Marion S. Mishkin Law Office v. Lopalo
2014 U.S. App. LEXIS 16492
2d Cir.2014Background
- Mishkin appeals a district court denial of attorneys’ fees for work as plaintiffs’ liaison counsel in 9/11 non-respiratory bodily injury cases.
- District court recognized Mishkin was entitled to some fee for liaison work but denied due to inflated, non-contemporaneous time records and scope beyond appointment.
- Mishkin allegedly served as liaison counsel prior to 2005 in state court; cases removed to SDNY in 2005 and initially treated as respiratory litigation.
- District court appointed Mishkin as liaison counsel in 2008, removed her in 2008, then reinstated her in 2009 with co-liaison counsel; duties included coordination, reporting, and case management tasks.
- Mishkin sought $1,868,445 in 2012; the district court denied, noting work beyond liaison scope and that time records were not contemporaneous; later revised to $418,995.
- On appeal, court held denial was error for lack of proper inquiry into timekeeping and remanded to determine if Mishkin kept contemporaneous records and, if so, an appropriate fee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contemporaneous records requirement for fees | Mishkin did keep contemporaneous records or sufficient documentation. | Carey requirement for contemporaneous records applies; Mishkin’s records were reconstructed. | Remand to determine if Mishkin kept sufficient contemporaneous records |
| Proper governing law for payment of liaison counsel | State-law rules may apply to fee recovery since underlying claims are state-law. | Appointment flows from district court’s inherent federal authority; federal law governs fees. | Federal law governs payment; pre-appointment work not compensable |
| Scope of liaison counsel duties and fee entitlement | Mishkin is entitled to fees for liaison work as ordered by court; duties include coordination and reporting. | Time sought exceeded appointment scope; certain tasks were makework or outside scope. | Remand to assess whether time entries fit the scope and award appropriate fees |
| Remedy if records are non-contemporaneous | If records exist, some fees should be recoverable; district court should assess fairly. | If records unrecoverable, fees should be denied or reduced per Carey and related precedents. | Court may apply substantial reduction or other remedy on remand |
Key Cases Cited
- New York State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir.1983) (contemporaneous time records required for court-ordered fees)
- Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47 (2d Cir.1992) (state-law creates substantive fee right; can allow reconstructed records)
- Scott v. City of New York, 626 F.3d 130 (2d Cir.2010) (strict Carey rule; deviation only in rare cases)
- Scott v. City of New York, 643 F.3d 56 (2d Cir.2011) (entries in court records may serve as documentation; not mandatory to award based on them)
- In re Zyprexa Prods. Liab. Litig., 594 F.3d 113 (2d Cir.2010) (MDLs use lead counsel to coordinate complex litigation)
- MacAlister v. Guterma, 263 F.2d 65 (2d Cir.1958) (court inherent powers to supervise and coordinate litigation)
- In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006 (5th Cir.1977) (inherent authority to manage massive complex litigation)
- Carey (supra), 711 F.2d 1136 (2d Cir.1983) (Carey standard for contemporaneous records and fee eligibility)