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AMERICAN BOOKSELLERS
ASSOCIATION, INC., ET AL., Plaintiffs,
v. WILLIAM H. HUDNUT, III,
Mayor of the City of
Indianapolis, et al.,
Defendants
Cause No. IP 84-791C
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF
INDIANA, INDIANAPOLIS
DIVISION
650 F. Supp. 324; 1986
U.S. Dist. LEXIS 20972
August 29, 1986, Decided
SUBSEQUENT
HISTORY: [**1]
Entry Nunc
Pro Tunc, September 16, 1986.
COUNSEL:
John H. Weston, Brown, Weston & Sarno,
Michael A. Bamberger, Finley, Kumble, Wagner,
Heine, Underberg, Manley & Casey, Burton
Joseph, Barsey, Joseph & Lichtenstein,
Richard Kammen, McClure, McClure & Kammen,
Richard W. Cardwell, Ober, Symmes, Cardwell,
Voyles & Zahn, Sheila Suess Kennedy, Mears,
Crawford, Kennedy & Eichholtz, Mark Dall,
Kathryn Watson.
JUDGES:
Sarah Evans Barker, Judge.
OPINIONBY:
BARKER
OPINION:
[*325] ENTRY
This matter
comes before the court on the motions of three
plaintiffs' counsel for an award of attorney
fees, pursuant to 42 U.S.C. § 1988,
following judgment in plaintiffs' favor in the
above-captioned case. Before the court are the
motions and supplemental motions of Finley,
Kumble, Wagner, Heine, Underberg, Manley &
Casey ("Finley Kumble"), counsel for
American Booksellers Association, Inc.
("American [*326] Booksellers"),
Richard Kammen, counsel for plaintiff Video
Shack, Inc., and Brown, Weston & Sarno
("Brown Weston"), counsel for
intervenor-plaintiffs I.S.S.I. Theatre, Inc. and
4266 West 38th Street Corporation
("intervenors" or
"intervenor-plaintiffs"). It is hereby
ordered and adjudged that counsel [**2] for the
plaintiffs are entitled to the following as
reasonable fees and expenses: counsel for
plaintiff American Booksellers Association, Inc.,
eighty-seven thousand, three hundred sixteen
dollars and sixteen cents ($87,316.16); and
counsel for plaintiff Video Shack, Inc., seven
thousand, eight hundred sixty-two dollars and two
cents ($7,862.02). The court makes no award on
the petition of the intervenor-plaintiffs. The
computations and reasons therefor are set out in
the attached Memorandum.
Memorandum
A. Recovery
of Fees Generally:
The
well-established "American Rule" is, of
course, that a prevailing party is not ordinarily
entitled to recover attorney fees from the loser.
See Pennsylvania v. Delaware Valley Citizens'
Council, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed.
2d 439 (1986) (citing Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240,
44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975)). One
of the primary exceptions to this rule is where
Congress has expressly authorized courts to
require one party to pay attorney fees to the
other. Id.
Congress has
so authorized the award of "reasonable"
attorney fees for prevailing parties in civil
rights actions [**3] brought under 42 U.S.C.
§ 1983. While Congress, pursuant to 42
U.S.C. § 1988, granted courts the discretion
to make such awards, the Supreme Court has held
that the court's discretion to deny fee awards
should be exercised only when special
circumstances would render such an award unjust. New
York Gaslight v. Carey, 447 U.S. 54, 64 L. Ed. 2d
723, 100 S. Ct. 2024 (1980); Newman v.
Piggie Park Enterprises, 390 U.S. 400, 19 L. Ed.
2d 1263, 88 S. Ct. 964 (1968) (per curium).
Against this
backdrop, it is clear that most of the disputes
regarding awards of attorney fees to prevailing
plaintiffs in section 1983 actions have centered
on what constitutes a "reasonable" fee.
In making a fee award, a court should begin by
determining the "lodestar" figure: the
number of hours reasonably expended multiplied by
a reasonable hourly rate. See, e.g., Hensley
v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103
S. Ct. 1933 (1983); Lynch v. City of
Milwaukee, 747 F.2d 423 (7th Cir. 1984). The
second step in the formulation, generally stated,
is to adjust the lodestar figure upward or
downward (by using "multipliers") to
take into account certain other factors when the
situation so warrants. [**4] See Lynch, 747
F.2d at 426. Both of these steps are more
fully explored below in the context of the fee
petitions at issue here.
Petitioners
are the prevailing plaintiffs in this action
which was commenced on May 1, 1984, against the
mayor and City of Indianapolis
("City"), challenging the
constitutionality of an
"anti-pornography" ordinance passed by
the Indianapolis City-County Council. On November
19, 1984, this court granted the plaintiffs'
motion for summary judgment, declaring the
ordinance to be unconstitutional, void, and of no
effect. American Booksellers Ass'n, Inc. v.
Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984).
That decision was subsequently affirmed by the Seventh
Circuit Court of Appeals, 771 F.2d 323 (1985),
and by the United States Supreme Court, 106 S.
Ct. 1172, reh'g denied, 106 S. Ct. 1664
(1986). In granting summary judgment, the
court included an order assessing costs and
reasonable attorney fees against the defendants.
Now before the court are the motions of
plaintiffs, American Booksellers and Video Shack,
requesting the fixing of the amount of the fee
award. Also before the court is the motion of
intervenor-plaintiffs, I.S.S.I. and West 38th
Street [**5] Corporation, seeking an award and
fixing the amount of attorney fees. Petitioners
seek attorney fees and expenses incurred in the
prosecution of those proceedings as well as for
their efforts relating to their requests for
fees. [*327] Because each request presents
somewhat different issues, each will be dealt
with separately.
B. Request
for Finley Kumble:
Finley
Kumble, counsel for American Booksellers,
requests an award for fees and expenses totalling
one hundred three thousand, nine hundred twenty
dollars ($103,920.00). n1 Because Finley Kumble
has not requested the use of a multiplier to
enhance the lodestar figure, this court will
determine, based on all the evidence before it,
the reasonableness of the hours expended and the
rate charged by Finley Kumble.
- n1
This figure does not correspond precisely
with the court's own computation of
$105,185.79. In any event, the court will
focus on the individual breakdown of the
request rather than on the total sum prayed
for.
It
should also be noted that this total includes
the request of Mr. Burton Joseph, a Chicago
attorney who is not affiliated with Finley
Kumble but who participated to some extent
with Finley Kumble in this action. His
request of $10,800.00 will be considered
separately in this section.
For the
court's computation of the fees and costs
requested by Finley Kumble, see Appendix A.
These amounts do not include the portion of
the request made for the efforts of certain
local counsel who have already reached
settlement with the City.
[**6]
1.
Reasonableness of Rate:
The City's
primary objection to the request of Finley Kumble
challenges the hourly rate applied by Finley
Kumble. Finley Kumble, a New York City law firm,
requests $225.00 per hour for the partner who
handled this case (Mr. Bamberger), $195.00 per
hour for an attorney who is "of
counsel" to the firm (Ms. Siegel),
$105.00-$115.00 per hour for the associate
lawyers (Mr. Burger, Mr. Mitchell, and Mr.
Mandel), $150.00 per hour for Mr. Joseph, n2
$80.00 per hour for a summer law clerk (Ms.
Macropoulos), and $65.00 per hour for
"managing clerks" (Ms. Brown, Mr.
Adago, and Ms. Aiken). Finley Kumble makes these
various hourly claims, asserting that the rates
reflect the usual and ordinary fees charged in
New York City for the work performed by them in
this case.
n2 See
supra note 1.
The City
contends that plaintiffs are not entitled to
remuneration at New York rates because those
rates are not the "prevailing market rates
in the relevant community." Blum v.
Stenson, 465 U.S. [**7] 886, 895, 79 L. Ed. 2d
891, 104 S. Ct. 1541 (1984). In its brief,
the City maintains that "most Circuits
follow the rule that the prevailing rate in the
locality where the lawsuit is filed should be
used, regardless of whether the attorney normally
practices elsewhere," citing Hamilton v.
Daley, 777 F.2d 1207, 1213 (7th Cir. 1985).
The City therefore contends that Finley Kumble
should be limited to the rates charged in the
Indianapolis area, rates which are substantially
less. n3
n3 The
City has offered evidence that these rates
would be $75.00-$125.00.
Despite the
City's reliance on Hamilton, that case did not
address the issue of out-of-town counsel.
Instead, it held that when the attorneys for
prevailing parties are public employees who will
not personally receive a fee award, the fee award
should still be based on reasonable billing rates
in the relevant community. Id.
Moreover, in
Chrapliwy v. Uniroyal, Inc., 670 F.2d 760
(1982), cert. denied, 461 U.S. 956, 77 L.
Ed. 2d 1315, 103 S. [**8] Ct. 2428 (1983),
the Seventh Circuit recognized that the
"relevant community" or
"locality" should not be interpreted
always to mean the locality where the lawsuit is
heard. Id. at 768. While the locally
prevailing rate may generally be an accurate
barometer of a reasonable rate, the Seventh
Circuit noted that, in some cases, the
complexity, specialized nature of the case, and
unavailability locally of services of like
quality may justify an award based on the regular
billing rates of out-of-town counsel. Id. at
768-69. Indeed, the Chrapliwy court
criticized the lower court's assumption that the
term "locality" as used in the context
of a "fee customarily charged in the
locality for similar legal services," (Waters
v. Wisconsin Steel Works, 502 F.2d 1309 (7th Cir.
[*328] 1974)) meant the locality where the
case was heard. While the Court of Appeals found
that consideration relevant to the issue of
reasonableness, it found that the fee customarily
charged in the locality where the attorney
normally practices is also relevant. The
pertinent questions in fixing the amount of a
particular fee are "whether services of like
quality are truly available in the locality [**9]
where the services are rendered, and whether the
party choosing the attorney from elsewhere acted
reasonably in making that choice." 670
F.2d at 769.
Although
this court certainly recognizes and acknowledges
that there are Indiana attorneys who could have
competently handled this case on behalf of
plaintiffs, it must also acknowledge that based
on the breadth of experience that Finley Kumble
possesses in litigating first amendment
questions, it is unlikely that "services of
like quality [were] truly available"
locally. Id. As the Chrapliwy court pointed out,
if a high
priced, out of town attorney renders services
which local attorneys could do as well, and there
is no reason to have them performed by the
former, then the judge, in his discretion, might
allow only an hourly rate which local attorneys
would have charged for the same service.
Id. at
768. The broad experience of Finley Kumble,
including its handling of several other
significant first amendment cases in the federal
courts and its filing of numerous amicus briefs
before the Supreme Court, makes it unlikely that
the plaintiffs could have obtained equal
representation locally. The City has not [**10]
demonstrated that like or equal experience was
available locally. Furthermore, the court notes
that while the billing rates of specialists from
large cities may be higher, the expertise of the
specialist may actually reduce the number of
hours that would normally be necessary to gain a
mastery of the particular area of the law.
Another
factor leading this court to conclude that it was
reasonable for the plaintiffs to engage
out-of-town counsel is that Finley Kumble has
represented the plaintiff trade associations in
first amendment matters for over eight years. In
fact, Finley Kumble had represented the
plaintiffs in their effort to defeat passage of
the ordinance challenged in this case, before a
lawsuit was even filed. The court, therefore,
cannot say that it was unreasonable for American
Booksellers to have its legal services performed
by Finley Kumble. See id.
The Seventh
Circuit, in awarding an attorney fee "under
Title VII or similar statute," has given
judges the discretion to question the
reasonableness of an out-of-town rate where there
is reason to believe that "services of equal
quality were readily available" at a lower
rate in the area where the services were to
[**11] be rendered. Id. at 769. However,
after reviewing all the evidence presented in the
briefs and accompanying affidavits, this court is
persuaded that services of equal quality were not
readily available in the Indianapolis area and
that the plaintiffs' engagement of New York
counsel was reasonable. Therefore, Finley Kumble
attorneys n4 will be awarded attorney fees based
on what they have demonstrated to be reasonable
billing rates for the locale in which they
normally practice.
n4 This
finding, however, does not apply to the
billings with regard to Mr. Joseph, the law
clerk, and Finley Kumble's "managing
clerks," which will all be discussed
infra.
2. The
Request of Mr. Joseph:
Mr. Joseph,
who has requested an award of $10,800.00 based on
seventy-two hours expended at a rate of $150.00
per hour, is not a member of the Finley Kumble
firm. He is a partner in a Chicago law firm, with
significant experience in first amendment
matters, who participated with Finley Kumble in
the prosecution of this [**12] matter.
Despite his
unchallenged qualifications, the court is unable
to accept petitioner's claim that Mr. Joseph's
request represents [*329] a reasonable number of
hours expended at a reasonable rate.
First, the
court finds it inconsistent that Finley Kumble
would contend, on the one hand, that it is
entitled to New York billing rates for its
special expertise in first amendment matters but
would also maintain that it had need of
assistance from additional non-local counsel.
Therefore, to the extent that Mr. Joseph is
entitled to an award for a reasonable number of
hours expended, that award is limited to
prevailing local rates, which this court sets at
$125.00.
Furthermore,
this court has difficulty accepting as reasonable
and necessary much of the time reportedly spent
by Mr. Joseph on the plaintiff's behalf. Diary
entries merely indicating time spent for
"research," without any further
identification or description of the research,
are insufficient. Simularly, entries for
"telephone conference" do not indicate
who was on the other end of the line, and in some
instances, are not consistent with the diary
entries of the attorneys at Finley Kumble.
Finally, for the reasons [**13] stated in the
previous paragraph, the court finds that the
engagement of another expert on this matter
resulted in unnecessary duplication of effort.
For these reasons, recovery of the costs of Mr.
Joseph's representation are limited to the
court's estimate of Mr. Joseph's
specifically-described time, and which time
expenditures are not manifestly duplicative. The
court therefore computes the reimbursable hours
at seventeen, and awards the sum of two thousand,
one hundred twenty-five dollars ($2,125.00) in
payment therefor.
3. Hours
Reasonably Expended:
For the most
part, neither the City nor this court quarrels
with the number of hours for which the Finley
Kumble attorneys seek compensation. The City,
however, does contend that the number of hours
spent by the attorneys in conference is excessive
and should be reduced. n5 These conferences, the
City maintains, were necessitated by the fact
that the plaintiffs had so many attorneys working
on the case. The evidence reveals, however, that
Finley Kumble rarely had more than two or three
attorneys working on a matter at any given time,
not including the proportionally few hours
expended by local counsel. It does not seem
unreasonable [**14] to this court for a law firm,
litigating a case of constitutional import in and
from the district court to the court of appeals
to the Supreme Court, to use two or three
attorneys at one time and to spend a considerable
number of hours in coordinating efforts and
planning strategy. Indeed, time well spent in
conference can prevent the unnecessary
duplication of effort sometimes caused by poor
communication. The court, therefore, bases its
fee award on the total number of hours documented
by the Finley Kumble attorneys. n6 Those hours,
multiplied by the reasonable rate approved in
subsection one of this discussion, are computed
as follows:
________________________________________________________________________________
Attorney
Hours (Multiplied) Rate (Equals) Total
Times
Mr.
Bamberger 132.9 x $225. $29,902.50
Mr. Burger
122.0 105. 12,810.00
Ms. Siegel
9.5 195. 1,852.50
Mr. Mitchell
180.5 115. 20,757.50
Mr. Mandel
25.6 115. 2,944.00
________________________________________________________________________________
n5 It is
difficult to measure precisely the number of
hours spent in conference because the
timesheets often include descriptions of
other tasks within the same entry.
[**15]
n6 The
hours reported by Mr. Mitchell are reduced,
however, from 191.5 hours to 180.5 hours for
apparent inconsistencies or excessive
billings on April 19, 20, and 28, 1984.
4. Request
for Law Clerk Reimbursement:
The Finley
Kumble petition also contains a request for an
award of nine thousand, seven hundred twenty
dollars ($9,720.00) for the time expended by Ms.
Macropoulos, a law student employed by Finley
Kumble during the summer of 1984. This request is
based on 121.5 hours at $80.00 per hour. From the
itemized time sheets, it appears that Ms.
Macropoulos was responsible for some of the
initial research, drafting, and gathering of
exhibits in conjunction with the summary judgment
proceedings in this court.
[*330]
First, while the court accepts the contention of
Finley Kumble that New York rates are due counsel
because of their special expertise in first
amendment matters, it does not assume that such
is true of a student law clerk. Therefore, the
court sets the billing rate for Ms. Macropoulos'
time at $50.00 per hour, a figure more accurately
reflective of the billing rates for [**16]
"summer associates" in the Indianapolis
area. n7
n7
Although the City has not specifically
countered the New York rate with any evidence
of a lower rate in Indianapolis, this court
will take judicial notice of the prevailing
Indianapolis rate.
Second, the
court finds it necessary to reduce the number of
hours claimed in arriving at a reasonable figure
for the actual tasks performed. According to the
timesheets, from May 31 to June 4 of 1984, Ms.
Macropoulos spent twenty hours to "review
the file" in this case, and from July 19 to
July 24, a total of 26.5 hours to assemble and
review the "legal structural and case
file." The court finds these hours excessive
and reduces them by one-half. Additionally, the
entry for June 19 reveals an inconsistency
regarding conference time and the July 6 entry
indicates a duplication of effort. These hours
are thus eliminated from a reimbursement award.
In sum, then, applying the lodestar figure to Ms.
Macropoulos' claim, the award is computed on the
basis of 104.5 hours (121.5 [**17] - 17) at
$50.00 per hour, for a total of five thousand two
hundred twenty-five dollars ($5,225.00).
5. Award for
"Managing Clerks" and Word Processing:
Finley
Kumble's fee petition includes a request for
"managing clerks" who, according to the
timesheets, were responsible for "docketing
and diarying" (4.7 hours at $65.00 per hour)
and for the expenses for word processing
($3,341.58). Finley Kumble suggests in its reply
brief that this type of billing is customary in
New York. n8 Although the court is willing to
award New York rates for attorney fees, it does
not necessarily follow that Finley Kumble is
entitled to an award based on all practices
regarded as customary in New York. The City has
presented evidence indicating that the
expenditures for the tasks performed by the
"managing clerks" are considered part
of overhead for law firms in this locale.
Additionally, though the City has presented no
evidence on this issue, the court takes judicial
notice of the fact that expenses for word
processing are also generally considered part of
a law firm's overhead in this locale.
Consequently, no award for the time of managing
clerks or for word processing is made. As to the
other [**18] expenses incurred, the court finds
them reasonable and adequately documented and
does, therefore, award the sum requested.
n8
Actually, the only evidence presented was in
regard to managing clerks.
6. Summary -
Request for Finley Kumble:
For the sake
of clarity, the court summarizes its award to
counsel for American Booksellers. n9
________________________________________________________________________________
Mr.
Bamberger $29,902.50
Mr. Burger
12,810.00
Ms. Siegel
1,852.50
Mr. Mitchell
20,757.50
Mr. Mandel
2,944.00
Ms.
Macropoulos 5,225.00
Mr. Joseph
2,125.00
expenses
11,699.66
$87,316.16
________________________________________________________________________________
n9 This
award is based on the original motion of
American Booksellers and the four
supplemental requests. It does not include
amounts originally requested by American
Booksellers for local counsel Sheila Suess
Kennedy and Richard Cardwell, as the court
has been informed that those requests have
previously been settled.
[**19]
C. Request
for Mr. Kammen:
Mr. Kammen,
counsel for Video Shack, Inc., has petitioned the
court for an award of nine thousand, four hundred
ninety dollars ($9,490.00), which represents 83.8
hours at $90.00 per hour, costs in the amount of
$320.02, and a twenty-five percent [*331] (25%)
"multiplier" to enhance the award as to
68.8 hours.
The City
first objects to compensation for three hours it
claims are not included in Mr. Kammen's itemized
hours listed on his timesheets. This court's own
arithmetic, however, shows that Mr. Kammen's
itemized hours do indeed equal the hours
specified in his petition. Aside from this
discrepancy, the City does not oppose the
reasonableness of the hours expended by Mr.
Kammen or the rate of compensation he seeks.
However, the City disagrees, as does this court,
with Mr. Kammen's contention that he is entitled
to a twenty-five percent (25%) enhancement of the
major portion of the fee on account of the
"particularly novel question of law"
presented in this cause.
At the
outset, it should be noted that the Supreme Court
has ruled that the circumstances under which a
"multiplier" or enhancement of the
lodestar figure should be awarded are [**20] very
narrow. As the Court recently stated, many of the
factors considered in determining the
reasonableness of the rate are subsumed within
the initial calculation of the lodestar. Pennsylvania
v. Delaware Valley Citizens' Council, 478 U.S.
546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 (1986).
See also Blum v. Stenson, 465 U.S. 886, 79 L.
Ed. 2d 891, 104 S. Ct. 1541 (1984); Hensley
v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103
S. Ct. 1933 (1983). In Blum, the court
specifically held that the "novelty [and]
complexity of the issues," "the special
skill and experience of counsel," the
"quality of representation," and the
"results obtained" are presumably fully
reflected in the lodestar figure and, therefore,
cannot serve as independent bases for increasing
the basic fee award. 465 U.S. at 898-900.
Although the Blum opinion did not hold that
upward adjustments are never permissible, it
approved them "only in the rare case where
the fee applicant offers specific evidence to
show that the quality of service rendered was
superior to what one should reasonably expect in
light of the hourly rates charged and that the
success was 'exceptional.'" Id. at 899
(citing Hensley [**21] , 461 U.S. at 435).
Given these
guidelines, and there being no evidence adduced
to support the mere assertion of Mr. Kammen that
the case presented a "particularly novel
question of law," the court finds that Mr.
Kammen has failed to sustain his burden of
demonstrating that he is entitled to the upward
adjustment of the award which he seeks. See Delaware
Valley, 106 S. Ct. at 3099-3100. Therefore,
Video Shack is entitled to and shall receive an
award of attorney fees for Mr. Kammen computed on
the basis of 83.8 hours at $90.00 per hour, plus
costs of $320.02, for a total of seven thousand,
eight hundred sixty-two dollars and two cents
($7,862.02).
D. Petition
of Intervenors:
Counsel for
intervenor-plaintiffs I.S.S.I. and 4266 West 38th
Street Corporation, Brown Weston, has filed a
motion seeking an award of seven thousand, nine
hundred three dollars and one cent ($7,903.01).
This figure represents 19.1 hours expended by Mr.
Brown, a partner, and 10.8 hours expended by Mr.
Weston, a partner, who both billed at $210.00 per
hour. It further reflects the 8.65 hours of an
associate attorney, Mr. DePiano, whose rate is
$135.00 per hour, plus a claim for four hundred
fifty-six [**22] dollars and twenty-six cents
($456.26) to reimburse their expenses.
The
intervenor-plaintiffs were granted leave of court
to intervene in this action shortly after the
original Complaint was filed. According to the
affidavits filed in support of their fee
petition, Brown Weston's role in the litigation
was primarily that of reviewing the ordinance at
issue, reviewing the papers filed by lead counsel
in the suit, and discussing strategy -- all to
ensure that their clients' interests were being
protected. Aside from the motion to intervene,
its adoption of the motion for summary judgment,
and this fee petition, [*332] the
intervenor-plaintiffs filed no papers with the
court during the various proceedings. As Mr.
Weston has stated in his affidavit to the court,
I have known
many of Plaintiffs' counsel for many years and
felt confident that they would do a competent and
professional job of articulating the basic legal
challenges to the challenged legislation. I
conferred with counsel and then [or others in my
office] reviewed all of their pleadings to
confirm that no necessary legal arguments had
been omitted or misstated and that no arguments
inimical to my clients' positions [**23] had been
advanced. When the pleadings proved to be
satisfactory, I adopted them without filing
individualized supplementary ones of my own.
As a
threshold matter, the intervenors assert that
they are "prevailing parties" within
the contemplation of 42 U.S.C. § 1988.
The legislative history of section 1988 supports
this contention:
All of these
civil rights laws depend heavily upon private
enforcements, and fee awards have proved an
essential remedy if private citizens are to have
a meaningful opportunity to vindicate the
important Congressional policies which these laws
contain.
* * *
In the large
majority of cases the party or parties seeking to
enforce such right will be the plaintiffs and/or
plaintiff-intervenors.
S. Rep. No.
1011, 94th Cong., 2d Sess. 4, reprinted in U.S.
Code Cong. & Ad. News 5908-12. Congress
therefore acknowledged that intervening parties
might, in some circumstances, be entitled to
attorney fees.
Generally, a
judge should exercise her discretion not to award
attorney fees to prevailing parties only in
limited, special circumstances. See Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400, 19
L. Ed. 2d 1263, 88 S. Ct. [**24] 964 (1968).
On the other hand, courts have held that a
court's discretion in awarding a reasonable
attorney fee to intervenors should be based on a
stricter standard. For example, in Donnell v.
United States, 220 U.S. App. D.C. 405, 682 F.2d
240 (D.C. Cir. 1982), cert. denied, 459
U.S. 1204, 75 L. Ed. 2d 436, 103 S. Ct. 1190
(1983), the court found, in reversing an
attorney fee award under identical language in
the Voting Rights Act, that the Congressional
objective in making attorney fee awards available
is not so compelling in the case of intervenors.
In these cases, the civil rights of the
intervenors have been vindicated by the original
plaintiff and the intervenor should recover only
if it substantially contributed toward the
outcome. Id. at 247-48. Although formulated
somewhat differently, a court in the Seventh
Circuit has recently held that even though an
intervenor may be considered a "prevailing
party," the attorney fee award "may be
limited by the court's assessment of the
proportionate contribution which the intervenor
made to the ultimate success." Gautreaux
v. Chicago Housing Authority, 610 F. Supp. 29 (N.
D. Ill. 1985). In Gautreaux, the court found
[**25] that the intervention had served to
enforce an earlier order of the court and had a
"significant -- perhaps essential --
contribution to the plaintiffs' success." Id.
at 31.
While this
court does not doubt the sincerity or quality of
the efforts of Brown Weston in monitoring this
litigation, the court observes that it did not
contribute significantly to the ultimate success
of the plaintiffs. As the Court of Appeals for
the District of Columbia stated, "Obviously,
if an intervenor did nothing but simply show up
at depositions, hearings, and the trial itself,
and spend lots of time reading the parties'
documents, an award of attorneys' fees would be
inappropriate." Donnell, 682 F.2d at 249.
The evidence before the court indicates that such
were the boundaries of Brown Weston's
participation.
Brown Weston
argues in its reply brief that a denial of a fee
award would, in [*333] effect, penalize the firm
for the efficiency it demonstrated by not jumping
fully into the action and filing briefs of its
own. This argument, though, is based on the
erroneous assumption that the intervenors would
have recovered an award for such patently
duplicative efforts. In finding that the [**26]
intervenors are not entitled to an award of
attorney fees, this court is in no way penalizing
attorneys who rest on the satisfactory work of
lead counsel rather than "running up"
high billings of their own. Rather, the court
seeks to so fashion its judgments as to avoid
awards that might encourage counsel, whose
participation would not contribute significantly
to the success, to "jump on the [fees]
bandwagon."
Conclusion
For the
foregoing reasons, the court awards plaintiff
American Booksellers attorney fees of
eighty-seven thousand, three hundred sixteen
dollars and sixteen cents ($87,316.16), and
plaintiff Video Shack seven thousand eight
hundred sixty-two dollars and two cents
($7,862.02). The court makes no award on the
petition of intervenor-plaintiffs I.S.S.I.
Theatre, Inc. and West 38th Street Corporation.
[SEE
APPENDIX A IN ORIGINAL]
ENTRY NUNC
PRO TUNC (September 16, 1986)
SARAH EVANS
BARKER, Judge
This matter
is before the court upon its own initiative
relative to its August 29, 1986 entry fixing an
award of attorney fees in the above-captioned
cause.
Because the
August 29, 1986 award included a computational
error in the amount of expenses to be awarded
[**27] the plaintiffs for lead counsel Finley,
Kumble, Wagner, Heine, Underberg, Manley &
Casey ("Finley Kumble"), the court
hereby supplements its entry to correct that
error. This error resulted from the court's
employing an incorrect figure as the amount
requested rather than the correct total request
for expenses as set out in the Appendix to that
entry. Counsel for plaintiff American Booksellers
Association, Inc., Finley Kumble, is entitled to
an award of eleven thousand, four hundred
forty-one dollars and twenty-one cents
($11,441.21) rather than the amount of eleven
thousand, six hundred ninety-nine dollars and
sixty-six cents ($11,699.66) as specified in the
August 29, 1986 entry. Therefore, the total award
of attorney fees and expenses for Finley Kumble
is eighty-seven thousand, fifty-seven dollars and
seventy-one cents ($87,057.71).
It is so
Ordered this 16th day of September, 1986.
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