United States District Court, D. New Jersey
A.S., a minor, individually and by his parents H.S. and M.S., Plaintiffs,
HARRISON TOWNSHIP BOARD OF EDUCATION and EAST GREENWICH SCHOOL DISTRICT, Defendants.
EPSTEIN, ESQ. Counsel for Plaintiff
McCAY, P.A. Counsel for Defendant Harrison Township Board of
LEVENSON, P.A. Counsel for Defendant East Greenwich School
HILLMAN, United States District Judge:
before the Court is Plaintiffs' unopposed Motion for
Approval of Settlement in this IDEA case. The Court held a
“friendly” hearing on February 8, 2017, and March
20, 2017. 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.
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.
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.
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.
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.
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. 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.
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 ...