Meshel v. Nutri/System, Inc.

102 F.R.D. 135, 1984 U.S. Dist. LEXIS 16704
CourtDistrict Court, E.D. Pennsylvania
DecidedMay 15, 1984
DocketMaster File No. 63-1440; Civ. A. Nos. 83-2214, 83-2385
StatusPublished
Cited by6 cases

This text of 102 F.R.D. 135 (Meshel v. Nutri/System, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Meshel v. Nutri/System, Inc., 102 F.R.D. 135, 1984 U.S. Dist. LEXIS 16704 (E.D. Pa. 1984).

Opinion

MEMORANDUM OPINION AND ORDER

WEINER, District Judge.

A joint application for counsel fees and reimbursement of litigation expenses and administration costs has been filed by six law firms 1 which are counsel for plaintiffs Leroy G. Meshel, Herbert C. Van Horn and Ronald Kassover. The application arises out of litigation begun on March 25, 1983 by the filing of a complaint by Meshel in Meshel v. Nutri/System, Inc. et at, C.A. No. 83-1440. On May 9, 1983, Van Horn filed a complaint in Van Horn v. Nutri/System, Inc., et al, C.A. No. 83-2214. [137]*137On May 18, 1983 Kassover filed a complaint in Kassover v. Nutri/System,, Inc., et al., C.A. No. 83-2385. Defendants named in the complaints are Nutri/System, Inc., its directors and L.P. Rothchild, Unterberg, Towbin, the managing underwriters in the sale of 770,000 shares of Nutri/System shares sold pursuant to the prospectus dated January 12, 1983. The complaints charged the defendants with violation of Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, and Section 10(b) of the Securities Act of 1934, 15 U.S.C. § 78j(b), and Rule 10b-5 promulgated thereunder by the Securities and Exchange Commission, in that the prospectus was materially false and misleading by failing to disclose adequately the future business prospects of Nutri/System and its subsidiaries. Specifically, plaintiffs alleged that the prospectus failed to disclose the likelihood that Nutri/System would close a number of its Gloria Marshall Figure Salons and “i” Natural Cosmetic Shops, and that franchisees had charged Nutri/System with violations of federal antitrust laws.

The three cases were consolidated and certified as class actions. The plaintiffs then commenced discovery by way of depositions, interrogatories, and examination of documents. The parties had intensive settlement negotiations which resulted in a stipulation of settlement being entered into on January 11, 1984 for the sum of $4,000,-000.00 plus interest.

This application was filed on behalf of the six law firms seeking a joint award of counsel fees for the services of counsel in this litigation in the amount of $975,000.00 and their disbursements as of January 11, 1984 in the amount of $27,444.54. The fees and reimbursement for disbursements are to be paid out of the settlement fund of $4,000,000.00 plus accrued interest. The counsel fee requested is approximately 2.3 times the hourly rate normally charged by the applicants, but less than 25% of the recovered amount. The normally charged hourly rate totals $422,826.75. There have been no objections filed to the joint application for fees and reimbursement of expenses.

When a fund is recovered in a class action, the Court, in determining the fee to be awarded, must carefully examine a variety of factors which vary with the circumstances of each case. Lindy Brothers Builders v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3 Cir.1976) (“Lindy II”); Lindy Brothers Builders v. American Radiator & Sanitary Corp., 487 F.2d 161 (3d Cir.1973) (“Lindy I”).

We shall first examine the services detailed by counsel for which compensation is requested. The purpose of the award of attorneys fees is to compensate the attorneys for the reasonable value of their services. The first inquiry should be the hours spent by the attorneys in the various general activities, e.g. pretrial discovery, settlement negotiations, and the hours spent by the various classes of attorneys, e.g. senior partners, junior partners, associates. (Lindy I). Lindy suggests thé logical beginning in valuing an attorney’s services is to fix a reasonable hourly rate for his time, taking into account his legal reputation and status (partner, associate). Where, as here, several law firms have requested fees, several different rates apply. The reasonable hourly rate is then multiplied by the reasonable number of hours necessary to perform the services, and this is the “lodestar” of the court’s fee determination. The “lodestar” may be increased or decreased by taking into account the contingent nature of success and the quality of the attorney’s work. The contingent nature of success is of special significance where, as in the case sub judice, the attorneys have no private agreement that guarantees payment even if there is no recovery. In determining the quality of the attorney’s work we must consider the complexity and novelty of the issues presented, the quality of the work which we have observed, and the amount of the recovery obtained. (Lindy I).

The applicants filed their application for a fee jointly and request a single aggregate fee award. They allege that they worked [138]*138on the litigation jointly, thereby avoiding duplication of effort.

Each of the law firm applicants has filed an affidavit in support of the joint application for counsel fees and reimbursement which includes a description of the law firm and a breakdown of the number of hours spent by each firm (and individuals) and their normal hourly billing rate. The breakdown of the hours spent by the individuals in each firm, their hourly rate, and the firm’s disbursements is attached for each firm.

The time devoted by the respective applicants 2 was as follows:

FIRM HOURS HOURLY RATE VALUE
Bernstein, Litowitz, Berger & Grossmann 964.75 $35 to $235 $140,805.00
Greenfield & Chimicles 558.50 $35 to $225 94.858.00
Gross & Sklar 507.75 $40 to $185 70.140.00
Kohn, Savett, Marion & Graf 345.25 $85 to $295 63,293.75
Levin & Fishbein 30.25 $110 to $165 4,908.75
Schoengold & Sporn 253.88 $125 to $225 48,821.25
TOTALS 2660.38 $422,826.75

The combined “lodestar” is $422,826.75. There have been no objections to the “lodestar” by the class members. Since the joint applicants have itemized their services and since the “lodestar” is uncontested, we have no difficulty awarding the “lodestar” as counsel fees, since a careful analysis of the affidavits filed by the applicants shows them to be accurate and reasonable. As burdensome as it is for a court to calculate only the “lodestar”, our task becomes most difficult when, as here, the applicants request an increase of the “lodestar”.

Although the petitioning counsel have filed a joint application for fees, each law firm has itemized its work. We shall therefore examine the affidavits individually.

The petitioner Bernstein, Litowitz, Berger & Grossman claims a total of 964.75 hours. The members of this law firm have successfully prosecuted representative litigation throughout the country as lead or co-lead counsel in a number of complex securities cases. An examination of Appendix A reveals that the hourly rate for Paul M. Bernstein is $235.00. Although that rate may seem high to some, it has been approved in other cases involving Mr. Bernstein. We shall therefore accept it here. We shall likewise accept the hourly rate of the other members of the firm. A careful review of Appendix B satisfies us that there was no duplication of services performed.

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Bluebook (online)
102 F.R.D. 135, 1984 U.S. Dist. LEXIS 16704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meshel-v-nutrisystem-inc-paed-1984.