prosecution of claims for their personal clients, they presented nothing of influence or use on the negotiation of the settlement for the Settlement Class in MDL 1005. On the whole, the information and/or alleged services provided by the Miller Firm was of insignificant, minimal and de minimis value or benefit in the development, prosecution, and partial resolution of MDL 1005 by the settlement achieved by the Class and its associated counsel.
25. The Miller Firm Application reports a lodestar of $ 2,746,117.50 for work exclusively undertaken by them in the First Action. The Miller Firm Application seeks an enhancement multiplier of 2, requesting a fee of $ 5,492,235. In addition, the Miller Firm Application seeks reimbursement of expenses incurred in the First Action in the amount of $ 543,811.56. The Miller Firm Application, thus seeks an award from the Settlement Class in MDL 1005 in the amount of $ 6,036,046.56.
26. In connection with the resolution of the claims of the Madison Plaza investors who had individually retained them on a contingent fee basis, the Miller Firm has represented to the Court that it has received legal fees of approximately $ 5,250,000. This represents a multiple of almost two times their reported lodestar that they have already received. The application by the Miller Firm does not in any event and under all the facts and circumstances persuade the Court that any enhancement to their lodestar would have been appropriate in this action. Based on the record and the disclosures made at the fairness hearing, it is clear that the Miller Firm received this $ 5,250,000 in exchange for the services that the Miller Firm is now again applying for before this Court. The Miller Firm has already been compensated in amounts that far exceed the rates applied for by the members of the Executive Committee of class counsel in MDL 1005, who seek a 1.57 blended multiple for services which actually created the Settlement herein.
27. The ability of the Miller Firm to solicit and obtain individual retainers from Madison Plaza investors; to promptly settle and resolve these claims; and to receive the substantial compensation which it received in connection with the settlement of these claims, was a direct result of the Miller Firm's expenditure of professional time, effort, and expense in the prosecution of the First Action.
28. The lodestar and expenses for which the Miller Firm seeks compensation from MDL 1005 actually directly benefitted their individual Madison Plaza clients and they have been compensated in full therefor.
29. The Miller Firm has already received adequate compensation for all of their efforts in connection with their claims herein, and were the Court to grant the Miller Firm Application in any part, the Miller Firm would receive a duplicate payment and windfall at the expense of the Settlement Class for the same legal services.
CONCLUSIONS OF LAW
1. Where specific legal services are rendered by counsel which has the effect of benefitting a class by tending to create, increase, protect or preserve a fund, such counsel may equitably be awarded compensation from such common fund available to satisfy claims of class members even if such counsel was not "of record" in the class litigation. See Sprague v. Ticonic Bank, 307 U.S. 161, 166, 59 S. Ct. 777, 83 L. Ed. 1184 (1939); City of Detroit v. Grinnell Corp., 495 F.2d 448, 474 (2d Cir. 1974); Dubin v. E.F. Hutton Group, Inc., 845 F. Supp. 1004 (S.D.N.Y. 1994). Attorneys' fee awards from a common fund depend on whether the attorneys' "specific services benefitted the fund -- whether they tended to create, increase, protect or preserve the fund." Lindy Bros. Builders, Inc. v. American Radiator, Etc., 540 F.2d 102, 112 (3rd. Cir. 1976).
2. That principle, being equitable in nature, does not entitle counsel to double payment for the mere incidental recycling of their original efforts which have been otherwise fully compensated. Cranston v. Hardin, 504 F.2d 566, 579-580 (2d Cir. 1974) ("[petitioners] have already been adequately compensated since . . . they were awarded $ 750,000 in [another] case. It is a novel assertion that attorneys who are victorious in one case may, like the holder of a copyright, claim fees from all subsequent litigants who might rely on it in one way or another.").
3. "The question of whether, and to what extent, a Firm that represents private parties in separate litigation can recover attorney's fees in a class action covering the same matter has arisen in connection with previous settlements. Courts have held that work that was not undertaken for the purpose of benefitting the class (as opposed to the lawyers' private clients), or which did not actually result in such a benefit, could not be the basis for a fee award." In re: Prudential-Bache Energy Income Partnerships Securities Litigation, 1994 U.S. Dist. LEXIS 6621, *29 (E. D. LA. May 18, 1994).
4. Neither the case law nor equity requires compensation where the benefit contributed is incidental, or of a minimal or de minimis value to the class. Class Plaintiffs v. Jaffe & Schlesinger, P.A., 19 F.3d 1306, 1309 (9th Cir. 1994) ("We know of no authority which mandates an award of fees to attorneys not formally representing the class, whose activities in representing others incidentally benefit the class."); Cranston, 504 F.2d at 579; In re Marine Midland Motor Vehicle Leasing Lit., 155 F.R.D. 416, 423 (W.D.N.Y. 1994).
5. Moreover, where legal work has been performed on behalf of claimants who have elected to exclude themselves from the class -- particularly where, as here, they have done so at the behest of the counsel seeking fees -- it would be inappropriate to impose the cost of that work on the class. See, generally, Class Plaintiffs, 19 F.3d at 1306; In re "Agent Orange" Product Liability Litigation, 818 F.2d 226 (2d Cir. 1987); Cranston, 504 F.2d at 579; Marine Midland, 155 F.R.D. at 422-423.
For all of the foregoing reasons and under all the facts and circumstances, the Court DENIES the Miller Firm Application in its entirety, concluding that the Miller Firm has been fully compensated for its services and that the information and/or assistance it provided or rendered in connection with the prosecution and/or settlement of MDL 1005 was of only incidental, minimal, or de minimis benefit to the Settlement Class, requiring no further compensation.
The foregoing shall constitute the Court's Findings of Fact and Conclusions of law including the preliminary Opinion set forth above, regarding application by the Miller Firm for attorneys' fees, costs and expenses. In view of the substantial administrative matters involving thousands of claims in the distribution process concerning the Partial Settlement herein and the ongoing pendency of their claims in this docket against others not involved in this matter, this Court certifies in accordance with Rule 54(b) Fed. R. Civ. P. that final judgment should be entered on the matters involved herein and the Court expressly determines there is no just reason for delay and the Clerk is directed to enter final judgment hereon forthwith.
Dated: January 22, 1996
Senior United States District Judge