Lindy Bros. Bldrs., Inc. of Phila. v. AMERICAN R. & SS CORP.
| Decision Date | 28 April 1972 |
| Docket Number | Civ. A. No. 41774 SC. |
| Citation | 341 F. Supp. 1077 |
| Parties | LINDY BROS. BUILDERS, INC. OF PHILA., et al., Plaintiffs, v. AMERICAN RADIATOR & STANDARD SANITARY CORPORATION et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Harold E. Kohn and Aaron M. Fine, Philadelphia, Pa., for Class Representatives.
Harold E. Kohn, Patrick T. Ryan and Edward W. Mullinix, Philadelphia, Pa., Thomas W. Mack, Washington, D. C., and Elwood S. Kendrick, Los Angeles, Cal., for Builder-Owner Settlement Committee.
John Edward Burke and Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., John A. Cochrane and Cochrane & Bresnahan, P.A., St. Paul, Minn., Howard M. Downs and Howard, Prim, Smith, Rice & Downs, San Francisco, Cal., C. Carleton Frederici and Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, Iowa, Paul R. Connolly and Williams, Connolly & Califano, Sidney
Harris and Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., Mark I. Harrison and Harrison, Myers & Singer, Phoenix, Ariz., Mitchell A. Kramer, Philadelphia, Pa., Jerrold E. Salzman and Freeman, Freeman & Salzman, Chicago, Ill., Paul D. Scanlon and Burkhardt, Arnavas & Bartl, Alexandria, Va., and Frederick D. Steinhardt and Travis, Warren, Nayer & Burgoyne, Detroit, Mich., for fee petitioners.
Josef D. Cooper and Friedman, Koven, Shapiro, Salzman, Koenigsberg, Specks & Homer, Chicago, Ill., Allen Horstman and Wooden, Stark, McLaughlin & Sterner, Indianapolis, Ind., Michael I. Miller and Isham, Lincoln & Beale, Chicago, Ill., for various settling plaintiffs.
William Simon and Howrey, Simon, Baker & Murchison, Washington, D. C., for claimants Humble Oil and Refining Co. and Friendswood Development Co.
William E. Willis and Sullivan & Cromwell, New York City, for full-line defendants.
Edward W. Mullinix and Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for short-line defendants.
Presently before the Court in this multidistrict antitrust litigation are various applications seeking substantial allowances of attorneys' fees and expenses. These applications have been filed in connection with the Court's consideration of the final approval of a settlement of the claims of members of a national class of builder-owners against the defendants herein who are manufacturers of plumbing fixtures.1 Inasmuch as this litigation has included claimants at various different levels of the chain of distribution of plumbing fixtures, separate settlements have been negotiated between the settling defendants involved and separate classes of claimants. The settlement presently before the Court, compromising the claims of a nation-wide class of builder-owners, involves the largest amount and the largest number of claimants in this litigation. The result has been that the number of and the amount of the fee applications filed are far greater and the issues involved have been much more hotly contested than those in any of the other settlements.
The plumbing fixture antitrust litigation includes the largest number of cases ever transferred to a single district by the Judicial Panel for Multidistrict Litigation for consolidated pre-trial proceedings under 28 U.S.C. § 1407. At last count, some 370 cases have been either commenced in this District or transferred here by the Panel. The nature and history of this massive litigation has previously been fully discussed in opinions of this Court and of the Panel. These opinions are listed in Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corporation, 323 F.Supp. 364 (E.D.Pa. 1970), at page 365, footnote 1.2
Insofar as the matters presently before the Court are concerned, no more than brief mention of the other settlements is necessary. At a hearing held on December 7, 1970 in connection with Settlement Order No. 1, this Court approved a settlement for a national class of wholesalers in the amount of $1,000,000. Applications for fees and expenses were likewise considered, and various allowances were approved.3
Although the wholesalers' settlement had been unopposed, a proposed $2,000,000 settlement for a nation-wide class of plumbing and other contractors was vigorously opposed by a small number of plaintiffs. In Settlement Order No. 2, this Court gave preliminary approval to that proposed settlement. Certain plaintiffs thereupon filed a motion to vacate that Order. Following a hearing, such motion was denied for the reasons set forth in this Court's opinion in Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corporation, 323 F.Supp. 364 (E.D.Pa.1970). Subsequently, another hearing was held to consider final approval of the contractors' settlement and various applications for the allowance of attorneys' fees and expenses to be paid from that fund. Again, there was opposition to the settlement. For the reasons stated in Philadelphia Housing Authority v. American Radiator and Standard Sanitary Corporation, 322 F.Supp. 834 (E.D. Pa.1971), this Court gave final approval to the contractors' settlement, awarded certain attorneys' fees and expenses and denied certain other applications for fees.4
An appeal was thereupon taken by certain plaintiffs from this Court's Order giving final approval to the contractors' settlement and also from this Court's refusal to grant a fee to one of the petitioning attorneys. In Ace Heating and Plumbing Company v. Crane Company, 453 F.2d 30 (3rd Cir.1971), the Third Circuit affirmed the Court's Order approving the settlement but modified the fee allowances to include an additional $3000 fee to be paid to attorney Lawrence Walner, for his services in connection with the creation of the settlement fund.
Following approval of the contractors' settlement, various public bodies' settlements were next presented to the Court. Unlike the other settlements in this litigation, the public body cases were not settled under a single agreement between plaintiffs and defendants. The full-line defendants had offered to pay $1,750,000 to settle all public body claims, and the short-line defendants had contributed various sums to the settlement funds thereby created. Final approval has now been given to most of these settlements which were separately presented to the Court, and various requested attorneys' fees and expenses have been allowed.
On May 17, 1971, a hearing was held to consider preliminary approval for the proposed builder-owner settlement. This settlement fund consisted of $21,500,000 from the full-line settling defendants and $1,400,000 from the short-line settling defendants, or an original total of $22,900,000 plus interest. However, the parties had agreed that interest would accrue from April 1, 1970 on the portion of the fund paid by the full-line defendants and from September 1, 1970 on the portion of the fund paid by the short-line defendants. It is estimated that as of May 31, 1972, the aggregate amount of the settlement fund will be some $25,955,000.
On May 28, 1971, this Court entered Settlement Order No. 21 which gave preliminary approval to the proposed builder-owner settlement and appointed the plaintiffs in Civil No. 41,774 as the Class Representatives. A Committee of attorneys was also appointed by the Court to carry out the provisions of this Order.5 Thereafter, the plaintiffs in Arntz Bros. v. American Radiator and Standard Sanitary Corporation, Civil No. 70-276, represented by Howard M. Downs, filed a motion to vacate Settlement Order No. 21. Subsequently, Mr. Downs accepted the settlement on behalf of the plaintiffs that he represented and withdrew his motion.
On April 7, 1972, a hearing was held to consider whether the builder-owner settlement should be finally approved, and whether applications for attorneys' fees and expenses should be granted. The only opposition to final approval was that of Mr. Downs who, although he had previously accepted the settlement on behalf of his clients and had even filed an application for the allowance of a fee and expenses, repeated certain objections that he had made earlier and withdrawn. After hearing argument, the Court overruled these objections and indicated that it would give final approval to the settlement as submitted. Findings of fact, conclusions of law and other necessary orders will be hereafter entered approving this settlement.
At the April 7, 1972 hearing, the Court next heard arguments in support of and in opposition to the various applications for attorneys' fees and expenses that had been filed. It is the sharp conflicts resulting from the substantial fees and expenses claimed which the Court is now called upon to resolve.
Applications for the allowance of fees and expenses from the settlement fund are of three different types:
(1) A petition filed by the Settlement Committee seeking reimbursement of its expenses in administering the settlement in the amount of $223,119.23.
(2) A petition filed by Harold E. Kohn and David Berger jointly, as attorneys for the Class Representatives, for the award of counsel fees and expenses. From the settlement fund, they seek reimbursement of their expenses amounting to $42,380 and attorneys' fees aggregating some $3,036,825. (The fees have been computed on the basis of figures supplied to the Court as of April 18, 1972).
(3) Eleven petitions filed by attorneys who claim to have contributed to the creation of the settlement fund and who seek fees and expenses to be paid from such fund.6 Each of these attorneys represents plaintiffs who have filed suits in this litigation and who will therefore receive distributions from the fund in varying amounts. The attorneys involved and the amounts of the fees plus expenses claimed are as follows:
1. John Edward Burke $100,000.00 plus $ 8,619.00
2. John A. Cochrane and 116,000.00 plus 5,997.17
Floyd E. Boline
jointly
3. Paul R. Connolly A reasonable
fee plus 28,194.46
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