Dyke v. Gulf Oil Corp.

571 F. Supp. 780, 1983 U.S. Dist. LEXIS 14417
CourtDistrict Court, D. Oregon
DecidedAugust 23, 1983
DocketCiv. Nos. 77-10-PA, 77-791-PA and 77-849-PA
StatusPublished
Cited by2 cases

This text of 571 F. Supp. 780 (Dyke v. Gulf Oil Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dyke v. Gulf Oil Corp., 571 F. Supp. 780, 1983 U.S. Dist. LEXIS 14417 (D. Or. 1983).

Opinion

PANNER, District Judge.

The remaining issue in these consolidated cases is the award of attorneys’ fees. I previously ruled that such an award was appropriate pursuant to section 210(b) of the Economic Stabilization Act, 12 U.S.C. § 1904, note. Defendant argues that a recent decision of the Temporary Emergency Court of Appeals precludes me from awarding attorneys’ fees in the circumstances of this case. Although TECA’s decision in Eastern Air Lines, Inc. v. Atlantic Richfield, 712 F.2d 1402, (Em.App.1983), contains strong dicta on the subject, I find the decision is not controlling.

In Eastern Air Lines, TECA upheld the decision of a district court not to award attorneys’ fees. The appeals court based its decision partly on what it regarded as the trial court’s “sound application of discretion.” Id. at 1413. TECA was not required in that opinion to carefully analyze the language of the statute authorizing attorneys’ fees. Such an analysis reveals that Congress did not specify that attorneys’ fees could only be awarded in cases of intentional overcharges.

The relevant statute provides:

the court may, in its discretion, award the plaintiff reasonable attorney’s fees and costs, plus whichever of the following sums is greater:
(1) an amount not more than three times the amount of the overcharge upon which the action is based, or
(2) not less than $100 or more than $1000;
except that in any case where the defendant establishes that the overcharge was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to the avoidance of such error the liability of the defendant shall be limited to the amount of the overcharge ....

12 U.S.C. § 1904 note (1980).

It seems quite clear that the language of exception beginning with the word “except” modifies only the language that follows the word “plus.” That is, a court may discretionarily award attorney’s fees. In addition, the court may award treble damages or damages in an amount between $100 and $1,000, unless the defendant establishes the overcharge was unintentional and resulted from a bona fide error.

I hold that a reasonable award of attorneys’ fees in these cases is $750,000.00.

BACKGROUND

These actions were brought in 1977 against Gulf Oil Corporation (“Gulf”) pursuant to the Emergency Petroleum Allocation Act, 15 U.S.C. § 751, et seq. and various U.S. Department of Energy regulations. Plaintiffs sought to recover overcharges for gasoline sold by Gulf. There were years of extensive discovery and pretrial proceedings before the case was set for trial. Because of the complexity of the issues involved, the trial was split into several phases. In phase I, I held that Gulf’s method of [783]*783setting plaintiffs’ May 15, 1973 base price was improper. In phase II, I ruled that a reasonable existing May 15, 1973 classification for plaintiffs was the three-tier geographic prices paid by a nonbranded distributor in California. In phase III, I selected the theory and means of calculating plaintiffs’ damages. As a result of that ruling the parties stipulated to an amount of damages of $2,000,000.00 for Dyke, $745,000.00 for Colvin, and $790,000.00 for Fletcher. In phase IV, I held that Fletcher was a real-party-in-interest. Finally, in phase V, I ruled that an award of attorneys’ fees in these cases was appropriate. The trial proceedings were spread over a period of seven months.

DISCUSSION

A. Standards.

The amount of reasonable attorneys’ fees is within the court’s discretion. Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1073 (9th Cir.1983). While the statute is silent on what is “reasonable,” many courts have enumerated factors for consideration. The Ninth Circuit has adopted the twelve factors recited in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.1975), cert. denied sub nom., Perkins v. Screen Extras Guild, Inc., 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976). Although it is not necessary for the court to specifically discuss each factor, Sapper, 704 F.2d at 1073, the court may abuse its discretion in setting fees if it does not at least consider the various factors and discuss the relevant ones. Harmon v. San Diego County, 664 F.2d 770, 772 (9th Cir. 1981); O’Neil v. City of Lake Oswego, 642 F.2d 367, 370 (9th Cir.1981). A court may rely upon a single factor if it appears to be controlling and so long as the remaining factors are considered. Vanelli v. Reynolds School District # 7, 667 F.2d 773, 781 (9th Cir.1982).

The twelve Johnson factors are: (1) the time and labor required; (2) the novelty and difficulty of the questions involved; (3) the skill necessary to perform the legal services properly; (4) the preclusion of other employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relations with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-19. To these factors I add another: the attorneys’ efforts to bring the matter to a prompt and reasonable conclusion.

Before turning to the relevant factors in these cases I note that this circuit has warned against inflexible application of the Johnson factors. In Moore v. Jas. H. Matthews & Co., 682 F.2d 830 (9th Cir.1982), the court reviewed the “lodestar” method of setting fees utilized in several other circuits. E.g., Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980); Furtado v. Bishop, 635 F.2d 915 (1st Cir.1980); Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir.1977); Lindy Bros. Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973).

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Related

Gulf Oil Corp. v. Dyke
734 F.2d 797 (Temporary Emergency Court of Appeals, 1984)
Lewis v. Hegstrom
581 F. Supp. 183 (D. Oregon, 1983)

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Bluebook (online)
571 F. Supp. 780, 1983 U.S. Dist. LEXIS 14417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dyke-v-gulf-oil-corp-ord-1983.