Opinion
Civil Action No. 96-560
May 15, 2000.
OPINION
This decision deals with attorneys' fees. The unusual posture of this case, in which the United States in a related case obtained the injunctive relief these plaintiffs originally sought, led the court to divide the decisionmaking process on attorneys' fees into two stages: first, plaintiffs' entitlement to fees, and then if entitlement was found, the amount of fees. The court granted plaintiffs' motion for an interim award of attorneys' fees which established their entitlement. June 29, 1998, Memorandum Order, Doc. No. 115. We now decide the amount of fees requested.
I. Legal Standards
As is well known, to determine attorneys' fees that satisfy 42 U.S.C. § 1988, we must find a reasonable hourly rate and multiply that by a reasonable number of hours expended on the case. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The result is presumed to be the reasonable fee contemplated by section 1988. Blum v. Stenson, 465 U.S. 886, 897 (1984).
A. Hourly Rate
"To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence — in addition to the attorney's own affidavits — that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Blum, 465 U.S. at 895 n. 11.
The first issue the fee petitions raise is one that has appeared in the margins of virtually all the fee requests the court has adjudicated, but which has never been satisfactorily resolved. The issue concerns the evidence on which the court makes a finding of reasonable hourly rates.
Supreme Court opinions "have repeatedly stressed that attorney's fees awarded under [section 1988] are to be based on market rates for the services rendered." Missouri v. Jenkins, 491 U.S. 274, 283 (1989).
In determining how other elements of the attorney's fee are to be calculated, we have consistently looked to the marketplace as our guide to what is "reasonable." In Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), for example, we rejected an argument that attorney's fees for nonprofit legal service organizations should be based on cost. We said: "The statute and legislative history establish that `reasonable fees' under § 1988 are to be calculated according to the prevailing market rates in the relevant community. . . ." Id., at 895, 104 S.Ct. at 1547. See also. e.g., Delaware Valley, 483 U.S. at 732, 107 S.Ct. at 3090 (O'CONNOR, J., concurring) (controlling question concerning contingency enhancements is "how the market in a community compensates for contingency"); Rivera, 477 U.S. at 591, 106 S.Ct. at 2703 (REHNQUIST, J., dissenting) (reasonableness of fee must be determined "in light of both the traditional billing practices in the profession, and the fundamental principle that the award of a `reasonable' attorney's fee under § 1988 means a fee that would have been deemed reasonable if billed to affluent plaintiffs by their own attorneys"). A reasonable attorney's fee under § 1988 is one calculated on the basis of rates and practices prevailing in the relevant market, i.e., "in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation," Blum, supra, 465 U.S. at 896, n. 11, 104 S.Ct. at 1547, n. 11, and one that grants the successful civil rights plaintiff a "fully compensatory fee," Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983), comparable to what "is traditional with attorneys compensated by a fee-paying client." S.Rep. No. 94-1011, p. 6 (1976), U.S. Code Cong. Admin. News 1976, pp. 5908, 5913.Id., 491 U.S. at 285-86; Blanchard v. Bergeron, 489 U.S. 87, 91 (1989). "As nearly as possible, market standards should prevail, for that is the best way of ensuring that competent counsel will be available to all persons with bona fide civil rights claims. This means that judges awarding fees must make certain that attorneys are paid the full value that their efforts would receive on the open market in non-civil-rights cases. . . ."Hensley, 461 U.S. at 447 (Brennan, J., concurring in part and dissenting in part). In recognizing the market as an active institution, the Court has noted how "the discipline of the market," which presumes give-and-take between buyers and sellers, will prevent overcharging for certain aspects of lawyers' work.Jenkins, 491 U.S. at 287 n. 9.
The United States Court of Appeals for the Third Circuit has made the same findings. "Our premise has been that the reasonable value of an attorney's time is the price that time normally commands in the marketplace for legal services in which those services are offered." In re Fine Paper Antitrust Litigation, 751 F.2d 562, 590 (3d Cir. 1984). The Third Circuit's invocation of market principles has included identifying a geographical market for hourly rates where that matter has been disputed.Public Interest Group of NJ, Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1995).
The Supreme Court in Blum listed the several ways that fee awards under section 1988 will not approximate an ideal market. 465 U.S. at 895 n. 11. Hourly rates vary widely, there is no long-term relationship between the payor and the recipient of the fees, and there is no negotiation. We add what we consider another critical element, the limited amount of reliable information publicly available to the user of legal services. Despite the fact that we can only simulate a market, we are nonetheless obligated to consider market principles in determining reasonable hourly rates.
It is worth recalling that the very essence of a market is opportunities for sellers and buyers. There is no way to refer to a market and not consider the flow of activity in both directions. Certainly inherent in an hourly rate is information about what buyers are paying. But this assumption may be subject to questions; whether there are variations in receipts relative to charges, and the degree of those variations, is a fact question to be resolved. In other words, one could never understand a market only by knowing what the seller was charging; one must also learn what buyers are paying.
We find this precedent relevant because of the following evidence plaintiffs submitted.
There is no `customary fee' in civil rights cases such as this. A citizen whose constitutional rights have been violated can not usually afford to pay any retainer or hourly fee whatsoever. The average citizen in Pennsylvania does not have $60,000 sitting in a bank account as savings in order to pay for a lawyer in a civil rights or discrimination cases [sic]. Thus, the factor of "customary fees" is meaningless fiction in the civil rights litigation context. Most persons who seek an attorney's representation in civil rights cases are not the customary clients of large law firms, used to paying thousands of dollars in retainer. In the experience of Declarant, only one or two clients per year seeking representation as plaintiffs in civil rights cases are able to afford to pay for any services on an hourly basis. The vast majority of plaintiffs cannot even afford to pay their own expenses or deposition costs.
Declaration of Caroline Mitchell, ¶ 7(e), attached to Doc. No. 122.
In one respect, accepting this evidence at face value, the circumstance it describes is perfectly understandable. The very existence of section 1988 is based on the recognition that some citizens would be unable to pay for a lawyer to protect their constitutional rights.
In another respect, however, this evidence highlights a hole in the evidentiary support for fee awards. Is it accurate that no one pays for civil rights representation? The issue may need further investigation to corroborate the contention that fee-paying civil rights clients do not exist. In any event, it is discomforting to consider that important decisions might rest on "meaningless fiction," a concept that should provoke an aversive reaction in a factfinder. Assuming this evidence validly reflects the circumstances of civil rights lawyers pursuing their trade, the question then becomes: where does the court find market information on which to base its determination of reasonable hourly rates?
One place we would not look is in the statements by lawyers in supporting affidavits attesting to the reasonableness of their own or other lawyers' hourly rates. Mitchell Declaration ¶ 7(/); Krakoff Declaration, ¶ 6, attached to Doc. No. 67; Carroll Affidavit, ¶ 6, attached to Doc. No. 67; McCormick Declaration, ¶ 7, attached to Doc. No. 67; Fineman Declaration, ¶ 6, attached to Doc. No. 67; Zimecki Declaration, ¶ 6, attached to Doc. No. 67; Dunhoff Declaration, ¶ 6, attached to Doc. No. 67; Van Keuren Declaration, ¶ 6, attached to Doc. No. 67; Cordes Declaration, ¶ 14, attached to Doc. No. 122. A similar statement is a lawyer's opinion that a certain hourly rate is comparable to rates charged in the relevant market.
It is not surprising that presenting such evidence has become routine. Courts have accepted it for years without question. Indeed, the court of appeals seemed to assign weight to an opinion of reasonableness in one of its significant attorneys' fee opinions. Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996) ("These affidavits stated that Mr. Epstein's requested hourly rate of $250 was reasonable and within the range of prevailing rates charged by Philadelphia attorneys").
Upon reflection, however, a lawyer's testimony that a certain hourly fee is reasonable is no more helpful than a lawyer's testimony that a certain product is defective, or certain contract language is ambiguous. Determining the reasonableness of fee requests is a mixed question of law and fact, but it is a question reserved for the court. A simple observation shows why. The term "reasonable" by its essence contains considerable play, regardless of what it is applied to. Ten lawyers perhaps could legitimately state that an hourly rate of $300 was reasonable because of the superior quality of representation, a belief that lawyers in the market are underpaid, overhead has gone up, or a number of other factors. If only one lawyer in ten charged and received that amount, however, the market might have a different answer about whether that rate is reasonable. Establishment of market rates thus is more a matter of numbers than of beliefs or opinions. And market rates is what we are bound to find.
Consequently, a lawyer's opinion about whether a fee is reasonable adds little to the evidence necessary to arrive at this legal conclusion. While the Federal Rules of Evidence provide that lay witnesses may offer opinions, and opinions may cover the ultimate issue to be decided, Fed.R.Evid. 701, 704, lawyer testimony about the reasonableness of fees is unhelpful when offered as a substitute for bare facts about fees in the market. "The matter of an attorney's marketplace billing rate is a factual question." Washington, 89 F.3d at 1035.
What we now find necessary are a few facts that affidavits in support of fee requests seldom contain: What do you, the testifying lawyer, customarily charge your clients for similar work? And what do they pay? From these figures, over a broad enough sample, it should be possible to arrive at a market rate. For a rate to qualify as being derived from the market, as the law requires, it should be based on information that has market characteristics — unbiased, mostly rational, and consisting of hard facts.
The Third Circuit has made findings about market rates based on evidence from one outside lawyer for each side. Hurley v. Atlantic City Police Dept., 174 F.3d 95, 131-32 (3d Cir. 1999), cert. denied, 145 L.Ed.2d 663 (2000). We would not consider this the most reliable way to find market facts. On the other hand, as we explain below, courts must make rulings with the information presented, and frequently have no control over the content or scope of that information.
Testimony about what other lawyers charge is relevant, but may not carry as much evidentiary weight, depending on the manner in which this information was obtained. In other words, how familiar is the lawyer witness with the billing and income data of other lawyers? If very familiar, as with a partner, such evidence would carry substantial weight. If somewhat familiar, as with a telephone conversation just prior to submitting an affidavit supporting a fee request, such evidence would carry less weight. Similarly, printed surveys have a superficial appeal as a single source for collecting a range of fee data, but of course are hearsay. Often the information they contain is dated as well.
Another source of supporting information cited by these counsel, and in many other fee requests, are court awards of fees. This practice likewise is understandable. Under any method of analysis, court fee awards in other cases would be a credible source of supporting information. They can be relied on for the persuasive value of having been determined by a neutral person intimately familiar with the criteria on which fees are based, and thus have a precedent-like effect.
But such references cannot be blindly accepted. Because of the precedential quality of fee awards, they are easy to repeat without analysis. See. e.g., Smith v. Phila. Hous. Auth'y, 107 F.3d 223, 226 (3d Cir. 1997) (district court adopted lower rate because that rate used in four other cases). The dictum that fee litigation should not be treated as major litigation makes this approach tempting and legally defensible. See, e.g., Windall, 51 F.3d at 1190. But a court is not in the market. A judge who comes to the bench from a law practice will know what he and his colleagues charged, what clients paid, and how bills were discounted, and will have some second-hand knowledge of what other lawyers charge. But this information is bound to get stale after several years. The bottom line is that if legal research reveals that the hourly rate a district court awarded in previous cases was not based on market information, then that determination is subject to question, regardless of how many times it was subsequently adopted. "Markets know market values better than judges do." Busy Beaver, 19 F.3d at 854 (quoting In re Continental Illinois Sec. Litig., 962 F.2d 566, 570 (7th Cir. 1992) (Posner, J.)).
While admitting to having hidden behind this pronouncement in prior decisions, the court cannot leave the issue without adding that it is one of the emptiest phrases in our jurisprudence. Attorneys' fee questions most definitely constitute major litigation, and related decisions are scrutinized on appeal in a manner that makes this point abundantly clear. See. e.g., Washington, 89 F.3d 1031 (17 pages with dissent, 6 issues); Windall, 51 F.3d 1179 (10 pages, 5 issues). The Third Circuit In re Busy Beaver Building Centers, Inc., 19 F.3d 833, 845 (3d Cir. 1994), while noting how court time is "precious," finds that paralegal hours are compensable under the bankruptcy code in a 20 page opinion that includes a footnote reviewing opinions from two-thirds of federal districts. A duly contested, comprehensive challenge to a fee request might well call for the type of analysis in Apple Corps Ltd. v. Int'l Collectors Society, 25 F. Supp. 480 (D.N.J. 1998) (19 pages, 9 pages of tables, 43 West headnotes).
Or use another measure of the gravity of fee decisions. InWashington, for example, the fee request was more than seven times the jury verdict. 89 F.3d at 1039. Thus, a defendant may suffer a modest loss on the ultimate decision about rights that we are trained to hold dear, but could be wiped out by the "minor" issue of attorneys' fees. Imagine how free a district court will feel about its license to handle that issue as subsidiary. In this case, fees of $300,000 are sought against a municipality chronically in debt, for work on a case that was still in the early stages of discovery when fees were sought. Again, this is not to say fees are unjustified, or that they overshadow the value of the rights at stake. Suggestions that fee matters are of secondary importance, however, is little more than appellate lip service. We decide dozens of dispositive motions that require less effort from the parties and the court than fee petitions. The court's position on the true state of how fee litigation is handled is no better phrased than by Judge Aldisert in his concurring and dissenting opinion in Washington.
In the context of fees for bankruptcy work, the Third Circuit said:
A bankruptcy judge, typically far removed from the economics of law practice and the exigencies of making recurring business judgments about the most prudent and cost-effective method for performing a given task with adequate assurances of quality in a developing, competitive legal market, is generally not well-equipped to review subjectively the law firm's allocation of responsibilities and billing practices.In re Busy Beaver, 19 F.3d at 853.
Perhaps the major reason court fee awards vary in their reliability as market evidence is illustrated by this case, and others the court has decided: namely, awards can be based not on receipt of comprehensive affirmative evidence from the requesting party (acknowledging that certain minimum evidentiary thresholdsmust be met), but on the absence of comprehensive argument or evidence by the opposing party. This is not an uncommon occurrence.See. e.g., Blum, 465 U.S. at 892 n. 5, ("petitioner failed to submit to the District Court any evidence challenging the accuracy and reasonableness of the hours charged"); Hurley, 174 F.3d at 131 (waiver of hearing on disputed hourly rate); Washington, 89 F.2d at 1036 (district court cannot disregard uncontested evidence about hourly rates); SPIRG v. Monsanto Co., 721 F. Supp. 604, 617-18 (D.N.J. 1989). These results reinforce the uncontroversial conclusion that market facts are best obtained from participants in the market itself, and not from those on the periphery — including courts.
B. Reasonable Number of Hours
The burden of showing a reasonable number of hours also falls to the party claiming fees. Blum, 465 U.S. at 897. "Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission." Hensley, 461 U.S. at 434.
To be compensable, hours must be "useful and of a type ordinarily necessary" to reach the result obtained in the litigation. Penna. v. Delaware Valley Citizens Council, 478 U.S. 546, 561, (1986) (quoting Webb v. Bd. of Educ'n, 471 U.S. 234, 243, (1985)).
C. Conclusion
Controlling authority requires us to use market information to make attorneys' fee awards. To do this we need evidence about the paying, arms-length market. If this does not include civil rights plaintiffs, we must draw the closest analogy. A proposed method to make these findings would be for each side to submit evidence from ten to fifteen practitioners that provides information at least as to:
1. What they charge;
2. Under what conditions, if any, are there variations between charges and receipts;
3. How the testifying lawyer matches up with the requesting lawyer's qualifications;
4. How the type of legal work which has produced these fees compares to the legal work at issue.
If necessary, the court would conduct a hearing at which witnesses could be examined further. On one hand, this process could be cumbersome. On the other hand, once undertaken, it should be genuinely valid precedent for similar fee requests in this court, and thus would not need to be repeated for every case.
If the parties do not engage in such a process, however, we will proceed by what we consider to be the default method currently in place.
II. The Parties' Positions
A. Plaintiffs' Counsel's Requests
The attorneys seeking fees in this case have included the following information about hourly rates. See Doc. No. 67.
Timothy P. O'Brien. He seeks an hourly rate of $250. He does not say whether he has any clients who pay this amount, but he identified one case from this court in which he was awarded this rate.
Witold J. Walczak ($200-210/hr). He is a salaried employee of the ACLU, and so has no customary hourly charges. He identified one case from this court in which he was awarded $190/hr.
Jere Krakoff ($250/hr). No information about what he customarily charges or receives. He identified two cases from this court in which he was awarded $200/hr.
James W. Carroll, Jr. ($250/hr). No information about the rate he customarily charges or receives.
Lisette M. McCormick ($175/hr). No information about the rate she customarily charges or receives.
David Fineman ($125/hr). No information about the rate he customarily charges or receives.
Michael Zimecki ($100/hr). No information about the rate he customarily charges or receives.
Laura Dunhoff ($100/hr). Identifies her customary rate for civil rights cases as $100/hr. No information about the rate she receives.
Charles Van Keuren ($100/hr). Identifies his customary rate for civil rights cases as $100/hr. No information about the rate he receives.
Caroline Mitchell ($250/hr). General statement that she has billed and been paid by clients at hourly rate of $250; hearsay statement that Krakoff and O'Brien have billed and been paid at $250/hr.
Counsel seek fees for 1376 hours on the merits, additional hours litigating attorneys' fee issues, and costs.
B. The City's Obiections
The City's main response to plaintiffs' particular requests for fees is that most of counsel's work cannot be attributed to their pursuit of injunctive relief. The City argues that, until plaintiffs prevail on their individual claims underlying the consent decree entered in the United States case against the City, the court must exclude hours spent on "general litigation." Along these lines, the City has conceded time that counsel spent in direct contact with Department of Justice staff, amounting to fees of $21,374.38, or less than 8% of the fees sought, which it asks be awarded.
We reject the City's argument as being arbitrary. If plaintiffs' counsel's efforts in organizing the plaintiffs, marshaling the evidence, developing a strategy, drafting the complaint, and cooperating with the Justice Department had any value — and we have already found that it did, pursuant to controlling law — they would not be limited only to the time counsel spent on the telephone or meeting with Justice Department lawyers. In essence, what made counsel's interactions with the United States worthwhile or credible was all the legwork they had done beforehand. It would not be logical to recognize that plaintiffs' counsel transmitted critical information that helped bring about a significant legal result, and not compensate the work of obtaining, sifting, and processing the information they placed in the government's hands.
The City's makes several other less substantial objections. It claims that counsel's time records are insufficiently detailed to permit an award of fees. It is true that the detail in counsel's time records vary considerably, but not to an extent that would preclude an award of fees. See Washington, 89 F.3d at 1037-38.
The only hourly rate to which the City objects is that of Witold Walczak. The City contends that his hourly rate should be limited to $150 because that is what he received in another civil rights case against the City on behalf of the Ku Klux Klan. We find that Walczak has adequately rebutted the City's claim by showing that the $150 rate was a compromise in the interest of settling fee issues in that case, and not a rate that he pursued as a market rate.
Finally, the City objects to an award of costs, because such costs are attributable to the underlying cases, which have not been resolved. We find no support for this contention, and will award costs.
III. Other Considerations
As noted above, counsel seeking fees have independent burdens, such as providing adequate documentation of their hours and not billing for excessive or redundant work, which we must consider.
Applying these obligations to plaintiffs' fee requests raises questions. First, for example, attorney Walczak included in his time records the number of hours he performed related work, but did not bill, such as press conferences. We would not award fees for press conferences because we would not find them ordinarily necessary to obtain a successful result in litigation. In contrast, attorney O'Brien appears to be claiming 16.6 hours for time related to press conferences and news coverage. Doc. No. 67, Exhibit 3 to O'Brien Affidavit, client billing worksheet entries 98, 797, 798, 696, 706; see also attorney Carroll time records for 2/12/97. The City had made this point in opposing plaintiffs' specific fee requests. Plaintiffs responded that the City's contention was "inaccurate," citing Walczak's exclusion of time for press matters. Doc. No. 120 at 29. Counsel apparently did not review other fee records. And to the extent that certain entries contain potentially compensable time lumped together with non-compensable time spent on press matters, we would deny such request as insufficiently specific. While a relatively minor matter, it points up one of the unwelcome aspects of fee litigation. Despite glowing reviews from colleagues about the requesters' professional qualifications, and courts' almost universal dislike for green-eye-shade work, there often is a reason to do it.
Second, this is without doubt an undertaking that required a team of lawyers. Since most of them are not joined in a firm and are sole practitioners or in small firms, they would require recruitment and regular coordination. Nonetheless, the amount of time spent in meetings, in person or by telephone, is high. It is not possible from the varying descriptions to definitively determine how counsel spent their time. For example, however, the court counted 44.35 hours spent by attorney O'Brien in activities described at least in part with the word meeting, review, discussion, or conference, excluding telephone calls, and excluding Justice Department contacts. Entries containing the words research, draft, prepare, dictate, and court appearances, which signify the activities more directly related to litigation, added up to 109.15 hours, or about 39% of the total hours billed of 283.15. In addition, there is inconsistency in the lawyers' charges for meetings. Attorney Zimecki, although he worked few hours on the case, billed for only 7.95 of the 20.15 hours of meetings he attended. Zimecki Declaration, attached to Doc. No. 67. Attorney Walczak did not bill for every lawyers' meeting. See. e.g., Walczak time records for 9/5/96 (1.5 hours), 9/24/96 (1.2 hours), 10/25/96 (1.8 hours), 11/25/96 (1.1 hours), 1/13/97 (1 hour), 2/24/97 (.60 hour), 2/28/97 (1 hour), 4/28/97 (1.25 hours). There may be legitimate explanations for these exclusions, but it leads to questions about how counsel themselves viewed the propriety of billing for every meeting, let alone how the court might view the practice.
The time entries we added to arrive at this figure, in the order they appear in his records, are numbers 779, 780, 781, 782, 785, 735, 720, 721, 119, 125, 789, 137, 136, 790, 733, 799, 188, 276, and 589.
The time entries we added to arrive at this figure, in the order they appear in his records, are numbers 127, 82, 179, 796, 800, 617, 724, 729, 736, 120, 728, 727, 444, 730, 449, 578, 608, 577, 605, 585, 719, 581, 552, 481, 816, 704, 707, 712, 715, 831, and 832.
Third, a core group of experienced civil rights lawyers performed the great majority of work, and seek to be compensated at a high hourly rate for it — rates their own affidavits do not establish they are routinely paid or awarded. This would be unexceptional in the face of proof that the hourly rates sought were market rates. But the court's experience is that one of the factors that permits high hourly rates in other contexts, such as when charged by law firms, is the use of attorneys or paraprofessionals with lower rates whenever possible. That is, paying clients may not object to high hourly rates for some work when they know that such rates are not applied to all legal work on the case. Reasonable rates of compensation may differ for different activities. See. e.g., In re Fine Paper, 751 F.2d at 591.
In this case, which was still in the midst of discovery when fees were sought, counsel seeking fees at hourly rates of $200 to 250 account for 1,229.3 of the 1,376.1 hours at issue. Attorney Walczak usually lists several tasks for each time entry, but he seeks fee for about 89.5 hours of intake and client investigation. Surely the jobs of intake, of which we have a vague understanding from the affidavits, and investigation were important and necessary. And certainly plaintiffs gained advantages from having Walczak perform this function. But the question remains whether it would have been ordinarily necessary for a lawyer billing $200 per hour to perform these services. The Third Circuit does not approve the use of "highly skilled and highly priced talent for matters easily delegable to non-professionals or less experienced associates. Routine tasks, if performed by senior partners in large firms, should not be billed at their usual rates." Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir. 1983).
In sum, plaintiffs' fee petitions raise issues that merit consideration, but which are not conclusive. Their submissions meet the standards for acceptance that govern this court, though we have spent most of the effort in this opinion addressing questions about the appropriateness of the standards themselves. In addition, the City's narrow challenge to plaintiffs' particular fee requests limited the matters it would be necessary or appropriate to decide. An order awarding fees therefore accompanies this opinion.