not great in light of the initial benefits offered by Brass.
In fact, were plaintiffs to receive the fee they request, the
attorney's fee award would greatly exceed the amount of the
actual increase in plaintiffs' benefits.
Plaintiffs' counsel has not demonstrated any legitimate
basis for an upward adjustment from the lodestar figure. The
same reasons that support a reduction in the rate and the
number of hours precludes enhancement of the lodestar figure.
In my view this case was not so complex that it warrants an
upward adjustment. Furthermore, the benefits were not so great
to plaintiffs or to a class of plaintiffs as to warrant an
Based on the above, plaintiffs are entitled to recover
attorneys fees for 255 hours at a rate of $150 for a total of
b. Attorney's Fees for the Fee Application
In addition to the fees sought for work performed prior to
settlement, plaintiffs also request attorneys' fees on the fee
application itself. Defendants do not appear to contest that
such fees may be awarded, but they argue that an award is not
appropriate here, in large part for the same reasons that they
believe plaintiffs should not recover fees on the underlying
action. Defendants also challenge the particular amounts
sought by plaintiffs.
Although the court is not bound to award fees incurred on
the fee application, as a general matter such time is
compensable if reasonably spent, since "a refusal to award
fees incurred in connection with the fee application would
tend to dilute the fee award and thus to undermine the very
purpose of awarding fees." Chambless v. Masters, Mates & Pilots
Pension Plan, 697 F. Supp. 642, 649 (S.D.N.Y. 1988), aff'd in
part and rev'd in part on other grounds, 885 F.2d 1053 (2d Cir.
1989); see also Gagne v. Maher, 594 F.2d 336, 344 (2d Cir.
1979), aff'd, 448 U.S. 122, 100 S.Ct. 2570, 65 L.Ed.2d 653
It appears that the award may also include compensation for
the services of an attorney retained in connection with the
fee application. Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.
1990). However, this too is subject to the reasonableness
requirement, and the trial court has discretion to determine
whether fee counsel's services were justified in a particular
case. Jonas v. Stack, 758 F.2d 567, 569 (11th Cir. 1985).
In the case at bar, plaintiffs' counsel (Pottle) seeks
compensation for 50.9 hours of work he performed following
settlement of the case and prior to his retention of Mitchell
T. Williams, Esq., to represent him on the fee application. In
addition, Pottle seeks fees for himself after he retained
Williams for a total of 65 hours relating to time spent in
connection with the fee application. All time charged
subsequent to the settlement is based on a $200 per hour rate
for total fees incurred after the settlement and in connection
with the fee application of approximately $23,000.
Plaintiffs also request an award of $15,650 for 78.25 hours
of services rendered by Mitchell Williams on the fee
application, and of $5,687.50 for 45.5 hours rendered by
Williams' associate, Martha Williams, Esq., at rates of $200
and $125 per hour respectively. The total of these amounts for
Williams' services is $21,337.
Plaintiffs further ask for $2,000 in fees for their expert
witness on the fee application, Robert H. Wagner, Esq. Wagner
has submitted an affidavit stating that he spent ten hours on
the case, and that his rate is $200 per hour. Lastly,
plaintiffs seek $757.35 in disbursements.
Having considered the exhibits and briefs submitted by the
parties on this issue, I find that plaintiffs are entitled to
some fees for work performed by Willard Pottle up until the
time he retained Mitchell Williams. I also find, however, that
the time claimed by Pottle from September 27, 1989 to November
29, 1989 is excessive. For example, Pottle claims he spent
seven hours on October 19, 1989 "Sorting out exhibits for
affidavit, dictating affidavit, re-doing exhibits. Call to
Cordes for copies of releases." Without further explication,
this seems excessive. Furthermore, Pottle's time records give
a total for each day
without showing how much of that total was spent on each
activity. On October 18, for instance, Pottle states he spent
six and a half hours "Researching Rule 11, Section 1927 & fee
matters and review of file — dragging out prior motions,
brief, moving papers." It is impossible to tell from this how
much time was spent on research and how much time "dragging
out" papers. Consequently, it is difficult to determine the
reasonableness of such figures. To this extent, I find that
plaintiff has not met his burden of accounting for his time
with sufficient precision. Chambless I, supra, 815 F.2d 869.
In addition, some of the time Pottle spent during this
period relates to matters other than the successful ERISA
claim or plaintiffs' fee application, and I do not believe
that fees are warranted on those matters. In particular, it
appears that at least fifteen hours are attributable to work
done in response to Brass' motions for fees and sanctions;
again, an exact accounting of this time is impossible because
the entries in the time records are often lacking in detail.
After reviewing the time sheets submitted by Pottle, then,
and making the appropriate deductions as indicated above, I
find that plaintiffs should be awarded fees for a total of
31.6 hours spent by Pottle after settlement of the ERISA
claims and prior to Mitchell Williams' entry into the case.
Using the same rate of $150 per hour as already applied,
plaintiffs are awarded $4,740 for this portion of the work
performed on the fee application.
I further find that plaintiffs are entitled to compensation
for the services performed by Mitchell Williams and Martha
Williams in connection with the fee application. This part of
the case was relatively complex and hard-fought on both sides,
and I therefore do not consider it unreasonable for plaintiffs
to have hired an attorney for the fee litigation. I have
reviewed the time sheets submitted on this application, and
conclude that the hours claimed are reasonable.
As to the rate of compensation, however, I find that $150
per hour is appropriate for Mitchell Williams' services,
rather than the $200 hourly rate sought. Plaintiffs submitted
little evidence to support the $200 figure other than the
evidence already discussed in regard to the rest of the fee
application. While Mitchell Williams alleges in his affidavit
that Alexander Cordes, Esq., who represents ARCO, charges or
has charged $210 per hour, that has not been proven and, in
any event, is not determinative of the appropriate rate.
Chambless II, 885 F.2d at 1059. As stated, I believe that the
evidence submitted shows $150 per hour to be a fair rate in
this case, and I accordingly award plaintiffs $11,737.50 for
Mitchell Williams' services. Martha Williams' time will be
compensated at the rate of $100.00, for a total of $4,550.00.
Therefore, the total compensable time to the Williams' firm is
Plaintiffs, however, will not receive an award for the time
spent by Willard Pottle at or directly in connection with the
hearing on attorneys' fees. At that time, Pottle was no longer
acting as attorney, but as a witness. For both he and Mitchell
Williams to receive fees for this time would be duplicative
and, therefore, unreasonable. The fee application itself was
not of such a nature that it required Williams, his associate
and Pottle to effectively litigate the matter.
The issue concerning the $2,000.00 expert witness fee, is
whether the fee is properly compensable in light of the
Supreme Court's decision in Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385
(1987), which held that "absent explicit statutory or
contractual authorization for the taxation of the expenses of a
litigant's witness as costs, federal courts are bound by the
limitations set out in 28 U.S.C. § 1821 and § 1920," which
provide respectively that "[a] judge . . . may tax as costs"
certain items, including witness fees, and that a "witness
shall be paid an attendance fee of $30.00 per day for each
There is as yet no explicit Supreme Court or Second Circuit
authority on the extent to which Crawford applies to cases
involving fee-shifting statutes, and courts in other circuits
have been divided on this issue.
See, e.g., Denny v. Westfield State College, 880 F.2d 1465 (1st
Cir. 1989); West Va. Univ. Hosp. v. Casey, 885 F.2d 11 (3d Cir.
1989), cert. granted, ___ U.S. ___, 110 S.Ct. 1294, 108 L.Ed.2d
472 (1990); Friedrich v. City of Chicago, 888 F.2d 511 (7th
Cir. 1989); SapaNajin v. Gunter, 857 F.2d 463 (8th Cir. 1988).
However, in a decision which was affirmed without opinion by
the Second Circuit, the court in Hillburn v. Comm'r, Conn.
Dep't of Income Maint., 683 F. Supp. 23 (D.Conn. 1987), aff'd,
847 F.2d 835 (2d Cir. 1988), stated that it read Crawford as
applying only to awards under §§ 1821 and 1920 and Fed.R.Civ.P.
54(d). The court held that Crawford did not reach the question
of awards under the 42 U.S.C. § 1988, and therefore granted an
award for the fees of an expert witness used in connection with
a fee application.
Similarly, the court in United States v. Yonkers Bd. of
Educ., 118 F.R.D. 326 (S.D.N.Y. 1987), declined to apply
Crawford to an attorney's fee case decided under § 1988,
stating that "[i]n light of past practice, the congressional
policy of encouraging the assertion of legal rights in civil
rights matters . . . and the adverse impact which a $30 a day
limitation on expert witness reimbursement would have on such
litigation, we decline to impose such a ceiling." Id. at 330.
I find the reasoning of Hillburn and Yonkers to be
persuasive. Although both cases involved the Civil Rights Act,
the logic behind those decisions also applies to ERISA, which,
like the Civil Rights Act, is a remedial statute, enforcement
of which is encouraged by Congress. Furthermore, in light of
the Court of Appeals' affirmance of Hillburn, and in the
absence of any explicit authority from that court to the
contrary, I conclude that plaintiffs here are not bound by the
$30 per day limit applied in Crawford.
Brass argues that the expert witness fee is not compensable
because plaintiffs released defendants from all liability for
costs as part of the settlement. This release, however,
concerned the costs of the underlying action, not the costs of
the fee application. In fact, the parties expressly excepted
the matter of fees from the settlement. Since the parties
clearly contemplated that there would be litigation over the
fee application, I find that the settlement and releases do
not bar the awarding of reasonable costs directly connected
with the fee application. I therefore find that the use of an
expert in this case was appropriate. Furthermore, I find that
the time spent by him was reasonable but, consistent with this
decision, I determined that a reasonable rate for his services
is $150 per hour. Plaintiffs are entitled to recover fees for
the expert witness, Robert Wagner, in the amount of $1,500.
I will deny plaintiffs' request for $757.35 in
disbursements, however. Plaintiffs have submitted nothing to
support this claim other than a statement in Mitchell
Williams' affidavit that this was the total of plaintiffs'
disbursements. It is therefore impossible for the court to
know whether this figure is accurate, or what it covers.
Plaintiffs are therefore hereby awarded $59,277 as
reasonable attorneys fees on the ERISA claim against both
defendants and an additional $1,500 as expert fees.
5. Allocation Between Defendants of Attorney Fee
Brass argues that if fees are awarded to plaintiffs, Arco
should be responsible, not Brass. ARCO, not surprisingly,
suggests the opposite. The matter of allocation of fees as
between the two defendants is difficult in this case because
of the posture of the case. Because there has been a
settlement among the parties, no explicit finding of fault as
to either defendant has been made by either the court or the
parties. What is known is that plaintiffs have "prevailed" and
were provided benefits by ARCO according to ARCO's severance
plan and Brass has reimbursed ARCO for an unknown portion of
that pay out.