NRA Bid for $1.7 Million in Litigation Fees Fails

CHICAGO (CN) - The National Rifle Association cannot recoup $1.7 million in attorneys' fees for its role in overturning Chicago's handgun ban, a federal judge ruled, ordering the group to recalculate its request.

In McDonald v. City of Chicago, the Supreme Court overturned Chicago and Oak Park's bans on handguns in a 5-4 decision. The 2010 ruling followed the high court's decision in 2008 to strike down a Washington, D.C., law banning handgun possession, and extended the Second Amendment to the city and state level.

Along with lead plaintiff Otis McDonald, the NRA filed companion lawsuits to invalidate the handgun bans and presented briefs to convince the five justices of their position.

Now the NRA wants Chicago and Oak Park to pay $1.7 million for fees and expenses for work done on these two cases.

Stephen Halbrook served as lead counsel for the case in the district court and Seventh Circuit. William Howard and Daniel Dooley of Freeborn & Peters served as local counsel in Oak Park, while Stephen Kolodziej of Brenner, Ford, Monroe & Scott served as local counsel in Chicago.

When the Supreme Court took the case, Stephen Poss, Kevin Martin and Joshua Lipshutz of Goodwin Proctor took over briefing duties. Paul Clement of King & Spalding handled the oral argument.

U.S. District Judge Milton Shadur took issue with the hourly rate of Halbrook and Kolodziej, and ordered the NRA to resubmit its calculations.

In its request, the NRA set Halbrook's hourly rate at $800, for 1,632.8 hours of work, a total fee of $1.3 million.

However, the "NRA cherry-picked its asserted comparators from among the highest-charging lawyers in the country, looking exclusively at the rates of the experienced Supreme Court litigators that it hired to brief and argue its appeal to the Supreme Court and the rates of O'Melveny & Myers (another top law firm)," Shadur said, especially when "there is no evidence that Halbrook is a member of that subset."

The judge continued: "What actual clients have paid to Halbrook is a far better measure of his market value. As for NRA itself, it pays Halbrook $225 per hour. Halbrook says that rate is deeply discounted and that he works for NRA on a part-pro-bono basis. He charges other clients rates between $400 and $500 per hour, but he says those rates are also discounted because he believes that vindication of Second Amendment rights should be affordable to all.

"Which rate is Halbrook entitled to: $800, $400-500 or $225?" the judge asked.

Shadur decided to adopt a median number: "Based on the evidence actually submitted by NRA (and the absence of other evidence), then, Halbrook's market rate will be placed at the midpoint of that range: $450 per hour (still a 100 percent 'windfall' if his actual $225 rate is used as a benchmark)."

The judge also reduced Kolodziej's billing rate to $300 per hour.

Furthermore, the judge noted that "sticking too many attorneys into a case creates an obvious potential for waste." While he said the NRA was able to justify the role of each member of its team, it could not justify Halbrook's hours during Supreme Court briefing.

"Halbrook billed something in the range of 500 hours during the merits briefing before the Supreme Court. But the affidavit of Martin, one of the Goodwin Proctor attorneys on the case, states that his firm took the lead in drafting the briefs... If Halbrook's role was indeed that of a consulting expert, rather than leader of the briefing team, the expenditure of roughly 500 hours is extremely difficult (if not indeed impossible) to explain," Shadur said. (parentheses in original)

However, the judge upheld the hourly rates of Poss and Clement over the cities' objections at $880 and $1,020, respectively, as reasonable market rates.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit