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October 10, 1985

EDNA H. SOBEL, M.D., and BELLA C. CLUTARIO, M.D., on behalf of themselves and other professional faculty members employed by the Defendant, Yeshiva University, similarly situated, Plaintiffs, -and- EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Intervenor, against YESHIVA UNIVERSITY, Defendant

The opinion of the court was delivered by: GOETTEL


This seemingly interminable Title VII class action having finally been concluded, the Court is now confronted with motions by both the plaintiffs and the defendant for attorneys' fees. For the reasons stated below, we conclude that neither party should be awarded attorneys' fees.


 This action was filed May 9, 1975, by two female physicians employed at the Albert Einstein College of Medicine ("AECOM"). *fn1" They asserted that they, and all similarly situated women employees of AECOM, had been discriminated against on the basis of sex, and thereby received inferior treatment with respect to salary increases, promotions, pensions, and other fringe benefits. The plaintiffs' original pension claim was that, since the salaries of the plaintiffs were lower, the contributions made by the defendant employer based upon those salaries, and the benefits to be received, were, accordingly, lower. On May 31, 1977, this Court allowed the Equal Employment Opportunity Commission ("EEOC") to intervene. On September 26, 1979, we certified the plaintiff class.

 In 1979, the defendant moved for summary judgment, asserting that the named plaintiffs had failed to prove any personal claims of discrimination. In opposing that motion, the plaintiffs varied their original pension claim, citing Los Angeles Department of Water & Power v. Manhart, 435 U.S. 702, 55 L. Ed. 2d 657, 98 S. Ct. 1370 (1978). In Manhart, the Supreme Court had recently held that requiring female employees to make larger contributions to a pension fund than did their male counterparts (in view of the greater average longevity of females) in order to receive the same retirement benefits, violated Title VII. Relying on Manhart, the plaintiffs asserted that the use of sex-segregated mortality tables to calculate the amount of pension benefits paid on retirement was discriminatory. Although different from the plaintiffs' original pension claim, this Court allowed the revised claim to stand, Sobel v. Yeshiva University, 477 F. Supp. 1161, 1165 n.3 (S.D.N.Y. 1979), and denied the defendant's motion, noting that "questions of fact exist which preclude the granting of summary judgment." Id. at 1167.

 The parties completed discovery and prepared extensive statistical reports regarding the alleged discrimination. On June 24, 1984, after a three-week bench trial, this Court issued its findings. Sobel v. Yeshiva University, 566 F. Supp. 1166. The defendant prevailed on all but the pension claim, on which we reserved decision because of the developing case law following Manhart, supra. Id. at 1192. Two circuit court decisions were then on appeal to the Supreme Court. See Spirt v. Teachers Insurance & Annuity Association, 691 F.2d 1054 (2d Cir.), petition for cert. filed, 459 U.S. 1013, 103 S. Ct. 371, 74 L. Ed. 2d 506 (1982); Norris v. Arizona Governing Committee for Tax Deferred Annuity, 671 F.2d 330 (9th Cir.), cert. granted, 459 U.S. 904 (1982). *fn2" These cases indicated that an employer's use of sex-segregated mortality tables in an employee pension plan was discriminatory. *fn3"

 The parties attempted to agree upon a remedy for the pension claim but were unable to do so until the eve of a scheduled trial on that issue. Devising a remedy for the the discrimination in the AECOM plan was complicated by the fact that it was administered by a private insurer, not a party to the litigation. Ultimately, the parties agreed on changes in the pension plan acceptable to the insurer. *fn4" All claims in suit having been resolved, each party now moves for its attorney's fees.

 The Motions for Attorneys' Fees

 The plaintiffs move for an award of attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) (1982), which provides that "the court, in its discretion, may allow the prevailing party, ... a reasonable attorney's fees as part of the costs." Both the plaintiffs' original counsel and successor counsel have filed motions for their fees. The parties have submitted voluminous papers in support of, and in opposition to, each application. The flood of litigation has not, however, stopped there. The defendant has filed a similar motion, claiming that it, rather that the plaintiffs, is the prevailing party and should be awarded an attorney's fee and costs. Again, the moving and opposition papers are voluminous. *fn5" Since both parties claim to be the "prevailing party," this Court is faced with a perplexing decision. Should the plaintiffs, having prevailed through settlement on one of their claims (albeit a claim not originally asserted but successful because the case law changed during the long pendency of this action), be awarded an attorney's fee? If so, should an award by made to plaintiffs' original or successor counsel, or both, and in what amount? On the other hand, should the defendant, who prevailed on all other claims in this action, be awarded an attorney's fee?

 1. The Motions by the Plaintiffs' Counsel

 Plaintiffs' original counsel, Bonnie Josephs, seeks $50,000, pursuant to 42 U.S.C. § 2000e-5(k), for her services in litigating the pension discrimination issue on which the plaintiffs ultimately prevailed. She first asserted this claim in opposing the defendant's motion for summary judgment. The Court deferred ruling on the pension claim while Norris, supra, was pending before the Supreme Court. The Norris decision, see supra note 2, made clear the need for a change in the pension tables, and the remedy for the pension claim was ultimately settled. Josephs asserts that she conducted discovery that highlighted the disparity between pension benefits paid by the defendant to the plaintiffs and those paid to similarly situated males. Although she did not represent the plaintiffs at trial, she participated in the settlement of the pension claim. *fn6"

 Plaintiffs' successor counsel, Specter & Buchwach ("S&B") seek an award of $35,000 for attorneys' fees. They assert that, since the plaintiffs prevailed on a significant aspect of their claims, S&B is entitled to a reasonable attorney's fee award. They seek compensation for time spent trying the pension issue, preparing that issue for trial, and settling the damages for that claim. Both Josephs and S&B also seek compensation for time spent preparing these motions for attorneys' fees.

 The defendant opposes both applications on a number of grounds. It argues that the plaintiffs have not met their burden of establishing entitlement to an award. Since the plaintiffs may not receive an award for non-prevailing claims, the defendant urges the Court to deny the plaintiffs' applications because their counsels' records do not clearly distinguish between time spent on successful and unsuccessful claims. The defendant further asserts that the plaintiffs are ...

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