as part of application for attorneys' fees). I find that the
expenses are fair and reasonable and were necessarily incurred.
The photocopying figures, for example, are extremely high, but
this was a document intensive case, with documents dating back
more than fifty years. Thousands of exhibits were marked and used
during depositions and at trial. The computer legal research
charges are also reasonable; there were many difficult issues of
law that required extensive research. Briefs were written not
only for this Court but also for the Second Circuit and the
Supreme Court. The transcripts, including daily copy of the trial
testimony, were necessary. At trial both sides offered deposition
transcripts that literally filled boxes. The daily trial
transcripts were used by both parties as well as the Court,
during trial and after.
Accordingly, I will award the Trust costs in the amount of
$507,441.55, the sum remaining after deducting $438,288.94 and
$21,056.29 from $966,786.78.
The Trust paid $712,594.74 directly to actuarial and accounting
experts. Without doubt the work of these experts was critical.
Under well established principles of law, however, these expenses
are not recoverable, except to the extent of the $40 per day
statutory fee and travel expenses for witnesses in general. See
28 U.S.C. § 1821(b) (limiting witness fees to $40 per day). A
prevailing party may not recover expert witness fees, even where
a statute permits the recovery of attorneys' fees, unless the
statute explicitly provides for the recovery of expert witness
fees. Fed. R.Civ.P. 54(d)(1); West Virginia Univ. Hosps., Inc.
v. Casey, 499 U.S. 83, 86-87, 111 S.Ct. 1138, 113 L.Ed.2d 68
(1991) (expert fees in civil rights litigation could not be
shifted to losing party even though civil rights statute
permitted award of "reasonable attorney's fee," in absence of
provision expressly shifting expert witness fees); Crawford
Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441, 107 S.Ct.
2494, 96 L.Ed.2d 385 (1987) (Rule 54(d)(1) does not permit
taxation of costs for expert witnesses in excess of statutory
amounts provided in 28 U.S.C. § 1821(b)); see also Local Civ.
R. 54.1(c)(3) ("Fees for expert witnesses are taxable only to the
extent of fees for ordinary witnesses unless prior court approval
I awarded the Trust attorneys' fees and costs pursuant to
section 502(g) of ERISA, 29 U.S.C. § 1132(g). See 122 F. Supp.2d
at 465. As the cases have uniformly held, because section 502(g)
does not explicitly permit the recovery of expert witness fees,
expert witness fees are not allowable in these types of cases.
See, e.g., Agredano v. Mut. of Omaha Co., 75 F.3d 541, 544 (9th
Cir. 1996) (affirming disallowance of expert witness fees under §
1132(g)); Emmenegger v. Bull Moose Tube Co., 33 F. Supp.2d 1127,
1135-36 (E.D.Mo. 1998) (disallowing expert witness fees and
expenses under § 1132(g)); Garlock v. Nelson, No. 96-1096, 1998
WL 315089, at *1 (N.D.N.Y. June 9, 1998) ("ERISA does not
specifically permit fee-shifting for expert witness fees, and
therefore the limitations in 28 U.S.C. § 1821 are applicable.");
O'Bryhim v. Reliance Standard Life Ins. Co., 997 F. Supp. 728,
737 (E.D.Va. 1998) (expert witness fees, absent explicit
statutory or contractual authority, not taxable as costs in ERISA
case in amounts exceeding $40 per day).
Accordingly, the request for expert witness fees is denied,
except that the Trust is awarded expert witness fees and expenses
limited to $40 per day for each any expert witness testified at a
deposition or at trial (including any additional travel days),
together with corresponding travel
expenses to the extent permitted by 28 U.S.C. § 1821.
7. Interest on Fees and Costs
Hancock also objects to the assessment of prejudgment interest
on any award of attorneys' fees and costs. The objection is
Typically, when a court awards attorneys' fees under a
fee-shifting statute, the court uses current hourly rates, even
though some of the legal services were provided at some point in
the past, to account for the delay in payment. As the Supreme
Court has explained in the civil rights context:
Our cases have repeatedly stressed that attorney's
fees awarded under [42 U.S.C. § 1988] are to be based
on market rates for the services rendered. . . .
Clearly, compensation received several years after
the services were rendered — as it frequently is in
complex civil rights litigation — is not equivalent
to the same dollar amount received reasonably
promptly as the legal services are performed, as
would normally be the case with private billings. We
agree, therefore, that an appropriate adjustment for
delay in payment — whether by the application of
current rather than historic rates or otherwise — is
within the contemplation of the statutes.
Missouri v. Jenkins, 491 U.S. 274, 283-84, 109 S.Ct. 2463, 105
L.Ed.2d 229 (1989) (citations and footnote omitted). The same
reasoning applies in ERISA cases. Here, AKO was paid as its legal
services were performed, but the Trust was deprived of the use of
that money for all these years because of Hancock's breach of its
fiduciary duties. Hence, an "appropriate adjustment" must be
made. Because AKO's bills were paid, the appropriate adjustment
is an award of interest rather than a recalculation of the fees
at current rates.*fn5
Prejudgment interest on the award of attorneys' fees and costs
will be assessed at the Sperry Trust rate of return, running from
December 31 of the year the invoice was issued and paid by the
Trust. (See Pl. Reply to Def. Obj. at 26; 1/16/01 Supp. Annin
Aff. ¶ 4).
8. Equitable Relief
In the Opinion, I ordered the removal of Hancock as a fiduciary
for the Plan. In its original proposed judgment, the Trust
offered a proposal to implement this relief. Hancock objected,
and the Trust has offered a modified proposal. (See Pl. Reply
to Def. Obj. at 27-30). Hancock objects to the modified proposal.
Hancock's objections are overruled, except to the following
extent: (1) instead of the 1983 Group Annuitant Mortality table,
Hancock may use a current commonly-accepted mortality table; and
(2) instead of the table from the actuarial valuations of the
Sperry Plan made by Buck in the 1980's, Hancock may use a more
current table covering just employees entitled to benefits under
GAC 50, if such a table exists or can be promptly created.
Accordingly, the Trust's modified proposal is accepted, except
that it is to be further modified to reflect the above rulings.
The Trust's motion for an order modifying the Court's findings
of fact is granted to the extent set forth above. Hancock's
motion for an order modifying the Court's findings of fact is
granted to the extent set forth above and is otherwise denied.
Hancock's objections are sustained in part and overruled in part,
as set forth above.
The Trust shall submit a final proposed judgment reflecting the
above rulings and including revised interest calculations, on or
before Monday, April 9, 2001.