Westman Com'n Co. v. Hobart Corp.
| Decision Date | 26 April 1983 |
| Docket Number | Civ. A. No. 76-K-918. |
| Citation | 562 F. Supp. 729 |
| Parties | WESTMAN COMMISSION COMPANY, Plaintiff, v. HOBART CORPORATION, Defendant. |
| Court | U.S. District Court — District of Colorado |
Kenneth L. Starr, Ann Livedalen, Holmes & Starr, Michael J. Abramovitz, Drexler, Wald & Abramovitz, Denver, Colo., for plaintiff.
George F. Karch, Jr., Thomas J. Collin, Thompson, Hine & Flory, Cleveland, Ohio, James E. Hautzinger, and Robert E. Youle, Sherman & Howard, Denver, Colo., for defendant.
THIRD MEMORANDUM OPINION AND ORDER
I have previously determined liability in this antitrust case. My memorandum opinion and order is reported at 461 F.Supp. 627 (D.Colo.1978). Following a trial on damages I issued findings of fact, conclusions of law and order which can be found at 541 F.Supp. 307 (D.Colo.1982). The case is now before me for determination of an award for attorney fees and costs. The facts are sufficiently set forth in the cited opinions.
Westman was the successful plaintiff and is entitled to a reasonable attorney fee. Westman lost profits of $1,032,895.00. That amount was trebled as required and resulted in a total recovery of $3,098,685.00. Additionally, I determined that for each day that Hobart failed to offer a dealership to Westman, a continuing damage amount of $392.59 would apply. At this time, the situation between the parties respecting Hobart's offer of a dealership is still unresolved. I expect the parties to continue to wrangle over this matter for some time to come.
In applying for an award, I directed Westman to be guided by the analytical method I used in awarding attorney fees in Black Gold, Ltd. v. Rockwood Industries, Inc., 529 F.Supp. 272 (D.Colo.1981). That was an antitrust action where the plaintiff prevailed and was entitled to attorney fees as a matter of right. I did, however, spin out a less than subtle suggestion that the parties here could stipulate to a reasonable attorney fee award, but the thought was unavailing.
I also directed Westman to submit any necessary supporting affidavits and other materials to support its fee claim. In addition, I requested that the claim be submitted in a form which categorizes the work done by counsel. Those categories include: (a) prefiling investigation, (b) pleadings, (c) discovery, (d) discovery disputes, (e) appearances before the magistrate, (f) appearances before the court outside of the trials, (g) investigation and interviewing witnesses, (h) time spent at the two trials, and (i) brief writing. Well in excess of a hundred pages of highly detailed documents have been submitted in support of Westman's claim.
In Black Gold, I employed the "lodestar" method of analysis in awarding attorney fees. This method was originally articulated in Lindy Bros. Bldrs., Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-79 (3d Cir.1974) (Lindy I), and Lindy Bros. Bldrs., Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 112-18 (3d Cir.1974) (Lindy II).
The lodestar analysis is a method which is intended to provide some degree of precision to an admittedly artful process of determining reasonable and just attorney fees. Sharp discernment, however, is not possible. Though I have observed the lawyers, their adversarial skills, the progress of this case, and relied upon my experiences as a trial lawyer and a trial judge, I still must exercise some discretion.
First, lodestar analysis requires me to take into account two factors: (1) the hours expended by counsel which contributed to the recovery; and (2) the reasonable value of counsel's time, usually using counsel's normal hourly billing rates. Pitchford v. Pepi, Inc., 531 F.2d 92, 110 (3d Cir.1976). The lodestar of the fee determination can then be adjusted by two factors: (1) the contingent nature of success in the action,1 and (2) the quality of the work performed.2
In Hughes v. Repko, 578 F.2d 483, 490-493 (3d Cir.1978), a further step was added to the lodestar analysis which is denominated the "post Lindy discretionary adjustment." It takes into account the governmental policies underlying the applicable fee statute and substantive rights involved, and such factors as the customary fee for similar work, the amount received in damages, and fee awards made in similar cases in order to assure the overall fairness of the award.
Defendant has repugned my request that the fee application follow the lodestar analysis I used in Black Gold, and argues that I should base the award on the quantum meruit approach as set forth in my opinion in Ramos v. Lamm, 539 F.Supp. 730 (D.Colo. 1982). That decision is presently on appeal. Since the Court of Appeals ordered expedited briefing over a year ago, I have been waiting anxiously for its decision. In fact I have delayed writing this opinion in anticipation of it. Since I do not know whether the quantum meruit approach is permissible and since further delay in this case seems unfair to these litigants, I will use the lodestar analysis. It has the benefit of authoritative approval. Nevertheless, I have considered all of defendant's objections in arriving at this award.
Westman argues that I should consider $348,215.40 to be the lodestar amount before any upward or downward adjustment is made. This amount, it claims, is the total number of hours expended by counsel, law clerks, and paralegals that contributed to the result, multiplied by a reasonable hourly rate charged at the time by the particular individual performing the work. Below are two charts submitted by Westman that set forth the number of hours expended by the person performing the work under each category which I had formerly designated, and the rate that Westman would have been charged but for the fee agreement between it and its counsel.3
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