The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge
Currently pending before this Court are three motions for
attorneys' fees and costs. Defendants William Morris Agency, Inc.
("WMA"), Creative Artists Agency, LLC ("CAA"), and Renaissance
Entertainment, Inc. ("Renaissance") (collectively, the "Booking
Agency Defendants") move for an adjudication of Plaintiffs'
liability for attorneys' fees, expenses and costs, pursuant to
42 U.S.C. § 1988 and Rule 54(d)(2)(B) and (C) of the Federal Rules
of Civil Procedure, and for an adjudication of liability,
pursuant to 28 U.S.C. § 1927 and the inherent powers of the
court, of Plaintiffs' current and former attorneys of record:
Gary, Williams, Parenti, Finney, Lewis, McManus, Watson &
Sperando, P.L. (the "Gary firm"); Ivie McNeill & Wyatt; Robert E.
Donnelly, Esq.; RubinBaum LLP (the "RubinBaum firm"); and
Sonnenschein Nath & Rosenthal LLP. Defendant Beaver Productions,
Inc. ("Beaver") moves for attorneys' fees and costs against
Plaintiffs and their counsel, the Gary firm, pursuant to
42 U.S.C. § 1988, 28 U.S.C. § 1927, the inherent powers of the
court, and Rule 11 of the Federal Rules of Civil Procedure.
Defendant Jam Productions, Ltd. ("Jam") moves for attorneys' fees
and costs against Plaintiffs and their counsel, the Gary firm, pursuant to
42 U.S.C. § 1988, 28 U.S.C. § 1927, and the inherent powers of the
For the reasons that follow, the motions for attorneys' fees and costs
filed by the Booking Agency Defendants, Beaver and Jam are denied.
The instant motions arise from a civil action, filed on
November 19, 1998, by four*fn1 African-American owned
concert promoter companies and their owners: Rowe Entertainment,
Inc. and Leonard Rowe; Sun Song Productions, Inc. and Jesse
Boseman; Summitt Management Corporation and Fred Jones, Jr.; and
Lee King Productions, Inc. and Lee King. The original Complaint
charged eight talent and booking agencies, including WMA, CAA and
Renaissance, and twenty-six concert promoters, including Beaver
and Jam, with violations of Section 1 of the Sherman Antitrust
Act, 15 U.S.C. § 1, and violations of 42 U.S.C. §§ 1981, 1985(3)
and 1986. By Opinion and Order dated May 26, 1999, this Court
dismissed the antitrust claims against the Booking Agency
Defendants, Beaver, Jam and other former defendants, and
dismissed the discrimination claims against Beaver, Jam and other
former defendants, pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Rowe v. William Morris Agency, Inc. ("Rowe
I"), No. 98 Civ. 8272, 1999 WL 335139, at *9 (S.D.N.Y. May 26,
On August 9, 1999, Plaintiffs filed an Amended Complaint
alleging an antitrust conspiracy and claims of discrimination
against all the original Defendants. Defendants again moved,
pursuant to Rule 12(b)(6), to dismiss the Amended Complaint. By
Opinion and Order dated July 6, 2000, this Court denied the
motions to dismiss the Amended Complaint, except the Court
dismissed the antitrust claim against Jam and certain other
former defendant concert promoters with prejudice.*fn2 Rowe v. William Morris
Agency, Inc. ("Rowe II"), No. 98 Civ. 8272, 2000 WL 896929, at
*15 (S.D.N.Y. July 6, 2000).
Nearly three years of discovery followed, during which
Plaintiffs were afforded virtually unlimited access to the
concert files, computerized e-mail communications and electronic
concert databases of Defendants WMA and CAA. (See Affidavit of
Helen Gavaris, dated Feb. 22, 2005, ¶ 16; Declaration of Jeffrey
S. Klein, dated Feb. 22, 2005, ¶ 10.) More than sixty witnesses
were deposed, including the five Plaintiffs whose depositions
took twenty days to complete. (Booking Agency Defs.' Br. ("BA
Defs.' Br.") at 6.)
On February 28, 2003, the only remaining Defendants, the
Booking Agency Defendants, Beaver and Jam, moved for summary
judgment. On January 4, 2005, this Court filed a 174-page Opinion
granting summary judgment, pursuant to Rule 56 of the Federal
Rules of Civil Procedure, to the Booking Agency Defendants,
Beaver and Jam for the failure to present evidence supporting
essential elements of each cause of action asserted in the
Amended Complaint. Rowe SJ, 2005 WL 22833.
As a general rule in the United States, litigants must pay
their own attorneys' fees in the absence of legislation providing
otherwise. Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,
421 U.S. 240, 247 (1975). Congress has provided a limited exception
to this rule in 42 U.S.C. § 1988, which allows a district court,
in its discretion, to grant reasonable attorney's fees to a prevailing party in an action to enforce a provision of
42 U.S.C. §§ 1981, 1985 and 1986.*fn3 42 U.S.C. § 1988. Under § 1988,
a prevailing plaintiff is "to be awarded attorney's fees in all
but special circumstances." Christiansburg Garment Co. v. EEOC,
434 U.S. 412, 417 (1978).*fn4 A prevailing defendant,
however, is to be awarded attorney's fees only if a district
court finds that the plaintiff's "claim was frivolous,
unreasonable, or groundless, or that the plaintiff continued to
litigate after it clearly became so." Id. at 422. This
distinction between prevailing plaintiffs and defendants
"advances the congressional purpose to encourage suits by victims
of discrimination while deterring frivolous litigation." Roadway
Express, Inc. v. Piper, 447 U.S. 752, 762 (1980).
Despite the "prevailing party" language in 42 U.S.C. § 1988,
the Supreme Court has identified "two strong equitable
considerations" for awarding attorney's fees to a prevailing
plaintiff, which are "wholly absent" where the defendant
prevails. Christiansburg, 434 U.S. at 418. First, "the
plaintiff is the chosen instrument to vindicate `a policy that
Congress considered of the highest priority.'" Id. (quoting
Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968)).
Second, when a prevailing plaintiff is awarded attorney's fees,
these fees are assessed "against a violator of federal law."
Id. at 419.
"The fact that a plaintiff may ultimately lose his case is not
in itself a sufficient justification for the assessment of fees"
in favor of the defendant. Hughes, 449 U.S. at 14. Furthermore,
when deciding whether to award attorney's fees to a prevailing
defendant, a district court should not "engage in post hoc
reasoning by concluding that, because a plaintiff did not
ultimately prevail, his action must have been unreasonable or
without foundation." Christiansburg, 434 U.S. at 421-22. Additionally, this
admonition is "particularly pertinent to cases involving
allegations of conspiracies" because "[c]onspiracies are by their
very nature secretive operations that can hardly ever be proven
by direct evidence. Thus, unsuccessful conspiracy claims are not
unreasonable merely because they were based principally, or even
entirely, on circumstantial evidence." LeBlanc-Sternberg v.
Fletcher, 143 F.3d 765, 770 (2d Cir. 1998) (internal quotation
marks and citations omitted).
Another exception to the "American rule" that litigants must
pay their own attorneys' fees is 28 U.S.C. § 1927, which
Any attorney or other person admitted to conduct
cases in any court of the United States or any
Territory thereof who so multiplies the proceedings
in any case unreasonably and vexatiously may be
required by the court to satisfy personally the
excess costs, expenses, and attorneys' fees
reasonably incurred because of such conduct.
Section 1927 differs from § 1988 in that it imposes liability
for misconduct on an attorney or person acting as an attorney.
Also, "it applies a uniform standard for the imposition of
sanctions, whether the person against whom fees are assessed
represented the plaintiff or the defendant." Oliveri v.
Thompson, 803 F.2d 1265
, 1273 (2d Cir. 1986). Section 1927 does
not "distinguish between winner and losers." Roadway Express,
447 U.S. at 762. Thus, § 1927 does not concern the equities of a
dispute, but rather is "concerned only with limiting the abuse of
the court processes" by an attorney or person acting as an
attorney. Id. However, as with § 1988 determinations, the
decision whether to impose § 1927 sanctions is within the
discretion of the district court. See McMahon v.
Shearson/American Express, Inc., 896 F.2d 17
, 23 (2d Cir. 1990);
Apex Oil Co. v. Belcher Co., 855 F.2d 1009
, 1020 (2d Cir.
1988). To impose sanctions under § 1927, a court must find "clear
evidence that (1) the offending party's claims were entirely
meritless and (2) the party acted for improper purposes." Agee
v. Paramount Communications, Inc., 114 F.3d ...