Copper Liquor, Inc. v. Adolph Coors Co.

• Decision Date: 23 August 1982
• Docket Number: No. 81-1358,81-1358
• Citation: 684 F.2d 1087
• Parties: 1982-2 Trade Cases 64,922, 1982-83 Trade Cases 65,079 COPPER LIQUOR, INC., et al., Plaintiff, Robert Earl Basham, Jr., Executor or the Estate of Harold Letcher, Deceased, Plaintiff-Appellee Cross-Appellant, v. ADOLPH COORS COMPANY, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1087

684 F.2d 1087

1982-2 Trade Cases 64,922, 1982-83 Trade Cases 65,079

COPPER LIQUOR, INC., et al., Plaintiff,

Robert Earl Basham, Jr., Executor or the Estate of Harold

Letcher, Deceased, Plaintiff-Appellee Cross-Appellant, v. ADOLPH COORS COMPANY, Defendant-Appellant Cross-Appellee.

No. 81-1358.

United States Court of Appeals, Fifth Circuit.

Aug. 23, 1982.

Leo N. Bradley, Earle D. Bellamy, II, Golden, Colo., for defendant-appellant cross-appellee.

James R. Warncke, San Antonio, Tex., Jimmie D. Oglesby, Midland, Tex., for plaintiff-appellee cross-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before RUBIN and REAVLEY, Circuit Judges, and HUNTER ^*, District Judge.

ALVIN B. RUBIN, Circuit Judge:

To the victor in an antitrust suit belongs the "cost of suit, including a reasonable attorney's fee." ¹ In this, the third appearance of this case before our court, we evaluate the reasonableness of costs and attorneys' fees awarded by the district judge on remand from, and according to the specific directions of, this court in an earlier appeal.

We find that the district court correctly construed and applied the instructions we gave in remanding the case, and that the amount allowed as attorneys' fees is supported by the record. We, therefore, affirm it. We find that, in arriving at this sum, the district judge acted within his discretion when he reduced the lodestar rate by 25%. However, we find no basis for a similar reduction in costs and expenses. Finally, we remand for a determination of the amounts allowable as reimbursement for costs and expenses because this amount was based on estimates and was not properly itemized or verified.

I.

Harold Letcher ² brought this antitrust action in 1970 against Adolph Coors Company ("Coors") to recover damages that allegedly resulted when a Coors distributor refused to sell Coors beer to Letcher's store. In 1973, a jury found Coors liable to Letcher and awarded him $101,011 in damages. The district judge trebled the damage award to $303,033 and awarded attorneys' fees of $75,000. In the first appeal to this court, we upheld the finding of liability under the antitrust laws, but remanded the case for further proceedings to determine whether the antitrust violation caused Letcher any injury, and, if so, the amount of that damage. We also vacated the award of attorneys' fees and directed that if, on remand, injury and damages were awarded, the district court should also award reasonable attorneys' fees. ³

At the second trial, the jury found that Letcher was injured by Coors's antitrust violation and awarded $15,000 in damages. The district judge held a hearing on the appropriate amount of attorneys' fees and on July 31, 1978, subsequent to that hearing, entered judgment against Coors for trebled damages of $45,000 and attorneys' fees of $45,000. On a second appeal, ⁴ the damage award was affirmed, but we determined that the "attorneys' fee award was so low in this case as to constitute an abuse of discretion," ⁵ and remanded the case for further proceedings relating to attorneys' fees.

Considering the case for the third time, the district judge entered an order on December 29, 1980, relating to attorneys' fees and costs prior to the time of the appeal in Copper Liquor II. The judge adopted the findings of fact made in his July 31, 1978, order concerning attorneys' fees and revised only his conclusions of law. He determined that the appropriate award for attorneys' fees and costs for the period up to July 31, 1978, was $244,687.50. ⁶ In March 1981, the district judge held a hearing to determine the appropriate amount of attorneys' fees and costs for work after July 31, 1978, relating to the appeal in Copper Liquor II and time spent thereafter on remand. The judge entered an order for attorneys' fees and costs during this period of $21,778.93, ⁷ making the total award of fees and costs $266,466.43. Both parties promptly appealed, Coors seeking a reduction in the amount awarded and Letcher seeking an increase.

I. ATTORNEYS' FEES

Judge Wisdom's thoughtful opinion in Copper Liquor II summarized the appropriate procedure for determining a reasonable attorneys' fee in the Fifth Circuit. We borrow from and condense that discussion here.

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), listed twelve factors that must be considered by a district court in this circuit in awarding a statutorily authorized attorneys' fee:

(1) The time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee (for similar work in the community), (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 similar cases.

The district judge is required to " 'explain the findings and reasons upon which the award is based, including an indication of how each of the twelve factors in Johnson affected his decision.' " Copper Liquor II, 624 F.2d at 581 (quoting Matter of First Colonial Corp. of America, 544 F.2d 1291, 1299-1300 (5th Cir. 1977)). In Copper Liquor II, we stated that, although the "district court's findings of fact are well developed(,) the order ... does not articulate the reasons for awarding attorneys' fees of $45,000." Id. at 582.

Of the twelve Johnson factors, Judge Wisdom stated that recent Fifth Circuit decisions suggested that four of the factors deserve "special heed": "(1) the time and labor involved, (5) the customary fee, (8) the amount involved and the results obtained, and (9) the experience, reputation, and ability of counsel." Id. at 583. These factors should be considered in the following framework:

(1) Ascertain the nature and extent of the services supplied by the attorney;

(2) Value the services according to the customary fee and quality of the legal work; and

(3) Adjust the compensation on the basis of the other Johnson factors that may be of significance in the particular case.

Id. (relying on First Colonial, 544 F.2d at 1299-1300). Johnson, thus interpreted, adopts a standard much like the lodestar method of the Second, ⁸ Third, ⁹ and District of Columbia ¹⁰ Circuits. ¹¹ The "lodestar" is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of the suit and the quality of representation. ¹²

In Copper Liquor II, we accepted the district court's factual findings as to the number of hours spent on the case by Copper Liquor's counsel and their customary fees; ¹³ however, we concluded that the "attorneys' fee award was so low in this case as to constitute an abuse of discretion" ¹⁴ because the district judge "acted on (the) improper assumption" that "he should deny attorneys' fees in excess of the award of damages." Copper Liquor II, 624 F.2d at 584. The opinion continued:

The district court's findings reveal that the remaining Johnson factors such as preclusion of other employment, time limitations imposed by the client, and the nature and length of the professional relationship with the client, are not of great significance. Nevertheless, the district court should have expressly stated this in his conclusions of law.

Id. (emphasis added).

Finally, we directed the district court to "compensate the plaintiff's counsel for the value of their services rendered in connection with this appeal." Id.

In this appeal, Coors asserts that the district judge "abused his discretion" in determining the number of hours used for the purpose of calculating the value of the services performed by plaintiff's attorneys and erroneously included an unreasonable amount of time spent before this lawsuit was ever filed, time spent without any corresponding description of services rendered, unnecessary duplication of effort, and time spent on unsuccessful claims and issues. As to the number of hours spent by Letcher's attorneys and the reasonable customary rate, Coors may not challenge the factual findings already accepted by us in Copper Liquor II. We there implicitly sustained the findings determining the number of hours spent by plaintiffs' counsel, and the reasonableness of the hourly fees. ¹⁵ The district judge's determinations as to the number of hours spent by Letcher's counsel after July 31, 1978, in preparation for Copper Liquor II and later on remand, and the customary fees for that period, however, are properly reviewable by us in this proceeding. Because these are findings of fact, the standard for review is not "abuse of discretion," but whether they are clearly erroneous. Fed.R.Civ.P. 52(a).

In assessing the attack on the total award as exorbitant and the counter-attack on it as inadequate, our appellate role is further limited by the discretion imparted to the trial judge in awarding attorneys' fees. ¹⁶ While the subsidiary fact findings are reversible only if clearly erroneous, a second limitation on our review of the total fee is set by the precept that its amount lies in the trial judge's discretion, and it is to be recalculated only if that discretion is abused. Johnson v. Georgia Highway Express, Inc., 488 F.2d at 720.

A. Amount of Time Spent

For the reasons we have set forth, the law of the case requires us to reject Coors's challenge to the findings as to time spent on work before the Copper Liquor II appeal, and we may consider its attacks only as to hours spent subsequent to July 31, 1978. Coors argues that this calculation was excessive because it...