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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION




JENNIFER GRATZ and PATRICK
HAMACHER,for themselves and all others
similarly situated

          Plaintiffs

v.

LEE BOLLINGER, ET AL.

          Defendants,

          and,

EBONY PATTERSON, ET AL.

          Intervening Defendants.
______________________________________/






     Case No. 97-75231

     HON. PATRICK J. DUGGAN

OPINION

On October 14, 1997, Plaintiffs filed this class-action lawsuit challenging the
admissions policy of the University of Michigan’s (“University”) College of Literature,
Science, and the Arts (“LSA”). Presently before the Court is Plaintiffs’ motion for an
award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

Factual and Procedural Background

Plaintiffs, both of whom are Caucasian, brought this lawsuit alleging that Defendants
violated Title VI of the Civil Rights Act of 1964, codified at 42 U.S.C.

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§ 2000d, the Equal Protection Clause of the Fourteenth Amendment, and 42 U.S.C. § 1981,
by considering race as a factor in the LSA’s admissions policies. Plaintiffs sought, inter
alia, compensatory and punitive damages for past violations, declaratory relief finding that
Defendants violated their rights to nondiscriminatory treatment, an injunction prohibiting
Defendants from continuing to discriminate on the basis of race in violation of the
Fourteenth Amendment, and an order requiring the LSA to offer Plaintiff Hamacher
admission as a transfer student.

A group of African-American and Latino students who applied for, or intended to
apply for, admission to the University, as well as the Citizens for Affirmative Action’s
Preservation, a Michigan nonprofit organization, sought to intervene pursuant to Rule 24 of
the Federal Rules of Civil Procedure. The Intervenors claimed the resolution of the case
directly threatened the access of qualified African-American and Latino students to public
higher education and that the University would not adequately represent their interest in
educational opportunity. This Court denied the request to intervene, but the Sixth Circuit
reversed. See Gratz v. Bollinger, 188 F.3d 394 (1999).

On December 23, 1998, this Court issued an Order certifying a class and bifurcating
the proceedings into a liability and damages phase. The Court certified a class consisting
of “those individuals who applied for and were not granted admission to the [LSA] for all
academic years from 1995 forward and who are members of those racial or ethnic groups,
including Caucasian, that [D]efendants treated less favorably on the basis of race in
considering their application for admission.” See Gratz v. Bollinger, 122 F. Supp. 2d 811,

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814 n.2 (E.D. Mich. 2000). During the liability phase, the Court would determine “whether
Defendants’ use of race as a factor in admissions decisions violates the Equal Protection
Clause of the Fourteenth Amendment to the Constitution.” See id. Plaintiffs’ request for
injunctive and declaratory relief also would be considered during the liability phase of the
proceedings. See id.

The parties subsequently filed cross-motions for summary judgment with respect to
liability. Plaintiffs asserted that Defendants’ use of race as a factor in admissions to the
LSA violated Title VI, § 1981, and the Equal Protection Clause of the Fourteenth
Amendment. Relying on Justice Powell’s opinion in Regents of University of California
v. Bakke,
438 U.S. 265, 98 S. Ct. 2733 (1978), Defendants responded that the
consideration of race as a factor in admissions decisions might serve a compelling
government interest in some cases and the LSA had such an interest in the educational
benefits that result from having a racially and ethnically diverse student body. Defendants
further argued that the LSA’s admissions policy was narrowly tailored to serve that interest.
The Intervenors argued that the LSA had a compelling interest in remedying the
University’s past and current discrimination against minorities.

This Court concluded that Defendants presented “solid evidence” that a racially and
ethnically diverse student body produces significant educational benefits such that
achieving such a student body constitutes a compelling governmental interest. Gratz, 122
F. Supp. 2d at 822. However, the Court further concluded that the admissions policy
Defendants utilized from 1995 through 1999 was not narrowly tailored to achieve that

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interest. Id. at 831-33. The Court reached a different result with respect to the policy
Defendants began using in 1999. Id. at 831. Because the Court found that the new policy
did not utilize rigid quotas, seek to admit a predetermined number of minority students, or
establish a two-track system for applicants, the Court held that it was narrowly tailored to
achieve the University’s compelling interest in a diverse student body. Id. at 828-31.

Based on these findings, the Court granted Plaintiffs’ motion for summary judgment
with respect to the admissions policy in existence from 1995 through 1998, and granted
Defendants’ motion with respect to the admissions programs from 1999 forward. Id. at
836. Because the Court ruled that the current admissions policy was constitutional, it
denied Plaintiffs’ request for injunctive relief. Id. The Court also issued an opinion and
order rejecting the Intervenors’ arguments, concluding that the Intervenors “failed to
present any evidence that the discrimination alleged by them, or the continuing effects of
such discrimination, was the real justification for the LSA’s race-conscious admissions
programs.” Gratz, 135 F. Supp. 2d 790, 795 (E.D. Mich. 2001).

The Court subsequently certified two questions for interlocutory appeal to the Sixth
Circuit pursuant to 28 U.S.C. § 1292(b). The Sixth Circuit permitted the appeal and granted
Plaintiffs’ subsequent motion for initial hearing en banc. The appellate court scheduled
oral argument for December 6, 2001, the same day as the hearing in Grutter v. Bollinger
a class-action lawsuit challenging the University’s law school admissions policies.

On May 14, 2002, the Sixth Circuit issued its decision in Grutter. Grutter, 288
F.3d 732 (6th Cir. 2002). In its opinion, the court indicated that it would separately render

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its decision in Gratz in a “forthcoming opinion.” Id. at 735 n.2 On October 1, 2002,
because the Sixth Circuit had not issued an opinion in this case and a petition for writ of
certiori from the Supreme Court already was pending in Grutter, Plaintiffs petitioned the
Supreme Court for a writ of certiori before judgment. The Supreme Court granted the
petition on December 2, 2002, with respect to the following question:

Does the University of Michigan’s use of racial preferences in
undergraduate admissions violate the Equal Protection Clause
of the Fourteenth Amendment, Title VI of the Civil Rights Act
of 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981?

Gratz, 537 U.S. 1044, 123 S. Ct. 602 (2002). The Supreme Court heard separate
arguments for Gratz and Grutter on April 1, 2003.

On June 23, 2003, the Supreme Court issued opinions in both cases. Gratz v.
Bollinger, 539 U.S. 244, 123 S. Ct. 2411 (2003); Grutter v. Bollinger, 539 U.S. 982, 124
S. Ct. 35 (2003). As the Supreme Court set forth in its opinion in this case, Plaintiffs
raised two arguments in their challenge to this Court’s opinion granting summary judgment
to Defendants. The Supreme Court described Plaintiffs’ first argument:

[Plaintiffs] argue[d], first and foremost, that the University’s
use of race in undergraduate admissions violates the
Fourteenth Amendment. Specifically, they contend that this
Court has only sanctioned the use of racial classifications to
remedy identified discrimination, a justification on which
[Defendants] have never relied . . . [Plaintiffs] further argue that
diversity as a basis for employing racial preferences is simply
too open-ended, ill-defined, and indefinite to constitute a
compelling interest capable of supporting narrowly-tailored
means.

Gratz, 539 U.S. at 268, 123 S. Ct. at 2426. Alternatively, Plaintiffs argued that even if the

5



University’s interest in diversity can constitute a compelling state interest, use of race in
its admissions policy was not narrowly tailored to achieve such an interest. Id.

The Supreme Court rejected Plaintiffs’ first argument, referring to its holding in
Grutter that a university’s interest in a racially and ethnically diverse student body is a
compelling interest that may justify its consideration of race in the admissions process. Id.
at 268-69, 123 S. Ct. at 2426-27 (citing Grutter, 539 U.S. at 328-331, 123 S. Ct. at 2338-
41). The Supreme Court agreed with Plaintiffs, however, that the LSA’s admissions policy
was not narrowly tailored to achieve that compelling interest and therefore violates the
Equal Protection Clause of the Fourteenth Amendment, Title VI, and 42 U.S.C. § 1981. Id.
at 269-75, 123 S. Ct. at 2427-30. The Supreme Court therefore reversed this Court’s
decision granting Defendants’ summary judgment motion with respect to liability and
remanded the case for proceedings consistent with its opinion.

In a footnote to its decision, the Supreme Court upheld this Court’s rejection of the
Intervenors’ justification for the LSA’s race-conscious admissions programs. Id. at 257
n.9, 123 S. Ct. at 2420 n.9. As the Supreme Court stated, the Intervenors “failed to present
any evidence that the discrimination alleged by them, or the continuing effects of such
discrimination, was the real justification [for the admissions policy].” Id. (quoting Gratz,
135 F. Supp. 2d at 795). The Court further stated, “. . . to the extent respondent-intervenors
reassert this justification, a justification the University has never asserted throughout the
course of this litigation, we affirm the District Court’s disposition of the issue.” Id.
(emphasis in original).

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On June 30, 2004, Plaintiffs filed the pending motion seeking an interim award of
attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. Plaintiffs seek an award in the
amount of $2,071,352.84. These fees and costs represent expenditures from the Fall of
1997 through the filing of their motion. During that period, Plaintiffs were represented by
at least sixteen attorneys from three different law firms.

Plaintiffs were represented by the following lawyers from the private law firm of
Maslon, Edelman, Borman & Brand, LLP (“Maslon”): partners Kirk O. Kolbo, David F.
Herr, R. Lawrence Purdy, and Michael C. McCarthy; associates Kai H. Richter, Jason A.
Lien, and Dawn C. Van Tassel; and former associate Peter Carlton. Maslon is located in
Minneapolis, Minnesota. The Maslon attorneys seek $1,398,120.25 in attorneys’ fees and
$3,947.76 in costs. Plaintiffs also were represented by the following lawyers from the
Center for Individual Rights (“CIR”), a public interest law firm located in Washington,
D.C.: Michael E. Rosman, Hans Bader, Michael McDonald, James Wright, Michael Troy,
Ralph Casale, and Silvio Krvaric. A number of law students working for CIR also assisted
in the litigation, including Robert Worst, Chris Roach, Andrew Stein, and Gene Healy. CIR
seeks $254,230.75 in attorneys’ fees and $330,363 in costs.1 CIR’s costs include
expenses incurred by CIR and monies CIR reimbursed to other attorneys, primarily the
Maslon attorneys, for their expenses.

___________________
1       The amount requested by CIR includes $5,667.19 in fees for one of Plaintiffs’ local
counsel, Patrick Wright. The costs sought by CIR are based on $273,836.08 in expenses
and $56,526.92 in interest on those expenses.

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Plaintiffs also were represented by local counsel in the Eastern District of
Michigan. Patrick Wright served as Plaintiffs’ local counsel through early 1998.
Beginning in October 1997, Kerry L. Morgan, of counsel of the eight lawyer firm of
Pentiuk, Couvreur & Kobiljak in Wyandotte, Michigan, served as Plaintiffs’ local counsel.
Mr. Morgan seeks attorney’s fees and costs in the amount of $84,691.08.
Defendants oppose Plaintiffs’ motion for an award of attorneys’ fees and costs.
First, Defendants contend that Plaintiffs are not “prevailing parties” pursuant to § 1988.
Alternatively, Defendants argue that the fees and costs Plaintiffs seek are not reasonable.

Defendants raise a number of specific challenges to the requested fees and costs. First,
Defendants argue that Plaintiffs’ fees should be reduced to reflect their limited success—
i.e. failing to eliminate race as a legitimate and lawful consideration in college admissions
policies. Second, Defendants claim Plaintiffs’ billing records are too vague for the Court
to judge their reasonableness. Third, Defendants argue that certain categories of the fees
Plaintiffs seek are not recoverable, such as the following: (a) fees related to the
Intervenors; (b) fees related to public and media relations efforts; (c) fees representing a
duplication of effort by the multiple lawyers and law firms representing Plaintiffs; and (d)
fees related to travel. Finally, Defendants contend that the hourly rates requested by
Plaintiffs far exceed the rate prevailing in the forum market.

Applicable Law and Analysis

Attorneys’ Fees in General and the Meaning of the Term “Prevailing Party”

In the United States, parties ordinarily are required to bear their own attorneys’ fees.

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See, e.g., Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health and Human
Res., 532 U.S. 598, 602, 121 S. Ct. 1835, 1839 (2001)(citations omitted). Under this
rule— the “American Rule”— the prevailing party is not entitled to collect fees and costs
from the opposing party absent explicit statutory authority. Id. Congress, however, has
authorized the award of attorneys’ fees and costs to the prevailing party in numerous
statutes, including the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988.
Section 1988 provides in relevant part:

In any action or proceeding to enforce a provision of sections
1981, 1981a, 1982, 1983, 1985, and 1986 of this title . . . the
court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of the
costs . . .

42 U.S.C. § 1988.

As the Supreme Court has stated, the threshold determination of whether a plaintiff
is a “prevailing party” has been framed in various ways. See Hensley v. Eckerhart, 461 U.S.
424, 433, 103 S. Ct. 1933, 1939 (1983). After reviewing the legislative history of § 1988,
the Supreme Court has found that “Congress intended to permit the interim award of
counsel fees only when a party has prevailed on the merits of at least some of his claims.”
Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S. Ct. 1987, 1989 (1980)(per curiam)
(emphasis added). As the Hensley Court explained, “[a] typical formulations is that
‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they
succeed on any significant issue in litigation which achieves some of the benefit the parties
sought in bringing suit.’ ” Hensley, 461 at 433, 103 S. Ct. at 1939 (quoting Nadeau v.

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Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The Supreme Court has held that “at a
minimum, to be considered a prevailing party within the meaning of § 1988, the plaintiff
must be able to point to a resolution of the dispute which changes the legal relationship
between itself and the defendant.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 792, 109 S. Ct. 1486, 1493 (1989)(citing Hewitt v. Helms, 482 U.S. 755,
760-61, 107 S. Ct. 2672, 2675-76 (1987)).

Defendants argue that Plaintiffs are not prevailing parties because they have not
secured an enforceable judgment against Defendants that directly benefits any Plaintiff. In
other words, Defendants argue that while the LSA’s admissions policies may have been
declared unconstitutional by the Supreme Court, “[n]either Gratz, nor Hamacher, nor any
class member has shown that they were not admitted because of the manner in which the
University considered race under its stricken undergraduate policies but would have been
admitted if the University had considered race in a manner approved by Grutter.” See
Defs.’ Resp. at 4-5 (emphasis in original). This argument, however, ignores one of
Congress’ primary reasons for enacting § 1988.

Congress specifically enacted § 1988 to encourage “private attorney generals” to
further the interests of the general public. As the Supreme Court has explained:

. . . [W]e reject the notion that a civil rights action for damages
constitutes nothing more than a private tort suit benefitting
only the individual plaintiffs whose rights were violated.
Unlike most private tort litigants, a civil rights plaintiff seeks
to vindicate important civil and constitutional rights that cannot
be valued solely in monetary terms. See Carey v. Piphus, 435
U.S. 247, 266, 98 S. Ct. 1042, 1053-55, 55 L.Ed.2d 252

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(1978). And, Congress has determined that “the public as a
whole has an interest in the vindication of the rights conferred
by the statutes enumerated in § 1988, over and above the value
of a civil rights remedy to a particular plaintiff . . .” Hensley,
461 U.S., at 444, n.4, 103 S. Ct. at 1945, n.4 (BRENNAN, J.,
concurring in part and dissenting in part). Regardless of the
form of relief he actually obtains, a successful civil rights
plaintiff often secures important social benefits that are not
reflected in nominal or relatively small damages awards.

City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S. Ct 2686, 2694 (1986). As the
Rivera Court further explained, “. . . a plaintiff who obtains relief in a civil rights lawsuit
‘does so not for himself alone but also as a ‘private attorney general,’ vindicating a policy
that Congress considered of the highest importance.’ ” Id. at 575, 106 S. Ct. at 2694
(quoting Newman v. Piggie Park Enter., Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966
(1968)).

Plaintiffs’ civil rights action resulted in a judicial pronouncement that the LSA’s
admissions policies were unconstitutional and therefore, as a result of their lawsuit,
Defendants were required to alter those policies. Regardless of whether this change ever
will benefit Gratz, Hamacher, or another specific class member, Plaintiffs achieved a result
they pursued for the benefit of the public in general. Thus the Court concludes that
Plaintiffs are “prevailing parties” as the Supreme Court has defined that term.

“Reasonable” Attorneys’ Fees

Section 1988 only allows a prevailing party to recover its “reasonable” attorneys’
fees. 42 U.S.C. § 1988. As the legislative history to § 1988 provides, “a reasonable
attorney’s fee award ‘is one that is adequate to attract competent counsel but . . . [that does]

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not produce windfalls to attorneys.’ ” Blum v. Stevenson, 465 U.S. 886, 893, 897, 104 S.
Ct. 1541, 1546, 1548 (1984)(quoting S. Rep. No. 94-10011, p.6 (1976)); see also
Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000)(citations omitted).

The starting point for calculating a reasonable attorneys’ fees award “should be the
determination of the fee applicant’s “lodestar,” which is the proven number of hours
reasonably expended on the case by an attorney, multiplied by his [or her] court-ascertained
reasonable hourly rate.” Adcock-Ladd, 227 F.3d at 349 (citing Hensley, 461 U.S. at 433,
103 S. Ct at 1939). “The party seeking an award of fees should submit evidence supporting
the hours worked and rates claimed. Where the documentation of hours is inadequate, the
district court may reduce the award accordingly.” Hensley, 461 U.S. at 433, 103 S. Ct. at
1939. The Supreme Court has instructed district courts to exclude fees that were not
“reasonably expended,” such as fees due to overstaffing or redundancy of work. Id. at 434,
103 S. Ct. at 1939.

Once the district court determines the fee applicant’s lodestar, the court must
consider other factors relevant to the reasonableness of any fee award.2 One important

___________________
2       The factors identified by the Supreme Court are: (1) the time and labor required by
a given case; (2) the novelty and difficulty of the questions presented; (3) the skill needed
to perform the legal service properly; (4) the preclusion of employment by the attorney due
to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circumstances; (8) the amount involved
and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the
‘undesirability’ of the case; (11) the nature and length of the professional relationship with
the client; and (12) awards in similar cases. Hensley, 461 U.S. at 430 n.3, 103 S. Ct. at
1937 n.3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th
Cir. 1974)).

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factor is the “results obtained.” Hensley, 461 U.S. at 434, 103 S. Ct. at 1940. As the
Supreme Court has explained, there are two situations where the results obtained may
affect the fee award:

In some cases a plaintiff may present in one lawsuit distinctly
different claims for relief that are based on different facts and
legal theories. In such a suit . . . counsel’s work on one claim
will be unrelated to his work on another claim. Accordingly,
work on an unsuccessful claim cannot be deemed to have been
“expended in pursuit of the ultimate result achieved.” . . . The
congressional intent to limit awards to prevailing parties
requires that these unrelated claims be treated as if they had
been raised in separate lawsuits, and therefore no fee may be
awarded for services on the unsuccessful claim.

Id. at 434-35, 103 S. Ct. at 1940. The Hensley Court expressed doubt as to whether such
claims will arise with frequency; rather, the Court explained, most civil rights cases will
present only a single claim or multiple claims involving a common core of facts or based
on related legal theories. In this second situation:

Much of counsel’s time will be devoted generally to the
litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis. Such a lawsuit cannot be
viewed as a series of discrete claims. Instead, the district court
should focus on the significance of the overall relief obtained
by the plaintiff in relation to the hours reasonably expended on
the litigation.

Id. at 435, 103 S. Ct. at 1940. The Court explained that in this situation, if the plaintiff has
obtained excellent results, his or her attorney should recover a fully compensatory fee. Id.
“If, on the other hand, a plaintiff has achieved only partial or limited success, the product of
hours reasonably expended on the litigation as a whole times a reasonable hourly rate may

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be an excessive amount.” Id. at 436, 103 S. Ct at 1941. As the Hensley Court instructed, it
is within the district court’s discretion to attempt to identify specific hours that should be
eliminated or to simply reduce the award to account for the limited success. Id. at 436-37,
103 S. Ct. at 1941.

Limited Success

Defendants ask the Court to reduce any fee award because Plaintiffs only achieved
partial or limited success. Specifically, Defendants argue that Plaintiffs’ primary purpose
in bringing their lawsuit was to invalidate the consideration of an applicant’s race in
college admissions decisions. As Defendants point out, this Court and the Supreme Court
rejected Plaintiffs’ argument that race is never a relevant and legitimate consideration in
the admissions process.

While Plaintiffs now attempt to downplay the primacy of their argument that the use
of racial preferences in undergraduate admissions always violates the Constitution, the
Court agrees with Defendants that Plaintiffs’ main goal in this litigation was to prevail on
this issue. In fact, the Supreme Court specifically noted that this was Plaintiffs’ “first and
foremost” argument. Gratz, 539 U.S. at 268, 123 S. Ct. at 2426. The Court therefore finds
it appropriate to reduce Plaintiffs’ requested award to reflect that they failed to prevail on
this issue.

The Court cannot possibly determine from Plaintiffs’ billing statements the amount
of hours expended on this issue as opposed to the “narrowly tailored” issue on which they
prevailed. The Court therefore opts to reduce the hours expended by a percentage amount.

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In deciding what percentage amount is appropriate, the Court finds it significant that
Plaintiffs’ lawsuit took on historical significance primarily because they attempted to
eliminate race as a permissible factor in undergraduate admissions. Thus the Court
concludes that Plaintiffs’ failure to prevail on this issue warrants a fifty percent (50%)
reduction in the hours expended on this litigation.

Vague Billing Entries and “Block Billing”

Defendants also seek a reduction in the number of hours expended by Plaintiffs’
attorneys due to the vagueness of the attorneys’ billing records. Defendants argue that
vague and general entries— such as, “telephone conference,” “office conference,”
“research,” and “review article”— make it impossible for the Court to evaluate the
reasonableness of the hours expended on the litigation. This Court agrees with respect to
the billing entries submitted by the Maslon attorneys.

As the Court of Appeals for the District of Columbia Circuit has stated: “To
establish that he is entitled to reimbursement for particular items of attorneys’ fees . . . the
fee petitioner must provide the court with the attorneys’ billing records that describe the
work performed in sufficient detail to establish that the work is reasonably related [to the
litigation].” In re Samuel R. Pierce, Jr., 190 F.3d 586, 593-94 (D.C. Cir. 1999)(citations
omitted)(emphasis added). “[I]nadequate documentation ‘makes it impossible for the court
to verify the reasonableness of the billings, either as to the necessity of the particular
service or the amount of time expended on a given task.’ ” Id. (quoting In re Sealed Case,
890 F.2d 451, 455 (D.C. Cir. 1989) (per curiam)). Following the D.C. Circuit’s general

15



practice, the In re Pierce court reduced the hours billed by the plaintiff’s attorneys by ten
percent as a result of the attorney’s vague entries. The Eighth Circuit has upheld a district
court’s reduction of the hours billed by a prevailing party’s attorney by twenty percent
(20%) for vague billing records. See H.J. Inc. v. Flygt Corp., 925 F.2d 257, 260 (8th Cir.
1991).

Maslon’s billing records contain numerous imprecise or incomplete entries. See
Kolbo Aff. Ex. N. As Defendants point out, there are extensive records containing such
limited descriptions as “office conference” (e.g. 12/2/97; 12/10/97; 12/15/97; 2/16/98;
2/18/98; 2/20/98; 3/10/98; 3/30/98); “telephone conference” (e.g. 10/12/97; 12/2/97);
“review article” or “review correspondence” (e.g. 10/14/97; 12/3/97; 12/4/97; 12/13/97;
12/29/97; 2/16/98; 2/20/98; 3/7/98). Without further detail as to what was discussed
and/or reviewed, the Court cannot determine whether the task was necessary for the
litigation, whether the time expended on the task was reasonable, and whether the task was
duplicated by other attorneys representing Plaintiffs.

Additionally, many of the Maslon attorneys’ billing entries contain “block billing.”
For example, Mr. Kolbo’s entry for 12/16/97 describes 10 hours of work to: “prepare for
and attend pretrial with judge; meet with co-counsel; calls to CIR.” Mr. Herr’s entry for
4/8/98 describes 10 hours of work for: “conference with Kirk Kolbo; meet with local
counsel; review discovery responses and court notes; attend pretrial conference;
conferences with Kirk Kolbo.” As a result of such “block billing,” the Court is not able to
determine the number of hours expended on each discrete task. Thus the Court cannot

16



determine whether the number of hours billed are reasonable.

The Court believes that a ten percent (10%) reduction in Maslon’s requested fees is
appropriate due to its attorneys’ block billing and vague entries.

Fees Related to the Intervenors

Defendants object to a fee award that includes the hours Plaintiffs’ attorneys
expended litigating against the Intervenors. The Supreme Court has held that a prevailing
party in a civil rights lawsuit cannot recover attorneys’ fees from an intervenor who has not
violated the law, unless the intervention is “frivolous, unreasonable or without foundation.”
Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 761, 109 S. Ct. 2732, 2737
(1989). The Court, however, has not decided whether a prevailing party can recover such
fees and costs from the defendant whose illegal conduct precipitated the intervention.

At least two circuit courts have interpreted Zipes as implying that the prevailing
plaintiffs should bear the risk of incurring intervention-related costs as a result of filing a
lawsuit and therefore have extended Zipes to a prevailing parties’ request for interventionrelated
attorneys’ fees from the losing defendant. See, e.g., Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 176-78 (4th Cir. 1994); Bigby v. City of Chicago, 927 F.2d 1426,
1428-29 (7th Cir. 1991). In a case similar to the one now before this Court, the Fifth
Circuit upheld the district court’s refusal to award intervention-related fees and costs from
the defendant’s pocket because the plaintiffs “did not ‘prevail’ on this issue vis-a-vís [the
defendant].” Hopwood v. Texas, 236 F.3d 256, 280 (5th Cir. 2000). As the court
explained, “[the defendant] remained neutral on the intervention issue. In addition, the

17



potential intervenors made clear . . . that the purpose of their intervention was to raise
arguments and defenses that [the defendant] itself had no interest in raising.” Id. The Fifth
Circuit, however, declined to decide whether a prevailing party always should be barred
from shifting to the defendant the costs associated with defending against an intervention.
Id.

As in Hopwood, Defendants in the pending matter remained neutral on the
intervention issue and the purpose of the intervention was to raise arguments and defenses
that Defendants expressed no interest in raising. The Intervenors argued that the use of race
as a factor in LSA’s admissions process was necessary to remedy past discrimination by the
University— a justification the Supreme Court noted in its opinion the University has never
asserted during this litigation. Because the Intervenors asserted a completely different
defense to the University’s admissions process, the Court also finds it likely that the
intervention delayed the progress of the litigation. At the very least, the intervention
resulted in attorneys’ fees and costs that Plaintiffs otherwise would not have incurred. The
Court therefore concludes that Plaintiffs are not entitled to attorneys’ fees and costs
related to the Intervenors.

The Court has conducted a thorough review of the billing records submitted by the
Maslon attorneys and finds the following fees and costs related to the intervention and
therefore excludable:

Mr. Richter = 54.8 hours
Mr. Herr = 68.3 hours
Mr. McCarthy = 42.2 hours
Mr. Purdy = 31.15 hours

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Mr. Kolbo = 177.5 hours
Mr. Carlton = .5 hours
Ms. Dunbar = 2.5 hours
Ms. Engelstad = 2.4 hours

As to CIR:

Mr. Rosman = 38.3 hours
Mr. Bader = 7.3 hours
Mr. McDonald = .8 hours

Fees Related to Public and Media Relations

Defendants ask the Court to exclude as unreasonable any attorneys’ fees related to
public and media relations efforts. Plaintiffs argue that such fees are reasonable for two
reasons. First, Plaintiffs argue that in a highly publicized case such as this, it is important
for attorneys to advise their clients in communicating with the media. Second, Plaintiffs
argue that in a class action lawsuit involving a large class such as this, the media offers a
means of communicating with class members about the progress and status of the case.

Some courts have found fees related to press relations reimburseable to the extent
the hours expended “were reasonably necessary for the proper prosecution of the lawsuit.”
See, e.g., Keyes v. Sch. Dist. No. 1, Denver Colorado, 439 F. Supp. 393, 408 (D. Colo.
1977). In Keyes, a desegregation case involving the Denver, Colorado public school
system, the court noted the difficulty counsel had in reaching some segments of the class,
specifically members of the Hispano population. Id. at 408. The court found that the news
media provided a valuable conduit for information between counsel and those class
members. Id. The court therefore held as reasonably necessary “only those discussions
with the press that contributed to communication with the class in a meaningful way and
were necessary for the prosecution of the suit.” Id. (emphasis in original). Following

19



Keyes, the District Court for the District of Utah awarded attorneys’ fees related to media
relations efforts in a civil rights lawsuit before it, but only to the extent that such
compensation was for “meaningful communications necessary to the prosecution of the
suit.” David C v. Leavitt, 900 F. Supp. 1547, 1557-58 (D. Utah 1995).

As the Leavitt court recognized, however, a number of courts (including the District
Court of Utah in a prior opinion) have found time spent communicating with the press and
other news media noncompensable. Id. at 1557 (citing Utah Int’l, Inc. v. Dep’t of Interior,
643 F. Supp. 810, 831 n.41 (D. Utah 1986); Jane L. v. Bangerter, 828 F. Supp. 1544, 1550
(D. Utah 1993); and Ramos v. Lamm, 632 F. Supp. 376, 381 (D. Colo 1985)); see also
Greater Los Angeles Council on Deafness v. Cmty. Television of S. Cal., 813 F.2d 217,
221 (9th Cir. 1987)(affirming denial of fees for time spent on publicity and lobbying);
Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986)(affirming denial of fees for time
“spent on arrangements for lectures or publications about the case”). The Third Circuit has
held that compensation for work related to “publicity efforts” is not compensable, noting
that “[t]he fact that private lawyers may perform tasks other than legal services for their
clients, with their consent and approval, does not justify foisting off such expenses on an
adversary under the guise of reimburseable fees.” Halderman v. Pennhurst State Sch. &
Hosp., 49 F.3d 939, 942 (3d. Cir. 1995). The Halderman court relied on the Fourth
Circuit’s reasoning in Rum Creek Coal Sales, that “[t]he legitimate goals of litigation are
almost always attained in the courtroom, not in the media.” Id. (quoting Rum Creek Coal
Sales, 31 F.3d at 176). This Court is persuaded by the reasoning of the Third and Fourth

20



Circuits and concludes that Plaintiffs should not be compensated for the hours their
attorneys expended on media and public relations efforts. See also Hopwood v. Texas,
999 F. Supp. 872, 912-13 (W.D. Tex. 1998)(denying requests for fees related to public and
media relations), aff’d 236 F.3d 256, 280-81 (5th Cir. 2000).     But even if the Court
were to follow Keyes, the Court finds that Plaintiffs have not met their burden of showing
that the hours billed by their attorneys for media and public relations efforts contributed in
a meaningful way to the litigation. If the purpose of counsel’s efforts was to prevent
Plaintiffs from publicly saying something detrimental to their case or image, the Court
cannot conclude that such advice was “necessary to the prosecution of the suit.” Counsel
simply could have advised their clients to avoid speaking to the media altogether. The fact
that a plaintiff and/or his or her attorney decide to speak with the media does not mean the
opposing party should bear the costs of those efforts. Moreover, the Court finds it more
likely in this case that the media and public relations efforts reflect an effort by both sides
to sway public opinion in this extremely socially and politically divisive matter.

The Court finds the following hours related to media and public relations efforts
excludable for the Maslon firm:

Mr. Herr = 22.9 hours
Mr. Purdy = 20.5 hours
Mr. Kolbo = 19.0 hours
Ms. Dunbar = 3 hours

Additionally, the Court will deduct $2,318.19 in expenses related to Mr. Purdy’s trip to
New York in November 2000, to meet with reporters from the Wall Street Journal and New

21



York Times. As to CIR, the Court finds 6.5 hours billed by Mr. Rosman excludable.3

Duplication of Efforts

If the prevailing party has not already done so, the Supreme Court has advised
district courts to exclude from a fee request hours that are redundant, for example due to
overstaffing. Hensley, 461 U.S. at 434, 103 S. Ct. at 1939. In the present matter, Plaintiffs
were represented by at least sixteen lawyers in three different cities. While it appears that
the Maslon and CIR attorneys have deleted some duplicative billing (for example,
participation by more than one attorney at some hearings and depositions), a significant
number of billing entries show multiple attorneys charging for the same tasks or for tasks
only made necessary because of the large number of attorneys involved in the litigation.
For example, many entries relate to telephone conferences and meetings between the
attorneys and to preparation of notes, e-mails, and memoranda for the sole purpose of
keeping Plaintiffs’ other attorneys apprised of progress in the case. In fact, a significant
portion of the work performed by local counsel in this case represents unnecessary,
redundant services.4 “While there is nothing inherently unreasonable about making an
award for time spent by two or more lawyers engaged in the same representation, counsel

___________________
3       Defendant notes additional entries in 1997 by CIR attorneys related to media relations,
however, these entries refer to meetings and/or discussions regarding the “need to avoid pre-litigation
publicity.” See, e.g. Rosman Aff. Ex. E (9/9/97 and 9/10/97). While a significant amount of additional
time was expended by CIR attorneys on media and public relations matters, CIR already deducted
those hours.

4       Because the Court finds a large portion of local counsels’ hours excludable on this basis, it will
discuss those hours in a separate section.

22



bears the burden of showing his or her specific contribution.” Childress v. Williams, No.
97-72335 at 9 (E.D. Mich. July 12, 1999)(citing Am. Civil Liberties Union of Georgia v.
Barnes, 168 F.3d 423, 432 (11th Cir. 1999)). In this case, as in Childress, there often is
no indication of the discrete contribution that each lawyer made when more than one lawyer
engaged in the same task.

CIR enlisted the Maslon firm to litigate this action as Plaintiffs’ primary attorneys.
The Court therefore concludes that a reduction of the Maslon attorneys’ hours only is
appropriate where attorneys within the firm engaged in the same tasks and there is no
indication of the specific contribution the various lawyers made with respect to that task
beyond simply reviewing another attorney’s work. The Court believes that a five percent
(5%) reduction in the Maslon attorneys’ hours fairly represents such duplicative services.

CIR, on the other hand, describes one of its primary responsibilities as finding
talented co-counsel to take the leading role in litigating Plaintiffs’ claims. Once CIR
accomplished this task, the Court sees no reason why CIR’s attorneys expended countless
hours reviewing Maslon’s work, reviewing documents submitted in the litigation that a
Maslon attorney also reviewed and billed, and discussing the course of the litigation with
the Maslon attorneys. The Court therefore Court concludes that a ten percent (10%)
reduction in CIR’s requested fees is appropriate due to duplicative efforts.

Fees Related to Travel

Some courts completely disallow compensation for an attorney’s travel time. Other
courts allow compensation for such time, although some of those courts reduce the

23



attorney’s hourly rate for such time. The Court finds it equitable in this case, particularly
because Plaintiffs were represented by two out-of-state law firms, to reimburse Plaintiffs’
attorneys for most of their travel time but at fifty percent (50%) of their reasonable hourly
rate.5 As discussed below, the Court finds that some of the trips made by the attorneys in
this case were unnecessary and it therefore will exclude the travel hours related to those
trips completely.

Most of the hours billed for travel relate to the attorneys’ trips to Detroit, Michigan
for court hearings, meetings with Plaintiffs, and depositions. Additionally, Plaintiffs’
attorneys traveled to San Diego and Sacramento, California and College Station, Texas to
complete depositions. The Court finds the following number of hours for the Maslon
attorneys attributable to such trips:

Mr. Kolbo = 46.6 hours
Mr. Herr = 42.2 hours
Mr. Purdy = 12.5 hours

The Court will award Plaintiffs fees for 50% of these billing hours.

The Maslon attorneys also made several trips to Washington, D.C. to meet with
attorneys from CIR. Even if it was necessary for the attorneys from both firms to confer
during the progress of the litigation, the Court does not believe that it was necessary for

___________________
5       Generally Plaintiffs’ attorneys reported their travel time in block billing entries. The
Court therefore has determined the time for a direct flight to the attorneys’ destination and
reduced that amount of time from the total hours billed in the block entry. While this
approach does not account for travel time to and from the airport or in the airport terminal, the Court
believes this to be a reasonable approach and probably the only possible approach other than reducing
the time billed entirely.

24



those meetings to take place in person. Moreover, putting aside the issue of whether this
litigation required representation by so many well-qualified attorneys from two out-ofstate
firms, the Court sees no reason why Defendants should bear the additional costs
incurred because those firms are located in different and distant cities. The Court also
finds unreasonable the multiple trips some of the Maslon attorneys made to Washington,
D.C. for moot court arguments prior to their argument before the Supreme Court.6
Therefore, the Court will exclude the following hours billed by the attorneys for travel
between Minneapolis and Washington, D.C. for such purposes:

Mr. Herr = 36.65 hours
Mr. Purdy = 12.2 hours
Mr. Kolbo = 7.0 hours

The Court also will exclude the following costs related to those trips and, for the reasons
set forth earlier, travel expenses related to the Intervenors:

Date Charged Description Amount
8/19/98 Mr. Kolbo in D.C. 8/15-18 $438.56
1/15/99 Mr. Kolbo & Mr. Herr re: 1/22/99
meeting with CIR
$1,126
5/27/99 Mr. Herr & Mr. Kolbo re:
intervenors’ appeal
$1,181

___________________
6       Mr. Herr and Mr. Purdy made three trips to Washington, D.C. from mid-April to late March
2003 to engage in “mock arguments” prior to the oral argument before the Supreme Court (2/26/03;
3/12/03; and 3/23/03). While the Court recognizes the value of such mock arguments, the Court finds
no reason why the Maslon attorneys could not have conducted some of those arguments in
Minneapolis. The Court sees no reason why the Maslon attorneys could not locate well-qualified
attorneys in their community capable of helping them prepare. The Court therefore will exclude the
costs related to the first and second trips.

25



4/12/00 Mr. Kolbo & Mr. Purdy in D.C.
4/17-18 to meet with CIR
$2,741.90
7/13/00 Mr. Kolbo to D.C. 7/12-13 $397.45
4/26/01 Mr. Kolbo in D.C. to meet at CIR
with Dept. of Justice
$805.57
10/9/01 Mr. Kolbo & Mr. Herr in D.C. to
prepare for 6th Cir. oral argument
$1,338.68
10/15/01 Mr. Kolbo’s & Mr. Purdy’s hotel
expenses for D.C. trip
$1,197.85
12/31/01 Mr. Herr’s misc. charges for D.C.
trip
$56.14
3/11/03 Mr. Kolbo to D.C. 3/12-13 to
prepare for oral argument
$655
3/13/03 Mr. Herr to D.C. re: same $524.50
3/13/03 Mr. Kolbo’s airfare to D.C. on 2/24-
27 re: same
$388.75
3/14/03 Mr. Purdy’s airfare to D.C. for same $701.07
3/14/03 Mr. Herr’s misc. expenses in D.C.
from 3/12-13
$229.78
Total: $11,782.25

Finally, Plaintiffs include expenses related to a trip Mr. Purdy took to Simi Valley,
California from June 27-29, 2001. However, neither Plaintiffs’ billing records nor the
chronology of events provided in Exhibit Q to Plaintiffs’ motion explain the purpose of this
trip. As the Court therefore cannot determine whether these expenses were necessary, it
will exclude the $785.06 billed for Mr. Purdy’s trip.

Miscellaneous Hours and Expenses

The attorneys from CIR additionally billed a number of hours related to “local
counsel issues” and “potential plaintiffs.” The Court finds these hours unreasonable. As to
the first category of hours, the Court does not believe that Defendants should incur the

26



extra costs associated with Plaintiffs’ representation by out-of-town counsel (e.g. travel
related costs) and the fees incurred by out-of-town counsel in order to search for
appropriate local counsel. As to the second category of hours, the Court does not believe
that § 1988 contemplates an award of fees related to an attorneys’ search for clients who
will serve as model plaintiffs. The Court finds the following hours related to these
categories and therefore will exclude them for the CIR attorneys:

Mr. Rosman = 1.8 hours
Mr. Troy = 11.2 hours
Mr. McDonald = 3.7 hours
Mr. Healy = 4.5 hours
Mr. Bader = 4.15 hours

While the Court has not excluded the hours attorneys billed for time spent reading
books on affirmative action, the Court finds it unreasonable to bill Defendants for the
purchase of those books. Defendants should not bear the costs for Plaintiffs’ attorneys to
stock their libraries. Similarly, while the Court finds the hours Plaintiffs’ attorneys
expended preparing for oral argument before the Supreme Court reasonable, the Court does
not find it reasonable to bill Defendants for the costs of compact discs containing the
Supreme Court’s “greatest hits.” The Court therefore will exclude $126.94 from the costs
sought by CIR, consisting of the following:

Date charged Description Amount
11/11/99 purchase of various publications $49.40
2/14/00 book purchase $18.13
6/4/01 book purchase $14.93
2/18/03 book purchase $24.50

27



2/21/03 ½ cost (other ½ to Grutter) for
compact discs containing Supreme
Court arguments
$19.98

Next, Plaintiffs’ seek reimbursement for $277,858.92 in costs incurred during the
course of this litigation. $3,947.76 of this amount represents costs incurred by Maslon for
which it has not been reimbursed by CIR. $273,836.08 represents costs sought by CIR.
According to Mr. Rosman’s affidavit, this amount includes approximately $115,000 CIR
reimbursed Maslon for the latter’s costs. $15,928.54 of this amount is attributable to
Westlaw expenses, an amount the Court finds exorbitant. The Court will reduce this latter
amount by twenty-five percent (25%) or by $3,982.14. The Court also will deduct the
$14,676 the Supreme Court already awarded to Plaintiffs for costs which they include in
their current request for reimbursement.7

Local Counsel

Having reviewed Mr. Wright’s and Mr. Morgan’s billing entries, the Court finds it
difficult to identify what use local counsel served in this case other than to increase the
number of duplicative hours expended on this litigation. This is not necessarily the fault of
Mr. Wright or Mr. Morgan. More likely it is due to the fact that Plaintiffs were
represented by at least fifteen other well-qualified lawyers who primarily handled 100% of
the litigation.

Mr. Wright actually expended fewer hours duplicating the work of the Maslon

___________________
7       While Plaintiffs indicate that Defendants have not yet paid this sum, the Court is confident that
Defendants will comply with the Supreme Court’s order.

28



and/or CIR attorneys than Mr. Morgan. The Court finds, however, that a number of tasks
completed by Mr. Wright could have been performed by non-legal staff (e.g. calling the
University to obtain the names of its officers, president and the various deans of the LS&A
and their dates of service (10/2/97; 10/7/97; 10/9/97)). A large percentage of Mr.
Wright’s billing entries also appear to relate to the filing of “a new complaint,” presumably
in Grutter. Having reviewed Mr. Wright’s billing records and deleting such hours, the
Court finds 36.8 hours reasonably expended in this litigation. With respect to Mr. Wright’s
expenses, the Court will exclude $484.20, representing $28.94 billed for purchasing a copy
of “Diversity Machine” and the mileage to the bookstore and $455.26 for the purchase of a
facsimile machine and attachment cable. These reductions will be reflected in the final
fees and costs awarded to Plaintiffs for CIR.

Most of Mr. Morgan’s billing entries reflect time spent “receiving and reviewing”
materials that also were received and reviewed by the Maslon and CIR attorneys. While
Mr. Morgan did attend a handful of depositions, those depositions were taken or defended
by other attorneys in the case. Of the 323.50 hours billed by Mr. Morgan, the Court
identified only 55 hours where Mr. Morgan did more than review filings, pleadings,
documents, drafts, letters etc. . . The Court finds the costs sought by Mr. Morgan to be
reasonable.

Reasonable Hourly Rate8

___________________
8       Rather than seeking interest on their attorneys’ fees, Plaintiffs seek reimbursement for all hours
at a 2004 hourly rate. The Supreme Court has approved this practice as a method to compensate for
— continued from next page —
any delay in payment. See Missouri v. Jenkins, 491 U.S. 274, 284, 109 S. Ct.
2463, 2469 (1989).

29



To calculate the “reasonable hourly rate” component of the lodestar calculation, the
Supreme Court has instructed district courts to assess the “prevailing market rate in the
relevant community.” Blum, 465 U.S. at 895, 104 S. Ct. at 1547. Where a party has
selected out-of-town attorneys, the Sixth Circuit has defined the reasonable hourly rate as
follows:

. . . when a counselor has voluntarily agreed to represent a
plaintiff in an out-of-town lawsuit, thereby necessitating
litigation by that lawyer primarily in the alien locale of the
court in which the case is pending, the court should deem the
“relevant community” for fee purposes to constitute the legal
community within that court’s territorial jurisdiction; thus the
“prevailing market rate” is that rate which lawyers of
comparable skill and experience can reasonably expect to
command within the venue of the court of record, rather than
foreign counsel’s typical charge for work performed within a
geographical area wherein he maintains his [or her] office
and/or normally practices, at least where the lawyer’s
reasonable “home” rate exceeds the reasonable “local” charge.

Adcock-Land, 227 F.3d at 350 (citing Hudson v. Reno, 130 F.3d 1193, 1208 (6th Cir.
1997)). Based on the above, the Court rejects Plaintiffs’ argument that the rates sought by
the CIR attorneys are reasonable based on rates for Washington, D.C. law firms published
in the Laffey Matrix.

Plaintiffs seek the following hourly rates for the Maslon attorneys and paralegals:

Mr. Kolbo = $325
Mr. Herr = $390
Mr. Purdy = $375
Mr. McCarthy = $275

30



Mr. Richter = $210
Mr. Lien = $215
Ms. Van Tassel = $210
Mr. Carlton = $220
Ms. Dunbar, Mr. Bazdell, and Ms.
Engelstad = $150

Mr. Kolbo is a partner at the Maslon firm who has practiced law principally in the area of
civil litigation for approximately twenty years. Mr. Herr, also a Maslon partner, practices
in the firm’s litigation and appellate practice. Mr. Herr obtained his juris doctorate (“JD”)
in 1978. Mr. Purdy obtained his JD in 1977 and is a partner focusing on litigation. Mr.
McCarthy, who obtained his JD in 1992, is a partner with a general litigation and appellate
practice. Mr. Richter worked as a law clerk at the Maslon firm until he obtained his JD in
1999. He now is an associate in Maslon’s litigation and appellate practice. Mr. Lien and
Ms. Van Tassel obtained their JDs in 1998 and 1999, respectively, and have since practiced
in Maslon’s litigation practice. Mr. Carlton, who obtained his JD in 1996, was associated
with Maslon from August 1998 through June 2000. Ms. Dunbar, Mr. Bazdell, and Ms.
Engelstad are paralegals, each with a number of years of experience.

31



Plaintiffs seek the following hourly rates for the CIR attorneys:

Mr. Rosman = $335
Mr. McDonald = $380
Mr. James Wright = $380
Mr. Casale = $335
Mr. Troy = $335
Mr. Bader = $270
Mr. Krvaric = $220
Student Attorneys = $105

Mr. Rosman graduated Yale University’s law school in 1984 and began working at CIR in
1994. Mr. McDonald, one of CIR’s founders and the former director of its litigation
section, obtained his JD in 1981. Mr. Wright, senior counsel at CIR, obtained his JD in
1972. Mr. Casale, Mr. Troy, and Mr. Bader, each holding the title of associate general
counsel for CIR, graduated law school in 1988, 1992, and 1994, respectively. Mr. Krvaric
graduated law school in 2000.

CIR has billed local counsel Patrick Wright’s time at an hourly rate of $125, with a
monthly maximum of $1250. Mr. Morgan seeks reimbursement at an hourly rate of $270.
Mr. Morgan obtained his JD in 1980 and has practiced in the area of civil litigation since
then.

Plaintiffs claim that the rates sought for their attorneys is in line with the prevailing
rates of lawyers of comparable skill, knowledge, qualifications, experience, and reputation
in the Detroit metropolitan area. They provide the affidavit of Mark Kowalsky, a partner at
the law firm of Hertz, Schram & Saretsky in Bloomfield Hills, Michigan, who states that
the rates sought by Plaintiffs’ attorneys are reasonable in comparison with prevailing

32



market rates. See Kowalsky Aff. ¶ 7. Plaintiffs seek to further support these rates with
records obtained from the University through the Freedom of Information Act (“FOIA”)
and with the hourly rates charged by some of Defendants’ attorneys as published on Butzel
Long’s website. The FOIA records Plaintiffs offer indicate that the University has spent
more than $10 million defending Plaintiffs’ lawsuit and the lawsuit in Grutter.
Additionally, Plaintiffs have sought discovery from Defendants with respect to the rates
they were charged by their attorneys’ and the attorneys’ billing records. Plaintiffs hope to
demonstrate through the information sought in their discovery requests that their attorneys’
fees and costs are in-line with or less than those incurred by Defendants in this litigation
and therefore are reasonable.9

Defendants argue that the hourly rates charged by Plaintiffs’ attorneys are
unreasonable in comparison to civil rights attorneys with comparable skill and experience
in the forum market. Defendants rely on the most recent Economics of Practice survey
issued by the State Bar of Michigan, reporting 2003 hourly rates. According to the survey,
attorneys at the largest firms (over 100 lawyers) in the Detroit metropolitan area charge an
average hourly rate of $241. The survey further reports a 95th percentile rate of $358. For
attorneys, state-wide, with forty or more years of experience, the survey reports an average
rate of $188. Defendants note that Plaintiffs seek rates higher than $188 for all of their

___________________
9       Defendants have refused to comply with Plaintiffs’ discovery requests and, as a result, Plaintiffs
filed a motion to allow limited discovery related to fees and costs on October 21, 2004. For the
reasons set forth infra, the Court is denying Plaintiffs’ motion to compel discovery.

33



Maslon attorneys, including a 1998 law school graduate. Defendants further note that
none of the Maslon attorneys demonstrate any particular expertise in civil rights litigation.

As an initial matter, the Court finds the hourly rates charged by Defendants’
attorneys and the hours those attorneys expended defending against Plaintiffs’ lawsuit of no
particular value to its determination of Plaintiffs’ fees award. As Defendants point out, a
party seeking attorneys’ fees pursuant to § 1988 must support their request with
sufficiently detailed records to demonstrate the reasonableness of their fees. If the Court
cannot determine the reasonableness of the attorneys’ fees based on those billing records
without reference to the opposing party’s records, the party seeking fees has not met its
burden under § 1988. More importantly, § 1988 only guarantees civil rights plaintiffs
“competent counsel,” whereas a party defending against such a suit may be willing and able
to pay top dollar to hire the best lawyers in the country. Similarly, an opposing party’s
willingness to pay its lawyers to perform certain tasks (or perhaps a lawyer’s billing for
certain tasks which the client may refuse to pay) does not render the same tasks by the
prevailing party’s attorneys reasonable.

In any event, Defendants provide the following information with respect to the 2003
hourly rate charged by two of their lead attorneys who practice in the prevailing market.
Philip Kessler, a shareholder in the law firm of Butzel Long and President of the firm,
charged Defendant $230 per hour for his time on this case and the Grutter litigation. See
Defs.’ Supp. Opp. to Pls.’ Mot., Ex. 2 ¶¶ 2 & 6. Mr. Kessler has practiced law since 1972.
See id. Att. Leonard Niehoff, also a Butzel Long shareholder, charged Defendant $195 per

34



hour for his time on the two cases. See id. ¶¶ 1 & 5 Mr Niehoff has substantial experience
in litigation, particularly cases involving civil rights and constitutional issues. See id.

As Defendants note, all of the hourly rates Plaintiffs seek to recover for their
attorneys exceed Mr. Niehoff’s hourly billing rate. This includes the rates sought for five
attorneys who only graduated law school during this litigation (Mr. Richter 1999; Mr. Lien
1998; Ms. Van Tassel 1999; Mr. Casale 1998; and Mr. Krvaric 2000) and the rates sought
for two attorneys who graduated less than five years before the litigation began (Mr.
Carlton 1996 and Mr. Bader 1994). None of the Maslon attorneys demonstrate particular
expertise in civil rights or constitutional law issues. The Court therefore does not find Mr.
Kessler’s or Mr. Niehoff’s hourly billing rates helpful to its assessment of the
reasonableness of the rates sought by Plaintiffs’ attorneys.

Instead, the Court will begin by looking at the rates reported in the State Bar’s
survey to determine the prevailing market rate applicable to this case. For each of
Plaintiffs’ attorneys, the Court has determined the prevailing market rate for attorneys with
similar legal classifications, years of experience, and fields of law and in comparably-sized
practice groups.10 Because the Bar’s survey reports state-wide rates for these categories,
for out-of-town counsel the Court has increased those rates by the percentage difference
between the average rate for attorneys practicing in Detroit and the average rate for

___________________
10       As CIR did not indicate the size of its practice, the Court did not consider this factor in
determining a reasonable rate for its attorneys.

35



attorneys practicing state-wide (43%).11 The Court also factored in the average hourly
billing rate for attorneys in the Detroit metropolitan area. The Court used the average
billing rate set forth in the survey for attorneys in the above categories (rather than a higher
percentile) as § 1988 only guarantees Plaintiffs competent counsel, not the best and/or
most expensive counsel. With respect to the student attorneys who worked on this case for
CIR, the Court found the billing rates of paralegals with five or less years experience and
new hires in Detroit with no experience as an equitable basis for determining their
appropriate billing rates.

Next, the Court considered the factors set forth in Johnson. With respect to CIR’s
lead attorneys (Mr. Rosman, Mr. McDonald, and Mr. Wright), the Court finds that it is
appropriate to increase their rates by approximately 10% to reflect their experience
handling civil rights and constitutional law cases. See infra n. 13. The Court does not
believe that an increase in Plaintiffs’ fees is warranted by any of the other Johnson factors.
This was not a particularly complex or novel case. As the Fifth Circuit stated in Hopwood,
a case involving identical legal issues:

The issues presented by this case may well provide grist for the
political and legal mills, but they are “neither novel nor
extraordinarily difficult.” The underlying arguments about the
place of affirmative action in the equal protection paradigm
have been percolating since the Supreme Court’s decision in
Bakke if not longer; only the evidence and analysis supporting
each side have grown more sophisticated over the past two
decades. Stated differently, this is not an issue that demanded a

___________________
11       According to Exhibit 23 of the survey, the average hourly billing rate for attorneys with offices
outside Detroit is $166.55. The average hourly rate for attorneys with offices in Detroit is $238. See
id. Therefore, the average rate for Detroit-based attorneys is 43% above the average rate for all other
Michigan lawyers.

36



large amount of legal excavation in this instance.

Hopwood, 236 F.3d at 279. For that reason, the case did not demand unusual skill and
while the case required an expenditure of a significant amount of time, because of the
number of attorneys representing Plaintiffs, the Court cannot believe the case precluded
any attorney from other employment.

Based on the above, the Court finds the following prevailing market rates to be
reasonable rates for Plaintiffs’ attorneys:

Mr. Kolbo, Mr. Herr, Mr. Purdy = $28012
Mr. McCarthy = $275
Mr. Richter, Mr. Lien, Ms. Van Tassel, & Mr. Carlton = $230
Mr. Rosman, Mr. McDonald, & Mr. Wright = $29013
Mr. Casale, Mr. Troy, Mr. Bader, & Mr. Krvaric = $200
Mr. Morgan = $188

As the Court has found the prevailing market rate for attorneys comparable to Mr. Richter,
Mr. Lien, Ms. Van Tassel, and Mr. Carlton to be higher than the actual rates billed for those
attorneys’ time, the Court finds the rates sought to be reasonable and will apply those rates

___________________
12       In reaching this amount the Court considered the following:
    a) the average rate for partners state-wide = $210 + ($210 x 43%) = $300.30
    b) the average rate for attorneys w/20 years of more experience = $188 + ($188
       x 43%) = $268.84
    c) the average rate for attorneys in firms w/more than 100 attorneys = $241 +
       ($241 x 43%) = $344.63
    d) the average rate for attorneys in the field of litigation (not personal injury) =
       $176 + ($176 x 43%) = $251.68
    e) the average rate for attorneys practicing in downtown Detroit = $238

13       The prevailing market rate for Mr. Rosman and Mr. McDonald is $265 and for Mr. Wright,
$262. The Court finds a 10% increase to $290 reasonable in light of their experience in the areas of
civil rights and constitutional law. See supra at p. 37.

37



in calculating Plaintiffs’ award. With respect to Maslon’s paralegals, the Court finds an
hourly rate of $100 reasonable based on the State Bar of Michigan survey. The survey also
indicates that Patrick Wright’s $125 hourly rate is reasonable.

Summary as to Fees

In summary, for the Maslon attorneys and paralegals, the Court will exclude the
following billable hours and fees charged for those hours:

Excessive Hours

Name Intervenor
s (p.18-19)
Media/Public Relations
(p.22)
Travel (p. 25-26) Total
Mr. Kolbo 177.5 19 30.3 226.8
Mr. Herr 68.3 22.9 57.75 148.95
Mr. Purdy 31.15 20.5 18.45 70.1
Ms. Dunbar 2.5 3   5.5
Ms. Englestad 2.4     2.4
Mr. Richter 54.8     54.8
Mr. Carlton .5      

Fees Deducted Due to Excessive Hours

Name Total Unreasonable Hours Rate Charged Total
Mr. Kolbo 226.80 $325 $73,710
Mr. Herr 148.95 $390 $58,090.50
Mr. Purdy 70.10 $375 $26,287.50
Ms. Dunbar 5.5 $150 $825
Ms. Englestad 2.4 $150 $360
Mr. Richter 54.8 $210 $11,508
Mr. McCarthy 42.2 $275 $11,605

38



Mr. Carlton .5 $220 $110

TOTAL $182,496

For the Maslon attorneys and paralegals for whom Plaintiffs requested unreasonable
hourly rates, the Court finds that they billed the following total number of reasonable hours
in this litigation (i.e. total hours billed minus the above unreasonable hours):

Name Total Hours Total Unreasonable
Hours
Total Reasonable
Hours
Mr. Kolbo 2,180.50 226.8 1953.70
Mr. Herr 967.20 148.95 818.25
Mr. Purdy 459.10 70.1 389
Ms. Dunbar 55.1 5.5 49.6
Ms. Englestad 36.4 2.4 34
Mr. Bazdell 119.60 0 119.60

The fees charged for these hours are as follows:

Name Reasonable Hours Rate Charged Fees Charged
Mr. Kolbo 1953.7 $325 $634,952.50
Mr. Herr 818.25 $390 $319,117.50
Mr. Purdy 389 $375 $145,875
Ms. Dunbar 49.6 $150 $7,440
Ms. Engelstad 34 $150 $5,100
Mr. Bazdell 119.60 $150 $17,940

TOTAL $1,130,425

The fees to which Plaintiffs are entitled for these Maslon hours based on a
reasonable rate, are as follows:

39



Name Reasonable Hours Reasonable Rate Reasonable Fees
Mr. Kolbo 1953.7 $280 $547,036
Mr. Herr 818.25 $280 $229,110
Mr. Purdy 389 $280 $108,920
Ms. Dunbar 49.6 $100 $4,960
Ms. Engelstad 34 $100 $3,400
Mr. Bazdell 119.60 $100 $11,960

TOTAL $905,386

FEES DEDUCTED REPRESENTING DIFFERENCE BETWEEN FEES
CHARGED AT UNREASONABLE RATES AND FEES ENTITLED TO AT
REASONABLE RATES:

$225,039

For the CIR attorneys, the Court will exclude the following billable hours and fees
charged for those hours:

Excessive Hours
Name Intervenors
(p.18-19)
Media/Public
Relations (p.22)
Misc. Hours (p. 25-
26)
Total
Mr. Rosman 38.3 6.5 1.8 46.6
Mr. Bader 7.3   4.15 11.45
Mr. McDonald .8   3.7 4.5
Mr. Troy     11.2 11.2
Mr. Healy     4.5 4.5
Mr. P. Wright       8.54

40



Fees Deducted Due to Excessive Hours
Name Total Unreasonable Hours Rate Charged Total
Mr. Rosman 46.6 $335 $15,611
Mr. Bader 11.45 $270 $3,091.50
Mr. McDonald 4.5 $380 $1,710
Mr. Troy 11.2 $335 $3,752
Mr. Healy 4.5 $70 $315
Mr. P. Wright 8.54 $125 $1,067.50

TOTAL $25,547

For the CIR attorneys for whom Plaintiffs requested unreasonable hourly rates, the
Court finds that they billed the following total number of reasonable hours in this litigation
(i.e. total hours billed minus the above unreasonable hours):

Name Total Hours Total Unreasonable
Hours
Total Reasonable
Hours
Mr. Rosman 544.80 46.6 498.2
Mr. Bader 76.05   76.05
Mr. McDonald 18.55 4.5 14.05
Mr. Troy 50.80 11.2 39.6
Mr. Casale 3.5   3.5
Mr. J. Wright 29.97   29.97
Mr. Kvaric 7.7   7.7

The fees charged for these hours are as follows:

Name Reasonable Hours Rate Charged Fees Charged
Mr. Rosman 498.2 $335 $166,897
Mr. Bader 76.05 $270 $20,533.50
Mr. McDonald 14.05 $380 $5,339

41



Mr. Troy 39.6 $335 $13,226
Mr. Casale 3.5 $335 $1,172.50
Mr. J. Wright 29.97 $380 $11,388.60
Mr. Kvaric 7.7 $220 $1,694

TOTAL $220,250.60

The fees to which Plaintiffs are entitled for these CIR hours based on a reasonable
rate, are as follows:

Name Reasonable Hours Reasonable Rate Reasonable Fees
Mr. Rosman 498.2 $290 $144,478
Mr. Bader 76.05 $200 $15,210
Mr. McDonald 14.05 $290 $4,074.50
Mr. Troy 39.6 $200 $7,920
Mr. Casale 3.5 $200 $700
Mr. J. Wright 29.97 $290 $8,691.30
Mr. Kvaric 7.7 $200 $1,540

TOTAL $182,613.80

FEES DEDUCTED REPRESENTING DIFFERENCE BETWEEN FEES
CHARGED AT UNREASONABLE RATES AND FEES ENTITLED TO
AT REASONABLE RATES:

$37,636.80

Deducting the above amounts reduces Maslon’s fee award to $990,585.25
($1,398,120.25 - $407,535) and CIR’s fee award to $191,046.95 ($254,230.75 -
$63,183.80). As the Court indicated, a further reduction of 65% ($643,880.41) is
appropriate with respect to Maslon’s hours and 60% ($114,628.17) with respect to CIR’s
hours to reflect Plaintiffs’ limited success and the duplication of services, vague billing
entries, and block billing entries by Plaintiffs’ attorneys. See supra at 14-17 & 23-24.

42



Computation

Maslon

Total Fees Requested $1,398,120.25
Less:  
Fees charged for excessive hours ($182,496)
Fees charged at unreasonable rates ($225,039)
Sub-Total $990,585.25
Less 65% ($990,585 x 65%) ($643,880.41)
TOTAL FEES $346,704.84

CIR

Total Fees Requested $254,230.75
Less:  
Fees charged for excessive hours ($25,547)
Fees charged at unreasonable rates ($37,636.80)
Sub-Total $191,046.95
Less 60% ($191,046.95 x 60%) ($114,628.17)
TOTAL FEES $76,418.78

The Court therefore finds a reasonable attorneys’ fees award for the Maslon law
firm of $346,704.84 and for CIR of $76,418.78.

With respect to Mr. Morgan, the Court calculates 55 reasonable hours expended by
him at an hourly rate of $188, reduced by 50%, to reach a fee award of $5,170.

Summary as to Costs

Finally, the Court has determined that the following expenses should be deducted
from the $273,836.08 in expenses sought by CIR:

43



Description Amount Page(s)
Discusse
d
Mr. Purdy’s trip expenses to New York in November 2000 for media relations $2,318.19 22
Maslon attorneys trips to D.C. to meet with CIR attorneys
and for excessive moot court arguments and travel related
to intervenors
$11,782.25 25-27
Mr. Purdy’s trip to Simi Valley, CA from June 27-29, 2001 $785.06 27
Book purchases $126.94 29
Deductions for exorbitant Westlaw costs $3,982.14 29
Costs already awarded by Supreme Court $14,676 29
Mr. P. Wright’s unreasonable costs $484.20 30

TOTAL: $34,154.78

Therefore the Court concludes that CIR is entitled to expenses totaling $239,681.30.
Plaintiffs have not convinced the Court that they are entitled to interest on those expenses.

The Court will grant Mr. Morgan’s request for $75.08 in expenses and Maslon’s
request for $3,947.75 in costs.

An Order consistent with this Opinion shall issue.





Copies to: David F. Herr, Esq.
Michael E. Rosman, Esq.
Kerry L. Morgan, Esq.
Philip J. Kessler, Esq.
John Payton, Esq.
___________________________
PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

44


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