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For the San Francisco Unified School District, U.S. District Judge Susan Illston was the bearer of mixed news. On the one hand, the judge lopped a little more than $2 million off the fees and costs plaintiff lawyers wanted for securing a settlement that promises better access for disabled students. But in ruling last week that the class action attorneys do deserve about $7 million in fees and costs, Illston handed the school district much of the blame for driving the price up � and little credit for bringing it down. Though attorneys at Skadden, Arps, Slate, Meagher & Flom, Schneider & Wallace and the Legal Aid Society-Employment Law Center in San Francisco will get millions, Illston wrote that “it is important to remember that the district has largely brought this award of attorneys’ fees and costs on itself.” She added that, while the court had made “strenuous efforts” to excise any unreasonable bills, “this has been an undertaking it has done largely on its own, because defendant has provided very little help.” The school district told the court in a brief that it had $2 million in insurance money, but that any higher fee award would deplete the district’s general fund. It tried to limit the fees and costs to $3.75 million. General Counsel David Campos said the district acted in good faith to resolve the case, which began in 1999 in the U.S. District Court for the Northern District of California. Some motions and discovery typically have to be done before broaching settlement talks, Campos said, and in this case, the district needed a bond measure, which passed in 2003, to get the money to bring facilities in line with the Americans with Disabilities Act. “We feel that the plaintiffs could have done more to settle this earlier,” he added. When Lopez v. San Francisco Unified School District, 99-3260, settled six days before the trial in June 2004, the school district agreed to bring 96 facilities into compliance with ADA guidelines by 2012, plus pay “reasonable” fees and costs. The facilities upgrades themselves may cost the district at least $100 million, Illston noted. Arguing to lower the plaintiff lawyers’ bills, the school district � with the city attorney’s office as outside counsel � asserted that the class had not achieved much more than plans the district had already drawn up to comply with the ADA. But Illston brushed that argument aside, saying the settlement “provides substantial and important benefits for disabled students.” The district had for decades failed to provide adequate disability access, she wrote, and was ignoring an “important difference” � that the settlement can be enforced by a court. The judge did take into account that public school districts have financial constraints. And she concluded that, while the result was “highly beneficial” to the class, the case was not legally complex. Some hourly rates the lawyers, paralegals and legal assistants were requesting were too high, she said. “Although the result obtained is highly beneficial to the class members, it is a result that could have been obtained by lawyers with a broad range of experience,” Illston found. She decided that Skadden, Arps partner Jose Allen, for instance, shouldn’t fetch the same rate he’d get from corporate clients for complicated environmental and securities litigation � so she cut his rate from $675 to $460 an hour. The judge also slashed $83,000 from the request for work done by a lawyer specializing in fee disputes. Those hours were “excessive and duplicative,” she wrote, noting that the plaintiff lawyers had also spent “hundreds of hours” and produced “thousands of pages” on the issue. Though the judge echoed some of the school district’s points, she gave its briefs in the fee battle a low grade. An expert’s declaration was untailored and “not helpful,” she said, and called a couple of other arguments “contrary to the law” or “illogical.” “Defendant’s arguments about plaintiffs’ fees and costs mirror the arguments made throughout this litigation � long on animosity but short on practical content.” Campos declined to comment on the criticism Illston aimed at his district’s fee arguments. “We’re looking at the opinion carefully, and we’ll soon determine what our options are,” including an appeal, he said. He also said the district was “disappointed” that Skadden, Arps, which is to get nearly $1 million of the fees, would take the case pro bono and then seek such payment from the district. “Our expectation would be that if the firm is doing work pro bono, that that means they’re not getting paid for it, especially when the party paying is a government entity,” he said. Allen, the Skadden, Arps partner, did not return a call seeking comment. Arturo Gonzalez, a Morrison & Foerster partner who’s been involved in pro bono work at that firm, said it’s not unusual for firms working pro bono to seek fees once they prevail, but there’s no rule. “There are many cases in which the law firm will make a decision not to seek a fee simply because they don’t want to take the money from a public entity,” he said. But fee awards may encourage public entities to resolve the next case earlier, if it has merit, Gonzalez added. “One way public agencies can avoid such incredible results is to just settle cases when they can.”

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