Brown v. Pro Football, Inc., Civ. A. No. 90-1071 (RCL).
| Decision Date | 01 March 1994 |
| Docket Number | Civ. A. No. 90-1071 (RCL). |
| Citation | 846 F. Supp. 108 |
| Parties | Anthony BROWN, et al., Plaintiffs, v. PRO FOOTBALL, INC., d/b/a Washington Redskins, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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Joseph A. Yablonski, Yablonski, Both & Edelman, Washington, DC, for plaintiffs.
Peter J. Nickles, Covington & Burling, Washington, DC, for defendants.
This case comes before this court on plaintiffs' motion for reconsideration of this court's order of December 13, 19931 and on the parties' supplemental briefings requested by that order.
Having considered plaintiffs' motion to reconsider, defendants' opposition, and plaintiffs' reply, the motion to reconsider shall be granted in part.
Having considered plaintiffs' supplemental memorandum on their request for fees and costs, defendants' response, and plaintiffs' reply, and the entire record herein, this court will award plaintiffs $1,744,578.41 in attorney's fees and litigation costs.
Plaintiffs ask this court to reconsider its refusal to allow expenses for defendants' witnesses and its refusal to allow compensation for the trial time of three of plaintiffs' lawyers. Each of these two decisions is reconsidered in turn.
Plaintiffs request reconsideration of this court's refusal to tax the expenses of defendants' witnesses that plaintiffs incurred. (Mem. Op. 839 F.Supp. 905, 916-17.) Plaintiffs did not explain in their original pleadings why they were paying the costs of defendants' witnesses' in the first place. Nor did plaintiffs submit statements of defendants' witnesses' expenses or the number of days the witnesses attended proceedings in this case. Without this information, this court could not award plaintiffs the expenses they sought.
In their motion for reconsideration, plaintiffs have corrected these failings. They have explained that they paid the expenses of defendants' witnesses as part of a cost-saving agreement to bring witnesses to counsel, rather than vice-versa, for depositions. Defendants agreed to produce four witnesses for plaintiffs' depositions in Washington, D.C., and plaintiffs agreed to pay their travel costs and a per diem fee for each witness. Plaintiffs have submitted a copy of an August 17, 1992, letter from plaintiffs' counsel to defendants' counsel requesting defendants' witnesses' fees and expenses as follows :
Witness Transportation Per Diem Boot2
Expenses
Ruocco $ 280.00 $ 40.00 $110.00
Bussert $ 280.00 $ 40.00 $110.00
Sullivan $ 261.00 $ 40.00 $110.00
Young $ 343.00 $ 40.00 $110.00
______________ ________ _______
Total: $1,164.00 $160.00 $440.00
Plaintiffs paid the total — $1,764.00 — to defendants the next day.
The parties' economical agreement is an impressive example of cooperation between parties to keep litigation costs down, especially when the party that is incurring the costs anticipates thrusting the costs on another party under a fee-shifting statute. More arrangements like this in future cases could make litigation more efficient and cost-shifting more fair.
Having discovered what costs are included in plaintiffs' request, this court will award plaintiffs their requested $1,764.00. The per diem costs are within the $40 statutory cap. 28 U.S.C. § 1821(b). The transportation costs — which are reasonable, well-documented with travel invoices , and uncontested — shall also be allowed. 28 U.S.C. § 1821(c) (). The $440 boot that defendants contributed to equalize the bargain encouraged this highly commendable cost-saving agreement between the parties, and it shall also be allowed.
Concededly, boot is not one of the enumerated costs that Congress has authorized this court to shift under 28 U.S.C. § 1821, nor is boot one of the traditional costs of litigation shifted under the Clayton Act. Traditionally, after all, opposing counsel have tried to ruin each other with escalating legal costs, not to cooperate in keeping costs down. However, in authorizing the shifting of traditional costs, Congress could not have meant that only the wasteful and expensive costs that counsel traditionally incur may be shifted, and that the small boot designed to encourage innovative cost-saving arrangements of enlightened parties may not be shifted. Such a rule might have the perverse effect of discouraging efficient arrangements, and Congress could not have intended that.
Plaintiffs also request reconsideration of this court's refusal to shift the fees of three attorneys who sat at counsel table during the trial. The Order of December 13, 1993 permitted recovery for the fees of plaintiffs' lead counsel — Messrs. Yablonski, Edelman, and Both — for their time at trial and in trial preparation, but disallowed the fees for the trial time of lawyers Colwell, Moser, and Kaler. (Mem. Op. at 915.)
Plaintiffs' original fee application pleading left the court with the impression that Messrs. Colwell, Moser, and Kaler attended the trial either out of curiosity or for training, and that they performed only a few minimal clerical chores during trial.3 In their supplemental declaration accompanying their motion to reconsider, however, plaintiffs have detailed the important duties that Messrs. Colwell, Moser, and Kaler performed during trial.4 Mr. Moser, for example, "accessed several thousand pages of Plaintiffs' exhibits, in hard copy form, on transparencies and in blown-up form and coordinated those exhibits with the witness who was testifying and worked with the Court reporter in the preparation of, delivery, and review of daily transcripts." Mr. Kaler "had responsibilities relating principally to the designation and reading of depositions." Mr. Colwell "had the principal responsibility for jury instructions and for coordinating ongoing trial developments with the testimony of Dr. Hamilton." Messrs. Moser's and Kaler's presence at trial "assured a smooth, orderly presentation of proof' in a case involving about fifteen witnesses. (Supplemental Decl. of Joseph A. Yablonski at ¶ 24.) Defendants contest none of these characterizations of the work of these three.
These detailed and unchallenged task descriptions reveal that contrary to the court's original impression, Messrs. Colwell, Moser, and Kaler attended trial to keep a complex case running smoothly, not merely to observe or to satisfy curiosity. Yet they did not do enough to warrant the full rates of lawyers for their time at trial, and plaintiffs have not argued that their performance of such tasks was enriched by their special knowledge of the case. Accordingly, they shall be compensated for only seventy-five percent of their time at trial. See, e.g., Action on Smoking and Health v. C.A.B., 724 F.2d 211, 222-23 (D.C.Cir.1984) "ASH" (reducing hours by twenty-five percent).
The new facts that plaintiffs have provided in their motion for reconsideration should have been included in their original fee application. Making piecemeal additions to the record in reconsideration motions is not the proper way to litigate. The only reason the court is willing to consider such late additions in this case is that the court had already agreed to consider supplemental memoranda on other issues. Absent such very exceptional circumstances, such piecemeal litigation will not be tolerated.
The Order of December 13, 1993 gave the parties the opportunity to conduct further discovery and to file supplemental memoranda in order to help this court determine the reasonable hourly rate to which plaintiffs' counsel are entitled under Section 4 of the Clayton Act, 15 U.S.C. § 15(a), the number of hours for which plaintiffs should be compensated, and whether plaintiffs should be compensated for investigation costs. Each of these issues is considered below in light of the parties' well-argued supplemental briefs.
The keystone issue of this case is whether plaintiffs' counsel have met the two-pronged test of Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516 (D.C.Cir.1988) (en banc) "SOCM". Under SOCM, plaintiffs must show first, that the work their counsel have done in this case promotes the public interest, and second, that their counsel have charged below-market rates which reflect counsels' non-economic goals. If plaintiffs do not meet both of these tests, they may recover nothing more than the rates that their counsel have charged them. If plaintiffs do meet both of these tests, they are entitled to the prevailing market rates for the legal work their counsel performed.
The original pleadings did not provide enough information for this court to determine whether plaintiffs had satisfied the second prong. The supplemental memoranda, which are supported with updated and extensive documentation, have provided a wealth of information to help the court.5 Having reviewed and analyzed the matrices, affidavits, and surveys of the supplemental memoranda, this court concludes that plaintiffs' counsel generally received below-market rates.
The rates that plaintiffs' lead counsel, Mr. Joseph A. Yablonski, has charged plaintiffs in this case6 are less than the Laffey matrix's rates7 and the U.S. Attorney's fee matrix rates.8 Throughout the Brown litigation, he charged plaintiffs less than the market rates recorded in the two matrices.9
It is true that other information indicates that Mr. Yablonski's rates are not lower than the market rates, but squarely within the range of market rates. Newspaper surveys submitted as evidence show a very...
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