has submitted an affidavit relating to their respective lodestars.
One of these firms, Weiss & Yourman, claims that it spent 1,028.75 hours on this matter. 707.50 of these hours were spent by a senior partner, Joseph H. Weiss, 220.25 hours were spent by Moshe Balsam, a senior associate, and 101 hours were spent by Mark D. Smilow, a junior associate. The affidavit of Joseph Weiss relating to attorney's fees includes contemporaneous time records detailing how each member of the firm spent these hours. (Weiss Aff. p.3). At the hourly billing rates claimed for Mr. Weiss, Mr. Balsam and Mr. Smilow of $ 495, $ 365, and $ 225, respectively, Weiss & Yourman assert that their lodestar is $ 453,332.75.
A similar analysis is undertaken in a separate affidavit filed by Jules Brody on behalf of the other firm representing plaintiff, Stull, Stull & Brody. (Brody Aff. p. 3). Stull, Stull & Brody claim that four attorneys and one paralegal spent a total of 843.5 hours on the case. 660.5 of these were expended by a senior partner who claimed an hourly billing rate of $ 495, 108.5 were spent by a paralegal whose hourly rate was claimed to be $ 150, and the remainder of the time was divided between three associates whose billing rates varied between $ 250 and $ 295. Using these figures, Stull, Stull & Brody claim that their lodestar is $ 361,762.50.
The court has thoroughly examined the time records and finds that the amount of time claimed for each attorney and the paralegal is reasonable. Moreover, the hourly billing rates do indeed correspond to the "rate normally charged for similar work by attorneys of like skill in the area," as required by Second Circuit precedent. Grinnell II, 560 F.2d 1093 at 1098. Thus, the total of $ 815,095.25 appears to be a reasonable lodestar.
B. Mulitplier to be Attached to Attorney's Fees Award
Seeking to make their lodestar award identical to the 27.5% percentage of recovery award which they originally sought, counsel urge the court to apply a multiplier of 2.97 when using lodestar analysis.
There is nothing in this case which justifies the use of such a large multiplier, particularly when the use of multipliers has become increasingly disfavored. The Second Circuit has made clear that in the event that the lodestar figure is sufficient to compensate counsel, a multiplier need not be used. Grinnell II, 560 F.2d at 1099. As a result, their use has been called into question by courts in this Circuit on more than one occasion. See, e.g., Boesky, 888 F. Supp. at 564 n.6; In re Bolar Pharmaceutical Co., Inc. Sec. Lit., 800 F. Supp. 1091, 1096 n.7 (E.D.N.Y. 1992). Moreover, the Supreme Court has discouraged and in some cases altogether prohibited the use of multipliers in cases involving mandatory fee-shifting under various federal statutes. Blum, 465 U.S. at 898-900, 104 S. Ct. at 1548-49 (holding that the special skill and experience of counsel, the quality of representation and the results obtained from the litigation cannot serve as independent bases for increasing the basic fee award); Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 564-65, 106 S. Ct. 3088, 3098, 92 L. Ed. 2d 439 (1986) (same); City of Burlington v. Dague, 505 U.S. 557, 112 S. Ct. 2638, 120 L. Ed. 2d 449 (1992) (holding that risk is not an appropriate basis upon which to enhance an award)
As a result, a number of courts in this Circuit have refused to enhance the attorney's fee award with any multiplier. See, e.g., Trief v. Dun & Bradstreet Corp., 840 F. Supp. 277, 283-85; Maywalt v. Parker & Parsley Petroleum, 864 F. Supp. 1422, 1437 (S.D.N.Y. 1994), aff'd, 67 F.3d 1072 (2d Cir. 1995). The majority of those courts in which multipliers have been used have not employed a multiplier as high as 2.97. See, e.g., In re McDonnell Douglas Equipment Sec. Lit., 842 F. Supp. 733 (S.D.N.Y. 1994) (applying a multiplier of 1.44); Steinberg, 1990 U.S. Dist. LEXIS 13516, 1990 WL at *2 (applying a multiplier of 1.13); Union Carbide, 724 F. Supp. 160, 170 (using a multiplier of 2.3 for some counsel and 1.5 for other counsel). But see Rabin v. Concord Assets Group, Inc., 1991 U.S. Dist. LEXIS 18273, 1991 WL 275757 (S.D.N.Y.)(using a multiplier of 4.4).
Given this backdrop, it should come as no surprise that the court declines to apply a multiplier of 2.97. The court does hold, however, that counsel is entitled to a more modest multiplier on the basis of risk contingency as well as the complexity of the litigation. At first blush, this case does not seem exceedingly complex or risky, since no motions of any sort were ever filed, discovery was informal, and the case was effectively settled in about two years. However, there was one complicating factor which is important: defendant is a foreign corporation. As the court indicated in its April 28, 1997 opinion, this increased the risk contingency, since defendant may have been able to argue lack of personal jurisdiction. Moreover, a judgment rendered against it by this court may have been difficult to enforce. Finally, though discovery, because it was conducted on an informal basis throughout most of this litigation, was not burdensome, had any formal discovery requests been necessary, counsel would have been forced to spend considerably more time and effort procuring the information it needed from a foreign source.
In light of all of these factors, and employing its sound discretion, the court rules that a multiplier of 1.4 would be most appropriate. Thus, plaintiff's attorney's fees are enhanced to a total of $ 1,141,133.35, with Weiss & Yourman collecting $ 634,665.85 and Stull, Stull & Brody collecting $ 506,467.50.
Both of the firms representing plaintiff also seek the reimbursement of expenses. Weiss & Yourman claims that it has spent $ 155,035.81 in expenses. In an affidavit filed by Joseph H. Weiss on behalf of that firm on this issue, each of the expenses is listed. (Weiss Aff. P4). The other firm, Stull, Stull, and Brody, has likewise listed its claimed expenses of $ 13,187.90 in an affidavit submitted by Jules A. Brody. (Brody Aff. P4). In light of the substantial costs which were associated with notifying class members about the settlement, which constituted a significant part of these expenses, the court finds the expenses of $ 168,223.71 to be reasonable and awards them in full.
For the foregoing reasons this court awards the firm of Weiss & Yourman $ 634,665.85 in attorney's fees and $ 155,035.81 in expenses. The firm of Stull, Stull, and Brody is awarded $ 506.467.50 in attorney's fees and $ 13,187.90 in expenses.
Dated: July 28, 1997
New York, New York
Constance Baker Motley
United States District Judge