UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
June 30, 1983
Richard A. HINCKLEY, on behalf of himself and all others similarly situated
E.I. DU PONT DE NEMOURS AND COMPANY and Conoco Inc.
Weiner, District Judge.
The opinion of the court was delivered by: WEINER
MEMORANDUM OPINION AND ORDER
WEINER, District Judge.
Before the court in this class action under Sections 10(b) and 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b) and 78n(e), is plaintiffs' counsel's petition for attorneys' fees and expenses. Suit was initiated against defendants, E.I. duPont de Nemours and Co. (duPont) and its subsidiary Conoco Inc. (New Conoco), on behalf of the class of shareholders of the former Conoco Inc. (Old Conoco) who tendered Old Conoco shares to defendants, with an election for cash, between August 5, 1981 and August 13, 1981.
Plaintiffs filed a motion for partial summary judgment approximately one month after the commencement of the action. Expedited discovery was initiated and a motion for class certification was filed. Approximately seven and one-half months after the filing of the complaint, settlement negotiations proved fruitful. Defendants agreed to place $4,900,000.00 into an interest bearing settlement fund, which is expected to yield about $5.00 per share to the members of the settlement class. Petitioners, the law firm of Dilworth, Paxson, Kalish & Kauffman, now move for an award of attorneys' fees in the amount of $837,000 and costs in the amount of $18,721.24 for services rendered through December 31, 1982. By supplemental petition,
the law firm requests additional fees in the amount of $29,767.50 by advocating reduction of the proposed multiplier from 3.5 to 3.1. Additional costs are also sought in the amount of $12,202.86. A hearing was held on the original petition on January 31, 1983. The following represents my findings of fact and conclusions of law with respect to the petitions for attorneys' fees and costs.
I. FEE ENTITLEMENT PRINCIPLES
It is well settled that the award of fees under the equitable or common fund doctrine is proper. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S. Ct. 745, 749, 62 L. Ed. 2d 676 (1980) (citing cases); Silberman v. Bogle, 683 F.2d 62, 64 (3d Cir.1982). In this circuit, the calculation of such an award is governed by the principles announced in Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973) (Lindy I) and 540 F.2d 102 (3d Cir.1976) (en banc) (Lindy II) and its progeny. See, Merola v. Atlantic Richfield Co., 493 F.2d 292 (3d Cir.1974) (Merola I); Merola v. Atlantic Richfield Co., 515 F.2d 165 (3d Cir. 1975) (Merola II); Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir.1977) (Prandini I); Prandini v. National Tea Co., 585 F.2d 47 (3d Cir.1978) (Prandini II); Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir.1977), cert. denied, 436 U.S. 913, 98 S. Ct. 2254, 56 L. Ed. 2d 414 (1978); Hughes v. Repko, 578 F.2d 483 (3d Cir.1978); Walker v. Robbins Hose Co. No. 1, Inc., 622 F.2d 692 (3d Cir.1980).
The Court of Appeals recently summarized the standards governing the award of attorneys' fees as follows:
A district court must first inquire into the hours spent by the attorneys on their services and value those services by multiplying the hours billed by a reasonable hourly rate. This amount constitutes "the lodestar of the court's fee determination, [to be modified by] at least two factors that must be taken into account." Lindy I, 487 F.2d at 168. One factor is the contingent nature of success which may increase the recovery. The second factor is "the extent, if any, to which the quality of an attorney's work mandates increasing or decreasing the amount to which the court has found the attorney reasonably entitled." Id. at 168. Such an increase or decrease is intended to take into account only an unusual degree of skill, superior or inferior, exhibited by counsel in the specific case before the court. The general quality of the attorney's practice and reputation is not to be considered in setting this factor, but enters instead into the determination of the reasonable hourly rate. Moreover, while a district court is presumed knowledgeable as to the fees charged by attorneys in general and as to the quality of legal work presented to him, a hearing must be held if factual determinations are needed.
Silberman v. Bogle, 683 F.2d at 64. As this court endeavors to apply the Lindy formula, we note Judge McGlynn's recent and extended foray into this area. See In Re: Fine Paper Antitrust Litigation, 98 F.R.D. 48 at 68 (E.D.Pa.1983). While the court does not intimate that there was any abuse in the instant case, the court will examine carefully the interests of the class members in determining the propriety of a fee award especially when the fee petition is unopposed and is not an adversary proceeding. See In Re Water Heater Antitrust Litigation, MDL 374, Slip Op. at 5 (E.D.Pa. August 8, 1980) (citing cases).
The lodestar consists of (1) the number of hours reasonably expended by counsel which created, protected or preserved the fund, Lindy II, 540 F.2d at 111, multiplied by (2) the reasonable hourly rate for the attorney's services, Lindy I, 487 F.2d at 167.
Unique evaluations are involved in assessment of each factor. The reasonable number of hours is a question of fact to be determined by the court. See Entin v. Barg, 412 F. Supp. 508 (E.D.Pa.1976). And the burden is on counsel to file adequately documented applications for fees detailing the time spent for each task. "Those who fail to meet that burden do so at their own risk." In Re Equity Funding Corporation Securities Litigation, 438 F. Supp. 1303, 1327 (C.D.Cal.1977) (adopting the reasoning of Lindy). The second component of the lodestar, the reasonable hourly rate, is not as susceptible to documentation. This figure is based upon the attorney's legal reputation, status and experience. See Lindy I, 487 F.2d at 167. Obviously, the normal billing rate of the attorney provides a starting point, but it is not necessarily the reasonable rate. See Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208, 1217-18 (3d Cir.1978).
Preliminarily, I note that petitioner's proposed reduction of the requested multiplier in lieu of calculating the lodestar anew is contrary to the principles of Lindy and, therefore, will not be followed. The supplemental petition will be analyzed under the traditional lodestar approach. Upon review of the extensive affidavits submitted by the petitioner, I find that the total number of hours for which compensation is sought were not all expended to benefit the fund. When the work of each attorney is compared, it is clear that a portion of the hours devoted to research and review by the principal attorneys, Messrs. Pittinsky, Berger and Hittinger, were somewhat duplicative. See Prandini v. National Tea, supra, 585 F.2d at 51. Furthermore, there is insufficient itemization of time with regard to references such as review and analysis, telephone conferences, and discussions. Thus, where numerous hours are listed for a particular week, without a more informative breakdown, I find that the petitioners have failed to sustain their burden of adequately describing the work performed. Moreover, the time claimed for some weeks in relation to the nature of the work described appears excessive on its face. Finally, I find that hourly rates requested of all attorneys, except for Theodore Young, are somewhat high because much of the work performed was administrative and investigative in nature and, therefore, should not be compensated at the full hourly rate. Because it is impossible to distinguish precisely between the administrative or clerical work and the "legal" work in the petition, I will apply the reduced hourly rate to all hours found compensable. See Silberman v. Bogle, No. 77-3753, Slip Op. at 9 (E.D.Pa.1981), aff'd, 683 F.2d 62 (3d Cir. 1982).
Based upon the aforementioned determinations, the lodestar calculation is as follows:
Attorney Hours Claimed Hours Allowed
Pre 1983/Post 1983 Pre 1983/Post 1983
Pittinsky 380/11.50 345/11.50
Berger 836.75/118.50 781.75/100
Hittinger 582.25/139 530/109
Brokans 136.25/NA * 116.25/NA *
Young 15.50/NA * 15.50/NA *
Support Personnel n2
13.25/NA * 10.00/NA *
7.50/NA * 5/NA *
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