hours spent developing these claims at or before trial are properly chargeable to the anti-trust claim. Defendant disputes this to the point of preparing a page-by-page analysis of each document involved in the case, including the transcript, in an attempt to ascertain the proportion of the hours claimed attributable to the anti-trust claim.
Plaintiffs' argument for attributing nearly all the hours they worked to the anti-trust claim is that this claim would have been unintelligible to the jury unless all the background and consequential facts, including those that gave rise to the contract and Dealers' Day in Court Act claims, were presented. Defendant's page by page analysis attributes only 52% of plaintiffs' case to proving the anti-trust claim. (This figure would be approximately 60% if hours related to damages from the loss of Chestnut Motors were allowed). Thus the relevancy of almost half of the hours claimed by plaintiffs' attorneys is in dispute.
We are unwilling to either accept defendant's characterizations at face value, because of the questions of judgment and perspective involved, or to review every page involved in this case to make our own distinctions. Therefore, we will make our own distinctions based on a witness by witness rather than a page by page approach. Based on our perception of the witnesses' testimony at trial, we believe the testimony of Messrs. Rosenfeld, Pryor, Oswald, Brantz, and Clouser was less closely related to the anti-trust claim than it was to plaintiffs' other two claims. While it could be expected that these witnesses would have been deposed and called at trial in connection with the anti-trust claim, we feel justified in restricting plaintiffs' attorney fees to one-half of the time and energy spent deposing these witnesses or examining them at trial. While this method may be less exact than that proffered by defendant, we believe that it is as just in the long run as well as constituting a simpler and more expedient approach to the problem of fixing reasonable attorney fees.
According to the pages of testimony and depositions allocated to these witnesses by the defendant, the exclusions made represent 476 pages out of a total of 6,945, or approximately one-fourteenth of the total.
An equivalent reduction in the amount normally charged by plaintiffs for their time would be $18,028. ($252,385/14)
This would leave the total hours charged at plaintiffs' attorneys' normal billing rate at $234,357.
This analysis includes in plaintiffs' compensable hours the time spent on developing damages for plaintiffs' loss of Chestnut Motors. Defendant asserts that such time should not be included because the Court did not ultimately allow proof of such losses as part of the anti-trust claim. It is our opinion that, where evidence of these losses to show comparative losses at Presidential was not excluded until the middle of trial, and where evidence of such losses as the proximate result of the claimed anti-trust violation was not disallowed until the end of trial, any exclusion of the house spent developing this evidence would be unfair. There was a reasonable basis for urging the consideration of damages from the loss of Chestnut as part of plaintiffs' anti-trust claim. TWA v. Hughes, S.D.N.Y., 312 F. Supp. 478, 483, aff'd, 2 Cir., 449 F.2d 51; reversed on other grounds, 409 U.S. 363, 93 S. Ct. 647, 34 L. Ed. 2d 577 (1973).
To the amount reached above must be added an amount representative of the quality of plaintiffs' attorneys' work and the contingent nature of their success. This case was a long and complicated one, for which no groundwork was laid by a prior government indictment. Plaintiffs' counsel, faced with able and articulate counsel on the other side, succeeded in convincing the jury of the merit of their claim. We find that the sum of $150,000 will adequately compensate plaintiffs for the quality of their attorneys' work and the contingent nature of their success. The total award of attorney fees is, therefore, $384,357.00.
Dealer's Day in Court Act Claim
Plaintiffs have moved for a new trial, limited to the issue of damages, of their Dealers' Day in Court Act claim if and only if this Court grants defendant's motion for judgment n.o.v. on their anti-trust claim. Since the Court has denied defendant's motion of judgment n.o.v. on the anti-trust claim, plaintiffs' motion for a new trial will be denied. Similarly, defendant has moved for a new trial as to liability on the Dealers' Day in Court Act claim should plaintiffs be awarded a new trial as to damages. Since plaintiffs' new trial motion has been denied, defendant's will be also.
Breach of Contract Claim
I. Plaintiffs' Motion for an Amended Judgment
Plaintiffs request under Federal Rule of Civil Procedure 59(e), that we amend our entry of judgment
in favor of defendant on the breach of contract claim and instead enter judgment in favor of plaintiffs on this claim in the sum of $1,250,000, which the jury found to be the extent of plaintiffs' damages from the breach.
In their arguments in support of this motion, plaintiffs neglect to mention the Statute of Frauds which the Court was enforcing in entering judgment in favor of defendant. Although in its answer to interrogatory No. 16 the jury found that Ford had entered into a contract with plaintiffs for the sale of Presidential, this contract was unenforceable because its subject matter included goods worth more than $500 and a lease in excess of three years and was unsigned by Ford. 12A P.S. § 2-105 (1970) (U.C.C. provision relating to goods); 68 P.S. §§ 250.201-250.203 (1965) (provision relating to leases).
However, this Court was inclined to follow the reasoning of the Pennsylvania courts that the Statute of Frauds should not be permitted to immunize fraudulent conduct.
Accordingly, the Court submitted to the jury the questions of whether defendant's agents had a duty under the circumstances to disclose certain facts to plaintiffs and whether they intentionally failed to perform this duty (interrogatories Nos. 14 and 15). The jury found that defendant's agents had not intentionally misled plaintiffs. Absent a finding of wilful misconduct, we could see no reason why the Statute of Frauds should not be enforced here.
Plaintiffs now argue that, although they knew it was an offer to purchase and not a contract they were signing on December 18, 1969, defendant's agents induced plaintiffs into believing that Leaseco's approval would constitute Ford's acceptance and that no further formal procedures were necessary to make the contract binding. However, no mention was made at trial, nor in any of plaintiffs' trial memoranda concerning the application of the Statute of Frauds, of any misrepresentations, intentional or otherwise, concerning the manner in which Ford would accept plaintiffs' offer to purchase Presidential. The jury found a contract was entered into on December 18, 1969, conditioned only upon acceptance by Leaseco of the deferred rent plan, and plaintiffs cannot argue that the jury's answers support a theory of fraud which presumes that only an offer was made at that time.
II. Defendant's Motion for a New Trial
Defendant has moved for a new trial on the breach of contract claim should we decide to vacate judgment in its favor. Since we have not done so, defendant's new trial motion will be denied.