Attorneys From Gibson Dunn Tally 9,000 Hours in Day Laborers' Cause
Laura Haring New York Law Journal

March 24, 2011

Eight day laborers who were represented pro bono by attorneys from Gibson, Dunn & Crutcher will share in a $650,000 settlement of a lawsuit in which they alleged they were the victims of racial profiling and anti-immigrant sentiment.

The plaintiffs were among 11 day laborers who were picked up near Kennedy Park in Danbury, Conn., by a police officer posing as a contractor offering work on Sept. 19, 2006. After the men entered the officer's van, they were driven a few blocks and turned over to federal Immigration and Customs Enforcement (ICE) agents.

The laborers sued the city, Mayor Mark Boughton, individual police officers, federal immigration agents and the U.S. government for false arrest.

Gibson Dunn partner Joel M. Cohen said the firm became involved in the litigation, Barrera v. Boughton, 07-01436, after he was approached by Michael Wishnie, a Yale Law School professor with the school's Worker & Immigrant Rights Advocacy Clinic, who initially brought the case on behalf of the laborers. Mr. Wishnie and Mr. Cohen worked together on a case several years ago.

"I was attracted to the challenge that the case raised to what seemed to be blatantly illegal profiling against our clients and not only the impact on them but the impact on broader communities if law enforcement were permitted to act this way," Mr. Cohen said.

Gibson Dunn attorneys, led by Mr. Cohen and of counsel Richard Cashman, logged more than 9,000 hours on the case, which, according to Mr. Cohen, would have otherwise generated several million dollars in fees from paying clients. The firm will be reimbursed $50,000 for costs it incurred.

The case was staffed by a rotating group of more than 20 junior-level Gibson Dunn associates, many of whom filed their first federal motion or took their first deposition during the course of the case.

"I tried to do as little of the first chair litigating as I could because I felt it was an opportunity for [the associates] to get that experience," Mr. Cohen said. "It is what pro bono can be at its best because it's a combination of high-quality, meaningful work in which associates can also develop litigation skills at an earlier age."

Associate Elizabeth Goergen called the experience a good lesson in being "a real attorney."

"In my first two years of practice, I had the opportunity to speak in federal court for those who don't have a voice and that's why so many people go to law school," Ms. Goergen said. "To think that the work we did on this case might help others advance civil rights when similar things happen around the country, it's really great."

Also learning how to be "real attorneys" were Yale law students who worked closely with Gibson Dunn associates, helping prepare briefs and oral arguments.

Third-year Helen O'Reilly said one of the biggest challenges she faced was providing sound advice to her clients.

"I didn't realize how hard it would be to do client counseling," Ms. O'Reilly said in an interview. "You want to give them a fair assessment of their options and they ask you what you think is the right thing to do. It was one of the most interesting and challenging [experiences] when there were decisions to be made."

The city of Danbury and the United States will pay the day laborers $400,000 and $250,000, respectively, in the settlement that has both sides claiming victory.

Daniel E. Casagrande, a partner at Cramer & Anderson in Danbury who represented the city, and Mr. Boughton, the mayor, said the decision to settle was ultimately made by the city's insurance carrier, which determined that the award had only "nuisance value."

"We basically received a letter saying [the insurance company] strongly recommended the settlement and that, under terms of the policy, every nickel of defense costs going forward would be the city's responsibility," Mr. Casagrande said in an interview. "The city would much rather have tried the case and won it because we believe, as we have all along, that Danbury police officers had probable cause" for arrest because the laborers committed traffic violations by running into the street.

Mr. Casagrande said there was no proof of the "outrageous" allegation that the city had engaged in racial profiling. Moreover, he said that the city had not been asked to change any of its policies or practices.

Mr. Casagrande noted that the terms of the settlement do not require the city to admit to any wrongdoing.

Mr. Cohen responded that "insurance companies don't settle cases, clients do." He said the size of the settlement will serve as a deterrent.

"The settlement itself will make it much harder for [the city] to engage in this behavior because it provides a disincentive," Mr. Cohen said. "If they do this again, there will be other plaintiffs backed by other firms that won't hesitate to take the battle."

Chris Newman, the legal director for the National Day Laborer Organizing Network, said this is the largest monetary settlement for day laborers he has seen in 10 years of tracking similar litigation.

"In most cases that I'm aware of you see only injunctive relief and attorney fees," Mr. Newman said in an interview. "It's not often the case that there is a monetary settlement for the day laborers themselves."

Mr. Casagrande said that most of the plaintiffs have returned to the park, and there are 100 to 150 day laborers there everyday "without incident or harassment and with protection of police."

Deportation proceedings are continuing against the Danbury 11, who are being represented by the Yale Law School clinic.

@|Laura Haring can be contacted at lharing@alm.com.

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