Since the general rule is that, with few exceptions, each
litigant in federal court should pay its own attorneys' fees
and that any statutory authorization for awarding a party
attorneys' fees must be express, see Alyeska, supra, 421 U.S.
at 245, 247, 257 et seq., 95 S.Ct. at 1615, 1616, 1621 et seq.,
the Court finds no justification for an award of attorneys'
fees in the present case in the Packers and Stockyards Act
Liberty Mutual also argues that, consistent with the
provisions of 7 U.S.C. § 209, it is entitled to pursue its
common law rights to collect attorneys' fees because it was
successful in an action "preserving or recovering a fund for
the benefit of others in addition to [it]self." Alyeska, supra,
421 U.S. at 257, 95 S.Ct. at 1621,*fn4 and particularly under
the "common fund doctrine," Boeing v. Van Gemert, 444 U.S. 472,
481, 100 S.Ct. 745, 750-51, 62 L.Ed.2d 676 (1980).
The common fund doctrine does not apply to the present case.
The common fund doctrine is based on the notion that those who
benefit from a lawsuit without contributing to its costs may
be taxed with a share of the expense of a successful lawsuit
by allowing the actual litigant to recover costs and
attorneys' fees from the common fund. Boeing, supra, 444 U.S.
at 478, 100 S.Ct. at 749.*fn5 It is a means of dividing the
costs of suit among successful litigants. Recovery of
attorneys' fees under such a theory would be based on the cash
sellers' assignments to Liberty Mutual. The cash sellers'
claims lay against A & B as trustee and not against Bankers
Trust. The failure to pay cash sellers to date was due to the
action of A & B as trustee in subordinating trust assets to
Bankers Trust's security interest through the Inter-Creditor
Agreement. A & B itself has no assets due to its bankruptcy.
Accordingly, the cash sellers' claims under common law could
not be collected against A & B. No proceedings were completed
against Rotches, Inc. and Bankers Trust by the bankrupt's
estate, so that no determination has been made of what accounts
receivable were valid and outstanding and were assets of the
trust. There is no showing that A & B would have had any funds
available to pay attorneys' fees.
With respect to the historic equity power to allow a trustee
of a fund to recover its costs, including attorneys' fees, as
stated in Alyeska, that also raises a difficult issue. Without
citing any other authority for its position, Liberty Mutual
states it has previously demonstrated that Rotches, Inc. owed A
& B the principal sum of $1,728,135.22. However, the Court's
prior opinion only held that "A & B's accounts receivable from
Rotches, Inc. can be recovered by Liberty Mutual in this action
to the extent that Liberty Mutual can establish that they are
valid claims of the statutory trust for funds required to make
payments under the statutory trust to the Sellers and not
claims asserted on behalf of A & B in a non-trustee capacity."
758 Supp. at 895. See also id., n. 6 ("the Court interprets the
Inter-Creditor Agreement as not subordinating to Bankers Trust
A & B's security interest in Rotches Inc.'s assets sufficient
to pay accounts receivable which A & B
held or would hold in trust for sellers of livestock under
7 U.S.C. § 196(b)").
Liberty Mutual suggests it has reached agreement with
Bankers Trust as to the amount Liberty Mutual may recover as
statutory trust assets, exclusive of interest and costs, as
$827,067.73 and states "If counsel fees are not added to the
principal and interest, the livestock suppliers will not
receive the `full payment' to which they are entitled as
beneficiaries of the statutory trust." Plaintiff's Memorandum
of Law in Support of Application for Attorneys' Fees, at 11 n.
4. The Court finds that Liberty Mutual has not made an
adequate record to establish that those due and payable
accounts receivable from Rotches, Inc. which were trust assets
exceed the principal and interest due the cash sellers or that
it has established that it has a right to deduct attorneys'
fees from trust funds due the beneficiaries. Furthermore,
since under this common law theory upon which Liberty Mutual
would recover, it is suing on behalf of A & B, as trustee, the
Court's finding that A & B violated its obligations as trustee
under the Packers and Stockyards Act must be considered.
Liberty Mutual, supra, 758 F. Supp. at 895. Under these
circumstances, there is an inadequate basis on which to
determine that any award of attorneys' fees can be paid.
Accordingly, Liberty Mutual's motion for attorneys' fees is
denied. The parties are ordered to appear for a conference at
9 a.m. on July 9, 1991, in Courtroom 302, United States
Courthouse, Foley Square, New York, New York.
IT IS SO ORDERED.