The opinion of the court was delivered by: LASKER
This is a petition for attorney's fees by counsel for Stan Kane Home Improvement Center, Inc., (Kane), a plaintiff in this action for violations of the anti-trust laws and common law fraud. Kane emerged from a four day jury trial with a verdict for $12,837. on its pricefixing claim and $10,000. on its claim for an illegal tying arrangement.
Kane was represented by the Washington, D.C. law firm of Kohn, Milstein & Cohen (petitioner), and in particular by Jerry S. Cohen. Cohen was assisted at various times throughout the seven years that the case was being litigated by his partner Herbert E. Milstein and his associate Michael D. Hausfeld. In support of this petition, Cohen has submitted two sworn statements setting forth the basis for petitioner's request for fees in the amount of $885,827. In addition, Cohen testified at a hearing on July 21, 1977 at which he was cross-examined on the contents of these two statements. Counsel for the defendants has submitted a memorandum of law in opposition to the petition and a post-hearing critique of Cohen's submissions and testimony to the court. The defendants oppose the grant of any fee award whatsoever.
Upon a careful consideration of all this material, and based on our familiarity with the case throughout its pendency before the court, we conclude that petitioner is entitled to an award of attorneys fees in the amount of $50,670.96.
In determining an award of attorney's fees, the starting point is the amount of time spent in the prosecution of the action, by whom the services were rendered and the rates charged. City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974). Computation of a figure based on these factors provides a base, or "lodestar" amount, see Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 168 (3d Cir. 1973), reaff'd at 540 F.2d 102, 116-117 (3d Cir. 1976), which is then to be adjusted according to "less objective factors." City of Detroit v. Grinnell Corp., supra, 495 F.2d at 471.
Cohen has submitted a breakdown of time reflecting the total number of hours spent each year by the three attorneys who worked on the case, the hourly rate charged and an estimate of how the time was spent. These figures are based on his review of weekly time sheets for each attorney. The sheets themselves reflect only the number of hours worked; they give no indication of how the time was spent. Cohen allocated the time on the basis of a review of office files and his knowledge, as attorney in charge of the litigation, of the work that was done.
Defendants attempt to discredit Cohen's presentation by comparing the hours spent as reflected on the weekly time sheets with the visible work product, such as affidavits and memoranda submitted on motions, interrogatories, etc. Their analysis questions both the accuracy and the reasonableness of the hours alleged to have been spent. We do not find that defendants' critique seriously undermines the basic structure of Cohen's presentation. For the most part defendants' arguments are based on speculation and unjustified assumptions regarding the extent to which hours devoted to a case would necessarily be reflected in publicly available work product. We are satisfied that Cohen and his associates recorded their time with at least general accuracy and conscientiousness, and worked with reasonable, if not extraordinary efficiency.
We do agree with defendants, however, that petitioner would do well to require its attorneys to record their expenditure of time more precisely. In particular, the failure to record how hours are spent and the resultant need for Cohen to estimate this information injects an element of speculation into his presentation. Although his submissions no doubt reflect a good faith and generally reliable approximation of the breakdown of expenditure of time, there is no allowance at all for time devoted to relatively administrative tasks, which we are entitled to assume must have been effected to some degree by the attorneys, even if secretarial and para-legal assistance was also utilized. Time devoted to such matters should not be billed at the same rate as time in which more professional skills were being used. See City of Detroit v. Grinnell Corp., supra, 495 F.2d at 473; Blank v. Talley Industries, 390 F. Supp. 1, 4 (S.D.N.Y. 1975). Nor is it possible, as a result of failure to be more precise in recording time, to determine which, if any, hours may have been duplicative of work performed by another attorney. Although we are prepared to believe that duplication was not extensive, we cannot literally accept Cohen's assurance that there was none at all.
Finally, Cohen's testimony at the hearing left us with the distinct impression that his entries may at times reflect fairly general approximations.
Thus, although we acknowledge Cohen's integrity and high competence, his firm's failure to keep more precise records is a factor to be considered in computing fees. Cf. Blank v. Talley Industries, Inc., supra, 390 F. Supp. at 4. The attendant uncertainties that thereby arise should, in fairness, be resolved against the petitioner. For these reasons, and in the absence of a more precise corrective device, we believe it is appropriate to reduce by 10% petitioner's figures with respect to hours worked on this case.
The hourly rates recorded for each attorney on petitioner's statement compare reasonably with rates charged by attorneys of petitioner's standing
in New York and Washington, D.C. for the conduct of major litigation. In view of the considerations set forth, infra slip op. at 8-10, however, we think it appropriate to impose a ceiling on the partners' charges of $100. per hour.
The following figures reflect our calculations:
1971 (-10%) R ate Total
Jerry S. Cohen 92.70 $ 100. $ 9,270.00
Herbert E. Milstein 78.97 65. 5,129.80
Michael D. Hausfeld .45 35. 15.75
Jerry S. Cohen 22.50 $ 100. $ 2,250.00
Herbert E. Milstein 26.10 65. 1,696.50
Jerry S. Cohen 41.40 $ 100. $4,140.00
Herbert E. Milstein 31.27 70. 2,188.90
Jerry S. Cohen 71.10 $ 100. $7,110.00
Michael D. Hausfeld 135.90 50. 6,795.00
Jerry S. Cohen 50.85 $ 100. $ 5,085.00
Michael D. Hausfeld 56.70 75. 4,252.50
Jerry S. Cohen 122.10 $ 100. $12,210.00
Herbert E. Milstein 2.50 100. 250.00
Michael D. Hausfeld* 85. 2,945.25
In calculating an award under Section 4 of the Clayton Act, only work devoted to the successful recovery of treble damages may be compensated. FLM Collision Parts, Inc. v. Ford Motor Co., supra note 1, 411 F. Supp. at 633 and cases cited there. However, to the extent that work bore on both a successfully asserted anti-trust claim and other, noncompensable claims, that work may be fully taken into account. Id. Thus, petitioners are entitled to recover fees for time spent on the price-fixing and tie-in claims in this case; and hours devoted exclusively to recovery of 1) monies due and owing, 2) fraud or 3) the Robinson-Patman claim may not be considered in fixing the award. Calculation of this factor is necessarily an approximation. Based on our knowledge of the case, which involved four substantive motions, numerous conferences and a four day jury trial, we believe that a fair factor would be 80%.
There is no question that the case related principally to the claims of price-fixing and an illegal tying arrangement. There was virtually no dispute that the defendants owed Kane $7,230.36, and this amount was awarded on a motion for summary judgment. The Robinson-Patman claim was dismissed early in the case for failure to allege the requisite nexus between price discrimination and interstate activity. And although the allegation of common law fraud remained in the case through trial, a very large proportion of the proof offered both on liability and damages for this claim was duplicative of proof offered with respect to the price-fixing and tie-in claims. For instance, although defendants argue that most of Stan Kane's trial testimony related exclusively to the contention of fraud in the inducement of the franchise agreement, ...