OPINION & ORDER This decision resolves an application by HomeAway.com, Inc. (“HomeAway”) for attorneys’ fees and costs under the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. §1988. In parallel lawsuits filed in August 2018, home-sharing platforms HomeAway and Airbnb, Inc. (“Airbnb”) sued New York City (the “City”). They challenged a City Ordinance obliging such platforms to produce to a city enforcement agency capacious data every month as to all their local users. In January 2019, they obtained a preliminary injunction, which enjoined the Ordinance as likely violating the Fourth Amendment. The Ordinance never took effect. After well over a year of continued litigation and during the summary judgment briefing process, the City adopted a new, and substantially different, ordinance, mooting the plaintiffs’ challenge. For the reasons that follow, the Court agrees that HomeAway is a prevailing party in this important litigation addressing a Fourth Amendment question of first impression, and is entitled to a substantial award of fees and costs. The Court awards HomeAway $595,009.69. I. Background A. The Underlying Litigation A history of this litigation, reflecting events through January 3, 2019, is set out in the Court’s decision that day granting preliminary relief. See Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467 (S.D.N.Y. 2019) (“PI Decision”). The ensuing history is reflected in the briefs and other submissions on HomeAway’s fee application. See, e.g., Dkt. 132 (“HomeAway Mem.”); Dkt. 142 (“NYC Opp’n”); Dkt. 148 (“HomeAway Reply”).1 The Court here recaps only the history necessary to give context to the fee application. On July 18, 2018, the New York City Council approved, and on August 6, 2018, the Mayor signed, Local Law 146, N.Y.C. Admin. Code §§26-2101 to 2104 (“Local Law 146″ or the “Ordinance”). Local Law 146 was an attempt to facilitate enforcement of “multiple dwelling” laws prohibiting the short-term rentals of entire apartments in residential buildings. See N.Y. Mult. Dwell. Law §4(8) (state law prohibiting rental of most apartments for fewer than 30 days in “Class A” multiple dwellings — i.e., those occupied for permanent-residence purposes by three or more families living independently — unless a permanent resident remains on the premises); N.Y.C. Admin. Code §§28-210.3, 28-118.3.2, 27-2004, 27-265; N.Y.C Building Code §§310.1.2, 310.2 (city law prohibiting short-term rentals of entire multiple-dwelling units and one- and two-family units occupied for permanent residence purposes). Such short-term rentals, the City has contended, promote overcrowding and improper sanitation, reduce the availability of permanent housing, drive up rents, and harm the character of residential neighborhoods. The validity of these laws was not at issue in this litigation. Local Law 146 aimed to facilitate the City’s enforcement of these laws by requiring entities like Airbnb and HomeAway, which provide short-term rental platforms (termed “booking services” by the Ordinance), to provide the City with large volumes of customer data each month. City regulators and prosecutors could then draw upon those data to build cases against property owners or hosts. The “monthly transaction reports” that Local Law 146 required each booking service to produce were to include, for each listing, the owner’s name, address, phone number, and email; the details of each booking transaction, including its duration the fees earned, and how it was advertised; specific information about how the owners used and rented their properties; and personal bank-account and payment information of the property owner. The Ordinance required booking services to produce such information whether or not there was reason to suspect that the listing, or host, was violating the law. Under the Ordinance, a platform’s monthly reports were to be produced to the Mayor’s Office of Special Enforcement (“OSE”), charged with enforcing quality-of-life laws, including the multiple-dwelling laws. OSE coordinates joint investigations with city agencies, including criminal law enforcement agencies. Under the Ordinance, booking services faced civil penalties for noncompliant monthly reports. These penalties were the greater of (1) $1,500 for each listing that was “missing, incomplete, or inaccurate”; or (2) the total fees collected by the booking service during the preceding year in connection with that listing. The Ordinance was scheduled to take effect February 2, 2019. On August 24, 2018, Airbnb brought suit, seeking to enjoin enforcement of the Ordinance. It argued that the Ordinance facially violated the Fourth and First Amendments of the U.S. Constitution and conflicted with, and was therefore preempted by, the Stored Communications Act, 18 U.S.C. §2701 et seq. (“SCA”). See 18 Civ. 7712, Dkt. 1. The same day, HomeAway also sued, making similar claims. See Dkt. 1. On August 30, 2018, Airbnb moved to preliminarily enjoin the Ordinance’s enforcement. See 18 Civ. 7712, Dkt. 13. On September 4, 2018, HomeAway filed its own motion for the same relief. See Dkt. 10. On September 11, 2018, the Court consolidated the two cases, and scheduled a hearing for October 5, 2018 on the pending motions. Dkt. 15. On October 2, 2018, after the City had filed an opposition, both plaintiffs filed reply briefs. The October 5, 2018 hearing lasted three hours. It consisted of a detailed examination of the history and operation of Local Law 146; the City’s history of using less invasive enforcement means (e.g., targeted subpoenas) to enforce the multiple-dwelling laws, including as directed to Airbnb and HomeAway; the manner in which penalties would be imposed and tabulated under the Ordinance; and the means, if any, available to booking services to bring pre-compliance challenges to the monthly reporting obligation. See generally 18 Civ. 7712, Dkt. 80 (“Oct. 5, 2018 Tr.”). At the close of the hearing, the Court solicited letters as to the City’s historical use of subpoenas with respect to the Airbnb and HomeAway platforms. Id. at 121. In the PI Decision, the Court granted plaintiffs’ motions for a preliminary injunction, finding their Fourth Amendment challenges likely to succeed. After finding that the Amendment applied, 373 F. Supp. 3d at 481-86, the Court found two aspects of the Ordinance problematic. First was the “breathtaking” scale of the data production the Ordinance compelled. Id. at 490-93. “Each month, the Ordinance appropriates from every participant in the burgeoning home-sharing industry what is effectively a wholesale replica of that booking service’s database as to New York City users.” Id. at 490. This production demand was not limited temporally or at all tailored, and thus was “the antithesis of a targeted administrative subpoena for business records.” Id. at 491. This, the Court explained, likely violated the Fourth Amendment: While granting OSE the run of the vast user databases of platforms like Airbnb and HomeAway would surely aid OSE in its mission to identify and pursue violators of the Multiple Dwelling Laws, no Fourth Amendment precedent countenances this expedient. The City has not cited any decision suggesting that the governmental appropriation of private business records on such a scale, unsupported by individualized suspicion or any tailored justification, qualifies as a reasonable search and seizure. Id. at 492. See generally id. at 490-95. Second, the Ordinance “fail[ed] to provide a neutral forum in which a booking service could bring a pre-compliance challenge,” as required by City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015): The Ordinance does not provide for a neutral forum before which a booking service could argue, before a monthly production deadline, that the demand for user data was unreasonable under the Fourth Amendment (e.g., because of its scale or lack of tailoring). Nor does the Ordinance provide for a neutral forum before which a booking service could challenge a penalty for noncompliance imposed by OSE on the grounds that, as in Camara, the underlying demand for user records had violated the Fourth Amendment. Id. at 493. Finally, the Court noted: [E]ven if this Court’s pre-effective-date assessment of the reasonableness of the Ordinance qualified as constitutionally adequate pre-compliance review, that assessment, albeit on the limited record developed to date, would not assist the City’s cause. On the contrary, the Court’s present assessment is that it is likely that the Ordinance’s categorical demand that all booking services make sweeping monthly data productions would be held unreasonable under the Fourth Amendment. The Court largely bases this preliminary judgment on the considerations addressed above: most notably, the scale of the user data compelled to be produced, as measured against the precedents that require that the demands of subpoenas and regulatory searches and seizures be reasonably tailored and that reject governmental attempts to dispense with tailoring in the generalized interest of investigative efficacy. If each monthly demand is viewed as the functional equivalent of an OSE subpoena to each booking service, as the Court regards as appropriate, the expansive user records required be produced cannot be credibly described as “limited in scope.” The Ordinance’s intrusion on protected Fourth Amendment interests is all the greater because (1) the user data in question is commercially sensitive and subject to potential disclosure; and (2) the Ordinance’s requirement for monthly productions of such data is perpetual. An historical perspective underscores this overreach. An attempt by a municipality in an era before electronic data storage to compel an entire industry monthly to copy and produce its records as to all local customers would have been unthinkable under the Fourth Amendment. It would have been out of bounds on the grounds of excessive burden alone. The more ready ability of a modern company whose business is accomplished through cyber communications to comply with such a demand lessens the burden objection. But this should not obscure the extent to which the Ordinance departs from Fourth Amendment standards. A ruling upholding the Ordinance as reasonable would invite municipalities to make similar demands on e-commerce companies, whether by legislation or subpoena, for the routinized production to investigative agencies of broad-ranging records as to all users or customers. It would invite such productions so as to permit regulators to troll these records for potential violations of law, even as to customers as to which there had been no basis theretofore to suspect any violation of law. Existing Fourth Amendment law does not afford a charter for such a wholesale regulatory appropriation of a company’s user database…. On the record at hand, the Court therefore finds it likely that Airbnb and HomeAway will succeed in invalidating the Ordinance as unreasonable under the Fourth Amendment. That is because (1) the Ordinance lacks a mechanism for pre-compliance review by a neutral of its monthly command that booking services produce their New York City user records; and (2) even if this facial injunctive action were treated as pre-compliance review, the City has not justified its sweeping capture of constitutionally protected records. Id. at 494-95 (citations omitted).2 As to the remaining preliminary injunction factors, the Court found plaintiffs likely to suffer an irreparable injury without a preliminary injunction, and that the balance of harms and public interest favored them. Id. at 498-501. The Court accordingly entered the preliminary injunction, enjoining Local Law 146 from taking effect until the conclusion of litigation. The case then proceeded to discovery. Despite the parties’ forecast and the Court’s admonition that fact discovery be expeditious, see id. at 501, it proved extensive, protracted and contentious, with the Court called upon multiple times to resolve discovery disputes. On October 10, 2019, the Court held a conference at which the parties previewed their motions for summary judgment, and set a schedule for briefing such motions. See 18 Civ. 7712, Dkt. 128 (“Oct. 10, 2019 Tr.”). On December 20, 2019, the parties submitted a 221-page joint statement of undisputed facts. Dkt. 113. On February 13, 2020, with the briefing process underway and the City’s opening brief due the next day, Airbnb and the City jointly moved for a stay of the litigation, to provide an opportunity to explore a settlement that could moot the case Dkt. 118. The Court, on consent, entered such a stay. Dkt. 119. On July 7, 2020, with the stay still in place, the City amended the relevant provisions of the N.Y.C. Administrative Code. See Dkt. 129-1 (“Local Law No. 64″). In pertinent part, the City narrowed the data that booking services were obliged to supply. The amended provisions required booking services to furnish data only as to user listings apt to violate the multiple dwellings laws (e.g., listings that offered or appeared to offer a rental of an entire dwelling unit or a rental for three or more persons at the same time). See id. §1. The amended provisions also eliminated reporting obligations for listings for fewer than five days, eliminated the obligation to report the total fees received by the booking service, and reduced the frequency of reporting from monthly to quarterly. Id. §2. On the basis of these amendments, Airbnb, on June 12, 2020, agreed to a 125-day stay of the litigation, and, on July 14, 2020, settled its case against the City and stipulated to dismissing its action. See 18 Civ. 7712, Dkts. 157, 161. As to HomeAway, on June 12, 2020, it also consented to a 125-day stay, to enable it to evaluate the amendments. Dkt. 128. On October 6, 2020, the City, with HomeAway’s consent, asked the Court to dismiss HomeAway’s action as moot in light of the changes to the relevant statutory provisions. Dkt. 129. On October 7, 2020, the Court entered an order dismissing the case as moot. Dkt. 130. B. HomeAway’s Application for Fees and Costs On October 9, 2020, HomeAway moved for an award of attorneys’ fees ($1,471,883.20) and costs ($30,467.50) pursuant to 42. U.S.C. §1988. Dkt. 131. In support, it submitted a memorandum of law, HomeAway Mem., and a declaration by Kristen A. Linsley, Esq., with attachments, including billing records, Dkt. 133 (“Linsley Decl.”); Dkt. 135-1 (“Billing Records”). On December 15, 2020, the City opposed that motion, NYC Opp’n, and filed supporting declarations by Carlos Fernando Ugalde Alvarez, Esq., Dkt. 140 (“Alvarez Decl.”), and Karen B. Selvin, Esq., Dkt. 141 (“Selvan Decl.”). On January 25, 2021, HomeAway replied, HomeAway Reply, and filed a second declaration from Ms. Linsley, Dkt. 149 (“Linsley 2d Decl.”). II. Discussion In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), the Supreme Court reaffirmed the “American Rule” that each party in a lawsuit ordinarily shall bear its own attorneys’ fees absent express statutory authorization to the contrary. In response, Congress enacted the Civil Rights Attorney’s Fees Award Act of 1976 (the “Act”), 42 U.S.C. §1988. It authorized district courts to award reasonable attorneys’ fees to prevailing parties in civil rights litigation. Hensley v. Eckelhart, 461 U.S. 424, 429 (1983). The Act’s objective is to “ensure effective access to the judicial process with persons with civil rights grievances.” Id. (citation omitted). “Accordingly, a prevailing plaintiff ‘should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.’” Id. (quoting S. Rep. No. 94-1011, at 4 (1976)). Although a district court has wide discretion in choosing whether to deny fees, that “discretion is narrowed by a presumption that successful civil rights litigants should ordinarily recover attorneys’ fees” absent such special circumstances. Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir. 2001). Here, the City disputes HomeAway’s motion seeking a fee award on multiple grounds. The Court accordingly considers these issues, in sequence: Is HomeAway a prevailing party? Do special circumstances make a fee award to HomeAway, even if a prevailing party, unjust? And what award is reasonable here? A. Prevailing Party “To qualify as a prevailing party, a plaintiff ‘must obtain at least some relief on the merits of his claim.’” Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 934 F.3d 238, 243 (2d Cir. 2019) (quoting Farrar v. Hobby, 506 U.S. 103, 111 (1992)). “When a party receives a stay or preliminary injunction but never obtains a final judgment, attorney’s fees are proper if the court’s action in granting the preliminary injunction is governed by its assessment of the merits.” Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997). HomeAway satisfies this standard. It challenged Local Law 146 as an infringement on constitutional and statutory rights, Dkt. 1, and it promptly moved to block the law from taking effect, Dkt. 10. It argued that Local Law 146 was void under, respectively, the SCA, the Fourth Amendment, and the First Amendment. The Court’s PI Decision found for HomeAway on the second of its arguments. Analyzing at length the problems the Ordinance posed, the Court found it “likely that Airbnb and HomeAway will succeed in invalidating the Ordinance as unreasonable under the Fourth Amendment.” PI Decision, 373 F. Supp. 3d at 495.3 The decision to preliminarily enjoin Local Law 146, although also finding for plaintiffs as to the other preliminary injunction factors, was predominantly “governed by its assessment of the merits,” Haley, 106 F.3d at 483. This qualifies HomeAway as a prevailing party. That the preliminary injunction won by HomeAway never ripened into a permanent injunction does not change this result. The preliminary injunction was in place for more than 18 months. During that period, it guarded against the infringement of the Fourth Amendment rights of home-sharing platforms doing business in the city. The injunction ceased to be effective only when the City, in July 2020, adopted a narrowed ordinance, making Local Law 146 obsolete and rendering this case moot. See id. at 483-84 (A “determination of mootness neither precludes nor is precluded by an award of attorneys’ fees.” (quoting LaRouche v. Kezer, 20 F.3d 68, 75 (2d Cir. 1994))). As courts have often held, a party prevails under §1988 where it obtains a preliminary injunction against enforcement of a law that is later amended or repealed. See, e.g., Common Cause/Ga. v. Billups, 554 F.3d 1340, 1356 (11th Cir. 2009) (plaintiff prevailed in obtaining preliminary injunction against state voter identification law, where injunction “prevented Georgia from enforcing the requirement of photo identification” and state thereafter repealed the enjoined law); Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008) (plaintiff who had won a preliminary injunction challenging a municipal housing code was a prevailing party, where “[i]n response to the district court’s grant of this preliminary injunction, the City amended the offending provision of the Ordinance”); Veasey v. Wilkins, 158 F. Supp. 3d 466, 468-70, 472 (E.D.N.C. 2016) (plaintiff prevailed where she won a preliminary injunction against a state firearms statute “preventing defendants from infringing on [the plaintiff's] constitutional rights by enforcing an unconstitutional law,” which state then amended, mooting the case); Planned Parenthood Minn., N.D. v. Daugaurd, 946 F. Supp. 2d 913, 919-21 (D.S.D. 2013) (plaintiff prevailed when it obtained preliminary injunction against South Dakota statutes governing abortion access and legislature then amended enjoined portions of the statute); see also Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 717-18 (9th Cir. 2013) (collecting cases); Rogers Grp. Inc. v. City of Fayetteville, 683 F. 3d 903, 910-911 (8th Cir. 2012); People Against Police Violence v. City of Pittsburgh, 529 F.3d 226, 230, 233-234 (3d Cir. 2008); cf. Haley, 106 F.3d at 481, 483 (plaintiffs prevailed where they obtained preliminary injunction requiring payment of salaries, and case was later mooted by Governor’s compliance with the injunction and adoption of revised budget). So too here. HomeAway’s claim to have won durable relief here is especially convincing. That is because the amended statute eliminates the very features that caused Local Law 146 to be found likely unconstitutional. Whereas the Ordinance required companies to relinquish sweeping data as to all New York City listings — a scale of seizure the Court termed “breathtaking” and “unthinkable” to the Founders — the new law compels production of only targeted data. It seeks information only about listings whose parameters (e.g., by duration and number of renters) reveal an apparent violation of the multiple-dwelling laws. It also eliminates categories of data (e.g., aggregate fees) that Local Law 146 had demanded, and reduces the frequency of reporting. The City itself, in fact, has emphasized that the amended law aims to correct the constitutional flaws in the old. OSE, in endorsing the amendments, stated that it expected the amended law to result in the dismissal of the Airbnb lawsuit, and also specifically referred to HomeAway’s action. See Linsley Decl., Ex. D at 2. And the City, in moving for dismissal, argued that the new law so diverges from the old as to moot plaintiffs’ challenge. See Dkt. 129 at 1-2. HomeAway has thus, unavoidably, prevailed. Along with Airbnb, it neutralized and then caused to be superseded a law it persuasively argued was unconstitutional. And the preliminary injunction it and Airbnb secured was never “reversed, dissolved, or otherwise undone.” Sole v. Wyner, 551 U.S. 74, 83 (2007); cf. NYC Opp’n at 1-2 (citing out-of-Circuit cases rejecting fee applications in cases of “erroneously granted” preliminary injunctions that were later dissolved). As a direct result of the challenge these companies brought, a legally infirm ordinance no longer recognizably exists. And this achievement was consequential. Plaintiffs defeated, on a facial challenge, a novel regulatory scheme which, if sustained, had “far-reaching implications” for the authority of municipalities to conscript, without any showing of illegality, the recurrent mass production of customer data in the digital age. PI Decision, 373 F. Supp. 3d at 495. In disputing that HomeAway is a prevailing party, the City does not contest any of this. The City instead argues that, had it litigated the point through summary judgment, evidence it obtained in discovery would have called HomeAway’s Fourth Amendment challenge into doubt. It argues that, whereas HomeAway claimed a subjective expectation of privacy with respect to its user data, discovery revealed that, in various business contexts, HomeAway has published or disclosed certain categories of such data. NYC Opp’n at 3-8. That argument is not a basis to deny HomeAway its hard-earned status as a prevailing party. Even assuming that an argument based on the discovery to which the City points would have sustained the Ordinance — a dubious proposition4 — the City chose not to make that argument. The City could have moved for summary judgment after discovery on the grounds that HomeAway lacked a protected privacy interest in the data it collected, as it had anticipated doing. See Oct. 10, 2019 Tr. at 3-12. Instead, the day before its brief was due, the City capitulated. It sought a stay, adopted a narrowed law, and abandoned its defense of the old one. The City today, confronted with an application for a large fee award, may rue not pursuing the argument it now identifies. But it has not cited any case law allowing a vanquished party to deny the victor prevailing-party status based on an argument the loser kept in its back pocket. Section 1988 does not entitle the City to a litigation do-over upon a fee application. See Schwarz v. Sec’y of Health & Hum. Servs., 73 F.3d 895, 902 (9th Cir. 1995) (declining to consider whether claims in discrimination action were wrongly dismissed in ruling on fees application); Lillbask ex rel. Mauclaire v. Conn. Dep’t of Educ., No. 97 Civ. 1202 (PCD), 2006 WL 752872, at *4 (D. Conn. Mar. 17, 2006) (“The Court will not, on this motion for attorney’s fees and costs, relitigate the merits of the case.”); cf. Hensley, 461 U.S. at 437 (fee applications under §1988 “should not result in a second major litigation”). HomeAway, the Court therefore holds, was a prevailing party in this litigation. B. Special Circumstances Making an Award Unjust The City appears to make two arguments why a fee award to HomeAway, even if a prevailing party, would be unjust. Each is quickly put aside. First, reprising its argument as to why HomeAway is not a prevailing party, the City argues that HomeAway misled the Court that it had a reasonable expectation of privacy in its user data, and that awarding it fees therefore “would serve an injustice.” NYC Opp’n at 3 n.1. user data, and that awarding it fees therefore “would serve an injustice.” NYC Opp’n at 3 n.1. That is wrong. For the reasons above, the Court finds doubtful the City’s argument that, by disclosing user data in business contexts, HomeAway forfeited its right to claim that the Ordinance’s striking sweep infringed its Fourth Amendment rights. See supra note 4. In all events, HomeAway’s argument that it had “a reasonable expectation of privacy in its business records and information,” see, e.g., Dkt. 1
