in their favor after trial. When after a number of years of litigation defendants moved for summary judgment, plaintiffs were unable to point to any evidence or cite any authority sufficient to preserve the claims they had made against these former officers. The Union, under the direction of its new slate of officers, was entitled to commence and continue this action against the former officers. However, having failed to substantiate its claims against the moving defendants, the Union is required by principles of equity to pay their legal expenses. That I conceive to be the holding of Morrisey v. Segal. While the union in that case advanced legal expenses to the vindicated trustees, and no such advances were made or contemplated in the charged atmosphere of the case at bar, that is a distinction without a difference. The Union cannot transfer a refusal to advance an officer's legal expenses into a shield protecting it from equitable claims that arise when the Union cannot sustain its charges.
Cassidy v. Horan, 405 F.2d 230 (2d Cir. 1968), upon which plaintiffs place primarily reliance, is not to the contrary. Cassidy holds only that where an individual union member commences a § 501 action against union officers and the action is dismissed, the officers' claim for payment of counsel fees must be made "to the local union through its governing board and members," 405 F.2d at 233, and not against the individual plaintiff. To the extent pertinent to the case at bar, Cassidy suggests that the moving defendants' claims lie against the union and not the individual plaintiffs. I do not undertake to resolve that issue because the motion papers do not squarely present it. But nothing in Cassidy speaks to the question of whether former officers may in the present circumstances require an unwilling union to reimburse legal expenses.
I hold that the moving defendants are entitled to do so, under the LMRDA and the cases construing it. In the view I take of the case I do not reach the other asserted bases for payment.
Amount of the Claim
Counsel for the moving defendants assert claims for attorneys' fees and disbursements totalling $ 551,854.61. To that they add fees and costs incurred with respect to the present motion totalling $ 19,332.37 ($ 6,739.66 on the original motion and $ 12,592.71 on the reply papers).
The time sheets presented by counsel are in proper form. The hourly amounts charged are reasonable. I reject plaintiffs' contention, for the most part expressed in conclusory terms, that the rates and times claimed are excessive.
Nevertheless, the claimed fees and expenses are subject to substantial reduction.
As noted, Mr. Stewart and the attorneys associated with him represent ten of the eleven defendants. Eight of those defendants obtained summary judgment dismissing the claims against them. Defendants Doris Turner and Telbert King did not. Accordingly, and appropriately, the present motion seeks attorneys' fees and expenses only in respect of the eight defendants who were successful. However, the time records submitted in support of the claim refer to services rendered to all ten defendants. A considerable percentage of the time involved relates to Turner or King. That is not surprising, since Turner was the president of the Union prior to the 1986 election and King was one of her principal associates. Counsel are not entitled to include time spent advising Turner or King in a claim for fees and expenses in respect of services rendered to the other eight defendants. Equity requires an allocation.
My examination of the time sheets indicates that one-third of the fees and expenses charged for the litigation should be allocated to counsel's defense of Turner and King. On this basis, I disallow one-third of the claim total of $ 551,854.61, or $ 183,951.53. The moving defendants may recover the balance of $ 367,903.08, together with $ 19,332.37 in respect of fees and costs on this motion, for a total recovery of $ 387,235.45.
Defendants ask that "the final fee award should be enhanced by 40% to account for taxes." No authority is cited for this startling proposition and I reject it.
The moving defendants are directed to settle a judgment consistent with this opinion on seven (7) days' notice on or before June 15, 1995.
It is SO ORDERED.
Dated: New York, New York
May 25, 1995
CHARLES S. HAIGHT, JR.
UNITED STATES DISTRICT JUDGE
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