Perkins v. Standard Oil Company of California, 71-1515.

• Decision Date: 11 June 1973
• Docket Number: No. 71-1515.,71-1515.
• Citation: 474 F.2d 549
• Parties: Clyde A. PERKINS, Plaintiff-Appellee, v. STANDARD OIL COMPANY OF CALIFORNIA, a corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.2d 549 (1973)

Clyde A. PERKINS, Plaintiff-Appellee, v. STANDARD OIL COMPANY OF CALIFORNIA, a corporation, Defendant-Appellant.

No. 71-1515.

United States Court of Appeals, Ninth Circuit.

February 12, 1973.

Certiorari Denied June 11, 1973.

Francis R. Kirkham, Richard J. MacLaury, Thomas J. Klitgaard, of Pillsbury, Madison & Sutro, San Francisco, Cal., Wayne Hilliard, of McColloch, Dezendorf, Spears & Lubersky, Portland, Ore., for defendant-appellant.

Bruce Hall (argued), Ernest Bonyhadi, of Rives, Bonyhadi, Hall & Epstein, Portland, Ore., George R. Kucik (argued), Earl W. Kintner, James P. Mercurio, of Arent, Fox, Kintner, Plotkin & Kahn, Washington, D. C., Roger Tilbury, of Tilbury & Kane, Portland, Ore., for plaintiff-appellee.

Before HAMLEY, KOELSCH, and DUNIWAY, Circuit Judges.

Certiorari Denied June 11, 1973. See 93 S.Ct. 2778.

KOELSCH, Circuit Judge.

This appeal presents several questions concerning the District Court's allowance of attorneys' fees in a private antitrust action. We modify the District Court's judgment and affirm.

Perkins, the appellee herein, obtained a jury verdict against appellant Standard Oil Company of California for damages in the sum of $336,404.67 in a suit alleging violations of section 2 of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. § 13. Pursuant to section 4 of the Clayton Act, 15 U.S.C. § 15, the trial court trebled the award to $1,009,213.71, and entered judgment for that amount. In addition, as authorized by section 4, the court awarded Perkins the usual taxable costs and allowed him $289,000 for the services of his attorneys in prosecuting the suit. On Standard's appeal, this court reversed the District Court's judgment on the merits and remanded the cause for a new trial. Standard Oil Co. of California v. Perkins, 396 F.2d 809 (9th Cir. 1968). Perkins successfully petitioned for certiorari to the Supreme Court, which reversed our judgment and ordered the trial court's verdict and judgment reinstated. Perkins v. Standard Oil Co. of California, 395 U.S. 642, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969).

In his certiorari petition, Perkins had not mentioned attorneys' fees for services rendered either in this court or in the Supreme Court, and the Court's mandate was accordingly silent on the subject. Standard, following the Court's denial of its petition for rehearing, 396 U.S. 871, 90 S.Ct. 36, 24 L.Ed.2d 126, paid Perkins the amount of the reinstated judgment. Perkins then filed an application in the District Court requesting that court to award him attorneys' fees for services rendered him on the appeal to this court and in the Supreme Court proceedings. District Judge Belloni denied the application.¹ Perkins then filed a notice of appeal of that decision to this court; at the same time, he also filed two separate petitions directly in this court, one seeking fees in the previous appeal to this court, and the other seeking fees in the Supreme Court proceedings. We granted the petition for fees in the previous appeal to this court, allowing Perkins $2,500. However, we deemed ourselves foreclosed from making an award for services in the Supreme Court because of the silence of the Court's mandate on the matter of fees; accordingly, we dismissed the pending appeal from the District Court and denied Perkins' original application in this court for the same relief.

Perkins then filed two petitions for certiorari, one to review our dismissal of his appeal, the other to review our denial of his original application.² Both petitions were granted and, in a brief per curiam opinion, the Supreme Court held that section 4 does authorize the award of counsel fees for appellate services, and that the Court's ". . . failure to make explicit mention in its earlier mandate of attorneys' fees simply left the matter open for consideration by the District Court, to which the mandate was directed." Perkins v. Standard Oil Co. of California, 399 U.S. 222, 223, 90 S.Ct. 1989, 1990, 26 L.Ed.2d 534 (1970).

On remand, Judge Belloni, after conducting a hearing on the matter, awarded Perkins the sum of $250,000 for attorneys' fees in the first Supreme Court proceedings, in which the Court had ordered reinstatement of the trial court's judgment. He also allowed $25,000 for counsel fees arising out of the second Supreme Court proceedings, in which the Court reversed the District Court's disallowance of attorneys' fees on appeal. And, finally, Judge Belloni allowed $14,180 in fees for services of Perkins' attorneys in the attorney fee-application proceedings in the District Court. Perkins v. Standard Oil Co. of California, 322 F.Supp. 375 (D.Or.1971).

Standard objects to the allowance of $250,000 for the first Supreme Court proceedings as excessive and an abuse of discretion. In addition, Standard objects to the remaining allowances on two grounds: first, that section 4 does not create a right to recover attorneys' fees for services in a proceeding, ancillary to the damage suit, to recover additional attorneys' fees for services on appeal of the main action; and, second, that if such awards are authorized, the awards made in this case were excessive.

1. The Services in the Main Case.

This is not the usual situation, where an appellate court is faced with an attack on the trial court's allowance of attorneys' fees for services at trial. Here we must review the District Court's appraisal of the worth of services rendered in another court, the Supreme Court. Accordingly, we believe that the District Court's determination, at least with respect to the necessity for and the quality and value of the work, need not be accorded the deference that would be given to decisions which involved matters within the "first-hand" knowledge of the District Court and which come within its special competence. Moreover, as indicated above, the appraisal involved in this branch of the appeal was made not by the original trial judge, but rather by another District Judge, who necessarily lacked the trial judge's intimate knowledge of the proceedings, the issues in the original suit, and the intricacies in the presentation of these issues on the appeal. The latter fact alone provides a basis for exercising "somewhat more latitude in determining whether there has been an abuse of discretion than would be true in the usual case . . .," Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 221 (9th Cir. 1964), cert. denied, 379 U.S. 880, 85 S.Ct. 143, 13 L.Ed.2d 87. In combination, the two factors discussed above dictate that our review of the District Court's allowances be much broader than it might be were we reviewing allowances made for services in the District Court itself.³

There can be no doubt that plaintiff's counsel devoted a considerable amount of time to the certiorari proceedings and that the services were of substantial value. Time spent by counsel and the success of their efforts are among the nine factors this court noted in calculating the award in Twentieth Century Fox Film Corp. v. Goldwyn, supra.⁴ However, Goldwyn concerned fees for trial services, and some of the factors in Goldwyn are of doubtful or no relevance here.⁵ Moreover, recognition must be given to essential differences in the nature of the services performed by appellate counsel, as compared to those rendered by trial counsel. Anti-trust litigation is most complex at the initial stages. It is then that counsel must ferret out the evidence, settle upon legal theories appropriate to recovery, and then make a trial record accordingly. Appellate services, on the other hand, are of a derivative nature, performed within the frame of the case as developed at trial. We do not suggest that appellate litigation may not be complex. The record in the first Perkins' appeal was voluminous, and numerous factual matters were asserted in the certiorari proceedings, all requiring extensive record research by Perkins' counsel in their preparation of the petition and brief in the Supreme Court. And the legal theories were both novel and complex, extending the coverage of section 2 of the Clayton Act. With respect to the trial phase of the same case, however, the presentation in the Supreme Court proceedings was more of an elaboration, or refinement, of those theories propounded in the trial court and on the appeal to this court.

For these reasons, we believe that in assessing "a reasonable attorney's fees" for appellate services, a court must keep in mind that the appeal is not a separate lawsuit, but rather a continuation of a lawsuit which has progressed considerably by the time counsel commences work on the appeal. Accordingly, the amount allowed for attorneys' services on appeal should generally be less than that awarded for services at the trial of the same case.

We are mindful that the ". . . apparent purpose behind this part of section 4 is to award the successful plaintiff a reasonable attorney's fee so that his treble damage recovery would not be unduly diminished by the payment to his attorneys." Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61, 88 (1st Cir. 1970). The clear import of the Supreme Court's second Perkins' decision 399 U.S. 222, 90 S.Ct. 1989, 26 L.Ed.2d 534 is that the additional fee allowance for appellate services serves to further encourage private antitrust enforcement by preventing undue shrinkage of damage awards by the fees of counsel retained to protect the awards in the appellate courts. However, this does not mean that the allowance for appellate services need fully reimburse the plaintiff for his counsel fees on appeal. "The imposition of this penalty was not meant to turn in any way on the nature or amount of the plaintiff's fee arrangement, a fortuity wholly unrelated to defendant's illegal conduct." Farmington Dowel Products Co. v. Forster Mfg. Co., supra, 421 F.2d at 90. The ultimate question in every inquiry into the fee award is what contribution the defendant...