Opinion
No. 98 Civ. 3938 (SWK)
February 20, 2003
OPINION AND ORDER
Counsel for the Austrian Bank Settlement Class move for an award of attorneys' fees and reimbursement of expenses. Plaintiff Walter Steven Zeisl ("Zeisl"), a member of the Austrian Bank Settlement Class, opposes the award of any fees or reimbursement of expenses to Class Counsel because they allegedly violated ethical and fiduciary obligations owed to the Austrian Bank Settlement Class. In response, Anderson Kill Olick, P.C. ("Anderson Kill"), Kohn, Swift Graf, P.C. ("Kohn Swift"), Edward D. Fagan, Esg. ("Fagan"), and Carey R. D'Avino, Esg. ("D'Avino"), submitted a memorandum in support of an award of fees and expenses. Plaintiff Peter Georgi ("Georgi"), as a member of the Austrian Bank Settlement Class and a pro se litigant, also moves for an award of attorneys' fees and reimbursement of expenses for himself. Defendants Creditanstalt AG and Bank Austria AG (collectively the "Austrian Banks"), Kohn Swift and Anderson Kill oppose Georgi's motion. Kohn Swift and Anderson Kill also oppose the request by Cohen Milstein Hausfeld Toll, P.L.L.C. ("Cohen Milstein") for reimbursement of expenses. For the reasons set forth below, Georgi's request for fees and reimbursement of expenses is denied, and attorneys' fees and expenses are awarded to some members of Class Counsel for the Austrian Bank Settlement Class.
On March 15, 1999, the parties reached a settlement of this action (the "Austrian Settlement"). The Austrian Settlement identified 17 attorneys and law firms as "Class Counsel." See Austrian Settlement at ¶ 1(j). However, only 11 of the identified attorneys and firms signed the Austrian Settlement, including Kohn, Swift Graf, P.C.; Fagan D'Avino LLP; Anderson Kill Olick, P.C.; the Marks Law Firm; Michael Witti; Berger Montague, P.C.; Law Offices of Mel Urbach; Cohen Milstein, Hausfeld Toll, P.L.L.C.; Lieff, Cabraser, Heimann Bernstein; Martin Mendelsohn; and Furth, Fahrner Mason.
BACKGROUND
The Court has previously issued opinions detailing the procedural history of the various actions against both the Austrian Bank and German Bank defendants. Only those facts necessary to the issues presented in this motion are repeated below.
On March 15, 1999, the Austrian Settlement was signed by the parties. On June 24, 1999, the Court granted preliminary certification of the Austrian Bank Settlement Class, and also granted preliminary approval to the Austrian Settlement. A Fairness Hearing regarding the Austrian Settlement was conducted on November 1, 1999. Then, on January 6, 2000, the Court certified the Austrian Bank Settlement Class, approved the Austrian Settlement, and dismissed with prejudice all claims against the Austrian Banks as against the named plaintiffs and those members of the Austrian Bank Settlement Class who did not timely exercise their right to be excluded from the Austrian Settlement. See In re Austrian and German Bank Holocaust Litig., 80 F. Supp.2d 164 S.D.N.Y. 2000) ("Austrian and German Bank I").
The Austrian Settlement provides for a total cash settlement of 540 million and the assignment of Nazi-era "claims for restitution, indemnification or contribution that the Austrian Banks may have or have had . . . against any financial or commercial enterprise that may have exercised dominion or control over any of the Austrian Banks (the "Austrian Assignment")." Id. at 171.
In early February 1999, while Class Counsel negotiated with the Austrian Banks, they, along with numerous other attorneys, also began negotiations for a global settlement of Holocaust-era claims against various German entities. See In re Austrian and German Bank Holocaust Litig., No. 98 Civ. 3938, 2001 WL 228107, at *1 (S.D.N.Y. Mar. 8, 2001) ("Austrian and German Bank II"). These meetings culminated in the signing of a non-judicial, inter-governmental agreement (the "German Compact") on July 17, 2000. See id. The German Compact recognized the German Foundation "Remembrance, Responsibility and Future" (the "German Foundation") as the exclusive forum for the resolution of all labor and property claims against German entities arising during World War II. See id. On May 18, 2001, the Court dismissed the consolidated class action complaint regarding the claims against all German defendants with prejudice to the named plaintiffs, and without prejudice to class members. See Amended Order dated May 18, 2001.
On July 12, 2001, Zeisl filed a motion seeking, inter alia, an order directing the forfeiture of the $42 million in attorneys fees awarded by the German Foundation to the attorneys and law firms listed as Class Counsel in the Austrian Settlement for services they rendered in connection with the German Compact. The Court denied Zeisl's motion, see In re Austrian and German Bank Holocaust Litig., No. 98 Civ. 3938, 2001 WL 1150341 (S.D.N.Y. Sept. 28, 2001) ("Austrian and German Bank III"), and the Second Circuit recently affirmed. See In re Austrian and German Bank Holocaust Litig., 317 F.3d 91 (2d Cir. 2003) ("Austrian and German Bank IV").
DISCUSSION
I. ZEISL'S OPPOSITION TO AN AWARD OF ATTORNEYS' FEES AND EXPENSES
In the consolidated action involving the Austrian Banks, several members of Class Counsel request awards of attorneys' fees, totaling $2,188,105.86, and also seek reimbursement of litigation expenses, totaling $188,574.50.
Zeisl contends that all of the attorneys and law firms listed as Class Counsel in the Austrian Settlement must forfeit attorneys' fees because they violated their ethical and fiduciary obligations of undivided loyalty owed to the Austrian Bank Settlement Class when they negotiated and signed the German Compact. During the negotiations for the German Compact, the Austrian Assignment was identified as a corporate claim and thus deemed outside the scope of the German Foundation, which was established as the exclusive forum to resolve all labor and property claims against German entities arising during World War II. Zeisl specifically accuses only Milberg Weiss Bershad Hynes Lenach LLP ("Milberg Weiss"), Proressor Burt Neuborne ("Neuborne"), Robert A. Swift, Esq. ("Swift"), Lawrence Kill, Esq. ("Kill"), Fagan, and D'Avino of unprofessional conduct.
The Court notes that Zeisl's attorney, F. Randol Schoenberg, Esg., previously submitted two letters to the Court detailing his objections to both the Austrian Settlement and Class Counsel's representation of the Austrian Bunk Settlement Class.
First, Zeisl asserts that Milberg Weiss and Neuborne "argued against the claims of their own clients," and "opposed any attempt to allocate funds from the German Foundation for the satisfaction of the Austrian Assignment." Zeisl Mem. at 18. However, the Court need not determine whether Milberg Weiss and Neuborne acted in a manner that was inconsistent with conflict-free representation. The Second Circuit recently held that because Milberg Weiss and Neuborne did not sign the Austrian Settlement, they "owed no duty of representation to [the Austrian Bank Settlement Class] distinct from [their] general duty to represent all of their Holocaust victim clients." Austrian and German Bank IV, 317 F.3d at 101. Furthermore, neither Milberg Weiss nor Neuborne has moved for an award of either attorneys' fees or reimbursement of expenses.
Next, Zeisl asserts that Swift, Kill, Fagan, and D'Avino also violated fiduciary and ethical duties owed to the Austrian Bank Settlement Class because, despite arguing in favor of an allocation for the Austrian Assignment from the German Foundation, they eventually signed the German Compact in July 2000. The Court, however, disagrees with Zeisl's position regarding the conduct of Swift, Kill, Fagan, and D'Avino.
Throughout their representation of the Austrian Bank Settlement Class, Swift, Kill, Fagan, and D'Avino zealously advocated on behalf of individuals in desperate need of competent representation. During negotiations with respect to the German Compact, Swift, Kill, Fagan and D'Avino argued vigorously on behalf of the Austrian Bank Settlement Class for inclusion of the Austrian Assignment in the German Foundation, and eventually acquiesced to signing the German Compact only after being pressured by numerous people, including representatives of the United States Government and the German Government. According to Stuart E. Eizenstat, former Deputy Secretary of the Treasury and co-chair of the multilateral negotiations establishing the German Foundation, "[i]ndeed I had to persuade them to sign the German [Compact], even though the Austrian [A]ssignment was not covered, given its multiple benefits to needy victims." Amended Supplemental Declaration of Stuart E. Eizenstat, dated September 3, 2002, ¶ 7. Even Zeisl grudgingly concedes that Swift, Kill, Fagan, and D'Avino could not "hold up" the German Compact. Zeisl Mem. at 21; see also Austrian and German Bank IV, 317 F.3d at 103 ("It is not difficult to imagine the attack that would have been made had their insistence on some compensation for the Assigned Claims undermined the entire [German] Compact.").
Therefore, the Court finds that Swift, Kill, Fagan, and D'Avino did not violate their ethical duties owed to their clients. Accordingly, each is entitled to an award of attorneys' fees and reimbursement of expenses.
II. GEORGI'S MOTION FOR AN AWARD OF PRO SE ATTORNEY FEES AND EXPENSES
Georgi seeks an award of "pro se attorney's fees in an approximate amount of $50,000 and reimbursement of expenses in the approximate amount of $3,000." Notice of Motion and Motion for Pro Se Attorney's Fees and Reimbursement of Expenses, dated June 12, 2002.
The Court notes that Georgi has not submitted any support for the amount he requests as compensation.
In Kay v. Ehrler, the Supreme Court held that a pro se litigant in a civil rights action who is not a lawyer is not entitled to attorney's fees. 499 U.S. 432, 435, 111 S.Ct. 1435, 1436 (1991). Furthermore, the Second Circuit does not permit an award of attorney's fees even if a pro se litigant is both successful and a lawyer, and a fee-shifting provision of the statute litigated under is applicable. See Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 694 (2d Cir. 1998).
Here, Georgi's motion to intervene was denied by the Court, see Austrian and German Bank I, 80 F. Supp.2d at 171-75, and his appeal of that decision was subsequently denied by the Second Circuit. See D'Amato v. Deutsche Bank, 236 F.3d at 84-37. Consequently, Georgi was an unsuccessful, pro se non-lawyer litigant, and is therefore not entitled to an award of attorney's fees. See In re Texaco Inc. S'holder Derivative Litig., 123 F. Supp.2d 169, 172 n. 3 (S.D.N.Y. 2000).
Georgi's citations in support of his motion are unpersuasive. Georgi cites several cases from the D.C. Circuit that approved the award of attorney's fees to a pro se non-attorney litigant. See Cox v. United States Dep't of Justice, 601 F.2d 1 (D.C. Cir. 1979); Holly v. Chasen, 72 F.R.D. 115 (D.D.C. 1976), aff'd, 569 F.2d 160 (D.C. Cir. 1977). However, in Benavides v. Bureau of Prisons, the D.C. Circuit subsequently reversed its position, and held that a pro se non-attorney litigant is not entitled to an award of attorney's fees. 993 F.2d 257, 259 (D.C. Cir. 1993).
Accordingly, the Court finds that Georgi is not entitled to an award of either attorney's fees or reimbursement of expenses.
III. APPLICATIONS FOR ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES
A. ATTORNEYS' FEES
The attorneys' fees requested in this matter total $2,178,283.02. Specifically, the Court has received the following requests: (1) Kohn Swift, $787,806.62; (2) Anderson Kill, $306,944.50; (3) Fagan, $446,162.50; (4) D'Avino, $211,493.75; (5) the Marks Law Firm, P.C. ("the Marks Firm"), $163,522.50; (6) the Furth Firm LLP ("the Furth Firm"), $106,367.75; (7) Zelle, Hofmann, Voelbel, Mason Gette LLP ("Zelle Hofmann"), $4,708.00; (8) Arthur N. Bailey Associates, P.C. ("Bailey Associates"), $52,827.50; and (9) Fleishman Fisher, $98,449.90.
The Austrian Settlement identifies Furth, Fahrner and Mason as "Class Counsel." See Austrian Settlement at ¶ 1(j). On May 15, 2000, Furth, Fahrner and Mason ceased to exist, and the attorneys involved in this litigation joined either the Eurth Firm or Zelle Hofmann. See Declaration of Christopher T. Micheletti, dated June 5, 2002, at ¶ 2. The two firms submitted a joint application for fees and expenses, but the hours billed and the expenses incurred prior to May 15, 2000, are part of the Furth Firm's application. See id. at Ex. 3.
1. APPLICABLE LAW
Counsel seek fees based upon the "equitable fund" or "common fund" exception to the "American Rule" that the prevailing party is not entitled to collect attorney's fees from the losing party. Buckham Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 602-03, 121 S.Ct. 1835, 1839 (2001); Chambers v. PASCO, Inc., 501 U.S. 32, 45, 111 S.Ct. 2123, 2133 (1991). Under this exception, "an attorney whose actions have conferred a benefit upon a given group or class of litigants may file a claim for reasonable compensation for his [or her] efforts."City of Detroit v. Grinnell Corp., 560 F.2d 1093, 1098 (2d Sir. 1977) ("Grinnell II"). The underlying principle of this doctrine that members of a group or a class should pay reasonable compensation to the attorneys representing their interests. See City of Detroit v. Grinnell Corp., 495 F.2d 448, 469 (2d Cir. 1974) ("Grinnell I"). "Accordingly, the court, relying on its equitable power, may apportion fees among those who have benefitted from the creation, preservation or protection of a settlement fund by charging the fees against that fund." Dubin v. E.F. Hutton Group, Inc., 845 P. Supp. 1004, 1013 (S.D.N.Y. 1994); see also In re McDonnell Douglas Equip. Leasing Sec. Litig., 838 P. Supp. 729, 741 (S.D.N.Y. 1993); Trief (Jack) v. The Dun and Bradstreet Corp., 840 F. Supp. 277 (S.D.N.Y. 1993).
"Both the lodestar and the percentage of the fund methods are available to district judges in calculating attorneys' fees in common fund cases."Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000). Using the percentage method, the court may fix a certain percentage of the settlement fund as attorneys' fees. Conversely, the lodestar method requires the court to calculate a reasonable number of hours and multiply it by a reasonable rate for the services performed. Under either the lodestar or Percentage of recovery method, the court must consider the following factors in determining an appropriate fee: "1) the time and labor expended by counsel; 2) the magnitude and complexities of the litigation; 3) the risk of the litigation; 4) the quality of representation; 5) the requested fee in relation to the settlement; and 6) public policy considerations." Goldberger, 209 F.3d at 50.
Although the Goldberger court made clear that "both the lodestar and the percentaqe of the fund methods are available district court judges in calculating attorney's fees in common fund cases," id., the Court exercises its discretion to employ the lodestar method in this action.
"[T]he critical inquiry is whether the fees represent `fair and just compensation for [counsel's] respective efforts.'" In re Painewebber Ltd. P'ships Litig., 999 F. Supp. 719, 723 (S.D.N.Y. 1998) (quoting In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 232 (2d Cir. 1987) (citation omitted)). Attorneys' fees, "whether calculated pursuant to the lodestar or the percentage method, . . . may not exceed what is `reasonable' under the circumstances." Goldberger, 209 F.3d at 47. The determination of "reasonableness" is within the discretion of the district court. Id. "When a fund is created through the settlement of a class action, the court, as quardian of the rights of class members, is not bound by the amount the fee award requested by counsel even where notice of the fee request has been provided to all class members and no objections have been received." Dubin, 845 F. Supp. at 1013.
i. TIME AND LABOR EXPENDED BY COUNSEL
As on initial matter, the Court finds that Bailey Associates is not entitled to an award of fees. The submission of Arthur N. Bailey, Esq., indicates that Bailey Associates did not perform any tasks related to this litigation. Instead, the time records establish that the firm worked on a different Holocaust class action involving Swiss Gold before Chief Judge Edward R. Korman in the Eastern District of New York. Furthermore, Bailey Associates was not identified as "Class Counsel" in the Austrian Settlement. See Austrian Settlement at ¶ 1(j).
Counsel for the remaining law firms and individual attorneys devoted 6,359.7 hours to litigation of this action. Counsel represent that these hours establish a lodestar of $2,125,525.50. Counsel's lodestar calculation is based on attorney fees for partners ranging from $300 to $550 per hour, attorney fees for associates ranging from $200 to $325 per hour, and attorney fees for paralegais ranging from $80 to $140 per hour. Mindful of its responsibility to act "as fiduciary who must serve as a quardian of the rights of absent class members." Grinnell II, 560 F.2d at 1099, the Court views these hourly rates as excessive given the speical nature of this litigation. See Goldberger, 209 F.3d at 47 ("the fees awarded in common fund cases may not exceed what is reasonable under the circumstances") (emphasis added). Accordingly, the hourly rates used to calculate the lodestar fee shall be reduced to a reasonable rate.See In re Twinlab Corp. Sec. Litig., 187 F. Supp.2d 80, 88 (E.D.N.Y. 2002) ("the Court is well within its authority to reduce billable rates under the lodestar method") (citation omitted).
In an effort to allow members of the Austrian Bank Settlement Class to receive additional compensation from the Austrian Settlement, Kohn Swift seeks fees for only 2,822 hours, a sizable reduction from the total amount of hours it billed. Fagan has also reduced his fee application by waiving fees for the work performed by his support personnel, and reducing his hours billed by 20 percent. Additionally, the Marks Firm only seeks fees for time billed from October 1998 through January 31, 2000.
To determine a reasonable billing rate, the Court is extremely conscious of the plaintiffs that counsel represents. During the past decade, numerous class actions have been filed in various federal courts seeking, inter alia, restitution and compensation for the persecution of millions of innocent people during World War II. In this action, the complaint alleged that the Austrian Banks converted the assets of those persecuted by the Nazis and profited from their forced and slave labor.See Austrian I, 80 F. Supp.2d at 168. The Court recognizes that the majority of class members in this action are elderly and infirm, and have waited nearly sixty years for redress of the offenses perpetrated against them during World War II. Counsel also acknowledge that their receipt of fees is subordinate to compensation the Austrian Bank Settlement Class and have therefore committed as a group to seek no more than 10 percent of the Austrian Settlement as on award of fees. Furthermore, the Court believes that class members should receive their payments before counsel are awarded fees. In sum, the Court is guided by the belief that the amount of funds available for distribution to the Austrian Bank Settlement Class should be maximized.
The Court's decision to award attorneys' fees after the Austrian Bank Settlement Class receive their payments is in contrast to the approach utilized by the German Foundation, which set aside 125 million DM for the immediate payment of attorneys' fees. Following the establishment of the German Foundation, two arbitrators, Kenneth R. Feinberg and Nicholas deB. Katzenbach, recommended awards of fees totaling 119 DM to 51 attorneys, and this sum was approved by the German Foundation's Board of Trustees on June 21, 2001. The six law firms and two attorneys seeking fees from the Austrian Settlement received a combined 29,996,370 DM from the German Foundation. Unfortunately, the Court recently learned from Michael D. Hausfeld, Esq. that numerous problems plague the German Foundation. "All of the evidence we have uncovered to date suggests — as your honor so presciently feared — that German industry did not meet the payment deadlines, counted inflated `credits' for ICHEIC payments towards its obligation, and failed to accrue interest for the benefit of the beneficiaries as required by the agreement." Letter from Michael P. Hausfeld to the Hon. Shirley Wohl Kram, dated January 31, 2003.
"In calculating the lodestar fee, district courts generally must apply prevailing market rates for comparable attorneys of comparable skill and standing in the pertinent legal community." Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999). "It is well-established that the prevailing community the district court should consider to determine the lodestar figure is the district in which the court sits." Luciano v. Olsten Corp., 109 F.3d 111, 115 (2d Cir. 1997). In order to set a reasonable hourly rate for counsel, the Court believes that the representation they provided to the Austrian Bank Settlement Class is analogous to the representation provided by attorneys in civil rights actions. After surveying recent fee awards in such actions, the Court finds that a reasonable rate scale is as follows: $250 per hour for partners, $150 per hour for associates and $75 per hour for paralegals.See, e.g., Quaratino v. Tiffany Co., 166 F.3d 422, 427 (2d Cir. 1999) (finding "considerable support" for the district court's determination of a rate of $225 per hour for an experienced civil rights practitioner who had been practicing law for approximately twenty years);Vernon v. Port Auth. of N.Y. and N.J., 220 F. Supp.2d 223, 230 (S.D.N.Y. 2002) (awarding a rate of $150 for an associate); Marisol A. v. Giuliani, 111 P. Supp.2d 381, 388 (S.D.N.Y. 2000) (stating that a rate of $75 per hour for paralegals is reasonable); Pascuiti v. New York Yankees, 108 P. Supp.2d 258, 266-67 (S.D.N.Y. 2000) (noting that the range of fees for "seasoned civil rights litigators" is between $200 per hour and $300 per hour).
As mentioned above, counsel seek fees for 6,359.7 hours, which is less than the total number of hours they collectively devoted to litigation of this action. After a review of the time records and affidavits of counsel, the Court finds the amount of time claim for each attorney and paralegal to be reasonable. The time records reflect that counsel invested numerous hours in connection with the research and preparation of pleadings in this action and in the related cases prior to consolidation. Among other things, plaintiffs filed a complaint, a consolidated class action complaint, a motion for preliminary approval of the Austrian Settlement, a motion for approval of the proposed form of notice and the proposed notice campaign with respect to the Austrian Settlement, a motion for approval of the claim form, and a motion for final approval of the Austrian Settlement.
Counsel also negotiated a settlement with the Austrian Banks, an extraordinarily complex and time consuming endeavor. Beginning in October 1998, counsel attended settlement meetings with counsel for the Austrian Banks. Following the Court's appointment of Alfonse M. D'Amato as Special Master to supervise and conduct settlement discussions, the parties attended additional meetings, culminating in the Austrian Settlement. After the Austrian Settlement was signed, counsel was responsible for notifying class members and reviewing their objections and requests to be excluded from the Austrian Settlement. Counsel also assisted in the development of the claim form used by the Austrian Bank Settlement Class. Additionally, counsel have appeared before the Court on numerous occasions to deal with the approval and administration of The Austrian Settlement.
Throughout the pendency of this litigation, counsel has spent hours communicating with class members, both in writing and by telephone. Counsel have answered questions posed by class members and provided them with pertinent information regarding the Austrian Settlement. Therefore, the Court finds that the hours billed are reasonable.
ii. THE MAGNITUDE AND COMPLEXITIES OF THE LITIGATION
"It is beyond cavil that this litigation is complex and would likely endure for years at a significant cost to all parties." Austrian and German Bank I, 80 F. Supp.2d at 174. The Court has also previously stated that "further litigation of this case would present the Court with complex legal issues upon which the Court would be required to rule."Id. at 175. Accordingly, this factor supports the award of a reasonable amount of fees.
iii. THE RISK OF THE LITIGATION
The risk involved in this litigation weighs in favor of awarding fees to counsel, not because of the general contingency risk associated with class actions, but based upon the likely hurdles to recovery in this particular case. If a settlement had not been reached, plaintiffs would have faced serious difficulties in overcoming the Austrian Banks' numerous motions to dismiss. See id. at 177. Moreover, even if plaintiffs would have survived those motions, proving defendants' liability and damages at trial would have been another significant hurdle. The risk plaintiffs face in litigating this case is underscored by the dismissal of two class action cases involving similar World War II-era claims in the District of New Jersey. See Iwanowa v. Ford Motor Co., 67 F. Supp.2d 424 (D.N.J. 1999); Burger-Fischer v. Degussa AG, 65 F. Supp.2d 248 (D.N.J. 1999).
iv. THE QUALITY OF REPRESENTATION
A review of the firm resumes and achievements indicates that the quality of representation was very high. A number of the firms are recognized as leaders in the field of class action litigation. In considering the quality of representation, it is also reasonable to give some weight to the quality of opposing counsel. See Maley v. Del Global Techs. Corp., 186 F. Supp.2d 358, 373 (S.D.N.Y. 2002). Here, counsel faced formidable opposition in Stroock Stroock Lavan LLP, a nationally recognized and respected law firm.
v. THE REQUESTED FEE IN RELATION TO THE SETTLEMENT
Counsel seek to recover approximately $2.1 million from a settlement of $40 million. Even though this amount is approximately 5 percent of the Austrian Settlement, the Court believes, as discussed above, that this request is excessive given the special nature of this litigation.
vi. PUBLIC POLICY CONSIDERATIONS
Counsel argue that unless contingent fees are adequate to attract competent class counsel, victims of international human rights abuses will be unrepresented. This argument is persuasive. Accordingly, public policy considerations support the award of a reasonable amount of fees.
2. LODESTAR CALCULATION
The Court, using the lodestar method, awards attorneys' fees to counsel as set forth in Schedule A.
B. REIMBURSEMENT OF LITIGATION EXPENSES
The Court has received nine requests for reimbursement of litigation expenses, totaling $188,574.50. Specifically, the Court has received the following requests: (1) Kohn Swift, $53,355.91; (2) Anderson Kill, $6,814.88; (3) Fagan, $29,700.00; (4) D'Avino, $3,528.00; (5) The Marks Firm, $4,490.45; (6) The Furth Firm, $14,530.84; (7) Zelle Hofmann, $529.88; (8) Fleishman Fisher, $1,925.40; and (9) Cohen Milstein, $73,699.14.
Counsel are entitled to reasonable litigation expenses. See In re Twinlab Corp. Sec. Litig., 187 F. Supp.2d. at 88; Miltland Raleigh-Durham v. Myers, 840 P. Supp. 235, 239 (S.D.N.Y. 1993) ("Attorneys may be compensated for reasonable out-of-pocket expenses incurred and customarily charged to their clients, as long as they `were incidental and necessary to the representation' of those clients.")
Kohn Swift and Anderson Kill object to Cohen Milstein' 5 request for reimbursement of litigation expenses, in the amount of $73,699.14. Specifically, Kohn Swift and Anderson Kill contend that Cohen Milstein is not entitled to reimbursement of expenses it categorized as historical research costs. Cohen Milstein submitted a letter claiming that historical research cost the firm $56,250. See Letter from Michael D. Hausfeld, Esq., to the Hon. Shirley Wohl Kram, dated June 17, 2002, Attachment 3. However, Cohen Milstein failed to describe why the firm expended $56,250 for historical research or the purpose of this research. Furthermore, Swift, co-lead counsel, states that the "research was not done at the request of co-lead counsel and not shared with co-lead counsel. In fact, the Fee Petition is the first time the existence of such research was mentioned to co-lead counsel." Objection of Co-Lead Counsel to Fee Petitions, dated July 9, 2002, at ¶ 2. Therefore, the Court denies the portion of Cohen Milstein's request that seeks reimbursement of expenses for historical research in the amount of $56,250.
The Court has carefully reviewed the nine requests for reimbursement of expenses, and, with the exception of the historical research costs sought by Cohen Milstein, the Court finds that the litigation expenses incurred appear reasonable. Accordingly, the Court awards $132,324.50 as reasonable litigation expenses in this litigation as set forth in Schedule B.
CONCLUSION
For the reasons set forth above, Zeisl's motion opposing an award of fees to counsel and Georgi's motion seeking attorney's fees and reimbursement of expenses are denied. Furthermore, the Court awards attorney's fees in the total amount of $1,376,711.00, and expenses in the total amount of $132,324.50, as described in the attached schedules.
SO ORDERED.
Schedule A Law Firm Hourly Rate Hours Billed Total Kohn Swift Graf, P.C. Total Lodestar $500,702.50 Anderson Kill Olick, P.C. Total Lodestar $168,213.75 Edward D. Fagan, Esq. Total Lodestar $318,737.50 Carey R. D'Avino, Esq. Total Lodestar $111,312.50 The Marks Law Firm, P.C. Total Lodestar $132,900.00 The Furth Firm Total Lodestar $71,316.25 Zelle Hofmann, Voelbel, Mason and Gette, LLP Total Lodestar $2,995.00 Fleishman Fisher Total Lodestar $70,583.00 Schedule B Law Firm Reimbursement of Expenses Kohn Swift Graf, P.C. Anderson Kill Olick, P.C. Edward D. Fagan, Esq. Carey R. D'Avino, Esq. The Marks Law Firm, P.C. The Furth Firm Zelle Hofmann, Voelbel, Mason and Gette, LLP Fleishman Fisher Cohen Milstein Hausfeld Toll P.L.L.C.
R. A. Swift $250 795.6 $198,900.00 D. F. Sheils $250 669.3 $167,325.00 M. J. D'Urso $250 7.4 $ 1,850.00 N. Ezzelarab $150 64.2 $ 9,630.00 N. Glazer $150 113.5 $ 17,025.00 E. M. Katz $250 215.9 $ 53,975.00 A. Cohen (Paralegal) $ 75 18.9 $ 1,417.50 A.M. Schwartz (Paralegal) $ 75 24.6 $ 1,845.00 J. Muro-Neuman (Paralegal) $ 75 579.7 $ 43,477.50 W. E. Marr (Paralegal) $ 75 2.5 $ 187.50 S. Pachal (Paralegal) $ 75 67.6 $ 5,070.00 K. M. Cronin $150 4.3 $645.00 L. Gerstel $250 287.5 $71,875.00 L. Kill $250 342.9 $85,725.00 A. J. Pincus $250 2.6 $ 650.00 T. D. Robichaud $150 16.3 $ 2,445.00 V. E. Antoni (Paralegal) $ 75 0.4 $ 30.00 D. L. Fischler (Paralegal) $ 75 36.25 $ 2,718.75 D. S. Wolf (Paralegal) $ 75 3.2 $ 240.00 K. C. Zuelkhe (Paralegal) $ 75 51.8 $ 3,885.00 E. D. Fagan $250 1,274.95 $318,737.50 C. R. D'Avino $250 445.25 $111,312.50 W. R. Marks $250 486.9 $121,725.00 M. Gilbert (Paralegal) $ 75 7.5 $ 562.50 M. Hauss (Paralegal) $ 75 33 $ 2,475.00 E. Peterson (Paralegal) $ 75 108.5 $ 8,137.50 F. Furth $250 60.5 $15,125.00 D. Mason $250 6.5 $1,625.00 M. Lehmann $250 31.25 $7,812.50 C. Micheletti $250 121.15 $30,287.50 F. Baldwin $150 48.25 $7,237.50 M. Kast (Paralegal) $ 75 2 $150.00 F. Newman (Paralegal) $ 75 12.1 $907.50 N. Martimez (Paralegal) $ 75 104.05 $7,803.75 M. Eisenberg (Paralegal) $ 75 3.2 $240.00 O. Gray (Paralegal) $ 75 1.7 $127.50 C. Micheletti $250 10 $2,500.00 E. Puchi (Paralegal) $ 75 6.6 $495.00 B. A. Fisher $250 227.6 $56,900.00 D. Grosz $250 40.08 $10,020.00 D. Saxa-Kaneko $150 24.42 $3,663.00 $53,355.91 $ 6,814.88 $29,700.00 $ 3,528.00 $ 4,490.45 $14,530.84 $ 529.88 $ 1,925.40 $17,449.14