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A.S. v. Harrison Township Board of Education

United States District Court, D. New Jersey

April 12, 2017

A.S., a minor, individually and by his parents H.S. and M.S., Plaintiffs,

          JAMIE EPSTEIN, ESQ. Counsel for Plaintiff

          PARKER McCAY, P.A. Counsel for Defendant Harrison Township Board of Education

          COOPER LEVENSON, P.A. Counsel for Defendant East Greenwich School District


          HILLMAN, United States District Judge:

         Presently before the Court is Plaintiffs' unopposed Motion for Approval of Settlement in this IDEA[1] case. The Court held a “friendly” hearing on February 8, 2017, and March 20, 2017.[2] For the reasons stated below, the Court will approve the settlement, but does so noting its serious concerns regarding the billing practices of Plaintiffs' counsel, Jamie Epstein, Esq. Disappointingly, the undersigned must now join an ever-growing chorus of judicial colleagues who have found Mr. Epstein's billing and recordkeeping practices inadequate and unprofessional. See, e.g., M.G. v. Eastern Regional High School, 386 F. App'x 186, 189-90 (3d Cir. 2010)(“We agree that the fee petition submitted by Epstein was seriously deficient. . . .”), and the authorities cited herein.


         Plaintiff A.S. is presently nine years old. His disabilities include autism spectrum disorder, attention deficit hyperactivity disorder, epilepsy and hearing impairment. While this federal action was instituted in 2014, this case began at the state administrative level in 2012. That is to say that A.S.'s parents have been involved in formal adversarial litigation with their child's school district for approximately half of A.S.'s life. The Court has no doubt that the proposed settlement between Plaintiffs and Defendant Harrison Township School Board, upon approval, will bring some much needed peace of mind to Plaintiffs and allow the parties to focus on the education of the child unburdened by the stress and uncertainly of the adversarial process.

         The specific dollar figures of the settlement are filed under temporary seal and are subject to a contested motion to seal. Accordingly, the Court will not, at this time, in this publicly-accessible opinion, discuss the specifics of the minor's settlement. Moreover, those specific numbers are not directly relevant to the instant discussion, as the Court's concerns about the settlement relate only to the portion that will be paid to Mr. Epstein.


         When a settlement involves resolution of minors' claims, courts in New Jersey review the settlement to “determine whether [it] is reasonable as to its amount and terms.” N.J. Ct. R. 4:44-3. After review, the Court may accept the settlement, reject the settlement, or suggest different terms. Impink v. Reynes, 396 N.J.Super. 553');">396 N.J.Super. 553, 562 (App. Div. 2007). The Court may not re-write the settlement by ordering different terms absent the parties' consent. Id. at 564.


         The settlement agreement between Plaintiffs and Harrison Township provides that Mr. Epstein's fees will be paid out of the total settlement lump sum payment. As such, Defendant Harrison Township does not formally object to Mr. Epstein's fees; the township has agreed to pay what it has agreed to pay. While the agreement specifies three categories of compensation, one of which is Mr. Epstein's fee, how the settlement amount is divided between Plaintiffs and Plaintiffs' counsel, or whether the basis for Mr. Epstein's requested fee is properly documented, is apparently not the township's concern. That is to say they have not provided the Court, beyond the agreement itself, with specific arguments as to the logic applied or factors considered in the apportionment of the lump sum amount or the propriety of the overall legal fee.

         However, such matters are the Court's concern, as the Court must review not only the amount, but the terms of a settlement that implicates the rights of a minor and provides a remedy to that same child.[3] Since some portion of the settlement involves payments in trust for the minor child, at least in theory, the settlement at issue is structured in such a way that every dollar Mr. Epstein recovers in fees is one less dollar that will be deposited into a trust account for A.S. For this reason alone, the Court must carefully consider whether Mr. Epstein's fees are fair and reasonable, which of course, requires a careful inspection of Mr. Epstein's billing records filed in support of the instant motion.

         Problematically, even a cursory inspection of Mr. Epstein's billing records reveals glaring deficiencies. Most obviously, Mr. Epstein billed years' worth of emails in single entries: “8/31/12 - 10/14/13 DRAFT/REVIEW 468 EMAILS, 46.8 [hours]”; “3/14 - 2/15 EMAILS; OAL4 AND DISTRICT COURT, 79.1 ...

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