In today's San Francisco Chronicle, columnist C.W. Nevius linked our little blog highlighting a post I wrote two years ago. Delighted with the attention, but since he linked the home page, I am reposting the article he references so it is easy to find. The original post is
Linked Here, a follow up post is
Linked Here, and the complete repost is below following this excerpt from his
column:
By C.W. Nevius July 10, 2015
"Illston was not impressed. In her ruling, she said the plaintiffs’ lack of success led “the Court to believe that a large majority of the time spent was ‘excessive, redundant, or otherwise unnecessary.’” What’s more, she wrote, “plaintiffs failed to satisfactorily explain why Glitzenstein and Crystal, at $700 an hour or greater, spent so much time on this case. Most of the issues in this case were not complex. Yet the Washington, D.C., attorneys account for half of the attorney hours spent on the case.” So, you assume, that was the end of that. The institute didn’t win and the judge thinks the fees are excessive. Not so fast. Illston cut the amount, but still awarded $385,809, paid by San Francisco. A tidy sum for a losing effort.
Blogger and “enthusiastic but bad golfer” Mike Wallach was one of the first to pick up on this. In his blog, MW Mobile Blog, he created a post in 2013 headlined, “Why Sharp Park lawsuits will never end: We pay them to sue us.”
*****
REPOST from 2/11/2013 (with repaired links):
In December U.S. District Judge
Susan Illston dismissed a lawsuit filed by the W.E.B.L.E.E.D.U. Axis
(Wildly Equitable Biodiverse Litigants for Ecological Extortion and Deep Untruths) to shut down the City's landmark Sharp Park golf course. This led some to wonder whether the long running
Battle for Sharp Park might finally be over.
Spoiler alert:
No.
I was laboring under no such illusion. On Friday February 8, 2013 the WEBLEEDU's filed a pleading with Judge Illston that demonstrates
exactly why these lawsuits will never end:
"In a curious twist in the long-running fight between anti-golf activists and San Francisco over the fate of the city’s historic public Sharp Park Golf Course, the Tucson-based Center for Biological Diversity, Wild Equity Institute, and a handful of other groups filed a motion here today in Federal Court, asking the same Federal Judge who dismissed their lawsuit in December, 2012 to order the City of San Francisco to pay their legal bill of more than $1.3 Million... The Plaintiffs’ fee motion was filed under a provision of the Endangered Species Act that authorizes the Courts to award legal fees “whenever the Court determines such award is appropriate”. Plaintiffs seek payment for more than 2,000 hours of attorneys time, most of which are billed at hourly rates between $550 and $750."
The press release quotes Bo Links of the San Francisco Public Golf Alliance echoing the feelings of most people hearing this story - with bemusement and incredulity: “
It’s a head-scratcher... This is environmental litigation in Wonderland... they lose every motion they file, and their case is thrown out. And now they want the Court to order the City to pay their attorney’s fees?”
Of course it makes no sense. But that does not mean the WEBLEEDU's won't get paid. It is very possible that the people of San Francisco will be forced to pay some or most of their attorney fees. Welcome to the Looking Glass World of EAJA (Equal Access to Justice Act) legal fee reimbursements.
The NeverEnding Sharp Park Lawsuits
In recent years, similar legal fees have often been
awarded to at least one of the plaintiffs - the Tucson based
"Center For Biological Diversity". Regardless of motivation, lucrative reimbursement of legal fees represent a significant financial incentive for litigants from CBD and their local "mini-me" variant the "Wild Equity Institute" founded by a relocated CBD staff attorney. Think about it. As a lawyer, why go through all that hard work finding a client who will pay your hourly rate if you can just sue a federal agency, state or local municipality and have a judge grant you whatever fees you request?
The simple reason why these lawsuits in general and the Sharp Park lawsuits in particular
will never end, is that we - the taxpayers - at a federal, state, and even municipal level are paying environmental ambulance chasers a lot of money to sue us.
Why, you may ask, are we paying these fees? Therein lies a tale of unintended consequences. For thirty years we have been sliding down a regulatory slope that started with Equal Access to Justice Act, was accelerated with the Endangered Species Act, and flew off the cliff with a series of poorly thought out legislative modifications and judicial decisions. As a consequence, the good intentions of both these legislative acts are now regularly abused and perverted into something that was never anticipated by their authors. This sordid legislative history is worth a detailed look, but first - What kind of a financial incentive to sue are we really talking about? The recent Sharp Park filing is a good illustration.
The Sharp Park Legal Fee Reimbursement Windfall
Brent Plater was the lead attorney on the dismissed lawsuit against the City of San Francisco regarding Sharp Park. Mr. Plater learned the environmental litigation game when he was a staff attorney at the Center for Biological Diversity. He branched out on his own and created the Oakland based Wild Equity Institute in 2009. As a non-profit they are required to file IRS Form 990 every year. The WEI forms for
2009 - 2011 are linked here. This is what they say:
- In 2009 WEI had $19,755 in revenue from contributions and $686 in expenses, none of which was paid out in salaries for Mr. Plater or anyone else on the staff.
- In 2010 WEI had $38,919 in revenue from contributions and membership fees and $31,425 in expenses including $7,680 in salary expense and $14,465 in fees paid to independent contractors. According to the form, Mr. Plater was the only one on staff to receive a salary - a sum of $6,209.
- In 2011 WEI had $100,918 in revenue from contributions, memberships, and "government fees" against $118,839 in expenses including $26,998 in salary expense and $73,594 paid to independent contractors. Mr Plater received a salary of $23,028.
Their 2012 filing is not yet available, but I will update this post with the most recent information when available. There is no information on the form regarding who received the specific independent contractor payments.
The picture that emerges over the first three years is a small environmental activist organization staffed primarily by committed hard working volunteers working without pay - except for Brent Plater. All well and good. That is the context. Now lets look at the Sharp Park motion filed in District Court last Friday and the legal fees requested for reimbursement:
Case No.: 3:11-CV-00958 SI
PLAINTIFFS’ MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND COSTS
According to Plaintiffs’ counsels’ contemporaneously maintained billing records, counsel have thus far spent the following number of hours on this case through January 31, 2013:
Brent Plater: 857.7 hours
Howard Crystal: 844 hours
Eric Glitzenstein: 282.75 hours
Shawna Casabier: 47.15 hours
Kelli Shields: 217 hours
In addition, paralegals spent 691 hours working on the case...
In light of that experience and background, Plaintiffs request the following rates for counsel: $750/hour for Mr. Glitzenstein; $700/hour for Mr. Crystal; $550/hour for Mr. Plater; $295/hour for Ms. Casebier; and $250/hour for Ms. Shields...
Applying the requested hourly rates to the number of hours for which recovery is sought, Plaintiffs are entitled to a fee award of $ 1,451,556. However, to account for any billing discrepancies, Plaintiffs are affirmatively reducing that request by 10%, to $1,306,400...
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their fee Petition and award fees in the amount of $1,306,400 and $59,409 in costs.
All of the listed attorneys are identified in the motion as "Attorneys for Plaintiffs". Since I have no idea how that breaks down between all the players in the WEBLEEDU Axis, let's just focus on the lead attorney - Brent Plater, President of Wild Equity Institute.
Mr. Plater is submitting his bill to be reimbursed for 857.7 hours at a rate of $550.00 / hour. His total fee on the case so far: $471,735.00. This for his billable hours working on a case that was initially filed in March 2011 and continued through January 2013 when they filed an appeal after it was dismissed. The legal fees he is requesting is more than four times the total revenue that came into the Wild Equity Institute for the first three years of its existence. Not bad pay for 20 months work. And that is only one lawsuit. Active or imminent,
there are more WEI / Plater lawsuits in the works.
This begs all kinds of questions. I have no visibility into what Mr. Plater would do with the funds should the court decide to reimburse him for his time as he has requested. My assumption is that as a committed environmentalist leading a struggling new environmental advocacy organization staffed by unpaid volunteers, he would naturally funnel the funds secured as a consequence of his leadership role in WEI back into WEI in order to continue its work. That is what any commited leader would do. He would, of course, continue to draw a salary commensurate with the success and non-profit nature of the organization.This structure is sensible, if for no other reason but to avoid the appearance of a conflict of interest with the organization he runs. In the most recent IRS filing, he took about 25% of the WEI revenues as a salary.
In any case, it would be a good question for an investigative reporter to ask directly of Mr. Plater. Just where would the money go if he prevails?
I have more questions, but first an apology.
Earlier in this post, I compared WEBLEEDU lawyers to "ambulance chasers". That was not right. "Ambulance chaser" is a term that is sometimes used to describe personal injury lawyers who represent people hurt in accidents. Personal injury lawyers generally work on contingency, which means they only get paid if they win a judgement in a court of law. In the Sharp Park case, the WEBLEEDU plaintiffs are asking for $1.3 million in legal fees to be reimbursed for a case they lost. A case that was dismissed. My previous comment comparing the Sharp Park litigants to ambulance chasers was completely unfair. My apologies to any ambulance chasers reading this post.
I really should end this post here, but I've got a more few more questions. To the casual reader, I suggest you stop reading now. I'm am about to embark on a deep dive. No telling how long this post is going to be. If you are interested in accompanying me down the rabbit hole...
