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BECKER v. ARCO CHEM. CO.

July 22, 1998

WILLIAM BECKER, Plaintiff,
v.
ARCO CHEMICAL COMPANY, Defendant.



The opinion of the court was delivered by: ROBRENO

MEMORANDUM

 EDUARDO C. ROBRENO, J.

 JULY 22, 1998

 This is an age discrimination case. After an eleven-day trial, the jury awarded plaintiff $ 736,000 in damages. Presently before the Court are plaintiff counsel's petition for $ 562,421.25 in attorney's fees and $ 36,613.95 in costs, and plaintiff's motion to mold the verdict to include post-trial interest, and pre-trial interest on the back pay award, and to reflect tax consequences suffered by plaintiff. Defendant opposes the petition for attorney's fees and costs as excessive, and objects to the Court molding the verdict. For the reasons which follow, the Court will grant counsel attorney's fees in the reduced amount of $ 313,125.70, costs in the reduced amount of $ 26,738.84, and will mold the verdict to include pre-trial interest on the back pay award. The Court also grants the plaintiff post-trial interest on the entire verdict.

 I. BACKGROUND

 The plaintiff, William P. Becker ("Becker") sued his former employer, ARCO, for age discrimination in connection with his discharge from employment. Specifically, Becker alleged in a three-count complaint that the conduct of ARCO employees violated the Age Discrimination in Employment Act ("ADEA") and the Pennsylvania Human Relations Act ("PHRA"), and constituted intentional infliction of emotional distress. The Court granted summary judgment in favor of ARCO on the claim for intentional infliction of emotional distress. The remaining claims under the ADEA and the PHRA proceeded to trial.

 At the conclusion of an eleven-day jury trial, at which twenty-one witnesses testified, the jury returned a verdict in favor of plaintiff. Becker was awarded $ 186,095 in back pay damages, $ 380,000 in front pay damages, and $ 170,000 in compensatory damages. The jury declined to award punitive or liquidated damages. In accordance with the verdict, the Court entered judgment in favor of plaintiff in the amount of $ 736,095 on November 3, 1998.

 Following the conclusion of trial, plaintiff's counsel ("counsel") filed a petition for $ 562,421.25 in attorney's fees and $ 36,613.95 in costs. The $ 562,421.25 in attorney's fees is comprised of $ 434,500 in attorney's fees related to litigation, a 20% fee enhancement amounting to $ 86,900, $ 24,996.25 in overtime, and $ 16,025 in fees relating to the preparation of the fee petition.

 II. PETITION FOR ATTORNEY'S FEES

 A. The ADEA

 A plaintiff who has prevailed on the merits of his ADEA claim is entitled to an award of attorney's fees pursuant to 29 U.S.C. § 626(b). See Blum v. Witco Chem. Corp., 829 F.2d 367, 377 (3d Cir. 1987). "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." 29 U.S.C. § 216(b) (1965 & Supp. 1998) (as incorporated by 29 U.S.C. § 626(b)).

 "The ADEA prohibits age discrimination in employment against any person over age forty. Because the prohibition against age discrimination contained in the ADEA is similar in text, tone, and purpose to that contained in Title VII, courts routinely look to law developed under Title VII to guide an inquiry under the ADEA." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 330 (3d Cir. 1995) (citations omitted). The Third Circuit has noted that "since [42 U.S.C.] § 1988 is similar in purpose and design to § 706(k) of Title VII [which provides for recovery of attorney's fees and costs], cases interpreting § 1988 can be applied to § 706(k) as well." Sullivan v. Commonwealth of Pa. Dep't of Labor and Indus., Bureau of Vocational Rehabilitation, 663 F.2d 443, 447 n.5 (3d Cir. 1981) (citations omitted).

 Because the principles of Title VII jurisprudence would apply in deciding substantive issues in ADEA cases, the same principles should also apply in determining the reasonableness of attorney's fees and costs. The Court therefore finds that cases interpreting 42 U.S.C. § 1988 can be applied to 29 U.S.C. § 626(b) as well.

 B. Loadstar Method

 The calculus in determining the amount of attorney's fees a prevailing party is entitled to receive in a civil rights action is well-settled. "The initial estimate of a reasonable attorney's fee is properly calculated by multiplying the number of hours reasonably expended on the litigation [by] a reasonable hourly rate." Blum v. Stenson, 465 U.S. 886, 888, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933(1983)). This estimate is called the "lodestar." Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Procedurally, the party seeking attorney's fees has the burden to prove that its request for attorney's fees is reasonable. To meet its burden, the fee petitioner must submit evidence supporting the hours worked and rates claimed. In a statutory fee case, the party opposing the fee award then has the burden to challenge by affidavit or brief with sufficient specificity to give fee applicants notice, the reasonableness of the requested fee. The district court cannot decrease a fee award based on factors not raised at all by the adverse party. Once the adverse party raises objections to the fee request, the district court has a great deal of discretion to adjust the fee award in light of those objections.

 Id. (internal citations and quotations omitted). Even after calculating the lodestar, "however, the district court has the discretion to make certain adjustments to the lodestar," if the party opposing the fee petition has met its "burden of proving that an adjustment is necessary." Id. (citations omitted). Thus, a court makes two reasonableness determinations: the hourly rate and the number of hours expended by the attorneys.

 C. Reasonableness of the Hourly Rate

 1. Community Market Rate

 The Supreme Court has held that the reasonable hourly rates applicable to the labors of attorneys for a prevailing party should be "the prevailing market rate[] in the relevant community." Blum v. Stenson, 465 U.S. at 895. Yet, the Supreme Court also cautioned that:

 
market prices of commodities and most services are determined by supply and demand. In this traditional sense there is no such thing as a prevailing market rate for the service of lawyers in a particular community. The type of services rendered by lawyers, as well as their experience, skill and reputation, varies extensively -- even within a law firm. Accordingly, the hourly rates of lawyers in private practice also vary widely. The fees charged often are based on the product of hours devoted to the representation multiplied by the lawyer's customary rate. But the fee usually is discussed with the client, may be negotiated, and it is the client who pays whether he wins or loses. The § 1988 fee determination is made by the court in an entirely different setting: there is no negotiation or even discussion with the prevailing client, as the fee -- found to be reasonable by the court -- is paid by the losing party. Nevertheless, as shown in the text above, the critical inquiry in determining reasonableness is now generally recognized as the appropriate hourly rate. And the rates charged in private representations may afford relevant comparisons.

 In seeking some basis for a standard, courts properly have required prevailing attorneys to justify the reasonableness of the requested rate or rates. To inform and assist the court in the exercise of its discretion, the burden is on the fee applicant to produce satisfactory evidence -- in addition to the attorney's own affidavits -- that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation. A rate determined in this way is normally deemed to be reasonable, and is referred to -- for convenience -- as the prevailing market rate.

 Id. at 895 n.11. Thus, the Supreme Court recognized the "inherent difficulty" in determining a "market rate" for legal services when, in reality, there exists no "market" in the conventional sense of "economic activity in which buyers and sellers come together and the forces of supply and demand affect prices." Webster's Ninth New Collegiate Dictionary 728 (1988). See Paul A. Samuelson, Economics 53 (1980) ("The market price reaches its competitive equilibrium . . . where the forces of demand and supply are just in balance.").

 In this circuit, the leading authority for determining the prevailing "market rate" is Student Pub. Interest Research Group of New Jersey, Inc. v. AT & T Bell Labs., 842 F.2d 1436 (3d Cir. 1988) [hereinafter SPIRG ]. In SPIRG the hourly rate charged by a law firm that handled only public interest cases was lower than the rate commanded by "conventional firms performing work of equivalent complexity." Id. at 1438. The Third Circuit held that "the community billing rate charged by attorneys of equivalent skill and experience performing work of similar complexity, rather than the firm's billing rate, is the appropriate hourly rate for computing the lodestar." Id. at 1450. To determine the "community market rate," the Third Circuit directed courts "to assess the experience and skill of the attorneys and compare their rates to those of comparable lawyers in the private business sphere." Id. at 1447 (emphasis added); see also Rode, 892 F.2d at 1183 ("Thus, the court should assess the experience and skill of the prevailing party's attorneys and compare their rates to the rates prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation.") (citing Blum v. Stenson, 465 U.S. at 895 n.11; SPIRG, 842 F.2d at 1447).

 The prevailing party has the initial burden of demonstrating that the requested rate is the community market rate. Rode, 892 F.2d at 1183; SPIRG, 842 F.2d at 1450. While "the starting point in determining a reasonable hourly rate is the attorneys' usual billing rate, 'proof of the attorney self-designated billing rate is not dispositive'." Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995) (citations omitted). The prevailing party's burden may be satisfied by the submission of affidavits of attorneys with personal knowledge of the hourly rates customarily charged in the relevant market. See, e.g., Washington v. Philadelphia Court of Common Pleas, 89 F.3d 1031, 1036 (3d Cir. 1996).

 If the prima facie burden has not been satisfied, the Court exercises its discretion in determining a reasonable hourly rate. Washington, 89 F.3d at 1036; Rode, 892 F.2d at 1183. In doing so, the Court considers the evidence before it and may draw upon its personal knowledge of the facts and issues in the litigation. See Bell v. United Princeton Properties, Inc., 884 F.2d 713, 720 (3d Cir. 1989) ("The district court . . . may only serve as fact witness when the facts at issue are wholly within its personal knowledge.").

 If the prevailing party meets its burden, however, the opposing party must produce affidavits or other submissions which create an issue as to the reasonableness or accuracy of the fee petition. See id. ("We see no reason to require that parties objecting to the fee request submit affidavits so long as answers or briefs, if sufficiently specific, can serve the same function of putting the applicant on notice that it must defend its fee petition."). If the prevailing party satisfies its prima facie burden and no opposition to the prima facie case is offered, the requested rate is the community market rate at which the petitioning attorney may be compensated. See id. ("[A] court may not sua sponte reduce the amount of the award when the defendant has not specifically taken issue with the amount of time spent or the billing rate, either by filing affidavits, or, in most cases, by raising arguments with specificity and clarity in briefs (or answering motion papers).") (clarifying Cunningham v. City of McKeesport, 753 F.2d 262, 265-66 (3d Cir. 1985), vacated on other grounds, 478 U.S. 1015, 92 L. Ed. 2d 731, 106 S. Ct. 3324 (1986)). If, on the other hand, the prima facie case is not satisfied or if it is satisfied but defendant successfully challenges plaintiff's proffer, the determination of the appropriate market rate is vested within the discretion of the district court. Rode, 892 F.2d at 1183.

 2. Plaintiff has failed to prove a prima facie case

 In this case, counsel request a fee of $ 250 per hour for Mr. Wood and Mrs. Matos, the two attorneys working on the case. In support of their request, counsel have submitted the affidavits of Mr. John McAleese, Jr.; Ms. Alice Ballard, Esq.; and Mr. John H. Widman. (Pet.'s Mem. Ex. D, E & F.) Defendant argues that counsel have not provided the Court with a basis for concluding that the $ 250 per hour rate requested is reasonable because the affidavits submitted by counsel fail to establish that the $ 250.00 rate requested is the rate counsel actually charge non-contingent fee clients or that the $ 250 rate is the prevailing market rate. After reviewing the affidavits offered by counsel, as well as arguments made in the briefs, the Court agrees that counsel have not carried their burden of establishing that the requested hourly rates of compensation for both Mr. Wood and Mrs. Matos are reasonable in light of the prevailing market rate.

 First, the affidavits submitted are insufficient because in arriving at a reasonable hourly rate, the affiants failed to take into account the differences among types of civil rights cases. "'Civil rights cases' vary greatly in nature, and in complexity." Tobin v. The Haverford School, 936 F. Supp. 284 (E.D.Pa. 1996), aff'd 118 F.3d 1578 (3d Cir. 1997)(table)(quoting Blanche Road Corp. v. Bensalem Township, 1996 U.S. Dist. LEXIS 9052, *17, 1996 WL 368347 *6 (E.D. Pa. June 25, 1996)). They range from the prosecution of complex class actions to a demand that a leaky toilet be fixed in the home of a single public housing tenant. Therefore, a "one rate fits all" theory does not apply. Blanche Road, 1996 WL 368347 at *6. Here, the affidavits failed to point to the nature of the proof in this case (other than the number of witnesses and trial days), or identify the novelty of the law applied, or ...


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