, Crt's Post-Hearing Memorandum at 34.)

The class was defined as "all school-age children labeled mentally

retarded on or after February 20, 1991 who are not educated in

regular classrooms . . . as well as all students with the label

'Intellectual Disability/Mental Retardation' who are not educated

in the regular classroom." (Settlement Agreement § I.) The

essential purpose of the Agreement "involved increasing integrated

placements for class members . . . ." (Doc. #706 at 5-6.) The

defendants agreed to the following goals:

(1) an increase in the percentage of students with mental retardation or intellectual disability who are placed in regular classes, as measured by the federal definition (80% or more of the school day with non-disabled students);

(2) a reduction in the disparate identification of students with mental retardation or intellectual disability by LEA ["local education agency"], by racial group, by ethnic group or by gender group;

(3) an increase in the mean and median percent of the school day that students with mental retardation or

#453). 4 The Settlement Agreement stated that the defendants denied the plaintiffs' allegations and admitted no liability. (Settlement Agreement at 2.)

intellectual disability spend with nondisabled students;

(4) an increase in the percentage of students with mental retardation or intellectual disability who attend the school they would attend if not disabled (home school); and

(5) an increase in the percentage of students with mental retardation or intellectual disability who participate in school-sponsored extra curricular activities with non- disabled students.

(Settlement Agreement § II.)

The parties did not set specific numerical objectives for

these goals. Instead, they agreed that defendants would achieve

"meaningful continuous improvement annually" with respect to goals

#1 and #4 and "continuous improvement" with respect to goals #2,

#3, and #5. (Settlement Agreement § II.)

Defendants further agreed, among other things, to "prepare and

distribute to the parties and the court a list of public school

students in Connecticut who on or after December 1, 1999 carry the

label of either mental retardation or intellectual disability and

who are eligible for special education; such list shall be updated

periodically." (Settlement Agreement § I.2.) Defendants also

agreed to issue annual written reports on their progress and

activities related to the five goals. (Settlement Agreement

§ III.)

The Settlement Agreement had an eight year term, with a

termination date of August 2010. During the first five years

(through August 2007), the court retained jurisdiction for

"enforcement" of the Agreement. During the final three years, the

court's jurisdiction was limited to "entertain[ing] Plaintiffs'

motions for substantial noncompliance." (Settlement Agreement

§ III.) Other pertinent provisions follow.

1. Expert Advisory Panel

The Settlement Agreement provided that the "defendants shall

establish an Expert Advisory Panel ["EAP"] to advise the parties

and the Court regarding the implementation of th[e] Agreement."

(Settlement Agreement § IX.) The EAP was to consist of four

members, with each party nominating two members and both parties

agreeing to all four. (Id.) Its purpose was to "advise and serve

as a resource to the CSDE [the Connecticut State Department of

Education] with respect to implementation of all aspects of th[e]

agreement . . . ." (Id.) The EAP's recommendations were to be

advisory. (Id.) The EAP was charged with "facilitat[ing] the

defendants' compliance with th[e] Agreement, identifying

difficulties in compliance, facilitating resolution of compliance

issues without court intervention, and referring to the court

issues that cannot be resolved by discussion and negotiation."

(Id.) The EAP also was to provide annual written reports on

defendants' progress toward the specified goals. (Id.) The

defendants agreed to designate a staff person to "design, implement

and coordinate all efforts under th[e] agreement" and "serve as the

liaison" to the EAP. (Settlement Agreement § VI.2) Finally, the

EAP was to "[c]ollect and analyze data it deem[ed] necessary

relating to class members and the implementation of th[e]

agreement." (Settlement Agreement § IX.) The EAP was expected to

meet at least three times per year. (Id.)

2. Plaintiffs' Involvement

The Settlement Agreement contemplated certain involvement by

the plaintiffs. Plaintiffs were charged with nominating two of the

four EAP members. (Settlement Agreement § IX.) The Agreement

provided that "[t]he parties" were to meet annually to discuss the

defendants' implementation and "ways to effectively increase

progress toward[] the achievement of each of the stated goals."

(Settlement Agreement § III.) As indicated, defendants agreed to

prepare a list of students "who on or after December 1, 1999 carry

the label of either mental retardation or intellectual disability

and who are eligible for special education." (Settlement Agreement

§ I.2.) Plaintiffs had "a right to collect data relating to [the

students thus identified] and to challenge the adequacy of that

list." (Settlement Agreement § I.3.) Defendants agreed to

"cooperate with the plaintiffs to gain access to data and files

relating to class members to the extent allowed by state and

federal statute, for all purposes relating to the enforcement and

implementation of th[e] Agreement." (Id.) They also agreed to

"cooperate with the Plaintiffs' reasonable requests to provide

existing data to enable Plaintiffs to assess compliance during the

five-to-eight year period." (Settlement Agreement § III.)

3. Attorneys' Fees

The Settlement Agreement provided that defendants would pay

plaintiffs $675,000 in attorneys' fees and costs. (Settlement

Agreement § X.) This provision is discussed in greater detail

below.

II. Summary of Events after the Settlement Agreement was Approved

After the court approved the Agreement in May 2002, the EAP

was empaneled. The defendants issued annual reports and provided

extensive data to the plaintiffs and the EAP regarding their

efforts and progress. The EAP met with staff of the Connecticut

Department of Education and representatives of local school

districts, reviewed documents and data, and made recommendations to

facilitate defendants' compliance with the Settlement Agreement.

A representative of The Arc Connecticut, one of the plaintiffs,

attended the EAP meetings. (Doc. #637 at 42; doc. #800-1, Simeos

Aff. ¶4.) Plaintiffs' counsel also attended.

The EAP submitted periodic reports of its observations and

recommendations. It proposed benchmarks for the five goals in the

Agreement. The Agreement, however, did not require the defendants

to adopt the EAP's suggestions and the defendants declined to do

so. The defendants disbanded the EAP in August 2007, before the

expiration of the eight year term of the Agreement.5 (Doc. #758 at

4 ¶11.)

Also during this time, the plaintiffs filed numerous motions

seeking discovery, compliance with the Settlement Agreement and

attorneys' fees. See, e.g., doc. ##482, 495, 511, 519, 527, 532,

547, 549, 566, 579, 580, 684, 685, 701, 702.6

In April 2009, the plaintiffs filed a motion alleging that the

defendants were in substantial noncompliance with the Settlement

Agreement.7 (Doc. #580.) They contended that the defendants

failed to make sufficient progress toward the goals. (Doc. #580 at

55 ¶22f.) They also argued, among other things, that the

defendants failed to address high rates of reclassification of

class members into different disability categories, which had the

effect of moving students out of the "Intellectual Disability"

("ID") category and shrinking the class. (Doc. #633, Plaintiffs'

5 The defendants believed that the Agreement permitted them to disband the EAP. The plaintiffs correctly observe that the defendants were obliged to maintain the EAP for the full eight years of the Settlement Agreement. As noted in the Second Circuit's affirmance, the district court found defendants' position, although mistaken, credible and was not persuaded by plaintiffs' claim that the termination of the EAP warranted a finding that the defendants were in substantial noncompliance with the Settlement Agreement. (Doc. #706 at 54-55; P.J. ex rel. W.J. v. Connecticut Bd of Ed et al., 550 F. App'x 20, 23 (2d Cir. 2013)). 6 I was very involved with the resolution of plaintiffs' motions, which are discussed in greater detail herein. 7 Plaintiffs' previously-filed motion alleging substantial noncompliance was denied without prejudice. (Doc. ##549, 571.)

Proffer.)

In June 2010, the district judge (Chatigny, J.) conducted an

evidentiary hearing on the plaintiffs' motion. The court denied

the motion. (Doc. #707.) Judge Chatigny concluded that the

defendants had made "significant progress" toward each goal and

that "as a result of actions taken by the [Connecticut State

Department of Education] following approval of the Agreement, in

2008 Connecticut ranked second in the nation in terms of the

percentage of students with the ID [intellectually disabled] label

who were placed in regular classrooms."8 (Doc. #706 at 4.) As to

plaintiffs' complaints about the reclassification of intellectually

disabled students, the court determined that "plaintiffs ha[d] not

shown that the reclassification rate provide[d] a basis for a

finding of substantial noncompliance." (Doc. #706 at 55-56.)

The plaintiffs appealed. The Second Circuit affirmed the

district court's ruling. The Second Circuit concluded that the

defendants had "made significant progress toward accomplishing

Section II's goals, posting large percentage gains on the

integration of students with intellectual disabilities pursuant to

the first, third, fourth, and fifth goals, and markedly reducing

discriminatory identification of such students pursuant to the

second goal." P.J. ex rel. W.J. v. Connecticut Bd of Ed et al.,

8 The court utilized the defendants' data, which it found to be reliable, in making its ruling. (Doc. #706 at 40.)

550 F. App'x 20, 23 (2d Cir. 2013) (summary order).

III. Plaintiffs' Pending Fee Request

Plaintiffs seek compensation for 2545.8 hours expended by

Attorneys David Shaw and Frank Laski from November 29, 2000 through

January 31, 2014 at the rate of $500 per hour. (Doc. #793.) In

all, they request $1,474,097.66 in attorneys' fees, costs,

litigation expenses and expert fees as follows:

Attorney Shaw 1956.8 hours @ $500/hr $978,400

Attorney Laski 589 hours @ $500/hr $294,500

Paralegal 21.6 hours @ $150/hr $3,240

Attorney Shaw's Costs & Litigation Expenses $194,846.86

Attorney Laski's Costs $3,110.80

$1,474,097.66

Plaintiffs also seek prejudgment interest.

Defendants strenuously object to the plaintiffs' fee request.

They argue that the requested award should be reduced significantly

because most of plaintiffs' attorneys' activities went far beyond

compensable post-judgment monitoring. Defendants' other challenges

are that the attorneys' billing records are not contemporaneous;

the requested time is excessive; plaintiffs' expert fees are not

reimbursable; and the hourly rates sought are unreasonable.

This case implicates an issue of public importance - the

education of students with intellectual disabilities. Some measure

of the complexity of this litigation can be derived from the

court's docket sheet, which contains more than 400 entries from

2000 through 2014, the period at issue. The determination of

compensation for class counsel is important and difficult. The

record is huge. Plaintiffs' compendious fee application exceeds

1000 pages and their attorneys' billing statements contain more

than 1500 entries. (Doc. #793, Ex. A, C.) That said, it is not

the size of the record alone that makes the court's task in

reviewing plaintiffs' fee request so challenging. Case law

provides little guidance in the determination of whether

plaintiffs' attorneys' post-judgment activities are compensable.

There is no crisp rule or easy formula to employ in making this

very case-specific determination. To adjudicate the plaintiffs'

fee application, the court has carefully and methodically

considered the parties' arguments, painstakingly combed through the

filings, and scrutinized billing entries.

A. Prevailing Party

A prevailing plaintiff is entitled to recover reasonable

attorneys' fees and costs. 20 U.S.C. § 1415(i)(3)(B). "[T]o

prevail for purposes of attorney's fees, a party must have gained

through the litigation a 'material alteration of the legal

relationship of the parties.'" Carter v. Incorporated Village of

Ocean Beach, 759 F.3d 159, 165 (2d Cir. 2014)(quoting Buckhannon Bd

& Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532

U.S. 598, 604–05 (2001)). A consent decree "is a court-ordered

chang[e] [in] the legal relationship between [the plaintiff] and

the defendant."9 Buckhannon, 532 U.S. at 604. The plaintiffs here

are "prevailing parties" for purposes of statutory attorneys' fees.

B. Calculating Attorneys' Fees

Courts evaluating a request for attorneys' fees must

"perform[] a lodestar analysis, which calculates reasonable

attorneys' fees by multiplying the reasonable hours expended on the

action by a reasonable hourly rate." Kroshnyi v. U.S. Pack Courier

Servs, Inc., 771 F.3d 93, 108 (2d Cir. 2014). "Both [the Second

Circuit] and the Supreme Court have held that the lodestar . . .

creates a 'presumptively reasonable fee.'" Millea v. Metro-North

R. Co., 658 F.3d 154, 166 (2d Cir. 2011) (citing Arbor Hill

Concerned Citizens Neighborhood Assoc. v. Cnty. of Albany, 522 F.3d

182, 183 (2d Cir. 2008)). "[A] 'reasonable' fee is a fee that is

sufficient to induce a capable attorney to undertake the

representation of a meritorious civil rights case." Perdue v.

Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). "[T]he lodestar

method yields a fee that is presumptively sufficient to achieve

that objective." Id.

"[T]he fee applicant bears the burden of establishing

entitlement to an award and documenting the appropriate hours

expended and hourly rates." Cruz v. Local Union No. 3 of Intern.

9 The Second Circuit characterized the Settlement Agreement "as a consent decree given the district court's continuing jurisdiction over it." P.J., 550 F. App'x at 23.

Broth. of Elec. Workers, 34 F.3d 1148, 1160 (2d Cir. 1994).

"[A]ttorney's fees are dependent on the unique facts of each case

. . . ." Baker v. Health Mgmt. Sys., Inc., 264 F.3d 144, 149 (2d

Cir. 2001). The district court has "wide discretion in determining

an appropriate fee award." Carter v. Incorporated Village of Ocean

Beach, 759 F.3d 159, 167 (2d Cir. 2014).

The court turns to the merits of the plaintiffs' fee request.

IV. Contemporaneous Time Records

Defendants raise a threshold argument that the court should

reduce the time requested because Attorneys Shaw and Laski did not

maintain contemporaneous billing records.

Defendants argue that Attorney Shaw did not affirmatively aver

in his declaration that his "submitted records are

contemporaneous."10 (Doc. #773 at 27.) They also point to alleged

discrepancies in both counsel's billing statements as evidence that

the billing entries were not made contemporaneously.

"[A]bsent unusual circumstances attorneys are required to

submit contemporaneous records with their fee applications." Scott

v. City of New York, 626 F.3d 130, 133 (2d Cir. 2010) (per curiam).

10 Attorney Shaw's initial declaration stated in pertinent part: "I have reviewed my time records in connection with this case. Attached . . . to this Declaration are my office's computerized time records of the time spent working on this case. This constitutes an accurate reflection of the time spent working on this case. . . . This computerized time record is prepared on a regular basis in the regular course of business in this office." (Doc. #758-2, Shaw Decl. ¶11.)

See In New York State Association for Retarded Children v. Carey,

711 F.2d 1136, 1148 (2d Cir. 1983)("any attorney . . . who applies

for court-ordered compensation in this Circuit . . . must document

the application with contemporaneous time records.")

The court is not persuaded by defendants' argument. Attorney

Shaw expressly avers in his supplemental declaration that his time

entries were made contemporaneously. (Doc. #781, Ex. C, Shaw Decl.

¶3.) Similarly, Attorney Laski's declaration makes clear that his

time records were contemporaneously maintained. (Doc. #758-2, Ex.

B, Laski Decl.) The alleged discrepancies cited by the defendants

are insufficient to conclude otherwise.

V. Reasonableness of the Hours Expended

The court next addresses the reasonableness of the hours

claimed.

"In reviewing a fee application, the district court examines

the particular hours expended by counsel with a view to the value

of the work product of the specific expenditures to the client's

case. . . . If the district court concludes that any expenditure of

time was unreasonable, it should exclude these hours from the

lodestar calculation." Luciano v. Olsten Corp., 109 F.3d 111, 116

(2d Cir. 1997)(citations omitted). See Oklahoma Aerotronics, Inc.

v. United States, 943 F.2d 1344, 1346 (D.C. Cir. 1991)("[T]here is

a point at which thorough and diligent litigation efforts become

overkill. The district court must disallow claims for 'excessive,

redundant, or otherwise unnecessary' charges.") (quoting Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983)). "In calculating the number

of 'reasonable hours,' the court looks to 'its own familiarity with

the case and its experience with the case and its experience

generally as well as to the evidentiary submissions and arguments

of the parties.'" Clark v. Frank, 960 F.2d 1146, 1153 (2d Cir.

1992)(quoting DiFilippo v. Morizio, 759 F.2d 231, 236 (2d Cir.

1985)). "A court has broad discretion to trim the fat in an

application for attorneys' fees, and to eliminate excessive or

duplicative hours." Mastrio v. Sebelius, No. 3:08CV1148(JBA), 2013

WL 1336838, at *7 (D. Conn. Mar. 29, 2013)(internal quotation marks

and citations omitted).

Plaintiffs categorize the time billed by their attorneys as

follows:

Hours billed by Hours billed by Attorney Shaw Attorney Laski Negotiating Pre- 117.3 30.4 Settlement Claim 11/29/00 - 3/20/02 Notifying Class Members 24 7.6 of Settlement 3/21/02 - 5/22/02 Empaneling Expert 23.7 14.2 Advisory Panel 6/4/02 - 8/14/02 Monitoring Implementation 1375.1 460.6 of Settlement Agreement 8/15/02 - 4/22/13 Litigating Attorneys' 385.5 70.8 Fees

Filing/Pursuing Writ of 31.2 5.4 Mandamus Total 1956.8 589

(Doc. #793, Ex. A, C.) The court examines each category in turn.

A. Negotiating Pre-Settlement Claim November 29, 2000 - March 20, 2002

In this first category, plaintiffs seek fees for 147.7 hours

counsel expended from November 29, 2000 to March 20, 2002 -- before

the parties signed the Settlement Agreement on March 28, 2002.

Plaintiffs state that their attorneys spent this time

(1) negotiat[ing] [the] claim for costs, expert fees and attorneys' fees incurred up to November 28, 2000 . . . and (2) pursu[ing] litigation to challenge and have removed from the Settlement Agreement unilateral changes that were made in the language of the Settlement Agreement by Defendants after a final agreement was reached.

(Doc. #758-2, Ex. A, Shaw Aff. ¶7.)

Familiarity with the relevant facts and procedural history of

this period of time is assumed11 but a brief summary follows.

The settlement negotiation process was bifurcated: the initial

phase focused on the merits of the case and the second phase

addressed attorneys' fees. The discussions were lengthy and

challenging. After several months, the parties reached a

settlement agreement on the substantive provisions. They

memorialized these terms in a draft settlement agreement dated

11 The circumstances regarding this period of time are set forth in detail in the court's prior ruling. See doc. #708.

November 1, 2000. (Doc. #690-1 at 2, Ex. A, Shaw Decl. ¶3; Ex. B.)

The parties then turned to the issue of attorneys' fees. The

plaintiffs sought payment of more than $900,000 and provided the

defendants with a statement of attorneys' fees and costs from 1991

through November 28, 2000. (Doc. #690, Ex. C.) I oversaw

settlement discussions in December 2000 and March 2001 regarding

the plaintiffs' fee request. After negotiations, plaintiffs agreed

to accept $675,000 in fees "to settle the case." (Doc. #431 at 3

¶11; doc. #690, Ex. A, Shaw Decl. ¶9.)

On May 18, 2001, I held a conference at which counsel

discussed language concerning the duration of the agreement. They

agreed to certain changes (unrelated to fees) which they hand wrote

into the draft of the November 2000 settlement agreement. At that

point, although counsel had agreed to $675,000 in fees, the draft

agreement was silent as to attorneys' fees. (Doc. #431, Ex. D;

doc. #690-1 at 4.)

In June 2001, the plaintiffs learned that defense counsel had

submitted the proposed settlement agreement to the Connecticut

General Assembly and that it had been approved. (Doc. #690-1 at

5.) The settlement agreement that the legislature approved,

however, included a provision that was not in the November 1, 2000

agreement. That provision - Section X - states:

The Defendants shall make to the Plaintiffs . . . a one-time payment of $675,000 in attorneys' fees and costs, payable . . . within ninety (90) days of the effective date of the approval of this agreement.

Plaintiffs protested immediately when they saw the newly-added

Section X. They intended to request attorneys' fees for future

work on monitoring and enforcing the settlement agreement. (Doc.

#432 at 6.) Plaintiffs asserted that pursuant to Pennsylvania v.

Delaware Valley Citizens Counsel for Clean Air, 478 U.S. 546 (1986)

"there was a well-recognized right" to such fees. (Doc. #432 at 8.)

They stated that there had been no "discussion about the waiver of

attorneys' fees for enforcement activities" and that they did not

waive fees and costs relating to such activity. (Doc. #690-12, Ltr

dated 6/8/01; doc. #444 at 9.) They also indicated that "if

defendants had demanded during the negotiations that plaintiffs

waive future attorneys' fees for enforcement activity, plaintiffs

would not have agreed to the $675,000 figure." (Doc. #431 at 7

¶26.)

Defendants acknowledged that their counsel drafted and

unilaterally inserted Section X into the Settlement Agreement, but

maintained that it was proper to do so because "all that remained

to be done" was "to insert the provision calling for the payment of

$675,000 in attorneys' fees and costs, which was to be a single

payment." (Doc. #690, Ex. N.) They agreed with plaintiffs that

"[t]here were never any discussions" about "ongoing attorneys' fees

for 'enforcement activities.'" (Doc. #690-13 at 2; Doc. #432, Ex.

K, Ltr dated 6/18/01 at 2.)

The parties attempted to resolve the dispute. There were

communications between them and more settlement conferences with

the court. In October 2001, when those discussions did not bear

fruit, the plaintiffs filed a voluminous "Motion to Enforce the

Settlement Agreement" in which they argued that the parties had an

enforceable agreement "in the May 18, 2001 Settlement Agreement

except for the words 'one time payment' in Section X."12 (Doc.

##431, 432 at 17.) Defendants responded that there had been no

discussions about attorneys' fees and costs for monitoring and that

"each side held a totally different view of what had been

tentatively agreed to, but not yet codified into the written

document." (Doc. #441 at 6, 14.) From that, they concluded that

was "no meeting of the minds" on attorneys' fees, an essential and

material term, and as a result, no agreement to enforce. (Doc.

#441 at 8, 11, 14.)

After several conferences with the court, the parties agreed

to a "side letter" construing Section X.13 (Doc. #690, Ex. T,

12 Plaintiffs requested as relief that the court enter "an order approving the Settlement Agreement negotiated on May 18, 2001 and hold a hearing to determine the construction of the words 'one-time payment' in Section X as will make the Settlement Agreement conform to the intent of the parties." (Doc. #432 at 24-25.) 13 The letter stated in pertinent part: [T]he defendants do not interpret Section X of the draft agreement to preclude the Court from awarding reasonable attorneys' fees and costs to the Plaintiffs upon a finding by the Court that the Defendants had failed to substantially comply with the consent decree. The parties agree to be bound by controlling law on the issue of attorneys' fees and costs. (Doc. #690, Ex. T, Ltr dated 3/1/02.)

Letter dated 3/1/02.) With the side letter in place, the parties

executed the Settlement Agreement with Section X intact on March

28, 2002.14

In July 2010, the plaintiffs moved for an award of attorneys'

fees and costs for the period from November 29, 2000 through the

June 2010 evidentiary hearing on the plaintiffs' motion alleging

substantial noncompliance. (Doc. #684.) Most of the fees the

plaintiffs requested were for post-judgment monitoring and

enforcement, which they believed were compensable pursuant to

Pennsylvania v. Delaware Valley Citizens' Counsel for Clean Air,

478 U.S. 546, 559 (1986).

The defendants objected, arguing, among other things, that

(1) plaintiffs' request for further fees was barred by the text of

the Settlement Agreement and in the alternative, (2) plaintiffs'

post-judgment work did not result in a "judicially sanctioned

change in the legal relationship of the parties" and therefore was

not compensable pursuant to Buckhannon Bd & Care Home, Inc. v. W.

Va. Dep't of Health & Human Resources, 532 U.S. 598 (2001).

Plaintiffs responded that they never waived their right to seek

such fees. They pointed out that there was no language in the

Agreement that limited their entitlement to future fees and costs

14 The court did not rule on the plaintiffs' motion to enforce. The court closed the case on May 22, 2002 after conducting the fairness hearing, which terminated the plaintiffs' motion to enforce.

and that they were entitled to fees for the remedial phase under

controlling law. In an August 2012 recommended ruling, the court

agreed. (Doc. #708.) The court concluded that neither the terms

of the Settlement Agreement nor the Supreme Court's decision in

Buckhannon barred an award of attorneys' fees.15 (Doc. #708 at 20.)

The court decided that further briefing was necessary before it

could determine whether the particular costs and fees plaintiffs

sought were properly compensable. The district court (Chatigny,

J.) approved and adopted the recommended ruling over defendants'

objection.16 (Doc. #756.)

I now turn to the particular fees plaintiffs seek. Plaintiffs

first request compensation for time counsel expended before the

Settlement Agreement was executed in March 2002. Attorney Shaw

billed 117.3 hours and Attorney Laski billed 30.4 hours. (Doc.

#758 at 16.) This includes time plaintiffs' attorneys spent

(1) negotiating and arriving at the $675,000 figure; (2) attending

the May 18, 2001 settlement conference at which the parties

discussed and agreed on the duration of the Agreement; (3) drafting

15 More precisely, the court determined that Buckhannon Board & Care Home, Inc. v. W. Va. Dep't of Health & Human Resources, 532 U.S. 598 (2001) did not overrule Pennsylvania v. Delaware Valley Citizens' Counsel for Clean Air, 478 U.S. 546 (1986). (Doc. #708 at 19-20). 16 The court denied without prejudice the plaintiffs' pending supplemental motions regarding fees and directed the plaintiffs to file a new motion for attorneys' fees and costs setting forth "all the relief they seek." (Doc. #756 at 9.) These motions followed.

the motion to enforce; and (4) conferring and negotiating regarding

Section X.

According to plaintiffs, they are entitled to reimbursement

for work counsel performed during this "pre-settlement period"

because the attorneys' fee provision awarding them $675,000 only

reflected their fees up to November 28, 2000. They argue that

their attorneys' "actions were necessary to secure a court-ordered

Settlement Agreement that provided a fair and reasonable resolution

of the violations of law described in the complaint for the class

as a whole and prevent the settlement negotiations from failing

altogether." (Doc. #758-1 at 2.)

Defendants argue that no fees should be awarded for pre-

settlement work. They assert that the $675,000 award was intended

to compensate plaintiffs for all work done prior to the signing of

the Settlement Agreement. In the alternative, defendants contend

that the amount of time expended by plaintiffs' counsel was

unreasonable and excessive, warranting at least a 50% reduction.

(Doc. #773 at 31.)

I agree that the plaintiffs are not entitled to fees incurred

before the parties executed the Settlement Agreement.

"A settlement agreement is a contract that is interpreted

according to general principles of contract law." Omega Eng'g,

Inc. v. Omega, S.A., 432 F.3d 437, 443 (2d Cir. 2005). A contract

"must be construed to effectuate the intent of the parties, which

is determined from the language used interpreted in the light of

the situation of the parties and the circumstances connected with

the transaction." Bass ex rel. Bass v. Miss Porter's Sch., 738 F.

Supp. 2d 307, 321 (D. Conn. 2010)(quoting Remillard v. Remillard,

297 Conn. 345, 355 (2010)). "[T]he intent of the parties is to be

ascertained by a fair and reasonable construction of the written

words and . . . the language used must be accorded its common,

natural, and ordinary meaning and usage where it can be sensibly

applied to the subject matter of the contract." Hernandez v.

Cavaliere Custom Homes, Inc., 511 F. Supp. 2d 221, 227 (D. Conn.

2007).

Plaintiffs' interpretation of the Settlement Agreement is

unpersuasive. There is no indication that the parties intended for

plaintiffs to receive more than $675,000 for their work up to the

signing of the Settlement Agreement. A plain reading of the

Agreement demonstrates that the $675,000 encompassed the attorneys'

fees defendants agreed to pay and the plaintiffs agreed to accept

for their work up to the date they signed the Agreement.17 The

agreement manifests a clear intent that this payment resolved

plaintiffs' fees to that point.

17 The parties' negotiations and correspondence to the court demonstrate that the plaintiffs were concerned not about their fees during this period up to the signing of the Settlement Agreement, but about their ability to recover fees "incurred in the future related to enforcement activity." (Doc. #690-12 at 5; doc. #431 at 6.)

B. Notifying Class Members of Settlement 3/21/02 - 5/22/02

Plaintiffs next seek fees for the period of March 21, 2002

through May 22, 2002 – after the parties signed the agreement but

before the court entered judgment. Attorney Shaw billed 24 hours

and Attorney Laski billed 7.6 hours. During this period,

plaintiffs' counsel worked on the notice of the proposed settlement

to the class and appeared at the fairness hearing. (Doc. #758 at

16.) Plaintiffs claim that "[t]hese actions are compensable as

they were necessary to secure the benefits of the Settlement

Agreement to the class, secured substantial relief to the class and

effected a material alteration in the legal relationship between

the class and Defendants," citing, without elaboration, Texas State

Teachers Ass'n v. Garland Independent School Dist., 489 U.S. 782,

791-92 (1989). (Doc. #758 at 16.)

Plaintiffs' reliance on Texas State is misplaced and does not

advance their claim to entitlement of fees for this period. Texas

State concerned "the inquiry which should be made in determining

whether a civil rights plaintiff is a prevailing party within the

meaning of § 1988." Texas State, 489 U.S. at 791. Plaintiffs have

not sustained their burden of proving entitlement to fees for this

period.

C. Empaneling Expert Advisory Panel 6/4/02 - 8/14/02

Plaintiffs next seek fees for post-judgment work done from

June 4, 2002 through August 14, 2002. Attorney Shaw billed 23.7

hours and Attorney Laski billed 14.2 hours for time spent selecting

and empaneling the EAP. (Doc. #758 at 17.) Plaintiffs contend

that this time is compensable pursuant to Pennsylvania v. Delaware

Valley Citizens' Council for Clean Air, 478 U.S. 546 (1986).

In Delaware Valley, the Supreme Court held that "post-judgment

monitoring of a consent decree is a compensable activity for which

counsel is entitled to a reasonable fee." Id. at 558. In

concluding that work done in that case was compensable, the Court

reasoned:

the work done by counsel . . . was necessary to the attainment of adequate relief for their client as was all of their earlier work in the courtroom which secured [plaintiff's] initial success in obtaining the consent decree. . . . Protection of the full scope of relief afforded by the consent decree was thus crucial to safeguard the interests asserted by [plaintiff]; and enforcement of the decree, whether in the courtroom before a judge, or in front of a regulatory agency with power to modify the substance of the program ordered by the court, involved the type of work which is properly compensable as a cost of litigation . . . . In a case of this kind, measures necessary to enforce the remedy ordered by the District Court cannot be divorced from the matters upon which [plaintiff] prevailed in securing the consent decree.

Delaware Valley, 478 U.S. at 558-59.

"Not all post-judgment efforts are compensable." Ass'n for

Retarded Citizens of N. Dakota v. Schafer, 83 F.3d 1008, 1011 (8th

Cir. 1996). Only work that is "useful and of a type ordinarily

necessary to secure the final result obtained from the litigation"

is compensable. Delaware Valley, 478 U.S. at 561. "Application of

this standard is left to the discretion of the district court."

Id. See Ass'n for Retarded Citizens of N. Dakota, 83 F.3d at 1011

("compensable post-judgment work must in any event be reasonable

and necessary"); Brewster v. Dukakis, 786 F.2d 16, 18 (1st Cir.

1986) (recognizing the difficulties in evaluating post-judgment

monitoring fees, noting that "[m]issing the refining fire of the

basic litigation, plaintiffs' attorney may slip into a mode of

spending too much time on too many matters").

The Settlement Agreement called for plaintiffs' involvement in

the selection of the members of the EAP. (Settlement Agreement

§ IX.) Attorney time spent selecting and empaneling the EAP

satisfies the Delaware Valley standard for compensability. Having

reviewed the billing statements, I find that the time expended is

reasonable.

D. Monitoring Implementation of Settlement Agreement August 15, 2002 - April 22, 2013

Plaintiffs next seek reimbursement of legal fees for time

expended from August 15, 2002 through April 22, 2013. (Doc. #793,

Ex. A and C.) Attorney Shaw billed 1375.1 hours and Attorney Laski

billed 460.6 hours. Plaintiffs describe counsel's work during this

post-judgment period as "monitoring the implementation of the

Settlement Agreement" compensable under Delaware Valley. (Doc.

#758 at 17.) Plaintiffs say their attorneys:

review[ed] and comment[ed] on the four Annual Reports submitted to the Court by the Defendants; review[ed] and comment[ed] on the five Reports prepared by the EAP . .

.; attend[ed] EAP meetings; secure[d] and reviewed documents that described Defendants' monitoring of local school districts; conduct[ed] an evaluation by twenty experts of the programming provided to a sample of 123 class members in twenty public schools to assess the placement of a random sample of class members after the EAP was unilaterally terminated by Defendants; conduct[ed] multiple reviews of data supplied by Defendants to assess progress on the five goals of the Settlement Agreement; develop[ed] a longitudinal database to demonstrate that a database could be developed to track ID students from year to year and compel[led] Defendants to produce data that enabled Plaintiffs to assess the impact of local school districts' reclassification of class members to other disability categories. [They also] file[d] and litigat[ed] a motion for orders to remedy substantial noncompliance.18

(Doc. #758-1 at 18.) Plaintiffs maintain these activities were

"essential given the complexity of the case, the State Defendants'

refusal to accept the vast majority of recommendations of the EAP

and the State's summary dismissal of the EAP in August 2007."

(Doc. #758-1 at 19.)

Defendants vehemently disagree. They argue that counsel's

enormous, unrestrained expenditure of time was neither reasonable

nor justified. Defendants charge that plaintiffs' attorneys' time

largely was spent on "misplaced efforts and improper arguments"

seeking to "expand the Agreement" rather than work that was "useful

18 Plaintiffs state they do not seek compensation for time their attorneys spent on the appeal to the Second Circuit. (Doc. #758-1 at 46 n.1.) They posit, however, that "in assessing the reasonableness of [their] claim, the Court should take into consideration that the Plaintiffs have made no claim for an award of the 404.6 hours of time and $6,881.33 in costs incurred in connection with the unsuccessful appeal to the Court of Appeals." (Doc. #792 at 1.)

and of a type ordinarily necessary to secure the final result

obtained from the litigation" as required by Delaware Valley.

(Doc. #773 at 6.) They contend that the court should make a

substantial across-the-board percentage cut to the hours requested.

(Doc. #773 at 3, 32.)

"Deciding how many hours should have been spent by counsel in

relation to various tasks is an effort . . . fraught with

difficulty." In re Terrorist Attacks on Sept. 11, 2001, No. 03 MDL

1570(GBD)(FM), 2015 WL 6666703, at *1 (S.D.N.Y. Oct. 28, 2015).

Here, the court's task is complicated by the manner in which the

fee request was organized. "In determining how much attorney time

should be compensated, the court looks initially to the amount of

time spent on each category of tasks . . . and then decides how

much of that time was 'reasonably expended.'" Tucker v. City of

New York, 704 F. Supp. 2d 347, 354 (S.D.N.Y. 2010) (citation

omitted). The plaintiffs' memorandum provides the total number of

hours expended from 2002 through 2013 (1835.7) and summarizes

counsel's post-judgment activities. They do not delineate the time

spent on each category of tasks. To adjudicate the plaintiffs'

application and provide a record sufficient for review, the court

examined, organized and tallied the plaintiffs' more than 1500 time

entries. The court's grouping and compilation is necessarily

imprecise but the goal "is to do rough justice, not to achieve

auditing perfection." Fox v. Vice, 563 U.S. 826, 131 S. Ct. 2205,

2216 (2011)("[T]rial courts may take into account their overall

sense of a suit, and may use estimates in calculating and

allocating an attorney's time.") The court's categorizations of

the plaintiffs' post-judgment billing entries follow.

1. Time Spent Reviewing and Responding to Defendants' Annual Reports

Plaintiffs seek compensation for time counsel spent reviewing,

discussing and commenting on the defendants' four annual reports.19

Based on the court's review of the billing statements, Attorney

Shaw spent 109 hours and Attorney Laski spent 42 hours for a total

of 151 hours on this work. Plaintiffs assert that this work was

"useful and of a type necessary to protect the full scope of relief

afforded by the Settlement Agreement." (Doc. #781 at 31.)

Defendants argue that plaintiffs should not be compensated for

this legal work because it was unnecessary. (Doc. #773 at 33.)

They contend that the Agreement did not call for plaintiffs'

counsel to submit comments and it was the responsibility of the EAP

to respond to the defendants' annual reports. (Doc. #773 at 33.)

Defendants are correct that the Agreement did not require the

plaintiffs to give written responses to the defendants' reports.

That, however, is not the standard under Delaware Valley by which

to adjudge the compensability of the plaintiffs' post-judgment

work. Plaintiffs' responses to the defendants' annual reports

19 See doc. #781, ex. D (plaintiffs' comments).

identified plaintiffs' concerns with defendants' performance so

that issues could be discussed and resolved through the EAP.

Plaintiffs say that the EAP encouraged them to provide comments to

the annual reports and that the EAP found such responses useful.

They offer as support the affidavit of a member of the EAP. (Doc.

#781, Ex. E, Sailor Aff. ¶5, ¶¶8-9.)

I agree that this work satisfies the Delaware Valley standard.

Upon careful review of the billing statements, however, the time

plaintiffs' counsel spent reviewing the reports and drafting

responses is excessive. The time billed should be reduced by 30%

to 105.7 hours and Attorney Shaw should be awarded 76.3 hours and

Attorney Laski 29.4 hours.

2. Preparation for and Attendance at EAP meetings

Plaintiffs seek compensation for time counsel spent preparing

for and attending the EAP meetings. Attorney Shaw attended all the

EAP meetings. Attorney Laski attended nine EAP meetings.20 By the

court's calculation, Attorney Shaw spent 206 hours and Attorney

Laski spent 57.2 hours for a total of 263.2 hours preparing for and

attending EAP meetings. In addition, Attorney Shaw spent 13.7

hours21 and Attorney Laski 24 hours traveling to attend the

20 Billing statements indicate that Attorney Laski attended meetings on 12/22/02, 10/22/04, 1/12/05, 5/11/05, 9/23/05, 5/11/06, 2/28/07, 3/1/07 and 5/11/07. 21 Attorney Shaw did not bill for all his travel to EAP meetings.

meetings.22

Defendants argue that this time is not compensable because the

EAP meetings "ha[d] no role for the attorneys" and the meetings

were attended by a representative of one of the plaintiff

organizations. (Doc. #773 at 42; Ex. 1, Thompson Aff. ¶4.) In the

alternative, defendants contend a reduction is warranted because

Attorneys Shaw and Laski should not both have attended the EAP

meetings. (Doc. #773 at 42.)

Again, plaintiffs argue that time counsel spent participating

in EAP meetings was work that meets the Delaware Valley standard of

being "useful and of a type ordinarily necessary to protect the

full scope of relief afforded by the Settlement Agreement." (Doc.

#781 at 31.) They further contend that it was appropriate for

Attorney Laski, in addition to Attorney Shaw, to attend some of the

meetings so that he might "inform himself and properly represent

his clients." (Doc. #781 at 55.)

The court agrees that counsel's preparation for and attendance

at the EAP meetings is compensable pursuant to Delaware Valley.

Moreover, in light of the complex nature of this case, attendance

by both attorneys at a portion of the EAP meetings was not

unreasonable. See New York State Ass'n for Retarded Children, Inc.

v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983) (decisions regarding

22 Although he attended nine EAP meetings, Attorney Laski made one trip to attend the 2/28/07 and 3/1/07 meetings so that his billing statement reflects eight roundtrips.

use of multiple attorneys "are best made by the district court on

the basis of its own assessment of what is appropriate for the

scope and complexity of the particular litigation.") However, upon

careful review of plaintiffs' attorneys' time entries, the time

billed is excessive. As a result, the time billed should be

reduced by 20% to 210.6 hours.

Time counsel spent traveling to the EAP meetings (37.7 hours)

should be billed at half of counsel's hourly rate. See, e.g.,

Barfield v. New York City Health & Hospitals Corn., 537 F.3d 132,

139 (2d Cir. 2008) (affirming district court's determination that

"travel time by counsel should be compensated at half-rate, in

accordance with established court custom"); Douyon v. New York

Medical Health Care. P.C., 49 F. Supp. 3d 328, 351 (E.D.N.Y. 2014)

(describing a 50% billing rate for travel time as "governing law"

in this circuit); Brig v. Port Auth. Trans Hudson, No.

12CV5371(RPP), 2014 WL 1318345, at *4 (S.D.N.Y. Mar. 28, 2014)

("Although it is within the Court's discretion to compensate

counsel for travel time at full hourly rates, courts in the Second

Circuit customarily reimburse attorneys for travel time at fifty

percent of their hourly rates."); Mister Sprout, Inc. v. Williams

Farms Produce Sales, Inc., 881 F. Supp. 2d 482, 490-91 (S.D.N.Y.

2012) (explaining that "courts in the Second Circuit often reduce

attorneys' fees for travel time by 50 percent"); Vereen v. Siegler,

No. 3:07CV1898(HBF), 2011 WL 2457534, at *4 (D. Conn. June 16,

2011) ("travel time is customarily billed at half-rate in the

Second Circuit"). Attorney Shaw should be awarded 164.8 hours and

4.4 hours for travel and Attorney Laski should be awarded 45.8

hours and 14.4 hours for travel for a total award of 229.4 hours.

3. Class List and Related Motions

Plaintiffs seek compensation for time spent obtaining

experts, engaging in motion practice and working on notices sent to

the class by defendants. The court has identified 60.9 hours

expended by Attorney Shaw and 10.6 hours by Attorney Laski for a

total of 71.5 hours associated with this category.

The Settlement Agreement required defendants to "prepare and

distribute . . . a list of public school students in Connecticut

who on or after December 1, 1999 carry the label of either mental

retardation or intellectual disability and who are eligible for

special education; such list shall be updated periodically."

(Settlement Agreement § I.2.) The Settlement Agreement gave

plaintiffs "a right to collect data relating to the students

identified [in the list] and to challenge the adequacy of that

list." (Settlement Agreement § I.3.) Defendants agreed to

"cooperate with the plaintiffs to gain access to data and files

relating to class members, to the extent allowed by state and

federal statute, for all purposes relating to the enforcement and

implementation of th[e] Agreement." (Settlement Agreement § I.3.)

Beginning with their first report in September 2002, the

defendants provided the plaintiffs with a paper list using a 32

character identifier for each student. (Doc. #469, Defs' First

Annual Report, Appx G; doc. #495, Ex. D, Defs' Ltr to Pl.)

Defendants did not identify students by name because they believed

that such disclosure would run afoul of the Family and Educational

Right to Privacy Act ("FERPA"), 20 U.S.C. § 1232g. (Doc. #495, Ex.

E.)

The defendants did not have a computer system in place capable

of tracking a student across the years. (Defs' Evidentiary Hrg Ex.

2 at 4; doc. #773 at 35.) The report provided an annual snap shot.

(Doc. #722, tr. at 57.) It showed "exit changes" (graduated,

moved, deceased, aged out, dropped out, no longer labeled) but did

not show information regarding reclassifications, that is, students

with intellectual disabilities who were reclassified to a different

disability category. (Doc. #495, Ex. E.)

Plaintiffs argued that the lists were inadequate to monitor

the defendants' performance and did not comply with the

requirements of the Settlement Agreement. They expressed concern

that students had been removed from the class through

reclassification and that they lacked data concerning these

students. As relief, plaintiffs sought a list that identified

students by name. (Doc. #495, Ex. D, Pls' Ltr to Defs; Ex. F.)

Defendants maintained that the list they provided satisfied

their obligations under the Agreement. In September 2004,

defendants informed plaintiffs that, based on their communications

with the United States Department of Education, personally

identifiable information could only be shared after notice to

parents or guardians. (Doc. #504 at 8.) Defendants asked

plaintiffs if they wanted the defendants to "proceed with the

required notification and related requirements of FERPA that would

allow compliance with [plaintiffs'] request." (Doc. #504 at 9.)

Three months later, in January 2005, the plaintiffs filed a lengthy

"Motion for Order to Enforce Settlement Agreement." (Doc. #495.)

They claimed that defendants failed "to provide and update a list

of class members, including, at a minimum, their names, address,

birth dates, disabilities, school district and school of

attendance" in violation of Section I.2 of the Settlement

Agreement. (Doc. #496 at 14.)

The parties subsequently agreed that defendants would provide

plaintiff with the requested information by providing class members

with notice and the opportunity to opt out of the disclosure, a

procedure defendants previously proposed. In light of the

agreement, the court denied the plaintiffs' motion. (Doc. ##505,

506.)

Students' personally identifiable information was helpful to

plaintiffs' efforts to monitor compliance with the Settlement

Agreement and plaintiffs' legal fees in this regard are compensable

under Delaware Valley. However, upon careful review, the time

spent on this category is unreasonable under the circumstances. As

a result, the time spent on this category (71.5) should be reduced

by 20% to 57.2 hours. Attorney Shaw should be awarded 48.7 hours

and Attorney Laski 8.5 hours.

4. Development of a Longitudinal Database

Plaintiffs seek compensation for time counsel expended and

fees incurred in engaging experts to assess defendants' data and to

create a longitudinal database. The court has identified 13.6

hours expended by Attorney Shaw and 3.2 hours expended by Attorney

Laski associated with this effort.

In 2006, plaintiffs retained Dr. Hammer, Ph. D. ("Hammer"), an

expert on statistical and data analysis, and Adam Robison

("Robison"), a computer and data analysis expert. (Doc. #758 at

32; doc. #533 at 1.) Plaintiffs asked Hammer and Robison to review

defendants' computer data and develop "a database so that ID

[intellectually disabled] students could be tracked from year to

year." (Doc. #758 at 33.) Plaintiffs' experts completed the

project in the fall of 2006. (Doc. #758, Ex. K at 61.) Plaintiffs

paid Robison $16,000 and Hammer $28,050.23 (Doc. #758-1 at 50 n.7).

Plaintiffs served defendants with discovery requests regarding

23 Plaintiffs also engaged another computer expert, Dr. Conroy, but subsequently withdrew their request for his fee. (Doc. #781 at 72.) They did not withdraw the time their attorneys spent consulting with him.

the defendants' computer data, including data on students who had

"exited the class." (Doc. #533 at 3.) Plaintiffs subsequently

filed a motion to compel in August 2007. (Doc. ##532-2, 538.)

Defendants responded, among other things, that they were in the

process of developing a FERPA compliant longitudinal database that

would "provide the plaintiffs with what they need to answer their

questions regarding how many class members have changed disability

category and/or been permanently exited." (Doc. #541 at 4.) In

December 2007, defendants disclosed their longitudinal database

that allowed tracking of students from year to year and included

at 25.) The court denied the plaintiffs' motion to compel without

prejudice.24 (Doc. #547.)

Plaintiffs argue that their retention of Robison and Hammer

was necessary because until December 2007, defendants did not have

the capacity to track reclassified intellectually disabled [ID]

students or "explain why large number of ID students were floating

in and out of the State's database." (Doc. #758 at 50 n.7.) They

say that the time counsel spent "trying to force the defendants to

provide data on the reclassified students should be compensated

because the Settlement Agreement required the Defendants to supply

24 Plaintiffs do not contend that defendants' longitudinal database was flawed. (Doc. #781 at 37 n.16.)

such data throughout the life of the Agreement."25 (Doc. #781 at

37 n. 16.)

Defendants respond that the activities of plaintiffs' counsel

in creating the database, including the retention of experts, fall

outside the parameters of Delaware Valley. They point out that the

parties knew at the time they executed the Settlement Agreement

that the defendants did not possess a computerized system able to

track students over time. (Doc. #773 at 35.) Moreover, defendants

contend, the Agreement did not obligate them to do so. They

maintain that the list they regularly provided complied with their

contractual obligations. In any event, defendants notified

plaintiffs that they were in the "process of initiating a system to

retroactively track Class members" which they subsequently provided

in 2007. (Doc. #773, Ex. 7.)

Under the circumstances of this case, the court cannot

conclude that engaging experts to evaluate defendants' data and

create a database constitutes work that is "useful and of a type

ordinarily necessary to secure the final result obtained from the

litigation." Delaware Valley, 478 U.S. at 561. Plaintiffs should

25 In their motion alleging substantial noncompliance with the settlement agreement, plaintiffs claimed that the defendants failed (1) to provide them with a list of students with Intellectual Disability ("ID") who were reclassified to another disability category and (2) to address high rates of reclassification that had the effect of moving students out of the "ID" category. (Doc. #580 at 5.) The district court was not persuaded that these alleged failures constituted substantial noncompliance. (Doc. #706 at 55- 56.)

not be awarded the expenses and attorney time (16.8 hours by the

court's calculation) associated with this effort.

5. 2007 Site Visits

Plaintiffs next seek compensation for time counsel expended

and fees incurred in an expert review of 120 class members. The

court has identified 126.2 hours and expert fees of $90,773.29

associated with this category. (Doc. #758 at 30 n.8.) Attorney

Shaw billed 94.3 hours and Attorney Laski 31.9 hours.

In January 2007 (while the EAP was still operational)

plaintiffs filed a motion seeking, among other things, an order

permitting them to conduct an expert review of a sample of 120

class members. (Doc. #519.) As grounds, plaintiffs said that "the

central goals of the Settlement Agreement are not being implemented

satisfactorily and that [defendants] are not taking the steps

necessary to ensure that class members are afforded the opportunity

to participate in regular classes with adequate supplementary aides

and services and modifications to the general education

curriculum." (Doc. #519 at 3.) The defendants did not object to

the motion. After a conference with the court, plaintiffs withdrew

their motion and the parties agreed to a "stipulated discovery

order" permitting plaintiffs to conduct their requested site

visits. (Doc. #527.)

In May 2007, plaintiffs launched teams of experts26 to visit

Connecticut classrooms. (Doc. #758 at 50 n.8.) The site visits

included a review of the individual schedules of each of the 120

students selected, observations of each student, and interviews

with teachers and other staff. (Doc. #633 at 6 ¶18.)

Plaintiffs argue that they should be compensated for time

their attorneys spent associated with this endeavor. They claim

their attorneys' efforts were necessary because "the Defendants

discontinued the EAP despite the EAP's strong concerns about the

lack of teaching staff with training on how to educate ID students

and the lack of a strong State response to opposition of local

school districts to the P.J. Settlement Agreement."27 (Doc. #758

at 50 n.8.) Defendants hotly disagree and assert that "it is hard

to think of a more excessive and unnecessary expenditure." (Doc.

#773 at 49.) They contend that the visits were not post-judgment

monitoring aimed at seeking defendants' compliance because the

plaintiffs did not share the results of the visits with them until

the evidentiary hearing in 2010. Defendants observe that the court

26 The experts plaintiffs engaged were: Roberta Schnoor, Ph.D., Wanda Blanchette, Ph.D., Deanna Adams, Amanda Fenlon, Ed.D., Nicole DeClouette, Alison Ford, Ph.D., Jan Nisbet, Ph.D., Cheryl Jorgensen, Ph.D., Mary Schuh, Ph.D., Michael McSheehan, Patricia Rogan, Ph.D., Mary Jo Dare, Mary Fisher, Mary Held, Beverly Evans, Ph.D., Linda Lengyel, Ph.D., Linda Lockett, Ed.D., Lisa Jo Vernon- Doston, Ph.D., and Denise Morelli. (Doc. #758 at 50 n.8.) 27 Several time entries associated with the site visits pre-date the termination of the EAP.

ultimately declined to rely on the results.28

The court does not doubt that plaintiffs undertook this

initiative with the best intentions. That said, the compensability

of this ambitious undertaking must be viewed through the lens of

Delaware Valley. On this record, the court cannot conclude that

plaintiffs have demonstrated that counsel's activities were "useful

and of a type ordinarily necessary to secure the final result

obtained from the litigation." Delaware Valley, 478 U.S. at 561.

Therefore, the time (126.2 hours) and expenses ($90,773.29)

associated with the site visits should be disallowed.

6. Discovery and Motion Practice

Plaintiffs seek compensation for time counsel expended on

discovery and motion practice. By the court's calculation,

Attorney Shaw expended 138.2 hours and Attorney Laski 9.5 hours for

a total of 147.7 hours. Defendants argue that plaintiffs should

not be compensated for this time because plaintiffs' discovery

requests and motions were "rooted in . . . a faulty understanding

of what the Agreement required" and were unsuccessful. (Doc. #773

at 35-36.)

Defendants provided plaintiffs with extensive data in their

annual reports and at the EAP meetings. In addition, defendants

28 In its ruling, the court concluded that because plaintiffs' experts did not "apply the same criteria in the same manner," they "were unable to make statistically significant findings." (Doc. #706 at 41.)

provided plaintiffs with student files and various computer

databases containing student information. (Defs' Evidentiary Hrg

Ex. 2 at 8.) They also provided responses to numerous requests by

plaintiffs. (Id., Appendix A.)

Plaintiffs served defendants with discovery requests seeking,

among other things, information about the class and defendants'

data. (Doc. #532; doc. #566 Ex. B.) In July 2008, the plaintiffs

filed an 82-page motion to compel defendants to comply with

plaintiffs' discovery requests. (Doc. #566.) As relief,

plaintiffs sought a court order ordering defendants to make their

employees and contractors available for interviews with the

plaintiffs' experts, comply with notices of deposition and

interviews, and comply with the plaintiffs' request to conduct an

expert review of class attrition. Plaintiffs argued that they were

entitled to such discovery by virtue of "the text of the Settlement

Agreement" as well as the "inherent power of the Court." (Doc.

#566 at 7.) I denied the motion, determining that the Agreement

limited the plaintiffs' right to discovery to "existing data" in

the final three years of the Agreement.29 (Doc. #581.) Plaintiffs

appealed the ruling to Judge Chatigny, who affirmed.30 (Doc. ##579,

582, 593.)

29 The court encouraged some limited informal discovery. 30 Plaintiffs subsequently appealed to the Second Circuit, which concluded that the "district court properly denied [plaintiffs'] motion to compel discovery." P.J., 550 F. App'x at 24.

I cannot conclude that plaintiffs have met their burden of

demonstrating that this work falls within the parameters of

Delaware Valley. Therefore, the time (147.7 hours) should be

disallowed.

7. Communication

Plaintiffs seek compensation for time counsel spent reviewing

data and on conferences and communications with clients, their

experts, opposing counsel, one another, and the court. The court

has identified 111.2 hours expended by Attorney Shaw and 33.1 hours

by Attorney Laski for a total of 144.3 hours. This category of

work is compensable. However, in light of the fact that some of

these communications concerned activities that have been determined

to be beyond the scope of Delaware Valley (such as motion practice,

the development of the database, and the site visits), the time

billed should be reduced by 30%. Attorney Shaw should be awarded

77.8 hours and Attorney Laski 23.2 hours for a total of 101 hours.

8. Motions for Substantial Noncompliance and Evidentiary Hearing

Plaintiffs seek compensation for time counsel spent on the

motions alleging substantial noncompliance and the evidentiary

hearing. By the court's calculation, plaintiffs' counsel billed

859 hours in conjunction with these efforts. Attorney Shaw

expended 609.5 hours and Attorney Laski expended 249.5 hours.

In April 2008, plaintiffs filed a "Motion for Orders to Remedy

Substantial Noncompliance with the Settlement Agreement." (Doc.

#549.) As relief, the motion sought, among other things,

discovery, an order requiring the defendants to implement the five

goals of the Settlement Agreement, the appointment of the EAP as

Special Master, extension of time of the court's jurisdiction over

the settlement agreement, and an award of attorneys' fees and

costs. The court denied the motion without prejudice to renewal

after the court ruled on the plaintiffs' pending discovery motion.

(Doc. ##566, 571.) In April 2009, the plaintiffs renewed their

motion. (Doc. #580.) In June 2010, the district court conducted

an evidentiary hearing. (Doc. ##664-667, 669-674, 677.)

Defendants argue that time plaintiffs' attorneys expended on

the motions for substantial noncompliance and the evidentiary

hearing is not compensable because the motions were unsuccessful

and "had no effect on the defendants' compliance with the Agreement

or benefit [to] the class in any way." (Doc. #773 at 37.)

Plaintiffs reply that defendants' objections should be

overruled because defendants have not properly quantified the

number of hours at issue and as a result, plaintiffs "cannot

respond fully to the defendants' argument if they cannot determine

what defendants want disallowed." (Doc. #781 at 43.) Plaintiffs

also assert that the outcome of their efforts is not determinative

because "the time spent on the evidentiary hearing was necessary to

protect the rights of the class members and secure the full scope

of relief secured through the Settlement Agreement." (Doc. #781 at

44.) They claim that the hearing resulted in disclosure of

report by the EAP. (Doc. #781 at 46.)

The court is not persuaded that this category of work was

"useful and of a type ordinarily necessary to secure the final

result obtained from the litigation" pursuant to Delaware Valley,

478 U.S. at 561. Accordingly, plaintiffs should not be awarded

fees for time their attorneys spent time on these activities.

9. Fundraising

Plaintiffs seek compensation for time counsel spent "raising

funds." (Doc. #781 at 54.) They claim that they "should be

compensated for this work as it was necessary to ensure that

Plaintiffs' counsel were able to engage in effective monitoring

during the remedial phase of this lawsuit." (Doc. #781 at 55.)

The court has identified 16.9 hours expended by Attorney Shaw with

this category.31 Defendants object and argue that such time is not

compensable. (Doc. #773 at 41.) The court agrees. Fundraising is

outside the parameters of compensable post-judgment monitoring

pursuant to Delaware Valley, 478 U.S. at 561.

10. Vague Entries

Defendants argue that certain of plaintiffs' entries should

31 The plaintiffs list 12.4 hours in their reply brief. (Doc. #781 at 54.) The court identified an additional 4.5 hours. See entries dated 7/31/07 (.8), 8/1/07 (.6), 1/31/08 (1.5), 7/29/09 (.3) and 10/26/09 (1.3).

not be reimbursed because they are vague. "Fees should not be

awarded for time entries when the corresponding description of work

performed is vague and therefore not susceptible to a determination

of whether the time [billed] was reasonably expended." Perez v.

Lasership, Inc., No. 3:15MC00031(CSH), 2015 WL 8750965, at *7 (D.

Conn. Dec. 14, 2015). Upon review of the entries identified by

defendants, one entry - that of March 15, 2005 for 1.0 hour by

Attorney Shaw - should be disallowed due to vagueness.

E. Litigating Attorneys' Fees

Plaintiffs seek compensation for 456.3 hours counsel spent

"litigating attorneys' fees." (Doc. #793, Ex. A, C.) Attorney

Shaw billed 385.5 hours and Attorney Laski billed 70.8 hours.

(Id.)

Plaintiffs' initial fee application sought fees and costs for

the period of November 29, 2000 through September 24, 2004.32 (Doc.

#482.) The motion was denied without prejudice after oral

argument. (Doc. #530.) Plaintiffs' subsequent motion sought fees

from November 29, 2000 to July 2010.33 (Doc. #684.) That

application was followed by a flurry of motions to "supplement" as

32 In that motion, plaintiffs sought compensation for 518.1 hours at $375/hour for a total of $194,287.50 plus costs of $723.65. (Doc. #482.) 33 Plaintiffs sought compensation for 2202 hours and an "enhanced" rate of $537.11 for time spent from November 29, 2000 to October 1, 2004. In total, plaintiffs requested fees of $906,010.85 and costs of $197,181.15.

well as a motion for prejudgment interest. (Doc. ##685, 687, 701,

702.) After the court issued its recommended ruling, plaintiffs'

counsel expended time opposing defendants' (1) objection to the

court's recommended ruling and (2) request for an interlocutory

appeal. The plaintiffs subsequently filed the present fee

application, which is an updated version of their 2010 fee

application. Two motions to "supplement" followed. (Doc. ##786,

793.)

Time expended in litigating a fee petition is reimbursable.

See, e.g., Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999) ("a

reasonable fee should be awarded for time reasonably spent in

preparing and defending an application for § 1988 fees"). The

factual and legal issues underlying the plaintiffs' fee entitlement

are complicated. That said, the time billed by plaintiffs' counsel

- the equivalent of 57 work days - is excessive and unreasonable.

A "district court may deduct a reasonable percentage of the hours

claimed as a practical means of trimming fat from a fee

application." Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d

Cir. 1998). To adjust for unnecessary and inefficient work, the

time claimed should be reduced by 60% to 182.5 hours. Attorney

Shaw should be awarded 154.2 hours and Attorney Laski 28.3 hours.

F. Filing/Pursuing Writ of Mandamus

Plaintiffs seek compensation for 36.6 hours counsel spent on

a writ of mandamus. Attorney Shaw billed 31.2 hours and Attorney

Laski billed 5.4 hours. (Doc. #793, Ex. A, C.)

After the evidentiary hearing, the court denied the

plaintiffs' motion alleging substantial noncompliance in an

endorsement order and indicated that a written memorandum of

decision would follow. (Doc. #686.) Plaintiffs thereafter filed

a writ in the Second Circuit seeking an order compelling the

district court to issue its written opinion. (Doc. #758 at 43.)

This work is compensable, plaintiffs say, because it was "necessary

to secure the benefits of the Settlement to the class."34 (Doc.

#758 at 18.)

Defendants object and argue that this category of work falls

outside the parameters of Delaware Valley. The court agrees.

G. Paralegal Time

Plaintiffs seek compensation for 21.6 hours billed by Attorney

Shaw's paralegal. (Doc. #858, Ex. A, Attachment 1; doc. #781, Ex.

B.) This time was spent coordinating the 2007 site visits, which

the court has concluded is not compensable under Delaware Valley.

As a result, plaintiffs should not compensated for this work.

A table reflecting the hours awarded is attached as an

appendix.

34 As it happened, the district court issued its opinion one business day after the writ was filed. The Second Circuit denied the writ as moot. In re P.J., No. 12-3091 (2d Cir. Nov. 20, 2012).

VI. Reasonableness of the Hourly Rate

Plaintiffs seek an hourly rate of $500 for Attorney Shaw and

Attorney Laski.35 (Doc. #793 at 3.) Attorney Shaw attests to forty

years' experience in complex federal civil rights cases brought on

behalf of persons with disabilities. (Doc. #758, Ex. A, Shaw Aff.

¶2.) Attorney Laski avers that he has more than forty years'

experience representing individuals with disabilities with a focus

on class representation and complex civil litigation. (Doc. #758,

Ex. B, Laski Aff.) Plaintiffs assert that the "current prevailing

market rate for an attorney with over forty years of experience for

working on complex litigation is $500 per hour." (Doc. #793 at 4;

Ex. A, Shaw Decl.) In addition to the affidavits of Attorneys Shaw

and Laski, they offer the affidavit of Attorney John Yavis.

Attorney Yavis, a partner at Murtha Cullina from 1966 through 2003

and now of counsel, states that he is "familiar with rates charged

by Connecticut law firms" and opines that "the prevailing rate

currently charged by Connecticut attorneys in complex civil

litigation for an attorney with more than forty years experience is

within the range of $500 to $550 per hour." (Doc. #793, Yavis

Decl. ¶12.) Plaintiffs also submit the affidavit of Attorney Mark

Carta, who has more than thirty years of experience. He avers that

35 Plaintiffs requested an hourly rate of $475 in their motion. (Doc. #758.) In their subsequent "Second Motion to Supplement," they requested that the court "use the current rate of $500 per hour." (Doc. #793 at 3.)

based on his experience, the prevailing rate for complex civil

litigation for an attorney with more than thirty years experience

is $475 - $550. (Doc. #758, Ex. X, Carta Aff. ¶14.)

In response, defendants agree that Attorneys Shaw and Laski

should receive the same hourly rate. They do not agree, however,

that they should be awarded current rates. Defendants assert that

the "prevailing hourly rate awarded [both] counsel should be from

2010" when plaintiffs filed their second motion for attorneys'

fees. (Doc. #773 at 12.) They appear to argue that an increase in

counsel's hourly rate during the pendency of a fee application

should not inure to plaintiffs' benefit. (Doc. #773 at 14.)

According to defendants, plaintiffs' counsel should be awarded

$375, which they contend was the prevailing rate in 2010 for IDEA

cases. (Doc. #773 at 14.) In support of their argument that $375

is reasonable, they cite M.K. ex rel. K. v. Sergi, 578 F. Supp. 2d

425, 427 (D. Conn. 2008), an IDEA case in which Attorney Shaw

requested $400 and was awarded $37536 by Judge Garfinkel and P. ex

rel. Mr. P. v. Newington Bd. of Educ., 512 F. Supp. 2d 89 (D. Conn.

2007), an IDEA case in which Attorney Shaw requested $375 and was

awarded $315 per hour by Judge Thompson.37

36 In that case, Attorney Shaw offered the affidavit of Attorney Yavis, who averred that the prevailing rates charged by Connecticut law firms in complex civil litigation for attorneys with more than thirty years of experience ranged from $400 to $450 per hour. 37 In this case, the court noted that Attorney Shaw submitted an affidavit from a partner in a law firm who participated in

"[I]n order to provide adequate compensation where the

services were performed many years before the award is made, the

rates used by the court . . . should be 'current rather than

historic hourly rates.'" Gierlinger v. Gleason, 160 F.3d 858, 882

(2d Cir. 1998).38 See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748,

764 (2d Cir. 1998) ("[C]urrent rates, rather than historical rates,

should be applied in order to compensate for the delay in

payment[.]"). Mindful of this authority, current rates should be

used to compute the fee award.

The rates used in calculating the lodestar are the market

rates "prevailing in the community for similar services by lawyers

of reasonably comparable skill, experience, and reputation." Blum

v. Stenson, 465 U.S. 886, 896 n. 11 (1984). "[D]etermination of a

reasonable hourly rate 'contemplates a case-specific inquiry into

the prevailing market rates for counsel of similar experience and

skill to the fee applicant's counsel,' an inquiry that may 'include

judicial notice of the rates awarded in prior cases and the court's

own familiarity with the rates prevailing in the district.'"

Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 59 (2d Cir.

setting billing rates in his firm and who reviewed market analysis and attorney billing rates. The affiant opined that the prevailing rate charged for complex civil litigation for an attorney with 30 years experience is within the range of $385 to $415. 38 The Second Circuit noted an exception to this general rule when the delay was due in whole or in substantial part to the fault of the party seeking fees. Gierlinger, 160 F.3d at 882. That situation is not present here.

2012)(quoting Farbotki v. Clinton Cnty, 433 F.3d 204, 209 (2d Cir.

2005)). See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551

(2010) ("the lodestar looks to 'the prevailing market rates in the

relevant community'"); Cohen v. W. Haven Bd. of Police Comm'rs, 638

F.2d 496, 506 (2d Cir. 1980) ("The fees that would be charged for

similar work by attorneys of like skill in the area [is] the

starting point for determination of a reasonable fee award."); 20

U.S.C. § 1415(i)(3)(C) (under the IDEA, a reasonable hourly rate

"shall be based on rates prevailing in the community in which the

action or proceeding arose for the kind and quality of services

furnished").

Plaintiffs' requested rate is unreasonable. Within the past

year, after an examination of attorneys' fees awards in this

district, Judge Arterton determined "that $450/hour is on the high

end and is generally reserved for particularly distinguished

attorneys successfully taking on difficult or novel cases."

Crawford v. City of New London, No. 3:11CV1371(JBA), 2015 WL

1125491, at *3 (D. Conn. Mar. 12, 2015)(citing cases) (awarding

civil rights litigators with more than 30 years experience $410).

Plaintiffs point to no cases in which they have been awarded the

rate they request. To the contrary, courts in this district have

awarded Attorney Shaw a range of fees. See Messier v. Southbury

Training School, No. 3:94CV1706(VAB), 2015 WL 1439288, at *1 (D.

Conn. Mar. 27, 2015) (civil rights class action in which Attorneys

Shaw and Laski were awarded $450 by Judge Burns)39; Doe v. Darien

Bd. of Educ., No. 3:11CV1581(JBA), 2015 WL 8770003, at *6 (D. Conn.

Dec. 14, 2015) (civil rights case in which Attorney Shaw was

awarded $350 by Judge Arterton). Based on the court's familiarity

with the prevailing rates in the community, with the subject matter

and the amount and quality of work performed by the attorneys in

this case, the court finds $450 per hour is "in line with those

prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience, and reputation." Blum v.

Stenson, 465 U.S. 886, 895 n. 11 (1984). See Doe v. Darien Bd. of

Educ., No. 3:11CV1581(JBA), 2015 WL 8770003, at *1 (D. Conn. Dec.

14, 2015) (awarding $450/hour to civil rights attorney with 35

years experience); Jaeger v. Cellco P'ship, No. 3:11CV1948(SRU),

2015 WL 1867661, at *1 (D. Conn. Apr. 23, 2015) (awarding $425/hour

to law firm partner who was cochair of the firm's litigation

section and had twenty years experience).

VII. Expert Fees

Plaintiffs seek reimbursement of $134,823.29 in expert fees

pursuant to the Rehabilitation Act, 29 U.S.C. § 794a.40 (Doc. #758

39 Attorney Shaw filed a motion for reconsideration of the court's ruling on the grounds that he should have been awarded an hourly rate of $500. See doc. #1205 in 3:94CV1706(VAB). That motion is pending. 40 Conceding that expert fees are not recoverable under the IDEA, see Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 301 (2006), the plaintiffs assert their claim for expert fees pursuant to the Rehabilitation Act. Defendants argue that the

at 1, 50.) Plaintiffs utilized the services of numerous experts

in their development of a longitudinal database, conducting the

2007 site visits and litigating the 2010 evidentiary hearing.

(Doc. #793, Attachment 2.) The court has already addressed the

compensability of these activities. As set forth herein,

plaintiffs should not be awarded these fees because the work for

which these experts were retained is not compensable.

VIII. Costs and Litigation Expenses

Attorney Shaw seeks costs of $63,118.57 in post-judgment

"costs and litigation expenses." (Doc. #793, Attachment 2.)

Defendants argue that the court should not award Attorney

Shaw: (1) costs associated with the 2007 site visits including

experts' flights, hotels and expenses and costs of photocopying and

mailings to experts; (2) disputed balances of $6852.92 charged by

three of plaintiffs' experts for time they billed for collecting

documents and preparing for their depositions taken in conjunction

plaintiffs' claim is foreclosed because the case was settled under IDEA. The Rehabilitation Act, defendants contend, does not appear in either the Settlement Agreement or the plaintiffs' request for relief in their amended complaint. Nor was it raised during the evidentiary hearing. In the alternative, defendants argue that expert fees are not recoverable under 29 U.S.C. § 794a(b), the provision plaintiffs cite in their motion. Plaintiffs respond that they invoked the Rehabilitation Act in the complaint and that the Settlement Agreement encompassed all their federal law claims, which would encompass those under the Rehabilitation Act. They also clarify that their request is predicated on § 794a(a). (Doc. #781 at 62-63.) The court need not address these arguments in light of its conclusion that the work for which these experts were retained falls outside the scope of Delaware Valley.

with the evidentiary hearing41; (3) expert fees and expenses related

to the evidentiary hearing; (4) reimbursement of plaintiffs' share

of the final 2010 EAP report commissioned by the court for use in

the evidentiary hearing;42 (5) the fee for filing the plaintiffs'

writ of mandamus in the Second Circuit and (6) the cost of

transcripts of the evidentiary hearing.43 (Doc. #773 at 50-51.)

The court agrees. These costs are associated with the site visits

and plaintiffs' motion for substantial noncompliance, which the

court has concluded are not compensable. In addition, the expert

fee of Michael Blezard, CPA, whose opinion plaintiffs proffered in

support of their request for prejudgment interest, is not

reimbursable because as set forth herein, prejudgment interest is

not warranted in this case. After these adjustments, plaintiffs

should be awarded Attorney Shaw's costs of $2149.27.44

Attorney Laski seeks costs of $3110.80 for mileage and tolls.

41 Defendants paid these witnesses for their depositions. This amount reflects balances that the experts charged but defendants disputed. 42 Judge Chatigny appointed the EAP to prepare a report for use in the evidentiary hearing. The court ordered the parties to "share the EAP's fees and costs equally." (Doc. #634.) 43 The defendants, as the prevailing party on the motion for substantial noncompliance, were awarded costs of these same transcripts. (Doc. #799.) 44 This figure reflects costs incurred on 5/31/02, 8/26/02, 11/11/02, 12/18/03, 1/30/04, 9/30/04, 12/6/04, 12/7/04, 7/26/05, and 1/19/06 and includes the costs of the fairness transcript, travel, postage and mailings.

Attorney Laski's costs should be reduced to $1838.20 to reflect

only those trips (26) that involved work within the penumbra of

Delaware Valley.45

IX. Prejudgment Interest

Plaintiffs request an award of prejudgment interest from July

27, 2010 at "the long-term (20 year) U.S. Treasury Constant

Maturities rate, compounded annually." (Doc. #758 at 50; Ex. W,

Blezard Aff.) Plaintiffs argue that even if the court uses current

rates in awarding attorneys' fees, prejudgment interest is

warranted to make them "whole for the $201,052.66 in costs and

litigation expenses" they have incurred. (Doc. #793 at 74.)

"District Courts have broad discretion to grant prejudgment

interest based on considerations of fairness rather than a rigid

theory of compensation." S.E.C. v. Contorinis, 743 F.3d 296,

207-08 (2d Cir. 2014) (internal quotation marks omitted). Courts

consider "(i) the need to fully compensate the wronged party for

actual damages suffered, (ii) considerations of fairness and the

relative equities of the award, (iii) the remedial purpose of the

statute involved, and/or (iv) such other general principles as are

deemed relevant by the court." Wickham Contracting Co. v. Local

Union No. 3, Int'l Broth. of Elec. Workers, AFL-CIO, 955 F.2d 831,

833-34 (2d Cir. 1992).

45 The 26 trips were made on 12/6/02, 12/22/03, 9/9/04, 10/22/04, 1/12/05, 3/11/05, 5/11/05, 9/23/05, 1/10/06, 5/11/06, 2/28/07, 5/14/07 and 1/28/08.

Having considered the factors underlying such an award,

including the fact that most of the costs and expenses for which

plaintiffs seek an award of prejudgment interest have been

disallowed, the court concludes that prejudgment interest is not

warranted under the circumstances of this case.

X. Conclusion

For these reasons, plaintiffs' motions (##758, 786, 793)

should be granted in part. Plaintiffs should be awarded 713.7

hours at $450/hour for a total of $321,165 in fees and $3987.57 in

costs.

Category Total Hours Awarded Negotiating Pre-Settlement Claim 11/29/00 - 3/20/02 Notifying Class Members of Settlement 3/21/02 - 5/22/02 Empaneling Expert Advisory Panel 37.9 hours 6/4/02 - 8/14/02 Monitoring Implementation of Settlement 493.3 hours Agreement 8/15/02 - 4/22/13 Litigating Attorneys' Fees 182.5 hours Filing/Pursuing Writ of Mandamus Total 713.7 hours

Attorney Shaw is awarded 549.9 hours and Attorney Laski 163.8

hours as follows:

Category Hours awarded to Hours awarded to Attorney Shaw Attorney Laski

Empaneling Expert 23.7 14.2 Advisory Panel 6/4/02 - 8/14/02 Monitoring Implementation 372 121.3 of Settlement Agreement 8/15/02 - 4/22/13 Litigating Attorneys' 154.2 28.3 Fees Total 549.9 163.8

Attorney Shaw is awarded $247,455 in fees (549.9 hours @

$450/hour) plus $2,149.27 in costs for a total award of

$249,604.27. Attorney Laski is awarded $73,710 in fees (163.8

hours @ $450/hour) plus $1838.30 in costs for a total award of

$75,548.30.

Any party may seek the district court's review of this

recommendation. See 28 U.S.C. § 636(b) (written objections to

proposed findings and recommendations must be filed within fourteen

days after service of same); Fed. R. Civ. P. 6(a), 6(d) & 72; Rule

72.2 of the Local Rules for Magistrate Judges; Thomas v. Arn, 474

U.S. 140, 155 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.

1992) (failure to file timely objections to Magistrate Judge's

recommended ruling waives further review of the ruling).

Dated this 31st day of March, 2016 at Hartford, Connecticut.

_________/s/___________________ Donna F. Martinez United States Magistrate Judge

P.J., et al. v. Education, et al.