EDNY judge adjusts hourly rates for prevailing parties

 A judge in the Eastern District of New York has increased the top rate for attorneys' fees in cases, typically civil rights matters, where the losing party is statutorily required to pay the plaintiff's lawyers who won the case. The top rate was $450 per hour. Now it's $650 for partners.

The case is Rubin v. HSBC Bank, issued on January 21 (scroll down that link for the PDF). This is a Fair Credit Reporting Act case involving alleged credit card fraud. After the parties settled the case, they litigated the attorneys' fees. Judge Block uses this case to examine the case law guiding attorneys' fees and asks hard questions about how the EDNY has settled on the rates that have been in place since 2012, when partners got $300-$450/hour. 

Judge Block wonders why this rate has stayed the same ever since, despite years of inflation. (While he does not discuss this, the Second Circuit has held that EDNY rates may be lower than SDNY rates even though both districts include New York City and sit right next to each other). And he wonders how courts are expected to apply the Second Circuit's framework for resolving attorneys' fees; that framework asks what a hypothetical, reasonable paying client would pay to win the case. The Second Circuit developed that test in Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008). He notes further that EDNY judges "have been making reasonability determinations for decades out of whole cloth," and that this ad hoc approach is usually based on indeterminate factors, such as inflation. In addition, the hourly rates are usually identical no matter what case the parties are litigating, be it an employment discrimination or intellectual property case.

After reciting a poem about "the pitfalls of following the calf's path," and admitting that he has recently followed the calf's path himself in setting hourly rates (despite reading this poem to his law clerks each year), Judge Block says the top hourly rate in the EDNY for at least the next five years should be $450-$650 for partners, $300-$450 for senior associates, $150-$300 for junior associates, and $100-$150 for paralegals, more in line with Southern District rates.