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ZEFFIRO v. FIRST PENNSYLVANIA BANKING & TRUST CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


October 27, 1983

JAY A. ZEFFIRO, individually and on behalf of all other persons similarly situated
v.
FIRST PENNSYLVANIA BANKING AND TRUST COMPANY, a Pennsylvania Corporation v. CAPITAL FIRST CORPORATION, PHILIP M. COMERFORD, C. LAWRENCE RUTSTEIN, HARMON S. SPOLAN, EDWARD E. COHEN, ROBERT C. ARTHURS, LAVENTHOL & HORWATH, BABBITT, MEYERS & COMPANY and SPECTOR COHEN GADON & ROSEN, HARRY M. BERNARD, JR., on behalf of himself and all others similarly situated v. FIRST PENNSYLVANIA BANK, N.A. and CAPITAL FIRST CORPORATION v. CAPITAL FIRST CORPORATION, PHILIP M. COMERFORD, C. LAWRENCE RUTSTEIN, HARMON S. SPOLAN, EDWARD E. COHEN, ROBERT C. ARTHURS, LAVENTHOL & HORWATH, BABBITT, MEYERS & COMPANY and SPECTOR COHEN GADON & ROSEN

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

 BECHTLE, J.

 This class action suit arises under The Trust Indenture Act of 1939, 15 U.S.C. ยง 77vvv, and state law. After extensive litigation, see e.g. Zeffiro v. First Pennsylvania Bank, 473 F. Supp. 201 (E.D. Pa. 1979), aff'd, 623 F.2d 290 (3d Cir. 1980), cert. denied, 456 U.S. 1005, 73 L. Ed. 2d 1299, 102 S. Ct. 2295 (1982), plaintiffs entered into a settlement agreement whereby defendant First Pennsylvania Bank, N.A. agreed to create a settlement fund of $1,050,000.00. The Court granted final approval of the settlement on September 13, 1983. Presently before the Court is plaintiffs' counsel's petition for attorneys' fees and expenses.

 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, 62 L. Ed. 2d 676, 100 S. Ct. 745 (1980) (citing cases); Silberman v. Bogle, 683 F.2d 62, 64 (3d Cir. 1982). The " Lindy " analysis provides the appropriate standard against which attorney's fee requests are evaluated. See Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I); Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976) (en banc) (Lindy II). Lindy I mandates an initial determination of the number of attorney hours expended, and in what manner, multiplied by a reasonable hourly rate set by the court upon consideration of the attorney's reputation, status, and normal billing rate. The party seeking the fee has the burden of establishing these components. The resulting figure, known as the "lodestar," may then be adjusted by the court, either upward or downward, based upon its assessment of the contingency of success involved in the suit and the unusual quality of the legal services performed. In Lindy II, the Third Circuit set out specific factors to guide the district court's inquiry into the contingency and quality issues. Subsequent decisions have offered further instruction as to proper application of the Lindy analysis. See Walker v. Robbins Hose Co. No. 1, Inc., 622 F.2d 692 (3d Cir. 1980); Baughman v. Wilson Freight Forwarding Co., 583 F.2d 1208 (3d Cir. 1978); Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978); Rodriguez v. Taylor, 569 F.2d 1231 (3d Cir. 1977), cert. denied, 436 U.S. 913, 56 L. Ed. 2d 414, 98 S. Ct. 2254 (1978); Prandini v. National Tea Co., 585 F.2d 47 (3d Cir. 1978) (Prandini II); Prandini v. National Tea Co., 557 F.2d 1015 (3d Cir. 1977) (Prandini I). See also In Re: Fine Paper Antitrust Litigation, 98 F.R.D. 48 (E.D. Pa. 1983). *fn1"

 Since the fee petition is unopposed and is not in the posture of an adversary proceeding, the Court is mindful of the interests of the class members in its determination of a fee award.

 Number of Hours

 The reasonableness of the number of hours submitted is a question of fact to be determined by the Court. See Entin v. Barg, 412 F. Supp. 508 (E.D. Pa. 1976). The burden is on counsel to file adequately documented applications for fees detailing the time spent for each task. Baughman v. Wilson Freight Forwarding Co., supra, 583 F.2d at 1216. Those who fail to meet that burden do so at their own risk. Hinckley v. E.I. DuPont De Nemours and Co., 583 F. Supp. 11 (E.D. Pa. 1983). Plaintiffs' attorneys have submitted detailed exhibits in conjunction with their affidavits to support the hours of service claimed. These exhibits consist of contemporaneous time records maintained at each attorney's office and set forth a daily record of time spent. The exhibits and the affidavits, viewed together, give a sufficiently detailed statement as to the nature of the work performed each day to allow a careful review by the Court. The services rendered prior to June 30, 1983, and excluding time spent drafting the fee petition, consumed a total of 3358.55 hours as follows: 1978 1979 1980 1981 1982 1983 Total Attorneys: Michael P. Malakoff 66.50 131.70 104.00 11.05 132.50 36.50 482.25 Richard A. Finberg 150.75 176.30 69.00 7.00 166.85 37.45 607.35 Louise R. Malakoff - 39.40 8.75 - 2.00 - 50.15 Joseph W. Anthony 210.75 327.60 53.75 2.55 489.50 67.10 1,151.25 James P. Larkin 1.50 1.25 - - 18.00 - 20.75 John A. Cotter - - - - 474.10 119.55 593.65 John A. McHugh - - - - 10.75 1.00 11.75 Abraham C. Reich 25.50 131.50 20.30 3.80 53.40 9.40 243.90 Victor Wright 1.00 - - - - - 1.00 Michael M. Greenberg - - - - 3.90 - 3.90 Legal Assistants: John R. McDougall 9.25 - - - - - 9.25 Joanne Stone - 25.75 - - 108.50 4.50 138.75 Paralegals: Verna Yeso - - - - 8.20 34.40 42.60 Edward Hayes - - 0.80 - - - 0.80 Dianne Butterworth - - - - 1.20 - 1.20

19831027

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