In re Department of Energy Stripper Well Exemption Litigation

695 F. Supp. 1097, 95 Oil & Gas Rep. 496, 1987 U.S. Dist. LEXIS 10491, 1987 WL 49061
CourtDistrict Court, D. Kansas
DecidedApril 24, 1987
DocketNo. M.D.L. No. 378
StatusPublished

This text of 695 F. Supp. 1097 (In re Department of Energy Stripper Well Exemption Litigation) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Department of Energy Stripper Well Exemption Litigation, 695 F. Supp. 1097, 95 Oil & Gas Rep. 496, 1987 U.S. Dist. LEXIS 10491, 1987 WL 49061 (D. Kan. 1987).

Opinion

OPINION AND ORDER

THEIS, District Judge.

This matter is presently before the Court on the motion of Philip P. Kalodner for an order approving the disbursement of attorney fees and expenses from the Surface Transporters Escrow. Kalodner has requested $850,000.00, the full amount of fees authorized by Paragraph 5.4 of the Surface Transporters Escrow Order.

In his initial fee petition, filed on September 29, 1986, Kalodner submitted only an aggregate monthly number of hours for “in excess of 3,560” hours of work performed between 1983 and 1986. Dk. no. 895. No indication of what type of work was performed was included in the initial fee request petition. In addition, Kalodner estimated that he spent an extra 750 hours of completely unrecorded time. At Kalodner’s customary billing rate of $175 per hour, the total of 4,310 hours would be billed for an amount in excess of $754,-000.00. Kalodner also requested $111,-259.70 as his pro rata share of expenses [1099]*1099incurred jointly with Kohn, Savett, Klein & Graf, P.C. Since the amount claimed for attorney fees plus expenses exceeds the maximum $850,000.00 ceiling prescribed by the Surface Transporters Escrow Order, Kalodner has requested that the Court order disbursement of $850,000.00.

The Court made several phone calls to Kalodner requesting an itemized and detailed compendium of work performed. The itemized fee petition which Kalodner submitted several months later at the Court’s request delineates work performed in half hour segments only. Dk. no. 993. Again, the supplementary itemized compendium does not include the 750 hours of unrecorded-but-billed time. Furthermore, the supplementary billing records submitted by Kalodner were, apparently inadvertently, minus several months: January of 1983, January of 1984, and part of August of 1984.

On March 20, 1987, Kalodner filed a Supplemental Declaration with respect to his time expended in this and other related litigation. Dk. no. 1056. Apparently, after reading this Court’s opinion granting the fees and expenses of Bassman, Mitchell and Alfano, which established the standards the Court is employing in all fee petitions in this case, Kalodner became concerned that the Court would not award him the full amount of his fee request, fearing that the Court would disallow fees for work in the Exxon litigation. Thus, Kalodner reevaluated his billable but unrecorded time, and adjusted the time upward from 750 to 1500 hours. In addition, he requested a multiplier of 1.3 be applied to his entire fee. Kalodner also submitted an Errata to cure the inadvertent errors mentioned above. Dk. no. 1057.

I. STANDARDS FOR EVALUATION OF FEE AND EXPENSE PETITIONS

While the Court is issuing separate orders with respect to the fee requests made by Bassman, Mitchell and Alfano, by Kalodner, and by Kohn, Savett, Klein & Graf, the Court is employing the same standards in the evaluation of all of the fee petitions.

A. Settlement Agreement Provision

Paragraph 5.4 of the Surface Transporters Escrow Order authorizes the Escrow Agent:

To disburse to Philip P. Kalodner such amounts as shall be awarded by the Court for attorneys fees and expenses for services rendered both to the Surface Transporters Claimants ... and to other participants in the settlement by virtue of (i) his efforts in the M.D.L. 378 proceeding and other judicial and administrative proceedings to maximize Alleged Crude Oil Violation recoveries and (ii) his efforts in the development of the OHA record in M.D.L. 378 which helped to advance this Settlement. The amount of $850,000 has been included in the amount to be distributed to this Escrow fund specifically for said fees and expenses which shall not exceed that amount, to which there shall be added interest earned thereon pursuant to II.B.l.c. of the Settlement Agreement and in the Escrow Fund after its establishment.

B. Court Discretion in Reviewing Fee Petitions

The provision of the Surface Transporters Escrow Order authorizing attorney fees clearly contemplates Court review of the fee petition. In its Opinion and Order approving the Settlement Agreement, this Court recognized its responsibility to evaluate attorney fee petitions. Dk. no. 858, p. 33. Case law supports the proposition that district courts must scrutinize fee applications, particularly in the context of settlements in which attorney fees come from the settlement funds. See, e.g., Foster v. Boise-Cascade, 577 F.2d 335 (5th Cir.1978); In re Gas Meters Antitrust Litigation, 500 F.Supp. 956 (E.D.Pa.1980); Weiss v. Drew National Corp., 465 F.Supp. 548 (S.D.N.Y.1979).

C. Criteria for Evaluation of Fee Petitions

In Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984), and Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 [1100]*1100(1983), the Supreme Court emphasized that the “basic standard” for finding reasonable fees is the determination of reasonable hours and rates. Blum, 465 U.S. at 898, 104 S.Ct. at 1548. The many factors for evaluating legal representation — such as the time and labor required, the novelty and difficulty of the questions, the results obtained, and so on — “usually are subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate.” Hensley, 461 U.S. at 434 n. 9,103 S.Ct. at 1940 n. 9. The fee applicant bears the burden of establishing his entitlement to an award and the burden of documenting the hours expended and the rates charged. Id. at 437, 103 S.Ct. at 1941. The district court should exclude from the fee calculation hours that, in the court’s opinion, given its familiarity with the litigation, were not reasonably expended on the litigation. City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 2691, 91 L.Ed.2d 466 (1986).

II. FEE APPLICATION OF KALODNER

A. Chronology of Participation Submitted by Kalodner

Kalodner served for three and a half years as Chief Enforcement Counsel of the Northeastern United States for the Department of Energy. The observations which impelled him to undertake the representation of motor vehicle users of refined products were as follows. Kalodner believed that motor vehicle users could not look to the State or Federal Governments for their protection, because the programs providing refunds to the States under the Warner Amendment were intended to benefit only the poor. In United States v. Exxon, Judge Flannery utilized the Warner Amendment as a model for awarding $2 billion of crude oil overcharge refunds to the States to fund programs for the poor. Also, Kalodner observed resellers and retailers persuading the Office of Hearings and Appeals (“OHA”) that they had absorbed much of the burden of the oil overcharges and had not passed on the costs. Given this environment, Kalodner undertook the representation of motor vehicle users of refined products, and joined forces with Kohn, Savett, Klein & Graf (“Kohn”), who undertook the representation of stockholders and customers of electric utilities which consumed oil.

Since Congress and some courts (in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
695 F. Supp. 1097, 95 Oil & Gas Rep. 496, 1987 U.S. Dist. LEXIS 10491, 1987 WL 49061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-department-of-energy-stripper-well-exemption-litigation-ksd-1987.