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WEHR v. BURROUGHS CORP.

August 31, 1979

KARL C. WEHR
v.
BURROUGHS CORPORATION



The opinion of the court was delivered by: HUYETT

Following a verdict *fn1" for plaintiff in this action brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 Et seq. (ADEA), counsel for plaintiff filed a petition for an award of attorneys' fees and costs. Petitioners seek a total award in the amount of $ 161,879.00 in attorneys' fees for the firm of Cohen, Shapiro, Polisher, Sheikman & Cohen (hereinafter referred to as "the Cohen firm"), $ 5,098.30 for the firm of Dilworth, Paxson, Kalish & Levy (original counsel for plaintiff) (hereinafter referred to as "the Dilworth firm"), $ 9,438.69 in costs for the Cohen firm, and $ 281.19 in costs for the Dilworth firm. In addition, the Cohen firm requests $ 11,816.25 in fees for the time spent preparing the petition for attorneys' fees. A detailed breakdown of the petitioners' request, including the number of hours spent by each attorney or paralegal and the hourly rates charged by each, is included as an Appendix A to this memorandum.

 It is not disputed that attorneys' fees and costs may be awarded under the ADEA. Section 7(b) of the Act, 29 U.S.C. § 626(b), incorporates by reference section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), which provides in part that "The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action." Furthermore, the parties agree that the standards enunciated by the Court of Appeals for the Third Circuit in Lindy Brothers Builders, Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I ) and Lindy Brothers Builders Inc. of Philadelphia v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (Lindy II ) and their progeny govern the award of attorneys' fees. With these standards in mind, we proceed to evaluate the reasonableness of the fees requested.

 I.

 1. Calculation of the "Lodestar"

 The first step in determining a reasonable fee is to calculate the "lodestar" amount that is, the reasonable number of hours devoted to pursuing the claim multiplied by the reasonable hourly rate. Lindy I, supra at 167. In calculating the first part of the "lodestar", the Third Circuit has made it clear that the district court is required to determine "not only the number of hours actually devoted to the successful claims, but also whether it was reasonably necessary to spend that number of hours in order to perform the legal services for which compensation is sought." Hughes v. Repko, 578 F.2d 483, 487 (3d Cir. 1978). The petitioners bear the burden of showing that the number of hours attributable to the pursuit of the successful claim was "reasonably necessary." Id.

 The petitioners have submitted to us records demonstrating the number of hours actually spent by the Dilworth firm and the Cohen firm in pursuit of this claim. These figures were maintained contemporaneously, and there is no reason to doubt their accuracy. However, it is much more difficult for us to determine whether or not petitioners have met their burden of demonstrating that these hours were reasonably necessary in the pursuit of this claim. In view of the submissions made by the petitioners, it is abundantly clear that the standards set out in Lindy I, Lindy II, and cases following are more easily stated than applied.

 Subsequent to the Third Circuit's decisions in Hughes v. Repko, supra; Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (3d Cir. 1978); and Prandini v. National Tea Company, 585 F.2d 47 (3d Cir. 1978) (Prandini II ), and in an attempt to comply with the mandates of those cases, we ordered the parties to provide us with additional information. By Order dated August 31, 1978, we requested:

 
In anticipation of the hearing and in consideration of the court's duty to closely scrutinize plaintiff counsel's petition to determine the nature of the activities of counsel in a meaningful manner, See Baughman, plaintiff's counsel shall submit:
 
a. A supplemental affidavit providing specific detailed evidence of the precise services rendered by counsel for plaintiff and reasonably necessary hours expended particularly with respect to each identifiable event or activity in the case, E.g., each document filed, each deposition involving participation by counsel for plaintiff, each conference attended, each court hearing, in order to provide sufficient and adequate information for the court to evaluate claimed hours and the nature of the services performed. . . .

 In response to this Order, counsel for plaintiff submitted to us a Supplementary Affidavit, filed September 21, 1978. This affidavit stated that, due to the method used by the Cohen firm to keep its time sheets, the information the Court requested was, for the most part, not available. Only the general nature of the activities were recorded on the time sheets, and this information could be obtained from the computer printout. The affidavit further stated "Your affiant does represent to this Court that neither he nor anyone else in the Cohen Firm, to the best of his knowledge and belief, ever expended or recorded time for this case unless he or she in the exercise of their professional judgment believed it to be reasonably necessary and proper in order properly to represent the client and carry out counsel's obligation to the Court and to the client under applicable statutes, cases, rules of court and the Code of Professional Responsibility."

 In light of the general nature of the petitioner's response, we are placed in a quandary. It is true that, by laboriously comparing the docket entries with the computer printouts, we may be able to reach rough estimates of the amount of time devoted to different, specific activities. However, these estimates are only approximate and may not in all instances furnish us with the information needed to make a determination of "reasonableness." Furthermore, this "piecing together" is a very time-consuming task. *fn2" Requiring the court to perform this task seems to contravene the statement "It was not and is not our intention that the inquiry into the adequacy of the fee assume massive proportions, perhaps even dwarfing the case in chief." 540 F.2d at 116.

 On the other hand, by accepting wholesale petitioners' representations that the hours expended were "reasonably necessary" we would be abdicating our judicial function. The defendant has raised some very specific objections to the reasonableness of the hours expended by plaintiff's counsel. In order to fairly assess these objections, we are required to examine the documentation which has been submitted and make whatever reasonable determinations are possible. Although these "educated guesses" may lack the exactitude required by the Third Circuit caselaw, we do not believe that petitioners can validly object since their failure to provide complete, detailed documentation is the direct cause of that inexactitude. *fn3" ...


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