Cojocaru v. City University of New York
- Alvin Hellerstein
- 1:19-cv-05428
- U.S. District Court · Southern District of New York
- 5
In Cojocaru v. City University of New York, Judge Hellerstein held a fee motion in abeyance and directed negotiations over Professor Curtis’s hourly rate.
Professor Ric Curtis’s private counsel and the New York State Comptroller, which was responsible for paying reasonable fees from state funds; the plaintiffs and other defendants were involved in the underlying case but were not the focus of this fee order.
What happened
Cojocaru v. City University of New York concerns a dispute over how much private counsel representing Professor Ric Curtis should be paid with state funds. Curtis is a City University of New York employee, and the plaintiffs are two former students who brought claims related to alleged misconduct at CUNY.
Curtis’s lawyer, Mr. Bob Herbst, requested his usual rate of $800 per hour. The New York State Comptroller’s fee schedule listed $225 per hour for a partner with at least ten years of experience, and the Comptroller had offered to pay Herbst $550 per hour. The parties disputed how the court should evaluate the requested rate.
Judge Hellerstein did not set a final fee rate. He found that the Comptroller’s offer did not sufficiently account for rates allowed to experienced partners in complex cases, but also said the Comptroller had a reasonable basis for declining to pay $800 from public funds. He directed the lawyer and the Comptroller to continue negotiating and ordered them to report on those negotiations; the motion was held in abeyance.
The detailed version
- Cojocaru v. City University of New York · No. 1:19-cv-05428
- Alvin Hellerstein
- Dec. 26, 2019
Background
Professor Ric Curtis is an employee of the City University of New York. Two former students sued Curtis and others over alleged sexual violence, harassment, discrimination, and other misconduct they said they experienced while at CUNY. The New York State Comptroller agreed that Curtis was entitled to representation by private counsel, with reasonable attorneys’ fees paid by New York State under New York Public Officers Law § 17.
The fee dispute arose under § 17(2)(b), which provides that a court resolves disputes about the reasonableness of attorneys’ fees. Curtis’s attorney, Bob Herbst, requested payment at his customary hourly rate of $800. Herbst had 46 years of legal experience. The Comptroller’s schedule provided for $225 per hour for a partner admitted to the bar for at least ten years, although the Comptroller could authorize higher rates. After negotiations, the Comptroller was willing to pay Herbst $550 per hour. The rates for the rest of Herbst’s staff were no longer disputed.
Issues and Positions
Herbst argued that the court should independently determine whether the requested fees were reasonable. The Comptroller argued that its decision should receive review under a deferential “rational basis” standard, meaning the decision should stand if it had a reasonable foundation and was not arbitrary or capricious. The court noted that the U.S. Court of Appeals for the Second Circuit had not decided which standard applies to a fee dispute under § 17(2)(b).
The court considered Herbst’s experience, the complexity of the case, evidence that similarly experienced civil-rights lawyers charge $800 or more, and decisions approving lower rates in other complex cases. The court also emphasized that the fees would be paid with public funds and that the fee dispute involved allocation of state funds under a state statute and regulations.
Ruling
Judge Alvin K. Hellerstein stated that the Comptroller’s $550 offer did not sufficiently account for fees judicially allowed for similar services by experienced partners in complex actions in the Southern District of New York, as required by the applicable regulation. At the same time, he concluded that it would be difficult to rule that the Comptroller lacked a rational basis for declining to pay Herbst’s full $800 request from public funds.
The court directed Herbst and the Comptroller to continue negotiating in light of the order’s guidance and to report on their negotiations by January 16, 2020. The motion was held in abeyance. The order did not establish a final hourly rate or otherwise grant or deny the motion.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.