Handgards, Inc. v. Ethicon, Inc.

• Decision Date: 13 December 1982
• Docket Number: No. C-49451 SAW.,C-49451 SAW.
• Citation: 552 F. Supp. 820
• Parties: HANDGARDS, INC., a corporation, Plaintiff, v. ETHICON, INC., a corporation, Defendant.
• Court: U.S. District Court — Northern District of California

552 F. Supp. 820

HANDGARDS, INC., a corporation, Plaintiff, v. ETHICON, INC., a corporation, Defendant.

No. C-49451 SAW.

United States District Court, N.D. California.

December 13, 1982.

Blecher & Collins, Maxwell M. Blecher, Consuelo S. Woodhead, Los Angeles, Cal., for plaintiff.

David F. Dobbins, Dunne, Phelps, Mills & Jackson, San Francisco, Cal., Thomas C. Morrison, Patterson, Belknap, Webb & Tyler, New York City, for defendant.

ORDER DENYING MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT, FIXING THE APPLICABLE RATES AND PERIODS OF INTEREST ON THE JUDGMENT, AND AWARDING ATTORNEY'S FEES

WEIGEL, District Judge.

The first trial of this antitrust action resulted in a jury award on March 1, 1976, of $6,219,000 after trebling. On appeal, the Court of Appeals for the Ninth Circuit reversed the judgment on the grounds of error in the trial court's instructions to the jury and remanded for a new trial. See Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986 (9th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980). On August 6, 1982, following a new trial, a jury awarded plaintiff damages after trebling of $10,761,993. Defendant moves for judgment notwithstanding the verdict or, in the alternative, for a new trial. Plaintiff moves the Court to fix the applicable rates and periods of interest on the judgment and to award attorney's fees.

Defendant's Motion for Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial

A motion for judgment notwithstanding the verdict is properly granted only "if, without accounting for the credibility of the witnesses, * * * the evidence and its inferences, considered as a whole and viewed in the light most favorable to the nonmoving party, can support only one reasonable conclusion — that the moving party is entitled to judgment notwithstanding the adverse verdict." William Inglis & Sons Baking Co. v. ITT Cont. Baking Co., 668 F.2d 1014, 1026 (9th Cir.1982). A new trial is appropriate if "the jury's verdict was clearly contrary to the weight of the evidence." Id. at 1027. The record in this case reasonably supports the jury's verdict. Consequently, defendant is entitled to neither judgment notwithstanding the verdict nor a new trial.

Plaintiff's Motion to Fix the Applicable Rates and Periods of Interest on the Judgment

The parties agree that plaintiff is entitled to post-judgment interest at the lawful rate from the date of the present judgment, August 6, 1982. 28 U.S.C. § 1961 provides that "interest should be allowed on any money judgment in a civil case recovered in a district court." For periods prior to October 1, 1982, interest is to be determined "at the rate allowed by state law." Id. (1982). 28 U.S.C. § 1961 was recently amended to provide, effective October 1, 1982, that "such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. * * *" Section 302 of the Federal Court Improvements Act of 1982, P.L. 97-164, 96 Stat. 55.

The parties differ, however, over whether plaintiff should receive interest on the amount of the first judgment from the date of its entry on March 1, 1976. It is well settled that interest on that part of a judgment affirmed on appeal should be computed from the date of the judgment's initial entry. See Kneeland v. American Loan & Trust Co., 138 U.S. 509, 511, 11 S.Ct. 426, 427, 34 L.Ed. 1052 (1891); Lew Wenzel & Co. v. London Litho Supply Co., 563 F.2d 1367, 1369 (9th Cir.1977); Perkins v. Standard Oil, 487 F.2d 672, 676 (9th Cir.1973); United States v. Hougham, 301 F.2d 133, 134-35 (9th Cir.1962).

The Court of Appeals for the Ninth Circuit has recently expanded this rule in Mt. Hood Stages, Inc. v. Greyhound Corp., 616 F.2d 394 (9th Cir.1980), and Twin City Sportservice v. Charles O. Finley & Co., 676 F.2d 1291 (9th Cir.1982). In Mt. Hood, the Supreme Court reversed in part the district court's award of damages on the ground that the relevant statute of limitations had expired, and remanded for determination of whether tolling of the statute was justified on equitable principles. See Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978). The district court on remand found that equitable tolling was justified, and awarded the same amount of damages it had originally granted. On appeal, the Court of Appeals for the Ninth Circuit upheld the district court's award of interest on the entire judgment from the date of its original entry. 616 F.2d at 407. The Court of Appeals expressly declined to follow those cases holding that interest does not accrue on a vacated judgment. See id.

In Twin City, the district court found the defendant had committed four antitrust violations and awarded damages. The Court of Appeals reversed the district court's legal conclusions with respect to all four violations. On remand, and after receiving new evidence, the district court found the defendant had committed two of the violations, and awarded the same amount of damages as after the first trial, but granted interest only from the date of the second judgment. On appeal, the Court of Appeals reversed in part and awarded interest from the date of the first judgment, despite the fact that "the issue of antitrust liability was not firmly settled until the post-remand judgment * * * *" 676 F.2d at 1311.

In this case the first judgment was reversed by the Court of Appeals on the grounds of error in the Court's instructions to the jury and insufficient evidence to support a jury charge on one of plaintiff's two theories of liability. See Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 995 n. 15 (9th Cir.1979), cert. denied, 444 U.S. 1025, 100 S.Ct. 688, 62 L.Ed.2d 659 (1980). After a new trial, a jury awarded damages in an amount larger than the first judgment.

Although here, unlike Mt. Hood and Twin City, the second judgment is larger than the first, that fact should not preclude an award of interest on the first judgment from the date of its entry. In this case, as in Twin City, antitrust liability was not established until the second judgment. In addition, in both cases the second judgment was entered only after a new trial was held or new evidence received. Similarly, in both cases the second judgment was based upon only some of the theories of liability that supported the first judgment.

A plaintiff's right to post-judgment interest should not hinge on the fortuity that on remand the finder of fact will award the exact amount of damages awarded at the first trial. Furthermore, if interest is not allowed on the first judgment from the date of its entry simply because the first and second judgments are not for the same amount, then a successful plaintiff could be penalized for receiving a second judgment larger than the first judgment. A second judgment that is larger than the first could result in a lower total recovery of principal plus interest by a successful plaintiff than were the two judgments for the same amount. Defendant's contention that calculating interest on different parts of the judgment from different dates would "plunge the Court into an unprecedented exercise in splitting the current judgment" is meritless. Such calculations are a familiar task for courts. See e.g., Lew Wenzel & Co., supra; Perkins, supra. Hence, plaintiff is entitled to interest on the first judgment from March 1, 1976.

Plaintiff's Motion to Award Attorney's Fees

A prevailing plaintiff in an antitrust action is entitled to "a reasonable attorney's fee" pursuant to Section 4 of the Clayton Act, 15 U.S.C. § 15. The appropriate method for determining a reasonable fee is to multiply the number of hours worked by the customary hourly rate of compensation for like services. The resulting "lodestar" figure is then adjusted based on the novelty and difficulty of the questions raised, the results of the litigation, the experience and ability of the attorneys, attorney's fees awards in similar cases, and like factors. See, e.g., Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976).

Plaintiff requests an attorney's fee of $2.5 million. By contrast, defendant urges that no more than $618,633 be awarded as a reasonable fee. The Court finds that reasonable attorney's fees for the first trial, the subsequent appeal, and the second trial are $1,064,943.10.

On July 13, 1976, Judge Orrick awarded plaintiffs $498,955 following the first trial as a reasonable attorney's fee in the action. Judge Orrick reached this figure by multiplying the number of hours he found to be compensable, 4,223, by an average hourly rate of $85, and then increasing the resulting lodestar figure by $140,000, equivalent to a multiplier of approximately 1.39.

Defendant urges that the Court not increase the award made by Judge Orrick for work performed prior to the first judgment. Plaintiff argues that Judge Orrick's award should be increased in two respects. First, plaintiff asserts that the 1350 hours that Judge Orrick subtracted as spent in pursuit of unsuccessful claims should be compensated based upon the recent decision of the Court of Appeals for the Ninth Circuit in Twin City Sportservice v....