Barnett v. Pritzker

73 F.R.D. 430, 1977 U.S. Dist. LEXIS 17956
CourtDistrict Court, S.D. New York
DecidedJanuary 12, 1977
DocketNos. 76 Civ. 2035 (LFM), 76 Civ. 960 (LFM), 75 Civ. 1795 (LFM), 75 Civ. 1910 (LFM), 75 Civ. 2037 (LFM), and 75 Civ. 2238 (LFM)
StatusPublished
Cited by22 cases

This text of 73 F.R.D. 430 (Barnett v. Pritzker) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnett v. Pritzker, 73 F.R.D. 430, 1977 U.S. Dist. LEXIS 17956 (S.D.N.Y. 1977).

Opinion

OPINION

MacMAHON, District Judge.

In our order of December 29, 1976, we approved the settlement of these derivative and class actions, pursuant to Rules 23(e) and 23.1, Fed.R.Civ.P. We now consider counsel’s applications for an award of attorneys’ fees and disbursements.

It is clear in this and other circuits that the proper starting point for an award of counsel fees is the actual time spent by attorneys, multiplied by a reasonable hourly rate to which attorneys of like skill in the area would typically be entitled for a given type of work. See, e. g., City of Detroit v. Grinnell Corp., 495 F.2d 448, 471 (2d Cir. 1974); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973). With this in mind, we have examined the detailed affidavits of counsel, in which they have indicated their time spent on the various categories of activity.

Although the hourly rates awarded are somewhat lower than most of the rates suggested by counsel, and although the “risk factor bonus” is considerably lower than the multiple suggested by counsel of three times the basic award, we do not mean to impugn the integrity or competence of plaintiffs’ counsel. Indeed, we take this opportunity to express our appreciation for what we consider highly professional, quality representation by counsel for all parties, who in this age of seemingly interminable litigation cooperated fully with the court and with each other in bringing these actions to a relatively speedy resolution.

Nevertheless, while the Lindy and Grinnell courts did recognize the need to increase basic hourly fees on account of the contingent nature of litigation, those courts also explicitly reminded us of the duty of courts to fix fees with an eye to moderation and to avoid even the appearance of awarding “windfall” fees. This policy is clearly reflected in the recent trend away from awarding fees based on the “contingent fee syndrome,” Grinnell, supra, 495 F.2d at 468, and is directed at alleviating criticism of the legal community because of the appearance, all too often justified, that attorneys in class actions “have reaped a golden harvest of fees.” Free World Foreign Cars, Inc. v. Alfa Romeo, S.p.A., 55 F.R.D. 26, 30 (S.D.N.Y.1972); see also Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221, 224 (N.D.Ill.1972); Graham, Guest Opinion on [432]*432Legal Fees: Fluffing the Golden Fleece, Juris Doctor 10, 11 (February 1973).

Moreover, the allowance of counsel fees in a class or derivative action is rooted in the equitable principle that those who are entitled to share in a common fund or benefit, created by litigation instituted and prosecuted by others, should bear a portion of the expenses of the litigation, including counsel fees, by charging the fund. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881); City of Detroit v. Grinnell Corp., supra, 495 F.2d at 469 and cases there cited. Application for such an allowance, however, is addressed to the sound discretion of the court, to be exercised as equity and justice require and with fairness, moderation and jealous regard for the protection of the interest of the absent members of the class or group who are not in a position to fend for themselves in negotiating a counsel fee. Trustees v. Greenough, supra; § 1.47 Manual for Complex Litigation, reprinted at 1 Pt. 2 J. Moore, Federal Practice 62-64 (1975).

We are mindful that defendant GL Corporation has agreed to pay counsel fees in the class actions in such fair and reasonable amount as determined by the court and that, therefore, our award of fees will not directly reduce the settlement fund. The parties here have wisely left determination of the amount of the fees to the court, thereby invoking the exercise of our discretionary powers to make such an award as equity and justice require, applying the same standards as if the fees were to be paid from the fund. While, in our view, any arrangement by a defendant in a class or derivative action to pay plaintiffs’ attorneys’ fees in a definite amount would present the potential for a collusive settlement, the arrangement here is saved from the cloud of collusion by full disclosure of all the facts and a provision for court determination of the amount to be paid.

In light of these considerations and our own awareness of typical fees for skilled attorneys in this district, we have determined that the hourly rates set forth in the appended tables are fair, reasonable and adequate under all the circumstances.

Adjustments to Hours Requested

Although we will consider separately the applications as they pertain to the class actions and the derivative actions respectively, we must first determine the appropriate allocation of the time of Kreindler & Kreindler, lead counsel on all the consolidated actions. They have submitted a single affidavit outlining their hours spent and suggested hourly rates, but they are unable to allocate their time between the class actions and derivative actions because of the coordinated and largely coextensive and overlapping nature of the discovery and trial preparation in the two groups of actions.

We find that an allocation based on the respective recoveries is appropriate. The $750,000 recovered on the derivative settlement represents approximately 20% of the total recovery of approximately $3,750,000 in all the actions ($750,000 on the derivative actions plus approximately $3,000,000 on the class actions). Accordingly, we have applied 20% of Kreindler & Kreindler’s time to the derivative actions and 80% to the class actions.

We have accepted as reasonable the number of hours claimed for the various categories of activity, except for three items:

First, time spent by paralegals must be excluded because, however helpful, paralegals are not members of the bar. In re Hardwick & Magee Co., 355 F.Supp. 58, 73 (E.D.Pa.1973); Trans World Airlines, Inc. v. Hughes, 312 F.Supp. 478, 482 (S.D.N.Y.1970). Law firms employing paralegals, however, “must be reimbursed for their wages, even though their time cannot be considered as input in the fee award determination.” Grinnell, supra, 495 F.2d at 473. Accordingly, we have excluded paralegal time from the calculation of attorneys’ time and have added the cost of paralegals as an allowable expense item.

Second, we have reduced the time claimed on the combined application of Milberg & Weiss and Gene Mesh Co., L.P.A. [433]*433for preparation of their fee application. We find their claim of 40 hours for this work excessive in view of their total of only 276.5 hours for other activities. We note that Kreindler & Kreindler claimed 36.5 hours to prepare this combined application, including 2169.5 of their own hours for other work. Other firms have not included time for preparation of fee applications at all. We will allow 15 hours to Milberg & Weiss and Gene Mesh Co., L.P.A. for preparation of their fee application. Mesh claimed 23.5 of the original 40 hours claimed, or approximately 60%, and Milberg claimed 16.5 hours, or approximately 40%. Applying these percentages to our allowance of 15 hours, 9 hours are allocable to Mesh and 6 hours to Milberg.

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Bluebook (online)
73 F.R.D. 430, 1977 U.S. Dist. LEXIS 17956, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnett-v-pritzker-nysd-1977.