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PITCHFORD SCI. INSTRUMENTS CORP. v. PEPI

November 23, 1977

PITCHFORD SCIENTIFIC INSTRUMENTS CORPORATION, Plaintiff,
v.
PEPI, INC., NORTH AMERICAN PHILIPS CORP., AND PHILIPS ELECTRONIC INSTRUMENTS, INC., Defendants



The opinion of the court was delivered by: DUMBAULD

 The instant proceeding is for the purpose of fixing the counsel fees which plaintiff is entitled to recover in a successful *fn1" private antitrust case. *fn2" 15 U.S.C. § 15 provides that:

 
Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.

 Although the case at bar was not a class action (where there is always suspicion that no one but counsel benefits substantially from the fund created by the almost inevitable settlement *fn3" ) the criteria set forth in Lindy Bros. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 166-69 (C.A. 3, 1973), 540 F.2d 102, 116-18 (C.A. 3, 1976), constitute the appropriate measuring rod for determining a reasonable fee.

 Stated succinctly, those criteria prescribe a basic time charge (sometimes called "lodestar"), adjusted for the factor of contingency and any unusual quality of work performed. *fn4"

 Plaintiff's application and two affidavits set forth time and other details, purporting to comply with Lindy requirements, and seek an award of $567,314.30 (double the basic time charge or "lodestar" of $283,657.15 *fn5" ) plus expenses of $50,841.64. Defendants, in brief and oral argument, have accepted the time record as authentic, but contest the hourly rates used and contend that certain items are improper to be included. We shall therefore take plaintiff's calculations as the starting point, and subtract any amounts found to be excessive upon consideration of the points raised by defendants.

 We note at the outset that defendants often argue that certain items might be proper in a contractually agreed upon fee with a client, but should not be collected from defendants who are required to pay by virtue of statutory compulsion. It is of course true that the fee prescribed by 15 U.S.C. § 15 is imposed in invitum upon losing defendants. But the statute calls for a reasonable fee, not a bargain-basement figure. As with railroad rates, there is a "zone of reasonableness," implying a reasonable minimum as well as a reasonable maximum. *fn6"

 The prevailing party in a private antitrust case is entitled to a fair fee covering all services which competent counsel would reasonably deem appropriate. The fact that defendants' counsel (if representing plaintiff) might have thought it safe to cut corners does not mean that plaintiff's counsel should not be compensated for work which a reasonable and prudent antitrust lawyer would have deemed advisable under the circumstances.

 The late Emory Buckner (preceptor in trial practice of the late second Justice Harlan *fn7" ) is reputed to have said that it is easy to over-try a case but impossible to over-prepare a case.

 A victorious antitrust plaintiff is entitled to receive a counsel fee commensurate with the thoroughness of preparation, as well as skill in trial, which Buckner's philosophy envisaged.

 We shall therefore view the various issues contested here with the attitude that, merely because the obligation to pay the fee is statutory, the size of the fee need not be a niggardly or skimpy pittance, but that plaintiff was intended by Congress to receive fair and reasonable compensation for all legal services reasonably necessary in connection with the case.

 The foregoing principle leads to rejection of defendants' contention that because the case was tried twice counsel is not entitled to compensation for work done at the second trial, on the theory that such work was "duplication." *fn8" It seems clear that it is reasonably necessary to retry a case when an appellate court directs a retrial. Counsel are not to be penalized by being required to work for nothing as punishment for failure to know at the first trial what the Court of Appeals was going to do.

 The same reasoning requires rejection of defendants' second contention, that the fee should be reduced because plaintiff won on appeal only with respect to one issue, and lost on other issues. *fn9" Apart from the fact that the Court of Appeals did hold that price-fixing and other allegations had in fact been proved, but that no sufficient proof of damages (injury to business or property as required by 15 U.S.C. § 15) had been adduced, it seems clear that a reasonable and prudent antitrust lawyer (not necessarily one as thorough as Emory Buckner) would have litigated these issues in the reasonable exercise of professional judgment. There was sufficient merit in the points raised to justify their inclusion in the case. They were not frivolously argued merely for harassment or vexation, or for purposes of delay.

 The same principle requires rejection of defendants' argument that services arising out of certiorari proceedings in the Supreme Court should be excluded. *fn10" While notoriously more petitions for certiorari are unsuccessful than are successful, filing them is recognized as part of the game, and we can not say that the mutual ...


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