Defending $3.6 Million Fee for Heller Case, Gura Returns D.C.’s Fire

[WSJ_law_blog]

Robert Levy, center, and Alan Gura, right, June 26, 2008. (AP Photo/Susan Walsh)

The fee fight over the most high-profile Supreme Court case of the century carries on.

The team of lawyers that represented Dick Heller before the High Court continues to face opposition from the District of Columbia over its nearly $3.6 million fee request. Heller’s lawyers say they worked on the case on a pro bono basis and claim that they agreed at the outset of the litigation that they’re entitled to recover their cash outlays and the reasonable value of their time, pursuant to 42 U.S.C. § 1988. (For Alan Gura, who led the team, the request would earn him about $1.9 million for an estimated 1,661 hours.)

As the Legal Times reports, negotiations over fees between Team Gura and D.C. broke down in September. The District filed an opposition brief, complaining that the $3.6 million request was “highly unreasonable.” The city proposed $798,232 in fees and $9,480 in litigation costs. Acting D.C. Attorney General Peter Nickles conceded that the opponents’ victory in the famed Second Amendment case was “significant” and that the attorneys’ performance was “above-average,” but he said a fee enhancement was unwarranted because the Heller team succeeded on proven legal theories — rather than novel ones — and also used the assistance of nearly 50 amicus briefs from various states and members of Congress. (Nickles didn’t mention the number of amicus briefs filed on behalf of D.C., but we do know that city used O’Melveny & Myers, Akin Gump, and Covington & Burling.)

Last week, Gura filed a reply, attacking D.C. for mounting a defense valued “into the millions” while attempting to diminish the work of the Heller team.

Loyal LB’ers: Fees have cropped up lately in several contexts — from Vioxx litigation, to September 11 litigation to FACTA litigation (where, in one case, the fees outmatched the recovery by a ratio of nearly 100:1). But here, Team Gura’s request doesn’t seem all that crazy. What gives?