The opinion of the court was delivered by: DUFFY
This action was instituted pursuant to the Civil Rights Act of 1964 in January of 1973 by and on behalf of nine female employees and other union and nonunion employees similarly situated and the International Union of Electronic, Electrical, Technical, Salaried and Machine Workers ("IUE") and several of its locals to challenge certain practices of defendant General Motors Corporation ("GM") as discriminatory. Specifically, Count I of the complaint contained allegations concerning the limitation by GM of sickness and accident benefits for pregnancy to six weeks. Count II dealt with the mandatory maternity leave policy of GM. Finally, in Count III, plaintiffs alleged that GM discriminated against female employees by refusing to pay them sickness and accident benefits for disability due to bilateral tubal ligation surgery.
During the early stages of this litigation, three subclasses separated by Count were certified and Count I was dismissed. See Grogg v. General Motors Corp., 72 F.R.D. 523 (S.D.N.Y. 1976); Grogg v. General Motors Corp., 444 F. Supp. 1215 (S.D.N.Y. 1978).
In December 1971, GM had formally discontinued its mandatory maternity leave policy and the new collective bargaining agreement, effective November 22, 1976, provided that certain elective surgical procedures such as tubal ligations would be covered by disability benefits. Thus, Counts II and III, insofar as they sought declaratory relief, became substantially moot. In addition, on October 31, 1978, Title VII was amended to prohibit sex discrimination on the basis of pregnancy. Accordingly, in 1978, the parties, including the IUE, entered into settlement negotiations to resolve the residual aspects of the case. Pursuant to my Order, during the settlement negotiations, IUE house counsel Winn Newman, Esq., who was participating in the discussions, engaged as independent outside counsel, the law firm of Abourezk, Sobol & Trister ("Abourezk"). In November of 1979, the settlement agreement was submitted to me for approval. The union plaintiffs joined the UAW in filing objections to the proposed settlement. The first proposed settlement was not approved because the cut-off date for Count II claims excluded class members who were forced to take involuntary maternity leave between April and December of 1971. See Grogg v. General Motors Corp., 529 F. Supp. 293 (S.D.N.Y. 1981).
Thereafter, settlement negotiations were resumed and resulted in an August 5, 1983 Stipulation of Settlement. The second settlement, which was ultimately approved by an October 28, 1983 Judgment and Order, provided no relief on Count I, but provided for a fund of $600,000 to $800,000 for the payment of eligible claims of Count II subclass members and for payments of $200 for each eligible claim submitted by Count III subclass members. The individual plaintiffs who were represented by the law firm of Vladeck, Waldman, Elias & Engelhard, P.C. ("Vladeck") settled with GM its claim pursuant to 42 U.S.C. § 2000e-5(k) for attorneys' fees. The two other firms involved in this matter now move for an interim award of attorneys' fees and litigation expenses.
First, the law firm of Lewis, Greenwald, Kennedy & Lewis, P.C. ("Lewis"), asserts that it is entitled to an attorneys' fees award as it acted as co-counsel with Vladeck for the individual plaintiffs after the death of Irving Abramson, Esq. who, before his death, had Vladeck's co-counsel. (Vladeck's fees included the fees generated by Abramson's work). Second, the Abourezk law firm which represented the union plaintiffs, including the IUE, seeks an attorneys' fees award. GM opposes both applications.
Section 706(k) of Title VII to the Civil Rights Act of 1964 ("the Act") provides in part that the court, in its discretion, may allow a "prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000e-5(k). Only "prevailing parties" may recover attorneys' fees under section 1988. A plaintiff may be considered a prevailing party if "'they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). Reasonable attorneys' fees are ordinarily granted to prevailing plaintiffs absent special circumstances. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 415, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). Furthermore, a party who secures substantial relief by way of settlement has been found to constitute a "prevailing party." See Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980); Mendoza v. Blum, 560 F. Supp. 284, 287 (S.D.N.Y. 1983).
A. Lewis, Greenwald, Kennedy & Lewis, P.C.
Lewis claims that it is entitled to an interim award of attorneys' fees in the amount of $17,362.50 because it substituted for Irving Abramson, Esq. as co-counsel with Vladeck for the individual plaintiffs after Mr. Abramson died in January 1981. Although GM did not object to the payment of Mr. Abramson's fees as part of its settlement with Vladeck, it does object to paying the fees of the Lewis firm arguing that neither GM nor Vladeck ever recognized Lewis as co-counsel.
Furthermore, GM asserts that no significant relief was procured by Lewis for its clients. GM notes that the Lewis firm submitted retainer agreements in 1981 for three individually-named plaintiffs which indicate that only two of the three, Ms. Grogg and Ms. Altier, will recover under the settlement. The third individual, Barbara McKnight, will not recover because her allegedly mandatory maternity leave began on April 15, 1971, one day before the maternity leave date used as a cut-off for valid claims. The recovery by the two plaintiffs represented by the Lewis firm apparently will be, solely by virtue of their being members of the Count II subclass, approximately $750 each. GM states also that the recovery by the two plaintiffs represented by Lewis would be the same if Vladeck alone represented the individual plaintiffs.
In further opposition to Lewis' claim, GM asserts that the law firm's role in the negotiation of the second settlement was "largely, if not completely, duplicative and redundant of the representation provided to the class by the Vladeck firm." Affidavit of Anthony M. Radice P 8. The Lewis fee application contains a request for 43 hours expended prior to June of 1981. GM objects to those fees -- as being incurred prior to the time Lewis represented anyone in this matter. Finally, GM asserts that any award to Lewis should be substantially reduced.
There is no dispute that pursuant to my Order the Lewis firm was substituted properly for Mr. Abramson. Once the substitution became effective in June 1981, it appears that the Lewis firm diligently attended all negotiation sessions and conferences. Abramson was the original counsel for the individual plaintiffs and it was he who retained the Vladeck firm as co-counsel. At the time of the proposed substitution, I considered the Vladeck firm's objections to the substitution of Abramson by the Lewis firm. Ultimately, however, I decided that such substitution was proper. It is inconsistent for GM to recognize that Mr. Abramson represented prevailing parties but not to recognize that Mr. Abramson's successor did so. The fact that by reason of the settlement, two of the individuals represented by the Lewis firm ...