we find the "lodestar" figure to be $269,132.29.
It remains to consider any appropriate adjustment for the contingency and quality factors.
Remembering that the quality factor compensates only for unusual performance in the particular case (normal quality being reflected in the hourly rate commanded), we find that quality performance at a high level was observed during the course of both trials of the case at bar, not by reason of any specific incidents of outstanding virtuosity,
but by reason of the continuously sustained high pitch required by the vigorous and constant high quality opposition offered by defense counsel.
Just as a victorious tennis player or football team necessarily plays better against a good opponent, the legal skills of plaintiff's counsel were called forth and intensified by the spirited contest with able defense counsel. Quantifying, we conclude that a 20% increase, or $53,826.46, would be proper.
With respect to the contingency factor, we find that there is indeed substantial risk involved in the attempt to win and sustain on appeal and collect a large verdict in an antitrust case.
There was a time when the climate in the Supreme Court with respect to antitrust litigation was such that Mr. Justice Stewart could quip that the government always won.
That atmosphere is now believed to be more favorable to defendants.
In any event it never extended to private litigation, but to the major cases brought by the Department of Justice or the Federal Trade Commission in the public interest and affecting industry-wide conspiracies rather than the restrictive practices of a single company.
Nor is the probability of success any brighter if decisions of the Court of Appeals are scrutinized. According to plaintiff's petition for certiorari at No. 75-1579 October Term, 1975 (c.d. 426 U.S. 935, 96 S. Ct. 2649, 49 L. Ed. 2d 387), "Over the last 25 years, with one exception, no judgment or verdict for money damages has been passed upon [by the Third Circuit Court of Appeals] and permitted to stand." [Petition, p. 9]. We have not verified the correctness of this statement or reviewed the cases cited in support thereof by plaintiff at pages 9-12 of the petition, but assume its accuracy, being mindful of the tradition of scrupulous precision observed by Department of Justice attorneys in papers submitted to the Supreme Court, and presuming that a similar responsible attitude characterizes plaintiff's counsel in practicing before that august tribunal. Plaintiff's case therefore is subject to a very substantial risk or contingency factor.
We therefore conclude that a 100% contingency factor would be appropriate. There was an equal chance of winning or losing, in our judgment, when plaintiff undertook to challenge in the courts defendants' anticompetitive behavior. Doubling the "lodestar" figure gives $538,264.58. Adding the quality factor, as calculated above, brings the total to $592,091.04. To this, as we have previously determined, the out-of-pocket expenses of $50,841.64 must be added, giving a grand total of $642,932.68.
To this amount must be added thrice the amount of the verdict (or $934,047.00). Judgment is therefore entered for plaintiff and against defendants in the amount of $1,576,979.68.
EDWARD DUMBAVLD / UNITED STATES DISTRICT JUDGE