MEMORANDUM OPINION AND ORDER
GEORGE HOWARD, Jr., District Judge.
Currently before the Court is the request of plaintiffs’ attorneys for fees and costs expended in this rather long and protracted class action.
This action was instituted on November 23, 1973, pursuant to § 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, alleging,
inter alia,
racial discrimination in transfers, promotions and demotions at the Little Rock, Arkansas post office.
On March 16, 1982, after the expenditure of more than three hundred hours in discovery, pre-trial hearings and trial of the issues, involving approximately three weeks, the parties agreed to settle this action.
The settlement agreement requires the defendant to pay to the plaintiff class the sum of $510,000.00 which has been appropriately designated by the parties as “The Fund.” Defendant also agreed to pay plaintiffs’ costs not to exceed the sum of $25,000.00. The agreement provides that in the event plaintiffs’ costs are less than $25,-000. 00. the unexpended portion of this sum shall become a part of “The Fund.” The parties agreed that the $510,000.00 figure would earn interest, from the date of the tentative approval of the settlement agreement by the Court to the date of the final approval of the agreement, at a rate which the defendant receives on its investments during such period.
The agreement also provides that plaintiffs’ attorneys shall be entitled to “reasonable” fees, as determined by the Court, and that such fees shall be paid out of “The Fund.”
The Court is persuaded and accordingly finds, that the common fund approach, employed by the parties in the settlement arrangement, is an acceptable way of dealing with fees and costs in civil rights actions.
See Parker v. Anderson,
667 F.2d 1204 (5th Cir.1982).
On June 4, 1982, counsel for plaintiffs entered into the following joint stipulation regarding counsel fees:
“3. The respective submissions of the parties for fees and costs request a sum of approximately half of the common fund. All counsel agree that a sum of that proportion under the circumstances of this particular case is not appropriate. They, therefore, submit that a total fee and cost amount of $202,500.00 would be fair and reasonable and would strike an appropriate balance between the interest of the parties, and the class and their counsel. They further agree that the distribution shall be as follows:
(a) John W. Walker and Richard Quiggle for themselves and aligned counsel $115,000.00; and,
(b) P.A. Hollingsworth, and aligning counsel, $87,500.00;
4. The parties further agree that such other fees as are appropriate, and have not been previously applied for may be requested pursuant to paragraph 5 of the settlement agreement.
In an effort to achieve an equitable balance between the interest of the class and counsel for the class, the Court has determined that the various submissions made by counsel in support of their hours and rates claimed for services rendered should be used in fixing counsel fees instead of adopting counsel’s stipulation as to the fee to be allotted the attorneys.
The Court is persuaded that in a class action, the Court has an affirmative duty to scrutinize counsel’s requests for fees in order to determine not only whether the requested fees are reasonable, fair and equitable to counsel, but to determine also whether the requests are just to the class members, some of whom are unknown and, consequently, are not represented by counsel. To award a fee totaling approximately a quarter of a million dollars solely on a stipulation between counsel without engaging in a searching examination of the time and services rendered would be essentially an abdication on the part of the Court of its duty and responsibility to counsel and the class members. The Court is not unmindful of the fact that reasonable and equitable fee awards to plaintiffs’ counsel in civil rights litigation promote and effectuate the federal policy of fully redressing civil rights violations by enabling civil rights plaintiffs to secure competent counsel in the vindication of federal rights. Accordingly, the Court in an effort to promote and foster this concept has taken the approach hereafter discussed in setting fees in lieu of accepting counsel’s stipulation. Counsel are to be commended, however, for taking the initiative in seeking to resolve a most difficult and complex matter of fixing fees for ten or more attorneys in a proceeding which has been pending for approximately ten years.
While the Court is not bound by counsel’s stipulation, the Court is persuaded that the maximum figure of $202,500.00 agreed to by counsel as the maximum figure for fees which is approximately 38% of “The Fund”, should be designated as the upper limit for the recovery of fees and costs for plaintiffs’ counsel. Also, the proposed distribution between the two lead counsel, as reflected in the stipulation, is beneficial to the Court in determining fees between the Walker group and the Hollingsworth group. The stipulated distribution for the Walker firm and associates is 57% of the stipulated sum while the stipulated figure for the Hollingsworth firm and associates is approximately 43% of the stipulated figure.
In reviewing the submissions of counsel, the Court has taken into consideration the following criteria set forth in
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (C.A. 5th, 1974), which factors were endorsed by the Court of Appeals for the Eighth Circuit in
Doe v. Poelker,
515 F.2d 541 (C.A. 8th, 1975) and
Cleverly v. Western Electric Co.,
594 F.2d 638 (C.A. 8th, 1979):
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill required to perform the legal service properly;
(4) the preclusion of other employment by the attorney because of acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the 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 relationship with the client; and,
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MEMORANDUM OPINION AND ORDER
GEORGE HOWARD, Jr., District Judge.
Currently before the Court is the request of plaintiffs’ attorneys for fees and costs expended in this rather long and protracted class action.
This action was instituted on November 23, 1973, pursuant to § 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16, alleging,
inter alia,
racial discrimination in transfers, promotions and demotions at the Little Rock, Arkansas post office.
On March 16, 1982, after the expenditure of more than three hundred hours in discovery, pre-trial hearings and trial of the issues, involving approximately three weeks, the parties agreed to settle this action.
The settlement agreement requires the defendant to pay to the plaintiff class the sum of $510,000.00 which has been appropriately designated by the parties as “The Fund.” Defendant also agreed to pay plaintiffs’ costs not to exceed the sum of $25,000.00. The agreement provides that in the event plaintiffs’ costs are less than $25,-000. 00. the unexpended portion of this sum shall become a part of “The Fund.” The parties agreed that the $510,000.00 figure would earn interest, from the date of the tentative approval of the settlement agreement by the Court to the date of the final approval of the agreement, at a rate which the defendant receives on its investments during such period.
The agreement also provides that plaintiffs’ attorneys shall be entitled to “reasonable” fees, as determined by the Court, and that such fees shall be paid out of “The Fund.”
The Court is persuaded and accordingly finds, that the common fund approach, employed by the parties in the settlement arrangement, is an acceptable way of dealing with fees and costs in civil rights actions.
See Parker v. Anderson,
667 F.2d 1204 (5th Cir.1982).
On June 4, 1982, counsel for plaintiffs entered into the following joint stipulation regarding counsel fees:
“3. The respective submissions of the parties for fees and costs request a sum of approximately half of the common fund. All counsel agree that a sum of that proportion under the circumstances of this particular case is not appropriate. They, therefore, submit that a total fee and cost amount of $202,500.00 would be fair and reasonable and would strike an appropriate balance between the interest of the parties, and the class and their counsel. They further agree that the distribution shall be as follows:
(a) John W. Walker and Richard Quiggle for themselves and aligned counsel $115,000.00; and,
(b) P.A. Hollingsworth, and aligning counsel, $87,500.00;
4. The parties further agree that such other fees as are appropriate, and have not been previously applied for may be requested pursuant to paragraph 5 of the settlement agreement.
In an effort to achieve an equitable balance between the interest of the class and counsel for the class, the Court has determined that the various submissions made by counsel in support of their hours and rates claimed for services rendered should be used in fixing counsel fees instead of adopting counsel’s stipulation as to the fee to be allotted the attorneys.
The Court is persuaded that in a class action, the Court has an affirmative duty to scrutinize counsel’s requests for fees in order to determine not only whether the requested fees are reasonable, fair and equitable to counsel, but to determine also whether the requests are just to the class members, some of whom are unknown and, consequently, are not represented by counsel. To award a fee totaling approximately a quarter of a million dollars solely on a stipulation between counsel without engaging in a searching examination of the time and services rendered would be essentially an abdication on the part of the Court of its duty and responsibility to counsel and the class members. The Court is not unmindful of the fact that reasonable and equitable fee awards to plaintiffs’ counsel in civil rights litigation promote and effectuate the federal policy of fully redressing civil rights violations by enabling civil rights plaintiffs to secure competent counsel in the vindication of federal rights. Accordingly, the Court in an effort to promote and foster this concept has taken the approach hereafter discussed in setting fees in lieu of accepting counsel’s stipulation. Counsel are to be commended, however, for taking the initiative in seeking to resolve a most difficult and complex matter of fixing fees for ten or more attorneys in a proceeding which has been pending for approximately ten years.
While the Court is not bound by counsel’s stipulation, the Court is persuaded that the maximum figure of $202,500.00 agreed to by counsel as the maximum figure for fees which is approximately 38% of “The Fund”, should be designated as the upper limit for the recovery of fees and costs for plaintiffs’ counsel. Also, the proposed distribution between the two lead counsel, as reflected in the stipulation, is beneficial to the Court in determining fees between the Walker group and the Hollingsworth group. The stipulated distribution for the Walker firm and associates is 57% of the stipulated sum while the stipulated figure for the Hollingsworth firm and associates is approximately 43% of the stipulated figure.
In reviewing the submissions of counsel, the Court has taken into consideration the following criteria set forth in
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (C.A. 5th, 1974), which factors were endorsed by the Court of Appeals for the Eighth Circuit in
Doe v. Poelker,
515 F.2d 541 (C.A. 8th, 1975) and
Cleverly v. Western Electric Co.,
594 F.2d 638 (C.A. 8th, 1979):
(1) the time and labor required;
(2) the novelty and difficulty of the questions;
(3) the skill required to perform the legal service properly;
(4) the preclusion of other employment by the attorney because of acceptance of the case;
(5) the customary fee;
(6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the 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 relationship with the client; and,
(12) awards in other cases.
The following is a schedule of the hours and rates claimed by counsel:
ATTORNEYS Total Hours Hourly Rate Total Claimed Multiplier Costs
Walker 488.4 $137.50 $67,155.00 25% $1,168.00
Quiggle 385.1 $ 80.00 $30,808.00 1.5 $3,395.82
Bilheimer 144.0 $ 80.00 $11,520.00
Pulliam: $ 8,493.00 50%
In Court 43.5 $ 65.00
Out of Court 103.0 $ 55.00
Hollingsworth: $48,578.00 50% $4,311.17
1973-74 Out of Court 33.6 $ 60.00
1957-77 Out of Court 86.3 $ 70.00
In Court 16.4 $ 90.00
1978-79 Out of Court 44.2 $ 80.00
In Court 4.0 $100.00
1980-81 Out of Court 157.3 $ 90.00
In Court 44.2 $110.00
1982 Out of Court 60.7 $100.00
In Court 80.5 $125.00
Heller: $11,865.00 50%
1978-79 Law Clerk 55 $ 25.00
1980-82 Out of Court 163 $ 50.00
In Court 39 $ 60.00
Kaplan 3 $ 80.00 $ 240.00
Gordon 85.3 $ 50.00 $ 4,256.00
Washington 12 $ 80.00 $ 960.00
Jones 22 $ 80.00 $ 1,760.00
The
Johnson
factors will be considered in the following manner:
A. TIME DEVOTED TO CASE:
After carefully reviewing counsel’s time sheets, the Court is convinced, and accordingly, finds, that the hours claimed by John W. Walker, Esq., should be reduced or adjusted to 458.9 hours; P.A. Hollingsworth’s, Esq., out of court hours should be adjusted to 345.4 hours; Janet Pulliam’s, Esq., hours for out of court should be adjusted to 99 hours and Ron Heller’s, Esq., hours out of court should be adjusted to 152 hours. Relative to the remaining counsel, the Court is of the view that the hours claimed should not be adjusted in any way.
The foregoing adjustments take into consideration 79.4 hours claimed by counsel for time spent preparing for a class certification hearing between December 9,1975, and November, 1981, which the Court finds was nonproductive and, therefore, these hours are subtracted from counsel’s submissions. Because of counsel’s unawareness or misinterpretation of a court order entered on December 9, 1975, certifying this litigation as a class proceeding, counsel engaged in discovery and other pretrial activity, related directly to the class certification issue, over a five year period when the Court called to counsel’s attention, on the date of the scheduled class certification hearing, that Judge Warren K. Urbom had already certified the action as a class proceeding and
had simply directed counsel to define the class.
B. VALUE OF SERVICES:
Considering the experience, reputation and ability of counsel;
the preclusion of other employment; the amount involved and the results obtained; the undesirability of the case; and awards in similar cases in this district, the requested hourly rate is somewhat excessive, as to certain counsel, and the Court finds that such requests should be reduced or adjusted as reflected by the following schedule, which takes into consideration the adjustments made by the Court with reference to the hours claimed by counsel:
ATTORNEYS
Total * Hours
Hourly Rate
Total
Costs
Enhancement
Walker 458.9 $125.00 $57,362.50 $1,168.00 $8,604.37
Quiggle 371.1 $ 80.00 $29,688.00 $3,395.82 $2,968.80
ATTORNEYS
Total * Hours
Hourly Rate
Total
Costs
Enhancement
Hollingsworth:** $42,022.00 $4,311.12 $4,200.20
In Court 143.7 $100.00
Out of Court 345.4 $ 80.00
Bilheimer 144 $ 80.00 $11,520.00 $1,152.00
Kaplan 3 $ 80.00 $ 240.00 $ 24.00
Jones 22 $ 80.00 $ 1,760.00 $ 176.00
Washington 12 $ 80.00 $ 960.00 $ 96.00
Gordon 85.3 $ 50.00 $ 4,265.00
Pulliam: $ 7,560.00
In Court 43.5 $ 60.00
Out of Court 99 $ 50.00
Heller: $11,190.00
As law clerk 50 $ 25.00
In Court 39 $ 60.00
Out of Court 152 $ 50.00
* The following hours were deducted from the hours claimed by counsel for time spent on class certification between December 9,1975, and November, 1981:
John W. Walker 29.5 Hours
P.A. Hollingsworth 37.9 Hours
Janet Pulliam 4 Hours
Ron Heller 8 Hours
** Mr. Hollingsworth’s affidavit of October 5,1982, provides in pertinent part:
My current hourly rate ranges from $70.00 per hour to $125.00 per hour, while other members of my section charge from $40.00 per hours to $85.00 per hour. We also charge for law clerks at the rate of $25.00 per hour to $30.00 per hour. When involved in actual litigation or courtroom work, we generally charge at the high end of the range for charges.
C. ADJUSTMENT FOR OTHER FACTORS:
The Court is of the view that the final fee award to the following designated attorneys should be enhanced to the extent indicated because of the legal and financial risks incurred in undertaking the case, the quality of representation offered, and the delay involved in this long and extended proceeding:
John W. Walker 15%
Richard Quiggle 10%
Perlester Hollingsworth 10% John Bilheimer 10%
Henry L. Jones 10%
Philip Kaplan 10%
Ralph Washington 10%
The Court is not convinced that an enhancement fee should be afforded Paul Gordon, Ron Heller and Janet Pulliam because these attorneys were associated in this action recently, relatively speaking, and, while there is no doubt that these attorneys contributed to the successful termination of this litigation, it is clear that they assumed a minor role in contrast to other counsel in the assumption risks and the long delay encountered between the initial filing of this lawsuit and the settlement agreement finally terminating this action.
Accordingly, the total fee for counsel is as follows:
1. John W. Walker, $65,966.87, plus costs in the sum of $1,168.00;
2. P.A. Hollingsworth, $46,202.20, plus costs in the sum of $4,311.12;
3. Richard Quiggle, $32,656.80, plus costs in the sum of $3,395.82;
4. John W. Bilheimer, $12,672.00;
5. Henry Jones, $1,936.00;
6. Ralph Washington, $1,056.00;
7. Ron Heller, $11,590.00;
8. Janet Pulliam, $7,560.00;
9. Philip Kaplan, $264.00; and,
10. Paul Gordon, $4,265.00.
Ambrose Robinson, a party-plaintiff, has submitted an affidavit claiming the sum of $1,100.00 as costs for the amount of annual leave that he purportedly lost from his employment for the time spent in preparation for and during the course of the trial. The Court is not persuaded that Mr. Robinson is entitled to claim that as cost since it is plain that he had a duty to assist his counsel in preparation for trial and to appear in Court during trial by virtue of his status as plaintiff. Consequently, this claim is denied. However, Mr. Robinson’s claim for long distance telephone calls and funds advanced for depositions and the class action notice has been included in his attorney’s claim for costs and will not be allowed here.
SUMMARY OF COMPUTATION
A. Amount designated as upper limit for fees and costs......»>””>»”»»>>”””>”»” $202,500.00
B. Attorneys’ fees allowed ’””” $183,788.87
C. Costs allowed.........”””.......... $ 8,874.94
D. Balance remaining................ $ 9,836.19
The balance remaining of the upper limit figure in the sum of $9,836.19 shall revert to “The Fund” and be distributed among the plaintiff class.
Unless a request is made by counsel for additional or supplemental relief in this cause within ten (10) days of the date of this order, this action shall be dismissed with prejudice.
IT IS SO ORDERED this 19th day of October, 1982.