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BEECH CINEMA, INC. v. TWENTIETH CENTURY FOX FILM C

November 23, 1979

BEECH CINEMA, INC.; TWIN BEECH CINEMA, INC.; KISCO CINEMA, INC.; and YORKTOWN HEIGHTS THEATRE, INC., Plaintiffs, against TWENTIETH CENTURY FOX FILM CORP., and GENERAL CINEMA CORPORATION, and GENERAL CINEMA CORP. OF NEW YORK, INC., Defendants.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

This action charging violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, is before the Court on plaintiffs' motion for an award of attorneys' fees pursuant to 15 U.S.C. § 15 and for an injunction against future violations.

The complaint alleges a conspiracy between defendant Twentieth Century-Fox Film Corporation ("Fox") and General Cinema Corporation ("General Cinema"), by which it was agreed first that Fox would give plaintiffs, a group of theaters in Northern Westchester County, New York owned by Ronald Lesser, less favorable treatment than General Cinema with respect to the royalties charged for the exhibition of Fox films, then that Fox would refuse to license plaintiffs to exhibit the more desirable Fox films, and ultimately that Fox would refuse to license any of its films for exhibition by plaintiffs. Prior to trial, plaintiffs settled its claim against General Cinema for $ 10,000.

 Following a five-day trial, the jury returned a verdict in favor of plaintiffs on the claims of refusal to license Fox films, finding single (untrebled) damages in the amount of $ 48,933, and in favor of Fox on the claim of discrimination in royalties.

 The supporting affidavits of plaintiffs' attorneys assert that they devoted to the case 1,0593/4 hours of partners' time at a normal billing rate of $ 125 per hour and 33 hours of associates' time at $ 75 per hour. The fees chargeable for attorneys' services thus total $ 134,943.75. However, plaintiffs seek an award of only $ 125,000 for attorneys' fees plus their actual disbursements of $ 12,051.10.

 Fox does not oppose the granting of reasonable attorneys' fees and costs, but urges that the amounts sought are grossly excessive because (1) plaintiffs were successful on only some of their claims; (2) the allowance for attorneys' fees should in no case exceed the single damages awarded; (3) the total number of hours spent was excessive, particularly in view of the taking of depositions which were not offered in evidence and the duplication of effort by the partners Jon M. Kaufman and Leonard Kaufman; (4) there was a disproportionate amount of partners' time relative to associates' time; and (5) many of the disbursements were not taxable costs.

 Attorneys' fees

 The seminal cases on the subject of attorneys' fees, at least in the Second Circuit, are City of Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974) ("Grinnell I"), and City of Detroit v. Grinnell Corp., 560 F.2d 1093 (2d Cir. 1977) ("Grinnell II"). Although these cases were class actions, the same principles have been applied in ordinary private antitrust actions, Kane v. Martin Paint Stores, Inc., 439 F. Supp. 1054, 1055 (S.D.N.Y.1977, Lasker, J.), aff'd, 578 F.2d 1368 (2d Cir. 1978) ("Kane "); FLM Collision Parts, Inc. v. Ford Motor Co., 411 F. Supp. 627, 632-33 (S.D.N.Y. Griesa, J.), aff'd in part and rev'd in part on other grounds, 543 F.2d 1019 (2d Cir. 1976), cert. denied, 429 U.S. 1097, 97 S. Ct. 1116, 51 L. Ed. 2d 545 (1977) ("FLM ").

 Under Grinnell I and Grinnell II, the starting point in determining an award of attorneys' fees is the amount of time spent in prosecution of the action and the hourly rates normally charged therefor. The product of multiplying the number of hours by the hourly rate constitutes a base or "lodestar" figure which is then adjusted in accordance with "less objective factors." Grinnell I, supra, 495 F.2d at 471; Grinnell II, supra, 560 F.2d at 1098. Among the latter factors are "the magnitude and complexity of the litigation, the amount recovered and litigation risks." FLM, supra, 411 F. Supp. at 632.

 After consideration of the affidavits submitted in support of and in opposition to the motion, in the light of the Court's familiarity with the case, the Court concludes that the total number of hours spent by plaintiffs' counsel was not excessive. Plaintiffs' counsels' affidavits describing the work done and explaining the reasons therefor are unusually detailed and persuasive. Although, as defendant points out, there are depositions which were taken but not offered in evidence, they served a significant discovery function. Moreover, there was no significant degree of duplication of services by the two partners.

 However, there was a disproportionate ratio of partners' time to associates' time. Many of the functions performed by the partners could have been satisfactorily accomplished by associates, with a considerable saving in fees. Taking this factor into account, in conjunction with the considerable skill of the partners, and particularly of Jon Kaufman, who was lead counsel at the trial, the Court concludes that an overall weighted average of $ 100 per hour is a reasonable hourly charge rate.

 Time devoted exclusively to prosecuting unsuccessful claims is not compensable. Kane, supra, 439 F. Supp. at 1057; FLM, supra, 411 F. Supp. at 633. Of course, to the extent that the time was applicable to both successful and unsuccessful claims, it is properly includible. Kane, supra, 439 F. Supp. at 1057; FLM, supra, 411 F. Supp. at 633.

 Upon consideration, the Court concludes that two-thirds of the total time spent, or 7281/2 hours was properly spent in preparing for trial, trying and briefing the successful claims. Multiplying this figure by a weighted average hourly rate of $ 100 per hour, yields a "lodestar" figure of $ 72,850.

 Plaintiff has not asked for any increase in the "lodestar" figure unless the Court should determine that "not all of counsel's hours were billable." The Court has determined that all of the hours devoted to prosecution of the successful claims are billable, though at an average rate reflecting that some of the work done by partners could satisfactorily have been performed by associates. Whether this would trigger plaintiffs' request for an increase in the "lodestar" figure is unclear. In any event, plaintiffs have suggested no reason why such an increase is justified in this case. As antitrust cases go, it was, at most, of average magnitude and complexity. The amount recovered was less than the "lodestar" figure. And the "risk of litigation" is less a factor in a case where an attorney is retained to represent a single plaintiff, or small group of plaintiffs, than in a class action or stockholders' derivative suit where the attorney represents a vast number of interested persons or companies ...


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