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Erik Strindberg (Bar No. 4154)

Lauren I. Scholnick (Bar No. 7776)

Kathryn Harstad (Bar No. 11012)

STRINDBERG & SCHOLNICK, LLC

675 East 2100 South, Ste. 350

Salt Lake City, UT 84106

Telephone: (801) 359-4169

Facsimile: (801) 359-4313

erik@utahjobjustice.com

lauren@utahjobjustice.com

kass@utahjobjustice.com

John Mejia (Bar No. 13965)

Leah Farrell (Bar No. 13696)

AMERICAN CIVIL LIBERTIES UNION

OF UTAH FOUNDATION, INC.

355 N. 300 W.

Salt Lake City, Utah 84103

Telephone: 801.521.9862

Facsimile: 801.532.2850

aclu@acluutah.org

Joshua A. Block*

ACLU LGBT Project

125 Broad Street, Floor 18

New York, New York, 10004

Telephone: (212) 549-2593

Facsimile: (212) 549-2650

jblock@aclu.org

*Admitted pro hac vice

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

JONELL EVANS, STACIA IRELAND,

MARINA GOMBERG, ELENOR

HEYBORNE, MATTHEW BARRAZA,

TONY MILNER, DONALD JOHNSON,

and KARL FRITZ SCHULTZ,

Plaintiffs,

v.

STATE OF UTAH, GOVERNOR GARY

HERBERT, in his official capacity; and

ATTORNEY SEAN REYES, in his official

capacity,

Defendants.

PLAINTIFFS’ MOTION FOR

ATTORNEYS’ FEES AND COSTS

Case No. 2:14-cv-55 DAK

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Plaintiffs JoNell Evans, Stacia Ireland, Marina Gomberg, Elenor Heyborne, Matthew

Barraza, Tony Milner, Donald Johnson, and Karl Fritz Schultz (collectively referred to as the

“Plaintiffs”) by and through their undersigned attorneys, hereby submit this Motion and

Memorandum for Attorneys’ Fees and Costs. As outlined below, Defendants State of Utah,

Governor Gary Herbert, and Attorney General Sean Reyes (“Defendants”) should be required to

pay Plaintiffs’ attorneys’ fees in the amount of $130,418.50 and costs in the amount of $1,920.33

for a total award of $132,338.83. Additionally, as outlined below, the Court should augment, or

increase, this amount over the base amount because of the risk counsel assumed and the

likelihood that Plaintiffs would have had difficulty finding counsel in this case without fee

enhancement.

INTRODUCTION

As this Court recognized in its injunction opinion, this case deals with “whether Utah’s

marriage bans preclude the State of Utah from recognizing the same-sex marriages that already

occurred in Utah between December 20, 2013, and January 6, 2014.” Memorandum Decision &

Order, dated 5/19/2014, Dkt. #45, at 12. Plaintiffs, and more than 1,000 other same-sex couples,

legally married under the laws of Utah, after this court enjoined the state from enforcing its ban

on same-sex marriage in Kitchen v. Herbert, 961 F.Supp.2d 1181 (D. Utah 2013). On January 8,

2014, the Defendants announced that they would not grant recognition to any of those marriages.

When Plaintiffs filed their Complaint, no federal or state court in Utah or the Tenth

Circuit had ruled on the legality of marital rights given and then summarily taken away. Thus,

Plaintiffs were in uncharted legal territory. Because Defendants’ refusal to recognize their

marriages inflicted daily, ongoing harms to their family integrity, their finances, their dignity,

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and their psychological well-being, Plaintiffs needed to charge into that territory as quickly and

effectively as possible, and do so with able counsel. All of the counsel for Plaintiffs agreed to

represent Plaintiffs without charging fees of any sort. They did so despite knowing that the

demands on their time and skills would be rigorous and the risk that they might never be

compensated for their time was high. The demands on Plaintiffs’ attorneys’ time over many

months proved to be immense, as the case proceeded on an expedited track and resulted in over a

thousand pages of legal filings in a short period of time. Ultimately, Plaintiffs successfully

challenged Defendants’ steadfast refusal to honor their vested marital rights, and this Court

granted a preliminary injunction requiring the State of Utah to recognize all marriages between

same sex-couples performed with Utah licenses.

Given the high degree of skill, experience, willingness to accept risk, and dedication

necessary to reach this successful conclusion, Plaintiffs now move this Court to order Defendants

pay for their reasonable attorneys’ fees and costs through November 6, 2014, pursuant to District

of Utah Local Civil Rules 54-2 and 42 U.S.C. § 1988.

LEGAL STANDARD

In an action to enforce the provisions of 42 U.S.C. §1983, “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(b). A prevailing party under § 1983 is entitled to reasonable

attorneys’ fees unless special circumstances would render such an award unjust. Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983).

The court must begin by determining a “lodestar” amount, which is the “number of hours

reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. The

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first step in calculating such a reasonable fee is determining a reasonable number of hours spent

on the litigation. Malloy v. Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996). The second step is

“multiplying the hours by a reasonable rate.” Id. at 1018. “A reasonable rate is the prevailing

market rate in the relevant community.” Id. To show their rates are reasonable, Plaintiffs must:

produce satisfactory evidence – in addition to the attorney’s own affidavits – that

the requested rates are in line with those prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience, and reputation. A

rate determined this way is normally deemed to be reasonable and is referred to…

as the prevailing market rate.

Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1078 (10th Cir. 2002) (quoting

Blum v. Stenson, 465 U.S. 886, 895 n.11, (1984)).

Once an applicant for attorneys’ fees has carried the “burden of showing that the claimed

rate and number of hours are reasonable” then the resulting product is presumed to be a

“reasonable fee” under 42 U.S.C. § 1988. Cooper v. State of Utah, 894 F.2d 1169, 1171 (10th

Cir. 1990). However, that does not end the inquiry. The district court may consider other factors,

including the results obtained, in adjusting the fee upward or downward. Hensley, 461 U.S. at

434. The most critical factor in determining the reasonableness of a fee award is “the degree of

success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992). If a “plaintiff has obtained

excellent results, his attorney should recover a fully compensatory fee” which usually

encompasses all hours reasonably spent on the litigation and in some exceptional cases may

include an enhanced award. Hensley, 461 U.S. at 435. In such circumstances, “the fee award

should not be reduced simply because the plaintiff failed to prevail on every contention raised in

the lawsuit.” Id.

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ARGUMENT

This Court granted Plaintiffs’ Motion for Preliminary Injunction and even though

Defendants appealed that decision the appeal was subsequently dismissed on October 8, 2014,

resulting in Plaintiffs obtaining the most important relief that they sought: state recognition of

their marriages and the recognition of the marriages of other similarly situated same-sex couples

across Utah. Memorandum Decision and Order, dated 05/19/14, Dkt. #45, at 34; Order

Dismissing Appeal, dated 10/08/14, Dkt. #58. There can be no dispute that Plaintiffs are the

“prevailing party” in this action under § 1988(b), and are thus entitled to an award of reasonable

attorneys’ fees and expenses. For the reasons that follow, the fees and expenses that they have

requested in this petition are reasonable.

I. PLAINTIFFS’ “LODESTAR” CALCULATION IS REASONABLE

A. The Number of Hours Expended on the Litigation was Reasonable

Considering both the legal claims asserted and the speed with which they had to act,

Plaintiffs’ counsels’ hours in this petition were necessary to Plaintiffs’ success. In asserting this,

the moving party bears the burden of establishing the reasonableness of the hours claimed by

submitting adequate documentation of those hours. See Hensley, 461 U.S. at 437. The Court

should not grant a fee award for “hours that are excessive, redundant, or otherwise unnecessary.”

Id. at 434. Plaintiffs’ attorneys have explained why they believe the hours claimed were

reasonable and necessary to the litigation. Strindberg Decl. §§ 8-12, 21; Block Decl. §§ 12-22;

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and Mejia Decl. §§ 8, 15-26, 28.1 They have also provided detailed time sheets to the Court to

document the hours and the tasks that were completed. Strindberg Decl. § 21; Block Decl. § 18;

and Mejia Decl. §§ 28, 31.

In addition to the affidavits from Plaintiffs’ counsel supporting the reasonableness of the

hours expended, the facts also powerfully support an award of all requested fees. As this Court is

aware, the circumstances of this case were unique and several issues in the case presented

matters of first impression in any court nationwide. While there have been some other instances

of states attempting to strip valid marriages of recognition, those cases involved circumstances

different than those at issue here. Accordingly, this litigation involved substantial research to

formulate and bolster the theories that were ultimately advanced on Plaintiffs’ behalf. Likewise,

Defendants’ responsive theories required extensive research and analysis. Ultimately, it is no

surprise that in just a few months, the parties submitted lengthy briefs on complex state and

federal constitutional issues. On the motion for preliminary injunction alone, the parties filed

eight substantive briefs. (Dkt. Nos. 8, 20, 26, 31, 32, 33, 39, and 42.)

Plaintiffs’ counsel litigated this case efficiently and without unnecessary duplication of

effort. Strindberg Decl. § 9; Block Decl. §§ 11-12. For example, because of ACLU LGBT

Project’s extensive experience with the complex and important constitutional issues involved in

this case, Mr. Block, ACLU LGBT Project Staff Attorney, took primary responsibility for

1 The supporting declarations are attached as follows: Declaration of Erik Strindberg

(“Strindberg Decl.”) is Exhibit (“Ex.”)A; Declaration of John Mejia (“Mejia Decl.”) is Ex. B;

Declaration of Joshua Block (“Block Decl.”) is Ex. C; Declaration of Brett L. Tolman (“Tolman

Decl.”) is Ex. D; and Declaration of Deborah A. Ferguson (“Ferguson Decl.”) is Ex. E.

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preparing initial drafts of the most involved briefs, including the preliminary injunction briefing,

which were then reviewed and edited by co-counsel. Block Decl. § 12. Strindberg & Scholnick’s

team prepared the Complaint, contributed significantly to all pleadings and briefs including the

preliminary injunction briefing, participated in the mock argument, were the primary contacts

with the state assistant attorney generals, and edited and filed most of the pleadings in this case.

Strindberg Decl. §§ 10-12; Block Decl. § 12; and Mejia Decl. §§ 19-21. They also monitored the

evolving cases of second parent adoptions by same-sex married couples in Utah state court, as

those cases had direct bearing on the irreparable harms at issue in this case. Strindberg Decl. §

10. Mr. Strindberg and Mr. Block presented the oral arguments on behalf of the Plaintiffs for the

preliminary injunction and certification motions. Strindberg Decl. § 12; Block Decl. § 12.

John Mejia and Leah Farrell, with the ACLU of Utah, vetted potential Plaintiffs and also

took primary responsibility for the extensive interviews of and communications with the eight

Plaintiffs during the rapidly evolving course of the litigation. Strindberg Decl. § 17; Mejia Decl.

§§ 17-18. They also drafted portions of the Complaint and edited it as well. Strindberg Decl. §

16; Mejia Decl. § 16. John Mejia also provided extensive assistance with legal research, drafting,

and editing most motions and memoranda. Mejia Decl. § 16.

It cannot be fairly argued that the successful collaboration between the three firms for

Plaintiffs in this case caused excessive or duplicative work. To the contrary, Defendants’

unbending refusal to recognize their marriages presented an ongoing daily emergency in

Plaintiffs’ lives and in those of all married same sex couples; only a court order could compel

Defendants to honor their marriages in the foreseeable future. An “all hands on deck” approach

by a team of attorneys was not only desirable but necessary to achieve meaningful relief in this

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case. Because Plaintiffs’ attorneys had to engage in an incredible amount of strategizing, legal

research and analysis, drafting, editing, and communication to litigate this case on an expedited

basis, more than one attorney sometimes engaged on the same or similar tasks. That fact alone

does not mean that the work was excessive, duplicative, or redundant. To the contrary, when two

or more attorneys cooperated, the work product was invariably improved, making for a more

effective and straight forward presentation of issues and arguments. These improvements, in

turn, led to a clearer and more streamlined process for the Court and all of the parties. It was

crucial to the goal of the litigation, achieving a quick rebuke of Defendants’ unconstitutional

actions, to present clear written claims and arguments for the Court. Further, as the legal issues

were of first impression, several lawyers researched the analogous cases and useful precedent to

ensure that our legal arguments were on point and correct.

Defendants will inevitably pore through every detail of the Plaintiffs’ time reports in an

effort to identify what they believe are redundancies. The Court should scrutinize such

arguments, because it is in the Defendants’ interest to discount the realities of having to

formulate and bring a complex and novel case in a condensed period of time against highly

skilled, motivated, and well-resourced governmental Defendants. Moreover, Defendants

themselves sought and were granted an extension of time on filing their opening brief in the

appeal of this case to the Tenth Circuit, basing that request on the novelty and complexity of the

issues presented. Herbert et al. v. Evans et al., Case No. 14-4060, Doc No. 010109297925 at 7-8.

(“Regarding the complexity of the case, . . . counsel would merely point to the fact that this case

presents novel questions of both federal and state law. . . .) Unlike Defendants’ counsel, who had

no reason to expedite their work, Plaintiffs’ counsel had an ethical duty to submit effective

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filings on an expedited basis, because time was of the essence and failure was not an option. The

Court should take all of this into account when considering Defendants’ anticipated and likely

facile contentions and opinions about supposed excess and duplication of work by Plaintiffs’

counsel.

Additionally, Defendants’ actions and filings added significantly to the number of hours

Plaintiffs’ counsel had to dedicate to the case. For example, Plaintiffs filed their Complaint in

state court, in part to respect the Governor’s view that marriage cases were best left to the states.

Instead of leaving the lawsuit in that forum, Defendants removed the action to federal court.

(Dkt. No. 1.) This action added time and expense and set the case back, as it required additional

strategic considerations and motion practice, including competing motions for certification of a

question to the Utah Supreme Court and related filings. (Dkt. Nos. 10, 34.)

Under all of the circumstances, the number of hours expended by Plaintiffs’ counsel on

the litigation was reasonable and necessary to achieve the positive and completely successful

outcome. Any arguments by the Defendants to the contrary should be rejected, particularly line-

item attacks on the billings with the luxury of time and hindsight and a lack of perspective on the

realities of what it took to succeed in this case which was of incredible importance to the public

in Utah.

B. The Hourly Rates are Reasonable

Plaintiffs have submitted the following rates for six attorneys who worked substantially

on this case: Erik Strindberg, $300 per hour; Lauren I. Scholnick, $275 per hour; Kathryn

Harstad, $250 per hour; John Mejia, $245 per hour; Leah Farrell, $205 per hour; and Joshua A.

Block, $350 per hour. Strindberg Decl. §§ 24, 27; Block Decl. §20; and Mejia Decl. § 28. As

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shown below, each of these attorneys has unique skills and experience, which created an efficient

and complimentary legal team, eliminated redundancy and maximized Plaintiffs’ chances of

success.

Erik Strindberg has developed extensive federal civil litigation experience over his 31

year career. For 19 years, Mr. Strindberg practiced employment and labor law for two different

private firms in Salt Lake City. During that time, Mr. Strindberg tried cases in various state and

federal courts. In 2002, Mr. Strindberg started his own firm with partner Lauren Scholnick.

Strindberg & Scholnick, LLC, is a boutique employment law firm primarily representing

employees and plaintiffs. Over his 31 years of practice, Mr. Strindberg has been counsel on

hundreds of federal civil cases, many of those before the United States Court of the District of

Utah and on appeals before the Tenth Circuit Court of Appeals. As lead counsel, Mr. Strindberg

handled and tried a wide variety of complex federal civil litigation cases including statutory,

constitutional, and tort claims. Mr. Strindberg is also active in the legal community in Utah and

has served as a member and/or officer of a number of professional organizations such as the

Federal Bar Association – Utah Chapter, Salt Lake County Bar, and Utah Legal Services Board

of Trustees. In 2003, Mr. Strindberg was named the Utah State Bar’s Employment Lawyer of the

Year. Strindberg Decl. §§ 2-4.

Lauren Scholnick and Kathryn Harstad, the two other Strindberg & Scholnick partners

who regularly worked on this case, also brought significant experience to Plaintiffs’ legal team.

Ms. Scholnick, founding partner of Strindberg and Scholnick, has practiced law for over 19 years

since graduating from the University of Illinois College of Law. After law school, Ms. Scholnick

clerked for one year with Judge Gregory K. Orme at the Utah Court of Appeals. She then worked

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as a Staff Attorney and Development Director at Utah Legal Services, Inc. and in private practice

where she litigated a variety of cases involving state and federal claims. Ms. Scholnick founded

Strindberg & Scholnick, LLC, with Erik Strindberg in 2002, where she focuses her practice on

employment and discrimination matters. She is licensed to practice in Utah, Idaho and Illinois

(inactive). In her 19 years of practice, Ms. Scholnick has acquired extensive experience litigating

complex federal and state claims. Strindberg Decl. § 28(a).

Ms. Harstad, also a partner at Strindberg & Scholnick, has been practicing since 2000

when she graduated from the University of Minnesota Law School. After law school, Ms.

Harstad worked for a large firm in Chicago where she defended nation-wide class actions,

practiced white collar defense, and litigated other complex cases involving multi-district

litigation. In 2005, Ms. Harstad clerked for the Utah Court of Appeals before becoming an

associate at Strindberg & Scholnick in 2006. She became a partner at Strindberg & Scholnick in

2010. Ms. Harstad has over 14 years’ experience litigating state and federal claims and is

licensed to practice in Utah, Idaho, Minnesota, and Illinois. Strindberg Decl. § 28(b).

John Mejia and Leah Farrell, both with the ACLU of Utah, brought a wealth of civil

rights expertise to the Plaintiffs’ team. Mr. Mejia graduated with honors from the University of

Chicago Law School in 2003. After law school he went into private practice at the Chicago law

firm of Sidley Austin, LLP, where he was a litigation attorney in the insurance group and

litigated matters in both state and federal court. In 2008, he moved to Salt Lake and clerked for

Judge Tena Campbell until 2009 and then clerked for Judge Clark Waddoups from 2009 – 2012.

In January 2012, he became Legal Director for the ACLU of Utah, where he regularly brings

state and federal actions on behalf of clients in defense of their civil rights. Mejia Decl. §§ 2-4.

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Ms. Farrell joined the ACLU of Utah as a Staff Attorney in August of 2011 after her

graduation from the University of Texas School of Law. As Staff Attorney for the ACLU of

Utah, Ms. Farrell regularly litigates civil rights cases. Mejia Decl. § 30. Plaintiffs are requesting

hourly rates of $245/hour for Mr. Mejia’s work and $205/hour for Ms. Farrell’s work. While

these rates are somewhat higher than those billed by Strindberg & Scholnick associate attorneys

with similar years of practice, they are comparable to rates granted in this District for attorneys

working for regional non-profit corporations that specialize in the subject matter of the suit

brought. See Clayton v. Steinagel, 2012 WL 6624203 *1-*2 (D. Utah) (allowing hourly rates of

$275/hour for a non-profit attorney with 13 years of experience and $240 for one with 8 years).

Further, since the ACLU of Utah does not charge clients and thus has no established hourly rate,

the most logical point of comparison is another not-for-profit specialty firm.

Joshua Block, is a Staff Attorney for the ACLU LGBT Project, which is the division of

the national ACLU committed to advancing the civil and human rights of lesbian, gay, bisexual,

and transgender people and their families. He graduated from Yale School of Law in 2005 and

then clerked for Judge Robert D. Sack of the U.S. Court of Appeals for the Second Circuit from

2005 to 2006. From 2006 to 2010, he was a litigation associate in the New York offices of Jenner

and Block, LLP. In 2010, he joined the ACLU LGBT Project where he has litigated a variety of

complex cases in state and federal courts involving the civil rights of LGBT individuals. He has

also argued cases before trial and appellate courts, including federal circuit courts of appeal. Mr.

Block is an expert on legal matters involving lesbian, gay, bisexual and transgender (LGBT)

people. For example, Mr. Block was one of the ACLU LGBT Project attorneys who served as

counsel for Edie Windsor in her successful challenge to the federal Defense of Marriage Act in

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United States v. Windsor, 133 S. Ct. 2675 (2013). Mr. Block has also served as Plaintiffs’

counsel in multiple same-sex marriage cases around the country, including Virginia, Missouri,

Kansas and Michigan. In addition to litigating LGBT cases, Mr. Block has taught and lectured

regarding LGBT legal issues. Block Decl. §§ 3-10.

The Tenth Circuit has authorized district courts to award attorney's fees based on rates

higher than prevailing local rates in cases where the attorneys who seek the higher rates bring

special expertise and experience to the case. Hall v. National Collegiate Athletic Ass'n, 1997 WL

381956 (D. Kan. 1997); Reazin v. Blue Cross & Blue Shield, 899 F.2d 951, 983 (10th Cir. 1990);

Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983) (holding that unusual circumstances may

justify award of rates higher than local prevailing rates). Mr. Mejia, Ms. Farrell, and Mr. Block

have expertise in constitutional claims and are all experts in representing LGBT individuals in

cases involving marriage equality. Therefore, they are entitled to enhanced rates due to their

expertise. Further, Mr. Block’s expertise is even more salient as he practices in the area of

constitutional rights of LGBT individuals and has litigated same-sex marriage cases throughout

the country. Block Decl. §§ 8-10. This Court has granted petitioning lawyers substantially higher

than market rates when they have demonstrated extensive experience in a needed area of law.

See Plascencia v. City of St. George, 2013 U.S. Dist. 2013 WL 4084099 *2 (D. Utah) (awarding

an appellate specialist for time spent on appeal $400/hour but only $250/hour for non-specialist).

Mr. Block brought unique experience that the rest of Plaintiffs’ lawyers did not have. Stindberg

Decl. § 14. Further, his expertise saved the entire legal team substantial time in this litigation.

Stindberg Decl. § 15; Mejia Decl. § 23. The complex and novel issues presented in this case

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coupled with the unique and necessary expertise Mr. Block, Mr. Mejia and Ms. Farrell brought

to the case justifies their rates.

In addition to the deep well of expertise, the requested hourly rates are also justified by

the unique nature of this litigation and the risk that the attorneys might have worked hundreds of

hours without compensation. As further explained below in Plaintiffs’ request for a fee

augmentation, the pool of attorneys willing to take such a risk is small, which supports a rate on

the higher end of the range for the local community. Further, Plaintiffs’ counsel was required to

turn away or put aside other fee-paying matters to focus on this case. Stindberg Decl. § 19. The

case also involved eight plaintiffs, each with unique backgrounds and life histories, multiplying

exponentially the investigative, drafting, and communication efforts that were required.

Plaintiffs’ counsel have also supported the reasonableness of their requested rates with

the declarations of Brett Tolman and Deborah Ferguson, both highly respected attorneys with

many years of experience practicing civil litigation. Mr. Tolman, who has 16 years of

experience, practices here in Utah and Ms. Ferguson, who has 28 years of experience, practices

in Idaho where the legal market and rates are comparable to Utah. Stindberg Decl. § 26. Ms.

Ferguson represented the Plaintiffs in Latta et al. v. Otter, in which she and co-counsel

successfully challenged Idaho’s same-sex marriage bans. Case No. 1:13-cv-482 (D. Idaho), 14-

3520 (9th Cir.) Ferguson Decl.§ 6.Thus, she is very familiar with the complex and novel issues of

first impression involved in this case. Ms. Ferguson not only supports that the rates requested

here are reasonable but also states that they are “somewhat lower than what attorneys in Boise (a

smaller legal market than Salt Lake) doing specialized litigation charge.” Ferguson Decl.§ 14.

Both attorneys state that the hourly rates requested by Plaintiffs are reasonable in light of the risk

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involved and the skill necessary to successfully complete this case. Tolman Decl. § 9; Ferguson

Decl. §§ 10, 12.

Other cases involving fee awards by District Courts in Utah also support that the claimed

rates for Plaintiffs’ counsel in this case are reasonable. For example, in Clayton v. Steinagel, the

Court held that the hourly rates of $240 for an attorney with 8 years of experience, $275 for an

attorney with 13 years of experience and $350 for an attorney with 36 years of experience were

reasonable and in line with prevailing market rates. No. 2:11-CV-379 DS (D. Utah), 2012 WL

6624203, at 1. In Plasencia v. City of St. George, the court found that $250 per hour was a

reasonable rate for an attorney with 15 years of experience. No. 2:07-CV-2 TS, 2012 WL

256142, at *2 (D. Utah Jan. 27, 2012). Here, Plaintiffs are requesting $300 for Mr. Strindberg

who has 31 years of experience, $275 for Ms. Scholnick who has 19 years of experience and

$250 for Ms. Harstad who has 14 years of experience. These hourly rates fall squarely within or

are lower than the rates found to be reasonable and in line with prevailing market rates in

Clayton and Plasencia. The requested hourly rates for Mr. Block (9 years of experience at $350

per hour), Mr. Mejia (11 years of experience at $245 per hour) and Ms. Farrell (3 years of

experience at $205 per hour) are slightly higher than the rates in Clayton and Plasencia.

However, as outlined above, these slightly higher rates are justified because of their unique

expertise with cases involving the civil rights of LGBT individuals.

Accordingly, the prevailing rate in the community for cases that pose a similar risk and

require a similarly high degree of skill, experience, and dedication justifies the reasonableness of

the rates that have been requested.

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C. Requested Lodestar

The lodestar in this case totals $130,418.25 ($91,186.75 for Strindberg & Scholnick,

LLC; $24,339.00 for the ACLU; and $14,892.50 for ACLU LGBT Project). There is a

presumption that this is a reasonable fee in a civil rights case. Cooper, 894 F.2d at 1171. The

most important factor in determining appropriate attorneys’ fees is the degree of success that the

attorneys have obtained for their clients. Farrar, 506 U.S. at 114. “Where a plaintiff has obtained

excellent results, his attorney should recover a fully compensatory fee.” Hensley, 461 U.S. at

435. Defendants cannot dispute that counsel’s efforts resulted in a very high level of success.

The Court concluded that Defendants had to recognize the Plaintiffs’ marriages and the

marriages of all Utah same-sex couples. There were no claims lost or partial victories achieved.

This case resulted in a landmark decision that fully vindicated critical constitutional

rights of married same-sex couples in Utah. Moreover, the precedent set by this case will bolster

all marriages of any same-sex or different-sex couples in the future, because it clarified the

constitutional protections afforded to the vested rights of any marriage. Accordingly, Plaintiffs

are entitled to fully recover the reasonable attorneys’ fees that have been requested.

II. SUMMARY OF FEES

FIRM ATTORNEY RATES HOURS TOTAL AMOUNT

Strindberg & Scholnick, LLC $150-$300 386.15 $91,186.75

ACLU of Utah $205-$245 105.3 $24,339.00

ACLU LGBT Project $350 42.55 $14,892.50

Total $130,418.25

III. THE COURT SHOULD AUGMENT THE REQUESTED FEE

Plaintiffs’ counsel are requesting a fee enhancement given the exceptional circumstances

of this case. In the Tenth Circuit, fee enhancements are “viewed with caution” and “appropriate

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only in exceptional cases.” Homeward Bound, Inc. v. Hissom Mem’l Ctr., 963 F.2d 1352, 1360

(10th Cir. 1992) (internal citation omitted). An “exceptional case” is one in which the attorney

for the prevailing party was, prior to litigation, “confronted with a real risk of not prevailing” and

in which the plaintiff would have faced substantial difficulties in finding counsel in the local or

other relevant market. Id.

A. The Plaintiffs had a Real Risk of Not Prevailing

To determine if a party faced a “real risk of not prevailing” the district court considers

whether the law in effect at the time the suit was filed was unsettled. Id. If so, the district court

may conclude, in the exercise of its discretion, that the attorney faced a real risk of not

prevailing.2 Id. Augmentation of a fee award is appropriate only if there was a “real risk of not

prevailing” in the case. Parker v. Olympus Health Care, Inc., 264 F. Supp. 2d 998, 1005 (D.

Utah 2003). The burden of proving the risk is on the party seeking the enhancement to the

lodestar. Homeward Bound, 963 F.2d at 1360. At the time the complaint was filed in this case,

the Supreme Court had stayed the decision in Kitchen pending final disposition of the appeal to

the Tenth Circuit. No United States Court of Appeals had yet ruled on the constitutionality of

state same-sex marriage bans. The U.S. District Court for Utah was the only court in the country

that had struck down a state same-sex marriage ban and allowed same-sex marriages to proceed.

2 District courts can also ask whether the outcome of the suit depended upon the resolution of

disputed facts in order to conclude the attorney faced a real risk of not prevailing. Homeward

Bound, 963 F.2d at 1360. But, that inquiry is not relevant here.

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Further, no other state had left its citizens in marital limbo by revoking recognition of same-sex

marriages that took place before a stay was ordered.

Defendants, however, confidently asserted in public and argued in this Court that at least

until the federal appellate courts decided the underlying issue of whether Utah’s marriage ban

was legal, Defendants were legally allowed to refuse to honor Utah marriages of same-sex

couples. A mere two days after the Supreme Court stay in Kitchen, Defendants withdrew

recognition from marriages of same sex couples. This decision was a weighty one that

Defendants repeatedly acknowledged had daily negative implications on the lives of thousands

of its citizens, but one which they repeatedly assured the pubic was supported by law. While

there was some persuasive analogous caselaw otherwise, there was no directly on-point law from

any controlling court that squarely proved Defendants wrong. Thus, the law as it relates to the

claims in this case was unsettled when Plaintiffs’ attorneys undertook the case.

Moreover, Defendants have conceded time and again that Plaintiffs had a significant

chance of losing this case. Defendants repeatedly argued that this case presented a “novel” and

“complex[]“ issue because “[n]o other court has ever decided whether marriages, made lawful

by a district court temporarily enjoining state laws banning such marriages, somehow acquire

vested rights.” (State Defendants’ – Appellants’ Reply in Support of Motions for Stay Pending

Appeal, Herbert v. Evans, Case No. 14-4060, Doc. No. 01019261034, at 8.) Additionally, as the

Defendants pointed out in successfully seeking to extend their briefing schedule in the Tenth

Circuit:

Thus, as Justice Sotomayor referred the stay on appeal in this matter to the entire

Court, the Court considered the harms and found they weighed in favor of Utah,

found that four justices would vote to grant certiorari should this Court simply

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affirm the district court, and found a fair prospect that a majority of justices would

vote to reverse the district court’s grant of preliminary injunction in this matter.

Reply Brief in Support of Motion for Enlargement of Time to File Opening Brief, Doc. No.

01019297925, at 5. Accordingly, Defendants asserted that there was a good chance that the

Supreme Court could have found that Plaintiffs were not entitled to the injunctive relief they

sought here which further supports that Plaintiffs’ attorneys faced a real risk of not prevailing.

B. Plaintiffs would have Faced Substantial Difficulties in Finding Counsel in Utah

“Once a real risk of not prevailing has been demonstrated, the party seeking to enhance

the lodestar must also come forward with evidence that, absent an enhancement, the plaintiff

would have faced substantial difficulties in finding counsel in the local or other relevant market.”

Homeward Bound, 963 F.2d at 1360 (internal quotations and citations omitted). This can be

demonstrated in two ways: 1) producing evidence that the Plaintiff encountered actual difficulty

in procuring counsel; or 2) showing that lawyers in the relevant market generally would not take

such a case on contingency without some guarantee of an enhancement. Id. Here, because this

was a case initiated by the ACLU and not by individual plaintiffs, the relevant proof is that

lawyers in this market (the state of Utah, or nearby states that have similar state bans against

same-sex marriages) generally will not take these types of cases on contingency absent the

opportunity for an enhancement.

The Supreme Court ordered a stay in the Kitchen case on January 6, 2014. On January 8,

2014, Governor Herbert’s chief of staff issued an email to the Governor’s cabinet members

instructing them to refuse to grant recognition to same-sex couples who were married between

December 20 and January 6. The very next day, January 9, 2014, ACLU attorneys contacted

Strindberg & Scholnick, LLC, about serving as co-counsel to represent the Plaintiffs in this case,

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on behalf of all 1,000 plus same-sex couples who had been legally married during this time

period. Strindberg Decl.§ 6; Mejia Decl. §§ 6-9. There was a significant need for expediency in

the case as the Plaintiffs, and the other 1,000 plus couples, suffered real harm each day the

Defendants withheld from these couples the constitutionally guaranteed privileges of other

legally married couples. Additionally, the novel and complex issues involved in the case required

a great deal of time. In taking on the case, the small firm of Strindberg & Scholnick literally had

“all hands on deck” to get the case filed as quickly as possible at the expense of other fee-paying

matters. Strindberg Decl. § 19. The Complaint was filed just twelve days after Strindberg &

Scholnick was contacted by the ACLU to join the case.

Other attorneys in the relevant market support that this case moved on an exceptionally

fast track, demanded a significant and often compressed commitment of time as evidenced by the

many filings prepared in a short amount of time. Tolman Decl. § 6; Ferguson Decl. §§ 7, 11.

Additionally, as Ms. Ferguson explains in her declaration, most law firms trying to operate

successfully prefer fee-paying work over contingency arrangements because the compensation is

guaranteed and paid out as the work is done. Ferguson Decl. §§ 15-16. Those attorneys who

actually take complex cases on contingency often seek higher hourly rates than their normal

hourly rates due to the risk and uncertainty of ever actually being compensated, the prolonged

delay in compensation even when fees are awarded and the effort expended in petitioning a court

for fees. Ferguson Decl. § 15.

As a small law firm, Strindberg & Scholnick took a huge financial risk when it agreed to

represent the Plaintiffs in this case without charging fees. The law was certainly unsettled at the

time the firm took the case so there was a significant risk that Plaintiffs’ would not prevail and

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their attorneys would not be compensated for their work. Due to these factors and the complexity

of civil rights cases against public entities, there are only a small number of Plaintiffs’ attorneys

willing to take on this type of litigation. Tolman Decl. § 12; Ferguson Decl. § 16. Lawyers in

this market generally will not take these cases on contingency without some guarantee of an

enhancement. Ferguson Decl. § 17. Awarding fee enhancements in cases such as this one

ensures that meritorious cases will be brought to enforce important constitutional rights, despite

the risks involved. Tolman Decl. §§ 11-13. Absent such an enhancement, the Plaintiffs would

have faced substantial difficulties in finding counsel in the Utah market. The court in Parker

acknowledged that “most plaintiffs in employment cases are represented by lawyers at small law

firms or solo practitioners” and “[s]uch lawyers are less likely to be able to absorb the costs of []

litigation without an enhancement in contingency cases.” Parker, 264 F. Supp. 2d at 1006-07.

Civil rights cases of this nature are similar to Title VII claims in Parker in that Plaintiffs are

usually represented by small firms or solo practitioners and it is difficult to attract lawyers

willing to accept the higher degrees of risk present in civil rights cases than in other simpler

litigation without the opportunity for enhancement. Id. at 1006.

In Parker, the court granted a 20% fee enhancement because Plaintiff’s counsel made a

sufficient showing that their case was exceptional and warranted augmentation. Id. at 1007. The

Parker court held that “in the Utah market an enhancement is necessary to attract lawyers to take

exceptionally protracted, risky, and complex Title VII cases.” Id. While Parker was an egregious

Title VII sexual harassment case with successful results, it followed a fairly standard Title VII

track. Further, sexual harassment claims have been well litigated since the enactment of the Civil

Rights Act of 1964. Here, Plaintiffs’ counsel tackled complex issues of first impression on an

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expedited, high pressure timeline at the expense of other fee-paying work and which resulted in

an exceptional decision with far reaching impact on the lives of thousands of individuals. And

like Parker, Plaintiffs’ faced a real risk of not prevailing and the same reality that it is difficult to

find attorneys willing to take on these cases absent an augmentation. Based on the foregoing,

Plaintiffs request a 25% augmentation of the attorneys’ fees. Not only is such enhancement

appropriate under the circumstances but it is also necessary to attract skilled practitioners to

important civil rights cases like this one.

This litigation was unique to courts throughout the nation, not to mention in this state.

However, there was little incentive for Utah’s legal community to take on this burdensome but

important litigation. Thus, Plaintiffs’ respectfully requests the Court augment the requested

amount of attorneys’ fees by 25% for a total fee award of $163,022.81.

IV. THE COSTS REQUESTED ARE REASONABLE

As outlined in the Declarations filed herewith, Plaintiffs’ counsel has carefully reviewed

the costs expended in this matter in order to ensure that the costs requested reasonably reflect the

amount expended in prosecuting this action. Based on counsel’s review, the Court should award

costs in the amount of $1,920.33. Strindberg Decl. § 31; Block Decl. §22. Plaintiffs are entitled

to this award of costs for expenses as those requested here would normally be billed to fee-

paying clients. 42 U.S.C. § 1988(b).

CONCLUSION

As the prevailing party, Plaintiffs are entitled to recover the attorneys’ fees and costs

expended in this case. As outlined above and in the attached declarations, the Court should

award them $130,418.25 plus 25% of the attorneys’ fees ($32,604.56) and $1,920.33 in other

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costs for a grand total of $164,943.14 to both reflect the fees and costs expended in pursuing this

action and the augmentation allowed by law.

DATED this 7th day of November, 2014.

STRINDBERG & SCHOLNICK, LLC

/s/ Lauren I. Scholnick

Erik Strindberg

Lauren I. Scholnick

Kathryn Harstad

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that the foregoing pleading was served upon the following via the CM/ECF

electronic delivery system.

JONI J. JONES

KYLE K. KAISER

Office of the Utah Attorney General

160 East 300 South

Salt Lake City, UT 84114

jonijones@utah.gov

kkaiser@utah.gov

/s/ Lauren I. Scholnick

B:\CurrentClientsUT\Marriage Equality\Fee Petition\Fees Memo final.docx

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