Portnoy v. Standard-Pacific Corp.

666 F. Supp. 140, 1987 U.S. Dist. LEXIS 5999
CourtDistrict Court, N.D. Illinois
DecidedJune 29, 1987
DocketNo. 86 C 0653
StatusPublished
Cited by1 cases

This text of 666 F. Supp. 140 (Portnoy v. Standard-Pacific Corp.) 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
Portnoy v. Standard-Pacific Corp., 666 F. Supp. 140, 1987 U.S. Dist. LEXIS 5999 (N.D. Ill. 1987).

Opinion

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Presently before the Court is the motion of plaintiff Leo P. Portnoy to recover attorneys’ fees from defendant Standard-Pacific Corporation (“SPC”) in conjunction with his [141]*141shareholders’ derivative suit under Section 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b) (1982).1 For the following reasons, the Court allows Port-noy’s motion but reduces the amount requested to $570.50.2

FACTUAL BACKGROUND3

Portnoy filed this action on behalf of SPC in his derivative capacity as an SPC shareholder. Portnoy’s complaint concerns short-swing profits earned by an SPC insider. The insider, defendant William H. Lan-genberg, was a director of SPC who apparently earned profits on stock sold sometime in. the beginning of March 1985 within six months of its acquisition, conduct proscribed by § 16(b).

On November 20, 1985, Jerrold M. Shapiro, Portnoy’s counsel, sent a letter to the SPC Board of Directors notifying its members of Langenberg’s potential § 16(b) violation and indicating that he would file a derivative suit in Portnoy’s behalf if no action was taken by SPC within sixty days of the day the Board received the letter. SPC received Shapiro’s first letter on November 26, 1985, and the sixty-day period ran on January 25, 1986. Three days later, on January 28, 1986, Portnoy’s complaint was filed with this Court. On that day, Shapiro sent another letter to SPC stating that the complaint had been filed, but that Shapiro would refrain from formally commencing service for an additional fourteen days in order to permit SPC to take action to resolve the matter informally. That letter was received by SPC on February 3, 1986. On February 19, 1986, Shapiro received a letter from SPC informing him that the company had recouped Langen-berg’s short-swing profits of $32,625 as of “February 4,” although the letter itself was dated January 14, 1986. SPC included with that letter a check for $2,000 made out to Shapiro for services rendered in notifying the company of Langenberg’s violation. Interestingly, the check is dated February 3, 1986, twenty days after the date of the letter. In a declaration submitted by one of SPC’s attorneys, this letter is referred to as having been sent on February 14,1986. We assume that this later date is uncontested and that the letter was inadvertently misdated. SPC also sent a confirming letter on April 10,1986, including a declaration from SPC’s treasurer indicating that the company had recovered the short-swing profits which were the subject of Portnoy’s complaint.

Attached to SPC’s response to Portnoy’s attorneys’ fees motion is a copy of a letter dated January 8, 1986, addressed to Shapiro from Robert K. Montgomery, one of SPC’s lawyers, stating that SPC’s attorneys were looking into the matter and would be in a “position to respond” within thirty days. In his supporting affidavit, Shapiro swears that he never received that letter. Furthermore, SPC did not include documentation, such as a return receipt, which would prove that Shapiro indeed received the letter. Another SPC attorney, but not Montgomery, submitted a declara[142]*142tion suggesting that the letter was sent on January 8.

The suit was settled since all short-swing profits had been formally recovered from Langenberg by SPC, and on May 23, 1986, this Court dismissed the case with prejudice while retaining jurisdiction over the only remaining matter, Portnoy’s petition for attorneys’ fees. Portnoy seeks fees for a total of 33 hours of Shapiro’s time, $208 in disbursements and a $517 “bonus.”

ENTITLEMENT TO ATTORNEYS’ FEES

Although no specific statutory provision authorizes a grant of attorneys’ fees to a plaintiff in Portnoy’s position, courts have allowed such an award in cases where a shareholder is important in pursuing a § 16(b) violation which ultimately results in a recovery of short-swing profits by the corporation. Blau v. Rayette-Faberge, Inc., 389 F.2d 469 (2d Cir.1968); Gilson v. Chock Full O’Nuts Corp., 331 F.2d 107 (2d Cir.1964); Smolowe v. Delendo Corp., 136 F.2d 231 (2d Cir.), cert. denied, 320 U.S. 751, 64 S.Ct. 56, 88 L.Ed. 446 (1943). This type of award is made from the fund or “windfall” recouped by the corporation from the insider’s short-swing profits. See Coran v. Snay-On Tools Corp., 408 F.Supp. 1060, 1063 (E.D.Wis.1976). The policy underlying these fee awards is that some benefit has been conferred on the corporation for a statutory violation which might have gone unremedied had it not been for the diligence and assistance of the complaining shareholder. Accordingly, the attorneys’ fees accrued by that shareholder which are fairly attributable to conferring that benefit should be borne by the corporation which would have incurred some expenses of its own had it pursued legal relief for the unlawful trading. Smolowe, 136 F.2d at 241. Moreover, as one court observed, the potential recovery of attorneys’ fees may often be the sole stimulus for enforcement of § 16(b) in a shareholders’ derivative suit. Id. at 241.

Furthermore, the cases which have permitted recovery of attorneys’ fees by shareholders have not limited awards to situations where the shareholder actually had to follow through with the litigation and achieve a formal court-ordered recovery. Indeed, at least one court allowed the shareholder to recover fees where the short-swing profits were recovered in a settlement before any suit was ever filed. Blau, 389 F.2d at 474. Given the policy underlying the award of attorneys’ fees in these circumstances, denial of recovery in cases which settle amicably before suit is filed would create a rather perverse system of incentives for plaintiffs’ attorneys. Rather than seeking the quickest and most efficient resolution of differences, the attorneys would be encouraged under such a system to file their lawsuits, whether necessary or not, in order to be able to recover a fee award. Id. at 472 (citing Dottenheim v. Emerson Electric Manufacturing Co., 7 F.R.D. 195 (E.D.N.Y.1947)).

Under these standards, it appears that Portnoy’s investigation and complaint regarding Langenberg’s short-swing profits was primarily responsible for SPC’s recovery of the same. Although SPC eventually undertook action which resulted in that recovery, there is no indication that it would have done so had Portnoy not raised the issue. Indeed, in its brief in opposition to the attorneys’ fees motion, SPC characterizes Langenberg’s § 16(b) violation as an “innocent oversight,” from which it is not unreasonable to infer that SPC might well not have pursued or even noticed such a violation without Portnoy’s aid. Furthermore, Portnoy’s investigation may have prompted SPC to recoup the funds more quickly than it would have otherwise, a legitimate ground for an attorneys’ fee recovery. See, e.g., Dottenheim v. Emerson Electric Manufacturing Co., 77 F.Supp. 306, 308 (E.D.N.Y.1948).

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Bluebook (online)
666 F. Supp. 140, 1987 U.S. Dist. LEXIS 5999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portnoy-v-standard-pacific-corp-ilnd-1987.