IN RE GYPSUM CASES Civ. No. 46414-A AJZ.
386 F.Supp. 959 (1974)
In re GYPSUM CASES.
United States District Court, N. D. California.
August 19, 1974.
Frederick P. Furth, John H. Boone, San Francisco, Cal., liaison counsel for plaintiffs.
Samuel H. Seymour, Williams, Connolly & Califano, and Joseph D. Tydings, Danzansky, Dickey, Tydings, Quint & Gordon, Washington D.C., for first owner-builder class.
Mitchell A. Kramer, Philadelphia, Pa., and Farella, Braun & Martel, San Francisco, Cal., for dealer-wholesaler class.
Harvey S. Kronfeld, Mesirov, Gelman, Jaffe & Levin, Philadelphia, Pa., for applicator-subcontractor class.
William C. Barnard, Sommer, Tinkham, Barnard & Freiberger, Indianapolis, Ind., for general contractor class.
Lee A. Freeman, Freeman, Freeman & Salzman, Chicago, Ill., and Josef D. Cooper, San Francisco, Cal., for governmental class.
ORDER DIRECTING PAYMENT OF ATTORNEYS' FEES
ZIRPOLI, District Judge.
After duly noticed evidentiary hearings held on April 22, 23 and 25, 1974, the court is prepared to fix and direct the payment of attorneys' fees in this antitrust litigation, in which, probably more than in any other such litigation, the congressional objective of private antitrust enforcement was realized.
Under such circumstances, the attorneys for their able and arduous efforts in litigation involving complex and novel issues of substantial magnitude and doubtful success and undertaken at substantial financial risk on a contingency basis are clearly entitled to reasonable attorneys' fees commensurate with the benefits conferred upon purchasers of gypsum products. The purchasers of such products who benefited from this litigation might otherwise have been denied any protection or benefit whatsoever, since their claims individually would for the most part hardly justify the time and expense of litigation.
While counsel are entitled to adequate attorneys' fees commensurate
In the instant litigation, the applications for attorneys' fees filed by twenty-eight petitioners total in excess of $20,000,000, an exaggerated and untenable figure which only serves to make more difficult and more distasteful the exercise of the court's discretion in the evaluation of these claims. The resultant evaluations will probably prove to be totally satisfactory to no one.
Mindful that "[f]ew subjects associated with the class action device have generated as much critical commentary in recent years as the matter of attorneys' fees", Alpine Pharmacy v. Chas. Pfizer, 481 F.2d 1045, 1049 (2d Cir. 1973), the court has separately reviewed, analyzed and evaluated each of the claims. In so doing, it has reviewed the various tabulations of attorneys' fees and the guidelines suggested by counsel in their respective memoranda in support of their applications and the record made at the evidentiary hearing thereon, and indeed the record made throughout the entire history of this litigation.
These tabulations (and even the suggested guidelines) are meaningless without detailed knowledge of (1) the time and labor properly employed by the attorneys in the processing of these cases; (2) the quality of the services rendered; (3) the scope of the activity and conspiracy under attack; (4) the financial risk involved and contingent nature of the action undertaken; (5) the magnitude, complexity and novelty of the issues involved; (6) the true measure of the beneficial results achieved, including the prophylactic effect thereof; and (7) the degree to which, if any, plaintiff's efforts were supported by prior governmental action.
These factors, which are controlling and of which this court has firsthand knowledge, having lived with this litigation and every facet thereof over the past seven years, rather than a percentage of success
Before making an evaluation and award on the respective applications, a brief review of the history and nature of this litigation is in order.
On January 27, 1967, the first gypsum case, Wall Products Co. et al. v. National Gypsum Co. et al., 326 F.Supp. 295; 357 F.Supp. 832; 367 F.Supp. 972, was filed by the law office of Frederick P. Furth on behalf of a "dealer" (direct purchaser from the manufacturer for resale). By March 1, 1967, suits had been filed against United States Gypsum Company (USG), National Gypsum Company (National), Kaiser Gypsum Company (Kaiser). The Flintkote Company (Flintkote), and Fibreboard Company (Fibreboard) by three dealers
These initial filings were followed by a wave of suits instituted in this district and throughout the country covering every marketing level of the gypsum industry. These cases, which totaled in excess of 140 with approximately 5,500 named plaintiffs, were eventually transferred to this court by the Judicial Panel on Multidistrict Litigation. Through the years and in the course of the pretrial of these cases, forty-two major pretrial orders, preceded by pretrial hearings, and ten postsettlement orders were issued relating to a myriad of problems, including designation of and procedure for operation of document depositaries for plaintiffs and defendants; pass-on, remoteness, statute of limitations and Robinson-Patman defenses; summary judgment estopping denial of liability on the part of the major manufacturers of gypsum products; counterclaims, setoffs and liens; designation of classes, representative cases and representative counsel for each class; decertification; approval of settlements; awarding of costs and attorneys' fees and supervision of all distribution procedures.
By stipulation of counsel entered on November 27, 1968, the parties then before the court waived jury trial and agreed that the court could designate the first case or cases and the first issue or issues to be tried. Having before it twenty-four cases involving direct sales to six dealers in gypsum wallboard, the court concluded that these should be the first to be tried since they represented the first line of contact with the manufacturers, could be effectively managed and could well be the lead or pilot cases from which to determine the liability issue in all cases. Thereafter, pursuant to pretrial orders issued on April 1, 1969, and June 26, 1969, the "dealer" cases were ordered to trial on the issue of alleged violations of Section 1 of the Sherman Act (15 U.S.C. section 1) with the understanding that if liability were established, the trial on the damages issue would follow and that in the interim all discovery would be stayed in the remaining (backburner) cases until the further order of the court. It was further understood that all discovery in the dealer cases would be applicable to the remaining cases.
The trial of the liability issue in the dealer cases commenced on October 20, 1969, and on March 19, 1970, the taking of evidence was concluded. Following the trial, the parties submitted proposed findings of fact, with specific references to the transcript of record and exhibits and extensive supporting briefs. On March 18, 1971, the court found that USG, National and Kaiser had conspired among themselves and with others to stabilize and maintain the price level of gypsum wallboard through a course of interdependent conscious parallel action pursuant to a tacit understanding by acquiescence coupled with assistance, which conspiracy remained in full force and effect throughout the years 1966 and 1967. On plaintiffs' further liability claim that defendants had acted in restraint of trade during the years 1963, 1964 and 1965 by reason of their price verification practices, the court concluded that defendants were acting in good faith compliance with the provisions to the Robinson-Patman Act "by meeting but not beating" competitive price deviations. Hence the court found no liability for the years 1963, 1964 and 1965. Prior to the trial Flintkote had settled with plaintiffs, and at the conclusion of plaintiffs' case Fibreboard was dismissed from the cases. The court's findings on the liability issues can be found at 326 F.Supp. 295.
Following further discovery, including answers to transaction interrogatories, the second phase of the trial of the dealer
The magnitude of the processing of the pilot "dealer" cases alone is readily apparent when one considers that the trial of the two separate stages above indicated took up 120 trial days, with docketed pleadings, motions, etc. in excess of 5,500 and trial transcripts in excess of 100 volumes.
In the course of the "dealer" litigation and after the liability issue had been resolved by the court, the stay order on the "backburner" cases was lifted and discovery in these cases was renewed and vigorously pursued. The court, for policing purposes, on June 25, 1971, entered its pretrial order No. 29, wherein Frederick P. Furth was named as liaison counsel for all plaintiffs and Morris M. Doyle was named as liaison counsel for all defendants, including The Cellotex Corporation (Celotex) and Georgia-Pacific Corporation (Georgia-Pacific) not named in the pilot dealer cases, with the following basic responsibilities: (1) to act as primary spokesmen at all future pretrial conferences; (2) to act as conduits for the receipt and forwarding of all pleadings, motions, notices and all other papers from and to all parties and as conduits through which all communications with the court must pass; (3) to notify the court of all responses and actions concerning pretrial discovery and pretrial pleadings; (4) to call all conferences of counsel; (5) to consider the possibility of joint responses or actions or joint briefs; (6) to work out all stipulations and agreements with the opposing side; and (7) to conduct all settlement negotiations. Mr. Furth was selected as liaison counsel for plaintiffs because of the skill and dedication manifested by the success already attained and because he, of all counsel, could act with the least possible conflict of interests. The wisdom of that selection was subsequently verified by his demonstrated ability to coordinate the activities of the numerous plaintiffs' counsel into a unified litigation effort with a minimum of internecine squabbles.
On December 22, 1971, the court entered partial summary judgment estopping USG, National and Kaiser from denying liability for the years 1966 and 1967 as to all plaintiffs in all the cases and on April 12, 1972, the court established the appropriate classes for this litigation. The classes established were:
(1) Dealer-Wholesaler Class;
(2) Applicator or Subcontractor Class;
(3) General Contractor Class;
(4) National Governmental Class (excepting therefrom the states indicated in (5) below and the United States of America);
(5) Statewide Governmental Classes consisting of a statewide governmental class for each of the states of Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Kansas, Maryland, Nevada, New Jersy, New Mexico, North Dakota, Oregon, South Dakota, Tennessee, Texas, Washington, West Virginia and Wisconsin;
(6) First Owner-Builder Class.
Thereafter, in November of 1972, the court designated the representative case and representative counsel for each of the classes established by the court, and full scale discovery was soon underway in an effective team effort with substantial responsibilities assigned to representative counsel for each class. This concerted effort was aimed particularly at the alleged conspiratorial activities of Celotex, Georgia-Pacific, Flintkote, and Fibreboard, companies not bound by the Wall Products estoppel judgment, and all remaining unresolved issues. The court set hearing dates on all the remaining
The formula agreed upon by all counsel for all classes and approved by the court for distribution of the settlement fund, after deducting costs and expenses and attorneys' fees, provides for the following percentages of distribution:
Dealer-Wholesaler Class 21.15% Applicator or Subcontractor Class 21.15% General Contractor Class 10.80% Governmental Class (50 states and all subdivisions thereof) 10.00% First Owner-Builder Class 36.90%
Because liability of the manufacturers for the years 1963, 1964 and 1965 remained as an issue in the "backburner" cases and as an issue subject to the pending appeal in the "dealer" cases, it became a factor in the settlement of the cases and was resolved by the court by an order (approved by all parties) wherein the court allotted the following weight for each unit of purchase:
Calendar Year Weight1963 1 1964 1 1965 1 1966 2 1967 2
With approval of the settlement, following a hearing after notice by mail to each of 471,315 individuals and business entities and publication in six trade journals, the defendants were dismissed in all the cases,
While there remains a substantial amount of work to administer the settlement fund and effect the processing and approval (or disapproval) of the claims and the distribution of the fund, the court is satisfied that this will be performed with the same quality and efficiency that have characterized counsel's efforts in the past.
Before awarding the attorneys' fees with appropriate indications of the time and manner in which such fees shall be paid and the portion of the settlement fund from which each payment shall be made, all of which is essential before distribution to approved claimants in each class can be made with exactitude, the court deems it proper to note that were it not for the quality, skill, integrity, industry and team effort of counsel
The Attorneys' Fees Applications
Based upon the court's knowledge of every detail of this litigation and the information reflected at the hearings on the applications for attorneys' fees, the court, after giving due consideration to the factors recited on page 3 of this order, each of which is applicable to this litigation, is prepared to and does now award attorneys' fees as hereinafter set forth.
Liaison Counsel and Representatives of Each Class.
Frederick P. Furth — Liaison Counsel.
The law office of Frederick P. Furth requests attorneys' fees equal to 10 percent of the entire settlement fund, that is to say, a fee of $6,764,000. While the percentage requested might appear to be reasonable, as already indicated, the court in this case will not apply a percentage formula, but will look to the factors above indicated and base its award on those factors. In so doing the court is mindful of the fact that since December of 1966, Mr. Furth, with the able assistance of Mr. John H. Boone and other counsel in this litigation, has been the chief architect of this entire litigation. His success in the "dealer" cases and his exceptional leadership, patience and steadying influence thereafter as liaison counsel for all plaintiffs led to the ultimate settlement of these cases.
The petition, heard on April 22, 1974, discloses that at the time of the filing thereof the services rendered by the Furth office were as follows:
Furth Boone Attorneys Paralegal1. Depositions and discovery 1,424 905 1,065 298 2. Briefs, pleadings and other court papers 670 1,796 1,773 2,114 3. Trial, hearings and court preparation 2,004 1,349 448 32 4. Consultation with other attorneys and claimants 597 607 386 340 5. Settlement negotiations 322 97 24 -0- 6. Administrative matters necessitated by multiparty cases 600 438 50 57 7. Miscellaneous activities 60 74 91 52 _____ ______ ______ _____ TOTAL HOURS 5,677 5,266 3,837 2,893
However, the finding of a reasonable hourly rate for each attorney "does not end the inquiry," for the court must also look to the other factors which are of major significance in this litigation. These other factors are those hereinbefore set forth and they all apply most favorably to the services rendered by the Furth office and indeed to the services rendered by all counsel in this litigation.
This litigation, which involved complex and novel issues of substantial magnitude arising out of alleged conspiratorial activities in restraint of trade of nationwide application, was undertaken by the Furth office on a contingency basis at substantial financial risk (the costs and expenses in the "dealer" cases alone exceeded $150,000) with the result in doubt until the court's opinion of April 13, 1973, and indeed until the approval of the settlement and dismissal of all defendants on November 29, 1973, thereby rendering moot pending appeals on meritorious issues, which if ruled upon adversely to plaintiffs could well have resulted in a disastrous ending to all of the time, money and effort of counsel for all parties. To this contingency factor must be added the fact that without one iota of governmental assistance, counsel, and in particular the Furth office, by diligent and unrelenting application of their skills and their labors achieved an astounding settlement of $67,640,000 and an end to further corporate abuse in the gypsum industry, which for the years 1968, 1969 and 1970 alone saved purchasers of gypsum products $86,813,265.
With all these factors in mind, if private enforcement of the antitrust laws is to be expected and encouraged, it is in this court's view eminently reasonable to multiply the hourly value above set forth by a weighted factor of 3, thereby bringing the total reasonable fee earned up to April of 1974 to $3,988,635. To this figure must be added the additional services which will be required to complete administration and final distribution of the fund. This could well take another year. As of June 28, 1974, and since the April hearing for this purpose, the Furth office, through Mr. Furth and four lawyers and five paralegal assistants, has already devoted in excess of 2,950 hours to the administration of the settlement fund and it would therefore be reasonable to expect them to devote an additional 6,000 hours of such services before the task of counsel is completed. For this total of an additional 8,950 hours of basically administrative services, compensation at the rate of $30 per hour is reasonable. The court therefore adds an additional $268,500. This brings the total reasonable fee for all services rendered and to be rendered in this litigation by the Furth office to $4,257,135 ($3,988,635 plus $268,500). From this total must be deducted the fees already received by Mr. Furth in the "dealer" cases in the sum of $928,628. Therefore the Furth office is now entitled to $3,328,507, which the court directs shall be paid to Frederick P. Furth from the entire fund, since such services benefited the entire fund and all claimants, represented and unrepresented, in all classes.
Seymour-Tydings — First Owner-Builder Class.
The next largest request for attorneys' fees is that of the offices of Williams, Connolly & Califano and Danzansky, Dickey, Tydings, Quint & Gordon, represented respectively by Samuel H. Seymour and Joseph D. Tydings, who
As of the hearing date of April 22, 1974, the record discloses that the services rendered by the Seymour-Tydings firms were as follows:
Seymour and Law
Tydings Partners Associates Clerks1. Depositions and discovery 1,014.90 713.50 295.60 406.20 2. Briefs, pleadings and other court papers 905.75 364.50 597.10 362.70 3. Prertial hearings and prepaartion therefor 515.60 34.70 4. Damage studies 161.95 322.20 129.70 5. Settlement-interclass 241.60 165.00 6. Settlement with defendants 352.50 72.20 7. Notices to classes 52.70 33.30 21.10 63.90 8. Settlement administration 380.30 232.90 214.40 77.30 9. Consultation with counsel 403.00 157.80 62.50 10. Miscellaneous 118.05 45.00 6.60 ________ __________ ________ _________ TOTAL HOURS 4,146.35 2,141.10 1,197.30 1,039.80
Applying the same community standards applied throughout this order, the court finds $100 per hour to be reasonable for the services rendered by Mr. Seymour and Mr. Tydings and their partners, $50 per hour for the services rendered by their associates, and $15 per hour for the services of law clerks. This brings the total for all such hourly services rendered by the Seymour-Tydings firms as of April 1, 1974, to $704,207 ($628,745 plus $59,865 plus $15,597).
Again, the hourly rate does not tell the full story. Here the factors that apply to the Furth firm are applicable to the experienced antitrust attorneys of the Seymour-Tydings firms, who rendered skilled and effective services. They too undertook the litigation on a contingency fee basis at substantial financial
Mitchell A. Kramer and Farella, Braun & Martel — Dealer-Wholesaler Class.
Petitioners, Mitchell A. Kramer and Farella, Braun & Martel, co-counsel and representative counsel of the Dealer-Wholesaler Class, have applied to the court for an award of attorneys' fees in the amount of $1,500,000 as compensation for services rendered and benefit conferred upon the Dealer-Wholesaler Class.
Kramer Partners Associates Paralegal1. Preparation of materials and pleadings 288.50 4.30 2. Response to court's questionnaire 10.00 3. Preparation of summary judgment motions and briefs 144.00 79.00 4. Brief on class action determination 35.00 5. Reply brief on decertification and statute of limitations 57.25 3.00 6. Class action notice 6.45 7. Class action interrogatories 2.00 34.30 8. Transaction interrogatories 59.85 33.00 121.00 9. Review of USG documents and production 157.25 392.80 10. Preparation of interrogatories and requests for production from USG 8.30 1.30 84.25 11. Brief on and analysis of settlement 45.25 44.70 12. Research and construction of claim forms 8.50 13. Research and construction of fee application and briefs 49.00 9.00 12.00 14. Miscellaneous research and analysis 43.25 2.60 2.00
Kramer Partners Associates Paralegal15. Meetings, hearings and conferences with class representatives 660.90 65.80 16. Miscellaneous 100.00 ________ _____ ______ ______ TOTAL HOURS 1,675.50 11.60 279.40 598.05 Note: Because petitioner used minutes and the court used fractions of hours employed, there is a slight difference of about one hour in our respective totals.
The record discloses that the services rendered by the firm of Farella, Braun & Martel were as follows:
Partners Associates1. Introduction to case, evaluate defendants liability and compile information re filing action 85.75 50.50 2. Organize filing and administrative system for class case and prepare complaint 28.00 22.30 3. Evaluate class action problems and motion to certify classes 57.87 33.50 4. Evaluate Robinson-Patman claims 5.75 8.50 5. Supply initial Kaiser settlement proposal 10.50 6. Oppose statute of limitations defenses and answer transaction interrogatories 111.50 134.25 7. Appointment as class representative 11.00 8. Plan discovery and prosecution strategy, research re pass-on defense 131.50 84.25 9. Memo re aggregate class damage and interclass apportionment agreement 120.00 61.50 10. Research claims under Sec. 2 Sherman Act 4.00 5.50 11. Negotiate and execute interclass apportionment agreement 61.50 12. Plan proof of damages, discovery, price study re Celotex, USG, Fibreboard 69.00 144.25 13. Brief re class decertification and fraudulent concealment and opposition to summary judgment 57.00 93.25 14. Kaiser settlement negotiations 16.50 3.25 15. Bring government class into interclass apportionment agreement 22.75 16. Georgia-Pacific deposition 3.50 17. Amicus brief re remoteness-Liquid asphalt cases 6.50
Partners Associates18. Coordinate briefs re defendants three motions 24.70 24.50 19. Discovery re single plant producers 6.75 2.00 20. Prepare litigation notice to class claimants 11.25 7.00 21. Assessments re liaison counsel expenses 2.25 22. Settlement negotiations re defendants 20.50 1.50 23. Prepare for hearings re decertification, statute of limitations, remoteness 36.75 62.75 24. Class-settlement notices and administrative details 91.35 32.25 25. Brief in support of settlement and interclass apportionment 36.75 57.75 26. Motion re collateral estoppel 8.25 1.25 27. Investment of fund 2.50 28. Preparation for and court appearances 79.50 26.25 29. Re briefs, etc. on costs and attorneys' fees 18.25 24.75 30. Miscellaneous (too detailed to set out here) 64.00 145.25 ________ ________ TOTAL HOURS 1,205.42 1,026.30
To these services must be added 1,310.00 hours of paralegal and law clerks' services.
Combining the hourly services of Mr. Kramer and his firm members with that of the Farella, Braun & Martel firm, produces a total of 2,892.52 hours for partners, 1,305.70 hours for associates, and 1,908.05 hours for paralegal and law clerks. Applying the standard of $100 per hour for partners, $50 per hour for associates, and $15 per hour for paralegal and law clerks, the total value for all such services is $383,157 ($289,252 plus $65,285 plus $28,620). While all the factors applied in the court's consideration of the previously made awards, including the same effective service, are applicable to this application, the fact remains that once liability was ascertained in the "dealer" cases the risk to this class, although ever present until settlement and dismissal of the appeal, was in some degree less than that of other classes, i. e. First Owner-Builder Class. Hence, the court finds the multiple factor reasonably applicable here to be 1.75, thereby bringing the total reasonable fee earned as of April, 1974, to $670,524. Since the report submitted to the court for its April hearing, counsel have expended 681 hours of partners' time, 511 hours of associates' time, and 1,711 hours of paralegal and law clerks' time in administrative services. An additional 1,200 hours for such services will be required.
Harvey S. Kronfeld — Applicator-Subcontractor Class.
Mr. Harvey S. Kronfeld and Mesirov, Gelman, Jaffe & Levin, court-appointed representative of the Applicator-Subcontractor Class and counsel for named plaintiffs in the case of
As of the date of the hearing of April 22, 1974, the record discloses that the services rendered by counsel for this class were as follows:
Kronfeld Partners Associates Paralegal1. Discovery matters 672.70 673.70 208.50 612.60 2. Pleadings, interrogatories, motions, pretrial orders 151.40 67.80 99.40 56.20 3. Interclass settlements 109.40 23.50 54.20 4. Answering defendants' interrogatories 24.90 19.00 80.30 2.00 5. Defendants' summary judgment motions 162.30 69.00 216.70 6. Pretrial conferences 114.70 15.70 12.70 7. Settlements with defendants 127.20 32.50 3.30 8. Settlement approval 162.00 117.10 13.90 13.20 9. Class action notices, claim forms and plan of distribution 121.20 151.50 24.60 99.80 10. Processing of claims to 4/1/74 206.20 240.50 4.50 ________ ________ ______ ________ TOTAL HOURS 1,852.00 1,410.30 718.10 783.80
The factors herein enumerated also apply favorably to counsel for this class who by vigorous and effective pursuit of the responsibilities assigned to them substantially contributed to the settlement obtained and the end to corporate abuse in the gypsum industry. Here the risk factor was slightly higher than that of the Dealer-Wholesaler Class. Hence the court uses a multiple factor for the Applicator-Subcontractor Class of 1.85, thereby bringing the total reasonable fee for services of counsel for this class up to April 1, 1974, to $691,700. Since the report submitted to the court for its April hearing counsel have expended 904 hours of partners' time, 142 hours of associates' time, and 5 hours of paralegal services for administrative purposes for a total of 1,051 hours. An additional 1,375 hours of such administrative services will be needed. This makes a total of 2,426 additional hours of administrative services rendered and to be rendered, and at $30 per hour entitles counsel to an additional $72,780, which added to $691,700, results in an overall total of $764,480, which the court directs shall be paid to Harvey S. Kronfeld and Mesirov, Gelman, Jaffe & Levin from the fund available for distribution to the unrepresented claimants in the Applicator-Subcontractor Class.
William C. Barnard — General Contractor Class.
The General Contractor Class will share in 10.80 percent of the settlement fund which should be approximately $7,900,000. William C. Barnard and the firm of Sommer, Tinkham, Barnard & Freiberger, as court-appointed representative counsel for the General Contractor Class have requested attorneys' fees equal to 10 percent of the fund to be distributed to the members of the class, that is to say, about $790,000. They have waived in writing any contingency fee to which they might be entitled under their contracts with named plaintiffs in
At the time of the submission of their application for the hearing of April 22, 1974, the record discloses that the services rendered by Mr. Barnard and the members of his firm were as follows:
Barnard Partner Associate1. Depositions and discovery 81.50 157.70 .90 2. Briefs, pleadings, motions, etc. 99.30 28.80 1.50 3. Trials, hearings and related court preparation 143.90 63.90 4. Communications with other attorneys and claimants 83.30 19.60 .40 5. Class notices and plan of distribution 141.00 136.40
Barnard Partner Associate6. Research, legal and economic 80.80 37.00 18.70 7. Settlement negotiations 69.60 16.70 8. Negotiations on interclass settlement agreement 102.30 41.20 9. Miscellaneous and administrative 16.00 10.50 10. Claims review to 4/1/74 90.80 74.90 147.30 _______ ______ ________ TOTAL HOURS 908.50 586.70 168.80
Applying the same community standards employed in the evaluation of all the applications for attorneys' fees, the court finds $100 per hour to be reasonable for the services of Mr. Barnard and his partners and $50 per hour for the services of associate counsel. This brings the total for such hourly services to the sum of $157,960 ($149,520 plus $8,440).
As an effective member of the team to which the above enumerated factors apply most favorably, counsel for this, the second largest class, are reasonably entitled to a multiple factor of 2, thereby bringing their earned fee to April 1, 1974, to $315,920. Since April 1, counsel for this class have rendered 2,321 hours of administrative services (501 hours for partners, 835 hours for associates, and 985 hours paralegal). To complete the processing of the 22,000 claims filed in this class should reasonably require an additional 2,500 hours (1,500 attorneys' time and 1,000 paralegal time), making a total of 4,821 additional hours for administrative services which at $30 per hour entitles counsel to an additional $144,630. Thus the fee awarded to William C. Barnard and the members of his firm is $460,550, which the court directs shall be paid from the fund available for distribution to the unrepresented claimants in the General Contractor Class.
Lee A. Freeman — Governmental Class.
As court-appointed representative for the Governmental Class,
(1) a claim of 15 percent of the recoveries to be realized by governmental entities not represented by other attorneys specifically or in statewide classes, which amounts to approximately $865,800 (for this purpose the specifically named plaintiffs for whom Mr. Freeman is attorney of record in this litigation shall be included as plaintiffs not represented); and
(2) An additional claim of $500,000 from the non-governmental fund (all funds less that portion allocated to the Governmental Class) by reason of the substantial contributions made to the success of the litigation, which benefited all classes and which went beyond counsels' obligation to the class they represent.
Hours Involved Senior Partners Associates August 1967-April 19681. Investigation of facts Freeman 185 Salzman 168 — Marketing practices — Industry economics — Group activities 2. Research of legal issues Freeman 122 Salzman 312 — Study of previous proceedings involving gypsum companies — Analysis of developing case law 3. Conferences with clients, public entity users and industry personnel Freeman 73 Salzman 32 April 1968 to March 19714. Preparation of pleadings, Freeman 5 follow-up of ensuing developments Hanley 401 — Meetings with other plaintiffs' counsel 5. Pretrial discovery Freeman 719 — Document inspection Hanley 39 — Depositions — Meetings and conferences — Max Blecher 6. Dealer trial (2/25/69-3/-18/71) Freeman 100 Davidow 620 — Close contact and conference with Furth — Analysis of materials to be used at trial — Review of all documents and deposition transcripts 7. Dealer trial (con't) Freeman 140 Davidow 500 — Preparation of drafts of memo of law — Preparation of pretrial settlement of facts — Legal memo on Robinson-Patman issues — Assistance in preparation of trial brief
Hours Involved Senior Partners Associates April 1968 to March 19718. Analysis and consultation Freeman 50 on dealer damage issues March 1971-December 31, 19739. Meetings and conferences Freeman 230 Voortman 25 with Furth and plaintiffs' Scarpulla 71 counsel Cooper 105 10. Pretrial conferences Freeman 150 Voortman 206 11. Development of transactional Freeman, Jr. 72 Voortman 309 information Salzman 112 Scarpulla 37 12. Legal research Salzman 136 Voortman 860 — Indirect purchaser and Scarpulla 35 pass on Cooper 67 — Collateral estoppel — Venue — Statute of limitations — Class action issues 13. Discovery Freeman 81 Voortman 150 — Interrogatories Salzman 62 Krepps 32 — Document inspection Paralegal 250 14. Class action procedural Freeman 83 Krepps 100 problems Freeman, Jr. 19 Tedeschi 61 — Form of notice Cooper 431 Paralegal 215 — Sharing of costs — Computer programming — Analysis of opt-outs 15. Damage and statistical Freeman 52 Tedeschi 21 studies Cooper 36 Paralegal 135 16. Negotiation of interclass Freeman 102 Tedeschi 20 allocation agreement Cooper 68 17. Negotiation of settlements Freeman 330 — Consultation with Furth Cooper 168 and national class representatives — Negotiating sessions with defendants' counsel —Drafting of agreements 18. Report and consultation Freeman 215 with clients on each phase Freeman, Jr. 100 of development Scarpulla 19 Cooper 65 19. Research and memo in Freeman 35 support of settlement Cooper 112
Hours Involved Senior Partners Associates March 1971-December 31, 197320. Preparation of plans of Freeman 105 Paralegal 400 distribution Cooper 91 — Meetings with counsel — Investigation of statistical material available — Statistical tables — Form of notice to class members — Supervision of printer and computer company 21. Liaison functions Cooper 85
The foregoing shows that between August, 1967, and December 31, 1973, Mr. Freeman and his associates devoted the following time to this litigation: 5,108 hours for partners, 3,416 hours for associates, and 1,000 hours of paralegal time. Applying $100 per hour for partners, $50 per hour for associates, and $15 per hour for paralegal, the total for such hourly services is $696,600 ($510,800 plus $170,800 plus $15,000). To this figure $12,100 should be added, representing 121 hours of services by Mr. John F. Meyer for his representation of the State of Illinois and the public entity class members thereof. This brings the total figure to $708,700. The unquestioned skills of counsel for this class, the risk involved, although not as great as that of the First Owner-Builder Class, and the substantial contribution made to the entire litigation and all classes thereof over a period in excess of six years justifies application of a multiple weighted factor of 1.75. This brings the total fee to December 31, 1973, to $1,240,225. Since 2,406 hours of administrative services have been rendered and an additional 900 hours of such services will be required to bring this litigation to a close, this total of 3,306 hours at $30 per hour adds an additional $99,180, for a grand total of $1,339,405. This compares favorably with petitioner's request for $1,365,800.
Accordingly, the court awards Lee A. Freeman the sum of $1,339,405, to be paid from the following sources:
(1) the sum of $865,800 to be paid from the funds distributable to all members of the governmental and statewide classes not represented by other counsel and the funds distributable to the states and governmental entities represented by Mr. Freeman;
(2) the sum of $473,605 from the total fund available for distribution to all classes other than the Governmental Class.
Although the services of other counsel must be judged by the same factors which entered into the court's determination of the fees awarded liaison counsel and counsel acting as class representatives, it is primarily to their contracts with their respective clients that such counsel must turn for their recompense. Hence the fees hereinafter awarded to such counsel are based exclusively on those services which transcended their obligations to their clients and contributed significantly to the success of the litigation and the settlement fund realized thereby.
Joseph L. Alioto.
The services rendered by the firm of Joseph L. Alioto were substantial and they contributed to the success of the litigation; however, the court finds the application of the Alioto firm for a fee of $3,000,000 to be highly exaggerated and completely untenable. It will evaluate the services of that office by the same standards applicable to all others, bearing in mind that the Alioto office was one of the first to enter this litigation, participated actively in the early stages thereof, vigorously pursued motions to produce under Rule 34 of the Federal Rules of Civil Procedure and participated alone or in concert with Mr. Furth in the taking of twenty-three significant depositions. For the above mentioned services Joseph L. Alioto, Maxwell R. Blecher, Guido Saveri and Joseph R. Hicks, all experienced and skilled antitrust lawyers, devoted "at least 1,750 hours" of their time up to the date of the filing of their application for attorneys' fees and by April 1, 1974, Mr. Saveri had devoted another 75 hours thereto, bringing the total time of such counsel to 1,825 hours, which based on a fee of $100 per hour brings the hourly value of their services to $182,500. Considering the high risk involved in the early stages of the litigation and the substantiality of their contribution which benefited all classes, the court finds it appropriate to apply a multiple weighted factor of 2, thereby bringing the total fee to which the Alioto firm is entitled as of April, 1974, to $365,000. Giving this firm credit for an additional 100 hours of administrative services with the Claims Review Committee of the Applicator-Subcontractor Class at $30 per hour, the court adds an additional $3,000, thereby bringing the total fee earned by the Alioto firm to $368,000. From this sum the court deducts the retainers received in the sum of $12,650 and the fees received in the "dealer" cases in the sum of $31,150.
Robert H. Weir.
Robert H. Weir, counsel for three of the dealer plaintiffs in the pilot "dealer" cases, in his own behalf and that of John H. Boone, associated with him in those cases, seeks an award of attorneys' fees in the sum of $357,925 for 3,579.25 hours of services, which he asserts directly contributed to the creation of the settlement fund for all classes in this litigation. This claim is supported and corroborated by a detailed thirty-page schedule of his services rendered. As the court noted at the time it awarded attorneys' fees in the "dealer" cases:
With the foregoing considerations in mind, the court further notes that when it awarded attorneys' fees in the "dealer" cases it disallowed 40 percent of the hourly services claimed because the issues to which the disallowed time was addressed were not significant to plaintiffs' success in those cases. However, the time employed on those issues became relevant and substantial in the "backburner" cases and the ultimate favorable settlement thereof. Hence the court finds that the claim of 40 percent of $357,925 is amply supported by the record and constitutes reasonable attorneys' fees to Mr. Weir and Mr. Boone for their contribution to the settlement achieved for all cases and all classes. Accordingly, the court awards attorneys' fees to Robert H. Weir and John H. Boone in the sum of $143,170 and directs that the same shall be paid from the total fund available for distribution to all classes.
David A. Berger
David A. Berger, whose firm represents 349 named plaintiffs and other claimants in this litigation, seeks attorneys' fees in the sum of $450,000. He has contingency contracts with these clients ranging from 25 to 40 percent of their recoveries. Hence the court reminds counsel that it is to these clients, from whom he will receive substantial fees, that he must look for remuneration for services rendered primarily in their behalf. Nevertheless, the court recognizes that some of Mr. Berger's efforts and those of the members of his firm did inure to the benefit of unrepresented members of all classes in this litigation.
The following is a table of such services, set forth annually:
Attorney 1968 1969 1970 1971 1972 1973 TotalDavid Berger 4.0 32.0 33.0 112.5 41.5 68.0 291 Herbert Newberg 9.0 110.0 89.0 42.0 250 H. L. Montague, Jr. 1.0 73.5 12.4 10.25 73.50 141.50 312.1 H. L. Schambelan 85.5 85.5 Paul McMahon 264.75 8.75 273.5 Warren D. Mulloy 27.0 27 Bruce K. Cohen 5.5 24.5 30 Gerald J. Rodos 3 3 Joseph R. Lally 4.5 4.5 Merill G. Davidoff 22.5 22.5 S. J. Greenfogel 84.75 84.75 Totals 14 301 134.4 169.25 388.25 377 1383.9
Additionally, Mr. Montague of petitioner's firm devoted 34.75 hours to this litigation in 1974 which is not reflected in the above table, making a total of 1,418.65 hours. At $100 per hour for the 291 hours of services by Mr. Berger
Elwood S. Kendrick.
Elwood S. Kendrick seeks attorneys' fees in the sum of $310,000 for services rendered on behalf of the unrepresented claimants in this litigation in the First Owner-Builder and Contractor Classes, and in particular for services rendered since the trial of the dealer cases. Petitioner entered this litigation in April of 1967 and has attended approximately thirty-five conferences and pretrial hearings in San Francisco, Chicago, Philadelphia and Washington, D. C. He asserts that the time expended for such purposes consisted of 450 hours of his time, 390 hours of services of associate counsel and 548 hours of paralegal time. However, the court notes that some of these services were duplicative of the services rendered by representative counsel for the established classes and that a substantial portion of such time was devoted to the requirements (e.g., transaction interrogatories) of the approximately 156 named plaintiffs he represents in the First Owner-Builder, Contractor and Dealer-Wholesaler Classes on contingency contracts calling for fees ranging from one-third to forty percent of their recoveries. Furthermore, as noted above, the Alioto firm has waived its share of all contributions payable to it in those cases wherein Mr. Kendrick associated the Alioto firm. Therefore, the court after evaluating the time employed that could be said to have benefitted the First Owner-Builder and Contractor Classes, finds that it consists of 250 hours of Mr. Kendrick's time and 140 hours of the time of associate counsel. Accordingly, the court finds a reasonable fee payable to Elwood S. Kendrick to be $32,000 ($25,000 plus $7,000) payable as follows: $16,000 from the fund distributable to the unrepresented claimants in the First Owner-Builder Class and $16,000 payable from the fund distributable to the unrepresented claimants in the Contractor Class.
Arent, Fox, Kintner, Plotkin & Kahn.
The law firm of Arent, Fox, Kintner, Plotkin & Kahn, which represents 233 First Owner-Builder plaintiffs, 4 First Owner-Builder and General Contractor plaintiffs, 11 General Contractor plaintiffs and a substantial number of other claimants, who for the purposes of this litigation must be deemed as unrepresented claimants, has requested attorneys' fees for services rendered up to April 1, 1974, in the sum of $83,845. These services, petitioners assert, were services which directly benefitted the entire First Owner-Builder Class. They have submitted in detail a specific description of the services rendered which appears to support their claim. The schedules submitted reflect that 938.3 hours were devoted to such services up to December 31, 1973, and 615.5 hours thereafter up to April 14, 1974. Based upon the firm's billing rate for all counsel (partners or associates) of $50 per hour prior to 1973 and $60 per hour thereafter, their time schedules show total earned fees of $83,845 ($46,915 plus $36,930). These fees the court finds to be reasonable. However, though counsel attributes the above described services to services for the benefit of all members of the class, the fact remains that their numerous clients (plaintiffs in this litigation) who are members of the class will also benefit from these services as well as from all other services rendered on their behalf, which are not encompassed in the present petition. For these services such clients will pay contingency fees from two-ninths to one-third of their recovery. Accordingly,
Howard, Prim, Rice, Nemerovski, Canady & Pollak.
Howard, Prim, Rice, Nemerovski, Canady & Pollak, as counsel for approximately 530 named plaintiffs, petitioned the court for attorneys' fees in the sum of $50,838, based upon services which they assert benefitted the members of all classes in this litigation. A summary of the time expended through December 31, 1973, shows the following:
Partners Partners Associates ParalegalPre-Class 38 73 293.1 Discovery 1.8 658.2 299.3 General Class 140 329.2 __ _____ ______ _____ TOTAL HOURS 38 214.8 1,280.5 299.3
A breakdown of the foregoing schedule reveals a total of 252.8 hours of service of senior and junior partners, 1,280.5 hours of service of associates and 299.3 hours of paralegal assistants. Applying the hourly rates of $100 for partners, $50 for associates and $15 for paralegal services, the total fee requested is $93,794 ($25,280 plus $64,025 plus $4,489). While there is no doubt that the services rendered by this firm contributed to the overall success of the litigation, particularly when it answered in detail the transaction interrogatories for its 530 named plaintiffs and thereby demonstrated their ability to meet the remoteness issue and prove their damages, a matter of particular import to the First Owner-Builder Class, the fact remains that most of these services were in fulfillment of counsel's basic obligation to their clients with whom they have contingency contracts calling for fees ranging from 23 to 35 percent of all recoveries obtained in their behalf. On balance, the court finds it fair and reasonable to attribute one-third of the services above indicated to have benefitted all classes and in particular the First Owner-Builder Class. Accordingly, the court awards $31,264 (one-third of $93,794) to the firm of Howard, Prim, Rice, Nemerovski, Canady & Pollak as reasonable attorneys' fees, and directs that the same shall be paid from the fund available for distribution to the unrepresented claimants in the First Owner-Builder Class.
Michael B. Lewiston of the firm of Bodman, Longley, Bogle, Armstrong & Dahling and Frederick D. Steinhardt of the firm of Goldman, Mason & Steinhardt, as attorneys for one of the largest groups of First Owner-Builder plaintiffs, seek attorneys' fees from the fund available for distribution to the unrepresented
John Edward Burke.
John Edward Burke and the firm of Ross, Hardies, O'Keefe, Babcock & Parsons, as counsel for the Home Builders of Greater Chicago, No. 70-210, and approximately 245 named plaintiffs with whom they have contingency contracts calling for 25 percent of their recovery, have petitioned the court for attorneys' fees in the sum of $50,000 from that part of the settlement fund distributable to all unrepresented claimants in all classes. Their services were part of the team effort and there is no doubt in the court's mind that counsel's active participation in at least twenty meetings of counsel and pretrial hearings in Washington, D. C. and San Francisco and active participation in the settlement negotiations contributed to the overall settlement. For such purposes the firm devoted 530 hours of service by partners of the firm and at $100 per hour this would entitle them to a fee of $53,000. However, the fact remains that these services were also essential to the cause of their clients to whom they must look for their basic remuneration. Accordingly, on balance, the court finds a reasonable fee payable to such counsel to be 60 percent of $53,000, or $31,800, which the court directs shall be paid to the firm of Ross, Hardies, O'Keefe, Babcock & Parsons from the settlement fund distributable to all unrepresented claimants in all classes.
Cochrane & Bresnahan.
The firm of Cochrane & Bresnahan, counsel in eight First Owner-Builder cases and two Applicator cases, seeks attorneys' fees in the sum of $52,800. This is based on 660 hours of attorneys' services averaged out at $80 per hour. Based upon the court's analysis of the services of each of the named attorneys in the petition, the court finds such allocation between senior counsel and associate counsel to be fair and reasonable. While these services are asserted to have benefitted the unrepresented members of the First Owner-Builder and Applicator Classes,
Accordingly, the court finds the sum of $26,400 to be reasonable attorneys' fees to be awarded the firm of Cochrane & Bresnahan and directs that $23,074 thereof shall be paid from the fund available for distribution to the unrepresented
Allan R. Carpenter, Jr.
Attorney Allan R. Carpenter, Jr. seeks attorneys' fees equal to five percent of the entire fund available for distribution to the members of the General Contractor Class, whether represented or unrepresented. This would amount to approximately $395,000. This is an exaggerated and untenable request. Counsel asserts that 1,707 hours of his time and that of his associates were devoted to this litigation and that only 591.5 hours of such services were devoted to the direct needs of his specifically identified clients. This would leave 1,115.5 hours of service for the benefit of the members of the General Contractor Class. Counsel did not enter this litigation until July 27, 1972, when he sought to intervene on behalf of his client Rossmoor Corporation in the General Contractor Class in the case of
There is no question that after he got into this litigation Mr. Carpenter made some contribution to the benefit of all members of the General Contractor Class. However, much of his work was duplicative in character and a substantial number of those 1,115.5 hours also served the particular needs of his clients. The court therefore finds that only 40 percent of this suggested time can be deemed a contribution to the General Contractor Class. Accordingly, the court, using a weighted average of $80 per hour for senior and associate counsel, awards Allan R. Carpenter, Jr. attorneys' fees in the sum of $35,696 (446.2 hours at $80), which the court directs shall be paid from the fund available for distribution to the unrepresented members of the General Contractor Class.
Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle.
The firm of Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, which represents plaintiff in the case of
George W. Liebmann.
Mr. George W. Liebmann and the firm of Frank, Bernstein, Conaway & Goldman claim no specific amount, but request such "fees as the court may award in its sound discretion." Since these attorneys represent plaintiffs in one case,
Stephen J. Schwartz.
Mr. Stephen J. Schwartz has requested attorney's fees in the sum of $3,000. He is not an attorney of record for any of the named plaintiffs in this litigation and predicates his request for services apparently rendered while in the employ of or in association with other counsel in this litigation. It is to such counsel that he must turn if he has any just cause for further compensation. This request for attorney's fees is denied.
Terry C. Schmalz.
While the fee request of Terry C. Schmalz is a mere $50, the court finds
Independently Represented States.
In addition to the states represented by counsel for whom fees have hereinabove been provided,
Arizona, North Dakota and South Dakota — Meyers & Curtis.
The firm of Meyers and Curtis and Donald D. Meyers as counsel for the states of Arizona, North Dakota and South Dakota have applied for attorneys' fees in the sum of $84,000 against the entire settlement fund. Counsel have contracts with the states of North Dakota and South Dakota that call for one-third of their recoveries and have been retained by the state of Arizona at an hourly rate not to exceed $50 per hour, with the Arizona fee to be contingent upon and payable out of its recovery in the litigation. The statute of Arizona, Article 5, Section 41-191-D of the Arizona Revised Statutes provides that the court in which an antitrust case is pending has authority to set a fee in conjunction with any given case and the court awarded fee shall be paid in lieu of the fee provided by the statute. Since the fees about to be awarded are to be divided equally and shared in equally by the states of Arizona, North Dakota and South Dakota, these awards shall be deemed part of the recovery of each state and not as attorneys' fees within the meaning of the Arizona statute. This is to prevent any inequity or misinterpretation as to the intent of the court in awarding fees and the effect thereof on the fees received or to be received by the firm of Meyers & Curtis.
These attorneys devoted 764 hours of service to this litigation, and while the bulk of the services were for the direct benefit of their clients, a substantial portion of these services were devoted to the taking of the depositions of single plant producers of gypsum products, namely American Gypsum, Republic Gypsum and Big Horn Gypsum, and motions for them to produce documents. At least one-third of such services directly benefitted all classes. Accordingly, the court awards $25,500 (255 hours at $100) as attorneys' fees to the states of Arizona, North Dakota and South Dakota as part of the recovery of each of these states to be divided among them in equal shares of $8,500. Said award shall come from the fund available for distribution to the unrepresented claimants in all classes.
New Mexico, New Jersey, Maryland, Connecticut, The Mayor and City Council of Baltimore, Baltimore County, and The City and County of Denver — Specks & Goldberg.
The members of the firm of Specks & Goldberg are attorneys of record
California — The Attorney General of the State.
The Attorney General of the State of California, Evelle J. Younger, seeks attorneys' fees equal to 10 percent of that portion of the settlement fund available for distribution to the California statewide governmental class. This is a fair and reasonable request which the court approves as the amount of attorneys' fees that may be deducted from that portion of the settlement fund available for distribution to the California statewide class and paid to Evelle J. Younger as Attorney General of the State of California. The court also notes that since the filing of its application for attorneys' fees, Assistant Attorney General Richard N. Light has devoted 125 hours of administrative services in the processing of claims in the governmental class. It is reasonable to expect him to devote another 75 hours to such work before the work of the Governmental Claims Review Committee is completed. Accordingly, for these 200 hours of administrative services the court awards $6,000 to the Attorney General of the State of California to be paid from the fund available for distribution to the unrepresented claimants in the governmental class.
Oregon — The Attorney General of the State.
The Attorney General of the State of Oregon requests such reasonable attorneys' fees as the court may award.
Idaho — Richard R. Greener.
Mr. Richard R. Greener, counsel for the state of Idaho, requests approval of his contingency fee agreement with the state requiring payment to him of 20 percent of the net recovery to the state of Idaho and political subdivisions and entities therein. This was an agreement fairly entered into, and, considering that the recovery of the state of Idaho will be relatively small and that Mr. Greener has already spent in excess of 100 hours of his services in its behalf and is likely to devote another 30 hours of work to this litigation before the settlement funds are distributed, the court finds this 20 percent agreement to be fair and reasonable and therefore approves the same.
Washington, Wisconsin and Kansas.
These states, through their counsel, have made substantial contributions to the success of this litigation in the manner hereinafter indicated, which contributions in the court's considered judgment went beyond their obligations to their respective states. The services of each state will be separately considered and evaluated.
The state of Washington, through its Special Assistant Attorney General, Culp, Dwyer, Guterson and Grader, first entered this litigation on July 5, 1969, and have actively participated therein ever since. They request attorneys' fees in the sum of $74,728, which they assert represents compensation at the rate of $80 per hour (it is actually approximately $74 per hour) for the time of the attorneys, particularly William L. Dwyer and Jerry R. McNaul, experienced antitrust lawyers. A summary of their schedule of services as of April, 1974, reflects the following:
1. Legal research in connection with the dealer cases 104.60 2. Pretrial conferences and joint plaintiffs meetings (23 in number) 237.10 3. Work of Subcommittee of 3 states to propose damage data form 85.00 4. Answering transaction interrogatories 109.60 5. Analyzing proposed allocation agreement 27.50 6. Allocation of settlement fund between states 15.10 7. Class action research 144.60 8. Research on pass-on and remoteness issues 56.20 9. Damage analysis 34.70 10. Other time 119.70 11. Time since filing of petition 80.50 ________ TOTAL HOURS 1,014.60
It is evident from the foregoing and the details accompanying each item that much of the time was spent for the benefit of all parties and all classes in this litigation. Illustrative thereof are the 104.60 hours devoted to the pilot "dealer" cases, 85 hours devoted to the work of the subcommittee of three states and the 56.20 hours devoted to research on the pass-on and remoteness issues. Under the circumstances and bearing in mind that the recovery of the state of Washington is not likely to be sufficient to warrant full compensation of counsel for their time and effort, the court finds it eminently fair to attribute one-half of the time devoted by counsel to this litigation as time directly benefitting the unrepresented claimants in all classes. Accordingly, the court awards
The state of Wisconsin, through Assistant Attorney General Bruce A. Craig and George F. Sieker (now deceased), first entered this litigation with the filing of its action in June of 1969. Since that time both of these experienced antitrust attorneys have been involved in the prosecution of this litigation. Mr. Craig requests compensation in the sum of $59,500, which represents compensation at the rate of $70 per hour for 850 hours of time devoted by Mr. Craig and Mr. Sieker to the litigation. Together, they participated in at least seventeen depositions, conferences and pretrial hearings in San Francisco, New York and elsewhere. They were particularly effective in the taking of the deposition of and preparation for the cross-examination of Dr. Crutchfield, the defendants' economics expert in the trial of the "dealer" cases, and they aided in the preparing of the testimony of Professor Willard Mueller of the University of Wisconsin as an expert witness on behalf of plaintiffs to counteract the testimony of Dr. Crutchfield. An additional area of substantial activity on the part of Mr. Craig was in the preparation of forms for the compiling of transaction data for all public bodies. The court is satisfied that at least half of the time employed by counsel for the state of Wisconsin directly served the interests of all classes and substantially contributed to the favorable result achieved. Accordingly, the court awards attorneys' fees to the state of Wisconsin in the sum of $29,750, which shall be paid from the fund available for distribution to the unrepresented claimants in all classes.
The state of Kansas retained Mr. J. F. Steineger as its counsel in this litigation. He entered this litigation in January of 1970 and prior thereto and since has devoted 1,401.9 hours to the litigation. He participated in numerous conferences and pretrial hearings in San Francisco and Chicago. Based upon attorneys' fees at the rate of $60 per hour (double that which the state in fact paid him under his retainer) his request for attorneys' fees is $84,114. A large portion of that time was devoted to services which went beyond his obligation to his clients and directly benefitted members of other classes and in particular the unrepresented members of the governmental class. He vigorously protected the interests of the smaller states. In fact, it was his suggested plan for distribution of the funds allocated to the governmental class, supported by the smaller independently represented states, which, after extended discussion in open court hearings, prevailed over two other plans submitted for the court's consideration. The court after careful review of the schedule of services rendered by Mr. Steineger is well satisfied that approximately half of his time benefitted the unrepresented members of the governmental class. Accordingly, the court awards attorneys' fees to the state of Kansas in the sum of $42,057, which the court directs shall be paid to the state of Kansas from the fund available for distribution to the unrepresented claimants in the governmental class.
Time of Payment of Fees.
With the exception of those fees which counsel will receive pursuant to
A summary showing the fees requested, the fees awarded and the fund from which each fee shall be paid is appended hereto as Appendix "A."
Liaison counsel for plaintiffs is directed to forthwith prepare separate judgments awarding attorneys' fees to each of the attorneys and entities entitled thereto in accordance with this opinion. The court is aware of no just reason for delaying the entry of final appealable judgments for the award of attorneys' fees as set forth herein. Upon approval of said judgments, the court shall direct entry of final judgments thereon in accordance with the provisions of Rule 54(b) of the Federal Rules of Civil Procedure such that any appeals therefrom shall be taken immediately pursuant to Rule 4(a) of the Rules of Appellate Procedure.
Notices of entry of the final judgments shall be mailed to all attorneys who have submitted petitions for award of attorneys' fees.
SUMMARY OF FEES REQUESTED, FEES AWARDED AND FUNDS FROM WHICH FEES SHALL BE PAIDFees Fees Fund from Which Attorney Requested Awarded Fees shall be Paid1. Furth $6,764,000 $3,328,507 Entire fund 2. Seymour-Tydings 3,382,000 1,611,495 Unrepresented claimants of First Owner-Builder Class 3. Kramer-Farella, 1,500,000 793,614 Unrepresented claimants et al. of Wholesaler-Dealer Class 4. Kronfeld 2,000,000 764,480 Unrepresented claimants of Applicator-Subcontractor Class 5. Barnard 790,000 460,550 Unrepresented claimants of General Contractor Class 6. Freeman 1,365,000 1,339,405 $865,800 from funds distributable to all claimants of Governmental and Statewide Classes not represented by other counsel and the funds distributable to states and governmental entities represented by Freeman, and $473,605 from total fund available to all classes other than the Governmental Class
SUMMARY OF FEES REQUESTED, FEES AWARDED AND FUNDS FROM WHICH FEES SHALL BE PAID—ContinuedFees Fees Fund from Which Attorney Requested Awarded Fees shall be Paid7. Alioto 3,000,000 324,200 Entire fund 8. Weir 357,925 143,170 Entire fund 9. Berger 450,000 64,112 Unrepresented claimants in all classes 10. Kendrick 310,000 32,000 $16,000 from unrepresented claimants in First Owner-Builder Class, and $16,000 from unrepresented claimants in General Contractor Class 11. Arent, et al. 83,845 103,422 Unrepresented claimants plus of First Owner-Builder special Class services 12. Howard, et al. 50,838 31,264 Unrepresented claimants for First Owner-Builder Class 13. Lewiston-Steinhardt 86,510 24,200 Unrepresented claimants of First Owner-Builder Class 14. Burke-Ross, 50,000 31,800 Unrepresented claimants et al. of all classes 15. Cochrane & 52,800 26,400 $23,074 from unrepresented Bresnahan claimants of First Owner-Builder Class, and $3,326 from unrepresented claimants of Applicator-Subcontractor Class 16. Carpenter 395,000 35,696 Unrepresented claimants of General Contractor Class 17. Schweppe, et al. 10,000 -0- 18. Liebmann reasonable -0- fee 19. Schwartz 3,000 -0- 20. Schmalz 50 -0- 21. Arizona, 84,000 25,500 Unrepresented claimants North Dakota, (8,500 to of all classes South Dakota each state) (Meyers & Curtis)
SUMMARY OF FEES REQUESTED, FEES AWARDED AND FUNDS FROM WHICH FEES SHALL BE PAID — ContinuedFees Fees Fund from Which Attorney Requested Awarded Fees shall be Paid22. New Mexico, 15 percent 15 percent As requested to be paid New Jersey, of all recoveries of all recoveries by the named plaintiffs Maryland, of of named and class members under Connecticut, named plaintiffs this item The Mayor and plaintiffs to be paid City Council to be paid to their of Baltimore, to their attorneys Baltimore County, attorneys and City and County of Denver (Specks & Goldberg) 23. California 10 percent 10 percent $6,000 from unrepresented of California of California claimants of Governmental recovery recovery Class, remainder plus plus from California's recovery special $6,000 services 24. Oregon reasonable 7,575 Unrepresented claimants fee of Governmental Class 25. Idaho (Richard 20 percent 20 percent Idaho recovery R. Greener) of Idaho of Idaho recovery recovery 26. Washington 74,728 37,362 Unrepresented claimants of all classes 27. Wisconsin 59,500 29,750 Unrepresented claimants of all classes 28. Kansas 84,114 42,057 Unrepresented claimants of Governmental Class TOTAL $20,953,310 $9,262,559 plus special plus percentages services and from specific percentages states from specific and entities states and entities
- No Cases Found