The opinion of the court was delivered by: SWEET
Counsel to the plaintiff class ("Class Counsel") in this settled class action have moved for an order awarding supplemental fees and expenses to Class Counsel.
For the reasons set forth below, Class Counsel's motion will be granted, as modified herein, and Class Counsel will be directed to make final distribution of the Net Settlement Fund to Authorized Claimants as approved in this Court's opinion of January 9, 1997. See Maywalt v. Parker & Parsley Petroleum Co., 1997 U.S. Dist. LEXIS 97, 1997 WL 7668 (S.D.N.Y. Jan. 9, 1997) (Maywalt VI).
Facts and Prior Proceedings
The facts and prior proceedings in this action are set forth fully in the previous opinions of this Court, familiarity with which is assumed. See Maywalt v. Parker & Parsley Petroleum Co., 808 F. Supp. 1037 (S.D.N.Y. 1992) (dismissing all claims against defendant investment bankers Smith Barney Harris Upham ("Smith Barney") and disposing of various other motions) ("Maywalt I "); Maywalt v. Parker & Parsley Petroleum Co., 147 F.R.D. 51 (S.D.N.Y. 1993) (certifying class pursuant to Rule 23(a)(4), Fed. R. Civ. P.) ("Maywalt II "); Maywalt v. Parker & Parsley Petroleum Co., 155 F.R.D. 494 (S.D.N.Y. 1994) (denying Class Representatives' motion to discharge Class Counsel) ("Maywalt III "); Maywalt v. Parker & Parsley Petroleum Co., 864 F. Supp. 1422 (S.D.N.Y. 1994) (approving settlement and awarding fees and expenses to class counsel and one class representative) ("Maywalt IV "); Maywalt v. Parker & Parsley Petroleum Co., 1995 U.S. Dist. LEXIS 3909, No. 92 Civ. 1152, 1995 WL 138626 (S.D.N.Y. March 30, 1995) (denying class representatives' motion for payment of fees and expenses and motion for reargument; denying one class representative's motion for sanctions and additional fees; granting in part motion for reimbursement of class members who contributed to litigation funds) ("Maywalt V "). See also Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072 (2d Cir. 1995) (affirming settlement).
In an opinion dated January 9, 1997, this Court granted certain motions related to the distribution of the Settlement Fund in this case, but denied Class Counsel's application for supplemental fees and expenses for insufficient documentation, but granted leave to resubmit a more detailed fee application. Maywalt v. Parker & Parsley Petroleum Co., 1997 U.S. Dist. LEXIS 97, 1997 WL 7668 (S.D.N.Y. Jan. 9, 1997) ("Maywalt VI ").
The initial Settlement Fund in this case was $ 8.25 million. As of August 1, 1996, a total of over $ 620,000 in interest had been earned on the fund. Class Counsel has already been awarded $ 2,185,787.70 in attorneys' fees and $ 183,481.65 in expenses. This award did not include payment for the hours or expenses for Which Class Counsel seeks reimbursement here, which relate to defending the settlement and administering the Settlement Fund.
Class Counsel now request, in aggregate, an additional $ 440,325 in fees and $ 36,835.63 in expenses.
Class Counsel filed this motion on January 27, 1997. No opposition was filed, and the matter was deemed fully submitted on the return date of February 12, 1997.
Maywalt VI set forth the standards and methodology for calculating and evaluating attorneys' fees and expenses in a "common fund" case such as this. 1997 U.S. Dist. LEXIS 97, 1997 WL 7668, *5-*7. Under the American Rule, a prevailing party generally is not permitted to collect fees from the loser. However, an exception to the rule exists whereby courts may, in the exercise of their equitable powers, award attorneys' fees to plaintiffs who have recovered a "common fund" for themselves and others. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 561-62 & n.6, 92 L. Ed. 2d 439, 106 S. Ct. 3088 (1986). Attorneys' fees may be awarded for efforts to preserve a settlement against challenges from class members. See, e.g., Grant v. Martinez, 973 F.2d 96, 100 (2d Cir. 1992) (awarding attorneys' fees to class counsel defending settlement of Title VII class action).
The law of this Circuit is that "the starting point of every fee award . . . must be a calculation of the attorney's services in terms of the time he [or she] has expended on the case." City of Detroit v. Grinnell Corp., 495 F.2d 448, 470 (2d Cir. 1974). This rule requires the court to multiply the number of hours reasonably expended by a reasonable hourly rate to arrive at a reasonable attorneys' fee award. Id. at 471. This method has come to be known as the "lodestar" formula. See In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987) (describing lodestar approach), cert. denied, 487 U.S. 1234, 101 L. Ed. 2d 933, 108 S. Ct. 2900 (1988).
A fee application must be supported by contemporaneous time records which describe with specificity the work done and state "for each attorney, the date, the hours expended and the nature of the work done." New York State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). See also Lewis v. Coughlin, 801 F.2d 570, 577 (2d Cir. 1986). The "burden is on counsel to keep and present records from which the court may determine the nature of the work done, the need for it, and the amount of time reasonably required; where adequate contemporaneous records have not been kept, the court should not award the full amount requested." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987) (rejecting time records with insufficient descriptions of attorney's work). The Supreme Court has found that "counsel, of course, is not required to record in great ...