In re Superior Beverage/Glass Container Consolidated Pretrial

133 F.R.D. 119, 1990 WL 189028
CourtDistrict Court, N.D. Illinois
DecidedOctober 26, 1990
DocketNo. 89 C 5251
StatusPublished
Cited by18 cases

This text of 133 F.R.D. 119 (In re Superior Beverage/Glass Container Consolidated Pretrial) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Superior Beverage/Glass Container Consolidated Pretrial, 133 F.R.D. 119, 1990 WL 189028 (N.D. Ill. 1990).

Opinion

MEMORANDUM OPINION

WILL, District Judge.

We now consider the final fee petitions submitted by plaintiffs’ class counsel— from twelve law firms and representing the work of more than 50 lawyers and 40 paralegals, over four years, from August 1, 1986 through early July 1990. Fees have [122]*122already been awarded in this antitrust class action twice before, covering the periods up through July 31, 1986. The prior awards, which were paid out of funds generated by settlements reached with several defendants early in the case, totaled roughly $1.7 million. Counsel now request additional final fees of approximately $13.9 million. Having reviewed and considered the pending petitions, along with the accompanying time records and affidavits, we are now prepared to approve further fees in the aggregate amount of $11,480,163. A separate proposed order is attached. Class counsel or defendants who may wish to file objections or suggestions regarding this opinion, the proposed order or our award will be heard on Monday, October 29, 1990, at 2:00 P.M.

I. Factual Background

This litigation began in 1983 when several major purchasers of glass containers, without the benefit of a preceding criminal prosecution, filed suit against Owens-Illinois, Inc., Brockway, Inc., Dart Industries, Thyssen-Bornemisza, Inc., Anchor Hocking Corp., Chattanooga Glass Company, Inc., Glass Containers Corp., Beatrice Companies, Inc., Esmark, Inc., and Norton Simon, Inc., alleging a nationwide price fixing conspiracy in violation of § 1 of the Sherman Act. By October 1986, seven of the defendants had settled out of the case, leaving only Owens-Illinois, Brockway and Dart. On December 18, 1987, Judge Rovner certified a plaintiff class.1 Sixteen glass purchasers opted out of the plaintiff class and filed individual suits.

The allegations in the class complaint spell out a scheme of alleged garden variety price fixing. Defendants allegedly “agreed to fix ... prices of glass containers,” “imposed general industry-wide terms and conditions of sale,” which “were inconsistent with free price competition,” and agreed to and did allocate customers and accounts.

As discovery progressed, there was some common ground between the parties. It was not disputed, for instance, that Dart obtained and followed Owens-Illinois’ price lists for many, if not all, of its own price lists; that various defendants at various times met with each other during trade association meetings; that during certain periods of the alleged conspiracy the glass container market was characterized by “substantial overcapacity”; and that alternatives to glass, such as plastic, metal and paper, were available to most class members during certain periods for some end uses, although these substitutes were not perfect substitutes for glass and were less attractive than glass for some purchasers. (Beer, for example, does not sell well in plastic.) The significance, if any, to be attached to these facts was bitterly disputed.

On June 15, 1990, however, the disputes subsided. The class and the defendants entered into a settlement agreement. That agreement provides for the issuance, by Owens-Illinois and Brockway, now operating as a single company, of up to 70 million dollars worth of discount purchase certificates (face value) and in no event less than 49 million. The certificates are to be made available to class members upon proof of claim and “shall be redeemable for cash rebates on future glass container purchases from Owens Illinois.” The certificates are transferable under certain limited circumstances.

The settlement agreement was approved by the court on August 8, 1990.

In addition to providing for discount certificates, the settlement agreement also stipulates, among other things, that the three remaining defendants “shall be jointly and severally liable for the payment of any attorneys’ fees of Plaintiff Class as are [123]*123approved by the Court.” As contemplated by the agreement, class counsel have submitted fee petitions and time records for our approval. We have reviewed these submissions, as contemplated by the agreement, and now proceed to approve fees of $11,480,163. In arriving at this figure, we have made all calculations in conformity with the guidelines and rules of thumb set out below.

II. The Choice Between Lodestars and Percentages

The history of attorney fees awards, from Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882) and Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 28 L.Ed. 915 (1885) forward to Mills v. Electric Auto-Lite, 396 U.S. 375, 389-97, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) and up through Lindy Bros. Builders v. American Radiator & Sanitary Corp. (“Lindy I”), 487 F.2d 161 (3d Cir.1973), aff'd in part and vacated in part, 540 F.2d 102 (3d Cir.1976) (“Lindy II”) and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), has been sketched and commented on elsewhere. See Mashburn v. National Healthcare, Inc., 684 F.Supp. 679, 687-689 (M.D.Ala. 1988); In re Folding Carton Antitrust Litigation, 84 F.R.D. 245, 255-63 (N.D.Ill. 1979). The upshot is that up until Lindy in 1973, fees were awarded out of a common fund on a percentage basis. Beginning with Lindy, the approach changed. Many courts began using a “lodestar” or time/rate analysis.

The last time this court undertook to award fees on a scale comparable to the awards in this case was eleven years ago, in 1979. See In re Folding Carton, supra. At that time, we used a modified lodestar method. Since 1979, however, reservations about lodestars have been expressed in several quarters.2

Quite recently, at least three district courts have inveighed against lodestars, one of them abandoning the lodestar approach altogether.3 In 1984, the Supreme Court seemed, in a glancing footnote, to assume that a “reasonable fee” in a common fund case “is based on a fair percentage of the fund,” Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 1550 n. 16, 79 L.Ed.2d 891 (1984), and some lawyers have wondered in print whether “[t]he movement against the lodestar [isn’t] turning into a stampede.” Solovy and Raster, Re-Examining The Lodestar, National Law Journal, April 9, 1990, p. 13. The Seventh Circuit has questioned the “efficiency” of lodestars but has not directed or even recommended that district courts in this circuit should abandon them:

Although there are certainly grounds for believing that a percentage fee arrangement would be more efficient than the current approach (of calculating a lodestar and then determining an enhancer, where appropriate), we will not overturn what seems to have become the accepted method of determining fees in this circuit.

[124]*124Skelton v. General Motors Corp., 860 F.2d 250, 255 n. 4 (7th Cir.1988).

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133 F.R.D. 119, 1990 WL 189028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-superior-beverageglass-container-consolidated-pretrial-ilnd-1990.