Independence Tube Corp. v. Copperweld Corp.

• Decision Date: 21 June 1982
• Docket Number: No. 76 C 4201.,76 C 4201.
• Citation: 543 F. Supp. 706
• Parties: INDEPENDENCE TUBE CORPORATION, Plaintiff, v. COPPERWELD CORPORATION and Regal Tube Company, Defendants.
• Court: U.S. District Court — Northern District of Illinois

543 F. Supp. 706

INDEPENDENCE TUBE CORPORATION, Plaintiff, v. COPPERWELD CORPORATION and Regal Tube Company, Defendants.

No. 76 C 4201.

United States District Court, N. D. Illinois, E. D.

June 21, 1982.

COPYRIGHT MATERIAL OMITTED

Victor E. Grimm, John R. Myers, Scott M. Mendel, Bell, Boyd & Lloyd, Chicago, Ill., for plaintiff.

Stephen A. Milwid, Joseph E. Coughlin, Michael R. Hassan, William J. Tabor, Lord, Bissell & Brook, Chicago, Ill., for defendants.

REVISED MEMORANDUM OPINION

WILL, District Judge.

After a ten-week, bifurcated trial, a judgment for $7,497,027.00 was entered against the defendants on the plaintiff's antitrust claim, trebling the jury's verdict of $2,499,099.00.¹ On June 22, 1981, we denied the defendants' motion for judgment notwithstanding the verdict or for a new trial.

The plaintiff has filed a petition for attorneys' fees under section 4 of the Clayton Antitrust Act. 15 U.S.C. § 15. The total requested is $1,668,202.55. That amount includes $1,337,402.25 for 17,781.25 hours spent by the plaintiffs' attorneys, both partners and associates; $55,473.75 for 1,749.75 hours spent by law students; $243,564.05 for 8,074.50 hours spent by legal assistants; and $31,762.50 in fees of attorneys, students, and assistants for time spent preparing and litigating the petition for fees and the bill of costs. The plaintiff has also requested an upward adjustment of the award based on the nature of the litigation and the attorneys' skill as well as interest on the award. For the reasons hereinafter stated, the plaintiff is awarded attorneys' fees of $1,722,175.53 plus interest.²

The plaintiff has also filed a bill of costs, requesting $151,892.23. After the defendants filed objections, in accordance with the procedures in this district, our deputy clerk awarded the plaintiff costs of $129,610.10, the total of the amounts requested for deposition transcripts; witness fees and travel expenses; the plaintiff's expert witness fees and expenses; photocopying, charts, and photographs; and docket fees. The clerk disallowed the costs of the transcripts of court proceedings, the defendants' expert witness fees and expenses, and computerized research costs. The parties filed cross motions for review of the clerk's assessment. We held a hearing on October 15, 1981, to discuss with the parties the deficiencies both in the plaintiff's supporting documentation and in the defendants' objections which made it impossible to evaluate which costs should be taxed and which disallowed. At that time, we ordered the plaintiff to submit supplemental material in support of its bill of costs. The plaintiff filed an amended request for $92,791.55, and the defendants then filed further objections. For the reasons hereinafter stated, the clerk's order of June 22, 1981, is vacated, and the plaintiff is awarded costs of $92,497.17, plus interest.

I. Attorneys' Fees

The accepted method for determining the amount of an award of attorneys' fees begins with the calculation of a so-called lodestar figure by multiplying the number of hours reasonably spent on the litigation by a reasonable hourly rate. That figure is then adjusted up or down depending on the quality of representation and, if a contingency representation, on the risk that the lawsuit might have been unsuccessful and no fee obtained. That method is the simplest and most precise way of considering the twelve generally accepted factors on which a fee award should be based: the time and labor required; the novelty and difficulty of the questions; the skill requisite to perform the legal services properly; the preclusion of other employment; the customary fee in the community for similar work; the fixed or contingent nature of the fee; time limitations imposed by the client or the circumstances; the amount involved and the result obtained; the experience, reputation, and ability of the attorneys; the desirability of the case; the nature and length of the professional relationship with the client; and awards in similar cases. See generally, Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc); In re Folding Carton Antitrust Litigation, 84 F.R.D. 245 (N.D.Ill.1979); American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-106.

A. The Time-Rate Analysis

1. Hourly rates

The rates requested for the partners who worked for the plaintiff on this case range from $85 for the lowest rate for partners in 1976 to $140.00 for the highest rate for partners in 1981. The rates for associates range from $50.00 for the lowest rate in 1976 to $80.00 for the highest rate in 1981.

We find that the hourly rates requested for the plaintiff's attorneys is reasonable in light of the rates customarily charged in the locality and the experience, reputation, and ability of the plaintiff's lawyers. Cf. In re Folding Carton Antitrust Litigation, 84 F.R.D. 245, 265 (N.D.Ill.1979) ($150.00 maximum hourly rate for attorneys on the plaintiff class executive committee or senior attorneys who made particularly significant contributions to the litigation; $125.00 for committee chairmen and other middle and senior partners who made significant contributions; $75.00 for associates). The rates of the plaintiff's attorneys are comparable to those charged by the defendants' Chicago firm which range from $70.00 in 1976 to $143.00 in 1981 for partners and from $42.00 in 1976 to $98.00 in 1981 for associates.

2. Hours spent

(a)

The defendants contend that an unspecified amount of the time included in the plaintiff's petition cannot be awarded because it represents duplicative work by the plaintiff's attorneys, e.g., attendance by more than one attorney at depositions, motion and status calls, and court hearings. Duplication should not be paid for by the losing party but an item-by-item accounting in a case of any size is unreasonably burdensome. Other courts "have approved the arbitrary but essentially fair approach of simply deducting a small percentage of the total hours to eliminate duplication of services." Northcross v. Board of Education, 611 F.2d 624, 636-37 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980). See also Copeland v. Marshall, 641 F.2d 880, 903 (D.C.Cir.1980) (en banc). Cf. Prandini v. National Tea Co., 585 F.2d 47, 51 (3d Cir. 1978) (court held that, "absent evidence to support the district court's finding of duplication or overlap, we cannot sustain the 10% fee reduction imposed by the district court.")

From our observation of this case, we conclude that there was some unnecessary and, therefore, noncompensable duplication. On many occasions, two and even three counsel participated in proceedings which could have been handled by one. On the other hand, the magnitude of the case clearly required the services of a number of attorneys as evidenced by the teams of counsel employed by the defendants. In determining the award, we will reduce the total number of attorney hours requested by ten percent.

(b)

Although at one time the Seventh Circuit held that all time spent on a case is compensable even time spent on claims which the party seeking attorneys' fees lost, see Sherkow v. Wisconsin, 630 F.2d 498, 504-05 (7th Cir. 1980); see also Northcross v. Board of Education, 611 F.2d at 636, in its most recent opinions on this subject, the court of appeals has held that attorneys' fees can be awarded only for preparation and presentation of claims on which a party is successful. Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7th Cir. 1981); Busche v. Burkee, 649 F.2d 509, 522 (7th Cir. 1981). See also Muscare v. Quinn, 614 F.2d 577 (7th Cir. 1980). Although these cases involved the Civil Rights Attorneys' Fees Act rather than the Clayton Act, there is no reason to interpret section 4 of the Clayton Act, which awards attorneys' fees to a plaintiff who establishes that he was "injured in his business or property," differently from section 1988 of the Civil Rights Act, which awards attorneys' fees to the "prevailing party." Compare Busche v. Burkee, 649 F.2d at 522 (section 1988) with Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1214 (3d Cir. 1978) (Clayton Act case in which fees were not awarded for hours spent on unsuccessful claims).

Moreover, although the Seventh Circuit has apparently never decided this issue, since it has held that time spent on unsuccessful claims should be distinguished from time spent on successful claims, it probably would also hold that fees should not be awarded for time spent on state law claims, even if those claims were successful, since there is no statutory authority for such an award. See Baughman v. Wilson Freight Forwarding Co., 583 F.2d at 1215-16.

However, although

no compensation should be paid for time spent litigating claims upon which the party seeking the fee did not ultimately prevail .... it sometimes will be the case that a lawsuit will seek recovery under a variety of legal theories complaining of essentially the same injury. A district judge must take care not to reduce a fee award arbitrarily simply because a plaintiff did not prevail under one or more of these legal theories. No reduction in fee is appropriate where the "issue was all part and parcel of one matter," Lamphere v. Brown Univ., 610 F.2d 46, 47 (1st Cir. 1979), but only when the claims asserted are "truly fractionable," id.

Copeland v. Marshall, 641 F.2d at 891-92 and n.18. Similarly, the calculation of time spent on successful claims "presumably includes time spent on unsuccessful claims to the extent such time would have been spent in connection with the successful claims even if the unsuccessful claims had not been brought." 649 F.2d at 522.

Furthermore, time spent on an issue on which a party failed to prevail but which was an aspect of a larger, successful claim, so that the failure affected only the amount of damages due for the claim on which he did succeed but did not affect the...