Weseley v. Spear, Leeds & Kellogg

711 F. Supp. 713, 1989 U.S. Dist. LEXIS 4092, 1989 WL 40958
CourtDistrict Court, E.D. New York
DecidedApril 20, 1989
Docket88 C 397
StatusPublished
Cited by61 cases

This text of 711 F. Supp. 713 (Weseley v. Spear, Leeds & Kellogg) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weseley v. Spear, Leeds & Kellogg, 711 F. Supp. 713, 1989 U.S. Dist. LEXIS 4092, 1989 WL 40958 (E.D.N.Y. 1989).

Opinion

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff brought this action under section 10(b) of the Securities Exchange Act (the Act), 15 U.S.C. § 78j(b) (1982), alleging that defendant artificially inflated the opening price of J.P. Morgan common stock on October 20, 1987. The parties entered into a settlement, which the court approved. Plaintiff’s counsel, Richard Apple-by, Esq. (Appleby), now moves for an award of $575,000 in attorney’s fees and a special award of $5,000 for his client.

I.

Defendant is a “specialist” for a number of stocks traded on the New York Stock Exchange (the Exchange). A specialist has an exclusive franchise to make markets in stocks assigned to it. It may act as a broker, holding or executing and receiving a commission on orders to buy or sell, or as a dealer, buying or selling for its own account to prevent wide price swings in its assigned stocks. The specialist frequently sets a stock’s opening price.

Defendant was a specialist for the J.P. Morgan common stock (the Stock) on October 20, 1987. On the previous day, “Black Monday,” the Stock fell from $41.62 per share to $27.75 at the close. The next morning defendant set an opening price of $47, a rise of 69% from the previous close. There had been no significant announcements about J.P. Morgan in the interim.

Plaintiff had placed a market order to purchase 2,000 shares of the Stock prior to the opening of trading on October 20th. On the opening transaction defendant executed plaintiff’s market order and those of other purchasers totalling 500,000 shares.

The stock market was volatile that day, and trading was heavy. After two and a half hours the price of the Stock fell to $29; it closed at $34.25. Plaintiff alleges that defendant sold at $47 a substantial amount of the 500,000-share block from its own account, knowing the opening price to be artificially inflated.

Appleby investigated these events for two months before determining to file the complaint in March 1988. He began discovery shortly thereafter and retained a former specialist on the Exchange to educate him in the mechanics of specialist trading. He deposed four people: the Chairman of the Exchange, about the Exchange’s investigation of defendant’s trading in the Stock on October 19th and 20th; two floor officials of the Exchange, about their participation in the decision to open the Stock at $47 per share; and the individual specialist at defendant who set the *715 opening price of the Stock on October 20th. Defendant’s counsel took plaintiffs deposition. Appleby successfully moved to compel production of a substantial number of documents from the Exchange and defendant.

On August 15, 1988, the court certified a shareholder class of all persons who purchased the Stock at $47 per share prior to the opening of trading on October 20, 1987 (the Class), excluding defendant and its subsidiaries and affiliates. The court named plaintiff class representative and Appleby counsel to the Class.

Thereafter serious settlement negotiations began. Appleby estimated the maximum damages sustained by the Class to be $6.5 million. Defendant ultimately agreed to pay $2.5 million for the benefit of the Class (the Fund), and deposited that sum, invested in short-term Treasury Bills, in a bank on November 15, 1988. The court preliminarily approved the terms of the settlement on January 13, 1989 and directed that notice of it be sent to the Class.

No member of the Class elected to opt out. After holding a hearing on March 17, 1989 the court approved the settlement as fair, reasonable, and adequate.

Appleby seeks $575,000 in attorney’s fees, or 23% of the Fund, as well as $7,866.94 in disbursements, and asks for a special award of $5,000 for his client for acting as class representative.

A member of the Class, Gemeenschappe-lijk Administratiekantoor (GAK), objects. GAK placed a market order for 75,000 shares of the Stock prior to the opening of trading on October 20, 1987, sustaining a loss of approximately $856,250. Although GAK considered filing its own action against defendant, it chose to remain in the Class and participate in the settlement.

II.

The court may award class counsel fair and just compensation out of the fund obtained for the class. In re Agent Orange Prod. Liability Litig., 818 F.2d 226, 232 (2d Cir.1987) (citing Trustees v. Greenough, 105 U.S. 527, 536, 26 L.Ed. 1157 (1882)); see Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980).

To determine a fair fee the court must first calculate the appropriate “lodestar” figure by multiplying the number of hours reasonably billed by the hourly rate normally charged for equivalent work by similarly-skilled attorneys in the region. In re Agent Orange, supra, 818 F.2d at 232 (citing City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Cir.1977) (Grinnell II)).

The court may then adjust the lodestar upward or downward to take into account such factors as the quality of counsel’s work, the riskiness of the litigation, and the complexity of the issues. Id. (citing Grinnell II, supra, 560 F.2d at 1098).

A. The Lodestar

Appleby claims a lodestar of $214,-637.50, representing 744 hours of his time at $275 per hour, 35 hours of time by Vivian Shevitz, Esq., at $200 per hour, and 20.25 hours of Shevitz’s associates at $150 per hour. He properly does not include time spent preparing his fee application.

The amount of time expended on the case is reasonable. For example, Appleby claims to have spent 73.25 hours preparing his motion for class certification, including briefing the motion and defending plaintiff’s deposition. To spend less than 75 hours on a major and vigorously contested motion strikes the court as unusually efficient.

Appleby’s most time-consuming task, requiring 259.75 hours, was, not surprisingly, to investigate the pertinent facts and conduct discovery. These hours include time required to prepare for and take four depositions, to accomplish all other discovery, and to investigate not only the events of October 20th but also the arcane world of the floor specialists on the Exchange.

The total number of hours appears reasonable, indeed probably far less than a large law firm with several associates assigned to the case would have spent. As a sole practitioner, Appleby could avoid much *716 duplication of effort, particularly in investigating the facts.

The hourly rates requested are in keeping with those normally charged by similarly-skilled attorneys in litigation of this kind in the New York metropolitan area. See, e.g., Ross v. A.H. Robins Co., 700 F.Supp.

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

Related

Conti v. L'Oreal USA S/D, Inc.
E.D. California, 2022
Cosmoledo, LLC
S.D. New York, 2022
Allred v. Walker
S.D. New York, 2021
Salgado v. T-Mobile USA, Inc
E.D. California, 2019
Cunningham v. Suds Pizza, Inc.
290 F. Supp. 3d 214 (W.D. New York, 2017)
Altnor v. Preferred Freezer Services, Inc.
197 F. Supp. 3d 746 (E.D. Pennsylvania, 2016)
Hashw v. Department Stores National Bank
182 F. Supp. 3d 935 (D. Minnesota, 2016)
Ortiz v. Chop't Creative Salad Co.
89 F. Supp. 3d 573 (S.D. New York, 2015)
Torchia v. W.W. Grainger, Inc.
304 F.R.D. 256 (E.D. California, 2014)
Fujiwara v. Sushi Yasuda Ltd.
58 F. Supp. 3d 424 (S.D. New York, 2014)
Gortat v. Capala Bros.
949 F. Supp. 2d 374 (E.D. New York, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
711 F. Supp. 713, 1989 U.S. Dist. LEXIS 4092, 1989 WL 40958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weseley-v-spear-leeds-kellogg-nyed-1989.