Brown v. Pro Football, Inc., Civ. A. No. 90-1071 (RCL).

• Decision Date: 13 December 1993
• Docket Number: Civ. A. No. 90-1071 (RCL).
• Citation: 839 F. Supp. 905
• Parties: Antony BROWN, et al., Plaintiffs, v. PRO FOOTBALL, INC., d/b/a Washington Redskins, et al., Defendants.
• Court: U.S. District Court — District of Columbia

839 F. Supp. 905

Antony BROWN, et al., Plaintiffs, v. PRO FOOTBALL, INC., d/b/a Washington Redskins, et al., Defendants.

Civ. A. No. 90-1071 (RCL).

United States District Court, District of Columbia.

December 13, 1993.

COPYRIGHT MATERIAL OMITTED

Joseph A. Yablonski, Daniel B. Edelman and John F. Colwell, Yablonski, Both & Edelman, Washington, DC, for plaintiffs.

Peter J. Nickles, Gregg H. Levy, Sonya D. Winner and Jerome D. Sorkin, Covington & Burling, Washington, DC, for defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before this court on plaintiffs' motion for an award of attorney's fees under Section 4 of the Clayton Act, 15 U.S.C. § 15(a).¹ Having considered the extensive pleadings and memoranda of both parties, this court shall order further discovery in order to determine the reasonable hourly rate to which plaintiffs' counsel is entitled.

I. BACKGROUND

The case underlying this attorney's fee litigation was an antitrust action brought by a class of professional football players who played on developmental squads of the twenty-eight National Football League teams. The class sued the twenty-eight teams of the National Football League (collectively the "NFL") and the NFL itself for fixing salaries. Plaintiffs prevailed, and a jury verdict awarded plaintiffs $30,349,642.00.

Plaintiffs were represented by Mr. Joseph A. Yablonski, lead counsel and a member of the bar for 27 years; Daniel B. Edelman, who graduated from law school in 1969; John F. Colwell, who graduated from law school in 1985; and Charles R. Both, who graduated from law school in 1968 and who performed discrete tasks in this case. The law firm of Yablonski, Both & Edelman hired two associates to work on the pretrial and trial of Brown: James C. Moser and Robert G. Kaler.

Plaintiffs claim $1,594,367.50 in attorney's fees,² $142,397.51 in litigation expenses,³ and at least $21,762.50 in fees and costs incurred in this fee litigation.⁴ Defendants concede that plaintiffs are entitled to a reasonable attorney's fee,⁵ but contest the amount. The issue in this case is the amount of fees to which plaintiffs are entitled.

II. ATTORNEY'S FEES

"The initial estimate of a reasonable attorney's fee" — the so-called lodestar fee — "is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1544, 79 L.Ed.2d 891 (1984) (citations omitted).⁶ To determine the reasonable attorney's fee in this case, this court will first discuss the reasonable hourly rate and then turn to the reasonableness of the number of hours claimed.

A. Reasonable Hourly Rate

The parties appear to agree that plaintiffs' counsel is entitled to a "reasonable attorney's fee" under the Clayton Act. It is an axiom of attorney's fee law that a "reasonable" attorney's fee award is one that "yields the same level of compensation that would be available from the market." Missouri v. Jenkins, 491 U.S. 274, 286, 109 S.Ct. 2463, 2470, 105 L.Ed.2d 229 (1989).⁷ The parties disagree on what plaintiffs' counsel could have earned in the marketplace for the legal services they performed in Brown. More fundamentally, the parties dispute what constitutes the best evidence of what plaintiffs' counsel could have earned in the marketplace for that work.

Defendants contend that plaintiffs' counsels' established billing history constitutes the best evidence of what they could have earned in the market for their services in this case. Defendants rely on the well-established presumption that a firm's established billing rate is the best evidence of what counsel could have earned in the market. See Laffey v. Northwest Airlines, Inc., 746 F.2d 4, 24-25 (D.C.Cir.1984), overruled in part on other grounds, Save Our Cumberland Mountains, Inc., v. HodelSOCM, 857 F.2d 1516 (D.C.Cir.1988). Defendants claim that plaintiffs' lead counsel's established billing rate was about $295 per hour in 1993, and defendants concede no more liability than that.⁸

Plaintiffs, by contrast, contend that their counsel lack a relevant billing history. Absent a relevant billing history, the best evidence of what their counsel could have earned in the market — that is, the best evidence of an appropriate fee award — is a collection of matrices, affidavits, and other evidence presented by plaintiffs recording the prevailing rates charged by similarly experienced lawyers for similar legal services in the District of Columbia. The matrices and other evidence produced by plaintiffs would establish plaintiffs' lead counsel's hourly rate at about $325-$340 in 1993.⁹ Plaintiffs' counsel lacks a relevant billing history, plaintiffs argue, on two alternative grounds. The first is based on this Circuit's en banc decision in SOCM; the second invokes the Supreme Court's decision in Blum. The court will consider each in turn.

1. SOCM

Plaintiffs' first argument is that their counsel does have a billing history, but it is deflated by counsels' long history of altruistically charging worthy clients reduced rates. Because of their altruism, counsels' billing history does not reflect what they could be earning in the market. Plaintiffs invoke this Circuit's en banc determination that if a firm's billing history does not reflect the firm's market value because the firm has intentionally lowered its rates for non-economic, public-spirited reasons, courts must fix fee awards according to reliable matrices and other evidence that indicate the rates prevailing for the services of similarly experienced lawyers in the relevant market of legal services. See SOCM, 857 F.2d at 1524.

To succeed under this argument, plaintiffs' counsel must show that the work they have done in this case is in the public interest and that the fees they have accepted for this type of work are below the market rate. See SOCM, 857 F.2d at 1524. Plaintiffs have failed to establish the second prong.¹⁰

Plaintiffs assert that their counsels' rates are "well below the rates charged by attorneys of comparable skill, experience and reputation in this community." (Pls.' Supplemental Mem., at 4.) Yet plaintiffs have produced scant evidence to support this claim. Plaintiffs rely too heavily on the fact that the fees of defense counsel are higher than theirs, overlooking the fact that defense counsel is only one firm in town and that no single firm's billing rates are presumptively representative of all similar firms across the city.¹¹ Plaintiffs also refer this court to their "answers to interrogatories" for supporting evidence that their customary fees are below the market rate. Yet nothing in plaintiffs' Answers and Objections to Defendants' Interrogatories (June 11, 1993) indicates that counsel charged certain clients — particularly antitrust clients like the Brown class — belowmarket rates.

Instead of making their required showing that they charge below-market rates, plaintiffs appear to be seeking to circumvent the requirement altogether.¹² In plaintiffs' memoranda, plaintiffs' lead counsel, Mr. Yablonski, surprisingly misconstrues SOCM, a case he successfully argued before this Circuit en banc. Under Mr. Yablonski's incorrect reading of SOCM, "statutory fees in the District of Columbia federal courts should be awarded based upon the rates charged for such services in the community, not by counsel's own billing rates." First Supplemental Decl. of Joseph A. Yablonski, at ¶ 2. Mr. Yablonski's reading omits the crucial limitation of SOCM: Counsel may be awarded the prevailing market rates instead of counsels' own billing rates only when counsels' own billing rates have been lowered below market value out of noneconomic, public interest motives.¹³ See SOCM, 857 F.2d at 1524 ("the prevailing market rate method ... shall apply ... to those attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals.") (emphasis added).

This Circuit has made this limitation of SOCM clear in Goos v. National Association of Realtors, 997 F.2d 1565 (D.C.Cir.1993). In that case, a client, Ms. Goos, relied on SOCM in seeking a fee award based not on her lawyer's contractual rate but on a matrix of prevailing market rates. The Goos court refused to award the matrix-based rate because "there was nothing in the record ... to suggest that Ms. Goos's attorney offered her a discounted rate for altruistic reasons." Goos, 997 F.2d at 1569 (emphasis added). "Absent evidence of a discount," the Goos court refused to disturb the district court's decision not to award the prevailing market rate.¹⁴

Perhaps plaintiffs have mistakenly assumed that because the SOCM court found in 1988 that Mr. Yablonski's billing practices satisfied the second prong of SOCM,¹⁵ plaintiffs need not prove that again to this court. Yet evidence that, in 1988, Mr. Yablonski habitually lowered his rates for worthy clients does not perpetually establish that Mr. Yablonski will always keep his rates low for worthy clients. Plaintiffs are still required to show in this case that nothing has materially changed, i.e., that their counsel still charges below-market rates out of public interest motives.

Plaintiffs may file supplemental memoranda to show that their counsel (Mr. Yablonski and the others) continue to altruistically lower their rates below market value for their antitrust clients. However, because plaintiffs have not made this showing in their present pleadings, this court cannot now find that they have satisfied the second prong of SOCM. Thus, based on the evidence currently before this court, plaintiffs' first argument that its evidence of prevailing market rates are the best evidence of a reasonable fee award fails.

2. Blum

Plaintiffs may still invoke their alternative ground to persuade this court to rely on matrices of prevailing market rates as the best evidence of a reasonable fee award. Instead of trying to show that their counsel has a...