Farmington Dowel Products Co. v. Forster Mfg. Co.

• Decision Date: 11 March 1969
• Docket Number: Civ. No. 7-73.
• Citation: 297 F. Supp. 924
• Parties: FARMINGTON DOWEL PRODUCTS CO., Plaintiff, v. FORSTER MFG. CO., Inc. and Theodore R. Hodgkins, Defendants.
• Court: U.S. District Court — District of Maine

297 F. Supp. 924

FARMINGTON DOWEL PRODUCTS CO., Plaintiff, v. FORSTER MFG. CO., Inc. and Theodore R. Hodgkins, Defendants.

Civ. No. 7-73.

United States District Court D. Maine, S. D.

March 11, 1969.

C. Keefe Hurley, Earle C. Cooley, Hale & Dorr, Boston, Mass., John A. Mitchell, John W. Philbrick, Portland, Me., for plaintiff.

Robert W. Meserve, John R. Hally, Nutter, McClennen & Fish, Boston, Mass., Joseph B. Campbell, Augusta, Me., Richard A. Tilden, New York City, for defendants.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

This is a private action brought pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15 (1964), to recover treble damages for alleged violations of Section 2 of the Sherman Act, 15 U.S.C. § 2 (1964), and Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13(a) (1964). The jury has returned a verdict for the plaintiff in the sum of $109,100 single damages, and judgment is to be entered for the plaintiff in the trebled amount of $327,300. Presently before the Court is plaintiff's motion that there be included in the judgment "the cost of suit, including a reasonable attorney's fee," as provided in Section 4 of the Clayton Act. Plaintiff seeks an attorney's fee in the amount of $109,100, and as its cost of suit, exclusive of an attorney's fee, the sum of $6,920.77. Defendants object to the assessment of an attorney's fee in excess of $50,000 and to the allowance of any costs other than those normally taxable under Fed.R.Civ.P. 54(d) and 28 U.S.C. § 1920 (1964). Defendants also oppose the allowance of any statutory attorney's fee because of the fact, first disclosed at the hearing on the present motion, that plaintiff has agreed to pay to its counsel the entire amount of any attorney's fee awarded by the Court, in addition to a contingent fee equal to one-third of the trebled damages recovered. The Court will consider, first, what would be a reasonable attorney's fee to be awarded plaintiff without regard to the fee arrangement; second, what, if any, fee should be allowed in this case in view of the nature of plaintiff's fee arrangement; and, finally, what, if any, costs plaintiff is entitled to recover in this action other than those normally taxable by the Clerk.

I. Amount of Reasonable Attorney's Fee

Counsel are in agreement that the question of the amount of attorney's fee to be allowed the successful plaintiff in a private antitrust action is addressed to the sound discretion of the trial court. Montague & Co. v. Lowry, 193 U.S. 38, 48, 24 S.Ct. 307, 48 L.Ed. 608 (1904); Hanover Shoe, Inc. v. United Shoe Machinery Corp., 245 F.Supp. 258, 302 (M. D.Pa.1965), vacated on other grounds, 377 F.2d 776 (3d Cir. 1967), aff'd in part on other grounds, rev'd in part on other grounds, 392 U.S. 481, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968). They further agree that the factors to be considered in making an award include: (1) whether plaintiff's counsel had the benefit of a prior judgment or decree in a case brought by the Government; (2) the standing of counsel at the bar—both counsel receiving the award and opposing counsel; (3) the time and labor spent by counsel; (4) the magnitude and complexity of the litigation; (5) the responsibility undertaken by counsel; (6) the amount recovered; and (7) the knowledge the court has of the conferences, the arguments that were presented and the work shown by the record to have been done by the attorneys for the plaintiff prior to trial. Hanover Shoe, Inc. v. United Shoe Machinery Corp., supra; Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 221 (9th Cir.), cert. denied, 379 U.S. 880, 85 S.Ct. 143, 13 L.Ed.2d 87 (1964); Noerr Motor Freight, Inc. v. Eastern Railroad Presidents Conference, 166 F.Supp. 163, 168-169 (E.D.Pa.1958), aff'd, 273 F.2d 218 (3d Cir. 1959), rev'd on other grounds, 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961)¹. It is also not disputed that while these factors provide a helpful standard in fixing such fees, they do not furnish a precise measure. A "reasonable attorney's fee" can only be determined with reference to the particular case, Twentieth Century Fox Film Corp. v. Goldwyn, supra; Noerr Motor Freight, Inc. v. Eastern Railroad Presidents Conference, supra, and the ultimate test to be applied must be what, in the judgment of the trial court, "it would be reasonable for counsel to charge a victorious plaintiff. The rate is the free market price, the figure which a willing, successful client would pay a willing, successful lawyer." Cape Cod Food Products, Inc. v. National Cranberry Ass'n, 119 F.Supp. 242, 244 (D.Mass.1954) (Wyzanski, J.); Hanover Shoe Inc. v. United Shoe Machinery Corp., supra. As stated by the court in Darden v. Besser, 257 F.2d 285, 286 (6th Cir. 1958), "The object always, of course, is to allow just and fair compensation for the services rendered, considering the time and skill employed, the experience brought to bear, and the result achieved."

Having in mind these principles, the Court has considered the following facts disclosed by the record in the present case as they bear upon the amount of the attorney's fee to be awarded. The action was a substantial one. It was a difficult and hard-fought case, which took 19 days to try and required extensive pretrial proceedings over the 6½ year period from the filing of the complaint on February 23, 1962 to the start of the trial on November 6, 1968. In addition to the high degree of professional competence and skill required for the presentation to the jury of a private antitrust action, the action involved several novel and difficult legal questions, which had not been authoritatively settled. These included the applicability of the tolling provisions of Section 5(b) of the Clayton Act, 15 U.S.C. § 16(b) (1964) to a proceeding instituted by the Federal Trade Commission against the defendants and the prima facie evidence effect, under the provisions of Section 5(a) of that Act, 15 U.S.C. § 16(a) (1964), of the cease and desist order entered by the Commission in that proceeding. These questions were vigorously contested and required extensive legal research, briefing and oral argument.

Both chief counsel for the plaintiff and chief counsel for the defendants are experienced and competent antitrust lawyers, who are recognized as outstanding in this field, not only in Boston, Massachusetts, where their offices are located, but throughout the country as a whole. There can be no question as to the responsibility undertaken by plaintiff's counsel, or as to the skill they demonstrated in meeting the highly competent defense and prosecuting the action to a successful conclusion.

Counsel actually and necessarily expended a great deal of time and effort in connection with the preparation and trial of this case. In order to prepare their case for trial, counsel were required to make a lengthy investigation of facts and law, to complete a detailed review and analysis of the record of the Federal Trade Commission proceeding, and to engage in extensive discovery by means of requests for admissions, interrogatories, motions for the production of documents, and depositions. Pretrial conferences, hearings on contested discovery motions, and oral argument of controverted legal questions required twelve appearances before the Court at Portland. Detailed pretrial and trial briefs, memoranda and requests for instructions were filed. Interviews with prospective witnesses in Maine, depositions in Maine and Florida, and conferences with representatives of the Federal Trade Commission in Washington took a further eleven days of counsel's time. The conduct of the trial effectively precluded counsel from handling other matters for at least the month of November and the first week of December 1968.

From February 26, 1962 through December 19, 1968 plaintiff's chief counsel, C. Keefe Hurley, Esq., a senior partner in the Boston law firm of Hale & Dorr, spent 752 hours in connection with the case. Earle C. Cooley, Esq., of Mr. Hurley's firm spent 1,257.6 hours on the case: 175.8 hours as an associate from April 9, 1962 to June 30, 1963; 542.4 hours as a junior partner from July 1, 1963 to June 30, 1968; and 539.4 hours as a senior partner thereafter. Other associates in this firm spent 136.6 hours on the case. Senior partners' time of local counsel, whose appearance of record and attendance at all court proceedings in association with non-resident counsel is required by Local Rule 3, amounted to 392.5 hours.² Associates' time of local counsel amounted to 3.75 hours.

The amount recovered is substantial, and although plaintiff's counsel were permitted to offer in evidence the final order in the prior Federal Trade Commission proceeding, its effect was limited to the price discrimination claim, and it was of questionable benefit to the plaintiff in establishing the attempted monopoly claim, to which $106,800 of the jury's single damage award was attributable. Compare Cape Cod Food Products, Inc. v. National Cranberry Ass'n, supra, with Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F.2d 846, 858-859 (8th Cir.), cert. denied, 343 U.S. 942, 72 S.Ct. 1035, 96 L.Ed. 1348 (1952). There can be little doubt that, despite the handicap imposed by the limited resources available to counsel in the preparation of the case, plaintiff was "completely, or substantially completely, victorious" in achieving the award it did. Union Leader Corp. v. Newspapers of New England, Inc., supra.

Taking all these matters into consideration, the Court concludes that the sum of $85,000 would be a reasonable attorney's fee under the circumstances of this case.³

The Court is aware that a number of the cases which discuss attorney's fees in private antitrust actions have appeared to be guided, at least in part, by a percentage of the single or trebled damages recovered. See, e. g., Twentieth Century-Fox Film Corp. v. Brookside...