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BOGOSIAN v. GULF OIL CORP.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 1, 1985

PAUL J. BOGOSIAN, et al., Class Representatives
v.
GULF OIL CORPORATION, et al.

VanArtsdalen, J.

The opinion of the court was delivered by: VANARTSDALEN

VanARTSDALEN, J.

MEMORANDUM OPINION AND ORDER

 Counsel Fees and Costs Award

 By separate memorandum and order, I approved the settlement agreements entered into between counsel for the class plaintiffs and the thirteen remaining defendant oil companies. Counsel for the plaintiffs filed a motion for the allowance and award of counsel fees and costs. The motion requests counsel fees (including attorneys, law clerks and paralegals) totaling $6,734,600.50, plus costs expended of $349,475.73, and $20,000.00 apiece to the named class representatives, Louis J. Parisi and Paul J. Bogosian, for consultative and other specialized services rendered to the class.

 The total fund created for the damage class plaintiffs by the thirteen settling defendants is $25,000,000.00. In addition, certain equitable relief was obtained for the existing lessee-dealers who composed the plaintiff injunctive class, many of whom are class members of the damage class. Proper notice was provided to plaintiffs of both classes as to the proposed settlements and the application for counsel fees and costs. The notice provided for filing of objections and set a date for hearing the motions. Some objections were received as to the extent and nature of the equitable relief and as to the breadth of the releases to be granted to the defendants. There was no objection filed or stated at the hearing as to the amount of the proposed attorneys' fees or the distribution of the fees. Nevertheless, it is clearly the duty of the trial judge to determine the amount of fees and costs to be allowed out of the settlement fund.

 In this circuit, fee awards in class actions are controlled by the guidelines set forth in Lindy Brothers Builders, Inc. v. American Radiator and Standard Sanitary Corp., 487 F.2d 161 (3d Cir. 1973) (Lindy I) and 540 F.2d 102 (3d Cir. 1976) (Lindy II), and their progeny. Further guidance has been recently provided by In Re Fine Paper Antitrust Litigation, 751 F.2d 562 (3d Cir. 1984). Fortunately, in this case, unlike several of the reported cases on counsel fees, there is a single unified fee petition presented by all counsel, and there is no dispute among counsel as to how the fees are to be divided among them. The petition is amply documented by affidavits, time records and other supporting material.

 The first step in the analysis is "a determination of how many hours were spent, by which attorneys, and in what manner." In Re Fine Paper, 751 F.2d at 583. These essential facts are fully documented in the petition and annexed papers. Time records were maintained on a current basis. Berger & Montague, P.C., the principal law firm involved, kept accurate computerized data processing records of time spent and services rendered. The other firms involved submitted detailed affidavits attesting to the maintenance of contemporaneous time records. There is nothing in any of the submissions to suggest that the records are inaccurate or that the time expended was excessive or duplicative. In that respect it may be noted that since the entry of Class Action Order No. 63 on February 8, 1983, all of the attorneys were placed under rigid time constraints to bring the case to trial, and plaintiffs' attorneys, as well as defense counsel, were constantly hard pressed to accomplish the many absolutely essential pretrial preparations within the established time limits. They did not have the luxury of unlimited time within which to perform needless or redundant tasks. Determining after-the-fact and from hindsight whether the work done by attorneys in preparing a case for trial was excessive or wasteful is always difficult and largely subjective. This case was of such complexity that if there were enough lawyers available, an almost infinite amount of time could have been productively utilized in preparing for trial. The total hours claimed for the period covered by this fee petition appear to be entirely reasonable.

 The next step is to "determine the value of each attorney's services to the class." Id. at 583. This is determined as to each attorney individually. Such a determination involves consideration of an attorney's usual billing rate for like or similar services rendered to a paying client. This is an essential ingredient in determining the "lodestar" figure that then may be adjusted up or down based on separate considerations. The affidavits of counsel set forth both the present and the historical billing rates for the various attorneys, law clerks and paralegals.

 In determining the "lodestar" fee in this case, I will apply the historical billing rates. Although counsel in their brief submit respectable authority that has utilized current rates (apparently to compensate for delayed payment), such an approach seems inconsistent with the theme of Lindy Brothers and its progeny. The "reasonable hourly rate" would appear to be that which the attorney would have charged at the time the services were rendered, not that which in today's market might be appropriate. Compensation for the delay in payment is a factor that must, under Lindy Brothers, be considered as one of the contingencies influencing the adjustment to the lodestar. In Re Fine Paper, 751 F.2d at 583.

 The fee application is for work done from February 22, 1981 to November 30, 1984. In 1981, Sun Oil Company and Getty Oil Company settled, and out of that settlement fund, plaintiffs' counsel were awarded fees of $2,110,006.50 and costs of $79,926.64 for services to February 22, 1981. The interim award was calculated solely on the basis of the "lodestar" calculation without any upward adjustment, but without prejudice to seeking an upward adjustment upon final termination of the litigation. Counsel are not seeking any upward adjustment for the fees allowed for work prior to February 22, 1981. The prior fee award did utilize the then current billing rates for work extending over approximately ten years. The decision by plaintiffs' counsel not to seek any additional compensation for work done during the period prior to February 22, 1981, is both appropriate and commendable.

 The lodestar will be calculated by multiplying the number of hours expended by each attorney, law clerk and paralegal by the historical billing rate of each such person. The total number of hours expended, as detailed in the petition and annexed documents, is 32,757.75 hours for attorneys, 1,992.25 hours for law clerks, and 13,468.25 hours for paralegals. The law firm of Berger & Montague, P.C., which was plaintiffs' lead counsel throughout this litigation, accounts for 28,143.5 hours of lawyers' time and all of the claimed law clerk and paralegal time. The other attorneys seeking claims are Norman P. Zarwin (156.3 hours), Richard E. Bennett (420 hours), James J. Binns (249.55 hours), and Harold Brown (3,788.4 hours). Utilizing the historical billing rates and allowing all of the time claimed by each attorney, the lodestar figure for the attorneys involved is as follows: FIRM: BERGER & MONTAGUE, P.C. n1 Range of Historical Attorney Hours Hourly Rate Hours x Rate David Berger 746.25 $ 260-300 $ 211,397.50 H. Laddie Montague, Jr. 2,504.00 175-200 490,645.00 Warren D. Mulloy 3,251.75 160-185 580,743.75 Stanley R. Wolfe 644.50 140-180 100,147.50 Merrill G. Davidoff 124.75 125-180 20,327.50 Howard I. Langer 403.75 95-140 52,658.75 Martin I. Twersky 6,934.25 60-110 623,923.75 Alan M. Sandals 255.00 65-90 20,223.75 Roger Bernstein 445.25 80-100 36,095.00 Joan Zubras 130.50 75-80 9,872.50 Stephen Ramos 6,006.25 65-75 422,372.50 Patricia A. Fanelli 6,513.50 65-75 454,601.25 Sheldon Taubman 100.00 65 6,500.00 Other Attorneys 83.75 Varied 12,532.50 Total Attorney Hours: 28,143.50 Total Value: $ 3,042,041.25 FIRM: Law Offices of Harold Brown n2 3,788.4 $ 50-250 $ 596,822.50 FIRM: James J. Binns, P.A. 249.55 $ 250 $ 62,387.50 FIRM: Zarwin, Baum, Resnick and Cohen, P.C. 156.3 $ 100-135 $ 19,675.00 FIRM: Richard E. Bennett 420 $ 110-140 $ 51,600.00 Total Attorney's Fee - Lodestar Calculation $ 3,772,526.25

19850401

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