Following final approval of this settlement on April 7, 1972, petitioner Kohn undertook steps to press the claims of the builder-owner class against the one remaining full-line defendant. As a result of a corporate merger, the Celotex Corporation was at or about this time the successor to Briggs Manufacturing Company and was substituted for Briggs in those actions in this litigation in which Briggs had been named as a defendant.
On June 27, 1972, this Court designated petitioner Kohn and his associate Aaron M. Fine as lead counsel in the litigation against Celotex. Various discussions were thereafter held between counsel for Celotex and petitioner Kohn in an attempt to settle the outstanding builder-owner claims against this one remaining full-line defendant. These negotiations eventually led to a settlement with Celotex in the amount of $1,150,000. A settlement agreement dated November 27, 1972 was executed by counsel for Celotex and by Messrs. Kohn and Fine on behalf of a proposed national class of builder-owner claimants.
Following a hearing on February 16, 1973, this Court entered Settlement Order No. 74 on February 23, 1973, which gave preliminary approval to the proposed builder-owner settlement and appointed the plaintiffs in Civil No. 41,774 as the class representatives. Following due notice to the class, a hearing was held on August 3, 1973 to consider whether this settlement with Celotex should be finally approved. There was no opposition, and the Court indicated that it would give final approval to the settlement as submitted. Findings of Fact, Conclusions of Law, a Judgment and Settlement Order No. 77, formally approving the Celotex settlement, were entered on October 9, 1973.
At the time of the hearing held on August 3, 1973 to consider final approval of the Celotex settlement, the Court also had before it an application by petitioner Kohn for the award of attorneys' fees and expenses from the Celotex settlement fund. As a decision had not by that date been handed down by the Third Circuit in the Lindy Bros. appeal and as Friendswood and Humble were objecting to the award of fees in connection with the Celotex settlement on the same grounds as they were asserting in the appeal, this Court determined that no award of fees would be made from the Celotex fund until the appeal had been decided.
At the evidentiary hearing held following remand, counsel agreed that the original fund and the Celotex fund should be treated, for purposes of deciding the questions before the Court, as a single fund and that the total time spent by petitioners should be aggregated. Thus, although there are separate petitions before the Court (one filed pursuant to Settlement Order No. 21 and one filed pursuant to Settlement Order No. 74), only one award will be made.
The combined fund produced by the efforts of the petitioners, including interest, is now approximately $29,300,000, and the total time expended by the petitioners in producing such combined fund through March 24, 1974 is 6,487 hours of attorneys' time and 1,235 hours of paraprofessional and law students' time.
THE TIME FACTOR
In detailing in its Lindy Bros. opinion the standards that should guide the trial judge in awarding fees to attorneys successfully concluding class suits, the Third Circuit has directed that the first inquiry of the court should be into the hours spent by the attorneys. Not only should the court inquire as to the number of hours spent, but it should also determine in what manner the time was expended and by which attorneys.
From the evidence, this Court finds that the total time spent by the Kohn firm and the Berger firm through March 20, 1974, classified under appropriate specific categories, is as follows (in hours):
Category Total Time Kohn Firm Berger Firm
1. Pleadings 87.00 68.50 18.50
2. Discovery 1,609.55 973.75 635.80
3. Court Appearances 604.65 458.75 145.90
4. Settlement 531.20 400.00 131.20
5. Fee Agreements 66.00 55.50 10.50
6. Fee Application and Appeal 305.00 219.75 85.25
7. Clients' Claim Forms 126.50 16.50 110.00
8. Interventions 181.20 16.50 164.70
9. Settlement Administration 839.25 839.25 /--
10. Briefs and Legal Research 433.35 414.75 18.60
11. General Matters 1,686.33 1,052.25 634.08
12. Other Appellate Proceedings 17.50 17.50 /--
TOTAL 6,487.53 4,533.00 1,954.53
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