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FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019
NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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:
ERIC BERLINER, ROBERT FINE, MICHAEL :
ARYEH and JILL PESCE, individually and on :
behalf of all others similarly situated, : Index No. 605904/2019
:
Plaintiffs, : AFFIRMATION OF
: SCOTT E. MOLLEN IN
v. : SUPPORT OF MOTION
: FOR ATTORNEYS’ FEES
NASSAU COUNTY, NASSAU COUNTY :
DEPARTMENT OF ASSESSMENT, :
ASSESSMENT REVIEW COMMISSION, :
LAURA CURRAN in her official capacity as :
County Executive, and DAVID F. MOOG in his :
official capacity as County Assessor for Nassau :
County, :
:
Defendants. :
:
:
:
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STATE OF NEW YORK )
: SS.:
COUNTY OF NEW YORK )
SCOTT E. MOLLEN, an attorney duly admitted to practice before the Courts of the State
of New York, hereby affirms the following upon penalty of perjury.
1. I am a partner at Herrick, Feinstein LLP (“Herrick”), attorneys for Class Plaintiffs
Eric Berliner, Robert Fine, Michael Aryeh, and Jill Pesce (“Plaintiffs”), individually and on behalf
of all others similarly situated (“the Class” and “Subclasses”) in the above-captioned action.
2. I am a lead attorney on this litigation and have actively participated in and
supervised the prosecution of this matter. As such, I am fully familiar with the facts and
proceedings herein.
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3. I respectfully submit this affirmation in connection with the Plaintiffs’ application
for Attorneys’ Fees in the above-captioned action.
4. The amount of outstanding legal fees and costs Herrick Feinstein seeks in this
application is $907,236.72 (which includes a portion advanced by the clients). This amount, as
will be explained herein, is based on a greatly discounted hourly fee rate (reduced from our already
reasonable, standard hourly rates), multiplied by the hours required to be spent during the
prosecution of this complex class action. The size of the discount should eliminate any fair
argument about possible inefficiency or rates. (without the rate reduction already applied, we
would be seeking 1,205, 624.97 in fees and costs).
I. HERRICK’S LEGAL EXPERIENCE AND LEGAL TEAM
5. Since the inception of this litigation in March 2019, Herrick has been counsel for
Plaintiffs in this matter.
6. Herrick is a mid-sized New York law firm comprised of approximately 120
lawyers, providing a broad range of legal services to its clients. The firm has three (3) offices,
New York, Newark, and Istanbul. Herrick maintains active corporate, litigation and real estate
practice groups and also has robust art law, sports law, bankruptcy and restructuring, tax and
personal planning and governmental relations practice groups. For 11 consecutive years (i.e. 2006
– 2017) Herrick has been ranked for excellence in real estate law by Chambers USA in its Guide
to America’s Leading Lawyers. The firm was also cited for its strength in general and complex
commercial litigation by the BTI Consulting Litigation Outlook Report.
7. I have been a member at Herrick since 2001 and I am currently a senior partner at
the firm. I have over 40 years of experience and was ranked by Chambers as one of the best lawyers
in America for Real Estate Litigation and Real Estate Law in 2020. I am member of the Board of
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Editors of the New York Law Journal and write a weekly column entitled “Realty Law Digest” for
the journal. I have served as an Adjunct Professor at St. John’s University School of Law, where
I taught Alternate Dispute Resolution and have lectured on legal issues concerning real estate at
judicial seminars for trial and appellate judges and law departments of the courts as well as for the
Nassau County Bar Association and the Suffolk County Bar Association. I have also been a
member of the Nassau County Bar Association Commercial Litigation Committee.
8. I have argued cases at all levels of the judicial system in New York including
successful appeals to the New York State Appellate Division’s First and Second Departments as
well as the New York Court of Appeals in the areas of attorneys’ fiduciary duties, fraud, public
procurement, real estate and separation of Church and State. See Diamond Asphalt Corp. v. Sander,
92 N.Y.2d 244, 246, 700 N.E.2d 1203, 1204 (1998); Graubard Mollen Dannett & Horowitz v.
Moskovitz, 86 N.Y.2d 112, 653 N.E.2d 1179 (1995); and Congregation Yetev Lev D'Satmar, Inc.
v. Kahana, 9 N.Y.3d 282, 879 N.E.2d 1282 (2007).
9. In Nassau County, I have litigated real estate disputes in the Nassau County
Commercial Division of the New York Supreme Court, including litigation against the City of
Long Beach and the foreclosure of a significant hotel. I have also represented Valley National
Bank in a foreclosure of a property in Great Neck, New York. Additionally, he prevailed in a 10-
month non-jury trial in Suffolk County involving issues of fiduciary duties and the faithless servant
doctrine.
10. I have represented developers in investigations into fundraising activities by the
Governor and the Mayor of New York City and served as a receiver for a large office building in
Nassau County. I also served as a mediator and Special Master in a litigation involving
approximately $300 million dollars of office and retail properties. Within the last three years I
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have represented real estate developers in defense of zoning and land use challenges by community
groups involving more than 1 billion dollars of new construction real estate projects, including
Pier House at Brooklyn Bridge Park hotel and residential condominium development adjacent to
the Brooklyn Bridge.
11. I currently serve on the NYS Supreme Court Commercial Division Advisory
Council, the Grievance Committee for the Appellate Division First’s Department and the NYC
Bar Association Judiciary Committee. Additionally, as a member of former Chief Judge Kaye’s
Committee on the Profession and Courts (“Craco Committee”), I helped address issues involving
Training for New Lawyers, Continuing Mandatory Legal Education, Standards of Civility,
Establishment of an Ethics Institute, Arbitration of Fee Disputes, Client’s Rights and
Responsibilities, Pro Bono Efforts, Attorney Discipline, Alternate Dispute Resolution, Case
Management and Court Calendar Control.
12. Alan D. Kaplan, also co-lead counsel on this matter graduated from the Boston
University School of law and has almost 40 years of experience as an attorney. He began his career
as a prosecuting attorney and subsequently served as regional trial counsel for several prominent
companies. Mr. Kaplan has served as a litigator at Herrick over the past 20 years. His practice is
focused on providing advisory services to Fortune 500 manufacturers, privately-owned businesses,
retailers, transportation companies, food distributors and logistics providers in product liability
litigation, class action defense actions, regarding which Mr. Kaplan was one of the main Counsel
for “Firestone Tires” in a nationwide class action suit involving the infamous “Firestone Tires”
tire recall in 2000. As the chair of Herrick’s Product Liability Practice Group, Mr. Kaplan
frequently advises clients in due diligence investigations, as well as in government investigations
by the Consumer Product Safety Commission, the Food and Drug Administration and the
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Department of Transportation. For many years Mr. Kaplan has been rated a leading product
liability defense lawyer and a top business lawyer by Thomson Reuters' Super Lawyers.
13. We endeavored to staff this matter in an efficient manner. While I had oversight
responsibilities most of the legal work was primarily done by one other partner, Alan Kaplan,
working with one associate and limited paralegal and staff support. Associates and staff handled
the bulk of the drafting, research and administrative work. Additionally, Mr. Kaplan offered his
services at a discounted rate of $650 (Mr. Kaplan normally bills at approximately $900 per hour.
Other than myself and Mr. Kaplan, the primary attorneys staffed on this matter are Maame Esi
Austin and Elena McDermott (who worked on this matter until early this year when she went on
maternity leave). Indeed, this litigation was leanly staffed and primarily conducted by three
attorneys at any given time with assignments allocated in a way that avoided unnecessary
duplication.
14. Herrick also utilized paralegals when it was cost effective to do so. Finally, Herrick
utilized litigation support analysts employed by the firm for purposes of electronic collection,
processing, review, and production of documents in this litigation. Other support staff were
employed, including members of the managing attorney’s office, to handle court facing issues,
such as scheduling, filing, docketing, calendaring, among other services. Copies of all the
foregoing attorneys’ and staff’s biographies are attached hereto as Exhibit A.
II. HERRICK’S LEGAL FEES AND COSTS
15. From the inception of the case, in March 2019, through September 30, 2020,
Herrick has incurred $907,236.72 in attorneys’ fees and costs. Herrick’s detailed billing records
from April 2019 through September 2020 are attached as Exhibit B (the “Herrick Invoices.”)
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16. The Herrick Invoices were periodically rendered to Plaintiffs for the work done on
this matter. The Herrick Invoices include a description of the work done, the hours billed for
specific tasks, and the total amount incurred.
17. Preparing these invoices is a regular practice for Herrick, in the ordinary course of
its business. All timekeepers working on this matter are responsible for submitting daily
timesheets describing the nature of the work performed and the amount of time spent, in six-minute
intervals, into a billing system. The billing system compiles these entries into a document called
a pro-forma. From these records a billing summary is generated.
18. Out-of-pocket disbursements and costs are also detailed and added to each pro-
forma, including costs for telecommunications, copying, scanning, binding, postage, shipping,
court filing, and other costs. Herrick employs technological tools to further improve the efficient
delivery of legal services, including utilizing research services such as Westlaw and Lexis and ESI
systems, such as Relativity, the costs for which are also added to a pro-forma.
19. Each month, I review the pro-forma. After I approve the pro-forma, our accounting
department prepares a Herrick Invoice to issue to Plaintiffs after which Plaintiffs will render
payment based on the terms of the retainer agreement negotiated at the start of this action. Thus
far, Plaintiffs payments in this action have amounted to $278,750.00.
20. In this matter however, extensive discounts amounting to $298,388.25 in total were
provided to Plaintiffs. These discounts include applying a 10% discount on rates charged by all
timekeepers including myself, charging a special discount rate of $650 for Mr. Kaplan where he
normally bills at a rate approximately $900 an hour, and charging a special discount rates of $275
and $395 for associates Maame Esi Austin from and Elena McDermott respectively. Additionally,
we ensured that the special rates for Mr. Kaplan, Ms. Austin and Ms. McDermott did not rise
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between 2019 and 2020 as customarily occurs. Finally, we are also not seeking an award for the
time billed by staff and attorneys who did not have a significant role in the prosecution of this
matter.
21. The hourly rates all timekeepers have charged on this matter are reflect not only the
educational background, training, and years of legal experience each timekeeper has, but also the
prevailing hourly rates in the New York legal market and Herrick’s reputation. The below table
reflects that most of the work was done by one partner and at ultimate times, one associate and
shows the discounted hourly rates and the total hours billed by primary timekeepers:
TIMEKEEPERS STANDARD DISCOUNTED TOTAL HOURS
HOURLY RATES HOURLY RATES BILLED
(2019 – 2020) (2019 – 2020)
Scott Mollen (Partner) $1,025- $1,050 $922.50 - $945.00 242.5
Alan Kaplan (Partner) $880 - $900 $650 674.3
Elena McDermott $395 - $415 $395 146
(Associate)
Maame Esi Austin $370 - $415 $275 438.8
(Associate)
Paralegals $360 - $390 $324 - $351 81.5
Support Staff ($300 – $390) – ($270 - $351) – 8.3
(including Managing ($320 - $410) ($292.50 - $369)
Attorneys, Litigation
Support, E-Discovery
Support)
22. Based on the lodestar method (hours multiplied by customary hourly rates), counsel
have expended 1,626.1 hours billed at standard rates amounting to $1,190, 561.75. Thus, with total
costs and disbursements over the lifetime of this litigation amounting to $15,779.97, Class
Counsel’s lodestar plus expenses amounts to $1,205, 624.97.
23. However, as a result of the discounted rates of primary timekeepers as well as the
additional discounts offered to Plaintiffs throughout this process the total in attorney’s fees and
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costs have been discounted by $298,388.25. Thus, Counsel is seeking only $907,236.72 to cover
all attorneys’ fees and costs (representing $891,456.75 in fees and to $15,779.97 in costs).
24. Apart from case law, numerous legal publications establish that Herrick’s hourly
rates are in line with those charged by attorneys in the New York legal market. [Ex. C (attaching
relevant articles).]
25. Further, in a 2013 bankruptcy case, over 7 years ago, Wolf Haldenstein, Counsel
for the County, identified the following hourly rates for its’ attorneys and staff, which are in line
with Herrick’s current rates: partners $540 to $795 per hour, associates $415 per hour, paralegals
$225-$305 per hour, demonstrating the reasonableness of Herrick’s hourly rates. [Ex. D (Wolf
Haldenstein Fee Application, In re Residential Capital, LLC, No. 12-12020, (Bankr. S.D.N.Y.
Dec. 09, 2013).]
26. Additionally, in a 2016 copyright class action suit that involved a team of five
attorneys from Wolf Haldenstein, Mark Rifkin, lead Counsel for the County in this matter is
indicated to have billed at a rate of $820 dollars an hour (Ex. E (attaching relevant article)]1.
III. WORK DONE BY HERRICK ON THIS LITIGATION
27. Below is the work that Herrick has completed to date on this matter:
28. Preliminary Investigation: The preliminary work on this matter began at the end
of March 2019 and continued to the filing of our hybrid class action complaint and request for
Article 78 relief. It involved preliminary conversations with the clients, and preliminary research
of the potential issues which would be involved in a case of this magnitude. Including Notice of
Claims issues, jurisdictional issues (Federal v. State court), prior tax assessment lawsuits, the status
of the Hall class action law suit against Nassau County pending in the Eastern District of New
1
Pursuant to the instructions of Chambers, all Exhibits will be produced separately to the court and not e-filed.
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York (“New York”) , the Coleman decree, the benefits of a class action (and requirements to bring
one), considered the potential causes of action available, as well as the potential damages and relief
to pursue.
29. Complaint and Article 78 Petition: Following an initial investigation of the issues
in dispute, Herrick prepared and filed our hybrid class action and request for Article 78 relief on
April 30, 2019.
30. Opposition to Motion to Dismiss: In response to our pleadings, the County filed a
motion to dismiss the entirety of Plaintiffs’ claims. Accordingly, we devoted extensive time to
reviewing the County’s comprehensive motion, researching and preparing leading up to the filing
of our extensive opposition papers (memorandum of law and affidavits) and arguing orally before
Justice Bucaria.
31. Class Certification: Plaintiffs sought Class Certification which was granted in a
January 2020 decision by Justice Bucaria. As the application had been opposed by the County,
Herrick defended the County’s opposition to Plaintiffs’ class certification motion and also
performed follow up research requested by the judge at our initial conference involving the scope
of judicial remedies that could be exercised, as well as the Court’s authority to address federal
substantive issues. A further hearing which was held in court based on an application by the
County to limit the trial to Article 78 issues alone. This application which was eventually denied
by the Court necessitated a response from Plaintiffs in writing. Further, a related motion
subsequently made by the County, for a jury trial was also successfully opposed by the Plaintiffs.
32. Document Discovery: Herrick fully engaged in document discovery, including
collecting and processing hard copy and electronic documents and email communications,
applying search terms to data, and reviewing a base set of documents for responsiveness, making
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document productions on its part, and reviewing the County’s document production consisting of
over 42,000 pages of documents. Discovery was plagued by disputes as the County was
egregiously deficient in its disclosures. In fact, the County repeatedly resisted production of
requested documents, attempted to assert trade secrets, and only conceded to provide the requested
information after repeated applications were made to the court.
33. Preliminary Injunction: The County’s delays and subsequent requests to extend
discovery necessitated the filing of a preliminary injunction by Plaintiffs to halt the finalization of
the tax roll before the disposition of this matter.
34. Depositions: Parties also engaged in depositions which was also notably rendered
difficult by Defendants who refused to produce certain key witnesses.
35. Summary Judgment: In an effort to reach an early resolution of the matter, Herrick
opted to file a Summary Judgment motion following discovery/ depositions. Simultaneously, the
County also filed a Summary Judgment Motion seeking to deny all of Plaintiffs’ surviving claims.
Accordingly, Herrick also prepared and filed an opposition to the County’s Summary Judgment
Motion.
36. Motion to Decertify: Dissatisfied with Justice Bucaria’s decision granting Class
Certification to Plaintiffs, the County in essence appealed this decision by filing a Motion to
Decertify the Class. In connection with this Motion, Herrick prepared an extensive opposition
brief and also prepared and appeared for oral argument resulting in more time being expended in
this matter.
37. Motion to Preclude: Alongside the Summary Judgment Motion and the Motion to
Decertify, Defendants also filed a Motion to Preclude Plaintiffs’ experts. In response, Plaintiffs
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prepared and filed an extensive brief opposing Defendants’ Motion thereby resulting in more time
being expended in this matter.
38. Trial Preparation: Though ultimately adjourned, trial was scheduled in this mater
for August 30, 2020 for which Plaintiffs extensively prepared for.
39. Settlement Discussions: On March 8, 2020, the first informal settlement
discussions took place as the parties continued to exchange documents and move forward with
discovery in compliance with the tight schedule imposed by the Court. Following discovery and
Plaintiffs’ successful opposition of Defendants’ various motions, the Parties arrived at a settlement
agreement which substantially rectifies the process of reassessment and ensures that challenges to
the County’s individual assessment are now adjusted for fairness. Significantly, at each step of
the way, Plaintiffs reached out to the Defendants in an effort to amicably resolve issues, including
after the filing of the complaint.
40. Indeed, most of the work completed by Herrick in this matter was work that we
were compelled to do as a result of Defendant’s litigation tactics. We were compelled to respond
to four (4) separate motions namely the Defendants’ Motion to dismiss, Motion for Summary
Judgment, Motion to Decertify the Plaintiff Class and Motion to Preclude Plaintiffs’ Experts and
we prevailed on almost every cause of action on the Motion to Dismiss as well as overcoming
Defendant’s motions for summary judgment, decertification and to preclude experts.
41. Additionally, we prevailed against the Defendants on the issue of jury trial, as well
winning significant concessions in numerous disputes over document discovery. In fact, note that
many class actions are settled after very limited discovery and before dispositive motions yet here,
Defendants approached the settlement table with greater concern only after extensive initial motion
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practice, extensive discovery, extensive dispositive motions and negotiations that lasted nearly 6
months.
42. In sum, Plaintiffs have a strong legal and factual basis to recover 100% percent of
its attorneys’ fees and costs based on the lodestar method. Plaintiffs are willing, however, to
compromise in an effort to resolve the issue of attorneys’ fees and costs by accepting payment at
its discounted rate of $907,236.72.
Dated: New York, New York
October 1, 2020
/s/ Scott E. Mollen
Scott E. Mollen
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Preview
FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------- x : ERIC BERLINER, ROBERT FINE, MICHAEL : ARYEH and JILL PESCE, individually and on : behalf of all others similarly situated, : Index No. 605904/2019 : Plaintiffs, : AFFIRMATION OF : SCOTT E. MOLLEN IN v. : SUPPORT OF MOTION : FOR ATTORNEYS’ FEES NASSAU COUNTY, NASSAU COUNTY : DEPARTMENT OF ASSESSMENT, : ASSESSMENT REVIEW COMMISSION, : LAURA CURRAN in her official capacity as : County Executive, and DAVID F. MOOG in his : official capacity as County Assessor for Nassau : County, : : Defendants. : : : : --------------------------------------------------------- x STATE OF NEW YORK ) : SS.: COUNTY OF NEW YORK ) SCOTT E. MOLLEN, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms the following upon penalty of perjury. 1. I am a partner at Herrick, Feinstein LLP (“Herrick”), attorneys for Class Plaintiffs Eric Berliner, Robert Fine, Michael Aryeh, and Jill Pesce (“Plaintiffs”), individually and on behalf of all others similarly situated (“the Class” and “Subclasses”) in the above-captioned action. 2. I am a lead attorney on this litigation and have actively participated in and supervised the prosecution of this matter. As such, I am fully familiar with the facts and proceedings herein. 1 1 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 3. I respectfully submit this affirmation in connection with the Plaintiffs’ application for Attorneys’ Fees in the above-captioned action. 4. The amount of outstanding legal fees and costs Herrick Feinstein seeks in this application is $907,236.72 (which includes a portion advanced by the clients). This amount, as will be explained herein, is based on a greatly discounted hourly fee rate (reduced from our already reasonable, standard hourly rates), multiplied by the hours required to be spent during the prosecution of this complex class action. The size of the discount should eliminate any fair argument about possible inefficiency or rates. (without the rate reduction already applied, we would be seeking 1,205, 624.97 in fees and costs). I. HERRICK’S LEGAL EXPERIENCE AND LEGAL TEAM 5. Since the inception of this litigation in March 2019, Herrick has been counsel for Plaintiffs in this matter. 6. Herrick is a mid-sized New York law firm comprised of approximately 120 lawyers, providing a broad range of legal services to its clients. The firm has three (3) offices, New York, Newark, and Istanbul. Herrick maintains active corporate, litigation and real estate practice groups and also has robust art law, sports law, bankruptcy and restructuring, tax and personal planning and governmental relations practice groups. For 11 consecutive years (i.e. 2006 – 2017) Herrick has been ranked for excellence in real estate law by Chambers USA in its Guide to America’s Leading Lawyers. The firm was also cited for its strength in general and complex commercial litigation by the BTI Consulting Litigation Outlook Report. 7. I have been a member at Herrick since 2001 and I am currently a senior partner at the firm. I have over 40 years of experience and was ranked by Chambers as one of the best lawyers in America for Real Estate Litigation and Real Estate Law in 2020. I am member of the Board of 2 2 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 Editors of the New York Law Journal and write a weekly column entitled “Realty Law Digest” for the journal. I have served as an Adjunct Professor at St. John’s University School of Law, where I taught Alternate Dispute Resolution and have lectured on legal issues concerning real estate at judicial seminars for trial and appellate judges and law departments of the courts as well as for the Nassau County Bar Association and the Suffolk County Bar Association. I have also been a member of the Nassau County Bar Association Commercial Litigation Committee. 8. I have argued cases at all levels of the judicial system in New York including successful appeals to the New York State Appellate Division’s First and Second Departments as well as the New York Court of Appeals in the areas of attorneys’ fiduciary duties, fraud, public procurement, real estate and separation of Church and State. See Diamond Asphalt Corp. v. Sander, 92 N.Y.2d 244, 246, 700 N.E.2d 1203, 1204 (1998); Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 653 N.E.2d 1179 (1995); and Congregation Yetev Lev D'Satmar, Inc. v. Kahana, 9 N.Y.3d 282, 879 N.E.2d 1282 (2007). 9. In Nassau County, I have litigated real estate disputes in the Nassau County Commercial Division of the New York Supreme Court, including litigation against the City of Long Beach and the foreclosure of a significant hotel. I have also represented Valley National Bank in a foreclosure of a property in Great Neck, New York. Additionally, he prevailed in a 10- month non-jury trial in Suffolk County involving issues of fiduciary duties and the faithless servant doctrine. 10. I have represented developers in investigations into fundraising activities by the Governor and the Mayor of New York City and served as a receiver for a large office building in Nassau County. I also served as a mediator and Special Master in a litigation involving approximately $300 million dollars of office and retail properties. Within the last three years I 3 3 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 have represented real estate developers in defense of zoning and land use challenges by community groups involving more than 1 billion dollars of new construction real estate projects, including Pier House at Brooklyn Bridge Park hotel and residential condominium development adjacent to the Brooklyn Bridge. 11. I currently serve on the NYS Supreme Court Commercial Division Advisory Council, the Grievance Committee for the Appellate Division First’s Department and the NYC Bar Association Judiciary Committee. Additionally, as a member of former Chief Judge Kaye’s Committee on the Profession and Courts (“Craco Committee”), I helped address issues involving Training for New Lawyers, Continuing Mandatory Legal Education, Standards of Civility, Establishment of an Ethics Institute, Arbitration of Fee Disputes, Client’s Rights and Responsibilities, Pro Bono Efforts, Attorney Discipline, Alternate Dispute Resolution, Case Management and Court Calendar Control. 12. Alan D. Kaplan, also co-lead counsel on this matter graduated from the Boston University School of law and has almost 40 years of experience as an attorney. He began his career as a prosecuting attorney and subsequently served as regional trial counsel for several prominent companies. Mr. Kaplan has served as a litigator at Herrick over the past 20 years. His practice is focused on providing advisory services to Fortune 500 manufacturers, privately-owned businesses, retailers, transportation companies, food distributors and logistics providers in product liability litigation, class action defense actions, regarding which Mr. Kaplan was one of the main Counsel for “Firestone Tires” in a nationwide class action suit involving the infamous “Firestone Tires” tire recall in 2000. As the chair of Herrick’s Product Liability Practice Group, Mr. Kaplan frequently advises clients in due diligence investigations, as well as in government investigations by the Consumer Product Safety Commission, the Food and Drug Administration and the 4 4 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 Department of Transportation. For many years Mr. Kaplan has been rated a leading product liability defense lawyer and a top business lawyer by Thomson Reuters' Super Lawyers. 13. We endeavored to staff this matter in an efficient manner. While I had oversight responsibilities most of the legal work was primarily done by one other partner, Alan Kaplan, working with one associate and limited paralegal and staff support. Associates and staff handled the bulk of the drafting, research and administrative work. Additionally, Mr. Kaplan offered his services at a discounted rate of $650 (Mr. Kaplan normally bills at approximately $900 per hour. Other than myself and Mr. Kaplan, the primary attorneys staffed on this matter are Maame Esi Austin and Elena McDermott (who worked on this matter until early this year when she went on maternity leave). Indeed, this litigation was leanly staffed and primarily conducted by three attorneys at any given time with assignments allocated in a way that avoided unnecessary duplication. 14. Herrick also utilized paralegals when it was cost effective to do so. Finally, Herrick utilized litigation support analysts employed by the firm for purposes of electronic collection, processing, review, and production of documents in this litigation. Other support staff were employed, including members of the managing attorney’s office, to handle court facing issues, such as scheduling, filing, docketing, calendaring, among other services. Copies of all the foregoing attorneys’ and staff’s biographies are attached hereto as Exhibit A. II. HERRICK’S LEGAL FEES AND COSTS 15. From the inception of the case, in March 2019, through September 30, 2020, Herrick has incurred $907,236.72 in attorneys’ fees and costs. Herrick’s detailed billing records from April 2019 through September 2020 are attached as Exhibit B (the “Herrick Invoices.”) 5 5 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 16. The Herrick Invoices were periodically rendered to Plaintiffs for the work done on this matter. The Herrick Invoices include a description of the work done, the hours billed for specific tasks, and the total amount incurred. 17. Preparing these invoices is a regular practice for Herrick, in the ordinary course of its business. All timekeepers working on this matter are responsible for submitting daily timesheets describing the nature of the work performed and the amount of time spent, in six-minute intervals, into a billing system. The billing system compiles these entries into a document called a pro-forma. From these records a billing summary is generated. 18. Out-of-pocket disbursements and costs are also detailed and added to each pro- forma, including costs for telecommunications, copying, scanning, binding, postage, shipping, court filing, and other costs. Herrick employs technological tools to further improve the efficient delivery of legal services, including utilizing research services such as Westlaw and Lexis and ESI systems, such as Relativity, the costs for which are also added to a pro-forma. 19. Each month, I review the pro-forma. After I approve the pro-forma, our accounting department prepares a Herrick Invoice to issue to Plaintiffs after which Plaintiffs will render payment based on the terms of the retainer agreement negotiated at the start of this action. Thus far, Plaintiffs payments in this action have amounted to $278,750.00. 20. In this matter however, extensive discounts amounting to $298,388.25 in total were provided to Plaintiffs. These discounts include applying a 10% discount on rates charged by all timekeepers including myself, charging a special discount rate of $650 for Mr. Kaplan where he normally bills at a rate approximately $900 an hour, and charging a special discount rates of $275 and $395 for associates Maame Esi Austin from and Elena McDermott respectively. Additionally, we ensured that the special rates for Mr. Kaplan, Ms. Austin and Ms. McDermott did not rise 6 6 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 between 2019 and 2020 as customarily occurs. Finally, we are also not seeking an award for the time billed by staff and attorneys who did not have a significant role in the prosecution of this matter. 21. The hourly rates all timekeepers have charged on this matter are reflect not only the educational background, training, and years of legal experience each timekeeper has, but also the prevailing hourly rates in the New York legal market and Herrick’s reputation. The below table reflects that most of the work was done by one partner and at ultimate times, one associate and shows the discounted hourly rates and the total hours billed by primary timekeepers: TIMEKEEPERS STANDARD DISCOUNTED TOTAL HOURS HOURLY RATES HOURLY RATES BILLED (2019 – 2020) (2019 – 2020) Scott Mollen (Partner) $1,025- $1,050 $922.50 - $945.00 242.5 Alan Kaplan (Partner) $880 - $900 $650 674.3 Elena McDermott $395 - $415 $395 146 (Associate) Maame Esi Austin $370 - $415 $275 438.8 (Associate) Paralegals $360 - $390 $324 - $351 81.5 Support Staff ($300 – $390) – ($270 - $351) – 8.3 (including Managing ($320 - $410) ($292.50 - $369) Attorneys, Litigation Support, E-Discovery Support) 22. Based on the lodestar method (hours multiplied by customary hourly rates), counsel have expended 1,626.1 hours billed at standard rates amounting to $1,190, 561.75. Thus, with total costs and disbursements over the lifetime of this litigation amounting to $15,779.97, Class Counsel’s lodestar plus expenses amounts to $1,205, 624.97. 23. However, as a result of the discounted rates of primary timekeepers as well as the additional discounts offered to Plaintiffs throughout this process the total in attorney’s fees and 7 7 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 costs have been discounted by $298,388.25. Thus, Counsel is seeking only $907,236.72 to cover all attorneys’ fees and costs (representing $891,456.75 in fees and to $15,779.97 in costs). 24. Apart from case law, numerous legal publications establish that Herrick’s hourly rates are in line with those charged by attorneys in the New York legal market. [Ex. C (attaching relevant articles).] 25. Further, in a 2013 bankruptcy case, over 7 years ago, Wolf Haldenstein, Counsel for the County, identified the following hourly rates for its’ attorneys and staff, which are in line with Herrick’s current rates: partners $540 to $795 per hour, associates $415 per hour, paralegals $225-$305 per hour, demonstrating the reasonableness of Herrick’s hourly rates. [Ex. D (Wolf Haldenstein Fee Application, In re Residential Capital, LLC, No. 12-12020, (Bankr. S.D.N.Y. Dec. 09, 2013).] 26. Additionally, in a 2016 copyright class action suit that involved a team of five attorneys from Wolf Haldenstein, Mark Rifkin, lead Counsel for the County in this matter is indicated to have billed at a rate of $820 dollars an hour (Ex. E (attaching relevant article)]1. III. WORK DONE BY HERRICK ON THIS LITIGATION 27. Below is the work that Herrick has completed to date on this matter: 28. Preliminary Investigation: The preliminary work on this matter began at the end of March 2019 and continued to the filing of our hybrid class action complaint and request for Article 78 relief. It involved preliminary conversations with the clients, and preliminary research of the potential issues which would be involved in a case of this magnitude. Including Notice of Claims issues, jurisdictional issues (Federal v. State court), prior tax assessment lawsuits, the status of the Hall class action law suit against Nassau County pending in the Eastern District of New 1 Pursuant to the instructions of Chambers, all Exhibits will be produced separately to the court and not e-filed. 8 8 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 York (“New York”) , the Coleman decree, the benefits of a class action (and requirements to bring one), considered the potential causes of action available, as well as the potential damages and relief to pursue. 29. Complaint and Article 78 Petition: Following an initial investigation of the issues in dispute, Herrick prepared and filed our hybrid class action and request for Article 78 relief on April 30, 2019. 30. Opposition to Motion to Dismiss: In response to our pleadings, the County filed a motion to dismiss the entirety of Plaintiffs’ claims. Accordingly, we devoted extensive time to reviewing the County’s comprehensive motion, researching and preparing leading up to the filing of our extensive opposition papers (memorandum of law and affidavits) and arguing orally before Justice Bucaria. 31. Class Certification: Plaintiffs sought Class Certification which was granted in a January 2020 decision by Justice Bucaria. As the application had been opposed by the County, Herrick defended the County’s opposition to Plaintiffs’ class certification motion and also performed follow up research requested by the judge at our initial conference involving the scope of judicial remedies that could be exercised, as well as the Court’s authority to address federal substantive issues. A further hearing which was held in court based on an application by the County to limit the trial to Article 78 issues alone. This application which was eventually denied by the Court necessitated a response from Plaintiffs in writing. Further, a related motion subsequently made by the County, for a jury trial was also successfully opposed by the Plaintiffs. 32. Document Discovery: Herrick fully engaged in document discovery, including collecting and processing hard copy and electronic documents and email communications, applying search terms to data, and reviewing a base set of documents for responsiveness, making 9 9 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 document productions on its part, and reviewing the County’s document production consisting of over 42,000 pages of documents. Discovery was plagued by disputes as the County was egregiously deficient in its disclosures. In fact, the County repeatedly resisted production of requested documents, attempted to assert trade secrets, and only conceded to provide the requested information after repeated applications were made to the court. 33. Preliminary Injunction: The County’s delays and subsequent requests to extend discovery necessitated the filing of a preliminary injunction by Plaintiffs to halt the finalization of the tax roll before the disposition of this matter. 34. Depositions: Parties also engaged in depositions which was also notably rendered difficult by Defendants who refused to produce certain key witnesses. 35. Summary Judgment: In an effort to reach an early resolution of the matter, Herrick opted to file a Summary Judgment motion following discovery/ depositions. Simultaneously, the County also filed a Summary Judgment Motion seeking to deny all of Plaintiffs’ surviving claims. Accordingly, Herrick also prepared and filed an opposition to the County’s Summary Judgment Motion. 36. Motion to Decertify: Dissatisfied with Justice Bucaria’s decision granting Class Certification to Plaintiffs, the County in essence appealed this decision by filing a Motion to Decertify the Class. In connection with this Motion, Herrick prepared an extensive opposition brief and also prepared and appeared for oral argument resulting in more time being expended in this matter. 37. Motion to Preclude: Alongside the Summary Judgment Motion and the Motion to Decertify, Defendants also filed a Motion to Preclude Plaintiffs’ experts. In response, Plaintiffs 10 10 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 prepared and filed an extensive brief opposing Defendants’ Motion thereby resulting in more time being expended in this matter. 38. Trial Preparation: Though ultimately adjourned, trial was scheduled in this mater for August 30, 2020 for which Plaintiffs extensively prepared for. 39. Settlement Discussions: On March 8, 2020, the first informal settlement discussions took place as the parties continued to exchange documents and move forward with discovery in compliance with the tight schedule imposed by the Court. Following discovery and Plaintiffs’ successful opposition of Defendants’ various motions, the Parties arrived at a settlement agreement which substantially rectifies the process of reassessment and ensures that challenges to the County’s individual assessment are now adjusted for fairness. Significantly, at each step of the way, Plaintiffs reached out to the Defendants in an effort to amicably resolve issues, including after the filing of the complaint. 40. Indeed, most of the work completed by Herrick in this matter was work that we were compelled to do as a result of Defendant’s litigation tactics. We were compelled to respond to four (4) separate motions namely the Defendants’ Motion to dismiss, Motion for Summary Judgment, Motion to Decertify the Plaintiff Class and Motion to Preclude Plaintiffs’ Experts and we prevailed on almost every cause of action on the Motion to Dismiss as well as overcoming Defendant’s motions for summary judgment, decertification and to preclude experts. 41. Additionally, we prevailed against the Defendants on the issue of jury trial, as well winning significant concessions in numerous disputes over document discovery. In fact, note that many class actions are settled after very limited discovery and before dispositive motions yet here, Defendants approached the settlement table with greater concern only after extensive initial motion 11 11 of 12 FILED: NASSAU COUNTY CLERK 10/01/2020 04:49 PM INDEX NO. 605904/2019 NYSCEF DOC. NO. 165 RECEIVED NYSCEF: 10/01/2020 practice, extensive discovery, extensive dispositive motions and negotiations that lasted nearly 6 months. 42. In sum, Plaintiffs have a strong legal and factual basis to recover 100% percent of its attorneys’ fees and costs based on the lodestar method. Plaintiffs are willing, however, to compromise in an effort to resolve the issue of attorneys’ fees and costs by accepting payment at its discounted rate of $907,236.72. Dated: New York, New York October 1, 2020 /s/ Scott E. Mollen Scott E. Mollen 12 12 of 12